OTOO v. BINEY AND ANOTHER [1966] GLR 136

Division: HIGH COURT, CAPE COAST

Date: 10 FEBRUARY 1966

Before: ARCHER J.

CASES REFERRED TO

(1) Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C.

(2) Nkyi XI v. Kuma (Bedu subst.) [1959] G.L.R. 281, C.A.

(3) Pappoe v. Wingrove & Co., Ltd. (1922) D.C. ‘21-’25, 20.

(4) Concession Enquiry No. 1016 (Secondee) (1911) 2 Ren. 592.

(5) Coleman v. Mann, High Court (Lands Division), Cape Coast, 18 November 1950, unreported.

(6) Cofie v. Otoo [1959] G.L.R. 300.

NATURE OF PROCEEDINGS

ACTION for damages for trespass and perpetual injunction against further trespass. The facts are fully set out in the judgment.

COUNSEL

Hayfron-Benjamin for the plaintiff.

I. K. Abban for the defendant and co-defendant.

JUDGMENT OF ARCHER J.

The plaintiff by her writ of summons claimed damages for trespass committed by the defendant on the plaintiff’s land and prayed further for a perpetual injunction restraining the defendant. The plaintiff’s case is that she bought for £G600 a piece of land at Aboom Wells Road, Cape Coast, by auction conducted by private treaty by a licensed auctioneer named Essien. As a result of this sale a deed of conveyance, exhibit B, was executed in her favour by the vendor William Essuman-Gwira Sekyi, the administrator de bonis non of the estate of William Edmund Pieterson deceased of Cape [p.138] of [1966] GLR 136

Coast. Immediately after the sale she took possession of the land which included premises situated on the western portion of the land. In the year 1962, the plaintiff discovered that the defendant had trespassed on the land by erecting pillars and by commencing building operations notwithstanding the plaintiff’s warnings to the defendant to keep off the land. The defendant’s case is that he approached the co-defendant for land to build on in 1960. The co-defendant assured him that the land in dispute was free to be sold, and after making searches at the Accra and Sekondi deeds registries which revealed that there were no registrations in respect of this piece of land, he took a conveyance from the co-defendant for the purchase price of £G141 15s. including £G6 15s. trama. He stamped and registered his deed of conveyance exhibit 1. The defendant therefore maintained that as a purchaser for value without notice who had registered his conveyance, his deed enjoyed priority over the plaintiff’s unregistered conveyance by virtue of section 21 (1) (b) of the Land Registry Ordinance1 The defendant further maintained that the plaintiff was never in possession of the land covered by the defendant’s deed of conveyance and had never exercised any rights of ownership over this land.

This is a formidable defence and according to law the plaintiff by suing in trespass and claiming an injunction against further trespass had put her title in issue: see Kponuglo v. Kodadja2 followed in Nkyi XI v. Kuma (Bedu subst.).3 The plaintiff did not and in fact could not deny the fact that her deed of conveyance was not registered but relied solely on the fact of her possession and the provisions contained in the Land Registry Ordinance, s. 24 which reads, “Registration shall not cure any defect in any instrument registered, or confer upon it any effect or validity which it would not otherwise have had.” On the strength of this section, learned counsel for the plaintiff submitted that the co-defendant had no power to convey the land because, as an administrator de bonis non, the grant to administer the estate could not cover the realty or immovable property of the late Pieterson. When this submission was made, my mind with supersonic speed travelled to the aphorism that those who live in glass houses should not throw stones. How and from whom did the plaintiff herself obtain her conveyance? She took her grant also from an administrator de bonis non and if the plaintiff’s counsel submission were sustainable then the plaintiff herself took no grant at all. When the executor of late Pieterson died, the plaintiff’s grantor, William Essuman-Gwira Sekyi, carried out the directions in the will of the late [p.139] of [1966] GLR 136

Pieterson to the effect that the land known as Pieterson Estate should be sold after 21 years from the death of Pieterson. The power to sell was contained in the will and it was not derived from the letters of administration granted to William Essuman-Gwira Sekyi as administrator de bonis non. Similarly when Mr. Sekyi died leaving the estate of Pieterson not fully administered, the co-defendant, a beneficiary under Pieterson’s will, applied to the court for a grant to enable him to complete the administration, that is; to carry out the directions in regard to the late Pieterson’s estate. It is therefore impossible to hold that there was a defect in the title of the co-defendant as vendor to the defendant. Learned counsel for the, plaintiff relied on the case of Pappoe v. Wingrove & Co., Ltd.,4 where Smyly C.J, held that an administrator who is granted letters of administration, “does not, by reason of those letters, obtain control over the real estate of the deceased, although he may have such control by reason of the Native Law and Custom, independently of such letters.” Until the coming into force of the Administration of Estates Act, 1961,5 that principle was unassailable law. Now, the Ghana High Court has jurisdiction to grant letters to cover both movable and immovable property but it is obvious that the applicant must specifically apply for the grant to cover the immovable property after declaring it.

Nevertheless, the principle in Pappoe v. Wingrove & Co., Ltd. (supra) does not apply in this present suit because the co-defendant did not apply for letters simply to administer the estate of Pieterson but was granted letters as administrator de bonis non to carry out the wishes of the testator. The power to sell the land was conferred by Pieterson on his executor, and both the plaintiff’s grantors stepped into the shoes of the deceased executor one after the other with the approval of the court. The power to sell was not conferred by the court but by the testator Pieterson himself and the court lawfully granted the co-defendant consent and authority to exercise the power of sale.

Later when learned counsel for the plaintiff realised that this submission was vulnerable he very sincerely switched his ground and relied on the fact of possession by the plaintiff as there was no defect in the co-defendant’s title to sell the land to the defendant. Learned counsel for the defendant had earlier drawn my attention to the case of Concession Enquiry No. 1016. (Secondee)6 where Brandforth Griffith C.J. expressed the following view on section 20 of the Land [p.140] of [1966] GLR 136

Registry Ordinance, 1895,7 the equivalent of section 24 of the Land Registry Ordinance.8 He said: “There is one more point upon which I would touch. Section 20 of the Land Registry Ordinance, 1895, declares that ‘registration shall not cure any defect in any instrument registered, or confer upon it any effect or validity which it would not otherwise have had.’ This can only mean that registration will not cure such a defect, as an invalid execution, will not confer upon an instrument registered but not duly stamped the effect of a duly stamped instrument, nor if otherwise invalid will registration give it validity, e.g., registration will not cure fraud or a bad title in the vendor . . . Section 20, therefore, can only refer to some defect or invalidity inherent in the instrument apart from the priority obtained by means of registration.” In the present case I cannot find any defect or invalidity inherent in the defendant’s deed of conveyance, exhibit 1.

I shall now deal with the plaintiff’s evidence that she has been in possession of the land granted by exhibit B which is described in the exhibit as follows:

“All that portion or piece or parcel of land lying being and situate at Aboom Cape Coast aforesaid containing by a measurement 1.02 acres or thereabouts and bounded and measuring as follows that is to say on the north by plots No. 109, 119, 120 and 121 on the south by 25 feet road 335 feet on the east by Pieterson’s land and plot No. 23 150 feet and on the west by Kissi’s property and 25 feet road 204 feet as more clearly delineated in the plan hereto attached.”

It has been strongly urged by learned counsel for the defendant that the plan in exhibit B is not the original plan and that the present plan attached to exhibit B has been purposely prepared for the purpose of this action. I cannot find any substance in this allegation. If learned counsel had wanted to allege fraud so far as this plan is concerned he should have cross-examined the plaintiff and her witnesses on it. It was therefore unfortunate that in the flush of enthusiasm during his address, he, perhaps without ill-motive, challenged the authenticity and genuineness of the plan.

It appears that when this land was sold to the plaintiff she resided in the premises on the western side of the land and lived there intermittently. She brought Mr. J. G. Aggrey, a building contractor, who [p.141] of [1966] GLR 136 testified that he was made a caretaker of the land and he was instructed to put boundary pillars of about five feet high and to fence the land with barbed wire. Mr. Aggrey further stated that he was responsible for weeding the land including the area trespassed upon and that all warning notices were sent to him by the municipal council.

The town clerk also gave evidence that notices to weed this land had been issued to the plaintiff through Mr. Aggrey on the instructions of the plaintiff’s son Mr. A. R. Otoo. He tendered three notices, exhibits C1-C3, one issued on 19 October 1964 and addressed to Mrs. Josephine Otoo per J. G. Aggrey in respect of house No. E78/3 Aboom Wells Road, Cape Coast. The other two notices are dated 3 May 1963 and 19 May 1965 addressed similarly but in respect of house No. F11C/3. There was no evidence led to show that the different house numbers relate to the same land. In any case, these notices were issued after the writ had been issued on 6 June 1962 and after the alleged trespass. It is therefore not safe to rely on these notices. It is also dangerous to rely on any of the stumps for the notices for 1964 and 1965 tendered as exhibits D2 and D3. In any case I cannot find any stumps addressed to the plaintiff. I have also examined the stumps for the period 27 November 1957 to 4 July 1958 tendered as exhibit D1 and I have not been able to trace any useful or relevant information except a notice dated 5 June 1958 addressed to Mr. A. R. Otoo, c/o E. A. Chinebuah, Ministry of Communications, Accra, in respect of land at Aboom Wells. However in the absence of any house number I am unable to infer that this notice referred to the plaintiff’s land.

According to the auctioneer Essien he gave possession of the land sold to the plaintiff but what the court has to consider is whether the plaintiff exercised dominion over all the land she purchased. In cross-examination, she stated that she did not put pillars around the boundaries and she did not fence the land. Mr. Aggrey has testified that there are pillars on the boundaries of the land, yet the surveyor Mr. Hagan who surveyed the land by consent of both parties has explained that he did not see any corner pillars on the land and he was not shown any by Mr. Aggrey who instead pointed out certain features on the land as the plaintiff’s boundaries. There is no doubt that the plaintiff became owner of this land after her son A. R. Otoo had purchased it for her from the auctioneer Mr. Essien. She lived in the premises on the western side and thought everything was in good order. The eastern portion was not built upon and there were no boundary pillars nor a fence to warn off trespassers. The land extended 335 feet on the south.

[p.142] of [1966] GLR 136

The co-defendant was emphatic that he always caused the land in dispute to be weeded and he did not receive any complaint from his labourers that anybody opposed them. This was not challenged in cross-examination and the court was left in doubt as to who weeded the portion trespassed upon. The defendant built up to a height of five feet or six feet before the interim injunction was placed on both parties. One then begins to wonder what the plaintiff, her representative or caretaker, or the tenants in her house were doing when the defendant started to dig the foundation after clearing the land. The impression I gained was, that the plaintiff was not fully aware of the extent of her boundaries until her son A. R. Otoo discovered that the defendant had committed trespass on the land the son purchased for her. Accordingly I find that although the plaintiff took effective possession of the premises on the western portion of the land and resided there, she did not take adequate steps to exercise her dominion on the eastern portion of the land and as a result when the co-defendant became administrator de bonis non, he was presumably misled into believing that the portion of the land edged green on exhibit A was unsold. Assuming also that the co-defendant knew that the whole of the land edged pink had been purchased by the plaintiff, no evidence has been led to prove that the defendant had notice of the previous sale to the plaintiff. However, I am not sure whether the conduct of the co-defendant is free from blame. In one of the recitals in exhibit 1, that is the defendant’s deed of conveyance, it is stated: “And whereas the said William Essuman-Gwira Sekyi Esquire the administrator de bonis non of the said estate of William Edmund Pieterson deceased in pursuance and in course of administration hath laid out the said piece or parcel of land described in the indenture of 3 November 1884 aforementioned in a building scheme . . .”

It is obvious that the co-defendant knew that his predecessor in title had prepared a building scheme for the estate and plots had been demarcated. The plaintiff bought her land on 4 November 1955 from the predecessor of the co-defendant and the plot bought by the plaintiff is clearly marked as an entity with premises on the western side. Did the co-defendant consult the building scheme? I do not think so. When the plaintiff took her grant there was no plot No. 120A adjoining plot No. 120. Yet in 1961 when the defendant took his grant, a plot No. 120A was carved out of the total area bought by the plaintiff. In the plan attached to the defendant’s deed, the house on the western side is clearly shown. The co-defendant knew that that house together with the immediate land on the west was occupied by [p.143] of [1966] GLR 136 the plaintiff, yet in 1960 when the plan exhibit 1 was drawn up, no reference was made to the plaintiff at all as the owner of the house and land on the western side, rather we have this description “to the west by open land belonging to Pieterson estate.”

The co-defendant litigated with his predecessor over this estate and must have taken keen interest to know what portions of the land his predecessor had sold as he was interested in the proceeds of sale. He testified further that he knew that one Mr. Selby was in charge as surveyor of the estate. There is no indication that the co-defendant contacted Mr. Selby or the auctioneer Essien or the solicitor who instructed Essien, the auctioneer, before he sold the land to the defendant. The defendant’s counsel has found annihilating ammunition in section 21 (1) (b) of the Land Registry Ordinance (supra) which provides that every instrument shall so far as regards any land affected thereby, take effect as against other instruments affecting the same land from the date of registration provided that it shall take effect from the date of its execution if registered, in the case of an instrument executed outside the place in Ghana where it is registered, within the period of 60 days from its date.

The defendant’s deed was registered on 10 June 1961 after its execution on 25 April 1961, i.e. within 60 days and accordingly it takes effect from the date of its execution.

The defendant’s learned counsel also referred me to the case of Concession Enquiry No.1016 (supra) and also the cases of Coleman v. Mann,9 a judgment of van Lare Ag. J. (as he then was) and Cofie v. Otoo.10 These judgments, so far as section 21 (1) (b) of the Land Registry Ordinance is concerned, support the defendant’s case.

Brandford Griffith C.J. in the Concession Enquiry case expatiated upon the raison d’etre of land registration and after referring to the earlier English Acts said11:

“Now it will be noted that under these acts non-registration does not make a conveyance affecting land fraudulent and void. An unregistered conveyance is perfectly good against all the world, except a person with a registered title for valuable consideration. When a vendor conveys land under these acts the conveyance is good as against the vendor, and the vendor as against the purchaser has no further title to the land. If the vendor made a subsequent conveyance of the same land, but not for valuable consideration, such conveyance being registered, would have no effect against a prior unregistered conveyance. Yet if the purchaser neglects to register his conveyance

[p.144] of [1966] GLR 136 the vendor, although he apparently has no title to the land which he has conveyed away, may make a second conveyance of the same land for valuable consideration, and if the second purchaser has no notice of the prior conveyance and registers he will be deemed to be the owner of the land, and the conveyance to the first purchaser will be deemed to be fraudulent and void. The principle to be deducted is that in a country where a registration law is in operation a vendor of land does not wholly divest himself of his estate until registration has been duly effected. As long as the conveyance remains unregistered, so long does the title of the purchaser remain imperfect, and so long does there exist in the vendor a right to the extent of the imperfection of the purchaser’s title. It is only upon this theory that a registration law which gives priority by registration can be reconciled with the ordinary canon of law that a vendor by a sale of land divests himself of all estate in such land. Consequently neither under the English acts, not under our local ordinance, does the purchaser acquire a perfect title until he has registered, nor is the vendor absolutely divested of his estate in land conveyed until the conveyance has been registered.”

I have quoted this passage in extenso because it is so illuminating.

I therefore find that by failing to register her deed of conveyance and by not taking effective steps to exercise ostensible dominion and possession of the area of land granted to the defendant by the co-defendant, who is the plaintiff’s grantor’s successor, the plaintiff has not legally established her title to the piece of land claimed by the defendant on the plan exhibit A edged green and accordingly has failed to prove that the defendant’s deed was registered whereas the plaintiff’s deed was not registered, the defendant is entitled as a purchaser for value without notice to the land conveyed to him by the co-defendant.

I have made these findings purely on the evidence and on the relevant statutory law. These are hard findings but I am consoled by the fact that the plaintiff is not remediless as she may have an action against the co-defendant who is the plaintiff’s grantor’s successor and privy and who is bound by the implied covenant that a grantor shall not derogate from his grant. I am also aware that the plaintiff may have an action against her solicitor for failing to advise her to register her deed of conveyance to protect her interest.

The law, it is said, is an unruly steed. So is section 21 of the Land Registry Ordinance. I have tried in vain to invite her to the river banks of equity and good conscience to drink deep in order to [p.145] of [1966] GLR 136 mitigate her rigour; but she has declined the invitation because Parliament has bestowed upon her an immutable will replete with self-righteousness and self-sufficiency. With the greatest reluctance therefore I am compelled to dismiss the plaintiff’s claim. Judgment is hereby entered in favour of the defendant with 50 guineas costs.

DECISION

Judgment for the defendant with costs.

E. D. K.