WILKINSON v. EDUSEI [1963] 1 GLR 393

DIVISION: IN THE SUPREME COURT

DATE: 1ST MAY, 1963

BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.

CASES REFERRED TO

(1) Stoney v. Eastbourne R.D.C. [1927] 1 Ch. 367; 95 L.J.Ch. 312; 135 L.T. 281, C.A.

(2) Doe d. Gray v. Stanion (1836) 1 M. & W. 695; 5 L.J. Ex. 253; 150 E.R. 614

(3) Wallingford v. Mutual Society (1880) 5 App.Cas. 685; 50 L.J.Q.B. 49; 43 L.T. 258, H.L.

(4) Philipps v. Philipps (1878) 4 Q.B.D. 127; 48 L.J.Q.B. 135; 39 L.T. 556, C.A.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Mrs. Annie Jiagge J. delivered in the High Court on the 23rd March, 1962, (unreported) awarding the plaintiff-respondent £G3,380 damages for failure of consideration and for breach of covenant for quiet enjoyment. The facts are sufficiently set out in the judgment of the Supreme Court.

COUNSEL

C. C. Lokko for the appellant.

Nii Odoi Annan (with him Asafu-Adjaye, Jnr.) for the respondent.

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. This is an appeal from a judgment of Jiagge J. delivered on the 23rd March, 1962, in favour of the plaintiff, respondent in this court for £G3,380 claimed by him as “damages for failure of consideration and for damages for breach of covenant for quiet enjoyment.” The alleged failure of consideration and the alleged breaches complained of are in respect of covenants contained in an indenture of assignment dated the 23rd March, 1961, by which the defendant, the appellant herein, assigned to the respondent for a consideration of £G3,000 his interest in a piece of land which he held under and by virtue of an indenture of lease dated the 10th January, 1947, registered as No. 33/1947 in the Lands Registry. The appellant denied liability. The main issues joined for trial were

(a) whether or not consideration for the assignment had failed; and (b) whether the appellant had committed a breach of his covenant.

Obviously the onus of proving each of the issues joined is upon the respondent; if the evidence on the whole leaves the matter in doubt this action must fail: see Stoney v. Eastbourne,1 and see also George on the Sale of Land at p. 488 under the heading “Onus of Proof.” [p.395] of [1963] 1 GLR 393

The evidence tendered by the respondent may be summarised as follows: An offer to assign the lease was made to the respondent by the appellant through one Mr. Brown; while he was considering the offer, the appellant sent the said Mr. Brown to him to say that he would like an early decision on the matter as the Salvation Army was interested; in view of that information, he paid the amount, £G3,000, to the appellant even before his solicitors had concluded their investigations into the appellant’s title. The appellant’s solicitor made available to the respondent’s solicitors all the relevant title deeds and documents including judgments relating to the land, and after they had satisfied themselves, his said solicitors prepared the deed of assignment and the appellant duly executed it. Thereupon the appellant placed the respondent in possession of the land; the land was vacant when he was so placed in possession thereof. While the respondent was in possession, a certain man trespassed upon the land and commenced to build on a portion of it; this happened about three weeks after he had gone into possession. The respondent then called upon the appellant to take steps to eject the trespasser. At first the appellant agreed to do so, but later refused on the grounds that he had been advised that the respondent was the proper person to sue the trespasser. Rather than suing the trespasser the respondent sued the defendant.

In her judgment the learned trial judge held that the appellant had been guilty of deceit and sharp practice, that he had no valid lease and no title which he could assign; then applying certain principles of law which she propounded, she concluded that the respondent had proved his case and was entitled to judgment. The appellant appealed against the decision of the High Court on seven grounds; these may be condensed into three main grounds as follows: (1) the learned judge erred in receiving evidence of and making findings as to fraud and deceit, when fraud and deceit were not pleaded; (2) the learned judge misdirected herself in deciding the case upon law which is not part of the law of Ghana, namely the Conveyancing Act, 18812 re-enacted by the Law of Property Act, 19253; and the respondent failed to discharge the onus which lay upon him. After counsel for the appellant had given a summary of his submissions against the judgment, the court called upon counsel for the respondent to support the judgment.

The proposition of law which the learned judge stated to support her decision is as follows: “In law, where in an assignment of a leasehold property for valuable consideration the assignor is expressed to assign as beneficial owner as in the passage quoted above from exhibit A, it is implied that he gives not only the covenant of title, but also that the lease is valid and subsisting, that all the rent up to date of assignment has been paid and that all the covenants and conditions in the lease have been performed and observed up to the date of the assignment.”

[p.396] of [1963] 1 GLR 393

Counsel for the respondent conceded that the law which the learned judge referred to is the law as enacted in section 7 of the Conveyancing Act, 1881, re-enacted by section 76 of the Law of Property Act, 1925. Neither of those two English statutes apply to Ghana. Counsel however submitted that a common law conveyance of land for valuable consideration implies a covenant of title by the vendor or assignor and cited Doe d. Gray v. Stanion,4 in support. He then argued that all the other covenants which by the Conveyancing Act, 1881, are implied in the term “beneficial owner” (e.g. quite possession) are dependent upon the vendor’s title; therefore, all those other covenants must also be presumed as implied at common law in the covenant of title. He submitted that section 7 of the Conveyancing Act, 1881, merely codified the existing common law, and that it must therefore be deemed to be a statute applicable to Ghana. The law in England before 1881, i.e. the common law with regard to covenants, was that all covenants which a purchaser required of a vendor should be set out in extenso in the conveyance; it was only covenants which were so set out in the conveyance that could be enforced against the vendor. It follows that although a covenant of title was implied at common law, no other covenant could be implied. If that were not so, i.e. if covenants other than covenant of title could be implied in a conveyance, there would have been no necessity for the English Parliament to legislate that specific covenants as well as the covenant of title should be taken as implied in the use of the term “beneficial owner.” We therefore do not agree that section 76 of the English Law of Property Act, 1925, re-enacting section 7 of the Conveyancing Act, 1881, is applicable to Ghana.

On the findings of the learned judge as to deceit and sharp practice, counsel for the respondent submitted that there was evidence on the record which justified the findings. The respondent did not plead deceit or misrepresentation; therefore evidence should not have been admitted by the court on those matters; and where by oversight such evidence slipped in, the court should have ignored it completely in the consideration of its decision: see Wallingford v. Mutual Society,5 and Philipps v. Philipps.6 The learned judge therefore erred in admitting evidence of such matters, and further erred in acting upon them when fraud and deceit were not in issue before her.

But even if the evidence had been properly admitted and the judge had been right in considering it, it is quite obvious that the findings of fact made by the learned judge and upon which she based those conclusions are in some instances not supported by the evidence, and in other instances contradicted by the evidence; e.g. the learned judge said the “defendant knew very well that his title had been challenged and that there was a case in court and yet he assured the plaintiff’s second witness that his title was good.” It is difficult to know where the learned judge

[p.397] of [1963] 1 GLR 393 got that from; there is not a tittle of evidence that any case was pending in court in which the title of the defendant (appellant herein) was challenged. On the contrary there is evidence from which it can be inferred that judgments in favour of the appellant’s title were among the documents which the appellant’s solicitor made available to the solicitors of the respondent for their investigations into the appellant’s title and that the respondent’s solicitors were satisfied with the appellant’s title before they drew up the assignment for execution by the appellant.

Again the learned trial judge said that “the defendant by spinning the Salvation Army story made quite sure that the plaintiff’s solicitors did not have time to complete their investigations.” When it is considered that although the respondent paid the money earlier, his solicitors took their time to investigate the appellant’s title, and it was not until they had completed their investigations and been satisfied with it that they drew up the deed of assignment and had it executed by the appellant, this finding of the learned judge clearly appears to contradict the facts proved before her.

As to the important findings made by the learned judge that (i) there is a breach of covenant because “the purchaser is ejected by a third party claiming good title,” and (ii) “the defendant has no valid lease existing, and that he had no title to assign,” counsel for the respondent was obliged to confess his inability to support them. The learned judge seems to think that evidence given by a purchaser of land that a third party has trespassed upon a portion of the land he has purchased, is conclusive proof that the vendor has committed a breach of his covenants, whatever those may be. The respondent admitted that he was given vacant possession of the land, and that he was in possession when the third party entered upon it. In those circumstances his remedy lies in an action for trespass against the third party, not against his vendor. To succeed on his claim the respondent must prove positively that the appellant had no title to the land. We are unable to find any evidence or even an allegation that the appellant’s lease is not valid. There is therefore no basis for the findings made by the learned judge on the issue of title.

The only covenant on the part of the appellant in the deed of assignment, exhibit A, is as follows: “AND the Vendor doth hereby COVENANT with the Purchaser his heirs and assigns that HE the Vendor had not at any time done or knowingly suffered or been party or privy to any act, deed or thing whereby he is prevented from assigning the said hereditaments in manner aforesaid or whereby the same or any part thereof are in or may be in anywise encumbered or affected in title or otherwise.”

That, by the common law, is the only covenant binding upon the appellant, the breach of which will render the appellant liable in damages to the respondent. It was not alleged that the appellant had committed a breach of that covenant.

[p.398] of [1963] 1 GLR 393

Not one of the findings made by the learned judge can be supported either upon the facts or upon the law, and her judgment therefore must be set aside.

In the result we allow the appeal, set aside the judgment of the High Court including the order as to costs, the costs if paid should be refunded. For the judgment of the High Court we substitute the following: The plaintiff’s claim is dismissed and judgment entered for the defendant.

The appellant will have his costs in this court fixed at £G50 1s. and his costs in the High Court to be taxed.

DECISION

Appeal allowed.

Judgment for the appellant.

J. D.