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