FUGAR v. BOSSMAN AND ANOTHER [1963] 1 GLR 16

DIVISION: IN THE SUPREME COURT

DATE: 9TH JANUARY, 1963

BEFORE: SARKODEE-ADOO, CRABBE AND BLAY JJ.S.C.

CASE REFERRED TO

Laryea v. U.A.C. (1939) 5 W.A.C.A. 166

NATURE OF PROCEEDINGS

APPEAL from a judgment of Charles J. sitting in the Lands Division of the High Court, Accra, wherein he dismissed the plaintiff’s claim for recovery of possession of a piece of land and damages for trespass.

COUNSEL

B. J. da Rocha for the plaintiff-appellant.

No appearance for the defendants-respondents.

JUDGMENT OF BLAY J.S.C.

By his statement of claim the plaintiff averred as follows:

“(1) The plaintiff is the owner of the land described in the writ.

(2) By reason of the plaintiff’s absence from Ghana, the plaintiff appointed his brother a Mr. F. K. Fugar as caretaker of the land in dispute.

(3) The said F. K. Fugar fraudulently and without the knowledge or authority of the plaintiff purported to convey by deed by way of outright sale the said land to the first defendant.

(4) The first defendant entered into possession of the said land in reliance on the aforesaid fraudulent conveyance and either granted portion to or permitted the second defendant to trespass unto the plaintiff’s said land.

(5) Without the leave or licence of the plaintiff the defendants wrongfully brought unto the land sand and stones and are in wrongful possession thereof.

(6) Wherefore the plaintiff claims as in the writ of summons:

(a) Recovery of possession of the said land.

(b) £G50 damages.”

It does not appear that the first defendant, Dr. J. E. Bossman, was ever served and he therefore neither entered appearance nor filed a statement of defence to the plaintiff’s statement of claim. The second defendant

[p.17] of [1963] 1 GLR 16 however entered appearance and filed a statement of defence in the following terms:

“(1) The defendant denies the allegation in paragraph (1) of the statement of claim.

(2) The defendant also denies the allegations contained in paragraphs (2) (3) and (4) of the statement of claim.

(3) The defendant admits having put some sand and stones on the land but says that she did so with lawful authority.

(4) The defendant denies that the plaintiff is entitled to any of the reliefs she claims in paragraph (6) of the statement of claim.

(5) Save as hereinbefore expressly admitted the defendant denies each and every allegation contained in the plaintiff’s statement of claim as if the same were herein set out in detail and traversed seriatim.” To this inadequate and unsatisfactory defence the second defendant without leave, and after the hearing of the summons for directions when a date had been fixed for the hearing of the suit, added a further plea that she was in possession.

At the hearing of the suit, the appellant’s attorney gave evidence and deposed to the following facts: that the land in dispute was bought by the appellant through his brother one F. K. Fugar to whom the appellant had remitted the sum of £G250 for that purpose; that the vendor of the land had executed a deed of conveyance in favour of the appellant and that the document was in the possession of F. K. Fugar; that in September 1958 she visited the land and saw that a wooden house had been erected on it; that she made enquiries from the second defendant and asked her what the building was doing on the land; that the second defendant took her to the first defendant who told her that he had purchased the land from F. K. Fugar; that she there and then told the first defendant that the land belonged to J. K. Fugar and that F. K. Fugar had no authority to sell it. She then said that upon information received she went to the Deeds Registry and applied for a photostat copy of the deed of conveyance by which F. K. Fugar purported to have conveyed the land to the first defendant. This document was tendered in evidence and marked exhibit F. The witness further stated that F. K. Fugar had asked J. K. Fugar for authority or permission to sell the land but this had not been given.

Under cross-examination the witness was shown the deed of conveyance of the land to the appellant J. K. Fugar and she admitted that the signature or name Joseph K. Fugar appearing thereunder as purchaser was in the handwriting of her husband, Emmanuel Victor Doe Fugar, who also signed as witness to the supposed signature of J. K. Fugar. This document was tendered and received in evidence as exhibit C. Upon examination by the court, the witness said that the appellant had sent the money to her late husband to be given to F. K. Fugar to purchase the land in dispute and that was why her late husband signed for the appellant. This concluded the case for the appellant in the court below. Surprisingly enough the respondent herein and defendant in the court below

[p.18] of [1963] 1 GLR 16 chose not to give any evidence in defence and also closed her case. Her counsel then submitted the following:

“The plot of land which is the subject-matter of this dispute was at no time conveyed to the plaintiff in this suit because it is admitted that the plaintiff did not sign the deed of conveyance, exhibit G but rather his brother, the late E. V. D. Fugar, deceased, purported to sign the name of the plaintiff. The signature of the plaintiff in exhibit G is a forgery. If E. V. D. Fugar had authority to sign then his authority should have been embodied in a deed. No legal estate passed to the plaintiff and for the plaintiff to obtain an action for recovery of possession he must prove he had a better title. See Bullen and Leake on Pleadings, (7th ed.), page 488, and Cheshire, Real Property, (6th ed.), page 683. As the plaintiff was not a party to the deed the legal estate did not vest in him.”

To this submission counsel for appellant replied as follows:

“It is immaterial if the late E. V. D. Fugar signed the document exhibit G in the name of the plaintiff because all that is necessary is for the grantor of the legal estate to sign. That legal title passed to the plaintiff although the deed was not signed by him. See Encyclopaedia of Forms and Precedents, Vol. XII, pages 8 and

9. There is a note or memorandum. The onus was on the defendants to show that F. K. Fugar had the necessary authority to dispose of the land. See Halsbury, (3rd. ed.), Vol. 1, pages 152-159.” After these submissions the learned trial judge gave judgment in effect agreeing with the submissions of counsel for the respondent and dismissed the appellant’s claim. It is from this judgment that the appellant has appealed to this court on three grounds, namely:

“(1) The learned judge was wrong in holding that exhibit G did not pass title to the land in dispute to the plaintiff because the purchaser column of the said exhibit was not signed by the plaintiff himself.

(2) That as the defendants on the evidence derived title to the land from the plaintiff, they were estopped in law from disputing the validity of the plaintiff’s title.

(3) That the learned judge was wrong in not deciding the real issue namely whether F. K. Fugar had the authority of the plaintiff to convey the land in dispute to the defendants or either of them.”

On ground (1) which was the only ground argued by counsel before he was stopped, he submitted that a deed of grant or other assurance of property takes effect immediately upon its execution by the grantor or assuror and then at once passes the property expressed to be assured to the grantee or alienee, although the latter has not executed or assented to the deed. In support of his submission he referred to Halsbury, Laws of England (3rd. ed.), Vol. 11, pages 356 and 357, paras. 577 and 578. With this submission I am in entire agreement. Indeed it is difficult to understand how and why the learned trial judge allowed himself to be persuaded by the submissions of counsel for the respondent, defendant in the court below, which in my view had no substance whatever in law or in equity. On the face of exhibit G, which was tendered by counsel himself, it is clear that the land or plot in dispute was conveyed by Emmanuel Aryee Ammah as vendor to Joseph Kwasi Fugar, as purchaser, for the sum of £G250. The [p.19] of [1963] 1 GLR 16 execution of the deed of conveyance by Emmanuel Aryee Ammah was never disputed or even questioned. Also by exhibit F, the first defendant in the court below, who brought the second defendant onto the land, acknowledged the title of Joseph Kwasi Fugar by purporting to accept title to the land from him. In the circumstances I do not see how he could contend that Joseph Kwasi Fugar had no legal title. The learned trial judge in his judgment referred to the case of Laryea v. U.A.C.1 as his authority for dismissing the appellant’s claim. With all due respect, I do not think the ratio decidendi in that case has any bearing on the present one. In that case the court held that a person holding an equity of redemption only cannot sue for a declaration of title and recovery of possession. In the present case the appellant claimed and proved that he held a legal estate to enable him to claim possession and damages for trespass. In my view the appellant’s case in the court below was unanswerable and he should have succeeded. In the result I would allow the appeal.

JUDGMENT OF SARKODEE-ADOO J.S.C.

I agree.

JUDGMENT OF CRABBE J.S.C.

I also agree.

DECISION

Appeal allowed.

J. D.