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HOME           5  WEST AFRICA COURT OF APPEAL

 

                                         

                              Accra, 4th December, 1939.

, COR. STROTHER-STEWART, AG. C.]., DOORLY AND M'CARTHY, JJ.

                                                        JOSEPH OBODAI LARYEA .                      Plaintiff-Appellant.

                           v

                       THE UNITED AFRICA Co., LTD., AND OFOSU APPIAH        Defendants-Respondents.

                                                                       

Appeal Court, 4th Dec., 1939. Appeal from Supreme Court.

Declaration of title, recovery of possession and claim for damages for trespass-Claim based on legal estate-Failure to prove title­ Laches.

Land in dispute was conveyed to brother of plaintiff, was mortgaged by latter to Millers Limited, and then sold to plaintiff who obtained not legal Estate but equity of redemption. Negotiations were made for re-conveyance but deed was not executed. The premises were put up for sale by public auction at instance of 1st defendant and conveyed by deed to 2nd defendant but the sale was, for the purposes of this case, of no legal effect.

Held that :-

I. The deed of re-conveyance on which plaintiff relied was not proved to have operated to pass the legal estate in the land and the decision of the trial Judge that the plaintiff failed to prove his title was upheld.

2. As the claim was based on the leg-al title and not on prior possession of equitable title and plaintiff failed to prove title the claim for recovery of possession and in respect of trespass must also fail.

Held further: even if the plaintiff had proved title the question of laches

would have had to be considered.

F. Dove (with him K. A. Bossman) for Appellant.

C. C. Carter for 1st Respondents.

A. M. AkiwlImi for 2nd Respondent.

The following judgments were delivered :­M'CARTHY, J.

In this action the plaintiff claims (a) a declaration of title, (b) recovery of possession, and (c) damages for trespass, in respect of a piece of land situate at Nsawam.

The land in dispute is part of a larger piece of land which was conveyed by one C. T. Armah to Albert Laryea, the brother of the plaintiff, by a deed dated the 21st April, 1920. On the 11th May, 1920, Albert Laryea mortgaged the whole premises to Millers Limited to secure himself in their employ. On the 26th August, 1920, Albert Laryea sold the western part of the land to the plaintiff. This is 'the land in dispute. In 1927 the eastern part of the land was sold in execution and purchased by the 2nd defendant.

At the time of the purchase of the two portions of the land by the plaintiff and the 2nd defendant respectively, the whole land was still mortgaged to Millers Limited. Thus the purchasers did not obtain the legal estate, but only the equity of redemption in respect of their portions.

Subsequently there were negotiations for the re-conveyance of the western half of the land by Millers Limited to the plaintiff, and a deed for this purpose was prepared. It recites the mortgage by Albert Laryea, the purchase by the 2nd defendant of the eastern part of the land, the payment of the mortgage debt by the mortgagor, the purchase by the plaintiff of the western portion, and the request of the mortgagor, Albert Laryea, that the land be re-conveyed to the plaintiff.

The deed which is dated the 12th July, 1929, was duly executed by Albert Laryea, the mortgagor, and the plaintiff. It was not executed by 2nd defendant. It was signed by the attorney for the liquidators of the Company, and opposite his signature is an attestation clause purporting to show that the deed was signed, sealed, and delivered by the said attorney on behalf of the liquidator. The attorney's signature was not attested; moreover the deed was never handed over to the purchaser, though he was given a copy.

In 1930 the whole premises were put up for sale by public auction at the instance of United Africa Co, Ltd. The property was knocked down at the auction to the 2nd defendant, and by a deed dated the 13th June, 1930, the United Africa Co. Ltd., purported to convey the whole premises, comprising both western and eastern portions above mentioned, to the 2nd defendant. The deed recites a mortgage dated the 31st May, 1930, of the whole premises by Albert Laryea to Millers Limited, that the United Africa Co. Ltd, were the successors of Millers Limited, and that the sale was in pursuance of such mortgage. It may be mentioned at once that the succession of United Africa Co. Ltd. to Millers Limited ha~ not been proved, and that, accordingly, the sale in question must be taken, for the purposes of this case, to be of no legal effect,

I will refer now to the plaintiff's claim for a declaration of title, This is based (a) on the conveyance to him by Albert Laryea of the 26th August, 1920, by which as already mentioned, he (the plaintiff) obtained the equity of redemption of the land in dispute, and (b) on the re-conveyance by Millers Limited of the 12th July, 1929.

It is urged on behalf of the defendants that the absence of attestation of the execution of the deed of re-conveyance by the liquidator's attorney being very unusual, suggests that there was something short of complete execution. Moreover it was argued that the fact that the deed remained in the possession of Millers Limited and was not handed over to the plaintiff, raises a presumption that it was wt intended that it should take effect as a c1eed.

It is clear that Millers Limited contemplated that the 2nd defendant would be a party to the deed. Whether the fact that he did not execute it influenced them in the matter is not so clear, but I am of opinion that the evidence does not warrant the conclusion that the deed of re-conveyance was executed by the attorney for the liquidator with the intention of hinging it into effect. It follows that I do not consider that it is proved the deed operated so as to pass to the plaintiff the legal estate in the land.

The deed was relied on by Counsel for the plaintiff in his opening statement at the trial. The point that the execution was incomplete was not mentioned by Counsel for the defendants in their opening statements. However I do not consider that this would necessarily prevent the point being raised in the course of the trial.

The cross-examination of the plaintiff by Counsel for the 1st defendants shows that the effectiveness of the deed was challenged, without objection, at an early stage of the trial. Moreover the point was clearly stated by Counsel for both the 1st and 2nd defendants in their final addresses. Counsel for the plaintiff dealt with the point in hiS' reply, without taking the objection that it had not been pleaded, and I think that any right of objection on grounds of procedure must be deemed to have been waived,

The learned trial Judge held that the plaintiff failed to prove his title, inasmuch as the 2nd defendant never executed the deed of re-conveyance, and not being a party to it, was not bound by the deed. I come to the. same conclusion, but on the different ground that the alleged deed of re-conveyance did not convey to the plaintiff the legal estate in the land in dispute. In my opinion, therefore, the decision of the Court below in respect of this claim should be upheld.

I now come to the claim for recovery of possession. Counsel for the plaintiff based this claim on the plaintiff's legal title. It was not stated in the opening of the plaintiff's case that his claim was based in the alternative on prior possession or an equitable title.

No such case was advanced on behalf of the plaintiff at the trial; consequently no such case was considered by the ·Court below. The plaintiff has relied throughout on his legal title. As I have stated in connection with the claim for a declaration of title, he has failed to prove this title ~ accordingly in my opinion the decision of the learned trial Judge should be upheld in respect of the claim for recovery of possession.

For similar reasons I consider that the decision of the Court below in respect of trespass should also be upheld.

I should add that at the time of the •• sale" of the land in dispute by the 1st defendants to the 2nd defendant in 1930, Albert Laryea appears to have been in physical possession. The 2nd defendant and the auctioneer stated in evidence that there was no protest by the plaintiff against the sale, although this was denied by the plaintiff and Albert Laryea. It is however evident that the 2nd defendant assumed possession without any difficulty, that he built or improved a house on the land at a cost of about £200, that he has remained in undisturbed possession up to this date, and that (at any rate since the sale) the plaintiff did nothing in protection of his interest in the land before commencing these proceedings about six years after the sale.

Plaintiff alleges poverty as an excuse for his inactivity, but it is noteworthy that he did not even write to the United Africa Co. Ltd., and/or to the 2nd defendant, setting out his claim to the land.

If therefore the plaintiff had proved his legal title, or prior possession or an equitable title (supposing these were part of his case) to the satisfaction of the Court below, it would still have been necessary for that Court to consider whether the plaintiff was not estopped by laches, a defence set up by the 2nd defendant.

In the result, the appeal should, in my opinion, be dismissed.

The 2nd defendant is entitled to his costs, assessed at £31 16s. 6d.; but I hold that the 1st defendants should pay their own costs, both here and in the Court below, as it seems to me that by their abortive sale in June, 1930, which has not been satisfactorily explained, they brought this litigation on themselves.

STROTHER-STEWART, AG. C.]., GOLD COAST.

I concur.

DOORLY, ].

I agree generally with the conclusions of my brother M'Carthy.

I agree that plaintiff made no case against the 1st defendants. On plaintiff's claims for title and for recovery of possession I agree that the plaintiff did not prove that the re-conveyance from Millers Brothers (exhibit 2) was ever executed by the Agent of the liquidator of Millers Brothers as a complete conveyance so as to vest the legal estate in the plaintiff.

I propose, however, to consider the equities, for it may be that the plaintiff has an equitable title which this Court should enforce as against 2nd defendant. On the face of exhibits 6 and 1 (the mortgage Albert Laryea to Millers dated 11th May, 1920, and the conveyance Albert Laryea to plaintiff dated 26th August, 1920) it would appear that the equitable estate of his brother Albert Laryea passed to him. One noticeable feature, however, is that Albert Laryea acquired the whole property from C. T. Armah on 21st April, 1920 for £124 and he purports by exhibit 6 to sell a half of that property on 26th August, 1920, to his brother, the plaintiff, for £400.

This seemingly extraordinary overcharge by one brother to another raises in my mind a doubt as to the bona fides of the first transaction between the brothers and this doubt .is considerably enhanced by the subsequent history of the property as shown by the documents and by the evidence

. Added to this is the fact that although the 2nd defendant purported to buy this property on 13th March, 1930, and went into possession, the only steps alleged by plaintiff himself as having been taken by him are a verbal objection to the Manager of the United Africa Company and a verbal protest and claim to ownership alleged to have been made to the auctioneer. This action was not filed until the 3rd November, 1936.

It is incredible that plaintiff, holding an equitable title and believing that he had the legal title as well, should have contented himself with these protests, the fact of which depends on his own word and that of his brother.

I consider that, in the circumstances, plaintiff has been guilty of such laches and his conduct has been so suspicious that under two at least of the maxims of equity he is not entitled to equitable relief in this action.

As to the plaintiff's claim in trespass, I am not prepared to say it is time-barred as neither of the defendants proved the exact date on which second defendant entered into possession.

As to possession, the evidence for the plaintiff seems to show that up to the time at which 2nd defendant entered on the property, plaintiff's brother, Albert, was in physical possession, and performed acts of ownership. Whether Albert's possession was or was not adverse to that of the plaintiff, is very doubtful. I am not satisfied, therefore, that plaintiff proved possession at the time of 2nd defendant's entering into possession, so as to justify him in succeeding in his claim in trespass.

In the result I think the conclusion of the trial Judge was correct and I would dismiss this appeal with costs.

I agree with the order as to costs proposed by my brother M'Carthy.

 
 

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