DIVISION: IN THE HIGH COURT, ACCRA
DATE: 7TH NOVEMBER, 1963
BEFORE: AKAINYAH J.
CASES REFERRED TO
(1) Kokomlemle Consolidated Cases, Ashrifi v. Golightly (1951) D.C. (Land) ‘48-’51, 312
(2) In re Mayfair Property Company [1898] 2 Ch. 28; 78 L.T. 302; 14 T.L.R. 336, C.A.
(3) Keates v. Lewis Merthyr Consolidated Collieries Ltd. [1911] A.C. 641; 105 L.T. 450, H.L.
(4) Korley v. Bruce [1962] 1 G.L.R. 7
NATURE OF PROCEEDINGS
ACTION instituted by virtue of the provisions of the Land Development (Protection of Purchasers) Act,
1960 (Act 2), to recover a building erected in good faith on land subsequently adjudged to belong to the
defendant. The facts are set out in the judgment.
COUNSEL
A. W. Acquah for the plaintiff.
Koranteng Addow for the defendant.
JUDGEMENT OF AKAINYAH J.
In this action the case for the plaintiff is that, by a deed of indenture dated the 31st May, 1948, (exhibit
A), a portion of the land in dispute was granted and conveyed to him by the Atukpai stool of Accra. He
went into possession forthwith and found the said land overgrown with weeds. There were no pillars,
stones, sand or cement blocks indicating that someone else was in occupation. When he was ready to
build, the town planning authority told him that he would not be allowed to erect a two-storey building
(which was the type of house he wanted to build) unless he acquired a larger piece of land. As a result, he
approached one Aryitey Quaye, the owner of the adjoining plot, and offered to buy it. Aryitey Quaye
agreed to sell the said plot to the plaintiff. Meanwhile, he permitted the plaintiff to use it and signified his
consent by accepting one bottle of schnapps from him. The plaintiff then commenced to build and
completed the outhouse and the ground floor of the main building in 1951 at a cost of about £G4,000. The
said two plots are the land in dispute.
The plaintiff let the said house to three European army officers at a rent of £G54 a mouth. By a deed of
transfer dated the 27th May, 1952,
[p.406] of [1963] 2 GLR 405
(exhibit B), the said Aryitey Quaye, himself a grantee of the Atukpai stool, duly transferred his interest in the land to the plaintiff with the knowledge and concurrence of the said Atukpai stool, the occupant of
which signed the said deed of transfer as confirming party. In 1952 the defendant’s family, acting by one
W. Sai Annan (the then head of family), instituted an action against the plaintiff for the recovery of
possession of the land. By a judgment of the High Court (Lands Division), Accra, delivered by Jackson J. on the 27th October,
1952, the said W. Sai Annan (the defendant’s predecessor) was granted an order for the recovery of the
land in dispute. On or about the 20th October, 1953, the said W. Sai Annan was put in possession of the
said land, and the plaintiff’s houses, under and by virtue of a writ of possession. On that date, the
plaintiff’s tenants became tenants of the defendant’s family.
Upon a motion made by the plaintiff subsequent to the said judgment, Korsah J. (as he then was) made
the following ruling: “By a judgment of Jackson J., delivered on the 27th October, 1953, it was decreed that the respondent herein
shall recover possession of a certain piece of land described in his writ of summons. By virtue of that
judgment, the respondent herein later applied for a writ of possession which was issued on the 12th October,
1953, and has been duly executed. The said writ of possession which is on a printed form, contained the following words, viz: ‘and premises with appurtenances’; after the word land. It is contended by the applicant herein that by reason of those
words which were not in the said judgment, the respondent has been enabled to take possession of a
building and to do other acts which are not otherwise authorised by the said judgment.
I am not called upon to decide whether those acts are contrary to the spirit and letter of the judgment or in
any way unlawful; the simple issue is that the words ‘and premises with appurtenances’ were not in the
judgment. Having satisfied myself that the said judgment did not contain those words, I am clearly of the
opinion that they should have been deleted from the printed form of writ of possession before submitting
same for the judge’s signature; I therefore accordingly grant this application and order that they should be
deleted therefrom.”
The effect of that ruling is that, the buildings are excluded from the writ of possession. Nevertheless, the
plaintiff could not enjoy his houses because they had gone with the land upon the maxim quicquid
plantatur solo, solo cedit.
Three years ago, Parliament passed the Land Development (Protection of Purchasers) Act, 19601 and
provided a new remedy to cure the mischief for which the old law did not provide. The Land
Development (Protection of Purchasers) (Accra Prescribed Area) Instrument, 19612 made on the 19th
May, 1961, declared the area in dispute a prescribed area for the purposes of the Land Development
(Protection of Purchasers) Act, 1960.
[p.407] of [1963] 2 GLR 405
By virtue of the provisions of the said Act, the plaintiff has brought this action claiming for:
“(a) An order based on Act 2 of 1960. Setting aside the order for possession made in favour of the
defendant on the 27th October, 1952, in suit No. 38/1952 by Jackson J. in respect of the land
hereinafter described.
(b) Declaring the plaintiff the owner of all that piece or parcel of land situate lying and being at
Kokomlemle, Accra, and bounded on the north-east by property belonging to the Atukpai stool
measuring 100 feet more or less on the south-west by property belonging to Aryeetey measuring 100
feet more or less on the south-east by a proposed road measuring 210 feet more or less and on the
north-west by the property of the Atukpai stool measuring 210 feet more or less and conveyed to the
plaintiff per conveyance dated the 31st May, 1948, and made between Nii Tettey Gbeke II and the plaintiff and registered in the Deeds Registry as No. 217/1951 and conveyance dated the 27th May, 1952, and made between Aryitey Quaye and the plaintiff and stamped as No. 2558/52.” The provisions of the Land Development (Protection of Purchasers) Act, 1960 which are relevant to this
case read as follows:
[His lordship here read the provisions of section 2 (1) of the Act as set out in the headnote and continued:]
The plaintiff admitted that when he was building his house, he received a letter dated the 30th June, 1948,
(exhibit 4) from the head of the defendant’s Osu Tetteh family. It reads as follows:
“Dear Sir,
It has come to my notice that you have assembled building materials on our family land at Mamobi Djawna
and I hereby give you notice to quit and remove the said materials.
The land is part of a larger area of land which is the property of Osu Tetteh family and you have to comply
with the terms of this notice within one week from the date hereof; if not, legal proceedings will be taken
against you for damages.”
In his reply dated the 3rd July, 1948, (exhibit 5), the plaintiff pointed out that, a piece of land situate at
North Kokomlemle had been granted to him by the Atukpais, the owners of the said land, and that further
enquiries might be made from the Atukpai stool which was interested in other proceedings in respect of
the same piece of land. About that time, the Ga stool, the Gbese stool and the Korle stool through which
the defendant’s family claimed title instituted proceedings successfully against the Atukpai stool for a
declaration of title to the Kokomlemle lands of which the land in dispute forms part.
Prior to the year 1952 when Jackson J. delivered judgment in what is now known as the Kokomlemle
Consolidated Cases, Ashrifi v. Golightly3 title to the Kokomlemle lands seemed to have been claimed by
several stools and families upon the bare assertion of ownership; and grants were made to a number of
individuals each of whom relied entirely upon his grantor’s word. It is not denied that in the scramble, the
Atukpai stool
[p.408] of [1963] 2 GLR 405
made grants to scores of people including the plaintiff and was reputed to be the owner of the lands so
granted. After the judgment the said W. Sai Annan, head of the victorious Osu Tetteh family, sued the
plaintiff for the recovery of possession of the land, the subject-matter of this suit.
In the course of his judgment (exhibit D) Jackson J. said,
“The Atukpai family are estopped from making any claim to ownership of this area of land claimed by the
plaintiff, and the defendant Ankrah, claiming under that stool is similarly estopped. The defendant’s right to
occupy his land was challenged immediately his trespass became evident. He continued to build at his own
risk, like many scores of others, speculating upon the result of these actions to which I have referred earlier.
No equitable doctrine is available to him by way of defence. He has gambled and lost. He can now only seek
the goodwill of the plaintiff’s family …”
After stating the predicament in which the defendant Ankrah (the plaintiff herein) had been placed by the
law with its maxims, rules and doctrines of notice, the learned judge, viewing the matter subjectively felt
the hardship which the possession order made by him would certainly cause and expressed an opinion
that Ankrah might seek the goodwill of the Osu Tetteh family for relief. I have referred to the judgment
and the appeal to the conscience of the family suggested by the learned judge because, in my view, they
stand out in strong relief because, but for the doctrine of notice, Ankrah could have pleaded successfully,
the equitable defence of bona fide purchaser for value. Under the 1960 Act “good faith” is now a cause of
action.
In re Mayfair Property Company4 Lindley M.R. said:
“In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s
Case (1584) Co. 3 Rep. 7a, to consider how the law stood when the statute to be construed was passed, what
the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that
mischief”
In Keates v. Lewis Merthyr Consolidated Collieries, Ltd.5 Lord Atkinson said:
“In the construction of a statute it is, of course, at all times, and under all circumstances permissible to have
regard to the state of things existing at the time the statute was passed, and to the evils which, as appears
from its provisions, it was designed to remedy.”
Learned counsel for the defendant has submitted inter alia:
“(a) That the mischief that the Act seemed to cure is to restore a building to the builder in certain
circumstances when the person built on another’s land in such circumstances that, in the first instance,
it was inequitable to take it away from him. Such circumstance may be in a cause in which a person
built on the land of another when the other person was guilty of acquiescence.
[p.409] of [1963] 2 GLR 405
(b) That the meaning of “good faith” is guiltlessness, that is, as far as equity is concerned, doing
something which equity will not frown upon and also not doing something recklessly.
(c) That the plaintiff did not build in good faith so his case is not one which the Act should be invoked
for the restoration of his house.”
Counsel cited Korley v. Bruce,6 and contended that it contained perfect examples of what constitutes
“good faith” and adopted them. Counsel did not pin-point or specify any particular example which, in his
view, is relevant. I have read that judgment and in my view, only one of the examples given by Ollennu J.
is nearly like the instant case; and that is7:
“Again where A claimed title to land from one vendor, and B claimed title to the same land from a different
vendor, each of the vendors appearing to have a prima facie right to convey, and B builds on the land relying
upon the prima facie right of his vendor, and later A is adjudged to be the owner of the land, the act of B in
building on the land would be in good faith, and he could invoke the aid of the Act.”
I am also of the opinion that that example reflects the spirit of the Land Development (Protection of
Purchasers) Act, 1960. With the necessary changes, i.e., when the names of the parties are substituted for
the hypothetical A. and B. the example would read like this:
“Again where the Osu Tetteh family (the defendant herein) claimed title to land from the Korle stool and
Ankrah (the plaintiff herein) claimed title to the same land from the Atukpai stool, each of the stools
(vendors) appearing to have a prima facie right to convey, and Ankrah builds on the land relying upon the
prima facie right of his vendor, and later the Osu Tetteh family is adjudged to be the owner of the land, the
act of Ankrah in building on the land would be in good faith and he could invoke the aid of the Act.”
With respect to learned counsel, I do not accept his contention that the plaintiff acted recklessly and did
not build in good faith, because he cannot approbate and reprobate. He is, in effect, saying that the
defendant is entitled to retain the land and the house because, in the first instance, the plaintiff acted
recklessly and cannot invoke the aid of the Act. In February 1957, when the plaintiff consulted counsel in
connection with the same subject-matter of this action, and handed a copy of the ruling of Korsah J. (as he
then was) to him, Mr. Koranteng Addow, as solicitor for Ankrah, wrote two letters to the head of the
defendant’s family, for whom he is now appearing in this action. In one of the said letters dated the 20th
February, 1957, (exhibit G) counsel addressed the said head of the defendant’s family as follows:
“Dear Sir,
I am instructed by Mr. P. O. Ankrah to write to you and say that it has come to his notice that in
contravention to the judgment of Korsah J. (as he then was) you have entered his house and let it to one Mr.
S. N. Addo.
I am to say that unless you refrain from these unlawful acts he will have no choice but institute contempt
proceedings against you.”
[p.410] of [1963] 2 GLR 405
When it became evident that Mr. Koranteng Addow had acted for the plaintiff at one time in connection
with the same subject-matter of this action, I explained the legal position and the consequences to the
defendant and invited his comments. He thanked me and asked for an adjournment to consult his family
so as to decide whether or not Mr. Koranteng Addow should retire from the case. I readily granted the
adjournment. On the next day, both the defendant himself and counsel announced in court that the family
had decided in favour of retaining Mr. Koranteng Addow in the case. The facts upon which counsel is
now submitting that the plaintiff acted mala fides existed at the time when he wrote exhibit G and
contended that the possession of the plaintiff’s house by the defendant was both unlawful and
contemptuous of the court. I think, he cannot now be heard to say something to the contrary.
Apart from the defendant’s letter (exhibit 4) there is no evidence that the defendant’s family made any
attempt to stop the plaintiff from continuing to build. They did not sue him within a week as they
threatened to do in exhibit 4, or within a reasonable time thereafter; nor did they apply for an order of
interim injunction to restrain him. They had not then been adjudged owners of the land by any court.
Their claim to the land then rested merely upon the reputed right of the Korle stool and that of their own
Osu Tetteh family to convey; in the same way, as the plaintiff relied upon the reputed right of the Atukpai
stool to convey the land. They gave the plaintiff the impression that his assertion that the land was granted
and conveyed to him by the Atukpai stool, the owners, was accepted by them. In such circumstances, it
cannot reasonably be said that the plaintiff acted recklessly, or in bad faith when he built his house on the
land. Under the old law, “good faith” simpliciter was not a defence. It must be without notice; therefore,
as was pointed out by Jackson J. no equitable doctrine was available to the plaintiff (then the defendant)
by way of defence.
The plaintiff’s evidence is substantially corroborated by that of Ashalley Okoe (a mutual friend of the
parties) and James Tawiah Kotey (a member of the defendant’s family). Both these witnesses were
emphatic that the defendant’s family promised to restore the plaintiff’s land to him upon the termination
of the action which the defendant had instituted against W. Sai Annan. I reject as untrue the evidence of
the defendant that representations were made to the plaintiff. I find as a fact that the promise was made
and the sum of £G20 paid by the plaintiff was received by the family.
There is no evidence that the defendants have spent any sum of money to improve the plaintiff’s house
since it came into their possession. On the contrary, there is evidence that they have collected rent of over
£G2,000 from it. This unjust enrichment is the mischief or evil for which the law, as it stood prior to the
passing of the Act, failed to provide a remedy.
Counsel for the defendant has again taken the point that the trial is a nullity on the grounds of lack of
jurisdiction because, the writ was issued after the period of limitation imposed by the Act. On the 11th
February, 1963, I ruled that the concealed fraud of the defendant prevented time from
[p.411] of [1963] 2 GLR 405
running against the plaintiff and held that the action was not statute barred. Having heard the whole of the
evidence, I am still of the opinion that the defendant’s promise or representations made to the plaintiff
were meant to be believed and acted upon by the plaintiff, and he did in fact believe that his land would
be restored to him and that there was no need to institute any action. I hold therefore that the defendant is
guilty of concealed fraud; consequently the action is not statute barred. It must not be forgotten that when
considering the conduct and reactions of Ghanaians in matters affecting land, you have to consider the
Ghanaian way of life. In customary law pacification is a common feature. Like equity, it is the remedy
available to a tortfeasor for relief against forfeiture, hardship and other unpleasant incidents arising out of
his tortious act. He may, either before or after he has been adjudged guilty of a wrongful act, render
apology through some influential elders or friends to the person wronged, accompanied by rum or money
or both, or a live sheep and words of remorse and supplication. As the custom of pacification is performed
in the presence of influential persons, it is invariably accepted and the matter is amicably settled on
reasonable terms. It is a principle of customary law founded on ordinary good sense, and it reflects the
good nature and the sense of fairplay of Ghanaians.
I am satisfied that that is the sort of thing the plaintiff attempted to do when he approached the
defendant’s family with a bottle of schnapps and begged them to restore his land to him; and that, being
in the position of a supplicant, he acted wisely and properly by not going to court when the promise was
current and subsisting. He had no reason to believe that after the period of limitation has elapsed, the
defendant would attempt to resile from his unequivocal promise to restore the land to him.
Learned counsel also submitted that the land covered by the deed of transfer (exhibit B) does not come
within the Act. That point was not pleaded in the statement of defence. Both in the statement of claim and
in his evidence, the plaintiff made it quite clear that the two plots in exhibits A and B constitute the land
in dispute. I accept the plaintiff’s uncontradicted evidence that, but for the other piece of land, he would
not have been allowed to build a two-storey house. I hold therefore that the two plots constitute only one
plot, the subject-matter of the suit herein.
Upon a careful consideration of the provisions of the Act, I construe the words “in good faith” which
appear in section 2 (1) (b) of the Act to mean “in the honest and reasonable belief that he had title.” I am
satisfied that in all the circumstances, the plaintiff built his house in the honest and reasonable belief that
he had title; therefore he built in good faith. If I were to hold that notice vitiates good faith, I would defeat
the object of the Act. Section 2 subsections (2) and (3) read as follows:
“(2) If the court considers that the making of the possession order caused hardship and injustice to the
person against whom it was made, the court may make an order setting aside the possession order and
providing that the conveyance taken by the purchaser shall be deemed for all purposes to have
operated to confer on him the title to the land:
[p.412] of [1963] 2 GLR 405
Provided that an order under this subsection shall not be taken to render unlawful anything done in
the period before the making of the order or to found a claim for mesne profits or other compensation
respect of occupation during that period.
(3) Where an order is made under the preceding subsection and the court considers that the order would
by itself cause hardship and injustice to any person, the court may make a further order requiring the
person in whose favour the order under the preceding subsection is made to pay to that person a sum
of money by way of compensation:
Provided that the aggregate of any sums ordered to be paid under this subsection shall not exceed an amount
equal to the aggregate of:
(a) twice the value of the land at the date of the purported conveyance to the purchaser; and
(b) the value at the date when the order under this subsection is made of any improvements carried out on
the land since the making of the possession order.”
In the result I hold that: (a) The plaintiff took two conveyances of the land in dispute on dates after the
31st December, 1944, and before the 19th May, 1961, the date on which the area became a prescribed
area. (b) The lands conveyed to him are situate within the Accra prescribed area. (c) He, in good faith,
erected a £G4,000 house and outhouse on the land. (d) A possession order was made against him in
proceedings which were finally disposed of at the Land Court on the 27th October, 1952, before the date
(19th May, 1961) on which the area became prescribed. I consider that the possession order made by
Jackson J. on the 27th October, 1952, caused hardship and injustice to the plaintiff, therefore, I hereby set
aside the said order and I order that the deeds of conveyance exhibits A and B taken by the plaintiff shall
be deemed for all purposes to have operated to confer on him the title to the land in dispute and declare
the plaintiff the owner of the said land.
I do not consider that the order which I have made will by itself cause hardship and injustice to the
defendant because no evidence was led to show that he has spent any sum of money to improve the land
or the buildings thereon. There is evidence that the defendant and his family have collected rent from the
house to the value of £G2,000 or more. I will not therefore make an order requiring the plaintiff to pay
any sum of money to the defendant.
In all the circumstances of the case I am of the opinion that it is just and proper to award substantial costs
in favour of the plaintiff which are assessed at 500 guineas inclusive of 200 guineas counsel’s costs.
DECISION
Judgment for the plaintiff.
K. T.
