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Land law and conveyancing – Land Development (Protection of Purchasers) Act 1960 (Act 2) – Building – Defendant omitting to conduct search before purchasing property – Vendor not owner – Whether defendant erected building in good faith – Land Development (Protection of Purchasers) Act 1960 (Act 2) s 1(1)(b).

Land law and conveyancing – Land Development (Protection of Purchasers) Act 1960 – Building – Erection – Defendant to establish substantial erection prior to challenge of defendant’s title or issue of writ – Land Development (Protection of Purchasers) Act 1960 (Act 2).

The plaintiff acquired the disputed land from the Onamroko Adain family and moved into possession. The defendant commenced building operations on the land and the plaintiff instituted an action in the High Court for a declaration of title to the land. The defendant claimed the adjoining land from the Onamroko Adain family but explained that in demarcating the land the surveyor unwittingly plotted the plaintiff’s land. The defendant therefore invoked Act 2. The trial judge entered judgment for the plaintiff and the defendant appealed.

Held: (1) The onus lay on the defendant to satisfy the court under s 1(1)(b) of Act 2 that he was a purchaser of the land and had erected the building on the land in good faith. The record established that he failed to conduct a search, which would have warned him that his vendor was not the owner. He was in a hurry to complete the house and was not prepared to conduct the search or even seek planning approval. He was not the purchaser to benefit under s 1(a) and (b) of Act 2.

(2) Under s 4(2) of Act 2 a building was deemed to be erected if a greater part was erected. The provision enjoined the defendant to establish such substantial erection at the time that the plaintiff challenged the defendant’s title or issued the writ of summons against the defendant. On the facts the plea failed.

APPEAL to the Court of Appeal against the judgment of the High Court.

E A Mingle for the appellant.

L N Otoo for the respondent.

LAMPTEY JA. Sometime in January 1966 the Onamroko Adain family made a customary grant of a plot of land at Tantra Hill, Accra to Peace Aku Banini (hereinafter referred to as the plaintiff). In 1977 the above transaction was reduced into writing and an indenture thereon was duly executed by all the parties. The plaintiff duly stamped and registered the indenture. The plaintiff planted four pillars to mark and demarcate the boundaries of her plot of land. She also engaged the services of Albert Nyame Ashitey, PW1 as a caretaker over her plot of land.

Sometime in 1982 Ashitey, PW1, noticed that building operations had been commenced on the plaintiff’s land. Ashitey promptly warned the building contractor to stop work and to leave the land but his warning was ignored by the contractor and his workers. They continued the building operations on the land. The plaintiff was informed by Ashitey that a building was being put up on her plot of land. She also warned the building contractor to stop work. Her warning was treated with contempt and ignored. She caused to be placed on the land a signboard with “Stop work”. Since the building contractor persisted in continuing the building operations and the act of trespass, the plaintiff sued George Adams (hereinafter called the “defendant”) who had purchased a plot of land adjoining the land of the plaintiff and had engaged the building contractor to put up the offending dwelling house on a part of plaintiff’s plot of land. The plaintiff claimed against the defendant the reliefs endorsed on the writ of summons; in particular, the plaintiff sought a declaration of title to the land described in the writ of summons under head (a).

In his statement of defence, the defendant claimed that he obtained his title from the Onamroko Adain family; that in demarcating the common boundary between his plot of land and that of the plaintiff, the surveyor had unwittingly trespassed into the plaintiff’s plot by some 22 feet. This admission notwithstanding, the case proceeded to trial because the defendant had invoked the provisions of Act 2 in support of his case. At the end of the hearing on the merits, the case of the defendant was rejected. Judgment was entered for the plaintiff for all the reliefs he had sought and claimed, except that, the plaintiff was not awarded damages for the trespass committed by the defendant. I must observe that the plaintiff had not cross-appealed against this omission on the part of the trial judge. The defendant was aggrieved by the decision of the lower court which dismissed his defence and his plea to rely on and benefit from Act 2.

The appeal raises the sole issue whether the trial judge erred in law in dismissing the defence founded on Act 2. The onus of satisfying the court that Act 2 applied to the facts of this case and further that the defendant successfully adduced evidence to prove and establish that Act 2 was available to him lay squarely on him.

A defendant must satisfy the court that: (a) he is a purchaser of the plot of land and in good faith erected a building on it. See on this s 1(1)(b) of Act 2; and (b) that he erected a building, that is to say that, at the date of the filing of the writ of summons he had carried out the greater part of the work required for the erection thereof. See on this, s 4 (2) of Act 2.

First is the issue whether the defendant was a purchaser of the plot of land who commenced the building of a dwelling house in good faith. Before us, learned counsel for defendant contended that there was no structure on the disputed land at the time the defendant's building contractor commenced building operations on the land. It was further argued that the defendant had purchased the land

adjoining plaintiff’s plot; that the surveyor demarcating the plot had inadvertently trespassed into the plot of plaintiff to the extent of 22 feet. Learned counsel stated that this was a mistake honestly made by the surveyor. He submitted that the defendant was not therefore, guilty of bad faith. In reply to this contention, learned counsel for plaintiff pointed to evidence to show that the plaintiff had caused to be planted four corner-pillars on the land. He drew attention to evidence to show that the caretaker of the plaintiff PW1, Ashitey and the plaintiff herself as soon as the building contractor commenced digging the foundation and actually proceeding with raising the super structure, warned him to stop work. There was also evidence that the plaintiff posted a sign board with the warning “Stop Work” on the disputed land. He submitted that the conduct of the building contractor and of the defendant in all the circumstances was evidence of bad faith.

In my view the evidence on which the defendant relied to prove good faith is wholly unsatisfactory. The defendant admitted that he personally did not conduct a search at the deeds registry to ascertain whether or not the disputed land belonged to his vendor when the plaintiff and PW1 challenged them. He was prepared to leave this important precautionary step to be taken by his agent, the building contractor. This was what the defendant told the court on the issue of conducting a search:

“After giving me the site plan I gave it to my contractor to make a search on the land. I do not know, the result (of the search).”

The building contractor did not conduct a search even though according to the defendant he instructed him to do so. It is plain and clear that the defendant was reckless in this regard, especially when his right and title to the disputed plot of land was challenged by PW1 and also by the plaintiff. A search at the deeds registry would, no doubt, have revealed that the Onamroko Adain family, his vendor, was not the owner of the disputed land. The search would have showed that since 1977, the plaintiff had become the lawful owner of the disputed plot of land. Indeed, the evidence of the defendant clearly showed that as soon as he was shown the land, he commenced building a dwelling house on it within one week. This was what he told the court under cross-examination:

“…the following day we went for demarcation. My contractor started the construction a week after the demarcation…”

The answer clearly showed that the defendant was in haste to start and complete a dwelling house on the disputed land. He was not prepared to conduct a search at the deeds registry. He was not prepared to submit a building plan for approval by the planning authorities. The conduct of the defendant was, on the facts, not consistent with good faith. The defendant was not a purchaser intended to benefit under s 1(a) and (b) of Act 2.

I now consider whether section 4(2) of Act 2 is available to the defendant in answer to the claim of the plaintiff for recovery of possession. It is provided at section 4(2) of Act 2 as follows:

“For purposes of this Act a person shall be deemed to have erected a building if he has carried out the greater part of the work required for the erection of the work thereof.”

This sub-section enjoined the defendant to adduce evidence to show that he, at the point in time that he was challenged as to his right and title to the disputed land or at the date the writ of summons issued against him had carried out a greater part of the work on the dwelling house or building. Learned counsel for defendant did not advert to this important legal requirement in arguing the appeal of the defendant even though the defendant invoked the protection of Act 2. The evidence before the court shows that the defendant had not by his building contractor completed a greater part of the work on the dwelling house when both PW1 and plaintiff seriously challenged and disputed the right of the defendant to the disputed land. Indeed there was evidence on record that the lower court, by an order of interim injunction, restrained the defendant when the dwelling house had not reached lintel level.

It is helpful to reproduce the observation of Osei-Hwere J when granting the order of interim injunction to restrain the defendant from building some three months after the writ of summons had been issued as follows:

“What the defendant is saying is that although he admits the trespass he is asking the court to grant its fiat for the continuance of his acts of trespass. I do not believe that the court should permit the trespass and in disregard of the plaintiff's right…”

His order was made on 8 November 1983. The defendant treated this order with contempt. He proceeded to complete the dwelling house and now lives in it. The evidence on record showed that as soon as the defendant excavated the foundation of the dwelling house and had therefore not completed a greater portion of the dwelling house, the plaintiff and PW1 unsuccessfully tried to stop him from further building operations. In the light of the evidence before him the learned judge rightly observed in his judgment as follows:

“In this case the defendant knew all along that the plaintiff had title and yet he continued to build. In this case it cannot be said that the conduct of defendant showed that he built in the honest and reasonable belief that he had good title. His conduct was definitely reckless. In this case the plaintiff did everything humanly possible to prevent the defendant from putting up the building.”

And rightly the trial judge came to the conclusion that the defendant could not bring himself under the protective provisions of Act 2. That conclusion is fully supported by the evidence and it is right in law. The judgment must not be disturbed. The appeal is dismissed.

Adams v Banini [1994 - 95] 2 G B R 833 – 837 C A