NUTAKOR AND ANOTHER v. ADZRAH [1965] GLR 445

DIVISION: SUPREME COURT

DATEe: 14 JUNE 1965

BEFOREre: MILLS-ODOI, OLLENNU AND ACOLATSE JJ.S.C.

CASES REFERRED TO

(1) Jenkins v. Jones (1882) 9 Q.B.D. 128; 51 L.J.Q.B. 438; 46 L.T. 795, C.A.

(2) Bunny v. Hopkinson (1859) 27 Bea v. 565; 54 E.R. 223.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Prempeh J., as he then was, awarding the plaintiff-respondent £G4,000 damages for breach of covenant [p.446] of [1965] GLR 445 of title and costs. The defendants-appellants appealed to the Supreme Court on the quantum of damages.

The facts as summarised in the headnote are taken from the judgment of the Supreme Court.

COUNSEL

A. W. Acquaah for the first appellant.

Second appellant in person.

No appearance by or on behalf of the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This appeal is from a judgment of Prempeh J. which awarded the respondent, the plaintiff in the court below, £G4,000 damages for breach of covenant of title,

150 guineas counsel’s costs, and other costs to be taxed. The appellants, the defendants in the court below, do not dispute breach of their covenant of title, what they are dissatisfied with is the quantum of damages; they contend that the learned judge of the High Court misdirected himself on the law as to the basis of assessment of the damages in such a case.

By an indenture of conveyance dated 11 October 1941, the defendants purported to convey a piece of land to the plaintiff for a consideration of £G45, and covenanted with him that:

“Notwithstanding any act deed or thing by them the said vendors or any of their ancestors done or executed or knowingly suffered to the contrary, they the said vendors now have good right to grant and convey the land and hereditaments hereby granted and conveyed or expressed so to be . . .”

The deed was executed by the defendants in their individual capacities as if the land, the subject-matter thereof, is their self-acquired property, while in fact the land is family property, a family of which they, the defendants, are members, but none of them is the head of that family, and the transaction was entered into without the knowledge of or reference to the head and principal members of the family who, by law, are the sole persons capable of making a valid grant of the land or of any interest therein. In law therefore, the indenture is void of effect and conferred no right, title or interest in the land on the plaintiff.

In 1942, the plaintiff registered the document and deposited some cement concrete blocks on the land in preparation to commence building operations thereon; the family immediately thereupon challenged his authority to enter upon the land, advised him that the land is family property, and warned him to keep off it. Between 1942 and August 1947 the plaintiff made several efforts to get the family to give him title to the land, and paid £G25 to one other member of the family towards that end; but the family refused to sell the land

[p.447] of [1965] GLR 445 to him. In spite of all warnings, the plaintiff in 1949 commenced to build on the land and, in the teeth of strong opposition from the family, persisted in so doing, and completed the building some time in 1950; meanwhile the family took action against him in the Native Court B of Keta for a declaration of title, damages for trespass and for recovery of possession; they obtained judgment against him in 1957 and evicted him from the land. These are the facts upon which the plaintiff sued the defendants claiming

“£G7,255 damages (£G7,000 being the value of the building on the land and £G255 being expenses incurred in defending the plaintiff’s title).” The defendants, as earlier observed, did not dispute liability for breach of their covenant for title. They however contended that they were not liable to pay the plaintiff the cost of the building. Paragraphs (6),

(7), (9), (12) and (1 3) of the first defendant’s statement of defence set out their plea in this regard:

“(6) By 1946, the plaintiff was informed by the Nutakor family that the land which was sold to him by the defendants is family land and that the defendants were not heads of Nutakor family nor were they authorised to sell the land, the subject-matter in dispute, on behalf of the Nutakors under Anlo native custom and law.

(7) The plaintiff thereupon approached the first defendant for refund of purchase price, that is £G45, whereupon the first defendant directed the plaintiff to the second defendant to whom the money was paid as the owner of that land.….

(9) That the plaintiff did put up this building despite repeated protests by the Nutakor family culminating in civil proceedings against the plaintiff in the Keta Native Court B….

(12) The plaintiff was therefore aware of his want of title by 1946 as appears in paragraph (6) supra.

(13) Wherefore the first defendant says that the only relief the plaintiff is entitled is the return of the purchase price, i.e. £G45 plus interest as measure of damages up to 1945 or thereabout when the plaintiff was informed of his want of title by the Nutakor family.”

Paragraph (14) of the statement of defence filed by the second defendant contains similar averments.

In reply to these averments, the plaintiff pleaded in paragraphs (3) and (4) of his reply to the defence as follows:

“(3) In answer to paragraph (8) of the statement of defence the plaintiff says that he commenced the building of his storey building long before 1950 and that the building was completed

[p.448] of [1965] GLR 445 before the plaintiff became aware of his defective title by the judgment of the Keta Native Court B.

(4) In answer to paragraph (9) of the statement of defence the plaintiff admits that some members of the

Nutakor family indicated to him that the defendants had no right to convey the land and the plaintiff in order to avoid litigation and to ensure the quiet enjoyment of his property conveyed by the first and second defendants, approached without prejudice, the head of the Nutakor family, and paid an additional sum of £925. The plaintiff adds that no protest was made by the Nutakor family from the date of payment of £G25 to the head of the family to the date of the completion of the building.”

Upon these facts pleaded by the parties the only issue joined between the parties is the quantum of damages to which the plaintiff is lawfully entitled. Learned counsel for the first appellant submitted that since the claim is for breach of covenant of title and not for breach of covenant of quiet possession as well, the measure of damages is the value of the land at the date of the breach, and nothing more. He relied upon Halsbury’s Laws of England (3rd ed.), Vol. 34, pp. 374-375, para, 655. The principle is there stated as follows:

“The covenant for right to convey is a convenant for title; the covenant for quiet enjoyment is a convenant relating to possession; this distinction affects both the date when the covenant is broken and the measure of damages. A covenant for title is an assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey, and it is broken by the existence of an adverse right such as a right of way, or any outstanding interest, charge, or claim which may prevent the purchaser from enjoying this estate, and also where, by the vendor’s omission to prevent the acquisition of an adverse title by possession, he has no title to part of the land he purports to convey. Hence the covenant for right to convey is not a continuing covenant, but is broken once and for all at the time of the conveyance if there is then a defect in title which prevents the vendor from conveying the estate which he purports to convey; and consequently time begins to run forthwith against an action for breach of the covenant. The purchaser can sue on the convenant, notwithstanding that the defect in title is disclosed by a recital in the conveyance.”

The principle governing the assessment of damages payable in the case of breach of convenant for title is set out at p.375, para. 656, as follows:

[p.449] of [1965] GLR 445

“The measure of damages is the difference between the value of the property as purporting to be conveyed and its value as it actually passes to the purchaser. Hence the purchaser, if he loses the land, can only recover the amount of the purchase-money and not the value of subsequent improvements.”

The second defendant associated himself with those submissions. For the treatment of this subject see also

Mayne and McGregor on Damages (12th ed.), pp. 410-411, paras. 461-462.

On the facts of the case, we are prepared to treat the action as one for damages for total eviction, i.e. action both for breach of covenant for title and quiet possession, and apply the principle as laid down in two leading cases on the point, namely, Jenkins v. Jones,1 and Bunny v. Hopkinson.2 These two cases have been fully discussed in Mayne and McGregor on Damages (12th ed.), pp. 411-412, para. 463. That principle is that the measure of damages is the market value of the land at the date of eviction, i.e. the date when the purchaser became seised of knowledge that he had acquired no title to the land by reason of the incapacity of his vendors to give him title; in other words, of his liability to vacate the land. If before that date the purchaser had improved the land upon his reliance on his vendor’s title, the cost of such improvement must be taken into account in assessing the value of the land. But no improvement which a purchaser undertakes after he has known of his want of title, will be legally chargeable to the vendor in breach, and so will not be considered in the assessment of damages; the principle of volenti non fit injuria applies to such a case.

Upon these principles, the first question which the High Court should have determined is: when did the plaintiff get to know that he has acquired no title to the land? This question presents no difficulty whatever; that date is fixed by the plaintiff himself. In cross-examination he fixed that date as 11 August

1942; repeating evidence he had given in the native court on that issue at the trial of the suit instituted against him by the Nutakor family in respect of the land, he said:

“After Julius Dugbor Nutakor [the second defendant] and Francis Kwaku Nutakor [the first defendant] gave me the conveyance and I registered it as No. 426/1942 Gazette No. 52, p. 470 of 11 August 1942, then James

Kofi Nutakor called me about the land and then I know that the land is paternal family land.”

[p.450] of [1965] GLR 445

The first defendant too, in evidence-in-chief, deposed that by 1947, the plaintiff had known finally that there was no hope of his succeeding in acquiring title to the land from the family. He said:

“During 1946, while at Keta, the plaintiff came to tell me something. He said that he had been requested by my younger brothers to quit the plot of land. I told him that I had nothing to tell him. In 1947, I was at Akuse and the plaintiff came to request that I should refund to him the sum of £G70 to him as he had no more interest in the land. I told him that I was only liable to him in the sum of £G45. He was annoyed and he went away. I heard from him again in the year 1952. The plaintiff came to me at Akuse with a document which purported to be a declaration for the confirmation of the conveyance. The plaintiff asked me to sign it, and I did on the understanding that my brothers and family at Keta had agreed that I should sign it. The plaintiff did not tell me what he wanted the declaration for. Exhibit B is the declaration I signed. Exhibit B was typed out by the plaintiff himself and he sent it to me to sign and I did so. I can read and write. I signed exhibit B, and I swore to the contents of the document before him. I handed exhibit B to the plaintiff and he went away.”

This evidence of the first defendant is confirmed by the plaintiff in a letter, exhibit 7, dated 8 August 1947, which he wrote to an uncle of his, one Mr. J.G. Ocloo, who was assisting him to get his money back from the defendants. In that letter he said:

“I went and saw Mr. J.D. Nutakor on Saturday the 2nd . I went to claim the amount of the land as I see that he does nothing to help me. I explained all things to him and showed him a letter from my people at home of his brother’s action. He does not give me the money but promised to touch home on Saturday the 9th to settle matters. I have no interest in the land if the £G70 excluding the enormous expenses can be paid to me. If he fails to come again, I shall take action.”

So that by August 1947, the plaintiff had no doubt whatsoever that the defendants had committed a breach of their covenant.

Now, according to the trial judge, the amount of £G4,000 which he awarded as damages to the plaintiff is the cost of the building he erected on the land; he said, “I have already expressed the view that I accept the value placed on the building by the plaintiff’s first witnesses as at; £G4,000, but as to the claim for

£G255 for special damage, I do not find that proved.” If the plaintiff had erected the building prior to the date when he became aware of the incompetency

[p.451] of [1965] GLR 445 of the defendants to give him good title, the trial court would be right in taking the cost of that building into consideration; but if it was erected after the plaintiff had known of his want of title the cost of it is not properly chargeable to the value of the land. As to the date of commencement of building operation on the land we have evidence from the plaintiff himself; he said in his evidence-in-chief, “I had permit to start to build in the. year 1949. I therefore actually started the erection of the building in the year 1949, and completed it in the year 1950. I spent £G4,030 for the erection of the said building.”

It is evident on the face of his judgment that the learned trial judge was aware of these important facts, yet he rejected the contention of the defence that upon those facts their liability is limited to the 1946-47 value of the land. He said, “In my view, there can be no substance in an argument like that, otherwise it will mean that if after one has bought from A. another person say B. claimed the land, and one enters into negotiation with B. to avoid litigation, A. is exonerated.” With due deference to the learned judge, it should be pointed out that the view he held is wrong. Once the plaintiff had known that he had acquired no title to the land, he was in duty bound to minimise damages, and not to aggravate them; therefore any improvements to the land which he undertakes after such knowledge is not bona fides, and he cannot in law recover the expenditure incurred on it; his damages must be limited to the value of the land as it stood at the date on which he acquired knowledge of the breach of the defendants’ covenant. That date, taking the view most favourable to the plaintiff, is August 1947. Since the £G4,000 is expenditure voluntarily incurred by the plaintiff in 1949-50, a date subsequent to August 1947, it cannot form part of the value of the land at the relevant date, and it should therefore have been rejected.

With the cost of the building excluded, the only evidence left on the record of the amount which can lawfully be taken into consideration in assessing the value of the land as at August 1947 is the amount of

£G45 paid by the plaintiff to the defendants as the purchase price of the land, together with the stamping fee of five shillings appearing on the indenture of conveyance, exhibit A, and since the deed is registered we must also take judicial notice of the cost of registration which is twelve shillings and six pence made up as follows: fees for oath to prove the document, two shillings and six pence; fees for registration ten shillings, see the Land Registry Ordinance,3 now repealed, section 12, and Schedule II. Again, the document is franked by a solicitor, but the plaintiff failed to lead evidence as to the fees

[p.452] of [1965] GLR 445 he paid for the preparation of the deed; the court must therefore assess a reasonable amount as fees for the preparation of the deed; this was fixed at £G5 5s. Therefore the value of the land at the material date cannot exceed the total of these figures which is £G51 2s. 6d. and certainly is not above; £G5 5; and that is the amount to which the plaintiff is entitled as damages. We must therefore allow the appeal and set aside the damages of £G4,000 awarded by the trial judge to the plaintiff, and substitute for it, damages the sum of £G55.

On the question of costs in the High Court, it must be borne in mind that since the defendants in their defence admitted liability for £G45 plus reasonable interest thereon as damages to the plaintiff, the only issue the trial court was really called upon to decide is the second issue which the plaintiff himself set down for trial, namely, “Whether or not the plaintiff is entitled to damages claimed or only to the return of the purchase price.” The onus is upon him to prove that he was entitled to something more than that which the defendants admitted. He failed to discharge that onus, and is therefore liable to pay to the defendants the costs occasioned by the trial of that one issue.

For the reasons given above, the appeal of each of the appellants is allowed, the order of the High Court awarding the plaintiff, £G4,000 damages is set aside including the orders as to costs, any costs paid to be refunded; for that judgment we substitute the following:

There will be judgment for the plaintiff for £G55 damages for breach of the convenant of title, but since the defendants have succeeded on the only issue in the case, they are entitled to their costs. The appellants will have their costs in this court fixed at £G79 9s. for the first appellant and £G18 1s. for the second appellant. They will also have their costs in the High court fixed at 75 guineas for the first appellant and

75 guineas for the second appellant.

Court below to carry out.

DECISION

Appeal allowed.

S.K.D.B.