HIGH COURT, ACCRA
Date: 8 OCTOBER 1973
APALOO JA
CASES REFERRED TO
(1) Marbell v. Ashong, High Court, Accra, 16 August 1968, unreported.
(2) Rafat v. Ellis (1954) 14 W.A.C.A. 430.
(3) Ramsden v. Dyson (1866) L.R. 1 H.L. 129; 12 Jur. (N.S.) 506; 14 W.R. 926, H.L.
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(4) Abbey v. Ollennu (1954) 14 W.A.C.A. 567.
(5) Willmott v. Barber (1880) 15 Ch.D. 96; 49 L.J.Ch. 792; 43 L.T. 95; 28 W.R. 911.
NATURE OF PROCEEDINGS
ACTION for, inter alia, a declaration of title and recovery of possession of land on which the defendant had built a house. The facts are sufficiently set out in the judgment of Apaloo J.A. sitting as an additional judge of the High Court.
COUNSEL
Ahenkora for the plaintiff.
Goodhead for the defendant.
JUDGMENT OF APALOO JA
In this action the plaintiff claims against the defendant, a declaration of title, recovery of possession and damages for trespass to a piece of land said to be situate at Lartebiokorshie, the boundaries of which are set out in the writ. There is also a claim for- perpetual injunction.
This is the second action instituted by the plaintiff about this land. The first action was taken by him against one Kwaku Okine in 1963. As will appear presently, it is from this individual that the defendant derives his title. That action was discontinued on 22 December 1970, but the plaintiff was given liberty to bring a fresh action. This suit was brought pursuant to that liberty.
The plaintiff traces his root of title to a grant made to his family — the Okortoshishi family by the James Town stool about 100 years ago. He said that that family remained in possession of that land in 1959, and made an oral customary grant of a portion of that land to him. He said that he entered into possession and in 1960, the self-same family executed a conveyance by way of gift in his favour. He produced it in evidence as exhibit B.
The plaintiff said he erected a zinc shed on a portion of that land in which he kept some building materials. Some time in 1963, he noticed that this shed was destroyed. He reported this to the police and when the latter went with him to the site, he met Kwaku Okine there. Kwaku Okine was helping some workmen to dig a foundation on the land. It was for this reason that he sued him. The writ was taken out on 11 June 1963. On 28 June 1963, the plaintiff obtained against him, an order of interim injunction restraining him, his servants, agents and licensees from dealing with the land until the hearing and determination of the suit.
Unknown to the plaintiff, at the date he took the writ against Okine, the latter had, by deed conveyed the land to the defendant by way of absolute sale for the sum of £G130. That conveyance was dated 10 April 1963, and precedes the writ by about two months. The plaintiff sought against Okine the same reliefs that he seeks against the present defendant. In his statement of claim, he puts the origin of his title in the Okortoshishi family and averred that he was gifted the land by that family. The statement of defence filed by Okine was wholly wanting in
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candour. He merely denied the plaintiff s title but avoided any direct confrontation with the plaintiff by pleading that he was not in possession of that land and could therefore not have been guilty of trespass. He did not aver, as was the truth, that the person who was in possession was in fact his own grantee.
The plaintiff put on notice that not Okine but someone else was in possession of the land, seems to have gone to sleep from June 1963 to May 1970. In that year, he obtained an order from this court to join the defendant. At that date, the building about which he complains had been wholly completed and occupied. This fact is relevant only in relation to the statutory defence which the defendant raises in his amended statement of defence.
The defendant disputes the plaintiff s title and for his part, relies on the conveyance executed in his favour by Kwaku Okine and the latter’s own document of title. This was a deed of gift executed in his favour by S. H. Okine, G. F. O. Cleland, E. K. Allotey and G. K. Danso who conveyed as donors. The said donors in an obscurely drafted conveyance, claim to have derived title from a conveyance stamped as AC 1872/59 of 29 February 1956. No particulars were given of that document and who were the parties thereto. But fortunately for the parties, a judgment (exhibit D) produced in evidence, enables me to identify the parties to that document.
The first issue I have to decide is as between the parties who has shown good title to the plot in question. The burden is of course on the plaintiff. The plaintiff gave what strikes me as satisfactory evidence of his title and he called one of the boundary owners, Madam Helena Mills, whose evidence supports his family’s ownership of the land. He also produced in evidence a judgment delivered by myself on 16 August 1968, i.e. Marbell v. Ashong, High Court, Accra, 16 August 1968, unreported, in which I found for the Okortoshishi family against a person who relied on title obtained from the James Town stool in 1956.
It is clear from that judgment that the defendant’s vendor Okine himself traces his root of title from the document of 1956. The judgment exhibit D shows that the 1956 document was a conveyance by Kofi Akrashie the then occupant of the James Town stool to the self-same four persons who executed the deed of gift in favour of the defendant’s vendor Okine. I held that as that self-same stool made an oral grant of he land to the Okortoshishi family who were in possession over 100 years ago, the stool was not competent to grant a valid title to somebody else in 1956. The land then in dispute is clearly part of the Okortoshishi family land.
Although that judgment does not create estoppel against the present defendant, it shows quite clearly that such title as he obtained through Okine who himself obtained title indirectly through the 1956 grant, cannot avail against the plaintiff s. In my opinion, the plaintiff has shown good title to the land in dispute. The conveyance executed in
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favour of the defendant does not confer on him title to the land. I therefore decide the issue of title in favour of the plaintiff and against the defendant.
That conclusion, prima facie, entitles the plaintiff to succeed in the ancillary reliefs of possession, damages and an injunction. But the defendant resists this by two defences: firstly, he says, the plaintiff is estopped by conduct in sitting by and allowing him to put up a building on the land. The elements of that equitable defence are well known and are clearly stated and applied in such cases as Rafat v. Ellis (1954) 14 W.A.C.A. 430; Ramsden v. Dyvon (1866) L.R. 1 H.L. 129, H.L.; Abbey v. Ollennu (1954) 14 W.A.C.A. 567 and Willmott v. Barber (1880) 15 Ch.D. 96. In the alternative, the defendant relies on the protection accorded him by the Land Development (Protection of Purchasers) Act, 1960 (Act 2).
With regard to the defence of acquiescence, it is clear to me that the defendant cannot succeed and for the simple reason that the plaintiff did not stand by and allow the defendant to build on the land. He asserted his rights promptly when he noticed the trespass on the land. He first reported to the police and when he realised that it was Kwaku Okine who was in trespass, he sued him and obtained an order of interim injunction against him. Okine withheld from him the fact that it was not he who was building but his vendee. It cannot therefore be said that the plaintiff with full knowledge of the defendant’s trespass stood by, or was wilfully passive and thus encouraged the defendant in his expenditure of money in developing the land. In my opinion, the plea of estoppel by acquiescence fails.
As I said, the defendant also invokes section 1 of Act 2 and it was urged on his behalf that he acquired the land in Accra in a prescribed area in 1963 and built on it in good faith and that it would cause hardship and injustice to him if he were ordered to give up possession of the land to the plaintiff. That the land is in the prescribed area is not in dispute. The area prescribed by this legislation appears in the Land Development (Protection of Purchasers) (Accra Prescribed Area) Instrument, 1961 (L.I. 118), made on 19 May 1961, and covers almost the whole of Accra. The plot in dispute which is situate at Lartebiokorshie is clearly within it. That the defendant erected a building on the land is equally not in dispute. What is questioned by the plaintiff is his good faith.
It was submitted that the defendant could not have erected the building in good faith because he did so in spite of the injunction which enjoined him from so doing. It was said the order of injunction was allembracing and enjoins not only Okine himself but his grantees and licensees. At the date the injunction was granted, the defendant was not a party to the action and there is no evidence that it was brought to his notice. On the contrary, the defendant swore that no one informed him about it. But it was said that in all probability, his vendor, Okine would
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have informed him. I think it would be wrong to conclude this question on pure guess work when there is positive evidence to the contrary. The evidence shows up Okine as an unscrupulous man. When the plaintiff sued him, the honest thing to do was to disclose the truth that he had sold the land to the defendant and that it was he who was building. It appeared right to him to suppress this fact. I cannot see any reason why he would wish to suppress it. If he wanted to lull the defendant into a sense of false security that there was no challenge to the title he conveyed to him, he was more likely to withhold knowledge not only of the suit against himself but the order of injunction from the defendant. It may well be that Okine might have thought that if he informed the defendant of this, the latter might rescind the contract and ask for the return of the purchase money. The defendant swore that between November 1963 and late 1964 when the building was in course of construction until its completion, no adverse claim to the land was brought to his notice. I find that the defendant commenced and completed the building operations without any knowledge of an adverse claim or a court order of injunction.
It was also said that the defendant must at least have been put on notice of an adverse claim because there was a zinc shed on the land which he must have destroyed when commencing the foundation. The defendant denied that there was any zinc shed on the land. He said if he had seen such a shed, he would have queried his vendor about it. That strikes me as an inherently credible story. The existence of a shed with cement and other building materials rests on the plaintiff s unsupported assertion alone. I do not find it proved that there was such a shed or at any rate at the date the defendant was first taken on to the land. I accordingly find that before the defendant commenced the building on the land, there was nothing on it to put him on notice of an adverse claim. On the contrary, I find that the land was swampy and vacant. It follows that I must find and I do so find that the defendant reasonably believed that Okine was the owner of the land and that after buying it and obtaining the conveyance (exhibit 2) from him, he built on the land in good faith.
It was next submitted for the plaintiff that the defendant to be protected under the Act must show that an order for possession would cause hardship and injustice to him. It was said hardship must mean some conduct on the part of the plaintiff which would make loss of the land by the defendant unjust to him.
I cannot accept the interpretation of the word “hardship.” The plaintiff s conduct is relevant where the plea of acquiescence is raised against him. It is irrelevant when considering hardship to the defendant. Neither the word “hardship” nor “injustice” is a term of art. As used in the section, I think hardship means an order by the court which the defendant would find hard to bear or which would cause him some suffering. “Injustice,” I think, means an act or conduct which offends against one’s sense of fairness.
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Here, the defendant who was desirous of building a house, was persuaded to buy land which was vacant. He proceeded to develop it without notice of an adverse claim and spent in the process, the enormous sum of 010,000.00. Nine years after developing and occupying the building, the court is asked to order him to relinquish possession to a third person on the ground that the conveyance which he obtained, did not pass valid title to the land to him. The person to whom he is asked to relinquish possession did not spend one farthing on the building nor even in the acquisition of the land. I cannot doubt that an order for possession in these circumstances, would cause hardship and injustice to the defendant. I think this a fit case to grant the defendant the relief which subsection (1) of section 1 of the Land Development (Protection of Purchasers) Act provides. I accordingly declare that the conveyance (exhibit 2) shall be deemed for all purposes to confer valid title to the land on the defendant.
Subsection (2) of the Act empowers me to award some compensation to the plaintiff, if I considered that the conferment of statutory title on the defendant would cause him also hardship and injustice. Although his case of hardship is not as transparent as that of the defendant, yet a person who is deprived of his property by compulsion of law as the plaintiff is being deprived, can point to some hardship and many fairminded persons would think it right to give him some quid pro quo for it. In all the circumstances, I award the plaintiff compensation in the sum of 0500.00.
I therefore give judgment for the plaintiff against the defendant for the sum of 0500.00. I think it just that each party bears his own costs of this litigation. I therefore make no order as to costs.
DECISION
Statutory title conferred on defendant.
Order for recovery of possession by plaintiff refused with 0500.00 compensation.
S.Y.B.-B.
