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Land law and conveyancing – Land
Development (Protection of
Purchasers) Act – Good faith –
Plaintiff purchasing disputed
land from true owner – Plaintiff
constructing platform on land,
registering title deed and going
abroad – Defendant building and
moving into possession without
notice of plaintiff’s interest
–Plaintiff drawing water from
the defendant’s house to
complete her house on return
from abroad – Whether defendant
built in good faith – Land
Development (Protection of
Purchasers) Act 1960 (Act 2).
Practice and procedure –
Pleadings – Act 2 – Court may
apply Act 2 though not pleaded.
The plaintiff purchased the
disputed land, registered her
title deed, constructed a
platform on the land and left
for Nigeria. On her return some
years later, she discovered that
the defendant had constructed a
house on a portion of the land
in which she was living. The
plaintiff sued the defendant for
a declaration of title, damages
for trespass and perpetual
injunction. The defendant
claimed that she purchased the
land from the Asere Mantse in
1963. On her return from
Nigeria, the plaintiff drew
water from the defendant’s house
to construct her house and moved
in. She never raised any
objection to the defendant’s
occupation of the land in
dispute until a quarrel ensued
between them. The trial judge
found as a fact that the
defendant’s conveyance was
registered after the
commencement of the action and
that her grantors had no title
as they had sold the land to the
plaintiff’s grantor. The trial
judge dismissed the pleas of
limitation, laches and
acquiescence because they were
not pleaded. The defendant
appealed.
Held:
on the facts the defendant built
unaware of the plaintiff’s
adverse title to the land.
Although she did not plead Act 2
the court had discretion to
confer title on her. She would
be ordered to pay to the
plaintiff twice the value of the
land at the time of purchase in
accordance with section 3(a) of
Act 2. Laryea v Oforiwah
[1984-86] 2 GLR 410, CA referred
to.
Case referred to:
Laryeah v Oforiwah
[1984-86] GLR 410, CA.
APPEAL against decision of High
Court.
Amarkai Amarteifio
for the appellant.
Hansen
for the respondent.
ESSIEM JA.
This is an appeal against the
judgment of Dove J by which the
learned judge upheld the
plaintiff’s claim against the
defendant. The claim was for the
following reliefs: (1) a
declaration that she is the
owner and beneficially entitled
to the disputed land; (2)
¢250,000 damages for trespass
onto the said land by the
defendant; (3) perpetual
injunction restraining the
defendant her servants agents
and assigns from further
interfering with the plaintiff’s
use of the said land.
From the amended statement of
claim, the plaintiff purchased
the land, the subject matter in
dispute, from one Violet Naanum
Whitaker as far back as 1956 and
constructed a platform for her
building thereon. Although the
plaintiff did not obtain any
document of title before her
vendor died, she later obtained
one and registered it.
The plaintiff constructed a
platform on the land and left
for Nigeria. It was on her
return some years later that she
discovered that the defendant
had trespassed on the land and
built a house on part of the
land hence the present action.
The defendant, in her statement
of defence, denied the
plaintiff’s claim. She pleaded
that the land was sold to her by
Nii Atrema II, Mantse of Asere,
Accra by a deed of conveyance
made on 12 March 1963.
The trial judge found from the
evidence that the defendant’s
conveyance was dated 12 March
1963, stamped in 1974 and
registered in 1987. The judge
found also that at the time that
the defendant obtained her
grant, her grantors had no title
to the land because the land had
been sold to the late Dr Nanka
Bruce from whose family
plaintiff obtained her grant.
The same was registered in 1979
in the Deeds Registry as No
3893/1979.
The trial court also found that
at the time of the grant made to
the defendant in 1963 the Asere
stool had already divested
itself of title to the land by
its grant of a larger area of
land including the area in
dispute to Dr Nanka Bruce in
1947 which grant had been
registered as far back as 1948.
On the evidence the learned
trial judge found that the
defendant had no title by the
grant made to her in 1963. The
court also found that the
defendant went into possession
and constructed a dwelling house
on the land. He also found that
the defendant-appellant’s
building was on part of the
plaintiff-respondent’s land.
There is no evidence that the
defendant-appellant was aware of
the plaintiff’s adverse title to
the land. However there is
sufficient evidence on record
that she had completed her
building and was occupying it
when the plaintiff returned from
her trip. The plaintiff, from
the evidence, drew water from
the appellant’s house to
complete her house and she moved
in. The evidence also indicates
strongly that the contractor who
built the plaintiff’s house drew
water from the defendant’s
house.
On the evidence therefore the
defendant-appellant was
completely unaware that the
plaintiff was the owner of the
land on which she had built her
house. She sincerely believed
that she had title to the land.
The learned trial judge declined
to invoke section 10 of the
Limitations Decree 1972 (NRCD
54) and also declined the plea
of laches and acquiescence
because they had not been
pleaded. I think the trial judge
was right because estoppel must
be pleaded.
The trial judge found that the
defendant-appellant’s document
of title, exhibit 1, was
registered in 1987 after the
commencement of this action
while the plaintiff-respondent’s
document exhibit A was
registered in 1979 and her
vendor’s was registered in 1948.
On the totality of the evidence
on record, the appellant
developed her land in the honest
belief that she had obtained
good title to the same and was
unaware of the plaintiff’s prior
grant to the same land. On her
return from Nigeria the
plaintiff did not raise any
objection to the defendant’s
occupation of the land in
dispute until a quarrel arose
between them; it was then that
the plaintiff-respondent took
the action herein. I am
persuaded that on the totality
of the evidence the defendant
honestly believed that she had
valid title to the land in
dispute before she developed it.
In Laryea v Oforiwah
[1984-86] 2 GLR 410 holding (5),
this court observed:
"The provisions of the Land
Development (Protection of
Purchasers) Act, 1960 (Act 2)
vested a discretion in the court
in any given case to determine
whether or not the provisions of
the Act should be applied. The
first and foremost factor for
the trial court to consider when
determining a question of the
purchaser’s protection under the
Act was the good faith of the
purchaser..."
As I have already pointed out,
the appellant honestly believed
she had title to the land in
dispute consequently she is
entitled to protection under the
Act. The trial court should have
invoked this law and protected
the appellant. I shall therefore
invoke Act 2 and confer title on
the defendant-appellant in
respect of the land in dispute.
I therefore allow the appeal and
order that tittle to the land in
dispute be conferred and is
hereby conferred on the
defendant-appellant. The
defendant-appellant should
ensure that the plaintiff has
access to her house. The
plaintiff should be paid twice
the value of the land at the
time of purchase in accordance
with section 3 (a) of Act 2.
AMUAH JA.
I agree.
LUTTERODT JA.
I also agree.
Appeal allowed. Appellant to pay
respondent twice the value of
land at time of purchase.
Kizito Beyuo, Legal
Practitioner. |
