BINEY v. EFFIE [1966] GLR 277

Division: HIGH COURT, CAPE COAST, RE PUBLIC LANDS

ORDINANCE, CAP. 134

Date: 31 MARCH 1966

Before: ARCHER J.

CASE REFERRED TO

Chandiram v. Ghana Commercial Bank [1960] G.L.R. 178 sub nom. Ghana Commercial Bank v. Chandiram [1960] A.C. 732; [1960] 3 W.L.R. 328 104 S.J. 583; [1960] 2 All E.R. 865, P.C.

NATURE OF PROCEEDINGS

ACTION by the claimants for compensation for land acquired by the Government of Ghana. The facts are sufficiently set out in the judgment.

COUNSEL

Dr. de Graft-Johnson for the first claimant.

I. K. Abban for the second claimant.

JUDGMENT OF ARCHER J.

By lands notice No. 936 published in the Ghana Gazette of 6 May 1958, the Ghana Government gave notice under the Public Lands Ordinance1 as follows:

“All that piece or parcel of land comprising an area of approximately 1.26 acres situate at Cape Coast in the Cape Coast

[p.278] of [1966] GLR 277 District of the Western Region of Ghana lying between Commissioner Road, King Street and Victoria Road and approximately 300 feet west of the E. C. M. Church which piece or parcel of land is more particularly delineated on Plan No. L.D. 3389/16947 and thereon shown edged pink is required for the service of Ghana.”

By a certificate of title registered at the Deeds Registry as No. 2153/1958 and published as Notice No. 1878 in the Ghana Gazette of 6 September 1958, the High Court declared and vested the above mentioned piece of land in the then Governor-General of Ghana. The land acquired comprised various plots of land including land with premises thereon formerly known as No. 10 Victoria Street and subsequently re-numbered as house No. C57/1 Victoria Street, Cape Coast.

A number of persons put in claims to the compensation in respect of the land and house known as No. C57/1 Victoria Road. Ultimately, the number of claimants dwindled to two, namely, Joseph William Biney of Sekondi on the one hand hereinafter referred to as the first claimant and Araba Effie on the other hand, hereinafter referred to as the second claimant. In view of the conflict, the matter was referred to this court on 5 February 1963 by the Chief Lands Officer as required by the Public Lands Ordinance. The amount of compensation for this portion of the whole land acquired is £G750.

The first claimant gave evidence and called four witnesses. His case is that on 23 August 1946, he bought for £G8 house No. C57/1, Victoria Street, Cape Coast at a public auction held on the 23 August 1946. On 16 January 1947 he obtained a certificate of purchase, exhibit A, from the district magistrate at Cape Coast and this certificate was registered in the Deeds Registry as No. 406/1948. He submitted that the sale was never set aside by the court and at the date of the acquisition of the land by the government, he was the legal owner and as such he is entitled to compensation in respect of the land.

The second claimant is dead and she was substituted by Kwesi Badu who gave evidence and called one witness. The case for the second claimant is that she bought house No. C57/1 Victoria Street, Cape Coast from one Albert Horace de Graft-Johnson by a deed of conveyance dated 10 April 1943. The house was formerly known as Sea View house No. 10 Victoria Street, Cape Coast. After the purchase, she defended her ownership in various court actions and by a judgment of Windsor-Aubrey J. dated 17 July 1950 in the case of Araba Effie v. W. E. Kwesi Johnson, she was declared the owner. A copy of the said judgment was tendered as exhibit 1. This judgment

[p.279] of [1966] GLR 277 was confirmed by the then West African Court of Appeal on February 1953.2 It appears from the evidence that on 12 January 1943 one A. H. de Graft-Johnson purported by a document to sell the house in question to W. S. Kwesi Johnson. On 10 April 1943, the same A. H. de Graft-Johnson conveyed the same property to Araba Effie. In suit No. 7/1944 between A. W. Stanhope v. A. H. de Graft-Johnson and W. S. Kwesi Johnson, the plaintiffs therein claimed the property in question as family property and on 28 April 1947, Jackson J. gave judgment by exhibit F and declared W. S. Kwesi Johnson to be the purchaser of the house. That decision was confirmed by the West African Court of Appeal.

It is therefore obvious that at the time of the sale by public auction to the first claimant on 23 August 1946, two actions were pending in respect of the same house. The second claimant took out her writ against W. S. Kwesi Johnson on 14 May 1943 and I must say right now that she is not bound by the judgment given in the Stanhope v. de Graft-Johnson case as she was not a party to it. It was not necessary for her to have joined in that suit, as it has been suggested that she should have joined, because she took her writ earlier against W. S. Kwesi Johnson. Assuming therefore that there had been no sale by public auction at the instance of the Cape Coast Municipal Council of the said house, the legal owner of the house in question would be the second claimant in view of the judgment in exhibit 1. However, it appears that when the second claimant purchased the property, her name was not entered as the owner of the house in the books of the Cape Coast Municipal Council. W. S. Kwesi Johnson had his name as the owner in the books of the municipal council. It is evident from exhibit B that although W. S. Kwesi Johnson’s name was in the books, the second claimant paid the house rates from 1942 to 1944. There is no evidence that she paid any rates thereafter and there is no evidence that W. S. Kwesi Johnson also paid rates after 1944.

Accordingly, on 23 August 1946, the Cape Coast Municipal Council sold to the first claimant by public auction the house in question for the house rates for the period 1945-46. The second claimant applied to the District Magistrate’s Court at Cape Coast with an affidavit, exhibit B, in support of her application to set aside the sale on the ground that “the sale was irregular in that it was not properly conducted in accordance with law.” The town clerk of the then council swore to exhibit R. The agent who bought the house

[p.280] of [1966] GLR 277 for the first claimant at the public auction swore to exhibit S and the licensed auctioneer who conducted the sale swore to exhibit T to indicate that the sale was proper and regular. The second claimant did not challenge the contents of exhibits B, R and S but on 30 October 1946, according to the record of proceedings before the district magistrate, exhibit C, the motion by the second claimant who was represented by counsel on that date was abandoned with liberty and struck out with costs. The second claimant made no further attempt to set aside the sale.

It has strongly been urged on behalf of the second claimant as a result of the counterclaim filed by her that the sale was fraudulent on the ground that although the house was worth about £G600 it was sold for only £8. It was also submitted that the first claimant who bought the house by his agent at the public auction was a member of the family of W. S. Kwesi Johnson who was a member of the then Cape Coast Municipal Council and wielded considerable influence in the decisions of the council and who in collusion with the auctioneer conspired to secure a very low price for the house to the detriment of the second claimant.

The second claimant was not a stranger in Cape Coast and must have known that W. S. Kwesi Johnson was a member of the Cape Coast Municipal Council and had a say in the affairs of the council. Why did she not raise these allegations of fraud when she applied in the first instance to set aside the sale? The price at which the house was knocked down no doubt appears disappointing and may appear as illusory, but the affidavit of the first claimant’s agent in exhibit S contains so much detail to enable the second claimant to have investigated the veracity of the contents of that affidavit. It is true that W. S. Kwesi Johnson was a councillor at the time and knew that two actions relating to the same property were pending at the time of the sale. He has denied any prior notice of the sale. As the evidence stands, it is impossible for me to hold that the sale was fraudulent. Learned counsel has submitted that if I cannot find fraud then I must find something bordering on fraud or on the verge of fraud. I must confess that my judicial habits have no accommodation for acts of brinkmanship and I am therefore unable to hold that the sale was conducted on the brink of fraud. W. S. Kwesi Johnson stopped paying the house rates from 1942 and this is clear from the second claimant’s own admission in exhibit B paragraphs (4) and (5) of which read:

“(4) That the said defendant (W. S. Kwesi Johnson) was by the terms of his tenancy paying all town council rates in respect of the said house up to December, 1941. [p.281] of [1966] GLR 277

(5) That since I became owner of the said house I had paid house rates of the said house from 1942 to 1944, the three receipts for the periods for which I paid are now produced and shown to me and marked exhibit A, B and C dated respectively, 31 July, 1943, 31/7/44 and 27/1/45. “ There is no testimony to the effect that at the time of the sale by the public auction, town rates were not overdue for the year 1945-46. W. S. Kwesi Johnson had stopped paying the rates at the end of 1941 and the second claimant had assumed payment of the rates thereafter although she had not taken steps to register her name as owner in the books of the council. My impression is that W. S. Kwesi Johnson expected her to pay as she had been paying from 1942 to 1944.

I therefore find that at the date of sale by public auction of house No. C57/1 Victoria Street, house rates for the year 1945-46 were overdue and the Cape Coast Town Council was entitled by virtue of the Cape Coast Town Council Ordinance, 1944,3 ss. 92,93 and 94 to sell the house to recover the arrears of rates. This finding brings me to the most interesting point of law in these proceedings.

It has been advocated on behalf of the second claimant that according to the judgment in exhibit 1, the second claimant had been legal owner of the house since 1943. The certificate of purchase reads: “This is to certify that J. W. Biney has been declared the purchaser of the right, title and interest of W. S. Kwesi Johnson in the messuages, lands and tenements hereinafter mentioned that is to say … House No. C57/1, Victoria Road, Cape Coast.”

It means that the first claimant took only whatever interest W.S. Kwesi Johnson had in the house. Moreover as W. S. Kwesi Johnson had no interest in the house, the first claimant bought nothing. This is an ingenious argument in the circumstances and I do not blame learned counsel for the second claimant for invoking this principle which he cited from Chandiram v. Ghana Commercial Bank.4 My own view is in agreement with the submission of learned counsel for the first claimant that in cases of this sort where the municipal council levies for its outstanding rates, the judgment debt is not against the owner of the house per se so as to enable the council to attach and sell any movable or immovable property of the owner within the jurisdiction. The rates recoverable are not in respect of the owner but in respect of the house rated—that is the premises.

[p.282] of [1966] GLR 277

The Second Schedule to the old Courts Ordinance5 now repealed, still applied in the district court by virtue of section 89 (4) of the Courts Act, 1960,6 and was in force in 1947 when the public auction of the house in question took place. Rule 34 of Order 45 in the Second Schedule reads:

“After a sale of immovable property shall have become absolute in manner aforesaid, the Court shall grant a certificate to the person who may have been declared the purchaser at such sale, to the effect that he has purchased the right, title and interest of the judgment debtor in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title, and interest.”

This is a rule of general application and I am satisfied that as there is no special form of certificates of purchase where houses have been sold for arrears of rates, the usual court certificate of purchase was used and the name of W. S. Kwesi Johnson was inserted as the owner because the books of the Cape Coast Municipal Council had registered his name as owner.

On the other hand, when one reads sections 91 to 94 of the Cape Coast Town Council Ordinance, 1944,7 the reference throughout is to “premises” and not to the owner of the premises. Section 94 reads: “…If the District Magistrate . . . is satisfied that . . . the amount of the Town Rate due in respect of such premises has not been paid, he shall order the premises to be sold to defray such amount.” Again section 92 (2) reads:

“Any premises ordered to be sold to defray the amount of the Town Rate shall be sold under the direction of the Sheriff, in the same way and under the same conditions, as if such premises were being sold in execution of a decree under Order 44 of Schedule 3 to the Courts Ordinance: Provided that, if, at any time during the proceedings before the sale of such premises, payment of the amount of the Town Rate due and of all expenses properly incurred is made, all further proceedings shall cease; but, if no such payment be made, and the premises be actually sold, and the sale becomes absolute within the meaning of the said Order 44, the Court shall grant a certificate to the person who may have been declared the purchaser at such sale to the [p.283] of [1966] GLR 277 effect that he has purchased the premises under the provisions of this Ordinance; and the said certificate shall confer on the said purchaser an absolute and indefeasible right to the premises comprised therein against all persons, and free from all adverse or competing rights, titles, interests, trusts, claims, and demands whatsoever, saving always the rights of the Crown.”

Section 94 is now repealed but has been re-enacted by section 94 of the Local Government Act, 1961.8 I think the difference is ostensibly and demonstrably discernible. When a writ of fi. fa. is issued against a judgment debtor and executed against immovable property, the certificate of purchase, issued by the court after the sale has become absolute, is to the effect that the vendee “has purchased the right, title and interest of the judgment debtor in the property.” If therefore the sale is made absolute in such a case, the vendee will take nothing if in fact the judgment debtor had no right, title and interest in the property. What the vendee has procured is merely a piece of fanciful paper worth nothing.

Whereas in the case of a writ of ft. fa. by a district court at the instance of a municipal council against premises for non-payment of rates, the court, is required by law to “grant a certificate to the person who may be declared the purchaser at such sale to the effect that he has purchased the premises” and such certificate shall confer on the said purchaser an absolute and indefeasible right to the premises comprised therein against all persons, and free from all adverse or competing rights, titles, interests, trusts, claims and demands whatsoever, saving always the rights of the Crown now the State.

Throughout the whole evidence before the court, one fact stands out clearly shining with exceptional effulgence. On the date of the sale of the premises by public auction, town rates were outstanding on the premises. This fact is not denied by the parties. The Cape Coast Municipal Council therefore exercised its lawful right and sold the premises. The sale was never set aside on the ground of irregularity or other ground allowed by law. I have not been able to find any evidence of collusion between the first claimant, the auctioneer, the then town clerk of the town council and W. S. Kwesi Johnson to defraud the second claimant. Am I to infer fraud simply from the fact that W. S. Kwesi Johnson was a member of the then town council and that the purchaser, the first claimant was his relative? Or from the fact that the house was sold for £8 only? I do not think it is safe to draw such an inference in view of the possibility that W. S. Kwesi Johnson could have bought the house himself as a [p.284] of [1966] GLR 277 bidder at the auction sale. Learned counsel for the second claimant has as I have already said, submitted that the conduct of W. S. Kwesi Johnson borders on fraud. My own view is that an act or transaction is either a fraud or it is not. There is no room for near-frauds, neo-frauds, or quasi-frauds. Accordingly, I find that at the time of the acquisition, the first claimant had acquired an indefeasible and absolute title to the premises in question and that exhibit A was inadvertently or wrongly worded to indicate that the first claimant had bought the right, title and interest of W. S. Kwesi Johnson, whereas the law at the time enjoined the court to issue a certificate to the effect that the first claimant had purchased the premises free from all adverse or competing rights, titles, interests, trusts, claims and demands except the rights of the Crown at the time. The first claimant is therefore declared by this judgment to be entitled to the compensation in respect of house No. C57/1 Victoria Street, Cape Coast. No order as to costs.

DECISION

Judgment for the first claimant.

S. K. T.