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Land law and
conveyancing – Land Development
(Protection of Purchasers) Act –
Good faith – Appellant let into
possession of disputed land by
respondent – Appellant claiming
and developing land in his own
right – Whether Act 2 applicable
– Land Development (Protection
of Purchasers) Act 1960 (Act 2).
Practice and
procedure – Pleadings – Act 2 –
Judge may apply Act 2 though not
pleaded.
Evidence –
Onus of proof – Declaration of
title – Plaintiff relying on
relatives’ testimony in support
of title – Relatives’ testimony
corroborated by record – Appeal
court will support decision of
trial court based on relatives’
testimony.
The
respondent instituted an action
against the appellant in the
High Court Accra for a
declaration of title, recovery
of possession, perpetual
injunction and damages for
trespass to the disputed land.
The respondent’s case was that
the appellant approached him for
land to build a two-room house
as he had been ejected from his
abode. Since the appellant was
married to a member of the
respondent’s family, the
respondent granted him the
disputed land in order to build
and stay therein until he
recovered the cost; thereafter
he would enter into a tenancy
agreement with the respondent
and then start paying rent for
his occupation of the land.
Eventually the appellant refused
to comply with this
understanding. The respondent
therefore ordered him to remove
his structure from the land but
he refused hence the action. The
appellant denied the
respondent’s ownership and
claimed the land as his. At the
trial the appellant applied to
amend his defence in order to
claim relief under the Land
Development (Protection of
Purchasers) Act 1960 (Act 2).
Even though the trial judge
declined the application because
it was belated, he considered
the Act in his judgment and held
that it was not applicable. On
appeal, the appellant’s counsel
submitted that the trial judge
erred in declining the
application to amend in order to
raise the Land Development
(Protection of Purchasers) Act
(1960) Act 2. He submitted
further that since the witnesses
for the respondent were his
relatives the trial judge failed
to scrutinise their testimonies
as required by law.
Held:
(1) The Land Development
(Protection of Purchasers) Act
1960 (Act 2) could be invoked in
appropriate cases even though it
had not been pleaded.
Adbilmasih v Amarh [1972] 2
GLR 414, Ntem v Ankwandah
[1977] 2 GLR 452 cited.
(2) The trial judge found that
the respondent let the appellant
into possession of the land in
order to build thereon and later
attorn tenant to the respondent
but the appellant took a
conveyance from a person who had
no title in the land and turned
round to deny the title of his
grantor. The trial judge held
rightly that Act 2 did not apply
in the circumstances, as there
was no good faith on the part of
the appellant.
(3) The record did not support
the argument that the respondent
merely called his relatives to
support his case. Rather, the
record contained substantial
evidence that corroborated the
relatives’ testimonies. Adai
v Anane [1973] 1 GLR 144,
Basare v Sakyi 25 June 1986,
CA mentioned.
Cases referred to:
Abdilmasih v Amarh
[1972] 2 GLR 414, CA.
Adai v Anane
[1973] 1 GLR 144.
Basare v Sakyi
25 June 1986, CA.
Boateng v Boateng
[1987-88] 2 GLR 81, CA.
Ntem v Ankwandah
[1977] 2 GLR 452, CA.
Odoi v Hammond
[1971] 1 GLR 375, CA.
APPEAL against decision of the
High Court, Accra.
Enoch Kom
for the appellant.
Joe Ghartey
(with him Efua Dickson )
for the respondent.
ADJABENG JA.
On 5 March 1975, one Malam
Osumanu Baako now deceased,
caused a writ of summons to be
issued against Abdulai Toure,
the appellant in this appeal, at
the High Court Accra. The
reliefs claimed in the said
action are for a declaration of
title to and recovery of
possession of all that piece or
parcel of land situate and lying
at Zabon Zongo, Accra the
boundaries of which have been
described in a schedule to the
writ; perpetual injunction; and
¢3,500 damages for trespass.
In his accompanying statement of
claim, which was later amended,
the said Malam Osumanu Baako
traced his root of title to a
customary grant made to him by
one Malam Baako in 1925.
According to him the said Malam
Baako was granted the Zabon
Zongo lands, part of which is
the land in dispute, by Nii Kojo
Ababio IV of James Town in 1909
for the settlement of the Hausa
community. It was averred that
Malam Baako’s title to the Zabon
Zongo lands was confirmed by
this court in its judgment in
Civil Appeal No 72/69 entitled
Malam Idrisu Baako v Ebenezer
Kwesi Djan. That judgment
was dated 13 July 1970.
It was also the case of the
plaintiff, Malam Osumanu Baako,
that when he obtained his grant
of the land in dispute from
Malam Baako, he entered into
possession thereof and
constructed thereon in 1925 a
wooden structure which was
numbered B 495/2; that in or
about 1966 the appellant
approached him for land to build
a two-room house to stay in as
he had been ejected from where
he had been staying. It seems
that because of his relationship
with the respondent’s family, in
that he was married to a member
of the family, the appellant was
allowed by the respondent to
build on the land in dispute.
The understanding was that after
staying in the house for some
time to enable him recover his
cost of building the house the
appellant would enter into a
tenancy agreement with the
respondent and then start paying
rent to the respondent for his
occupation of the land. The
appellant refused to comply with
this understanding. The
respondent therefore asked him
to remove his structure from the
land. The appellant refused
hence this action.
The appellant
completely denied the
respondent’s claim. His defence
was that he got the land by
purchase from the Ablorh Mills
family and not from the
respondent as the latter
claimed. He tendered in evidence
a document to support his
contention.
Before the
actual trial of the case started
the plaintiff, Malam Osumanu
Baako died. He was substituted
by his brother Malam Gambo
Baako, the respondent. It became
necessary also in view of the
pleadings that a surveyor be
appointed by the court to survey
and produce a plan of the land
in dispute.
From the
evidence adduced by the
surveyor, CW1, the parties and
the respondent’s witnesses (the
appellant called no witness), it
is crystal clear that the land
in dispute falls within the
Zabon Zongo lands granted to the
late Malam Baako in 1909 for
settlement by the Hausa
community. The following
cross-examination of the
appellant clearly demonstrates
this:
“Q You know that your land
lies within Zabon Zongo which
belongs to the Baako family?
A The people gave me the
land gave me a document.
Q You know it is within
Zabon Zongo?
A I know it is within
Zabon Zongo.”
Another important piece of
evidence adduced by the
respondent can be found in the
judgment of this court, pleaded
and tendered in evidence by the
respondent. That is exhibit D.
It is clear from this judgment
that a predecessor-in-title of
the appellant’s alleged vendors
had in an earlier litigation in
1948 admitted the title of the
late Malam Baako to the Zabon
Zongo lands of which the land
now in dispute is part. The
court therefore held in that
case that the appellant’s
alleged vendors, Emma and Helena
Mills, were bound by this
evidence of their late brother
and predecessor-in-title Joseph
William Blankson-Mills.
There was also evidence that the
wooden structure which the
original respondent Malam
Osumanu Baako had made on the
land in dispute was still in
existence at the time the
surveyor and the trial court in
this case visited the land: see
the evidence of CW 2 and the
court plans, exhibits B and C.
Convinced by
these and other pieces of
evidence, the trial judge
entered judgment for the
respondent and granted all the
reliefs he claimed.
Even though
the trial judge refused to grant
to the appellant leave to amend
his statement of defence to
plead laches, acquiescence and
relief under Act 2 because he
thought the application came too
late in the day as it was made
after the parties had closed
their respective cases, yet the
judge in his judgment considered
these matters which were raised
in the addresses and rejected
the appellant’s plea.
Dissatisfied
with the judgment of the court
the appellant appealed to this
court. Two grounds of appeal
were filed and argued. They are
as follows:
“1. The trial judge erred in
refusing the appellant leave to
amend his pleadings to raise
Land Development (Protection of
Purchasers) Act 1960 (Act 2) and
laches and acquiescence.
2. The
judgment is against the weight
of evidence.”
Arguing first
the second ground quoted above,
the appellant’s counsel made
only two submissions here worthy
of consideration in my view.
Firstly, he submitted that the
findings (which I shall quote
presently) made by the trial
judge in his judgment were not
supported by the evidence
adduced. The findings were as
follows:
“I find from
the evidence that the appellant
approached the original
respondent for land to build on
and because he had been married
to the respondent’s sister in
1956 he was allowed to build on
the land and to enter into a
tenancy agreement with the
latter. This accounted for his
being allowed to put up his
building without the respondent
challenging him.”
Having read
the evidence of the respondent,
PW2 and the appellant himself
who said he married the sister
of the Chief of Zabon Zongo in
1956, I find it difficult to
agree with counsel that the
findings quoted above are not
supported by the evidence
adduced at the trial.
In any case I think that they
are reasonable inferences from
the evidence given by these
witnesses. The respondent said
that the appellant came to see
his elder brother, Osumanu
Baako, the plaintiff and that he
was present when the appellant,
the said Osumanu Baako and “one
woman called Abiba, the
mother-in-law of the appellant
went to Zariki Zongo Iddrisu
Baako”. There the appellant
asked for land to build and
according to the respondent
“they agreed to give him land”.
This Zongo chief, Iddrisu Baako,
was the predecessor of PW2. PW2
said so in his evidence and
added that he PW2 became a chief
in 1981. This Iddrisu Baako must
therefore have been the Zongo
chief whose sister was married
by the appellant in 1956.
As PW2 called the respondent his
uncle it would not be wrong to
say that the appellant’s wife
was a sister to the respondent
also. It is the province of the
trial judge who saw and heard
the parties and the witnesses to
decide which side to believe.
Obviously the trial judge was
not impressed by the appellant’s
evidence because he might have
considered him a liar, as no
doubt, the appellant was not
candid with the court.
Can it be true that the
appellant who had married since
1956 a sister of the Chief of
Zabon Zongo, a member of the
Baako family, did not know that
Zabon Zongo lands, including the
land in dispute which the
appellant admitted is within
those lands, belonged to the
Baako family? It is difficult to
believe. Obviously the judge
believed the respondent’s story
that the plaintiff, a member of
the Baako family granted the
land in dispute, to the
appellant who now turned round
to deny the title of his
grantor.
I think that on the evidence the
trial judge was entitled to
accept the respondent’s version
and I am not convinced that we
can disturb that decision. See
Boateng v Boateng
[1987-88] 2 GLR 81, CA.
The second submission made in
respect of the appellant’s
second ground of appeal under
consideration is that since
witnesses for the respondent
were his relatives the trial
judge was under a duty to
scrutinise and critically
examine their evidence before
relying on it. To counsel, the
judge failed to do this and so
erred. He based himself on the
cases of Adai v Anane
[1973] 1 GLR 144 at pages 149,
150 and Basare v Sakyi 25
June 1986, CA.
In reply the respondent’s
counsel submitted that the
respondent’s witnesses spoke
only the truth. Counsel for the
appellant based his submission
on two passages which he quoted
from the above cases. From the
Adai case came this
passage:
“A respondent
in an action for a declaration
of title assumed the heavy
burden of proof and he does not
discharge that onus by merely
calling his relations to support
his evidence…”
The passage from the case of
Basare v Sakyi, supra, is as
follows:
“I do not
think a court of law bent on
doing justice can ignore the
fact that the only material
witness found to support a
respondent’s claim is his blood
relative who naturally has an
interest to protect particularly
when that involves property
which is being claimed for the
family to which the witness
belongs.”
A look at the
evidence in the instant case
shows clearly that the situation
mentioned in the above cases is
not what happened in the present
case. It was not just a matter
of the respondent calling his
relatives to support his case.
Rather there are solid pieces of
evidence which clearly show that
what the witnesses said was
true.
I have
already mentioned the judgment
of this court exhibit D. In that
judgment this court held that
Joseph William Blankson-Mills,
the predecessor-in-title and
brother of the appellant’s
alleged vendors of the land in
dispute, Emma and Helena Mills,
had in an earlier suit made
declarations against interest on
oath in respect of the Zabon
Zongo lands part of which is the
land now in dispute. And, as
observed by the court in exhibit
D, this admission would be
binding on the appellant’s said
vendors.
According to
exhibit D, the said Joseph
William Blankson-Mills in his
said evidence on the 10 May 1948
before Quashie-Idun J said:
“…in the suit Malam Idrisu
Baako v R A Quao and J W
Blankson-Mills
Consolidated, J W
Blankson-Mills stated inter
alia on oath:
‘In 1909 one Malam Baako, the
father of the present
respondent, applied to the James
Town Manche for a piece of land…
My father gave his consent to
the granting of a portion of his
land to Malam Baako… There was
litigation between the Asere
Manche and the James Town Manche
and exhibit A was prepared in
that case. The dimensions
granted to Malam Baako are on
the north 1,700 feet and on the
south 1,700 feet. After my
father’s death I ascertained the
boundaries. The land on the west
measured 1,400 feet and on the
east about 1,140 feet’.”
The land
referred to here by the said
Joseph William Blankson Mills is
the Zabon Zongo lands as is
revealed by the evidence in the
instant case.
There is also
evidence that the plaintiff got
his grant of the land in dispute
in 1925 from the said Malam
Baako. This is a portion of the
land Malam Baako had obtained
from the James Town Manche in
1909 as clearly admitted by
Joseph William Blankson-Mills
above. According to the
evidence, when the plaintiff,
Malam Osumanu Baako, got his
land he erected thereon a wooden
structure in or about 1939. This
structure is still on the land
as is disclosed by the evidence
of PW2 and CW 2 and also
exhibits B and C, the plans.
This is a very important piece
of evidence that confirms the
respondent’s story that before
the appellant had access to the
land in dispute the plaintiff
had been in possession of the
same.
In the face of these pieces of
evidence discussed above it is
my view that it cannot be true
to say that the respondent in
this case merely called his
relatives to support his case.
In my opinion the respondent’s
case is amply supported by
cogent and credible evidence as
to his root of title and
possession of the land in
dispute.
It is difficult therefore to see
how the appellant’s alleged
vendors Emma and Helena Mills
could have validly sold to the
appellant in 1966 a portion of
the Zabon Zongo lands which,
according to the oath of their
predecessor-in-title and brother
Joseph William Blankson-Mills,
sworn in 1948, had been granted
to Malam Baako a predecessor of
the respondent as far back as
1909. It is against this
background that I proceed to
consider the appellant’s last
ground of appeal.
This ground
of appeal, the first on the
notice of appeal, concerns the
Land Development (Protection of
Purchasers) Act 1960 (Act 2).
The appellant’s complaint here,
as is clearly stated in this
ground of appeal, is that “the
trial judge erred in refusing
the appellant leave to amend his
pleadings to raise [the Act]”.
In support of this ground of
appeal counsel for the appellant
cited the following decided
authorities; Ntem v Ankwandah
[1977] 2 GLR 452, CA, Odoi v
Hammond [1971] 1 GLR 375, CA
and Abdilmasih v Amarh
[1972] 2 GLR 414, CA.
Counsel submitted that if the
trial judge had adverted his
mind to the provisions of the
Act he would have found that the
appellant had put up a block
building on the land in 1966
with a permit and a mosque in
1970 and had documents of title.
The judge would therefore have
found that the appellant had
come within the ambit of Act 2
and was accordingly entitled to
a statutory title. For failing
to do his duty under the Act,
submitted counsel, the trial
judge erred in law and so the
appeal ought to succeed.
Counsel for the respondent
replied that Act 2 was not
applicable even though the Act
could be invoked at any time and
even by the court suo motu.
Counsel submitted that the
appellant’s alleged purchase of
the land could not have been
made in good faith as the
evidence overwhelmingly shows
that the original respondent had
been in possession as signified
by the wooden structure he had
made on the land before the
alleged purchase.
It is settled that Land
Development (Protection of
Purchasers) Act 1960 (Act 2) can
be invoked in appropriate cases
even though it had not been
pleaded. This position has been
made clear and fully explained
in the case of Abdilmasih v
Amarh, supra, at page
416 as follows:
“A judge could, in a deserving
case, grant relief to an
aggrieved party under Act 2
whether or not that relief was
sought by way of pleading. The
Act was passed to meet a social
need and its policy objective
ought not to be hemmed in by
technical procedural rules.
However, in such a case the
judge should, if he thinks the
facts justify the invocation of
the remedy, either invite the
appellant to plead the Act or at
least draw the respondent’s
attention to its provisions so
as not to be taken by surprise”.
See also Ntem v Ankwandah,
supra.
It seems to
me that the trial judge was
quite aware of the legal
position as explained above. I
say this because even though the
judge had refused the appellant
leave to amend his statement of
defence in order to raise Act 2,
yet in his judgement the judge
dealt with the issue of the
applicability of Act 2 to the
facts of this case. I think it
will make things clearer if I
quote from the judgment to show
how the judge dealt with the
issue. He said as follows:
“The defendant’s counsel had
made reference to Act 2 and
states that the defendant is
entitled to rely on it
notwithstanding that it was not
pleaded. He invites the court to
confer statutory title on the
defendant because he took a
conveyance in good faith and has
made substantial development on
it.
Here the plaintiff’s case is
that he allowed the defendant to
build on the land and then
afterwards to enter into a
tenancy agreement with him but
the defendant failed to do so.
If the defendant later took a
conveyance from someone who had
no title to the land I do not
see that Act 2 could, in these
circumstances, operate to confer
statutory title on the
defendant. He could not be said
to have built in good faith.”
I must say
that I agree entirely with the
learned trial judge on his
conclusion that Act 2 cannot in
the circumstances of this case
operate to confer statutory
title on the appellant. The
judge believed and accepted the
respondent’s case that it was
the plaintiff who allowed the
appellant to enter the land and
to build thereon. Since that
finding cannot be disturbed by
this court as explained earlier
in this judgment it stands to
reason that the appellant could
not have purchased the same land
from another person in good
faith whilst denying the title
of the respondent who had
granted him the right to build
thereon.
Moreover, as
exhibit D (referred to earlier)
shows, the appellant’s alleged
vendors did not even have title
to the said land. As Apaloo CJ
rightly cautioned in the case of
Ntem v Ankwandah,
supra, the court should
firmly set its face against any
use of Act 2 which would make it
a weapon in the hands of the
rich for the exploitation of the
poor. It was also held in the
case of Abdilmasih v Amarh,
supra, that:
“A court to
be able to grant statutory title
under Act 2 must be satisfied
that the appellant erected the
building in good faith…”
The trial
judge in the instant case was
not satisfied that there was
such good faith on the part of
the appellant. I find no reason
for disturbing such a
conclusion. In the circumstances
I think that the appeal must
fail. I would therefore dismiss
it.
AMUAH JA.
I
agree.
LUTTERODT JA.
I also agree.
Appeal
dismissed.
Kizito Beyuo,
Legal Practitioner. |
