DIVISION: IN THE SUPREME COURT
DATE: 13TH MAY, 1963
BEFORE: CRAB, OLLENNU AND BLAY JJ.S.C.
CASES REFERRED TO
(1) Conway v. George Wimpey & Co. Ltd. (No. 2) [1951] 2 K.B. 226; [1951] 1 All E.R. 363; [1951] 1
T.L.R. 587, C.A.
(2) Chambers v. Donaldson (1809) 11 East 65; 103 E.R. 928.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Adumua-Bossman J. (as he then was), delivered in the Land Court, Cape
Coast, wherein he reversed a decision of the Cape Coast Municipal Local Court in an action for damages
for trespass to land. The facts are set out in the judgment of Crabbe J.S.C.
COUNSEL
R. J. Hayfron-Benjamin, Snr. for the appellant.
B. J. da Rocha for the respondent.
JUDGMENT OF CRABBE J.S.C.
This is an appeal from the judgment of Adumua-Bossman J. (as he then was) sitting in the Land Court,
Cape Coast, in exercise of its appellate jurisdiction from a decision of the Cape Coast Municipal Local
Court in a suit by which the plaintiff claimed £G50 damages from the defendant for trespass.
[p.428] of [1963] 1 GLR 426
The brief facts of the plaintiff’s case which were not controverted were that the plaintiff, who is the
surviving son of the late Sir Arthur Joseph Eugene Bucknor (deceased), occupies house No. E.64/4,
Jukwa Road, Cape Coast, and the land surrounding it, the property of his late father. His two married
sisters, Mrs. C. E. Agbage and Mrs. D. K. Ayibade with whom he claims to be co-owners of this house,
are normally resident in Nigeria. One afternoon in May 1959 the defendant accompanied by Mr. J. B.
Short, a legal practitioner in Cape Coast, went to the plaintiff’s house and there Mr. Short told the
plaintiff that he had received instructions from a lawyer in Nigeria acting on behalf of his sisters to sell
the premises occupied by him as soon as practicable. The plaintiff maintained that he had an interest in
the house and Mr. Short then departed. Later the plaintiff went to see Mr. Short and asked him to show
the instructions to him, but Mr. Short refused and pointed out to the plaintiff that he had no interest in the
property because he was not a party to a suit involving the property. Some time after the 2nd July, 1959,
the defendant alone went to the premises on the instructions of Mr. Short and asked the permission of the
plaintiff to take snapshots of the house. The plaintiff granted him permission.
Then on 17th July, 1959, Mr. Short himself took the Central Regional Commissioner, Mr. J. E. Hagan, to
the house and showed him round with a view to inducing him to buy it. The plaintiff resented this conduct
of Mr. Short and the following passage from his evidence clearly exemplifies his indignation:
“I then told lawyer Short that he should understand that I live at the place as living in my own father’s house.
I warned him from that day that he should not come there again to the spot nor send anyone to act for him on
the spot. I warned him not to step on the land unless with an order of the court.”
Notwithstanding this stern warning the defendant accompanied by three others went to the premises, and
started to lead these men around the estate. The plaintiff went up to them and asked the defendant what he
wanted on the premises, and upon the defendant replying that he had come there on instructions to sell the
land and premises, the plaintiff demanded to see those instructions. The defendant failed to produce his
instructions or authority, and when he was warned off the land he hurled abuses at, and attempted to fight
with the plaintiff. Consequently the plaintiff instituted an action for trespass against the defendant in the
Cape Coast Municipal Local Court.
It is now trite learning that a person in de facto possession of land in the assumed character of owner and
exercising all the ordinary rights of ownership has a perfectly good title against the whole world except
the rightful or real owner. This is expressed tersely by the well-known maxim potior est conditio
possidentis. A mere stranger, such as the defendant in this case, cannot be heard to any that the plaintiff
whose land he has invaded is not entitled to possession, because against a wrongdoer, possession is a title.
[p.429] of [1963] 1 GLR 426
The defence put up by the defendant to this action of trespass against him is to my mind epitomized in the
following statement made by him when giving evidence under cross-examination, “My going on the land
was no trespass because I went there with the authority of lawyer Short.” In an action of trespass a
defendant may not set up a ius tertii. He may set up a title in himself or show that he acted on the
authority of the real owner, but as Asquith L.J. pointed out in Conway v. George Wimpey & Co., Ltd.
(No. 2)1:
“It is elementary that if A, professedly acting on behalf of B, purports to give me leave to enter B’s land, and
A has no actual authority to do so, I am a trespasser if I act on this permission, none the less so, because I do
not know of A’s want of authority.”
The crucial question to determine in this case, therefore, is whether at the material date when the alleged
trespass was committed, Mr. J. B. Short had any authority to give permission to the defendant to go on
land undoubtedly in the possession of the plaintiff. In some of his answers to questions asked under
cross-examination by the plaintiff Mr. Short disclosed the source from which he derived his authority. He
said:
“The defendant came to your premises on the 14th September, 1959, on my instructions of which I had
informed you. I had authority to go to the premises or send somebody there in view of exhibit 2 which I
commented to you when I first met you on the estate in company of the defendant.”
In order to appreciate the nature and purport of Mr. Short’s so-called authority, therefore, it is necessary
to have a quick glance at exhibit 2 which is reproduced in full as follows:
Fatima Chambers,
28 Harbour Road,
Port Harcourt,
Nigeria,
24th March, 1959.
“Ambrose E. Allagoe,
Barrister at Law,
of Lincoln’s Inn,
Solicitor of the Supreme
Court of Nigeria
Dear Mr. Short,
Mr. E. R. Wiltshire of Sekondi has kindly introduced you to me. I would like to instruct you concerning the
properties of Mrs. Agbaje and Mrs. Dorothy Ajibade (nee Bucknor) inherited from the estate of the late
Barrister Bucknor of Cape Coast.
The two sisters are anxious to get the properties surveyed with a view to sale. The snag is that there is a half
brother of Mrs. Agbaje and Mrs. Ajibade, by name Kofi, who originally was acting as agent of the two
sisters, but who now on account of the fact that the two sisters live in Nigeria with their husbands and far
away from Cape Coast, appears to be helping himself with the properties.
[p.430] of [1963] 1 GLR 426
I would be grateful if you will let me know at your earliest convenience whether you will be willing to accept
the work in which case I shall arrange to send you the necessary documents. You will then also let me know
your fees.
Yours faithfully,
(Sgd.) A. E. Allagoe.
Mr. J. B. Short,
Welben Chambers,
P.O. Box 290,
Cape Coast—Ghana.”
I must confess that I can find nothing in exhibit 2 which conferred an authority, even remotely, on Mr.
Short or anyone else to go on the land in occupation of the plaintiff. In my view exhibit 2 was only an
invitation to Mr. Short to accept instructions to act on behalf of the plaintiff’s half-sisters who, the
plaintiff admitted, were co-owners of the premises, but there is no evidence that at the material date such
instructions had been communicated to Mr. Short.
It would appear that when Mr. Short realised the futility of relying on exhibit 2 in this action for trespass
which the plaintiff had commenced against the defendant he took immediate steps to secure a power of
attorney (exhibit 3) from the plaintiff’s half-sisters in Nigeria. This power of attorney dated the 30th
October, 1959, was obviously prepared ex post facto and it did not in any way ratify or justify the trespass
by the defendant.
The cardinal point at issue in this case, as I have said earlier in this judgment, was whether Mr. Short had
any authority to permit the defendant to go on the plaintiff’s land, and the trial court after a most careful
and an exhaustive analysis of the facts made the following decisive finding, “From the foregoing fact the
court is satisfied that lawyer Short upon whose instructions the defendant committed the alleged trespass
had no legal authority at that time.”
Since the defendant admitted entry upon the premises in possession of the plaintiff the only question for
determination by the Land Court was whether the defendant had any valid or legal authority to disturb or
interfere with the plaintiff’s possession. During the hearing of the appeal the learned judge of the Land
Court interposed with the following question addressed to the plaintiff:
“Per curiam:
The main point is that on your own showing you are claiming as co-owner. That being so, you cannot sue
your co-owners or their agents for coming on the property whilst you are in possession. Can you therefore
justify the judgment of the Municipal Court in your favour?”
To this the plaintiff replied:
“Counsel for the appellant has referred to Mr. Short’s power of attorney but it was after my writ that the
power of attorney was obtained. The appellant did not show me his authority from my sisters.”
[p.431] of [1963] 1 GLR 426
In view of the plaintiff’s insistence on the lack of authority from his sisters it was then the primary duty of
the learned judge of the Land Court to resolve issue whether Mr. Short in fact had authority to act as
agent for the two sisters at the date of the trespass complained of by the plaintiff. Unhappily, the learned
judge went off completely at a tangent and embarked at great length on an examination of the title of the
plaintiff. With very great respect to the learned judge I think he erred because any possession is a legal
possession against a wrongdoer, and the wrongdoer cannot set up the title of a third party to excuse his
trespass unless he claims under or by authority of such person. Thus in Chambers v. Donaldson,2 Bayley
J. said:
“The question is, whether a mere wrongdoer, when sued for a trespass upon the possession of another, has a
right by this mode of pleading to call upon him to set out his title. If the command of the person in whom soil
and freehold is pleaded may be traversed, then no other than the person who has the title to the freehold can
compel the party in possession to show his own title to that possession: but if the command be not
traversable, then every wrongdoer may call on the party in possession to make that disclosure. Trespass is
now understood to be a possessory action; but it must cease to be so, if every wrongdoer could in this manner
oblige the party in possession to set out his title.”
In my view exhibit 2 cannot by any stretch of the imagination be construed as an authority to Mr. Short to
act on behalf of the plaintiff’s sisters.
In this appeal Mr. da Rocha, counsel for the respondent, stated with his usual candour that he did not
support the judgment appealed from so far as it was based on the question of trespass. It is, therefore, not
necessary for me to deal with the learned judge’s views as to title which, to say the least, I find most
unimpressive. For the above reasons I would allow the appeal and set aside the judgment of the Land
Court together with the order as to costs.
JUDGMENT OF OLLENNU J.S.C.
I agree.
JUDGMENT OF BLAY J.S.C.
I also agree.
DECISION
Appeal allowed.
J. D.
