Toure v Baako[1]
This is a case decided by the Supreme Court having travelled from the High Court through the Court of Appeal.
Facts:
The plaintiff, in the High Court brought an action for the following reliefs:
- Declaration of title, and recovery of possession of all that piece and parcel of land situate lying and being at Sabon Zongo, Accra as described in the schedule hereunder.
- Perpetual injunction restraining the defendant, his agents, workmen and servants from entering upon the land or interfering with the plaintiff’s enjoyment thereof.
- ¢3,500 damages for trespass
The plaintiff’s case was that, he had been granted the land by original owners in 1925 and had permitted the defendant to enter and construct a building on a portion of the property. The defendant was at the time, married to the plaintiff’s relative and was granted the permission on condition that he pay ground rent to the plaintiff. This obligation was not fulfilled by the defendant, hence the action.
In his defence, the defendant contended that he had obtained the land from a different grantor, but the trial court found on the evidence that the defendant’s entry on to the land was solely on the permission of the plaintiff. This was effectively a denial of the title of the grantor, an action which triggered the plaintiff to amend their pleadings to include that fact – forcing the hand of the Supreme Court to speak to it. The High Court consequently entered judgement on behalf of the plaintiff in the terms endorsed on the claim. The matter went on appeal, taken up by the defendant to the Court of Appeal and met the same fate.
On further appeal to the Supreme Court, the defendant back-tracked and conceded that they were on the property only by virtue of the permission granted to the them by the plaintiff. They however argued that by virtue of the provisions of the Land Development (Protection of Purchasers) Act 1960 (Act 2), they had a claim for statutory title. Their argument being that they took the conveyance in good faith from a third party in good faith and had made a substantial development on it. They argued at the Supreme Court that they had sought leave to amend their defence to include the defence on Act 2 and Laches but the trial judge declined that application.
Holdings:
- The Supreme Court held that Act 2 applied to confer title only where a defendant had built on land genuinely believing that it was his. In the instant case however, the defendant knew that he was on the land by leave and licence of the plaintiff. Accordingly, the defendant could not successfully invoke the provisions of Act 2 so as to obtain statutory title to the land in dispute.
- The Supreme Court affirmed that a court had the discretion in any given case to decide whether the provisions of Act 2 should be applicable, and can exercise his discretion in the matter, even if none of the parties raised the issue in their pleadings. (Referencing Decisions of Odoi v Hammond [1971] 1 GLR 375, Laryea v Oforiwah [1984-86] 2 GLR 410, CA and Abdilmasih v Amarh [1972] 2 GLR 414
- The Supreme Court affirmed the meaning of the term “in good faith” by relying on the expansive definition provided by Azu Crabbe JA (as he then was) in the case of Baabu v Appiah. The Court of Appeal in that case considered the meaning of the term “in good faith” in section 2(1) of the Farm Lands (Protection) Act 1962, a provision that was held in Odoi v Hammond (supra) to be in pari materia to section 1(1) of Act 2. Per Azu Crabbe espousing the meaning of “In good faith”:
“if it is shown that a farmer has no such honest belief or that he has every reason to know and believe that he had no title to the land, and yet he enters upon land by force and occupies and farms it, he will not be protected by the Act. To interpret those words will mean to make the Act all instrument of fraud . . .” I would add that if there was anything which could arouse the suspicion of the farmer that there was something wrong with the transaction leading to the acquisition of the land, he would not be acting in good faith if he shut his eyes to the facts, or purposely abstained from inquiring into them. His conduct would then be fraudulent, because he would be taking an unscrupulous advantage over the real owner of the land. The onus is on the farmer to show that his belief was honestly held and was founded upon reasonable grounds, for a belief which is destitute of all reasonable grounds falls far short of the standard of conduct that will afford protection under Act 107.”
- The Supreme Court affirmed the general principle that a tenant or licensee who challenges the title of his landlord or licensor forfeits his or her right to remaining in possession of the land in respect of which he or she had disputed the title of his landlord or licensor. The defendant in this case having denied the title of the plaintiff stood to forfeit his right of possession and occupation of same both at common law as well as under customary law. However, a rigid application of this rule was held to have the potential to unjustly enrich the plaintiff.
- The position of the law in instances where a person is permitted to build on land belonging to another person was that the licensor always retained ownership/title to the building so long as the building stood. This position is only set aside where the land transaction is covered by an English-style lease, then the licensor may take ownership of the property. Accordingly, in the instant case, the declaration of title in the plaintiff only entitled him to receive rent from the defendant for his occupation and use of the land but did not confer ownership of the house built on the land by the defendant on the plaintiff. Again, since the effect of the 2nd relief sought by the plaintiff perpetual injunction granted the plaintiff by the trial court would be to unconscionably drive the defendant and his family from the house, and give ownership thereof to the plaintiff, the appeal against the perpetual injunction would be allowed. The defendant should however pay the assessed rent for his occupation of the land. (Referencing Korsah CJ in Asseh v Anto)
[1] Toure v Baako [1993-94] 1 GLR 342. (Supreme Court)
