DOVE v. WUTA-OFEI [1966] GLR 299

Division: SUPREME COURT

Date: 18 APRIL 1966

Before: SARKODEE-ADOO C.J., APALOO AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Aryee v. Adofoley (1951) 13 W.A.C.A. 161.

(2) Akyirefie v. Paramount Stool of Breman-Esiam (1951) 13 W.A.C.A. 331.

(3) England v. Palmer (1955) 14 W.A.C.A. 659.

(4) Ababio IV v. Quartey (1916) P.C. ‘74-’28, 40.

(5) Seklin v. Little (1890) 6 T.L.R. 366.

NATURE OF PROCEEDINGS

APPEAL from the decision of the High Court giving judgment for the plaintiff in an action for recovery of possession brought in pursuance of the provisions of the Land Development (Protection of Purchasers) Act, 1960. The facts are sufficiently set out in the judgment of the court.

COUNSEL

B. J. da Rocha for the appellant.

William Ofori-Atta for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

This is an appeal from the judgment of Akainyah J. (as he then was) delivered on 10 December 1962, in favour of the plaintiff-respondent (hereinafter referred to as plaintiff). The plaintiff’s claim against the defendant-appellant (hereinafter referred to as the defendant) is as follows:

“(1) An order of the court under the Land Development (Protection of Purchasers) Act, 1960 (Act 2), setting aside the order for possession made by the Land Court, Accra, (van Lare J.) dated 2 September 1955, and confirmed by the judgment of the West African Court of Appeal dated 29 November 1956, and by the Judicial Committee of the Privy Council dated 24 July 1961, in favour of the defendant herein against the plaintiff herein in respect of the property described in the schedule hereunder.

(2) A consequential order declaring the plaintiff the owner of the said property.”

The schedule referred to states as follows:

“All that piece or parcel of land together with the buildings thereon situate lying and being at Christiansborg, Accra, and bounded on the north by land belonging to Eva Buckman (sometimes erroneously reputed to belong to J. B. Danquah) measuring 205 feet more or less, on the east by Osu stool land measuring 150 feet more or less and on the west by Cantonments Road and measuring 160 feet more or less.” [p.302] of [1966] GLR 299

As the wording of the present claim indicates, the plaintiff lost to the defendant, then the plaintiff, in a previous action involving the same land the subject-matter herein. In that case the trial court, presided over by van Lare J. (as he then was), gave judgment for the defendant on her claims for (a) declaration of title, (b) recovery of possession and (c) perpetual injunction.

On appeal to the West African Court of Appeal, however, the judgment obtained for the declaration of title was set aside, leaving that for the recovery of possession and injunction, against which the plaintiff unsuccessfully appealed to the Judicial Committee of the Privy Council.

The setting aside of the declaration of title, I should like to observe, is not of material consequence to the present proceedings, as by the nature or effect of the aforementioned judgments, it was made perfectly clear that the plaintiff, as he is entitled to do, brought the present action under the Land Development (Protection of Purchasers) Act, 1960,1 because, it is not denied that he had erected buildings on the land in respect of which the order for possession now sought to be set aside, was made. The Act in question is designed in certain circumstances to protect purchasers of land, and their successors, whose titles are found to be defective after a building has been erected on the land.

The relevant provisions of the Act in question read as follows: [His lordship here read section 2 which is set out in the headnote and continued:]

The trial judge in an exhaustive and carefully considered judgment (in which he set out and dealt with the relevant provisions of the Act), expressed the view that what mattered (having regard to the Act), is the question of good faith which he interpreted to mean “honest and reasonable belief that he [the plaintiff] had title.” He then went on:

“In my view, it is only when the words are so construed that effect can be given to the Act. Any interpretation to the contrary, would defeat its object. Taking into consideration the surrounding circumstances and the actions of the plaintiff from the moment he was informed that the land was vested in the Crown up to the time that exhibit H (deed of release) was executed, I am satisfied that he acted honestly and in reasonable belief that his only opponent was the Governor, and by the release of the land to his vendor and the execution of exhibit H, he honestly and reasonably believed that his title had become [p.303] of [1966] GLR 299 indefeasible. I hold that he, in such honest and reasonable belief that he had title, built the house on the land, therefore he built in good faith. Learned counsel’s contention that the plaintiff acted recklessly is not borne out by the undisputed facts.”

Holding that the order for possession made by van Lare J. (as he then was) on 2 September 1955 caused hardship and injustice to the plaintiff, the learned judge set it aside, and ordered that the conveyance to the plaintiff, should be deemed for all purposes to have operated to confer on the plaintiff title to the land, and therefore declared him the owner thereof.

Continuing, the learned judge said that he did not think that the order made by him would cause any hardship and injustice to the defendant, for she had not proved that she had spent any money on the land or on the buildings erected thereon, and ended up that part of his judgment as follows: “There is uncontradicted evidence that she [referring to the defendant] has enjoyed the benefit of a £G7,000 house since 2 September 1955, when the order for possession was made in her favour. I will therefore make no order requiring the plaintiff to pay any sum of money to her.”

The issue raised on appeal to this court seems to me to be the same as was before the trial court. This is, whether the plaintiff in good faith built on the land in question. Learned counsel for the defendant in his arguments before the court, urged that in considering the issue of good faith, a distinction should be made between the plaintiff’s conduct at the time he acquired his title and when he started to build. This is, because, according to counsel for the defendant, when a person acts under the guise of good faith and his title is challenged he could not be said to be acting as such. This submission is based on the ground that when the plaintiff was seen interfering with the land, the defendant by her solicitor wrote (exhibit 3) to warn him, which warning he ignored, and continued to build on the land even after an action had been instituted against him.

The plaintiff also resisted an application made by the defendant for an interim injunction during the pendency of the previous action before the native court. In his affidavit, opposing that application, the plaintiff is said to have stated that the erection of a building on an empty land rather increased the value of the land and did not constitute a trespass for which an interim injunction could be sought. Counsel also referred to paragraph (9) of the affidavit in question [p.304] of [1966] GLR 299 wherein the plaintiff alleged that “his ownership of the land was unchallengeable and had evidence to prove that the defendant’s document was valueless.” And finally to exhibit P, a letter the plaintiff wrote to the defendant complaining of the defendant’s interference with his building operations on the land, in which the plaintiff warned her that if he successfully defended his title to the land against her, he would claim substantial damages from her.

All these read together, counsel contended, show that the plaintiff did not build in good faith. As to the finding that the plaintiff did not act in a reckless manner but acted cautiously and wisely, counsel submitted, is not borne out by the evidence. It now remains to be seen from the circumstances of the case as will follow hereafter, whether the criticisms levelled against the learned judge’s judgment contain any substance worthy of consideration in favour of the defendant.

It is common knowledge that the Land Development (Protection of Purchasers) Act, 1960, does not contain a definition of what is meant by the words “good faith,” but it appears from the arguments of learned counsel for the parties, that both accept the learned judge’s interpretation. This is so, because, in opening his arguments, counsel for the defendant posed the following questions: “Did the plaintiff build in good faith?” “Did he act in a reasonable and honest belief ?” I also have no reason to disagree with that interpretation, for a look at the Dictionary of English Law by Earl Jowitt (1959 ed.) at p. 870 shows that the definition given there of the word “good faith” is that: “A thing is deemed to be done in good faith if it is done honestly, whether or not it is done negligently.” Again in Stroud’s Judicial Dictionary (3rd ed.), Vol. 2 at p. 1240, it is stated that the words “`In good faith’ as contained in section 46 (3) of the Bankruptcy Act, 1883, would seem to mean innocent of the knowledge, and the means of knowledge, that there is an adverse bankruptcy (Lucas v. Dicker, 6 Q.B.D. 84).”

What then are the facts and circumstances of this case upon which the issue raised was determined? According to the plaintiff, some time in 1947, he obtained a grant of land containing two building plots from the Osu Alata stool. About the same time, his wife also obtained from that stool a plot, apparently contiguous to his land. When the two deeds (exhibits A and B) executed in their favour by the Osu Alata Chief, Nii Kwabena Bonne III, in respect of the grants so made were submitted to be stamped for purposes of registration, the plaintiff heard for the first time that the lands therein referred to were Crown lands. The information was contained in a

[p.305] of [1966] GLR 299 letter written to him by the Commissioner of Stamps as follows (exhibit D):

“No. D. 1/38 SF. 1

The District Treasury

Accra.

10th February, 1947.

Sir,

Documents Nos. 314/47 & 3144/47—Deeds of Gift between Nii Kwabena Bonne III and Mr. and Mrs. R. B. Wuta-Ofei

I have the honour to return herewith the above deeds submitted by you for stamping, and to inform you that the Ag. Commissioner of Lands advises that the lands referred to in the deeds are Crown lands and that no interest in or title over those lands can pass by virtue of these deeds. 2. If you want to pursue the matter further I advise you to take up the question direct with the Ag. Commissioner of Lands in consultation with the grantor.

I have the honour to be,

Sir,

Your obedient Servant

(Sgd). ? ? ?

Commissioner of Stamps

R. B. Wuta-Ofei, Esquire,

City Press Limited,

P.O. Box 217,

Accra.”

Round about that time, the plaintiff received from his grantor the following letter (exhibit C): “Nii Kwabena Bonne III

Osu Alata Mantse and Oyokohene of

Techiman, Ashanti

Telephone Nos. 406 & 337. P. O. Box 218

Ref. No. 19/NB/47. Accra, Gold Coast,

West Africa.

13th February, 1947.

My Good Friend,

I have discovered that the land granted to you is still Government property according to the lease of late Nii Bonne. The Land Commissioner has just told me that therefore it could not [p.306] of [1966] GLR 299 be passed. You are to hold your document as I am still negotiating with the Government for release of the land so to make your document valid.

I am sorry for the delay.

Your Good Friend

(Sgd.) Kwabena Bonne III

Osu Alata Mantse

R. Ben Wuta-Ofei,

P.O. Box 217,

Accra.”

In consequence of the contents of exhibit D, the plaintiff says he applied for a copy of the deed of conveyance by which, according to the Commissioner of Stamps the lands in question became vested in the Crown. On receipt of this deed (exhibit E), he perused it and found that the Osu Alata stool and two other quarter chiefs of Osu, namely, Anahor and Ashanti Blohum, had together conveyed other lands including those in dispute to the then Governor of the Gold Coast. Exhibit E is dated 24 September 1939. But the matter did not end there; for as a result of the assurance given him by his grantor in exhibit C, the plaintiff says he received yet another letter, exhibit J, from his grantor, paragraphs (1 and 3) of which read as follows: “We are now glad to inform you that the Government has released the land to my stool and you are accordingly to stamp the old document dated 1st July 1947 at once …

The Stamp Commissioner informed me yesterday that he has waived the penalty as no fault of ours. This letter makes your document valid from today’s date and I am accordingly reverting the plot to your possession.”

The veracity of the contents of this letter (exhibit J) was checked up with the Lands Department by the plaintiff and found to be true, as a result of a deed of release (exhibit H), executed by the Governor in favour of the three quarter chiefs who were grantors in the deed of conveyance, exhibit E. Following the release of the land in 1948, the plaintiff says that he erected thereon three buildings costing £7,000. It appears from the evidence that the buildings stand on his and the wife’s plots as it is without doubt, that their interests in the lands are bound up.

It was in the course of the construction of the buildings that, according to the plaintiff, his title to the land was challenged by the defendant for the first time, in a letter (exhibit 3) written to him by the defendant’s solicitor, in which it was stated that the defendant

[p.307] of [1966] GLR 299 had been granted that land by the Osu stool, and that the deed in respect of it had been duly stamped and registered.

To this, the plaintiff promptly reacted as evidenced by a reply (exhibit O) which he sent to the defendant’s solicitor. In it, not only did he assert claim to the land as a grant from the Osu Alata stool, but he also denied that the defendant had any land in the area. The plaintiff went a step further to point out that not quite long before the receipt of exhibit 3, the defendant had approached the plaintiff’s grantor to convey to her the same piece or parcel of land. Such an allegation so strongly made against the defendant quite naturally called for a denial, if the defendant or her solicitor knew it was untrue, but nothing of the sort was done. Instead, an action was subsequently instituted by the defendant the result of which was stated earlier in this judgment.

In the light of the circumstances recounted herein, it is my considered view, as was the view of the learned judge, that apart from the Governor of the Gold Coast, the plaintiff was innocent of any other adverse claim to the land in question until the receipt of exhibit 3. This was after the foundation had been dug long ago, and the construction of the actual buildings was in progress.

With the release of the lands to his grantor and the other quarter chiefs—Anahor and Ashanti Blohum—the plaintiff, no doubt, reasonably and honestly believed that he was entitled to build on the land granted to him and so went ahead with it. There was nothing on the land (says the plaintiff) when he entered upon it, to arouse his suspicion that there was anybody in possession of same. The defendant’s evidence that there were four pillars with her initials “M.D.” thereon placed at the four corners of the land, was not supported by the two witnesses she called (that is, her mother, the alleged caretaker of the land, and her former husband, the late Dr. Danquah). It seems to me therefore, that the plaintiff’s version on this point is the more probable story of the two. This opinion I hold is strengthened by the view expressed in the opinion of the Privy Council that the defendant’s evidence of possession on which she relied in the earlier case was exiguous. Had that case been fought out on the present issue and the law as it now stands, i.e. under Act 2, it seems very unlikely that the courts would have found for the defendant as they did.

It was further argued for the defendant that the plaintiff knew or ought to have known of the existence of the conveyance by the Osu stool to the Governor, and also the deed of release by the latter to the former, i.e. exhibits 9 and 10, respectively, but I find nothing from the evidence which supports that submission. It being clear on the face of these documents that neither the plaintiff nor his grantor [p.308] of [1966] GLR 299 was a party to any of them, the burden was upon the defendant to prove the plaintiff’s knowledge or means of knowledge of their existence, but this she failed to do. There was likewise nothing on the face of the letter to the plaintiff from the Lands Department or the Commissioner of Stamps from which any inference to that effect could be drawn.

The fact that the plaintiff, after receipt of the defendant’s solicitor’s letter (exhibit 3), continued his building operations to completion, makes no difference at all. It did not, in my opinion, alter the honest and reasonable belief the plaintiff had when he commenced the building operations until the receipt of exhibit 3; because, in his reply thereto, the allegation made against the defendant that she had approached the plaintiff’s grantor to convey to her the same piece of land, stood unchallenged. As silence, they say, means consent, the situation which was created by the defendant’s failure to deny that allegation, rather strengthened the plaintiff’s belief that he was entitled to proceed with the building on the land. True it is, that the defendant subsequently took an action in the native court against the plaintiff, but this was not until after the expiration of about a month from the receipt of exhibit 3. At that time, I think, it is right to assume that the buildings must have reached an advanced stage, in view of the plaintiff’s evidence that the foundations were being carried out with money and materials obtained from a trading firm. Therefore, even up to that stage (that is, up to the time that the plaintiff was sued), it cannot be disputed that under the Land Development (Protection of Purchasers) Act, 1960, s. 4 (2), some right had already accrued to the plaintiff which would, in any event, have entitled him to the relief he claims in these proceedings. Section 4 (2) provides that, “For the purposes of this Act a person shall be deemed to have erected a building if he has carried out the greater part of the work required for the erection thereof.” I interpret the above to mean that to entitle one to a relief under the Act, the erection of the building need not necessarily be completed before the action for relief can be brought.

Reference was also made to an application for an interim injunction in the native court, which counsel contended, was resisted by the plaintiff in such a manner which evinces the absence of good faith on the part of the plaintiff. To that submission, I must say that quite apart from the belated time at which that application was made (about eight months after the institution of the action), the plaintiff’s affidavit sworn in opposition thereto, read as a whole, hardly shows absence of good faith on the part of the plaintiff. All that the affidavit was intended to convey or explain to the native court, was that the buildings had been erected on a vacant plot granted to the plaintiff [p.309] of [1966] GLR 299 at a time when no one else was in possession thereof. Furthermore, that the erection had been completed, and that he was in occupation, with the result that it would be inequitable to grant the order sought by the applicant.

There is no doubt that the answer to the question as to whether a purchaser or a person claiming through him has in good faith erected a building under the Act, will necessarily vary with the circumstances of each case. In the instant case, however, for the reasons given, I am in agreement with learned counsel for the plaintiff, that all throughout, it is made perfectly clear that the plaintiff in good faith, erected the buildings on the land in dispute. The benefit of these buildings, as rightly pointed out by the learned judge, has been enjoyed by the defendant over the past ten years or so, since the order for possession was made in her favour against the plaintiff on 2 September 1955. It is also clear, as found by the learned judge, that there is not a shred of evidence from the defendant about any expenses incurred by her, either on the buildings or the land, since that order was made.

It appears to me, therefore, that no hardship and injustice would be suffered by the defendant by the learned judge’s refusal to make any order for compensation in her favour (in terms of the Act), following his setting aside the order for possession made on 2 September 1955.

The other submission made by counsel that the plaintiff’s case should fail on the ground that there was no evidence as to how he came by exhibit B (the conveyance to his wife) seems to overlook the nature of the plaintiff’s claim, because the order made in the earlier case wherein exhibit B was tendered as an exhibit, affected the land covered by that deed. In the present case, just as in the earlier one, the evidence makes it quite clear that the interests of the plaintiff and the wife are bound up together; hence the buildings stand on the plots of the two, the materials and money for the erection of which, were obtained by them jointly under one deed of mortgage.

In all the circumstances therefore, I am of the opinion that the judgment appealed from is sound and unimpeachable. I would accordingly dismiss this appeal as being devoid of any merit.

JUDGMENT OF APALOO J.S.C.

This is an appeal from the judgment of the High Court which on 10 December 1962, conferred, what I would call statutory title on the respondent (hereinafter referred to as the plaintiff) to a piece of land fully described in the writ.

The main question which falls for determination on this, appeal, is whether on the facts which the learned trial judge found, he was

[p.310] of [1966] GLR 299 right in according to the plaintiff the relief provided by the Land Development (Protection of Purchasers) Act, 1960. It therefore becomes necessary to set out the facts at some length.

It appears that both the plaintiff and defendant are subjects of the Osu stool and are, as such, entitled to customary grants of stool land for building and other purposes. The plaintiff said, some time in 1935, the late Nii Amen Bonne, Manche of Osu Alata, made a customary grant of a large plot of land to him and that the area in dispute forms part of that grant. The learned trial judge was not satisfied with the evidence led in proof of this and held that such grant was not established. He, however, found that by a deed of gift dated 1 February 1947, Nii Kwabena Bonne, Chief of Osu Alata and successor-in-office of Nii Amen Bonne conveyed to the plaintiff two building plots which form the subject-matter of the present action. The said chief also conveyed one plot to the plaintiff’s wife.

The grants were phrased in accordance with English conveyancing practice and were said to be free from incumbrances. The grantor also expressed himself as having a good right to convey. Events soon proved that these convenants were valueless. When the plaintiff attempted to stamp these documents, he was informed by the Commissioner of Lands that the documents passed no title to him as the lands purported to be conveyed belonged to the Crown. Investigations soon revealed that on 24 September 1939, Nii Amen Bonne, the predecessor-in-office of the plaintiff’s grantor, jointly with the representatives of the Ashanti Blohum and Anahor quarters of Osu, conveyed to the government, a large area of land of which the plots in dispute form part. It became obvious to the plaintiff that he acquired no title to the plots which could avail against the government. Accordingly the only means by which the plaintiff could acquire title to this land was for the Crown to relinquish its title thereto. To this end, negotiations were set afoot with the government by the plaintiff acting jointly with his grantor. These were eventually successful and on 6 February 1948, the government entered into a covenant jointly with the plaintiff’s grantor and his co-grantors to divest itself of its title to an area of land including the one in dispute and to make a formal divesting order under and by virtue of the Accra Town (Lands) Ordinance.2 These good tidings were conveyed to the plaintiff by his grantor Nii Kwabena Bonne by a letter dated 10 February 1948.

The evidence shows that the plaintiff himself independently verified this fact from the Commissioner of Lands by correspondence to which he attached his deed of gift. His grantor’s assertion was [p.311] of [1966] GLR 299 confirmed and on 13 January 1949, the Commissioner of Lands addressed a letter to the plaintiff in which he said, inter alia, “In the meantime, the portions of land to be divested including land claimed by you and mentioned above have been released to the appropriate stools by a deed of release and covenant dated 6 February 1948.” But before the receipt of this letter, the plaintiff according to his evidence, called at the Lands Department and had a sight of and perused the deed of release. This must be early in 1948. Thereafter, the plaintiff commenced building operations on the land. Although the plaintiff claimed that he entered into effective possession of the land long before the commencement of building operations, this fact was held not to have been established by a judgment to which I am soon to refer. Unknown to the plaintiff and apparently to his grantor Nii Kwabena Bonne, the Osu stool had, in 1939, made an oral customary grant of the identical plot of land to the defendant. The latter’s grant was confirmed by a deed of conveyance executed in her favour by the Osu stool in 1945. This was duly registered. Accordingly, when the defendant noticed the plaintiff on the land, she caused him to be warned of her adverse title. The plaintiff took the position that he and not the defendant had a valid title to the land. He therefore wrote both to the defendant and her solicitor disputing the former’s title and asserting his superior title based on a grant from Nii Kwabena Bonne. It soon became apparent that the conflicting claims of the parties could not be resolved otherwise than by litigation. Accordingly, the plaintiff said some time in 1948, he commenced an action against the defendant in the Ga Native Court. The defendant replied two days later with a similar action in the Labadi Native Court. For a reason which is not clear from the evidence, the defendant’s action alone was transferred to the High Court and was heard and determined by van Lare J. (as he then was).

On 2 September 1955, the High Court delivered judgment in which it held in effect that the plaintiff’s conveyance was void and of no effect and that the defendant’s title prevailed as the grant was made to her by the Osu stool which stool was shown to have been the owner of the land. Although it was contended on behalf of the plaintiff that the defendant could not succeed in obtaining a declaration of title, because at the dates of the institution of the suit and judgment, title remained in the government, this contention was rejected as the learned judge held himself entitled to assume that equity would regard as done that which ought to be done. As the plaintiff was warned of the defendant’s adverse title timeously, the former was unable to invoke any equitable principles to resist the defendant’s claim. Accordingly, the court proceeded not only to

[p.312] of [1966] GLR 299 make a declaration of title in favour of the defendant, but also ordered the plaintiff to give up possession of the land to her. At that date the plaintiff had completed on the land a £7,000 house which the learned judge said was income-yielding and “had been fetching some good rent.” Following precedent, the learned judge gave the plaintiff three months to remove his building from the land but thereafter an injunction was to go to restrain him from entering the land. The evidence led in this case shows that the plaintiff did not in fact demolish his building on the land but that such rents and profits as the house yielded enured to and have been enjoyed by the defendant. The judgment of the High Court was appealed against to the West African Court of Appeal. On 29 November 1956, that court gave judgment in which it held that inasmuch as the learned judge made a declaration of title in the defendant’s favour he was in error since at that date, the legal title to the land remained vested in the government. Accordingly, it set aside the declaration of title made in the defendant’s favour. It however held the defendant entitled to an order for recovery of possession on grounds which the Privy Council, to which a further appeal was taken, did not feel able to support. Although the plaintiff cannot now be heard to dispute the defendant’s title to the land in dispute, the fact that the West African Court of Appeal should have thought that at the date when the judgment was given in her favour, namely, 2 September 1955, she was not entitled to a declaration of title to the land, is of some importance in considering whether the plaintiff acted reasonably or recklessly in disputing the defendant’s title in 1948 and in continuing to completion the erection of a building on the land in spite of the defendant’s adverse claim.

As I said, the defendant continued to enjoy the rents and profits accruing from the plaintiff’s building on the land in dispute until the judgment which is sought to be vacated by this appeal was delivered on 10 December 1962. Meantime in 1960, an Act entitled the Land Development (Protection of Purchasers) Act was passed. The object of that Act, according to its preamble, was “to protect purchasers of land and their successors, whose titles are found to be defective after a building has been erected on the land.” It is not necessary to set out the relevant provisions of that Act. It is sufficient to say that the rights conferred by that Act are the fons et origo of the present litigation. The plaintiff invited the court to hold by the force of this statute that the conveyance which he obtained on the land operated to confer on him valid title to the land, the judgments against himself notwithstanding. The defendant urged the court to hold the contrary,

[p.313] of [1966] GLR 299 and in particular invited the court to say that the plaintiff did not erect the building in good faith and was therefore disentitled to the remedy provided by the Act. After considering the evidence, the learned trial judge felt satisfied that the plaintiff erected the building in good faith and holding that the plaintiff in all other respects brought himself under the umbrella of the Act, proceeded to accord him the reliefs which he sought. It is against this finding and consequential orders that this appeal has been brought. Although in all six grounds of appeal were filed, the appeal was argued on three limbs. I think the argument urged on two of these can be disposed of in a few words. The third limb alone contains the only really serious complaint against the judgment. One of the less serious grounds complains that the learned judge was wrong in dismissing almost peremptorily the plaintiff’s evidence that he obtained a customary oral grant of the land in dispute in 1935. The reason for this, counsel contended, was, if that be a fact, the plaintiff would have taken his “statutory conveyance” prior to 31 December 1944 and would therefore fall outside the ambit of Act 2. The pleadings and the judgment in the former action show that the defendant controverted the plaintiff’s assertion that he obtained a customary oral grant in 1935 and persuaded the court to find against the plaintiff on this issue. The court was so persuaded and held that no such grant was made. That being so, in my judgment, the defendant cannot now be heard to complain that the learned judge in the instant case, should have held the contrary of what she persuaded the court to hold in the former action. In my opinion, it would be entirely wrong to allow the defendant to argue that the plaintiff obtained no customary oral grant in 1935 for the purpose of defeating him in the former action, and to permit her to contend that such a grant was made to deprive him of the protection of Act 2 in the present suit.

In any event, the evidence of that grant in the instant suit was extremely slight and was wholly unsupported. In those circumstances, in my judgment, the learned trial judge was entitled to hold and was right in holding that that grant was not made out and I am not troubled by the fact that the evidence of that grant was elicited in cross-examination. In my opinion, this ground of appeal must fail. I propose to defer consideration of the other less weighty grounds of appeal and address myself to what I consider the most serious complaint made against the judgment and on which counsel for the defendant almost staked the success or failure of this appeal. It was urged with force that the learned trial judge was in error when he held that the plaintiff erected the building in good faith. It was pointed out that contrary to the learned judge’s finding, the plaintiff did not get executed by the Governor, a document which operated

[p.314] of [1966] GLR 299 to perfect his title. Counsel referred us to the deed of release, exhibit H, and submitted that the land described in that exhibit was released not to the plaintiff’s grantor but to all the quarters of Osu and there was nothing to justify any assumption that the particular plot in dispute was released to Nii Bonne. Accordingly, it was submitted that there were no grounds on which the plaintiff could reasonably believe that he acquired good title to the plot.

The relevant section of the Act which fell to be construed was subsection (1) (b) of section 2 which enacts that “the purchaser, or a person claiming through him, [has] in good faith erected a building on the land.” The learned trial judge construed that as meaning that the purchaser erected the building in the honest and reasonable belief that he had title. That can only mean title to the land. Neither counsel who argued this appeal sought to quarrel with the construction and indeed both were agreed, I think, that that was the right construction. I share that view of the matter myself because I cannot see how a man can be said to have erected a building in good faith if he thought or had grounds for believing that his title to the land was not in order. As the declared policy of the Act is to confer valid title on purchasers who build on land on the faith of title subsequently adjudged to be invalid, it seems to me only natural, that the Act should require that the purchaser, to avail himself of the statutory protection, should have acted honestly and reasonably at the date of the original acquisition of the land, and having so acted should have believed in the validity of his title.

If that be the right criterion for determining bona fides under the Act, how does the evidence square with the judge’s finding that the plaintiff erected the building in good faith? I agree of course that although bona fides is a subjective element, its existence must be determined objectively. There is no reason to think that at the date when the plaintiff obtained the conveyance from Nii Bonne, he acted otherwise than honestly and reasonably. The plaintiff is himself a subject of the Osu stool and in going to the Manche of Osu Alata for the grant, it is reasonable to infer that he must have thought that he was the person entitled to make a grant of that particular area. The fact that Osu Alata Manche himself is, if I may so put it, a competent authority for granting land in certain areas of Osu is a notorious fact and indeed in the case of Aryee v. Adofoley,3 a grant of Osu land made by the Alata Manche was held to prevail against one made by the Osu stool itself. That the Osu Alata stool should also have joined to make the grant to the government is also indicative

[p.315] of [1966] GLR 299 of the fact that the government also must have been aware that the Osu Alata stool has a disposal power over a certain portion of Osu stool lands.

The next question is: Did the plaintiff at the date of the conveyance honestly believe that he acquired good title to the plots? I think that question admits of only one answer, namely, an affirmative one. At that date the plaintiff obvioulsy had no reason to believe that anyone else was interested in the plot and the fact that shortly afterwards, he returned to the same stool for a further twelve plots of land clearly shows that he must have believed implicitly in the validity of the Osu Alata title. He became aware for the first time when he attempted to stamp his documents that he had a rival claimant and that was the government. It is to be noted that the plaintiff did not then rush through a building on the land. I think in these circumstances it is reasonable to conclude that at the time he commenced the building on the land, the plaintiff believed on reasonable grounds that he had perfect title to the land. In my opinion, the fact that the government convenanted to release the land to the stools and not to the plaintiff personally does not affect the position.

Was the situation in any way altered when the defendant challenged the plaintiff’s title and set up adverse claim to it? I cannot think that that by itself would have the effect of destroying the plaintiff’s bona fides and translating it into bad faith. Mr. da Rocha has, with admirable fairness, disavowed any imputation of bad faith to the plaintiff but he contends that in continuing to a completion the building in the face of warning and in the face of a pending lis the plaintiff acted recklessly. Recklessness and good faith, Mr. da Rocha argues, are ill bedfellows. For the meaning of recklessness, counsel took his stand on the famous definition that “it denotes an attitude of mental indifference to obvious risks.” What risks can be said to be obvious to the plaintiff or to any dispassionate inquirer on the particular facts of this case? That the defendant might be adjudged to be the true owner of this plot seems only a bare possibility. It does not seem to me to be a risk that can be said to be obvious because the effect of the deed of conveyance which the stools executed in favour of the government was to overreach all other interests. That in fact was the true legal position. The plaintiff must also have thought that to be the effect of the document because he said in evidence, “I read paragraph three of the document exhibit G. I understood the paragraph to mean that my title to the land was solid.” Indeed when the learned judge of the High Court adjudged the defendant the owner of the plot and made a declaration of title in her favour in the former action, the West African Court of Appeal held him wrong. If, as seems the case, the plaintiff believed

[p.316] of [1966] GLR 299 that his title was valid, the defendant’s adverse claim can only have struck him as spurious or as Mr. Ofori-Atta more aptly puts it, “a pretended claim.” And one knows from experience that such claims are not rare in this part of the country. It is possible to conceive cases in which the mere disobedience of warning can be regarded as such reckless conduct as would disentitle a person to the protection of the Act but this is not one of such cases. To hold that the erection of a building after warning in all cases renders a person reckless and thus disentitles him from the statutory relief would rob the Act of its potency and thwart the declared object of the legislature. While the erection of a building on a disputed land after warning of adverse claim will invariably disable the “builder” from relying on the equitable defence of acquiescence as an answer to a claim for possession, that by itself, in my judgment, cannot deprive a person of the protection which Act 2 is designed to confer. I hold that the plaintiff was not reckless and on this part of the case, I reach the same conclusion as the learned trial judge, namely, that the plaintiff erected the house in question in good faith. In my opinion, this ground of appeal must fail. Before dealing with the last limb of counsel’s argument, it is necessary to relate briefly the grounds on which it is based. It would seem that the buildings which provoked the earlier action lie on the land covered by the plaintiff’s own conveyance and that of his wife. It was this whole area that the plaintiff was ordered in the High Court judgment of 1955 to give up to the defendant. It is in evidence that the plaintiff’s wife’s document was also tendered in evidence in the former action and although it would have been obvious to the defendant that the trespass she alleged was committed by the plaintiff jointly with his wife, the defendant did not then seek to join the plaintiff’s wife to that action. Accordingly, the plaintiff alone was ordered to give up the whole area to the defendant. That would only be reasonable if the trial proceeded on the understanding that the plaintiff was defending the action on his own behalf and on behalf of his wife. In the instant suit, the plaintiff sought statutory title to the identical area of land in respect of which judgment was delivered in favour of the defendant in the former action and to sustain his claim, it again became necessary as before, to produce in evidence, not only his own conveyance but his wife’s as well. Although the tender of the wife’s conveyance was opposed by the defendant’s counsel, the learned trial judge overruled the objection as he considered, I think rightly, that its admission would enable the real question in controversy between the parties to be determined.

[p.317] of [1966] GLR 299

It is now argued on behalf of the defendant, I thought not very hopefully, that the plaintiff could not properly rely on his wife’s conveyance in seeking the protection of the Act since there is no evidence that his wife assigned her interest to him and he cannot therefore be said to have taken a conveyance within the meaning of the Act. It is also said that there is nothing to show that the plaintiff brought this action for himself and on behalf of his wife. Accordingly it is contended, so I understand the argument that the plaintiff failed to show himself entitled to statutory title in respect of the whole area claimed by him. In my opinion, it would not be right to conclude this appeal on a contention such as this. It certainly has nothing to do with the merits of the case and shows plainly that the defendant is looking for a stick to beat the plaintiff with. True, there is no evidence that the plaintiff’s wife assigned her interest to the plaintiff. But if he was allowed in the former action to fight and lose the plots including his wife’s, it seems to me obvious that in seeking recovery by the aid of the Act what he had lost, he was plainly acting for himself and his wife. That being so, the objection of the defendant becomes one of form rather than of substance. In my opinion, that objection can be met by amending the title of the suit by adding to the name of the plaintiff the words “for himself and on behalf of his wife Mrs. Ofei.” That would put an end to that objection and will obviate any necessity of the plaintiff’s wife bringing an action of her own to seek protection in respect of that part of the building that lies on her plot. I believe this court has often expressed itself as having a duty to avoid multiplicity of suits and indeed in the case of Akyirefie v. Paramount Stool of Breman-Esiam,4 the West Africa Court of Appeal of its own motion amended the title of the suit on appeal to conform with the justice of the case and with the avowed object of avoiding multiplicity of litigation. Such cases as England v. Palmer,5 Ababio IV v. Quartey,6 Seklin v. Little7 and numerous others established the right of this court to make amendments such as this. In my opinion, this is eminently a case in which such amendment should be made and if it is made, there will be an end of this appeal.

Although I acknowledge the force of Mr. da Rocha’s fair and full argument, I think on the whole Mr. Ofori-Atta’s view of the matter is the right one. For the reasons which I have endeavoured at some length to give, I think the judgment appealed from is right and ought not to be disturbed. I would accordingly dismiss this appeal.

[p.318] of [1966] GLR 299

JUDGMENT OF SARKODEE-ADOO C.J.

I have nothing further to add to the judgments read. I agree that the appeal be dismissed. DECISION Appeal dismissed.