Land Registration
– Instrument
affecting land – Receipt
– Whether registrable
–
Land Registry Act 1962 (Act 122)
s 24.
Land law and
conveyancing
– Deed of
conveyance – Title –
Vendor in possession of
property purchased from owner
without conveyance –
Vendor seeking to resell
property –
Whether good
conveyancing practice for
purchaser to obtain conveyance
from owner.
Costs
– Award –
Discretion – Claims by
plaintiff and co-defendant
dismissed –
Whether costs
against plaintiff for
co-defendant proper.
The plaintiff had purchased the
disputed property from O who had
purchased the land on which he
constructed the property from A
stool in 1959. As O had no
conveyance the plaintiff
procured a direct grant from A
stool. The plaintiff then
renovated the house and
continued to receive rents from
the tenants, including the
defendant, for about four years
until O died. Thereafter the
defendant claiming to be a niece
of O, disputed the plaintiff’s
ownership of the house and
refused to pay rents. The
plaintiff instituted an action
against the defendant for a
declaration of ownership and
recovery of possession. O’s
family head applied and was
joined as a co-defendant. He
counterclaimed for a declaration
of title to the property,
cancellation of the plaintiff’s
deed of conveyance, damages for
trespass, account, mesne
profits, perpetual injunction
and refund of all rents
collected by the plaintiff from
the house. The trial court
dismissed the claim and
counterclaim with costs against
the plaintiff. The court held
that the receipt issued by O to
the plaintiff for the purchase
price of the property was a
document affecting land,
required to be registered under
section 24(1) of the Land
Registry Act 1962 (Act 122). For
want of registration it gave no
effect to the sale of the
disputed property. The court
held further that the conveyance
by A stool was ineffectual in
law as it made no reference to
the sale of the land to O or the
house thereon. In the view of
the court, A stool had no title
to convey at the material time
as the land was vested in O. On
appeal by the plaintiff to the
Court of Appeal,
Held:
(1) The fact that land was
recited in a document did not
make the document registrable. A
receipt issued for the purchase
of the land did not by itself
convey the land and was not
registrable under the Land
Registry Act 1962 (Act 122) s
24. Djan v Owoo [1976] 2
GLR 401 referred to.
(2) It was good conveyancing
practice in the circumstances
that A stool conveyed the land
to the plaintiff with the
knowledge of O. Although the
house was not referred to in the
conveyance to the plaintiff,
there was sufficient evidence on
record that it was sold to him
by O. The maxim quicquid
plantatur solo, solo cedit might
be applied in such situation. On
the other hand the principle of
nemo dat quod non habet was
inapplicable as A stool, to O’s
knowledge, conveyed the land to
the plaintiff. It was not
necessary to recite O’s name to
make the conveyance effective.
Its registration made the grant
effectual.
(3) The award of costs to the
co-defendant was wrongful
exercise of discretion. The
co-defendant who applied to be
joined turned out to be a busy
body and his claim was rejected.
If the plaintiff lost against
the defendant, he won against
the co-defendant and was
entitled to costs against the
co-defendant. The award in
favour of the co-defendant would
be set aside.
Cases referred to:
Ricketts v Addo
[1975] 2 GLR 158, CA.
Djan v Owoo
[1976] 2 GLR 401, CA.
APPEAL from the decision of the
High Court to the Court of
Appeal.
N K Kudjawu
(with him Miss Irene Kumasenu)
for the appellant.
James Ahenkorah
for the respondents.
AMPIAH JSC.
The plaintiff in this action
claimed to have purchased a
piece of land with a dwelling
house thereon at Bubuashie,
Accra, from one A K Oduro (now
deceased). The house is numbered
89/18 Bubuashie, Accra. The late
Oduro was said to have purchased
the land on which he built, from
the Asere stool in 1959. The
late Oduro had no conveyance
from the Asere stool. In 1977
when the plaintiff decided to
purchase the property, he was
directed to the Asere stool,
which conveyed the property to
the plaintiff. The deed, which
was dated 6 December 1977 was
registered as No 194/1978 and
tendered in evidence as exhibit
B.
The plaintiff gave notice of the
change of ownership in the
property to the tenants in the
house, including the defendant.
He then took charge of the
house, made certain renovations
and collected rents from all the
tenants in the house including
the defendant. This continued
for about 3-4 years until the
original owner, the late Oduro,
died in November 1981.
Soon thereafter a
misunderstanding arose between
the plaintiff and the defendant.
The defendant who claimed to be
a niece of the late Oduro,
refused to pay further rents and
rejected the plaintiff’s claim
to ownership of the house.
Consequently, the plaintiff
brought this action against the
defendant claiming:
“(1) A declaration that he is
the owner of all that piece or
parcel of land situate lying and
being at Bubuashie, Accra;
(2) An order of recovery of
possession from the defendant of
the portion of the house she
occupies;
(3) Such further relief or
reliefs as the court shall
consider appropriate in the
circumstances.”
The defendant resisted the
claim.
On 11 June 1984, one Nana Amoako
Kosare Diamin II who claimed to
be the head of late Oduro’s
family applied to join the
action as a co-defendant. His
request was acceded to. He
counterclaimed for a declaration
of title to the property, recall
and cancellation of the
plaintiff’s deed of conveyance,
damages for trespass, order for
account and refund of all rents
collected by the plaintiff from
the house from May 1977 to the
date of judgment. He also
claimed mesne profits and, an
order of perpetual injunction
against the plaintiff.
On 29 June 1988, the judge
dismissed both the plaintiff’s
claim and the co-defendant’s
counter-claim. She awarded costs
of ¢100,000 and ¢60,000 against
the plaintiff in favour of the
defendant and co-defendant
respectively. Against this
judgment the plaintiff has
appealed. The grounds of appeal
are contained in the Notices
filed on 29 June 1988 and 9
February 1993.
Counsel for the
plaintiff-appellant (hereinafter
referred to as “the plaintiff”)
has submitted that “the learned
trial judge misdirected herself
on the practice and the law of
conveyancing and thereby, fell
into error by holding that
exhibit A and B failed to prove
the plaintiff-appellant’s title
to the land and the house, the
subject of the dispute.”
With regard to exhibit A the
trial judge held that since it
was a document affecting land,
it was required to be registered
under section 24(1) of the Land
Registry Act 1962 (Act 122) and
since it had not so been
registered it was ineffective to
give effect to the alleged sale
of the property in dispute to
the plaintiff. In other words,
exhibit A was incapable of
supporting the plaintiff’s case.
In coming to this conclusion,
the trial judge held that
exhibit A (a receipt) was an
instrument as defined in Act 122
and since it affected land, it
needed to be registered before
it became effective.
With all due deference to the
trial judge, it is not in all
cases that a document referring
to land needs to be registered.
It is not quite clear from
Djan v Owoo [1976] 2 GLR
401, upon which the trial judge
relied so heavily, the nature of
the receipts in that case and
for what purpose they had been
tendered. It would be seen from
the case itself that even though
the court rejected the receipts
as ineffective, the same court
relied on them to order specific
performance. In my opinion the
mere fact that land has been
recited in a document does not
make the document registrable. A
receipt which merely
acknowledges that money has been
paid for a piece of land, but
does not by itself convey the
land, is not registrable to
become effective. It is
acceptable as evidence in proof
of payment if it is duly
stamped. If the position were to
be otherwise, it would mean that
where the purchase price for
land is paid by instalment, each
receipt issued for a part
payment should be registered to
make it effective. Would a rent
card which refers to a house (a
landed property) be required to
be registered? I do not think
so.
In the instant case, the
plaintiff had tendered the
receipt (exhibit A) as evidence
of payment for the purchase of
the house in dispute. The
conveyance itself was tendered
as exhibit B to show the
transfer of the house to the
plaintiff in pursuance of the
payment. If the trial judge was
satisfied that the signature on
the receipt (exhibit A) was that
of the vendor, then that
document having been stamped,
was evidence in support of the
plaintiff’s case. The rejection
of the document as not having
been registered was wrong.
Did exhibit A contain the
signature of the late A K Oduro?
The trial judge observed:
“Though the plaintiff can claim
no rights under exhibit A -
indeed I can make no observation
on the signature purported to be
that of Oduro - I have compared
it to exhibit 2A and 2B which
the parties are agreed are the
genuine signatures of the
deceased. It seems to me that
while 2A and 2B are similar and
flow naturally, the signature on
exhibit A appears to me to be
laboured and very different from
both exhibits 2A and 2B. It
seems to me that the writer has
been at some pain to write it
out. In other words it does not
look like the undisputed
signatures that we have of Oduro¼“
Admittedly the judge who was not
a handwriting expert found
herself in a confused state with
regard to the signature on
exhibit A. Since she could not
make an observation on the
signature, she could have sought
expert advice on it. Exhibits 2A
and 2B were prepared in July
1963. Exhibit A was prepared in
May 1977 at a time when the late
Oduro was alleged to be ill.
Within 14 years there was the
likelihood of the signature
varying not necessarily as to
characters but as to the manner
the characters are presented. It
was the duty of an expert to
assist with regard to the
character formation.
PW3 (not PW4 as stated by the
judge) was admitted to be the
grandson of the late Oduro. He
was entrusted with certain
responsibilities by the late
Oduro. He testified as to how
exhibit A came to be prepared.
He was emphatic that it was the
late A K Oduro himself who had
signed the document.
In her effort to reject the
receipt (exhibit A) the judge
observed quite feebly that PW3
at the age of 17 could not have
been asked to write out the
receipt. I do not see anything
wrong with the late A K Oduro
asking his grandson of 17 to
write the contents of the
receipt for Oduro himself, to
sign. There is evidence that PW3
had been appointed the attorney
of Oduro to do certain things
for Oduro before his death. No
one then can doubt the trust and
confidence Oduro reposed in this
“young” man. In the absence of
positive evidence of forgery,
evidence of which the
co-defendant had the onus of
establishing, I think exhibit A
could be accepted as the deed of
the late Oduro. By rejecting
exhibit A on this ground also,
the trial judge erred.
The learned trial judge had also
rejected exhibit A on these
grounds that:
“(1) No reference is made to the
building B 89/18 situate on this
land.
(2) Significantly the late A K
Oduro is not mentioned at all in
the recitals; the plaintiff does
not trace the root of title
through Oduro. He never executed
the exhibit B as a vendor.
(3) On the face of exhibit B,
the Asere Manche PW4 Nii Amontia
IV was conveying this piece of
land which had been vested in
the late Oduro for over 20 years
to the plaintiff. Certainly on
the well known legal principle
“nemo dat quod non habet”, the
Asere Manche cannot proceed to
convey the property of another
to a 3rd person. It must be
pointed out that the mere
registration will not confer any
legal right or title to the
plaintiff where he took the
grant from the chief who has no
title to convey.”
This last ground for rejecting
exhibit B, has in fact evoked
the plaintiff’s additional
ground that “the learned trial
judge misunderstood the
plaintiff-appellant’s case and
failed to give adequate
consideration to it”.
Exhibit B was prepared on
6/12/77 about 4 years before A K
Oduro died (ie in November
1981). It is not clear on the
evidence what his health
condition was in 1977. There is
evidence that Oduro in the
latter part of his life was
taken to Tepa Amenya for
treatment. PW5 Ama Pokua, also
known as Monica Oduro, a
daughter of the late Oduro, also
testified as to the health
condition of the late Oduro in
1978. Her evidence more or less
corroborated the evidence of
PW3. The evidence on the health
condition of the late Oduro was
conflicting from both sides.
Since Oduro was sent to a
hospital for treatment, in the
absence of positive evidence
from the hospital records, a
burden which fell on the
defence, it would be assumed
that when exhibit A was made,
Oduro was not totally bedridden.
That the late Oduro deputed PW3
to carry out certain duties for
him cannot be disputed.
According to PW3 whose evidence
the judge relied on heavily to
discredit the plaintiff, after
the sale of the property to the
plaintiff, he was asked by the
late Oduro to take the plaintiff
to the house and he was
introduced to the tenants
including the defendant. PW3
introduced the plaintiff to the
inmates as the new owner of the
house. Whatever the conflicting
evidence on this, the evidence
shows incontrovertibly that from
that time onwards to the time of
the death of the late Oduro, the
defendant who hitherto was not
paying rent and who claimed to
be the niece of the late Oduro,
paid rents to the plaintiff
without any protest. Whether the
defendant was told the plaintiff
was the new owner of the house
or a mere caretaker, the
defendant’s conduct in paying
rent to this ‘stranger’ was
inconsistent with her claim that
the plaintiff was not known to
her. If indeed she was not
paying rent before, then her
agreement to pay rent thereafter
without hearing from her uncle
was a very unreasonable
behavior. From 1977 to 1981,
when her uncle died, she could
not ascertain the true facts
from her uncle.
The co-defendant’s conduct was
equally unacceptable. Even
though both the defendant and
co-defendant had heard about the
sale or caretakership of the
property, neither was able to
ascertain the true situation.
The reason for their inability
to see the late Oduro about the
property before his death was so
feeble to be acceptable. Even
though they claim the late Oduro
was not well, within this period
of four years, the late Oduro
was able to do so many things.
If they had resisted the claim
then, the plaintiff would have
been given an opportunity to
assert his claim.
This was not a case of giving
evidence against a deceased
person’s property. The property
had already been sold at a time
when the deceased was alive and
any body could have challenged
the plaintiff’s title. But in
this whole episode, PW3’s
evidence was unique; none of the
witnesses challenged PW3’s
evidence that he had been
appointed an attorney by the
late Oduro. PW3 was a grandson
of the deceased and they all
lived together in late Oduro’s
house ie No 15 opposite the
Police Headquarters. He lived in
the house with some of Oduro’s
children and other relatives. Is
it not strange that the late
Oduro would not entrust his own
children with the caretakership
of his other properties but
rather PW3? And, if the
plaintiff was to be appointed a
mere caretaker what prevented
the late Oduro from appointing
PW3 who was already his attorney
to look after this property
also. PW3 applied for letters of
administration. Although these
were, on the evidence, later
revoked, the court did not
totally reject PW3’s
administering the estate with
another person (not the
co-defendant).
The rejection of the
co-defendant’s claim was right
as, on the evidence he could not
have established any interest in
late Oduro’s estate. The
plaintiff’s case, which was
supported in all material
particulars, was that after the
purchase, Oduro could not give
him a conveyance, the reason
being that he (Oduro) himself
had no conveyance from the Asere
stool which owned the land. PW2,
a grandson and solicitor to the
late Oduro, testified as to how
exhibit B came to be prepared.
PW4, Nii Nikooi Olai Amontia,
the Asere Manche was clear on
how exhibit B came to be
prepared for the plaintiff.
Though there were a few
conflicts in the plaintiff’s
case, they were not such as
could undermine the reality of
the situation. Apart from the
plaintiff, there were other
witnesses who supported the
plaintiff’s claim. It appears
that from the manner PW3 was
recalled that an attempt was
made to give him a bad name and
hang him. He gave evidence on 27
November 1985. He was recalled
on 11 May 1987 and on 7 November
1987 to be further
cross-examined. The judge had
not heard PW3 personally on 27
November 1985. The use of some
inconsistent statements made in
1987 to discredit him was most
unfortunate.
Since A K Oduro himself had no
effective title to the land on
which he had his house, it was
consistent with conveyancing
practice for the conveyance to
the plaintiff to be prepared in
the name of the original owner
of the land. And this was done
with the knowledge of Oduro. I
do not see how Oduro’s lawyer
who is also his grandson would
have lied about the transaction.
It is true that the house was
not specifically mentioned in
exhibit B but there was some
evidence that it had been sold
to the plaintiff. The maxim
quicquid plantatur solo, solo
cedit ie whatever is affixed t
the soil belongs to the soil may
be applied here without any
injustice to the late Oduro.
The plaintiff took the land
which had been sold to him
together with Oduro’s house. The
principle of nemo dat quod non
habet was inapplicable here.
Since it was only land that
exhibit B was trying to convey
effectively, the original owners
could not be said to have given
away what did not belong to
them. Oduro was in the know of
that arrangement. Oduro could
have had that conveyance set
aside if he had found it
fraudulent. The registration of
that land made the grant
effective and it took priority
over all other sales of the
land. It was not necessary that
Oduro’s name should appear in
exhibit B to make it effective.
The principle that a plaintiff
should succeed on the strength
of his own case and not to rely
on the weakness in the defence
case is a sound one but should
be applied with caution. In
Ricketts v Addo [1975] 2 GLR
158, the Court of Appeal held
inter alia:
“The principle that in an action
for a declaration of title the
plaintiff should not rely on the
weakness in the defence case but
on the strength of his own case
had its simplest application in
the situation where a plaintiff
could not on his own make out a
case of his title at all and
relied on the defects in the
defendant’s case to justify his
claim to title. However where
the plaintiff could put forward
some sort of claim to title, the
principle then had meaning in
practical terms if the defendant
had some semblance of claim to
the land, e.g. by occupation or
possession what ever the defects
in the defendant’s title the
plaintiff could not rely on
them; he must rely on the
superior strength of his own
title. Therefore, if the
defendant’s case was measured
against the plaintiff’s and the
plaintiff’s was found more
probable, a determination which
necessarily involved the
balancing of the strengths and
weaknesses of the rival claims,
the plaintiff’s case had to be
accepted.”
In the instant case, the judge
found that:
“¼the
defendant and co-defendant claim
that the property had never been
sold to the plaintiff, none of
them proferred any direct
evidence of any confrontation
between the late Oduro and the
plaintiff at which confrontation
Oduro had denied ever selling
the property to the plaintiff.
The defendant confesses at one
time she had wanted to ask Oduro
about the sale but she never got
the opportunity as the oldman
was then seriously ill¼“
The judge went on to dismiss the
co-defendant’s counterclaim.
Thus on the evidence the
defendants had not put up any
serious challenge to the
plaintiff’s claim. On balancing
the strength and weakness in the
case, the judge was required to
consider the entirety of the
evidence on record and evaluate
it. In this case the plaintiff
was not relying on any weakness
in the defence as the defence
merely denied the sale. Oduro
had died three or four years
after the sale. Soon after the
sale, the defendant who hitherto
had not been paying rent was
asked to pay rent; an act she
readily agreed to comply with
and continued to pay rent until
Oduro died. The plaintiff in
pursuance of the sale took
possession of a room in the
house and renovated the house to
the knowledge of the defendant.
The plaintiff continued to
exercise these acts of ownership
over the house without any
protest whatsoever and there was
no evidence that he ever
accounted to the late Oduro. The
plaintiff was introduced to the
tenants as owner of the house by
PW3. In certain cases the
subsequent acts of a person
should be capable of explaining
what had been intended or agreed
upon. These acts by the
plaintiff, and the conduct of
the defendant and co-defendant
should be taken into
consideration in assessing what
value should be placed on the
documents (exhibit A and B). The
judge failed to look at the
overwhelming evidence including
exhibits A and B proffered by
the plaintiff. Her wrongful
rejection of the documents which
the plaintiff tendered to
establish his case, disabled her
from evaluating critically the
whole of the plaintiff’s case.
Neither the defendant nor the
co-defendant led any evidence of
the family’s continued interest
in the property. In fact, the
rejection of the co-defendant’s
claim left the house in the
hands of the plaintiff and no
other person. On the totality of
the evidence, I accept that the
judgment was against the weight
of evidence.
With regard to the costs
awarded, I think the award to
the co-defendant was wrongful
exercise of discretion. It was
the co-defendant himself who
applied to be joined in the
action. It turned out that he
was more or less a busy body;
his claim was rejected. If the
plaintiff had lost against the
defendant, he had at least won
against the co-defendant; I
would have thought the plaintiff
rather was entitled to costs
against the co-defendant. I
would in the circumstances set
aside the award of costs in
favour of the co-defendant.
The defendant depended upon the
evidence of the co-defendant to
resist the plaintiff’s claim.
The co-defendant having failed,
any costs in favour of the
defendant should have been
minimal. I think the costs
awarded in favour of the
defendant was excessive and
should be set aside.
One of the claims against the
defendant was for the recovery
of that portion of the house
occupied by the defendant. The
failure of the family to claim
the house left the plaintiff
either as a purchaser or
caretaker of the house and as
such he was entitled to collect
rents until a person with a
better title, if any turns up.
The defendant by her own conduct
was not entitled to repudiate
the title of the plaintiff.
Since she had challenged the
title of the plaintiff and
refused to pay rents, the
plaintiff was entitled to
recover the room. By the total
rejection of the plaintiff’s
claims, the judge failed to
consider this aspect of the
claim.
The burden, undoubtedly, was on
the plaintiff to establish that
he had purchased the property.
Despite the many faults that the
judge found in the evidence of
PW3, there was still sufficient
evidence which, if properly
considered, would have entitled
the plaintiff on the
preponderance of the
probabilities, to his claim.
For the above reasons, I would
allow the appeal and set aside
the judgment of the court below,
together with all costs awarded.
There will be judgment for the
plaintiff on his claim. The
plaintiff is ordered to recover
the room from the defendant. The
defendant is given one month to
vacate the house.
ESSIEM JA.
I agree.
ADJABENG JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner |
