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Judgment

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024 CORAM: PWAMANG JSC AMADU JSC KULENDI JSC GAEWU JSC ADJEI-FRIMPONG JSC CIVIL APPEAL NO. J4/67/2023 22ND MAY, 2024 1. JOSEPH JOHN RADDY 2. JOHN BITAR 3. VIKIL ABDULLA ESSAKA (SUBST. BY YUSIF IBRAHIM) 3RD & 4TH DEFENDANTS/APPELLANTS 4. ABUBAKA ESSAKA (SUBST. BY /APPELLANTS MOHAMMED AWAL) VRS NANA TUTU AMPEM II …………. PLAINTIFF/RESPONDENT/RESPONDENT J U D G M E N T ADJEI-FRIMPONG JSC: My Lords, the events surrounding the subject matter of this appeal, which is Plot No. 106 Old Town Section B, Adum Kumasi, date back to 1927. It all started when on October 19 of that year, the then Government of Ashanti acting through the Chief Page 1 of 47 Commissioner of Ashanti granted a 50-year lease of the Plot to one Nana Kwaku Nsebetuo, the chief of Akyiawkrom (confused with Akyinakrom, Akyaakrom). Sequel to the grant, Nana Nsebetuo went into some agreement with a certain Naja David and the 1st Defendant herein to develop the plot. As part of the material terms of the agreement, the developers would construct on the same plot, four storerooms which they would occupy as tenants, and four dwelling rooms with one kitchen and toilet to be occupied by Nana Nsebetuo. The cost of the construction together with a loan facility of 300 pounds which they advanced to Nana Nsebetuo was to be amortized through the monthly rent of 14 pounds or 168 pounds yearly, payable by them for occupying the four storerooms. The tenancy was said to be renewable. However, by 20th July 1955, the aggregate cost of the construction and the liability on the loan had been amortized to end that phase of the transaction. Also, by that date, Nana Nsebetuo had been destooled as chief of Akyawkrom. By and large, all these facts were free from any dispute by the close of trial. Another fact also turned irrefutable. The lease of 1927 (henceforth called the headlease) had been granted in the personal name of Nana Nsebetuo. Following his destoolment however, one Kwaku Mensah and some elders of Akyiawkrom instituted an action in the Circuit Court against him. Essentially, they claimed, that even though the headlease was granted in his personal name, it was actually made for the benefit of the Akyiawkrom stool. In a judgment dated 4th October 1930 in favour of Kwaku Mensah and the elders, title in the plot was decreed for the Akyiawkrom stool. What then prompted the instant action? The pleading of the Plaintiff/Respondent/Respondent (hereinafter called “the Respondent”) indicates that after the initial agreement with Naja David and the 1st Defendant had ended, it fell on Nana Owusu Akyiaw II (the original Plaintiff) who had then become the chief of Akyiawkrom to renew the agreement with the 1st Defendant and Naja David. Naja David had however left the scene and so Nana Owusu Akyiaw II, together with one Boakye Agyemang, a linguist, entered into the agreement with the Page 2 of 47 1st and 2nd Defendants over the four storerooms. The agreement, made on 18 July 1955 became the subject of controversy in this suit. It was to cover a period of 12 years 30 days to commence on 1st September 1965 at a yearly rent of 91.13.4d pounds. According to the Respondent, Nana Owusu Akyiaw was made to believe that the agreement was for the tenancy of the four stores and that the property would revert to the stool upon its expiration. There were covenants in the agreement including one against the 1st and 2nd Defendants’ parting with possession of the demised premises or any part thereof without the consent in writing of the Asantehene, the government of Ghana and the Respondent. The Respondent further pleads that at the expiration of the tenancy, it turned out that the 1st and 2nd Defendants had purportedly assigned the entire property to one Aisha Nana, wife and mother respectively of 3rd and 4th Defendants/Appellants/Appellants (hereinafter called the Appellants). The Respondent’s attempt to regain possession of the four stores had been resisted by Aisha Nana who died in the course of time and for whose estate letters of administration were granted to the Appellants. Meanwhile, avers the Respondent, his side had been in occupation of the rest of the property apart from the four stores for over 60 years without any interference from the Appellants. The Respondent contended that the agreement executed between him and the 1st and 2nd Defendants was a tenancy agreement and not an assignment of the residue of the unexpired term of the headlease. The document executed between the 1st and 2nd Defendants and Aisha Nana showed that the 1st and 2nd Defendants never obtained the requisite consent before the purported assignment of the unexpired term. And whilst the headlease granted in 1927 had expired in 1977, the Appellants were making efforts to have the headlease renewed in their names at the Lands Commission. Indeed, as we gather from the record, the Appellants whilst the instant action was already pending, actually succeeded in getting the Lands Commission engross a fresh lease in their favour as successors to Aisha Nana, much to the displeasure of the Respondent. Page 3 of 47 The Respondent therefore for himself and on behalf of the Stool, commenced the instant suit claiming the following reliefs jointly and severally against the 1st and 2nd Defendants and the Appellants: 1. A declaration that the instrument (copy attached) executed between the Plaintiff and the 1st and 2nd Defendants and dated 8-7-55 with 10-9-65 as commencement date is a Tenancy Agreement for the four stores built on Plot No. 106 Kumasi and not a demise assigning 12 years and 30 days being the residue of the term of 50 years granted to the Plaintiff by a headlease to the 1st and 2nd Defendants. 2. A declaration that as between the Plaintiff’s Stool and the defendants, Plaintiff is better entitled to the renewal of the Headlease referred to supra. The 1st and 2nd Defendants did not attend the trial. They had however caused a defence to be filed on their behalf. In it, they averred inter alia: “6. 1st and 2nd Defendants say that by an Indenture dated the 8th July, 1955, Plaintiff assigned House No. O.T.B. 106, Kumasi, together with all his other interests therein to them for the residue then unexpired of the 50 years term created by the headlease. 8. Save admitting that the document of 8th July, 1955 forbade 1st and 2nd Defendants from parting with the demised property or any part thereof without the consents, paragraph 19 of the Statement of Claim is denied by the 1st and 2nd Defendants. 9. 1st and 2nd Defendants say in further answer to paragraph 19 that the said consents were obtained. In any case 1st and 2nd Defendants will contend that the said consents were rendered unnecessary by section 1(6) of the Lands Commission Act, 1971.” For their part, the Appellants denied the Respondent’s claim that the agreement of 8th July 1955 which he relied upon was a tenancy agreement. To them, the agreement was an assignment of the residue of the unexpired term of the headlease. It was also their Page 4 of 47 case that the requisite consent was obtained by the 1st and 2nd Defendants before the said assignment. In any event, according to them, their claim is based on a deed of assignment dated 25th March 1976 which was registered at the Land Registry. They alleged that the structures the Respondent and his people had been occupying on the Plot were unauthorized. They also attacked the Respondent’s action as vexatious, since it was the fourth suit he had mounted in respect of the same property two of which were still pending as Suit No. LC 19387 and LC 145/86. It was their further plea that the instant action was statute-barred. Judgment of the Trial Court The learned trial judge upon hearing the parties and witnesses decreed judgment for the Respondent against all the Defendants therein (the 1st and 2nd Defendants and the Appellants). Reaching his decision, he subjected the controversial agreement of 8th July 1955 between the Plaintiff and the 1st and 2nd Defendants, (Exhibit A) to some critical analysis. He determined that Exhibit A was a tenancy agreement and not an assignment of the residue of the unexpired term of the headlease as the Appellants had contended. He further determined, out of the said agreement that the 1st and 2nd Defendants had covenanted not to assign or sublet the property without the consent of the Respondent and the Asantehene. Not finding any such consent, he held that the 1st and 2nd Defendants breached the covenant. It was also his finding that Aisha Nana did not investigate the title of the 1st and 2nd Defendants before proceeding to acquire the property from them and that, if she had done so, she would have found that the 1st and 2nd Defendants had no title to convey to her. The culmination of the trial judge’s decision is captured in the following words of his: “It must be pointed out that at the time of the expiration of the lease granted by the Golden Stool to AKYIAWKROM STOOL, AKYIAWKROM STOOL had four storerooms four bedrooms, a kitchen and a toilet situate on plot No. OTB 106 Adum Kumasi. AISHA NANA had no property situate on that plot. She was neither Page 5 of 47 a lessee or [sic] sub-lessee in possession of that plot. AISHA NANA therefore obtained the fresh lease of that plot by falsely representing that she had acquired same from Joseph John Raddy and John Bitar. Joseph John Raddy and John Bitar had no title to convey that property to AISHA NANA. The registration of the subject property did not therefore confer any legal right or interest in AISHA NANA. I hold that the Lands Commission erred when it bypassed AKYIAWKROM STOOL and issued the fresh lease to AISHA NANA.”(page 158, Vol. 1 ROA) On the strength of the above, the learned trial judge declared that as between the two sides, the Respondent was better entitled to the renewal of the headlease. He ordered the Appellants to yield possession of the four storerooms to the Respondent. Not stopping at that, he ordered the cancellation of the lease issued in favour of Aisha Nana and further ordered the Lands Commission to issue a fresh lease in favour of the Respondent. Dissatisfied, the Appellants appealed to the Court of Appeal on the following original and additional grounds: 1. That the judgment was against the weight of evidence 2. The Honourable trial court erred when it ordered the cancellation of the fresh lease in favour of the Defendants/Appellants when there was no mandatory obligation on the Plaintiff’s grantor to renew the lease in the Plaintiff’s favour. 3. The Honourable trial court erred when it held that the Plaintiff/Respondent was the lessee when at the time of the renewal of the lease in favour of the 3rd and 4th Defendants/Appellants, there was no subsisting lease in favour of the Plaintiff/Respondent. 4. The Honourable trial court erred when it held that Aisha Nana had never been in possession of the premises and at the same time ordered the 3rd and 4th Defendants/Appellants who were her assigns and privies to yield possession and occupation of the premises. 5. The Honourable trial High Court erred as it contradicted itself by holding that the Defendants did not obtain the consent of Otumfour in renewing the lease after Page 6 of 47 having found on evidence that the Lands Commission renewed the lease on behalf of Otumfour Osei Tutu for the 3rd and 4th Defendants/Appellants. Decision of the Court of Appeal The learned justices of the Court of Appeal found no merit in the appeal. By way of highlights, they affirmed the finding of the trial judge that Exhibit A was a tenancy agreement and not an assignment. They also agreed that the Respondent was better entitled to the fresh lease and impugned the decision of the Lands Commission to issue the lease to the Appellants. To their minds, Aisha Nana could not have obtained any proper title to the land from the 1st and 2nd Defendants and that the subsequent engrossment of a lease in favour of her successors (Appellants) by the Lands Commission was not supportable. This was more so when at the time, the instant suit was already pending. And even though they disaffirmed the trial judge’s finding that Aisha Nana made false representation to the Lands Commission as no such misrepresentation was pleaded by the Respondent, they nonetheless thought that was not the sole basis of the trial judge’s decision. They again rejected the position that by ordering the issuance of the fresh lease the trial judge imposed a contract on the Lands Commission and the Respondent. Consequently, they dismissed the appeal in its entirety. Still undaunted, the Appellants appeal in this Court. Grounds of Appeal to the Supreme Court The grounds of appeal before us are as follows: a. The Honourable Court of Appeal erred when it failed to hold that the Plaintiff/Respondent/Respondent has no subsisting interest in the disputed property immediately before and at the time of the renewal of the lease in favour of the 3rd and 4th Defendants/Appellants/Appellants. b. The Honourable Court of Appeal erred when it failed to hold that there was no mandatory duty and or obligation on the Plaintiff/Respondent/Respondent’s Page 7 of 47 grantor to renew the expired lease in favour of the Plaintiff/Respondent/Respondent. c. The Honourable Court of Appeal erred when it held that the Plaintiff/Respondent/Respondent was better placed to have the expired lease renewed. d. The Honourable Court of Appeal erred when it held that “Exhibit A” which was tendered in evidence at the trial by the Plaintiff/Respondent/Respondent was intended to be a Tenancy Agreement instead of an assignment. e. The Honourable Court of Appeal erred when it held that the Lands Commission renewed the lease in favour of the 3rd and 4th Defendants/Appellants/Appellants solely on the basis of a misdescription of the Stool name. f. The Honourable Court of Appeal erred when it held that the Honourable Trial Court by asking the Lands Commission to prepare a new lease in favour of the Respondent did not amount to imposition of a new contract on the parties. g. The Honourable Court of Appeal erred when it held that Nana Nsebetuo acquired the property in a representative capacity when there was no evidence to that effect on record and or tendered by the Plaintiff/Respondent/Respondent. h. The Honourable Court of Appeal erred when it held that the issuance of a fresh lease by the Lands Commission in favour of the 3rd and 4th Defendants/Appellants/Appellants was contrary to article 296 of the 1992 Constitution. i. The judgment was against the weight of evidence on record. We shall at the very outset single out ground (g) and dispose of it summarily. The ground did not arise from the judgment on appeal before us. We have combed through the judgment of the Court of appeal and found no such holding that Nana Nsebetuo acquired the subject property in a representative capacity. Not even before the trial High Court did the issue arise as contestable. The parties themselves never set down any such issue. The issues the learned trial Judge considered germane for determination were: Page 8 of 47 “a. Whether or not Joseph John Raddy and John Bitar entered into a tenancy agreement with Akyiawkrom Stool. b. Whether the document attached to the Writ of Summons is a tenancy agreement for 4 stores only in House No. OTB 106 Kumasi or not. c. Whether or not there was any residue unexpired of the term of 50 years granted in the Headlease of Plot No. OTB 106 under the agreement.”(151-152 Vol.1 ROA) Noticeably, the 1st and 2nd Defendants in paragraph 4 of their statement of defence averred that by a judgment of the Circuit Court, Kumasi dated 4th October 1930, the property became vested in the Akyinakrom Stool for the residue of the term of the lease. That averment was however, not in denial of any particular paragraph in the Respondent’s statement of claim. No issue could have been properly joined on it to make it contestable. In any event, it emerged at the trial that evidence of the judgment of the Circuit Court was in the records of the Lands Commission. If there was ever any doubt about the 1st and 2nd Defendant’s averment, it was settled, and the point was laid to rest. It is a settled principle that a ground of appeal must arise from the judgment appealed against. If not, it is baseless and incompetent. Put differently, a ground of appeal must challenge the decision appealed against and for good measure, attack the ratio of that decision. In our well-considered view, when Rule 6 subrule 5 of the Supreme Court Rules, (C.I 16) requires that a ground of appeal must disclose a reasonable ground appeal, that is what it means. The provision is this: “(5) No ground of appeal which is vague or general in terms or discloses no reasonable ground of appeal shall be permitted, except the general ground of appeal that the judgment is against the weight of evidence.; and any ground of appeal or any part of it which is not permitted under this rule may be struck out by the Court on its own motion or on application by the respondent.” Page 9 of 47 A ground of appeal formulated on an issue not arising from the judgment on appeal discloses no reasonable ground in terms of this rule and is patently incompetent. In OKAFOR V ABUMOFUANI (2016)12 NWLR Pt. 1252 page 134—135, the Nigerian Supreme Court delivering itself through Amiru Sanusi JSC said of a provision similar to ours thus: “Now a close look at the appellants’ ground 1 as reproduced above vis-à-vis the judgment appealed against, there is nowhere in the said judgment where the court below alluded to the motion in question which formed the basis of and indeed was the crux of the appellant’s complaint. The court below never made any pronouncement on the appellant’s complaint about the 1st and 2nd respondent’ issues for determination as adumbrated in the appellant’s motion dated 24/3/2005. There was therefore no decision of the court below on the issue, as would warrant and justify the appellant to raise a ground of appeal on it and formulate the issue or point. There is long unending chain of authorities which establishes that for a ground of appeal to be valid and competent, it must be related to the decision being appealed against and should constitute a challenge to the ratio of the decision on appeal. It is also trite law that, where a ground of appeal formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgement appealed against as shown in the instant appeal, the same, therefore becomes incompetent and liable to be struck out…” To the same effect, the same court per Onnoghen JSC in C.C.B. PLC V EKPERI (2007)3 NWLR (Pt. 1022) 493 at page 509 opined: “I therefore agree with the submission of learned counsel for the respondent that the complaint in the original sole ground of appeal contained in the Notice of Appeal does not relate to the decision of the Court of Appeal allegedly appealed against. It is clear that the sole ground of appeal does not arise from that judgment. It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and Page 10 of 47 should constitute a challenge to the ratio of the decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise attack on issue not decided by the judgment appealed against as is evident in the instant appeal, the same becomes incompetent and liable to be struck out.” What appears to be a similar attitude of this court is observable in the case of FENU & ORS V DREDGING INTERNATIONAL LTD [2017-2020]2 SCGLR 125 at 131—132 where the court took a swipe at Counsel for wrongly attributing a statement to the Court of Appeal in formulating a ground of appeal thus: “Our only serious objection to the ground is the fact that the learned counsel for the appellants has quoted a passage and attributed same to the learned justices of the Court of Appeal. We do not find this statement to have been made by the Court of Appeal in the ruling of 26th April 2016, which is on appeal before us… Nowhere in the record of proceedings of the Court of Appeal dated 26th April 2016, were the statement quoted above, sated as a ground of appeal. We find this ground as clearly misleading and proceed to dismiss same as unmeritorious.” In effect, for the reason that the Appellants’ ground (g) does not arise from the judgment of the Court of Appeal before us in the sense demonstrated in the passages above quoted, we find the ground incompetent and proceed to strike out same. Having dealt with ground (g) this way, we shall attend to the remaining grounds of appeal. We shall first determine ground (d) which turns on whether the agreement between the Respondent and 1st and 2nd Defendants tendered as Exhibit A was intended to be a tenancy agreement or an assignment. Before the trial High Court, the case was fought mainly on the line drawn between the parties on this issue. The learned trial judge having set down the issues he found germane to resolve in the case proceeded as follows: “To be able to resolve these issues satisfactorily, it is necessary to look critically at the tenancy agreement Exhibit A which the plaintiff tendered in evidence to Page 11 of 47 support his claim. That agreement was executed by NANA OWUSU AKYIAW II and BOATENG AGYEMANG on one side and JOSEPH JOHN RADDY and JOHN BITAR on the other side. The agreement contains certain covenants but the covenant which is pertinent to the determination of this dispute is at pages 2 and 3 of Exhibit A… The most important words used in this paragraph are landlords and tenants. The AKYIAWKROM STOOL was described as Landlords while JOSEPH JOHN RADDY and JOHN BITAR were described as Tenants. Upon execution of that agreement the relationship that same [sic] into existence was that of Landlords and Tenants. There is therefore evidence on record to support a finding that in the year 1955, AKYIAWKROM STOOL entered into a tenancy agreement with Joseph John Raddy and John Bitar and let the four storerooms situate on Plot No. OTB 106 Adum Kumasi to them for a period of twelve years. I also find as a fact that by that agreement, Joseph John Randy and John Bitar covenanted among others not to assign or sublet mortgage or part with the possession of the demised premises or any part of thereof without the prior consent of the Asantehene and AKYIAWKROM STOOL.” (page 152-153 ROA) The learned Justices of the Court of Appeal affirmed this position relying mainly on this Court’s decision in P.Y. ATTA V KINGSMAN ENTERPRISE LTD. [2007-2008] SCGLR 946 the facts of which they found comparable to those of this case. They critically analyzed the facts and circumstances of the case and agreed with the learned trial judge that Exhibit A was a Tenancy agreement and not an assignment of the residue of the term. It strikes immediately that this is a concurrent finding by the two lower courts. Such finding should not be treated lightly. The policy stance of this apex Court or any appellate court for that matter is that when concurrent findings of facts are presented by two lower courts, the appellate court is loath to interfere with those findings. The Court only makes an exception upon show of special grounds such as there being a miscarriage of justice or serious violation of some principles of law or that the findings were erroneous in substantive or procedural law. This principle is well settled in this Page 12 of 47 Court. Its full discussion is found in FRABINA LTD V SHELL GHANA [2011]1 SCGLR 429 at 450-451 as follows: “There are again a lot of decided cases to illustrate instances where the Supreme Court did depart from the findings of fact made by the trial Court and concurred in by the first appellate court, such as the Court of Appeal in this instance. In the recent unanimous decision of the Supreme Court dated 12 May 2010, namely Sylvia Gregory v Nana Kwesi Tandoh IV [2010] SCGLR 971, the Supreme Court took pains to state the criteria for departing from concurrent findings of fact made by the trial and first appellate court in that case…as follows: First, where from the record the findings of fact by the trial judge are not supported by evidence on record and the reasons in support of the findings are unsatisfactory; second where the findings of fact by the trial court can be seen to be either perverse or inconsistent with the totality of evidence led by the witnesses and the surrounding circumstances of the entire record; thirdly, where the findings of fact by the trial court are inconsistent with important documentary evidence on record; where the first appellate court had wrongly applied the principle (see Achoro v Akanfela)(supra) and other cases on the principle, the second appellate court must feel free to interfere with the said findings of fact, in order to ensure that justice is done in the case.” See also FOSUA & ADU POKU V DUFIE (DECD) & ADU POKU MENSAH [2009] SCGLR 310; BISI V TABIRI (1987-88)1 GLR 360 and KOGLEX (NO.2) V FIELD [2000] SCGLR 175. What arguments have the Appellants put before us and do they meet the threshold for our departure from the finding that Exhibit A was a tenancy agreement and not an assignment? Learned Counsel argues on their behalf that the facts and holding in the case of P.Y. ATTA V KINGS MAN ENTERPRISE which the Court of Appeal relied heavily on were distinguishable from those in this case. That case involved the determination of Page 13 of 47 assignment and sublease which according to Counsel, is different from the issue about Exhibit A. The Court of Appeal also misapplied the case of STREET V MOUNTFORD which decided the difference between tenancy and licence. Counsel argues that the function of the court was to ascertain what the parties meant by the words used in the instrument and declare the meaning of what was within the instrument and not what was intended to have been written. The case of AKIM AKROSO STOOL & ORS V AKIM MANSO STOOL & ORS [1989-90] GLR 100 is cited for the proposition that, what the words in a document meant could only be gathered from the document itself. Counsel submits that it was the entire unexpired term of the headlease that was transferred under the Exhibit A making the instrument an assignment. He refers to the definition of “Assignment” in Section 281 of the Lands Act (Act 1036) thus; “Assignment means the transfer of the unexpired portion of a term or interest created by a lease,” He also refers to the learned authors BJ da Rocha and CHK Lodoh in the book PRACTICAL DRAFTSMAN at page 78 thus; “An assignment is always made subject to the covenants, conditions and stipulations contained in the head--lease or the head— sublease.” Counsel concludes his argument by submitting: “My Lords, the entire Plot No. OTB 106 Adum, Kumasi which was a subject of Exhibit A and the transaction under Exhibit A was for a term of twelve (12) years and thirty (30) days. The unexpired period of the Headlease was also twelve (12) years and thirty (30) days. The inescapable conclusion is that upon the execution of Exhibit A, the Plaintiff conveyed all its interest in Plot No. OTB 106 Adum, Kumasi to the 1st and 2nd Defendants. It is our submission that the Honourable Court of Appeal ought to have declined the invitation to give consideration contrary to covenants, conditions and stipulations contained in Exhibit A in construing same. Having given a contrary consideration to Exhibit A, this ground of appeal ought to succeed.” Page 14 of 47 In response, Learned Counsel for the Respondent is delighted with the admission by his colleague that consideration is given to covenants, conditions and stipulations in determining whether a conveyance is an assignment, a sub-lease or a tenancy agreement. This means it is not only the interest conveyed that determines the issue. Counsel refers to the case of DAVIS V VIDAL 151, S.W. 290, 291 which shows that due consideration may be given to the fact that an assignor reserved the right to re-enter the premises or terminate the assignment upon default by the assignee to render an instrument a sublease. In Counsel’s view, taking into account all the circumstances surrounding Exhibit A, the grant of the whole unexpired residue to the 1st and 2nd Defendants was a mutual mistake because the intention of the parties looking at Exhibit A as a whole was to create a sublease or a tenancy agreement of not the entire property numbered OTB 106, but only a portion of it that was hither to in the possession of the 1st and 2nd Defendants. Explaining further, Counsel points out that Nana Owusu Akyiaw II and Boakye Agyeman who thumbprinted the instrument were both illiterates who understood that they were not relinquishing the Stool’s interest hence their decision five years later, to apply to surrender the lease for a longer term. Counsel also disagreed with his colleague’s position that the facts and holding of the P.Y. ATTA V KINGSMAN ENTERPRISE case were not comparable to the instant case quoting from the decision of the Court which showed that the Court considered the entire agreement and circumstances of the case before finding that the document in question was a sublease notwithstanding the grant of “all the residue of the unexpired of the said term of 50 years granted by the headlease”. Moving on, Counsel cites the cases of GORMAN & GORMAN V ANSONG (2012)1 SCGLR 174; OSEI V GHANAIAN AUSTRALIAN GOLDFIELD LIMITED (2003-2004) SCGLR 69; AMONOO & ORS V DEE (1975)1 GLR 305; MONTA V PATTERSON SIMONS (GHANA) LIMITED (1974)2 GLR 162 and BUCKLE V BASSIL (1963) GLR 20. Based on the decisions Page 15 of 47 in these cases setting out principles of construction of private agreements, Counsel draws on such clauses contained in Exhibit A as Parties, Rent, Other Covenants, and Right of Entry to demonstrate his position that they all pointed not to assignment but a sublease. Counsel then concludes his submission thus: “The Court of Appeal, thus committed no error when it affirmed the Trial Court’s holding that Exhibit A was a sublease and not an assignment and for that matter the sub-lessees in that agreement who were the 1st and 2nd Defendants has no capacity to assign the property the subject matter of that agreement to Aisha Nana.” Determination It is axiomatic that the purpose of interpretation of an instrument is to ascertain the intention of the maker. This by no means comes an easy venture. We find the following passages from the learned authors of Halsbury’s Laws of England most invaluable. On Object of interpretation, they write: “It has been said that the object of all interpretation of a written instrument is to discover the real intention of the author, the written declaration of whose mind it is always considered to be, and that consequently, the construction must be as near to the minds and apparent intention of the parties as is possible, and as the law permits. However, the law is not concerned with the subjective intentions. All that matters is the objective meaning of the words which the author of those words has used. The law is concerned with what the user of the words would objectively have been understood to mean.” (Vol 13, 4th ed., (Reissue), p. 86, para 164. On How intention is ascertained the authors state: “The intention must be gathered from the written instrument read in the light of such extrinsic evidence as is admissible for the purpose of construction. Traditionally it has been said that the function of the court is to ascertain what Page 16 of 47 the parties meant by the words which they have used; to declare the meaning of what is written in the instrument, not of what was intended to have been written; to give effect to the intention as expressed, the expressed meaning being, for the purpose of interpretation equivalent to the intention. These traditional statements must now be read in the light of the changed approach to the construction of documents to be found in the recent decisions of the House of Lords. It is not permissible to guess at the intention of the parties and substitute the presumed for the expressed intention. If however, in any particular respect, the intention is clear on the whole instrument, effect will be given to that intention, even though it is not stated in express words. Various implications and presumptions will also be made where it is necessary or settled by law or usage to do so.” (para 165). The instrument must also be read as whole and in the words of the same authors: “It is a rule of construction applicable to all written instruments that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause must be so interpreted as to bring them into harmony with the other provisions of the instrument, if that interpretation does no violence to the meaning of which they are naturally susceptible. The best construction of deeds is to make one part of the deed expound the other, and so to make all the parts agree. Effect must, as far as possible, be given to every word and every clause.”(para 174) An important case the authors cite for what they call the ‘changed approach’ is the House of Lords decision in MANNAI INVESTMENT CO LTD. V EAGLE STAR LIFE ASSURANCE CO LTD. (1997)3 ALL ER 352. The facts show that, a tenant served a notice purporting to exercise his contractual right to determine two leases. The notice however contained a minor defect regarding the date on which it was to take effect thus deviating from a strict application of the term of the leases. The Court of Appeal allowed the Landlord’s appeal from the trial Court’s decision on the grounds that, in purporting to determine the leases, the notices had not complied strictly with the terms of the leases Page 17 of 47 and were therefore not effective to determine them. The House Lords in turn allowed the appeal from the Court of Appeal for the reason that the defect notwithstanding, an interpretation of the notice in its contextual setting would unambiguously inform a reasonable recipient that it was to take effect on the proper date in the leases. Lord Hoffman’s opinion contains a practical explanation of the principle. He delivered at page 375: “I propose to begin by examining the way we interpret utterances in everyday life. It is a matter of constant experience that people can convey their meaning unambiguously although they have used the wrong words. We start with the assumption that people will use words and grammar in a conventional way but quiet often it becomes obvious that, for one reason or another, they are not doing so and we adjust our interpretation of what they are saying accordingly. We do so in order to make sense of their utterance; so that the different parts of sentence fit together in a coherent way and also to enable the sentence to fit the background of the facts which plays an indispensable part in the way we interpret what anyone is saying.” To drum home his point, he continued at page 376: “When, therefore, lawyers say that they are concerned, not with the subjective meaning but with the meaning of the language which the speaker has used, what they mean is that they are concerned with what he would objectively have been understood to mean. This involves examining not only the words and the grammar but the background as well. So for example, in Doe d Cox v Roe (1802)4 Esp 185, 170 ER 685, the landlord of a public house in Limehouse gave notice to quit ‘the premises which you hold of me …commonly called…the Waterman’s Arms’. The evidence showed that the tenant held no premises called the Waterman’s Arms; indeed, there were no such premises in the parish of Limehouse. But the tenant did hold premises of the landlord called Bricklayer’s Arms. By reference to the background, the notice was construed as referring to Page 18 of 47 the Bricklayer’s Arms. The meaning was objectively clear to a reasonable recipient, even though the landlord had used the wrong name.” In P.Y. ATTA V KINGSMAN ENTERPRISE which was cited in argument, Brobbey JSC in the judgment opined at page 964-965 of the report: “Indeed, in considering every agreement, the paramount consideration is what the parties themselves intended or desired to be contained in the agreement. The intentions should prevail at all times. From the pleadings, both parties invited the court to construe exhibit B and to declare its real meaning. There are rules of construction which must be applied, given the peculiar circumstances of the instant case. The general rule is that a document should be given its ordinary meaning if the terms used therein are clear and unambiguous. In the instant case, the terms used in the agreement are contradictory; while the use of the words “unexpired” suggested an assignment, the terms inserted in Exhibit B had the effect of indicating that the document created a sublease. In such a situation, the rules of interpretation mandate that the document should be interpreted in a view that would cause the intention of the parties to prevail…No one can really tell the intentions of parties. Even the devil, it is said, does not know the state of a man’s mind. In conflicting situations, like those in the instant case, the process of determining the intentions of the parties should be objective. “Objective approach” in this context, implies the meaning that the words in the document will convey to a reasonable person seised with the facts of the case. In such exercise, the entire document, the effect it has on the parties, the conduct of the parties and the surrounding circumstances will have to be taken into account…” Against this background, his Lordship inter alia held at page 966-967: “The contention of the defendant company that it knew (per its managing director) that it had acquired an assignment and not sublease could not be correct. An assignee is in the position of purchaser. On purchasing the land, the Page 19 of 47 purchaser simply walks away and does what he likes with it so long as it is permitted by law. He does not turn round to ensure compliance with what the seller prescribes. The way the defendant company complied with the terms of the agreement signed by the parties was not consistent with the buyer of a landed property.” By all accounts, it was in the sense of the above that the learned justices of the Court of Appeal appreciated the issue about Exhibit A. The Court felt and rightly so we think, that Exhibit A was bedeviled with ambiguity in the sense that, the interest conveyed was discordant with other parts and indeed the entire circumstances of case. The Court therefore embarked on an interpretation that would realize the intention of the parties. It analyzed the problem this way: “Applying the principle in the P.Y. Atta case, to the instant case, Exhibit A describes Nana Owusu Akyeaw II and Boakye Agyeman as Ohene and linguist respectively as the representatives of the elders and Councillors and people of the said Stool of Akyiawkrom as “Landlords” and Joseph John Raddy and John Bitar as Tenants. The parties are Landlord and Tenants not Assignor and Assignees. Again, the lawyers who drafted the agreement described Exhibit A as a sublease indicating that in the mind of the said lawyers they knew they were not preparing assignment. At the back page of the indenture the following is clearly written: Sub-Lease of Plot. No 106 Old Town Section B, Kumasi. Term: 12 years, 1 month. Commencing: 1965, September 1st. Expiring 1977 September 30th. Rent as within. In the case of Kofi Kyei Yamoah Ponkoh, Andrew Okyere, Amoako Blankson and All Shop Owners of Anomangye Stores Complex, for themselves and on behalf of 29 others vrs Asomdwe House Co. Ltd. [2021] DLSC 10762, The Supreme Court per Prof. Mensah Bonsu (Mrs) JSC stated that the issue of whether or not the Plaintiffs/Respondents in that case were tenants or part-owners should not only be resolved by closely looking at the agreement itself but also by examining the history of the relationship Page 20 of 47 between the parties [Emphasis mine]. If this test is applied, it will be seen that in this case there is a provision for rent in Exhibit A. ‘The Tenant” also needed the consent of the “Landlord” and the Asantehene to dispose of any interest in the property in question. Several other covenants as rightly pointed out by Counsel for the Respondent were compatible with a landlord and tenant relationship. These are pointers to the fact that Exhibit A was intended to be a tenancy agreement.”(page 350, Vol.2 ROA) Their Lordships made further reference to the test for determining a tenancy as espoused by Lord Templeman in the case of STREET V MOUNTFORD [1985] UKHL 4 and continued: “…Lord Templeman’s judgment laid down the three essential elements that must be present for tenancy to exist. First, there must be exclusive possession. Second, there must be consideration in the form of a premium or periodical payments. Third, there must be a grant of the land for a fixed or periodic term. If these three features are present, then there is a tenancy. In this case, in Exhibit A the Agreement—there was exclusive possession given to the Appellants and this is not denied by the Appellants when they assert on several occasions that they were in effective possession of the stores. Second there was a fixed period of 12 years and 30 days. Third and finally there was an agreed rent in Exhibit A which is stated at page 2 of the Indenture…Exhibit A at page 8 of ROA the very last portion shows evidence of the payment of rent as follows: “Received the within mentioned sum of Eleven Hundred pounds to be by the within-named Joseph John Raddy and John Bitar paid to us in satisfaction and discharge of all rent hereby discharged.” The other covenants and the Right of Entry provisions all point to a Tenancy Agreement and not an Assignment.”(page 351 Vol.2 ROA) We fail to see how the learned justices of the Court of Appeal could be faulted by the above discourse. It was clearly a case that called for a comprehensive analysis of the full context of Exhibit A to reconcile what seemed a contradiction between the interest granted and other provisions of the instrument to determine what document the Exhibit Page 21 of 47 was. This, the learned justices satisfactorily did. When they stated that the instant case was almost on all fours with the P.Y. Atta v Kingsman, they were clearly talking about the ambiguities in the terms of both documents (Exhibit B in the P.Y Atta v Kingsman and Exhibit A in the instant case.) which called for an interpretation that will enable the courts ascertain the real intention of the parties. Counsel for the Appellants fail to satisfy us that the Court of Appeal erred on its conclusion on Exhibit A. But we pause to make an observation about Exhibit A. It appears both sides miss the point by their common thinking that it was the entire residue of the headlease that was conveyed in Exhibit A. When we do the arithmetic, we are unable to reach that conclusion. From the headlease which appears at page 162 to 165 of the Record of Appeal (ROA), the 50 year lease granted to the Plaintiff Stool (Nana Nsebetuo) started from 19th October 1927. It meant that the lease was due to expire on 18th October 1977. In Exhibit A the grant to the 1st and 2nd Defendants though made on 8th July 1955 was to start from 1st September 1965 and end on 30th September 1977. Clearly, 30th September 1977 is eighteen (18) days short of 18th October 1977 when the headlease was to expire. It therefore appears incorrect as the parties had assumed all along that it was the entire unexpired period of the headlease that was granted to the 1st and 2nd Defendants by Exhibit A. If this arithmetic is right, then the mainstay of the 3rd and 4th Defendants’ argument that Exhibit A was an assignment collapses. For, the remaining 18 days were more than sufficient to render the transaction a sublease not an assignment. As the learned A.K.P. Kludze explains in his accredited book; Ghana Law of Landlord and Tenant: “As regards the assignment of a lease, it is necessary that the whole of the residue of the term be transferred. If the original tenant retains the slightest term under the lease, even a day, the transaction does not operate as an assignment but as sublease. Conversely, if the intention of the tenant is to grant a sublease, the term granted must be at least a day shorter than the residue of his own term, otherwise, it operates as an assignment.” (2017 ed., page 44). Page 22 of 47 In effect, both sides have all along proceeded on the basis that the twelve (12) years and thirty (30) days conveyed in Exhibit A exhausted the residue of the headlease. This we think was erroneous. But even if the thinking of the parties was the case, we are satisfied that other terms and the entire circumstances of the case defeat any argument that it was an assignment that was granted to the 1st and 2nd Defendants by Exhibit A. The Appellants’ ground (d) therefore fails. We come to the remaining grounds of appeal. From the way we see them, they can all be resolved together. Ground (i) is the omnibus ground of appeal. The omnibus ground of appeal propounds the case for a fresh consideration of all the facts and the law before us. It is a ground that invites us to examine the entirety of the record and where relevant, resolve issues anew. Rightly so in this sense, learned Counsel for the Appellants when arguing the omnibus ground before us formulates the issue of whether the evidence on record supports the judgment of the Honourable Court of Appeal for our determination. Cumulatively, the remaining grounds (a), (b), (c), (e), (f) and (h) turn on the decision of the Lands Commission to renew the lease in favour of the Appellants instead of the Respondent, a decision the two lower courts have impeached. Those grounds in so far as relevant, raise for our consideration the question whether the Lands Commission’s decision was impeachable as the Court of Appeal determined. This is what the whole appeal is about. Consequently, grounds (a), (b), (c) (e), (f) and (h) can be conveniently addressed together with the omnibus ground of appeal. The overarching issue that emerges from all those grounds is whether the Court of Appeal’s decision impeaching the conduct and decision of the Lands Commission is supported by the available facts and the applicable the law. We proceed to make the determination accordingly. But first, we set out the arguments of the parties in brief. Summary of the Appellants’ arguments Page 23 of 47 First, the Appellants argue that the headlease the Respondent had over the property was granted on 19th October 1927 for 50 years. As at the commencement of the instant suit, the headlease had expired. The Respondent therefore had no subsisting interest for which a renewal could be granted by the Lands Commission. The case of ROYAL INVESTMENT COMPANY LTD v MADAM RURH QUARCOPOME & ANOR [2021]174 GMJ 285 is cited for the position that the expiration of a lease results in the dissolution of the relationship between the parties to the lease. SARPONG (DECD)(SUBSTITUTED BY) KODUAH V JANTUAH [2017-2020]1 SCGLR 736 also holds that once there was no written document in place for the Respondent at the end of the headlease in terms of Sections 1,2,and 3(1)(f) of the Conveyancing Act (NRCD 175), no equity could come to his aid. The Court of Appeal therefore erred when it failed to hold that the Respondent had no subsisting interest in the disputed property immediately before and at the time of the renewal of the lease in favour of the Appellants. The Appellants further argue that the headlease had no renewal clause. Consequently, upon its determination, no one had a vested right to be offered the option of a renewal in the absence of a contractual term or a binding legislation. SARHENE VRS SAMUEL MANU ABAYIE [2012]53 GMJ 125 is cited for the principle that there was no common law right in a sitting tenant to be given a first option in the absence of an agreement or a statutory provision. The Court of Appeal, it is contended, misconceived the law on leases when it took the position that the Respondent was in possession of the property and was therefore better entitled to a renewal of the headlease. The Appellants additionally contend that, by its nature, a lease is a contract the terms of which ought to be mutually agreed between the parties. The option of renewal cannot be implied by law. BEN MIREKU V ARCHIBALD OKPON TETTEH [2011] DLSC 638 cited. Appellants also point out that, this was not a case where the Respondent at the trial pleaded that he was entitled to the option of first renewal. Therefore, by holding that the Lands Commission was bound to renew the lease for the Respondent, the Court of Appeal was substituting a case for the Respondent and writing an agreement for the parties. DAM V ADDO [1962]2 GLR 200; ACKUMEY V KUMAH [1989-90]2 GLR 283 cited. Page 24 of 47 Next, Appellants attack the Court of Appeal’s position that the Lands Commission acted contrary to article 296 of the Constitution in the manner it issued the fresh lease in favour of the Appellants as against the Respondent. According to the Appellants, the evidence shows that before the issuance of the fresh lease, there had been correspondence between the offices of the Lands Commission in Kumasi and Accra. There was a letter to show that the Respondent had requested for a refund of his fee paid for the renewal of the lease whereas the fee paid by the Appellants remained with the Commission. On account of that, the Lands Commission deemed it prudent to issue a fresh lease to whichever party was available and interested since the Commission could not allow people to occupy the property without paying rent. The law also would not restrain future act over an interest in land that is yet to be created. ROYAL INVESTMENT COMPANY LTD. V MADAM RUTH QUARCOPOME & ANOR (supra) cited. The Lands Commission therefore did no wrong in issuing the fresh lease in favour of the Appellants. Counsel refers to the provision in article 296 of the Constitution on the exercise of discretion and a passage attributed to Justice Frank further in the case of TROP V DULLESS 356 US 86 (1958), 120 cited by Kpegah JSC in GHANA BAR ASSOCIATION V ATTORNEY GENERAL [2003-2004] SCGLR 250 and contends thus: “Respectfully My Lords, the Commission had wide discretion in determining the rightful person to whom that lease ought to be engrossed in his/her favour. Therefore, the Respondent not having led any evidence to prove that the Lands Commission acted unfairly, and capriciously, there was no justifiable ground for the Honourable Court of Appeal to interfere with the decision of the Lands Commission.” In any case Counsel argues, the decision as to whether or not the Lands Commission had violated the provisions in article 296 of the Constitution was completely outside the jurisdiction of the Court of Appeal. The Court of Appeal therefore exceeded its jurisdiction when it proceeded to interpret the Constitution. The said decision therefore ought to be set aside by this Court. Page 25 of 47 Summary of Respondent’s arguments In response to the Appellants’ argument that at the commencement of the instant suit, the lease had expired and therefore the Plaintiff had no subsisting interest for which a renewal could be granted by the Lands Commission, the Respondent contends that the Plaintiff still had interest both in law and in equity even after the expiration of the headlease. Respondent points out evidence on record that showed that the Respondent continued paying ground rent/rate to the Lands Commission after the lease had expired. It is contended that the Respondent’s interest ripened into a tenancy at sufferance or a tenancy at will which was an interest recognized in both law and equity. Apart from that, long before the lease expired, the Respondent in 1960 applied to the Lands Commission to surrender the headlease for a fresh lease to be granted for a longer period. In the Appellants’ case, it was not until 1988 that their right to apply for the fresh lease accrued. Of the two equities, the Respondent’s which was first in time was to prevail. The Respondent urges the application of the maxim qui prior est tempore, prior est jure which was applied in the case of GYIMAH & BROWN V NTIRI [2005-2006] SCGLR 247. Additionally, Respondent refers to the evidence that even after expiration of the lease there were buildings situate on the property belonging to the Respondent of which he remained in effective possession. The Respondent’s possession of the building was a fact admitted by the Appellants’ own witness. Then again, according to the Respondent, there was evidence that the Lands Commission’s office in Kumasi had already engrossed a lease in favour of the Respondent which was later withdrawn without any justifiable reason. The lack of justifiable reason is explained thus; the Respondent applied for a renewal of the lease. In response, the Lands Commission in Kumasi engrossed a lease in the Respondent’s Page 26 of 47 favour which was forwarded to Accra for execution by the Commission. The office in Accra wrote to seek explanation as to how ‘Akyaakrom’ Stool became the lessee of the property as its records did not indicate so. Instead of clarifying the matter with their own records or inviting the Respondent to clarify the confusion about the name, the Kumasi office simply wrote back to say that a re-check of their records showed that Aisha Nana was the rightful person to apply for the renewal of the lease. Based on this, the lease that had been engrossed in the Respondent’s name was withdrawn. It is argued for the above reasons that not only did the Respondent continue to have interest in the property even after the expiration of the headlease but was better entitled to have the lease renewed in his favour and the lower courts were right in so holding. Responding to the contention that the Respondent’s lease had expired and therefore there was nothing to renew, Counsel for the Respondent refers to same case of ROYAL INVESTMENT COMPANY LTD V MADAM QUARCOPOME (supra) to argue that there are instances where equity would intervene to grant a tenant whose tenancy had no renewal clause the relief to renew. Counsel submits thus: “So upon the expiration of the 1927 lease executed in favour of the Respondent Akyiawkrom Stool, the Respondent as the Lessee of the expired lease had the right to apply for a new lease or a renewal of the expired lease and under the doctrine of equity, was better entitled to the renewal of the lease.” The Respondent also denied the Appellants’ position that the Respondent had asked for a refund of fee paid for the renewal of the lease. According to the Respondent, the issue of the Respondent asking for a refund did not feature anywhere in the pleadings and was never attested to by any witness. The letter itself talked about refund of ground rent not renewal and in any case the alleged author of the said letter was not authorized by the Respondent neither did the Land Commission respond to it. Still in support of the Court of Appeal’s holding that the Respondent was better entitled to a renewal of the lease, the Respondent points out the factors the Court premised its decision on. These factors were not different from those that were set out to show the Page 27 of 47 Respondent’s interest in the property even after the expiration of the headlease. They were; the fact that the Respondent was the original lessee and the one who had a building on the land backed by a building permit which building he was still in possession of; the fact that as far back as 1960, the Respondent had written to surrender the residue of the headlease for a longer term; the fact that when the Respondent got wind of the intended transfer to Aisha Nana, he caused his lawyers, Mmieh & Co to write, copied to the Lands Commission to essentially protest; and the fact that a lease was first engrossed in the Respondent’s favour which was withdrawn without justifiable cause. A greater part of the Respondent’s arguments was devoted to respond to the Appellant’s attack on the Court of Appeal’s holding that the Lands Commission acted contrary to article 296 of the Constitution in the manner it issued the fresh lease in favour of the Appellants as against the Respondent. It was here pointed out that the Lands Commission as a body provided for under article 258 of the 1992 Constitution and set up under the Lands Commission Act (Act 767) had been mandated to manage lands in the country on behalf of the President. The subject matter of the suit falls within the mandate. In the exercise of the mandate the Lands Commission exercises discretion which must be guided by the provisions in articles 296 and 23 of the Constitution. ABU RAMADAN & NIMAKO (NO.2) V ELECTORAL COMMISSION & ATTORNEY GENERAL (NO.2) [2015-2016]1 SCGLR 39; NUNOFIO V FARMERS SERVICES COMPANY LIMITED [2007-2008] SCGLR 926; TEMA DEVELOPMENT CORPORATION (TDC) & MUSAH V ATTA BAFFOUR [2005-2006] SCGLR 121 cited. The Respondent’s contention is that the Lands Commission in this case failed to exercise the discretion properly or abused its discretion in the manner it issued the fresh lease favour of the Appellants. We try to capture the alleged abuse from the Respondent’s argument as follows. Page 28 of 47 The Lands Commission was faced with two applications whether to renew in favour of the Respondent or the Appellants. The application of the Respondent who had been the sitting lessee was first in time. The Respondent had seventeen years before the lease expired presented an application to surrender the lease for a longer term. When the lease expired, the Lands Commission actually engrossed a fresh lease in favour of the Respondent. The lease was presented to the Lands Commissions’ office in Accra for execution. The office in Accra wrote to seek explanation as to how ‘Akyaakrom’ Stool became the lessee of the property as its records did not indicate so. Instead of clarifying the matter with their own records or inviting the Respondent to clarify the confusion about the name, the Kumasi office simply wrote back to say that a re-check of their records showed that Aisha Nana was the rightful person to apply for the renewal of the lease. Thus, the only reason why the Lands Commission did not complete the process started in favour of the Respondent was the confusion in the name of the Respondent. According to the Respondent, it behoved on the Lands Commission to have invited the Respondent to explain away the confusion in the names Akyinakrom and Akyiawkrom and/or its relationship with Nana Nsebetuo. The Respondent submits that by not seeking the clarification from the Respondent before deciding to drop the engrossed lease, the Lands Commission breached one cardinal principle of fairness. REPUBLIC V COURT OF APPEAL & TOMFORD; EX PARTE GHANA CHARTERED INSTITUTE OF BANKERS [2011]2 SCGLR 941 cited. Further, the Respondent submits that the refusal to complete the execution of the lease engrossed in his favour for the reason that he was not known to be the owner of the property the subject of the application was not only a wrongful exercise of discretion but also capricious, arbitrary and abuse of natural justice. The Court of Appeal was therefore right when it held that the Lands Commission wrongly exercised its discretion. The cases of IMBEAH V JUDICIAL SECRETARY [2013-2015]1 GLR 253; RANSFORD FRANCE V ELECTORAL COMMISSION & ATTORNEY GENERAL (ARKANN-ACKUMEY (APPLICANT) [2012]SCGLR 697; SHARP V WAKEFIRELD (1891) AC 173; BREMEN V AMALGAMATED ENGINEERING UNION (1971) QB 171; ROBERTS V HOPWOOD (1925) Page 29 of 47 AC 578 were cited for the submission that the concept of unfettered discretion does not exist and that discretionary power conferred on a public body was upon trust that it will be validly and properly exercised as envisioned by the legislature. It is further argued that contrary to the Appellants position, the Court of Appeal was not substituting a case or an agreement in favour of the Respondent. Rather the Court was exercising its power to intervene where in its opinion, the Lands Commission wrongly exercised its discretion. The Court of Appeal therefore committed no wrong when it failed to hold that there was no mandatory obligation to renew the lease for the Respondent, neither did the decision of the Court amount to imposing a contract on the Lands Commission. REPUBLIC V MINISTER FOR INTERIOR, EX PARTE BOMBELLI (1984-86)1 GLR 204 cited. Determination To begin with, it is common cause that the 50-year headlease granted to the Respondent in 1927 expired in 1977. The lease thus expired by effluxion of time. It is again common cause that the headlease had no renewal clause. The general rule at common law is that at the expiration of a lease, the relationship between the lessor and the lessee comes to an end. The lease is automatically determined by effluxion of time and the previous relationship between the parties dissolves. In effect, by the dictates of the general rules of common law, the relationship between the Respondent and the headlessor which position had been assumed by the Lands Commission by law, came to an end when the headlease expired in 1977. The point was articulated by Amegatcher JSC in ROYAL INVESTMENT COMPANY V MADAM RUTH QUARCOPOME & ANOR [2021]174 GMJ 285 at 328 as follows: “On the other hand, when a lease agreement has expired, the parties are longer bound by its terms unless there are clauses which survive the expiration of the agreement. The parties are relieved from their rights and obligations to effect Page 30 of 47 and receive future performance under the agreement. The expiration of a lease results in the dissolution of the relationship that existed between the parties to a lease in respect of the leased property. In the absence of an express renewal duly exercised in accordance with the terms of the lease agreement, a property the subject matter of the lease will revert back to the lessor and the lessor may resume exercising his proprietary rights.” The fact that the headlease with no renewal clause expired by effluxion of time is the hallmark of the Appellant’s case. To them, the Lands Commission became entitled to decide without any restriction, whichever party to grant the fresh lease to. The Respondent however thinks that the facts and circumstances of the case posed a fetter on the Lands Commission’s free hands. The learned trial judge and the Justices of the Court of Appeal bought into the Respondent’s position. In the Court of Appeal, the Justices delivered themselves: “We are of the view that the Lands Commission did not exercise its discretion properly as required under Article 296 of the 1992 Constitution. It was patently wrong to have granted a lease to the Appellants as against the Respondents solely on the basis of misdescription of the Stool name when it was clear that the Commission itself had documents in its custody in which the stool had variously been described as Akyiawkrom or Akyinakrom. The least the Commission could have done was to invite the Respondent to clarify the issue of the dual names on the documents available to the Lands Commission. Again, it is also clear that the Respondents were in possession of a part of the property as against the Appellants and thus was better entitled to a lease renewal.”(page 360 Vol.2 R0A Now, what evidence is there to support the above view of the learned Justices? Long before the headlease expired, the Respondent wrote to the Lands Commission in a letter dated 9th May 19th May 1960 applying to surrender the headlease for a longer term. The relevant part of the letter (at Page 137 ROA) stated: Page 31 of 47 “It is the present intention of myself as Akyinakromhene and Elders and Councillors of Akyinakrom Stool to surrender to the Government the residue now unexpired of the respective terms of years granted by the headleases and for the Government to grant to the Stool new headleases for longer terms of years. In the circumstances, I have the honour to apply to the Government on behalf of the Akyinakrom Stool for the grant to the Stool of new headleases in respect of the above-mentioned plots [Plots 106 and 107] for longer terms of years. Upon hearing from you regarding the surrender of the present headleases, I shall be pleased to hand over the same to the Government. I would add that the above-mentioned plots are substantially developed. Hoping that this application would be favourably considered and I shall be pleased to hear from you at an early date.” It does not appear that the Lands Commission reacted to this application until the headlease expired. After the headlease had expired, the Lands Commission engrossed a lease in favour of the Respondent for 15 years to start from 1st March 1988 and end on 28th February 2003 [223—225]. This lease was executed by Nana Owusu Achiaw II for the ‘Akyawkrom’ Stool. Thereafter, it was forwarded to Accra to be executed by the Chairman of the Lands Commission. It was at this stage that the Lands Commission Secretariat Accra, wrote to its Kumasi Office in a letter dated 23rd May 1988 [page 191 ROA] in the following words: “Please refer to your memo dated 24th February 1988 on the above-named subject. Could you please explain how Akyaakrom Stool became the lessee since the records here do not reveal the Stool as a lessee of this O.T.B. land…” There is a handwritten minute on the above letter by the officer of the Kumasi office who acted on it which is to the effect that the lease already engrossed in favour of the Respondent be withdrawn since later evidence has shown that the Stool was not the original lessee. The same minute directs that a fresh lease be engrossed in favour of the other ‘claimants’ [Aisha Nana]. Clearly, it was to put the said minute into effect that Page 32 of 47 the letter dated 24th April 1989 from the Kumasi office to the Executive Secretary was written which stated: “Please refer to your letters Nos. SCR/LCS.82 AND SCR/LCS.82/120 dated 23rd May, 1988 and 27th June 1988 respectively on the above subject. A re-check of our records has shown that Aisha Nana and not the Akyaakrom Stool is the rightful person to apply for the renewal of the lease of the above-named property. A new lease is therefore being prepared in favour pf Aisha Nana. In the circumstances, I would like you to return unexecuted the lease made in favour of Akyaakrom Stool which was sent to you per my memo dated 24th February, 1988.” [page 190]. Acting upon the above letter, the Respondent’s lease in Accra was returned unexecuted by the Commission by a letter dated 10th May 1989 which indicated: “I return herewith, in quadruplicate, the unexecuted lease document in favour of Akyaakrom Stool. You may wish to take the appropriate further action in respect of the property.” [page 189 ROA] Subsequently, the appropriate further action that was taken is contained in a letter the Kumasi office forwarded to Accra which stated: “I forwarded herewith for execution by the Chairperson of the Lands Commission a lease duly prepared in quadruplicate in favour of Vakil Abdula Esaka and Abubakr Esaka. [The Appellants]. This is one of the O.T.B. cases which the Lands Commission has already given approval.” [page 188 ROA]. This lease is in evidence as Exhibit 3 with a corresponding land certificate as Exhibit 4. [page 244—250 ROA] From the Commission’s letter of 23rd May 1988, what the Accra office requested for was an explanation as to why the fresh lease was engrossed in the name of Akyaakrom Stool since from its records, the Stool was not the lessee. The letter did not mention who the lessee was from the office’s records. One could however surmise one of two Page 33 of 47 scenarios; first, Nana Nsebetuo as the lessee since the lease was originally granted in his name which was changed into the name of the Stool consequent upon the judgment of the Circuit Court; and second the name Akyinakrom or Akyaakrom as the lessee since those names have variously appeared in correspondence about the property resultantly confusing with the true Akyawkrom. There is evidence to support the fact that in either scenario, the information to clarify the point in response to the Accra letter was obtainable from the records of the Commission in its Kumasi office or from the Respondent. In neither scenarios would the name Aisha Nana appear. For certain, she had never been a lessor of the property. To our minds, to bring Aisha Nana within the compass of the correspondence was to do a strange bidding. We shall come back to this point. Is there evidence of the Respondent’s possession of the property? The evidence of the Respondent was that pursuant to the original agreement between Nana Nsebetuo and Naja David and 1st Defendant, a four-bedroom facility with kitchen and toilet [henceforth called “the residential portion”] was constructed which was occupied by the occupant and other subjects of the stool. According to the Respondent, the occupant and subjects of the Stool altogether, had remained in possession for over 60 years. PW1 was Sarah Mooney who said she lived in part of the residential portion with her parents as tenants to the Stool. According to her evidence, she was born into the property and was still living there at the time she was giving evidence (that was 30th November 2004). Her evidence-in-chief in part was as follows: “Q. You have just told the Court that you live in H/No. O.T.B. 106 Adum, Kumasi. Is that correct? A. It is correct. Q. And you said that house belongs to the Akyiawkrom Stool? A. Yes Page 34 of 47 Q. Can you briefly tell the Court how you came to live in that house? A. It was my father and mother who came to live in that house. Q. Who was their Landlord? A. Nana Akwasi Adom who was then the chief was their Landlord. Q. Of which Stool? A. Akyiawkrom Stool. We were all born in that house. Q. Where was Nana Akwasi Adom living? A. We lived in O.T.B. 1106 with Nana Adom Q. Is he still living there? A. He was destooled. So he left the house. Q. Did he continue living there? A. He is no longer living in that house. Q. At the time that he was living in that house, do you know to whom rents were being paid by your parents? A. We paid to the chief. Q. Can you tell us the nature of the building you are occupying? A. Two chambers, kitchen, toilet and a bathroom. Q. Will you agree if anybody tells you that you are living in an unauthorized structures? A. I will not agree Q. You told the Court that you are still living in this house. Now who is your Landlord? A. Nana Tutu Ampem is my Landlord.” Page 35 of 47 The Appellants’ main attack on the Respondent’s possession is that the residential portion on the land contained unauthorized structures. Exhibits 5, 6, 7, 8, 9, 10 and 11 mostly correspondence between the Appellants’ lawyer and the Kumasi Metropolitan Authority were tendered to support the position that the bedrooms were liable to be demolished. [pages 251—258 ROA]. By the way, if both the stores and the residential portion were no doubt constructed by Naja Davis and the 1st Defendant under one agreement, then it is doubtful the residential portion would be unauthorized whilst the stores would not. In any event, the Appellants’ account that the residential portion was unauthorized was later to be repudiated by their own witness (DW2) who conceded that the structure had been constructed upon a permit issued to the Akyawkrom Stool. DW2 under cross- examination said: “Q. This building permit was in respect of redevelopment of the plot? A.That is correct. Q. And you find out that other buildings existed prior to this application? A. The application was not in respect of redevelopment but extension to an existing building. Q. Do have building permit in respect of the existing building? A. Yes Q. Who put in that application? A. The application was put in by the Stool of Achiakrom Kumasi.” On our evaluation of the entire evidence on record, it could not be true that the residential portion which the Respondent and the subjects occupied under the original agreement was an unauthorized structure. It could not be unauthorized when it had been constructed upon a permit issued by the appropriate statutory authority. It Page 36 of 47 appears it was when the Appellants sought to redevelop the land after the purported grant to Aisha Nana that attempts were made to demolish that portion. It will be observed that after the headlease had expired in 1977, it was not until 1988 that the fresh lease was engrossed in favour of the Respondent. There is nothing to suggest that in the intervening period the Respondent lost possession of the residential portion the expiration of the headlease notwithstanding. PW1’s evidence supports possession which had been visible and continuous. The learned Justices of the Court of Appeal were right on their conclusion that the Respondent was in possession of the property at the time the Lands Commission decided to grant the lease to the Appellants instead of the Respondent. Apparently, it was because the Respondent was in possession that the Lands Commission had earlier decided to engross a lease in his favour after the headlease had expired. Besides, the Respondent’ account that during that period rent was being paid is convincing. The Lands Commission would not look on for the Respondent to default on rent payment for a period of 11 years (1977— 1988) and still engross a lease in his favour. The evidence has shown that when the lease was actually engrossed in the Respondent’s favour, the Respondent executed his part, it was forwarded to the Commission’s office to be executed. Subsequent events as already narrated led to its withdrawal following which a fresh lease was granted to the Appellants. Now, if the Respondent remained in possession of the property even after the headlease had expired and the Lands Commission had actually engrossed a lease in his favour only to be withdrawn for reasons the learned Justices of the Court of Appeal did not find justifiable, how then could they err on their decision that the Lands Commission was wrong when it granted a lease to the Appellants as against the Respondents? My Lords, perusing the rival statements of case of the parties, much has been argued about the exercise of discretion by the Lands Commission when it came to decide on who, between disputants, was entitled to be granted the lease. Doing so however, a Page 37 of 47 key point seems to have eluded both sides; the point about the legal status of the engrossed lease to the Respondent. The legal status of the partly executed lease of the Respondent. A lease is a transfer of an interest in land and hence, governed by the statute on conveyancing. At the time the Lands Commission engrossed the lease to the Respondent the now repealed Conveyancing Act, 1975 (NRDC 175) was in force. Sections 1 and 2 and Section 3 sub-section 2 provided as follows: “Section 1—Mode of Transfer. (1) A transfer of an interest in land shall be by writing signed by the person making the transfer or by his agent duly authorized in writing, unless relieved against the need for such writing by the provisions of section 3. (2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee. Section 2—Contracts for the for Transfer No contracts for the transfer of an interest in land shall be enforceable unless— (a) It is evidenced in writing signed by the person against whom the contract is to be proved or by a person who was authorized to sign on behalf of such person; or (b) It is relieved against the need for such a writing by the provisions of section 3. Section 3—Transactions Permitted Without Writing. (2)Sections 1 and 2 shall be subject to the rules of equity including the rules relating to unconscionability, fraud, duress and part-performance.” A cursory look at the engrossed lease shows that it contained all the terms of otherwise a legal lease. The parties are clearly stated. They are the Government of Ghana acting by the Chairman of Lands Commission as Lessor and Akyawkrom Stool acting by Nana Owusu Akyaw II as the Lessee. The lease was for a term of fifteen years starting from Page 38 of 47 1st March 1988 and ending on 28th February 2003. The agreed rent was 87,284.00 cedis per annum payable in advance on 1st April of every year of which the payment for the first year was made before execution. The Lessee duly executed his part. The only thing left undone for the lease to satisfy the form prescribed by Section 1 of the Act was the execution by the lessor. Discernibly, the terms contained in the document particularly the agreed rent and duration could not have been conjured. It turns sound reasoning to infer that they were negotiated between the two sides. This a matter of common sense and pragmatism. The document was therefore the product of the parties’ accord. More significantly to recall, at the material time, the lessee was in possession of the property. In the light of the above, we think this was clearly a specifically enforceable agreement between the parties to the document. And given that the only thing absent from the document to satisfy the form of a valid legal lease was the lessor’s signature, the lessor being the party making the transfer of the interest in terms Section 1(1)), the document created an equitable lease in favour of the Respondent. An equitable lease, as the name implies, is a lease valid and enforceable in equity though not conformable to statutory or common law prescription as to form. Our law still recognizes such lease. The learned A.K.P Kludze in his book already referred to, explains equitable lease with admirable clearness at page 99 as follows: “The equitable lease arises when there is otherwise a valid lease because the parties have negotiated and agreed on a lease but there is lack of due form. Because the lease lacks due form in not being created by writing signed by the lessor or his agent as required by section of the Conveyancing Decree, formerly section 1 of the Statutes of Frauds, it is not enforceable in law if it is for a term exceeding three years, or being for three years or less, it does not take effect in possession. Although such a lease, in the words of section 1 of the Conveyancing Decree “shall confer no interest”, a court of equity may treat it and, therefore enforce it as an agreement for a lease under some circumstances. The document may qualify as a contract or agreement for a lease because it is in writing within Page 39 of 47 the meaning of section 2 of the Conveyancing Decree. When such a lease is invalid at law but is enforceable in equity only, because of the doctrine of part performance or some other rule of equity, it is known as an equitable lease.” The well-known case of WALSH V LONSDALE (1882)21 CH.D 9 involved a contract for a seven-year lease to the defendant which though was in writing, did not comply with the legal requirement that it be made by a deed. Nonetheless, the Plaintiff was in possession. He however defaulted on the payment of the rent advance as agreed and the defendant distressed his goods which procedure was available at law. The Plaintiff sued in trespass to his goods, arguing that there was no valid lease at law hence the legal remedy of distress was available to the Defendant. The Plaintiff’s action failed for the reason that in the eyes of equity, a tenant in possession by a specifically enforceable contract for a lease was in the same position as if a lease had been executed. Accordingly, as far as equity was concerned, the plaintiff was already a lessee for seven years and subject to all the terms of the agreement and all rights and remedies available. See also COATSWORTH V JOHNSON (1886)55 L.J. Q.B. 220; MANCHESTER BREWERY CO. V COOMBS (1901)2 CH. 608; CRUMP V TEMPLE (1890)1 T.L.R. 120 and TOTTENHAM HOTSPUR FOOTBALL CLUB & ATHLETIC CO., V PRINCEGROVE PUBLISHERS LTD. (1974) ALL E.R. 17. Undoubtedly, the document in the instant case did not start as an agreement for a lease. It is a partly executed lease document. However, the same principle applies. To the extent that on the facts, the parties had a specifically enforceable agreement, and the document is not a legal lease by reason only of the fact that the lessor did not sign to make it conformable to the statutory requirement in Section 1 of the Act, it is considered as an agreement for a lease which gives rise to an equitable interest. Out of the above, we believe we state the law correctly that whenever, as in the instant case, a partly executed document to evidence a transfer of an interest in land under a specifically enforceable agreement is not a legal lease by reason only of the absence of the signature of the lessor or that of his agent, it may be considered an agreement for lease capable of creating an equitable interest in the land. On the authorities on the Page 40 of 47 subject considered, the rules of equity are wide enough to cover such a situation. It must be stated that the equitable interest thereby created is recognized as an interest in the land itself. Consequently, the Respondent held an equitable interest in the land which a court of equity would protect. Indeed, the Respondent deserved this protection for the added reason that the Appellants at the time they took their lease from the Lands Commission had notice of the Respondent’s possession of the land. They were therefore not bona fide purchasers without notice. We have also decided earlier in this delivery that the Appellants predecessors were tenants to the Respondent and not assignees as they had contended in the courts below. This further weakens the appellants’ entitlement to the property through the purported lease. Before going on we pause to address one point. About the interest the Respondent had after the expiration of the headlease, Learned Counsel for the Respondent had argued that Respondent’s interest was “ripen into a tenancy at sufferance or a tenancy at will which also an interest recognized in both law and equity”. With due respect to Counsel, that argument itself is ambivalent. In any event, it appears that at common law, neither a tenancy at will nor at sufferance is an interest or estate in land. It is appropriately described as a personal relation between a landlord and his tenant. See WHEELER V MERCER [1956]3 ALL ER 631at 634. Back to our evaluation, we think we can conclude that the Appellants’ accusation of the Court of Appeal for not holding that the Respondent had no interest whatsoever in the disputed property immediately before and at the time of the renewal of the lease in favour of their Appellants was misconceived. Whilst the position holds true on the authority of such cases as ROYAL INVESTMENT COMPANY LTD V MADAM RUTH QUARCOPOME & ANOR (supra) and others cited by the Appellants, that the expiration of a lease results in the dissolution of the relationship between the parties to the lease, the fact that in this case, an equitable interest was subsequently created in favour of the Respondents takes the case out of that principle. There was also no error on the part of the Court of Appeal for not saying that there was no mandatory duty or Page 41 of 47 obligation to renew the lease in favour of the Respondents as the Appellants demand of this court to hold. Further, by our same conclusion, the fact that the headlease had not renewal clause becomes inconsequential. For, by the conduct of the Lands Commission and the Respondent, manifested in the partly engrossed lease, there was a clear and demonstrable intention and steps further, to renew the expired lease. Thus, when the Court of Appeal held that the Respondent was better entitled to a renewal of the lease, it was understating the true position. This is also not a case to properly apply the holding in BEN MIREKU V ARCHIBALD OKPON TETTEH (supra) as the Appellants sought to do, to say that, the Court of Appeal was implying or imposing a contract on the Lands Commission and the Respondent. There was in existence a specifically enforceable contract the terms of which had been agreed between the parties. We now address the issue about the propriety of the exercise of discretion by the Lands Commission in granting the lease to the Appellants. The Appellants argue that the Court of Appeal erred in holding that the Lands Commission wrongly exercised its discretion under article 296 in granting the lease to the Appellants instead of the Respondent. We begin by getting rid of one point Counsel for the Appellants argue which is to the effect that by the said holding, the Court of Appeal sought to interpret article 296 of the Constitution, a power it had no jurisdiction to exercise in terms of article 2(1) of the Constitution. BANOUSIN V THE REPUBLIC [2015-2016]2 SCGLR 1232 cited. In our judgment, this contention is a mere ‘Aunt Sally’. No question of interpretation arose on the point and the Court of Appeal embarked upon no such venture. Before the Learned Justices of the Court, the Respondent had argued the ground that, faced with the issue of whether the Akyawkrom Stool was the lessor of the land, the Lands Commission had a duty to inquire from its record or seek clarification with the Respondent. Not doing so and by proceeding to withdraw the Respondent’s engrossed lease in favour of a fresh lease to the Appellants, the Lands Commission which is a Page 42 of 47 statutory body vested with the discretionary authority failed to properly exercise the discretion. This was the argument that swayed the Court of Appeal to hold thus: “We find the arguments of the Respondent on this ground more persuasive and are inclined to agree with same. We are of the view that the Lands Commission did not exercise its discretion properly as required under Article 296 of the 1992 Constitution.” Let it be stated that in this country, every court has jurisdiction to apply the provisions of the Constitution in deserving situations save where a genuine issue of interpretation arises. If any authorities for this are required, the chain will include such cases as REPUBLIC V ACCRA SPECIAL CIRCUIT COURT; EX PARTE AKOSAH (1978) GLR 212; REPUBLIC V MAIKANKAN (1971)2 GLR 473; ADUMOA II V ADU-TWUM [2000] SCGLR 165 and XL INSURANCE SWITZERLAND CO. V GEMINI MARITIME SERVICES & ANOR [2012]1 SCGLR 658. There is obviously a substantial measure of unanimity between the parties regarding the position that the Lands Commission in terms of article 296 of the Constitution was vested with the discretion of deciding who to grant the lease to. No issue turns on the point and it serves no useful purposes referring to the authorities the Respondent in particular has treated us to. Besides article 296, article 23 imposes a general duty on administrative bodies and administrative officials a duty to act fairly and reasonably in the discharge of their duties conferred by law. The Appellants have however contended as follows: “Respectfully My Lords, the Commission has wide discretion in determining the rightful person to whom that lease ought to be engrossed in his/her favour. Therefore, the Respondent not having led any evidence to prove that the Lands Commission acted unfairly and capriciously there was no justifiable ground for the Honourable Court of Appeal to interfere with the decision of the Lands Commission.” Page 43 of 47 Contrary to the above, we have found sufficient evidence to support the Court of Appeal’s stance on the matter. On pain of sounding repetitive, we have earlier on determined that from the Commission’s letter of 23rd May 1988, what the Accra office requested for was an explanation as to why the fresh lease was engrossed in the name of Akyaakrom Stool since from its records, the Stool was not the lessee. Whilst the letter failed to mention who the lessee was from the office’s records one could surmise it could be either Nana Nsebetuo since the lease was originally granted in his name or the Akyinakrom or Akyaakrom since those names have variously appeared in correspondence about the property. In either case, the information to clarify could be sought from the records of the Commission in its Kumasi office or from the Respondent. Nothing in the evidence reasonably brings Aisha Nana or the Appellants within the contemplation of the inquiry. To rationalize the decision of the Lands Commission to grant the lease to the Appellants as against the Respondent, the Appellants rely on a letter supposed to have been written on behalf of the Respondent to the Lands Commission to reclaim a refund of his fee paid for the renewal of the lease [page 186 ROA]. Addressing the point about this letter, Counsel for Respondent submitted: “Your Lordships, the issue of the Respondent asking for a refund of money paid for the renewal of the lease did not feature anywhere in the pleadings. It also did not feature when the parties and their witnesses were testifying. The only in-cling [sic] we get from the record where mention was made of a “refund of money” is a letter which appears at pages 186 and 196 of the ROA written by one Kwaku Oduro who claimed to be the attorney for his father, Nana Owusu Achiaw. There is no power of attorney attached to the letter. More importantly the heading of the letter reads; “APPLICATION FOR REFUND OF GROUND RENT.” The application for the refund related to payment of ground rent and not money paid for the renewal of the lease. Even with the ground rent, there is no record of the Land Commission replying to the letter or refunding same.” Page 44 of 47 We believe this submission adequately answers the point made by the Appellants. The letter is incapable of advancing the Appellants’ cause. We observe for ourselves that the letter which is dated 21st August 1989 was written after the Lands Commission had already decided to withdraw the lease engrossed for the Respondent and grant a new one to the Appellants. A latecomer as the letter was, it could not have afforded a ground to rationalize the Commission’s conduct. From what we see, the Commission by the stroke of the pen and without reck, withdrew the Respondent’s lease and proceeded to make a grant to the Appellants. This approach the Court of Appeal reasoned was not in accord with a good exercise of discretion. It was in the case of SHARP V WAKEFIELD (1891) A.C. 173 that Lord Halsbury was reported to have said: “discretion means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion; Rooke’s case; according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which honest man competent to the discharge of his office ought to confine himself.”(See quotation in H.W.R Wade & C.F. FORSYTH, Administrative Law, 11th ed., Oxford, page 291.) On our examination of the facts established and the applicable law, we agree with the reasoning of the learned Justices of the Court of Appeal and wholly endorse their conclusion. What is even worse, at the time the lease was granted to the Appellants, the instant suit, to the knowledge of the Lands Commission was pending in the trial court. The Court of Appeal could not have found a better ground to discountenance the decision of the Commission. See CHELLARAM & SONS (GH) LTD. V HALABI (1963)1GLR 214. In conclusion, we find no merit in the appeal. All the grounds of appeal fail. Earlier in this judgment, we decided that the 1988 partly executed lease made in favour of the Page 45 of 47 Respondent is enforceable in law. By reason of this, whilst we affirm the decision of the Court of Appeal, we think the parties to the said lease, that is, the Lands Commission and the Respondent must go by the terms thereof subject to such modifications that may have become necessary due to the period of the pendency of this litigation. For the avoidance of doubt, we order the Lands Commission to cancel the lease granted to the Appellants dated 20th February 2001 together with the Lands certificate issued thereon dated 2nd July 2004. In substitution thereof, we order the Lands Commission to issue a fresh lease in favor of the Respondent on the basis of the Respondent’s 1988 partly executed lease. Subject to this variation, we uphold the decision of the Court of Appeal and dismiss the appeal in its entirety. (SGD) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) (SGD) G. PWAMANG (JUSTICE OF THE SUPREME COURT) (SGD) I.O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) Page 46 of 47 (SGD) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) COUNSEL MUJEEB RAHMAN AHMED ESQ. FOR THE 3RD & 4TH DEFENDANTS/ APPELLANTS/APPELLANTS. K. A. ASANTE-KROBEA ESQ. FOR THE PLAINTIFF/RESPONDENT/ RESPONDENT WITH HIM, KENNEDY KWARTENG. . Page 47 of 47

Judgment

RADDY & ORS VRS AMPEM II (J4/67/2023) [2024] GHASC 27 (22 May 2024)

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RADDY & ORS VRS AMPEM II (J4/67/2023) [2024] GHASC 27 (22 May 2024)

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