HIGH COURT, ACCRA
Date: 23 APRIL 1975
HAYFRON-BENJAMIN JA
CASES REFERRED TO
(1) Dove v. Wuta-Ofei [1966] G.L.R. 299, S.C.
(2) Re Prenn’s Settlement; Truvox Engineering Co., Ltd. v. Board of Trade [1961] W.L.R. 569; [1961] 1 All E.R. 833, C.A.
(3) Young & Co. v. Royal Leamington Spa (Mayor & Corporation) (1883) 8 App. Cas. 51; 52 L.J. Q.B. 713; 49 L.T. 1; 47 J.P. 660; 31 W.R. 925, H.L.
NATURE OF PROCEEDINGS
Action for, inter alia, a declaration of title to land wherein the defendants sought protection under the provisions of the Land Development (Protection of Purchasers) Act, 1960 (Act 2). The facts are sufficiently set out in the judgment of Hayfron-Benjamin J.A. sitting as an additional judge of the High Court.
COUNSEL
C. E. Quist for the plaintiff.
Olaga for the first defendant.
Buadi for the second defendant.
No appearance by or on behalf of the third defendant.
JUDGMENT OF HAYFRON-BENJAMIN J.A.
The plaintiff claims to be the owner of a piece and parcel of land at Mamobi in Accra. The boundaries as set out in the statement of claim are as follows:
“Bounded on the north by Achimota—Cantonments Road measuring 320 feet more or less; on the south by Osu stool land measuring 320 feet more or less; on the west by Osu stool land measuring 183
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feet more or less and on the east by the property of H. R. Quist measuring 183 feet more or less containing an approximate area of 1.337 acres.”
In order to identify this plot of land it would have been necessary to ascertain the whereabouts of the Osu stool land, the Achimota—Cantonments Road and the land of H. R. Quist. The defendants however admittedly commenced building operations on some contiguous plots in this area, and it is in respect of these plots of land that the action is brought. The area has also been plotted out on the plan filed in these proceedings and it confirms that the area claimed by the plaintiff covers the area entered into by the three defendants.
The plaintiff grounds his claim to title on an oral customary grant in 1954 by the then occupant of the Osu stool. According to him after the grant he went into possession of the land and erected corner pillars thereon. He had never been disturbed on the land until the defendants descended thereon and commenced building operations. He warned them off the land but his warnings were ignored. Hence the action.
Separate defences were filed by the first and second defendants. The third defendant did not file a statement of defence, and did not appear at the trial. I therefore enter judgment in favour of the plaintiff in respect of the claim on which the third defendant committed trespass. The plot can be seen delineated on the plan.
The first defendant states that he entered the land by leave and licence of the Osu stool in 1951, i.e. prior to the plaintiff s alleged grant, for purposes of pig rearing. In 1959 he acquired title to the land from the Osu stool, by a customary grant which was later confirmed by a deed of conveyance dated 16 March 1967. He then commenced building on the plot. He claims protection under the Land Development (Protection of Purchasers) Act, 1960 (Act. 2). The first defendant in effect is claiming priority of title over the plaintiff, and in the alternative claims protection under Act 2. He nevertheless also denies the plaintiff ‘s customary grant. The burden is therefore on the plaintiff to establish his customary grant.
The second defendant also denies the plaintiff s alleged grant. He denies that the plaintiff was ever in possession or erected corner pillars and claims to have purchased the plot from the Osu stool in 1954. The said sale was subsequently reduced into writing on 7 July 1964. The document was stamped as No. AC4279/66. He further states:
“On or about 16 December 1966, the National Liberation Council member responsible for the Ministry of Lands and Mineral Resources signified his concurrence to the execution of the second defendant’s document by signing the same which was thereupon registered in the Lands Registry as No. 1343/1967.”
The defences raised by both defendants are of some practical importance, and deserve to be examined with some care. However, I shall first consider the question whether the plaintiff has led sufficient evidence which if believed would establish the grant to him by the Osu stool. Without going into much detail I would say without the slightest hesitation
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that he has, and I also believe him. He called evidence of adjoining boundary owners, and also the grantors. I therefore hold that the area in dispute was granted to the plaintiff by the Osu stool as far back as 1954. He however did not develop it. He was content to leave the over-seeing of it to his relative, a licensed surveyor who also obtained the adjoining plot from the same grantors.
The only serious issue for consideration is whether or not to invoke the provisions of the Land Development (Protection of Purchasers) Act, 1960 (Act 2). “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,” per Siriboe J.S.C. (as he then was) in Dove v. Wuta-Ofei [1966] G.L.R. 299 at p. 302, S.C. The Act is fifteen years old in the statute book, and Accra is as yet the only area prescribed for its operation. A purchaser of land in any other part of Ghana must risk developing it without any of the safeguards provided by this Act. It is, however, not only benefits that are provided by the Act. The Act operates to deprive otherwise rightful and innocent owners of their property, and although provision is made for monetary compensation, no option is given to that original owner to buy out the developer. It may very well be that in certain circumstance the ends of justice would be better served by ordering the compulsory sale of the building to the original owner, if he is willing and able to purchase. It would seem that the drafters of this piece of legislation were more concerned with preventing “hardship and injustice” to the person with a defective title irrespective of whether in so doing the original owner would thereby suffer hardship and injustice. If monetary compensation is enough for the original owner, I do not see why it should not be equally sufficient for the developer. It would seem that the underlying presumption was that any owner who failed to develop his plot timeously was not in a financially adequate position to do so.
The really more serious aspects of this piece of legislation were pointed out by the late Professor Bentsi-Enchill in his book Ghana Land Law at p. 272, where he said:
“If the quest is for increased security of titles, then it is paradoxical to enable defective titles to be validated as against existing good titles. That way rather lies an increase in the insecurity of title, and the encouragement of fraud.”
It seems to me that this Act can be a gold mine to a fraudulent vendor of land. If he sells a plot of land to A., and then sells the same land to B. who builds on it, A. can get monetary compensation from B., whose title is by this Act perfected. As the vendor had originally given good title to A., he can keep the purchase price from A. The Act is silent on whether B., can recover the compensation from the fraudulent vendor. Instead the Act provides that the monetary compensation payable by B. can by the court’s order be made payable by instalments by B. This seems to indicate that the Act does not contemplate payment under the order of the compensation by the original vendor. An Act which has such strange
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consequences should be examined with great care. We may adopt the words of Evershed M.R. in Re Prenn’s Settlement; Truvox Engineering Co., Ltd v. Board of Trade [1961] 1 W. L. R 569 at p. 572, C.A. and say that when an Act confers an unusual privilege, “ the court must see that anyone claiming the benefit of it does, without reasonable doubt, bring himself within the language” conferring the privilege.
In this case it is not disputed that the first and second defendants are purchasers who have taken a conveyance in respect of land in a prescribed area, and that the conveyance was taken after 31 December 1944. The third defendant as I have said did not file a defence. As far as the first and second defendants’ case is concerned, the first provision of the Act which calls for consideration is section 2 (b) that which says that “ the purchaser, or a person claiming through him, in good faith erected a building on the land.” Section 4 (2) of the Act provides that “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.” Where plans for a building which have been approved by the city council or other authorised body indicate that the owner intended to build a main house with out—houses or what, in these parts of the country is called the “boys quarters” can it be said that he has carried out a “greater part of the work required for the erection thereof’ if he has only completed the “boys quarters”? I think it is clear that a mere temporary structure would not suffice. An outhouse or “boys quarters” is a building in itself, but it is only part, and a minor part of the building which the owner planned to erect. I am of the view that the court’s duty is to see whether a building however small has been built, and it is immaterial whether it is only a part of the original composite plan.
The second question for consideration is whether the house was built in good faith. It would seem that the wording of the Act implies that knowledge that another party claims to own the land does not negative good faith. The Act provides that the court can only make an order where it considers that but for the Act a possession order would fall to be made by reason that the said conveyance did not operate to confer title to the land. Under the law as it stood before the Act was passed, a possession order would be made if the person against whom recovery of possession is sought knew or ought to have known of the adverse claim, through prompt challenges, and he nevertheless persists in spending money in developing the land. And that possession order would be made by reason that he had no title to the land.
It would seem therefore that if mere knowledge of an adverse claim was sufficient to negative good faith, the latter provisions above referred to would be otiose. The whole Act would be nonsense. I think Bentsi-Enchill was right when he wrote at p. 271 that the Act “was passed with an eye to decisions like that in Danquah v. Ofei (1956) 2 W.A.L.R. 185),” but sitting as I am in a court of law I cannot like him assume that the Act was passed “ on the basis of serious misunderstanding of the state of the law in regard to the type of situation disclosed in such cases . . .” “ We ought in general,” said Lord Blackburn in Young & Co. v. Mayor &
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Corporation of Royal Leamington Spa (1883) 8 App.Cas. 517 at p. 526, H.L. “in construing an Act of Parliament, to assume that the legislature knows the existing state of the law.” The decided cases show a serious conflict of views as to the scope of the term “good faith.” In Dove v. Wuta-Ofei (supra) Apaloo J.A. said at p. 316:
“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.”
In the same case the learned judge also said at p. 316 that:
“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.”
The learned judge applied the first formulation of the legal position in coming to the conclusion that there had been no bad faith merely because of knowledge of adverse claims. In this he was supported by Siriboe J.S.C. and the court was unable to conceive that case as one of those in which mere disobedience of a warning was regarded as reckless conduct or lack of good faith. I am of the view that nothing done by the defendants in this case can be said to amount to bad faith within the meaning of the Act.
In all the circumstances of this case, I am of the view that Act 2 should be applied, and I declare that the first and second defendants are deemed owners of the land. I further declare that the first and second defendants pay the sum of 0300.00 each to the plaintiff, and also pay the plaintiff s costs which I assess at 250.00 inclusive of counsel’s fee of 200.00.
DECISION
Judgment for the first and second defendants with costs.
Judgment for the plaintiff against the third defendant.
K. S. N. D.
