LARTEI v. FIO [1960] GLR 119

DIVISION: IN THE HIGH COURT (LANDS DIVISION), ACCRA

DATE: 9TH MAY, 1960

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Adjare v. Annang W.A.C.A. 3rd December, 1946, unreported;

(2) Hervi and Others v. Wirisi III 12 W.A.C.A. 256.

NATURE OF PROCEEDINGS

APPEAL from a decision of the West Akim Abuakwa Local Court “A” on November 19, 1959 in an action for specific performance of a contract for the sale of land and damages for trespass.

COUNSEL

No appearance by plaintiff.

A. Asafu- Adjaye for defendant.

JUDGMENT OF OLLENNU, J.

(His lordship referred to the claim and continued). It was submitted on behalf of the appellant that the proceedings before and the judgment of the Local Court “A” are null and void for want of jurisdiction, because the claim is for specific performance, an equitable relief which the Local Court is not vested with jurisdiction to grant. There is no doubt thatbunder section 15 of the Native Courts (Southern Ghana) Ordinance, Cap. 98, cases which a native court is empowered to entertain are those involving customary law; it is true also that specific performance is an equitable relief. But it does not follow that every claim which a Ghanaian makes to compel another Ghanaian to fulfil a promise or an agreement is a claim for specific performance under English principles of equity. Long before the introduction of English law into this country a person could be compelled by the Council of the Chief to fulfil his promise or comply with the terms of an agreement he enters into with his neighbour where such compulsion could be effectively carried out.

Thus where a person bargains and sells land to his neighbour, but fails to put him in possession, the elders would compel the vendor to give possession of the land sold to the purchaser, and upon his default the elders themselves would go upon the land known to belong to the vendor, and out of it demarcate for purchaser a position equal in size to the dimensions agreed between the parties. There is nothing in this case to show that the parties agreed or must be deemed to have agreed that their obligation in their transaction out of which the suit arose should be governed by principles of English law.

A claim for specific performance of a contract for the sale of land is a suit relating to ownership, possession and occupation of land. In the absence of any agreement between the parties which shows that they intended that their obligations under that contract should be regulated by English law, customary law is the law applicable. Adjare v. Annang (unreported), and Hervi and Others v. Wirisi III (12 W.A.C.A. 256).

In my opinion the native court had jurisdiction to try the suit.

Secondly the nature of the proceedings, and the alternative claim for damages show that the claim is really for an order for recovery of possession of land, the ownership of which, according to the plaintiff has already passed to the plaintiff’s predecessor, and nothing more, and that was precisely what the native court purported to try. (His lordship reviewed the evidence and continued): Upon that evidence, the local court should have dismissed the plaintiff’s claim.

But apart altogether from consenting to the defendant having the one rope of land, Kwaku Broni’s conduct in sitting by for thirty years, and allowing the defendant to spend money and labour all those years to develop the land in the honest belief that he had title to it, makes Kwaku Broni and his family guilty of laches. He, Kwaku Broni and his successors are estopped from recovering possession of the land by reason of that laches. For these reasons I allow the appeal and set aside the judgment of the local court including the order as to costs, any costs paid to be refunded. For that judgment I substitute the following: The plaintiff’s claim is dismissed and judgment entered for the defendant.

DECISION

Appeal allowed.