ABDILMASIH v. AMARH [1972] 2 GLR 414
IN THE COURT OF APPEAL
31 JULY 1972
APALOO AND BENTSI-ENCHILL JJSC ANDKINGSLEY-NYINAH JA
CASES REFERRED TO
(1) Wuta-Ofei v. Dave, Supreme Court, 18 April 1966, unreported; digested in (1966) C.C. 102.
(2) Hammond v. Odoi, High Court, 23 October 1967, unreported; sub nom. Odoi v. Hammond [1971]
1 G.L.R. 375, C.A.
NATURE OF PROCEEDINGS
APPEAL by the plaintiff and cross-appeal by the defendant against the judgment of the High Court that the defendant was entitled to protection under Act 2, and that on the facts the plaintiff was the owner of the land in dispute. The facts are fully set out in the judgment of Apaloo J.S.C.
COUNSEL
- V. Campbell for the appellant.
Jonathan Arthur for the respondent.
JUDGMENT OF APALOO J.S.C.
On 19 February 1957, a man called Adolphus Emmanuel Cogo Naih of Accra, conveyed to the plaintiff, a piece of land said to be situate at Farnofah, North Adabraka, Accra, in consideration of the sum of £G400 or ¢800.00. That land was said to be bounded on the north by the property of a Mr. R. B. Okai on the south by the vendor’s land on the east and west by Kwame Nkrumah Road and Nsawam Road respectively. To the deed was attached a site plan which gives the dimensions of the land as 200 feet on the north and south and 50 feet on the east and west respectively. It is this land that is the subject-matter of the present suit. Just over a year later, the self-same vendor, again by deed, conveyed to the plaintiff an area just south of the land conveyed by the 1957 [p.417] of [1972] 2 GLR 414 document for a like estate in consideration of a further sum of £G400. The result of these two assurances, was that the plaintiff became seised of an area of land measuring 200 feet on the north and south and 100 feet on the east and west. The right of his vendor to grant him these two plots of land was not questioned in these proceedings. Indeed the plaintiff’s vendor was able to show a root of title dating back to 1919. It commenced with a deed of gift executed in favour of a Mr. Samuel Abotchie Dsane by the then Korle priest on 28 January 1919 of an area 200 feet by 200 feet. The latter appeared to have died intestate and on 14 December 1937, a Joseph Allotey as the lawful representative of the intestate’s family, conveyed the plot to Erastus John Ashrifie and the aforesaid Adolphus Emmanuel Gogo Naih jointly. Ashrifie died on 17 July 1954 intestate and Gogo Naih succeeded him in accordance with custom and in that capacity and in his own right made the two conveyances of 1957 and 1958. Although the evidenceshows that the plaintiff entered into possession of these two plots, his possession has not always been peaceful. But the plaintiff’s occupation of the land antedates the two grants made to him by Gogo Naih. The reason for this is the familiar one that Gogo Naih was his second vendor. The plaintiff bought the land at first from a Mr. Henry Golightly in 1946 and on 15 June of that year, the latter executed a conveyance in his favour. Golightly himself obtained his grant from the Otupai stool. This stool was to be adjudged five years later to have no interest in the land and to be incapable of making any valid grant of it. The title which Golightly purported to transfer to the plaintiff was invalid but the plaintiff was ignorant of this until he found himself in litigation with a Mr. Foud Zagloul.
In 1956, Zagloul relying on a lease granted him by the Korle stool and the Gbese Mantse, trespassed on the land and erected a sign board on it. The plaintiff abated the nuisance and had to answer a trespass suit at the instance of the said Zagloul. On 25 March 1958, that action determined in the plaintiff’s favour as the said lease was held to be invalid. It was during the pendency of this suit that the plaintiff was to learn that the Golightly title derived from the Otupai stool was not going to avail him. He therefore sought to do the obvious, namely, perfect his title. It is this that led him to the second purchase of the land from his immediate predecessor in-title, i.e. Gogo Naih. The person who put him in touch with his vendor was the late E. B. Okai. According to the evidence, it was the latter who persuaded the plaintiff that his title was invalid and that he could only obtain good title to the land from Gogo Naih with whom Okai claimed to have a common boundary. It is in evidence that Okai was himself present when the first lot was demarcated for the plaintiff in 1957. The deed, which was executed in favour of the plaintiff in 1957 to evidence the sale, described the northern boundary of the land as bounded by the land of R. B. Okai. [p.418] of [1972] 2 GLR 414 The latter was the father of E. B. Okai. This aspect of the case is important because it is this same Okai that the defendant alleges gifted the land in dispute to her. It appears the plaintiff was destined to have a troubled existence on this land. Three months after the Zagloul litigation determined in his favour, Numo Ayitey Cobblah, the Korle priest, commenced another action against him. This was on 11 June 1958. The plaint was for a declaration of title to land, damages for trespass and recovery of possession. The evidence produced in this case shows that the land in litigation in that suit is the two plots of land sold to the plaintiff in 1957 and 1958 by Gogo Naih. After the closure of pleadings and after summons for directions was taken out, the then plaintiff discontinued the action without leave. On 10 June 1959, the suit was struck out with costs.
After this, there seems to be no further interference with the plaintiff’s occupation. In 1962, he had the misfortune of being deported from this country. Before the plaintiff left, he gave a power of attorney to his son E. J. Abdilmasih to oversee and generally manage this property. It is in fact the latter that commenced this action and appears to be prosecuting this appeal. The evidence shows that the present litigation became necessary because although the plaintiff’s possession of the land was peaceful from 1959 upwards, it was again disturbed in January 1965. The plaintiff’s attorney noticed that someone had entered the land and commenced building operations on it. At the time he visited the land, a fence of unspecified dimensions had been constructed on it. The plaintiff’s attorney, as his father before him, abated this nuisance and caused the fence to be pulled down. This brought him face to face with the defendant. The latter complained about this to the police. There is some unresolved conflict of evidence as to what transpired at the police station. The result, however, was that the defendant discontinued building operations on the land. She resumed it in May of that year. Accordingly, on 31 May 1965 the plaintiff’s attorney commenced this action in which he claimed declaration of title, damages for trespass and recovery of possession.
The defendant resisted the action as she claimed herself to be the true owner of the land. She put her root of title firmly in E. B. Okai who she said made a customary oral grant of the land to her in 1958. This alleged grantor, it should be remembered, was the self-same person who according to the plaintiff, put him in touch with his vendor Gogo Naih and was present when the boundaries of the land in dispute were marked out for him. E. B. Okai died on 2 February 1959, testate and on 20 April 1959, probate of his will was granted to Mr. T. W. M. Quartey and Henry Akuetteh, the executors named therein. On 9 March 1965, a person called Joseph Ayitey Okai who described himself as the head of the family of Robert Benjamin Okai, conveyed the land in dispute by way of gift to the defendant. Just about a month after this, on 6 April 1965, the Korle priest, Numo Ayitey Cobblah conveyed [p.419] of [1972] 2 GLR 414 the identical land to the defendant by way of absolute sale in consideration of the sum of £G100. The document recites that the land was granted since 1960 “without written evidence of the said sale.” The defendant accordingly asserts the validity of her title and her right to build on the land. She indeed counterclaimed for that relief.
After the service of the writ, the plaintiff desirous of keeping the land in status quo, brought an application for an interim injunction against the defendant. At the hearing, counsel for the plaintiff was willing to withdraw the application if the defendant gave an undertaking but not otherwise. After some hesitation, the defendant’s legal advisers agreed to do this. On 30 June 1965, the application for injunction was again listed for consideration. Counsel for the defendant then informed the court “we have prepared the written undertaking.” On the faith of this, the plaintiff’s counsel sought leave to withdraw the motion with liberty to renew it if he saw the defence. The judge acceded to this and the motion was struck out. In the instant proceedings, the plaintiff produced what he claimed to be that undertaking. It bears the same date as the date on which the motion was disposed of by the court, namely, 30 June 1965. Later in this judgment, I will refer to its terms and evaluate its legal significance on the case but for the moment, it should suffice to say that the defendant then undertook to restore the land to the plaintiff, should the action be decided against her.
After the withdrawal of the motion, the defendant continued the construction of the building. The evidence suggests that she acted precipitately—building by day and by night. At the time the suit was disposed of, the building was completed and tenanted. It is said it is a substantial building. The documents of title produced by both parties show that they both laid the origin of their grants in the Korle priest. The plaintiff’s dates back to a conveyance of 1919 and the defendant’s to a conveyance of 1936 or as recently as 1965. Both parties are claiming an identical piece of land. The only really serious issue between them was the location of the land covered by their respective grants. The topography of Accra has not remained unchanged over the years and the location of the plots shown on the title deeds of the parties is a task which the court is ill equipped by itself to undertake. It requires the assistance of a man trained in cartography or such kindred science. This fact was appreciated by the court and the parties.
Accordingly, the court on 12 June 1968, sought the help of the Chief Lands Officer and requested him to make a plan of the land and indicate certain plots on it in accordance with their title deeds. A Mr. Nettey, a draughtsman in the Lands Department, prepared a plan in purported compliance with this order. This was produced in evidence. It was not found satisfactory. The Chief Survey Officer was then ordered to make a plan, again indicating named features. Again a plan purporting to comply with the court’s order was made by a draughtsman called Broohm. Like Mr. Nettey, he [p.420] of [1972] 2 GLR 414 also did not visit the locus and did the plottings from his office. He also produced his plan in evidence. As the plans produced by these two officers proved unhelpful, the court requested the parties to agree on a surveyor to carry out the orders. A Mr. S. T. Fleku was agreed upon and was appointed by the court to carry out the survey. As I read the record, his professional skill and integrity were not questioned in these proceedings. Unlike both Nettey and Broohm, he visited the locus personally and took measurements and thereafter plotted the various areas on a cadastral plan which he obtained from the Lands Department. Thereafter, he appeared in court tendered his plan in evidence and was thereafter subjected to a very thorough questioning and cross-questioning by experienced counsel who appeared in this case. He was also invited back onto the land by the court and the parties where further questions were asked him and he took certain measurements in the presence of the court. At the end of it all, the judge considered him reliable and felt his plan could be trusted. The court accordingly based its consideration of this case on his plan (exhibit 3).
When actual hearing opened before Charles Crabbe J. (as he then was), the plaintiff had himself returned to Ghana and gave evidence as to how he acquired the plot, the acts of ownership he made on it and produced in evidence his title deeds and a number of documents. He was supported by his son and attorney whose evidence, in the main, related to the incidents which culminated in the institution of this suit. There is no evidence that the power of attorney which his father gave him was revoked on the latter’s return to this country. The defendant, for her part, related when and why the late E. B. Okai came to make the oral customary grant to her. She also produced in evidence the title deeds which she obtained from the Okai family and the Korle priest. The latter also testified in her support.
The learned trial judge considered the evidence in great detail and after an exhaustive evaluation of it, reached the conclusion that “the plaintiff has adduced sufficient evidence as entitles him to succeed in this case, and he is thus entitled, subject to what I now have to say, to the reliefs which he seeks.” The learned judge thought the defendant deserving of protection under the Land Development (Protection of Purchasers) Act, 1960 (Act 2). He considered the ingredients of that statutory relief and was plainly in difficulty whether or not the defendant erected the building in good faith. As he could not make an affirmative finding in her favour on this point, he said he gave her the benefit of the doubt and proceeded to confer on her title to the land. The plaintiff says that order was wrong and contests it by this appeal. The defendant, for her part, disputes the correctness of the judgment on its merits and on various grounds which I shall presently examine, asks that this court should enter judgment in her favour on the merits. Before considering the merits or demerits of the contentions advanced by either side, it is necessary to relate one matter which but for [p.421] of [1972] 2 GLR 414 the role assigned to it on this appeal, would have been undeserving of mention. As I said, the writ was taken out by the plaintiff’s son and attorney and he prosecuted the action till completion. When it was sought to question the order about which the plaintiff felt aggrieved, notice of appeal and grounds of appeal were filed within the statutory period in accordance with rule 8 of the Supreme Court Rules, 1962 (L.I. 218). That notice was however signed by the plaintiff’s attorney who described himself as the appellant. Mr. Arthur objects that this was a contravention of rule 8 (1) and that inasmuch as the notice of appeal was not signed by the plaintiff himself, no appeal was properly filed and that the purported appeal should be dismissed in limine. The contention does not lay any claim to merits and is and was intended to be a technicality from start to finish.
The short answer to that contention is that nowhere did rule 8 (1) require that the notice of appeal should be signed by the appellant himself. The subrule reads:
“All appeals shall be by way of rehearing and shall be brought by notice (hereinafter called ‘the notice of appeal’) to be filed in the Registry of the Court below, which shall set forth the grounds of appeal, shall state whether the whole or part only of the decision of the Court below is complained of (in the latter case specifying such part) and shall state also the nature of the relief sought and the names and addresses of all parties directly affected by the appeal, and shall be accompanied by a sufficient number of copies for service on all such parties.”
Although this subrule is silent as to who may sign a notice of appeal, subrule (1) of rule 41 which deals with a cognate matter in criminal appeals expressly provides that save in stated cases, such notice shall be signed by the appellant himself. It is this fact which led Mr. Campbell to submit that had the legislature intended that such notices in civil cases should also be signed personally by the appellant, it would have so provided. There is some force in this submission, not least by the fact that it accords with the wisdom exemplified in the expressio unius est exclusio alterius maxim of statutory interpretation.
That this contention can only have been an exercise in legalism without the slightest pretence to merit is also shown by the actual circumstances of this case. Although the plaintiff himself returned and gave evidence, the action was actually prosecuted by his attorney. There is no evidence that this power was at any time revoked and in a very real sense, the plaintiff’s attorney can be regarded as the plaintiff in this action. Counsel for the defendant in fact himself so regarded him. He is on record as having said: “As you stand there now, I consider you as the plaintiff in this case.” What the attorney did and to which counsel objects, is to describe himself in the notice of appeal as the “plaintiff-appellant.” That contention cannot be right. [p.422] of [1972] 2 GLR 414
The legislature itself envisages that, for reasons good or bad, intending applicants may in some cases default in complying with the rules. Rule 19 (2) provides that in cases which include rule 8, the court may dismiss the appeal or make such order as the justice of the case required. If in truth, this rule had obliged the plaintiff himself to sign the notice of appeal, we would have considered that the justice of this case required that the appellant be not denied a hearing only on that account. Nobody has a vested right in procedure, and modern notions of justice require that a court should do substantial justice between the parties, unhampered by technical procedural rules. We can conceive of no injustice that can be caused to the respondent by the notice of appeal being signed by E. J. Abdilmasih instead of J. J. Abdilmasih. In any event, we thought the construction which counsel for the respondent sought to put on the rules was not warranted either by its wording or its true intendment. We accordingly overruled it and heard argument on the merits.
As I said, both parties found cause to feel aggrieved at the finding or consequential order or both of the learned judge and while the plaintiff filed an appeal, the defendant in obedience to rule 16 of the Rules, filed “notice of contention that the judgment should be varied.” That notice lists grounds which attacked the judgment on its merits. The plaintiff while accepting the findings, disputes the correctness of the judge’s application of Act 2 of 1960 suo motu to confer title on the defendants. We accordingly decided to hear, the respondent first. Mr. Arthur who appeared for her, combined and argued together, what is listed in the notice as three separate grounds. In sum, they complain that the judge did not adequately consider the case of the defendant, ignored the legal principle that the plaintiff must succeed on the strength of his own case and not profit by the weakness of the defendant’s case and further that the judge ignored or failed to take proper account of an admission by the plaintiff in an affidavit in which he concedes that the land in dispute fell outside the land conveyed to his predecessors-in- title.
The argument which counsel developed to substantiate these complaints, is that as it was common ground that the area of land granted to the plaintiff’s predecessors-in-title originally formed boundary on the north and south with Okai and Quarcoopome’s lands respectively, the learned judge was wrong in concentrating his consideration of the evidence only on the northern boundary. The judge, counsel submitted, was also under a duty to decide and pronounce on the exact location of the southern boundary. He cannot pronounce for the plaintiff otherwise. In failing to give consideration to that boundary, he ignored the principle that the onus probandi was squarely on the plaintiff. The title deed of 1919 (exhibit D 1) shows that the dimensions of the land granted to the plaintiff’s predecessor-in-title were 200 feet by 200 feet. The whole of that land was subsequently conveyed to the plaintiff’s vendor. But in this case, the plaintiff claims an area on the extreme [p.423] of [1972] 2 GLR 414 north of his grantor’s land measuring 200 feet on the north and south and 50 feet on the east and west.
That land has as its northern boundary, the land of Mr. Okai—the person who was his vendor’s original boundary owner. If the southern boundary of Okai’s land was located, 50 feet south of that land should correspond with the southern boundary of the land in dispute.
The surveyor was able, by the help of title deeds produced to him, to demarcate on the plan the whole of Okai’s land. The area which the plaintiff claims abuts with it on the north. Fifty feet south of that land tallies with the southern boundary shown in the plaintiff’s document of title (exhibit B). The person who owns the land adjoining the land in dispute immediately to the south, is the plaintiff himself. This much is conceded by the defendant. In the circumstances, it would seem to me to be wholly pointless for the judge to expend any effort in determining the exact southern boundary of Gogo Naih’s land which forms the northern boundary of Quarcoopome.
For my part, I can see no force in the contention that the judge inadequately considered the defendant’s case. The defendant relied for her title on an oral customary grant and two conveyances executed in her favour by the Okai family and the Korle priest. The learned judge found that “both R. B. Okai and E. B. Okai respected their boundary with Dsane (i.e., the plaintiff’s predecessor-in-title) and had no dealings south of their land.” That finding inferentially rejects the defendant’s claim that E. B. Okai made a customary oral grant of the land in dispute, which lies south of his boundary with Dsane to the defendant. That conclusion seems to me solidly based. That E. B. Okai can have granted the land to the defendant is highly improbable. As I said, it is this very Okai who got the plaintiff to purchase the land in dispute from Gogo Naih with whom he forms a boundary on the south. According to the evidence, Okai was himself present when this land was demarcated for the plaintiff. This was in 1957. It seems highly unlikely that the same Okai would have made a grant of this land a year afterwards to the defendant. The defendant said in acknowledgement of the grant, she gave customary drink to Okai but that nobody was present when she did this. This story is difficult to credit. In any event, the plan (exhibit 3) and the title deeds produced in evidence, show that that land was not Okai’s to give.
The same goes for the conveyance said to be executed on her behalf by Joseph A. Okai purporting to be a conveyance from the family of the late R. B. Okai. The deceased clearly did not own that land. The Korle priest’s document purporting to be executed on 6 April 1965, is equally worthless. That area was disposed of by the Korle priest’s predecessor as long ago as 1919 and the Korle stool did not have it in its power to grant in 1965. In any case, that stool is clearly estopped by the result of the 1958 action which it instituted against the plaintiff and which it discontinued without leave, from making title to any portion of that land to the defendant. After that case at the very least, the Korle priest cannot but be aware that any document which he [p.424] of [1972] 2 GLR 414 executes alienating any portion of that land cannot be worth the paper on which it was written. In my opinion, the complaint that the judge did not adequately consider the defendant’s case is not made out. It is also urged by Mr. Arthur that the judge was in error in failing to give proper consideration to an affidavit which contains an admission by the plaintiff that the land in dispute fell outside the limit of his grantor’s land. The judge’s opinion was that such admission by the plaintiff’s attorney was contradicted by all the documents of title in this case including the defendant’s and was therefore entitled to little weight. A consideration of the evidence as a whole, leads me to concur in that view of the matter. The plan (exhibit 3) is the clearest refutation of that claim. It shows plainly that the land in dispute fell squarely within the land obtained by purchase from his vendors and was within their power to grant. In any case, I concur positively in the submission of Mr. Campbell, that as that affidavit was filed before the parties joined issue and no special leave was obtained of the judge to use it as evidence, its use as such was forbidden by Order 37, r. 28 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). In my opinion, nothing that was urged on these combined grounds leads me to differ from the judge’s conclusion on those issues.
Mr. Arthur next says the plan made both by the Chief Lands Officer (exhibit XI) and that made by the Chief Survey Officer (exhibit X2) show that Golightly’s building fell within the plaintiff’s vendor’s land, the judge should have given consideration to these plans, as they tend to buttress the defendant’s case, that 150 feet of Gogo Naih’s land was taken up by the trespass leaving only 50 feet over which the plaintiff’s vendor had a disposable power. That argument does not weigh with me. The defendant herself was in no position to swear that Golightly trespassed 150 feet into Gogo Naih’s land. No such case was admitted in the plaintiff’s pleadings. When the plaintiff was cross-examined about it, he said his vendor informed him that Golightly trespassed into his land 100 feet. He said that same person also trespassed 50 feet into Quarcoopome’s land. The result is that of the 150 feet which Golightly’s building occupied, 100 feet went into Gogo Naih’s and 50 feet went to Quarcoopome’s. Gogo Naih who had 200 feet square, thus had 100 feet of vacant land which he could sell and did sell to the plaintiff.
Although counsel argued that the plans made by the Chief Lands Officer and Chief Survey Officer were entitled to consideration by the judge, he did not suggest what probative value they can have had. When it emerged in the course of the evidence of the draughtsmen who made these plans that they merely made plottings from their office without reference to what was actually on the ground, all the parties thought not much use could be made of these plans. The mutual and common sense approach taken by all the counsel and the judge can only have been dictated by the fact that areas plotted in their office may not correspond with what is actually on the ground. It was for [p.425] of [1972] 2 GLR 414 this reason that both sides agreed on Mr. Fleku who it was thought would produce a plan which would harmonise both what is on the ground and on the plan. In my opinion, the only plan worthy of serious consideration was Mr. Fleku’s. The learned judge’s failure to consider the other ones can make no impact on this case. I see nothing in this ground of appeal.
The last ground of appeal which appears on the notice of the cross appeal, is the perennial one — “that the judgment is against the weight of evidence.” Counsel did not address any specific arguments to us on this ground. He says he will leave it on the record and invites us to take it as argued. I so regard it but conclude that the credible evidence led in this case fully justified the conclusion at which the learned judge arrived. It follows that inasmuch as the court found that the plaintiff established his title to the land, that conclusion must be affirmed.
That brings me to the plaintiff’s appeal. It is complained by Mr. Campbell that there is no evidence which justifies the conclusion that the defendant erected the building in good faith. On the contrary, there was, says counsel, evidence from which bad faith could be inferred. Attention is drawn to the fact that the defendant had no grant of any sort before she entered the land and the attempts she made to get various documents show that she could not have believed honestly that she had title to the land. Counsel also refers to the undertaking given by the defendant and contends that no hardship could be caused to the defendant if she is made to respect her undertaking and that the balance of justice requires that the plaintiff should have possession of the land on which he gave so much in time, energy and money.
Mr. Arthur, of course, does not agree. He stood firmly on the decision of the former Supreme Court in Wuta-Ofei v. Dove, 18 April 1966, unreported; digested in (1966) C.C. 102. He says the test of good faith there laid down is that it must exist at the date of the original acquisition. Counsel points out that at the time the defendant paid Okai to redeem the land, she could not have believed otherwise but in the validity of the latter’s title. Counsel submits that at the date the defendant first entered the land, it was vacant and she could not have known of any adverse possession. In any case, counsel says the defendant has on the land a substantial building and it would cause hardship and injustice to her, if she were ordered to surrender possession to the plaintiff.
Before giving consideration to the substantive argument, it is, I think, necessary to dispose of a pleading point. The defendant did not herself plead the Land Development (Protection of Purchasers) Act, 1960 (Act 2). The question therefore is, whether the judge was entitled in his discretion to accord her that statutory relief. In Hammond v. Odoi, High Court, 23 October 1967, unreported, I, as trial judge, expressed obiter the view that a judge could, in a deserving case, grant that relief whether or not that relief was sought by way of pleading. Although [p.426] of [1972] 2 GLR 414 differing from me on other points, Azu Crabbe J.A. (as he then was) in Odoi v. Hammond [1971] 2 G.L.R. 375 at p. 392, C.A., also obiter, concurred in that view of the matter on appeal. Since that judgment, I have reflected further over the matter and by and large adhere to that view. The Act was passed to meet a social need and its policy objective ought not to be hemmed in by technical procedural rules. Nevertheless, I think that where the Act was not in fact pleaded, the judge, if he thought the facts justify the invocation of that remedy, should either invite the defendant to plead the Act or at least draw the plaintiff’s attention to its provisions so that the latter may, if he chose, meet it either by evidence or further cross-examination of the defendant. Such a course will accord with the philosophy which informs all our procedural rules, namely, the prevention of surprise to the other side.
The reason why I thought this slight qualification of my earlier view necessary, is demonstrated by the singular circumstances of this case. The case before the trial judge proceeded on the unmistakable basis that if the plaintiff succeeded in his claim for declaration of title, the ancillary reliefs of possession and damages will follow as a matter of course. Indeed counsel for the defendant himself put it in biblical metaphor. He said in his address: “If the plaintiff succeeds on the first relief, then having sought the kingdom of God, all other things shall be added unto it, namely, the other reliefs sought.” It is the more so in this case where the defendant gave an undertaking to the court that she would restore the land to the plaintiff, if the issue of title was decided against her. The issue of title was indeed decided against her but the judge suo motu, granted her relief under Act 2 of 1960 and declined to accord the plaintiff that remedy. I think the invocation of this Act must have come as a complete surprise to the parties; to the plaintiff, it would have been a painful, to the defendant, a pleasant one. I think the course which I suggest, would, if followed, avoid the surprise which both parties must have felt in this case. If, of course, the defendant expressly pleads the Act, it is better still.
Before dealing with the factual merits, I must now turn to what clearly is an issue of law. A court to be able to grant statutory title under Act 2 of 1960, must be satisfied that the defendant erected the building in good faith. Being a defence, the onus of establishing it lies on the defendant. That burden, can of course, be discharged, as in all civil cases, on a balance of probabilities. The learned judge seems to have been alive to this and he reviewed the evidence on this particular issue in some detail. In the end, the judge unable to find affirmatively that good faith was established, concluded that: “I am thus inclined to give her the benefit of the doubt and relieve her of bad faith.” I am satisfied that that approach to the matter was wrong and the conclusion founded on it is vitiated thereby. It is plain from the judge’s conclusion that the defendant failed to satisfy the court that she erected the building in good faith and having thus failed to bring herself within [p.427] of [1972] 2 GLR 414 the four corners of the Act, was not entitled to the remedy provided by that legislation.
The issue of burden apart, the circumstances of this case convey to my mind, a very high degree of probability that the defendant did not erect the building in the honest and reasonable belief that she had title to the land. It is plain that when the defendant first entered on the land in January 1965, she had no grant of any sort. Her evidence that the late E. B. Okai made her an oral grant which she acknowledged in the absence of witnesses is unworthy of credit. At the first opportunity, that is, at the police station, she asserted by implication title from the Korle priest although if her evidence is true, she had a customary grant from Okai in 1958. There is inherently credible evidence that in her presence, an attempt was made by the agents of the Korle stool to persuade the plaintiff to relinquish his claim to the land in return for a bigger land. The plaintiff’s attorney refused. This was in the plaintiff’s lawyer’s premises. She must have left that meeting feeling satisfied that the Korle stool had no valid title to give her. It was after this that she procured a Mr. J. A. Okai to convey the plot to her by a conveyance dated 9 March 1965. The plan attached to the deed and by reference to which the land was described, bears the date 22 March 1965. The reasonable inference from this is, that the date which the deed bears as the date of execution must be false.
There is no indication in this deed that it was made to confirm a prior customary gift made by E. B. Okai in 1958. Yet the defendant again procured the Korle priest to convey the same plot to her by a deed which recites that the sale was made to her in 1960. The deed itself bears the date 6 April 1965. This hole-and corner method of procuring title cannot but leave one in the gravest doubt about her bona fides.
When the fact is recalled that she was building by day and by night, the inference becomes irresistible that she cannot have believed honestly that she had title to the land. I think on the facts, she should have been denied that remedy.
Quite apart from any issues of good faith, I think the defendant has disabled herself from any relief under the Land Development (Protection of Purchasers) Act , 1960. This is because of the undertaking she gave to the court on the basis of which the motion for injunction was withdrawn. The undertaking is in the following words:
“I, Sarah Amerley Amarh, the defendant herein have had the plaintiff’s application for interim injunction and his two affidavits in support of the said application, read and interpreted to me and I fully understand it and its implications. For the reasons given in my affidavit, I am opposed to the plaintiff’s application and I am asking this court to dismiss it on the main ground that the granting of it will interfere with my building programme the costs of which will be incalculable. But, in the event of the plaintiff’s application being dismissed and of the plaintiff succeeding in this suit subsequently, I hereby undertake to pay to the plaintiff herein the full [p.428] of [1972] 2 GLR 414 cost of restoring the land to its former position, such order to be embodied as one of the orders of this court at the conclusion of this case.”
In my judgment, this undertaking given to the court settles the issue of possession in a manner that can admit of no doubt. A litigant who gives an undertaking in these terms contracts herself out of the protection of Act 2 of 1960. In those circumstances, it would be wholly wrong to give her protection against her opponent who on the faith of this, refrained from seeking a relief he might well obtain of the court.
In the course of her evidence, she attempted to wriggle herself out of this undertaking by evidence which suggests that she did not give an undertaking or that she did not know that one was given. She said:
“Some four years ago, an application was brought to court to stop me from building on the land. It was brought by the son of the plaintiff. I attended the court. As far as I was concerned, I was told that the case had gone against him and therefore I should go and continue my building. I have not given any undertaking to the plaintiff in this case.”
The learned judge made no positive finding on this question. In this court, her counsel attempted to whittle down the significance of this “undertaking” by the familiar argument that the undertaking has no jurat and she being illiterate, should not be taken to understand and appreciate a document in the English language. Such a contention ought not to be countenanced by this court. Had this undertaking not been given, there can be little doubt that the court would have felt it right to ensure that the land was preserved in statu quo until the issue of title has been settled. An advocate employed by the defendant, solemnly informed the court that an “undertaking” was given and led the court to consent to the matter being struck out. The implication in her evidence that her counsel made this up without her authority or knowledge must be firmly rejected. It is impossible to see what possible reason a lawyer can have to wish to mislead both the court and his client in the manner suggested by the defendant’s evidence. The independent evidence led by the plaintiff that the defendant carried on her building operations by day and night, tallies with the assertion in her undertaking that an injunction would interfere with her building programme. I think the defendant gave the undertaking fully conversant with its terms and implications. I cannot bring myself to doubt that with her eyes open, she promised not only to give up possession of the land to the plaintiff in the event of the latter’s success on the issue of title, but to restore it to its former position and she should be made to honour that promise. If there ever was a case in which the maxim volenti non fit injuria should apply, it is this case. The truth of the matter, as its seems to me, is that the defendant merely gambled and lost.
Although the learned judge examined this case with great care and transparently endeavoured to hold the scales fairly and evenly between [p.429] of [1972] 2 GLR 414 the parties, on the question whether or not the defendant was entitled to the relief provided by Act 2 of 1960, he slipped and we ought to put him right. Accordingly, I would affirm that part of the judgment which decreed in favour of the plaintiff, title to the land in dispute and also awarded him damages. I would therefore dismiss the defendant’s cross appeal allow the plaintiff’s appeal and set aside that part of the judgment which confers title on the defendant under the Land Development (Protection of Purchasers) Act, 1960 (Act 2). In lieu of that, I would order that the plaintiff do recover from the defendant, I would, however, possession of the land in dispute. In accordance with the undertaking, I would also order that the plaintiff do recover from the defendant, such sums as he may expend in restoring the land to its former position.
JUDGMENT OF BENTSI-ENCHILL J.S.C.
I agree.
JUDGMENT OF KINGSLEY-NYINAH J.A.I also agree.
DECISION
Appeal allowed.
Cross-appeal dismissed.
S.E.K.
