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Land law and conveyancing - Land
Development (Protection of
Purchasers) Act - Conveyance -
Act avails only developer with
defective conveyance - Land
Development (Protection of
Purchasers) Act 1960 (Act 2) s
1.
Land law and conveyancing - Land
Development (Protection of
Purchasers) Act - Good faith -
Building erected in reckless
disregard of adverse claim and
opposition - Whether
construction in good faith -
Land Development (Protection of
Purchasers) Act 1960 (Act 2) s
1.
GW leased from the Government of
Ghana a parcel of land of which
the disputed land forms part. He
had intended to build a school
of music on the land but was
able to develop only a part of
it. He then leased the developed
part to the defendants for their
proposed school. In order to
relieve himself of the rent
obligation in respect of the
undeveloped area, he
relinquished his interest in
that portion to the Ghana
Government. The Government then
leased the undeveloped portion
to the plaintiffs. The
plaintiffs claimed in the
instant action that the
defendants trespassed onto their
land and built a school thereon.
The defendants pleaded that they
built on the land in good faith,
unaware that their title was
defective. It emerged from the
defendants’ testimony that they
put up the construction in the
face of opposition by the
plaintiffs. The trial judge
upheld the defendants’ plea,
declared title in them and
awarded compensation to the
plaintiffs under Act 2. On
appeal by the plaintiffs,
Held -
(1) It was imperative for a
purchaser seeking legal refuge
under Act 2 to prove firstly
that he took a conveyance that
turned out to be defective.
Where a defendant was unable to
prove a defective conveyance he
could not bring his case under
the Act and no question of good
faith on his part arose for
consideration by the court.
There was no evidence that GW
conveyed a defective title in
the disputed land to the
defendants to warrant the
application of section 1 of Act
2. Conney v Bentum-Williams
[1984-86] 2 GLR 301, Odoi v
Hammond [1971] 1 GLR 375, CA
followed.
(2) On the defendants’ good
faith it was clear that from the
moment they started building on
the land the plaintiffs made a
serious adverse claim to their
title. Everything was done by
the plaintiffs’ representatives
to stop the defendants from
putting up the building but they
persisted in a manner which
could be labelled as reckless.
Dove v Wuta-Offei [1966]
GLR 299, Conney v
Bentum-Williams [1984-86] 2
GLR 301, CA followed.
Cases referred to:
Odoi v Hammond
[1971] 1 GLR 375, CA.
Conney v Bentum-Williams
[1984-86] 2 GLR 301, CA.
Dove v Wuta-Offei
[1966] GLR 299, SC.
APPEAL from the High Court.
Letsa
for the appellants.
Addo
for the respondent.
KPEGAH JA.
This is an appeal from the
judgment of Owusu-Sekyere,
sitting at the circuit court,
Accra. On the 8th day
of September 1978, the
plaintiffs took out a writ of
summons claiming against the
defendant title to a piece of
land near Kanda Estate and
having an approximate acreage of
1.28 acres. The plaintiffs also
sought the ancillary reliefs of
recovery of possession, damages
for trespass and an order for
perpetual injunction.
Most of the essential facts are
not in dispute between the
parties. The disputed land forms
part of an area originally
leased to one Guy Warren by the
Government of Ghana. Guy Warren
took his lease in 1964. He
intended to build a school of
music on the said land. He was
able to develop only part of the
land and in order to relieve
himself of paying rent in
respect of the undeveloped area,
he, by a letter dated 29/4/76,
relinquished his interest to the
Ghana Government in respect of
the undeveloped area. Earlier in
time, one Beatrice Manu and her
husband, Mr Kobina Hagan,
approached Guy Warren to rent
part of the land to them for
their proposed school. This was
in 1966. They rented the
developed area and what was
referred to as a “compound”. The
rent being paid to Guy Warren
was ¢300 per month; so that in
actual fact Guy Warren rented
only his building together with
the compound to the said couple.
They continued to use the
building and the area as a
school.
In the very year that Guy Warren
relinquished his interest, the
Government leased the
undeveloped area to the
plaintiffs. This was on 14/4/76.
It is this specific area that
the plaintiffs claim the
defendants had trespassed onto
by building a school thereon.
The identity of the disputed
area is admitted and the
defendants do not deny building
on the said land. Their defence
to the plaintiffs’ claim is that
they built on the land in good
faith that is, believing that
they had good title to the land
or unaware that their title was
defective.
The learned trial judge assessed
the defendants’ position in his
judgment as follows:
“In his address to the court on
27/1/83 B. A. A. Addo, counsel
for the defendant concedes that
that piece or portion of land
the defendant has erected a
school building on forms part of
the land Guy Warren gave back to
the Government of Ghana, who in
turn leased it to the plaintiffs
but strongly contends that the
defendant has erected a school
building on the land in good
faith.”
The above position was not
changed in this court. Before
us, just as in the court below,
the defendants sought protection
under the Land Development
(Protection of Purchasers) Act
1960 (Act 2).
This plea found favour with the
learned trial judge who held
that “the defendant(s) erected
[their] building in question in
good faith” and proceeded to
statutorily decree title in the
defendants thereby perfecting
the defendants’ defective title
and awarded compensation to the
plaintiffs as provided for under
Act 2.
The plaintiffs, in their
argument before us, seriously
contended that the learned trial
judge misapplied Land
Development (Protection Of
Purchasers) Act 1960 (Act 2).
The most forceful argument was
that before applying the
provisions of Act 2, the court
must satisfy itself that the
defendants have brought
themselves under the Act by
satisfying the requirements for
that purpose. A defendant cannot
benefit from the provisions of
Act 2 unless he establishes
certain facts. The requirements
which a “purchaser” must
establish before enjoying the
protection of Act 2 have been
stated in the case of Odoi v
Hammond [1971] 1 GLR 375 at
page 393. Azu Crabbe JA (as he
then was) stated the opinion of
the Court of Appeal as follows:
“For ‘the purchaser’ to claim
the protections afforded by
section 1 he must show:
(1) that the land conveyed
to him is in a prescribed area;
(2) that he or the person
claiming through him has in
good faith erected a
building on the land;
(3) that proceedings have been
brought for an order of
possession by someone who claims
that he is entitled to the
land.” (Emphasis mine.)
His Lordship then continued:
“If the court trying the case
comes to the conclusion that the
purchaser did not acquire a
valid title to the land in
dispute then, provided the
purchaser had led satisfactory
evidence in the first and second
matters, the court will have a
discretion to make one of the
orders. Depending on the balance
of hardship and injustice to the
parties, the court may make an
order either (a) for possession
in favour of the person entitled
to the land or (b) that the
conveyance taken by the
purchaser shall be deemed for
all purposes to have operated to
confer on him the title to the
land.”
It is therefore imperative for a
purchaser seeking legal refuge
under the Act to first prove
that he had had a conveyance
which is defective. The import
and meaning of section 1 of Act
2 have been considered in
several cases that I do not
think any useful purpose will be
served, and certainly no new
dimension will be added to the
law on the point, so I do not
intend any exhaustive analysis
of the case law.
The only thing the defendants
wave at the court to show
conveyance of the disputed land
to them is the letter of consent
from the Commissioner of Lands
permitting Guy Warren to rent
his developed place to them.
This was tendered as exhibit E
and a plan of the whole area
originally leased to Guy Warren.
From the evidence it was clear
Guy Warren rented his developed
area to the defendants as
monthly tenants. There is no
evidence that there had been any
conveyance of the disputed land
to the defendants by Guy Warren
which a court can consider to be
defective to warrant the
invocation of section 1 of Act
2. If a defendant is unable to
prove a defective conveyance
which can be statutorily
perfected, then he cannot bring
his case under the Act, and no
question of having acted in good
faith arises for consideration
by the court.
Even on the issue of good faith
the defendants’ case is very
weak from their own account of
events:
“When we started the building we
could not get adequate cement
and so we had to use wood to
construct the rest. Then five
weeks later whilst the
construction was going on I
learnt that somebody had entered
upon the land. So I went there
to see things for myself and
there I found a platform having
been constructed on the land. So
I caused the platform erected on
the land to be destroyed. It was
in a form of a square used in
moulding blocks. It was made of
wawa boards no concrete
added. Five days after I had
caused the platform to be
destroyed there came to me at
the school four persons who told
me that it was they who erected
the platform which had been
destroyed and that the land was
theirs. They also told me they
belonged to the plaintiffs’
church. The plaintiffs’ Pastor
Paul Kofi Fynn was not one of
the four persons. I caused the
platform to be destroyed because
the place where it was
constructed or erected was mine.
It formed part of the land I got
from Guy Warren twelve years
ago. I mean the land I bought
from Guy Warren. When the four
persons told me this I told them
to go away and claimed the land
to be mine.”
It was therefore clear to the
defendants from the moment they
started building the structure
on the land that there was a
serious adverse claim to their
title. Everything was done by
the plaintiffs’ representatives
to stop the defendants from
putting up the building. They
persisted in a manner which one
can at least label as
recklessness. On the question of
good faith, if prompted to make
an assessment, I will still
dismiss the defendants’ claim in
view of such reckless conduct.
Considering all the evidence I
do not think the defendants had
made out a case to seek
protection under section 1 of
Act 2.
I will therefore allow the
appeal and set aside the
judgment of the court below. I
will decree title in the
plaintiffs.
ESSIEM JA.
The plaintiffs who described
themselves as “a Christian
religious association” in
paragraph 1 of their statement
of claim, in their action,
claimed against the defendants:
“(a) Declaration of title to a
piece and parcel of land situate
lying and being at Kanda Accra
lying to the North of Ring Road
Central and to the south of
Estate Building and bounded on
the north by an existing
building measuring 210 feet on
that side on the east by an open
space and measuring 255 feet on
that side on the south by the
said Ring Road Central measuring
200 feet on that side and on the
west by an open space measuring
290 feet on that side containing
an approximate area of 1.28
acres.
(b) Recovery of possession of
the said piece of land.
(c) General damages for trespass
by the defendants to the said
piece or parcel of land at
Kanda, Accra.
(d) Perpetual injunction to
restrain the defendants whether
by themselves or servants or
agents or assigns or workmen or
any of them or all of them
however from entering or
committing trespass upon the
said land.”
The appellants had acquired the
land in dispute from the Lands
Department by a lease made on
14th day of April
1976 between the Republic of
Ghana and the Registered
Trustees of the Evangelical
Lutheran Church of Ghana. The
same land formed part of land
which one Guy Warren had earlier
acquired from the same Lands
Department by a lease dated 15th
day of November 1972.
However Guy Warren had later
surrendered part of the land to
the government and it was after
that surrender that the
appellants obtained their lease
from the Lands Department (the
Government of the Republic of
Ghana). The land acquired by the
appellants was part of the land
which the said Guy Warren had
surrendered to the government.
There is evidence that before
Guy Warren surrendered part of
the land to the government he
had built on a portion of the
land and that was not
surrendered to government. The
respondent and her late husband
first rented part of Guy
Warren’s land and later bought
Guy Warren’s building. What they
bought included “a compound
attached”.
After they bought this land from
Guy Warren the respondents
obtained the consent of the
Lands Commission to the
assignment by Guy Warren to her
of all his rights and interest
in the land which the government
leased to her by a lease dated
15th day of November
1972. The consent was dated the
10th day of November
1977. The case of the appellants
is that the respondents had
built certain structures (class
rooms) on the land they obtained
from the Lands Department.
There is little doubt that the
building which the respondents
put up for her school encroached
on the land which the appellants
had obtained from the
government. Respondents’ only
answer to the plaintiff’s claim
is that they are entitled to
protection under s 2 of the Land
Development (Protection of
Purchasers) Act 1960 Act 2. This
found favour with the trial
court which ordered the
respondents to pay a sum of
money to the appellants as
compensation for the land which
they had thus lost. It is
needless to say that this
presupposes that the court
accepted the appellants’ case
that the land on which the
respondents built their school
did not belong to them but
rather to the appellants.
The appellants’ main complaint
is that the Act did not apply to
the facts of this case. They
contend that it is only a person
who has obtained a conveyance
who can avail himself of the
protection of Act 2. The
evidence on record shows that
the plaintiffs contended
throughout the trial that they
were the first to start a
building on the land and that
when they went on the land there
was no building on it. The
contention of the appellants was
that they were first to enter
the land to erect new classrooms
for the school. Admittedly the
defendants had bought Guy
Warren’s portion of the land
which from the evidence did not
include the portion now in
dispute.
I am satisfied from the evidence
on record that the plaintiffs
had started building on the land
when the defendants went and
destroyed whatever they had
built on it. From the evidence I
am satisfied also that when the
plaintiffs started their
building the defendants had not
started building the classrooms
which they now have on the
disputed land. Although they had
no document assigning the
interest of Guy Warren in the
land to them, they ignored the
warnings of the plaintiffs that
the land in dispute was theirs.
Not only that, even after the
Lands Department had written to
warn them to desist from
building on the land because the
land belonged to the plaintiffs,
they ignored it and went ahead
to build the extensions to the
school on the land in dispute.
There is no evidence that they
had obtained a building permit
for the buildings they put up on
the land. I am of the opinion
that Act 2 cannot afford
protection to the defendants
because they neither built in
good faith nor in ignorance of
the fact that they had no title
to the land. The evidence on
record shows that it was the
defendants who destroyed the
structure or profile which the
plaintiffs had on the land. As
was held by the Court of Appeal
in Conney v Bentum-Williams
[1984-86] 2 GLR 301 at p 303,
holding (2):
“Some of the conditions to be
proved by the party seeking
protection under the Land
Development (Protection of
Purchasers) Act, 1960 (Act 2),
were that he was a purchaser, he
took a conveyance and had in
good faith constructed a
building on the disputed land.”
In this case the defendants who
sought protection under the Act,
from the evidence, had no
conveyance and entered the land
in dispute after the plaintiffs
had started building on it. Even
if defendants had a conveyance
on it they should have been a
little more circumspect in going
ahead to build on the land after
someone else had first started
building on it and more so after
the plaintiffs had informed them
in no uncertain terms that they
had title to the land. They
clearly ignored their claim and
went ahead to build. I cannot
say in these circumstances that
they built in good faith. In
Conney v Bentum-Williams,
supra, the Court of Appeal
stated:
“We think, on the evidence, the
defendant acted recklessly in
putting up the building. He
first wanted to steal a march
over the plaintiff because
despite the adverse claim being
made by the plaintiff and
indeed, in the teeth of
opposition from the plaintiff,
he went ahead to construct the
building, completely indifferent
to the outcome of the dispute.
There is no doubt that he put up
the building, in bad faith ... [W]hat
the defendant sought to do was
to gain title to the land by
hurriedly putting up a building
on the land. In the
circumstances, section 1 of Act
2 could not possibly be applied
for his benefit.”
I am of the opinion that on the
facts the respondents built on
the land fully aware of the
adverse claim of the plaintiffs
and in complete disregard of
warnings from the plaintiffs and
an order of injunction against
them by the court. They cannot
in these circumstances be
protected by Act 2.
In Dove v Wuta-Offei
[1966] GLR 299 at 314 the
Supreme Court expressed the
following opinion on the
application of Act 2:
“The relevant section of the Act
which fell to be construed was
sub-section 1(b) of section 2
which enacts that “the
purchaser, or a person claiming
through him, [has] in good faith
erected a building on the land”.
The learned trial judge
construed that as meaning that
the purchaser erected the
building in the honest and
reasonable belief that he had
title ... I share that view of
the matter myself because I
cannot see how a man can be said
to have erected a building in
good faith if he thought or had
grounds for believing that his
title to the land was not in
order. As the declared policy of
the Act is to confer valid title
on purchasers who build on land
on faith of title subsequently
adjudged to be invalid, it seems
to me only natural, that the Act
should require that the
purchaser, to avail himself of
the statutory protection, should
have acted honestly and
reasonably at the date of the
original acquisition of the land
and having so acted should have
believed in the validity of his
title.”
At the time the respondents
built on the land not only did
they possess no instrument of
title to the land but also their
entry on the land was challenged
by the appellants. They were
left in no doubt that title to
the land had been granted by the
Lands Department to the
appellants. It can therefore not
be said that they had believed
in the validity of their title
because plainly on the evidence
they had none.
I am therefore of the opinion
that the appeal should succeed.
OFORI-BOATENG JA.
I also agree that the appeal
should succeed.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner. |
