Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA
Date: 27TH FEBRUARY, 1959.
Before: OLLENNU. J.
JUDGMENT OF OLLENNU J.
This is an appeal from a judgment of the Buem-Krachi Native Appeal Court, which upheld a decision of the Buem Native Court “B” given in favour of the plaintiff, but varied an order made by the Native Court “B” for the payment of an amount of £24 10s. Od. to the 3rd defendant.
The main issues in the case are whether the farm in dispute is the property of the plaintiff, and whether the purported sale thereof by the 1st defendant to the 3rd defendant was lawful. These two issues were resolved in favour of the plaintiff by both the native trial-Court and the Native Appeal Court. Counsel for the 3rd defendant has not sought to challenge those two concurrent findings of fact, and their legal consequences.
In this Court it has been urged on behalf of the 3rd defendant that he is entitled to be reimbursed the expenses which he had incurred on improving the farm during the 16 years that it had been in his possession as a result of the wrongful sale to him, and that this Court in the exercise of its equitable jurisdiction should make an order to that effect. He led no evidence, however, to show that he had made improvements on the farm. All that he said was that the farm contained only foodstuffs when he purported to purchase it, and that it is now a cocoa farm. His witness, however, said that there were young cocoa trees in the farm, just beginning to flower, at the time of its purchase. Again, the 3rd defendant did not disclose the mesne profits which he had realised from the farm during the period of his wrongful occupation. There is therefore no evidence that he has suffered any detriment for which equity should be invoked in his aid.
Again, there is nothing to show that the plaintiff has been guilty of any improper conduct to the detriment of the 3rd defendant. On the contrary, his evidence, and that of his only witness (Yevoga Tsekor, the agent who negotiated the purchase of the farm for him), disclosed recklessness on the former’s part in entering into the transaction. Both the 3rd defendant and the agent relied upon representations made to them by the 1st defendant, and by his brother Robert (now deceased) that the farm belonged to the 1st defendant. They took no steps to check those representations. Any loss which the 3rd defendant may have suffered, therefore, is attributable to his own fault, and not to any conduct or act of the plaintiff.
The Native Appeal Court also held that as the 3rd defendant is a non-native of Southern Togoland, and the alleged sale and purchase took place without the previous consent of “the public authority,” the whole transaction was illegal, and therefore null and void. The
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law applicable to this matter in 1939, the date of the transaction, was to be found in Section 3(3)(a) of the Administration (Togoland under British Mandate) Ordinance, now repealed. It read as follows:
“(3) (a) In the case of any laws relating to the transfer of land which are in force in any part of
Togoland under British Mandate under the terms of Article V or Article VI of the Togoland under British Mandate Order in Council 1923, the provisions of any such law shall be construed together with and subject to the provisions of paragraph 2 of Article V. of the British Mandate for Togoland; which paragraph is in the following terms:—
‘No native land may be transferred, except between natives, without the previous consent of the public authorities, and no real rights over native land in favour of non-natives may be created except with the same consent.’
Section 3A(2) of Ordinance N. 15 of 1940, now Section 3 of Cap. 112, repealed and replaced Subsection 3 of Cap. 96 aforesaid.
In the case of Viesa & ors. v. Asinor (14 W.A.C.A. 419), the respondent ‘A’, a native of Southern Togoland, when in financial difficulties, sold lands to the appellant ‘V’ and 4 others, and placed them in possession. The latter occupied and farmed the lands. The transactions were entered into without obtaining the necessary prior consent. Some twenty-five years later, the vendor sued the purchasers for recovery of possession of the said lands, on the grounds that the sale was illegal. He succeeded. The purchasers appealed ultimately to the West African Court of Appeal, where it was argued on their behalf that the vendor was in pari delicto, and that the purchasers ought in equity to be confirmed in their possession against him. In the course of their judgment their lordships said:-
“As the law operates in this case, the appellants are undoubtedly the sufferers. Probably they were ignorant of the Ordinance, and therefore they did not see to it that the requisite prior consent to the sale was obtained. They excite, therefore, considerable sympathy in that, after some twenty-five years of occupation, they were declared to have no interest in the land. But the position is that the contract of sale is prohibited by law for want of the necessary consent. That being so, it is an illegal contract. How then can the appellants insist upon a right of possession of the land by virtue of their occupation? That would be a right co-relative, and co-extensive, with the right to enforce the very contract of sale which is declared void by statute. Equity cannot help them. They may have some other remedy or remedies arising from failure of their agreement, but as to that, issues different from those now before the Court would arise.”
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That, in my opinion, is precisely the case in the present appeal. I do not see how equity can assist the appellant to recover in the present proceedings any loss which he may have suffered. For that reason, both the order of the native trial-court that the plaintiff should pay to the 3rd defendant the sum of £24 10s. Od. to redeem the farm, and that of the Native Appeal Court which varied that order to read that “the 1st defendant to pay the value of £24 10s. Od. to the 3rd defendant herein forthwith to redeem the said farm,” are ultra vires and unenforceable. The right of the plaintiff to recover possession of the farm is automatic, and cannot be made conditional upon payment of the £24 10s. Od. (or any amount) to the 3rd defendant.
DECISION
The appeal is dismissed. But the plaintiff will have only the costs of the record of appeal which is £2 19s. 6d.
