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Customary law – Stool land – Alienation – Whether stool may alienate land in possession of family without consent of family.

Land law and conveyancing – Land Development (Protection of Purchasers) Act – “Good faith” – Meaning of – Whether construction on disputed land during pendency of action in good faith – Land Development (Protection of Purchasers) Act 1960 (Act 2) s 1(1)(b).

The 1st plaintiff purchased the disputed land from the co-plaintiff, the head of Nanka Bruce family. The family had acquired the land from the Asere stool, which comprised various families including the Nikoi Olai family. The defendant traced his title from the Nikoi Olai family. The co-defendant, head of the Nikoi Olai family contended that the Asere stool could not lawfully dispose of land in the occupation of the Nikoi Olai family without the consent of the family; accordingly the sale to the Nanka Bruce family was null and void. A licensed surveyor appointed by the court confirmed that the disputed land fell within Nanka Bruce’s property nevertheless the trial judge gave judgment for the defendant. The 1st plaintiff appealed. The defendant’s counsel contended on appeal that since she did not develop the land in defiance of an injunction order, she was protected by the Land Development (Protection of Purchasers) Act 1960 (Act 2).

Held: (1) Under customary law a subject of the Asere stool could possess vacant Asere stool lands. Such occupation could be such physical act as farming or building on the land. On the facts the plaintiff took a valid grant of a vacant land, which she registered and had since remained in possession. The defendant on the other hand had failed to establish her title to the land. Yoguo v Agyekum [1966] GLR 482, SC, Lutterodt v COP [1963] 2 GLR 429, SC, Danquah v Ofei (1956) 2 WALR 185.

(2) A person relying on Act 2 must establish that the purchase and development of the land was bona fide. Bona fides was a question of fact to be determined on the circumstances of the case, the onus being on the person claiming protection under the Act. When the onus was discharged the court would consider hardship to the parties. Conney v Bentum-Williams [1984-86] 2 GLR 301, CA, Laryea v Oforiwah [1986-86] 2 GLR 410, CA, Ntem v Ankwandah [1977] 2 GLR 482, Dove v Wuta-Ofei [1966] GLR 299, SC, Annan v Buckle [1977] 2 GLR 329, CA referred to.

(3) There was overwhelming evidence on record that the defendant did not build in good faith. The fact that she built even when the appellant had reported her to the police and commenced the action against her destroyed her bona fides. The fact that she was not restrained by injunction did not in any way diminish the risk she took in the construction. For no one could foretell the outcome of litigation. A person who built during litigation must be aware of the possibility that the litigation might end in favour of the opponent. With such awareness such person could not be said to have acted bona fide. It would not suffice that such person had absolute faith in the title to the land. For such person could not assert certainty of title while title to the land was yet to be determined in the pending action. “Good faith” in the context of section 1(1)(b) of Act 2 necessarily referred to the state of mind of such person in relation to title in the land and nothing else. Dzade v Aboagye [1982-83] GLR 209, CA, Amua-Sekyi v Sasu [1984-86] 2 GLR 479, CA, Sasu v Amua-Sekyi [1987-88] 2 GLR 221, CA referred to.

Cases referred to:

Amua-Sekyi v Sasu [1984-86] 2 GLR 479, CA.

Annan v Buckle [1977] 2 GLR 329, CA.

Boateng v Dwinfour [1979] GLR 360, CA.

Conney v Bentum-Williams [1984-86] 2 GLR 301, CA.

Danquah v Ofei (1956) 2 WALR 185.

Dove v Wuta-Ofei [1966] GLR 299, SC.

Dzade v Aboagye [1982-83] GLR 209, CA.

Kotei v Asere Stool [1961] GLR 492, SC.

Laryea v Oforiwah [1986-86] 2 GLR 410, CA.

Lutterodt v COP [1963] 2 GLR 429, SC.

Majolagbe v Larbi [1959] GLR 190.

Ntem v Ankwandah [1977] 2 GLR 452, CA.

Okoe v Horhomeno III [1987-88] 1 GLR 434, SC

Roberstson v Nii Akaamah II [1973] 1 GLR 445, CA.

Sasu v Amua-Sekyi [1987-88] 2 GLR 221, CA.

Yoguo v Agyekum [1966] GLR 482, SC.

APPEAL against the judgment of the Circuit Court, Accra.

AMUAH JA. This is an appeal against the judgment of an Accra circuit court delivered on the 25 January 1989. By this judgment the learned trial judge held that the plaintiff failed to make a prima facie case of title to the land in dispute and accordingly dismissed her claim.

The facts of the case are as follows: The plaintiff purchased the land in dispute in 1973 from the co-plaintiff, the head of Dr Nanka Bruce family. The family had earlier on purchased the said land in dispute, which forms part of a large tract of land from the Asere stool in 1947. The deeds of conveyance in respect of the purchases were registered at the deeds registry as numbers 594/1973 and 64/48 respectively. Briefly the plaintiff traced her root of title to the Asere stool while the defendant to Nikoi Olai family of Asere Djorshie. The co-defendant being the head of Nikoi Olai family contended that the Asere stool could not part with any portion of the Mukose lands known to be the property of Nikoi Olai family without the consent and concurrence of his family and that the sale by the Asere stool to the family of Dr Nanka Bruce was without effect.

At the trial the main issues set down for trial were: (1) whether the land the subject matter of this suit was for the plaintiff or for the defendant and (2) whether the plaintiff was entitled to the reliefs she was seeking.

In view of the conflicting claims the learned trial judge appointed a licensed surveyor by name Edmund Boi Adade “to survey the land in dispute and super impose it on a large plan of the Mukose lands or what is described as the large Mukose area.” The surveyor gave evidence and in answer to a question put to him he stated that the land in dispute was not part of the green area and that it was within Dr Nanka Bruce’s property.

As part of the case for the plaintiffs the attorney for the plaintiff stated as follows:

“There was nobody or nothing on the land. We erected pillars on the land and put sand and stones on the land. Coconut trees were also planted on the land. All this happened between 1973 and 1977. I was there alone. It was in 1977 when somebody came to the land. It was the defendant. It was the defendant Charlotte Okine who came to the land in 1977.”

In a question put to the witness the defendant made a case that the land in dispute forms part of a large tract of land known as the Mukose land. The plaintiff did not call any of the elders of the Asere stool to testify that the land in dispute was acquired from the stool.

The evidence as to the 1st defendant’s acquisition of the land in dispute was given by her as well as the head of the family of Nikoi Olai. She stated that she bought the land over ten years ago from Nikoi Olai family. At the time of purchase there was no building standing on it. She planted coconut trees on it. When she started construction and the building had reached one block to roofing level the plaintiff confronted her with an adverse claim.

The learned trial judge after considering the evidence adduced before him and the law held that he “did not find that the plaintiffs had discharged the burden imposed upon them to prove clear title to the land in dispute.” He therefore dismissed the plaintiffs’ claim and did not find it necessary to “pronounce on the merits of defendants’ case.”

The plaintiffs, being dissatisfied with the judgment have appealed against it on a number of grounds which include:

“(1) That the learned trial judge erred in law in holding that the plaintiffs had failed to discharge the burden of proof that lay on him.

(2) That the judgment is against the weight of evidence.

(3) That the costs awarded are manifestly excessive in all the circumstances.”

At the trial a licensed surveyor was appointed by the court to survey the land in dispute and superimpose it on a large plan of the Mukose lands. This was carried out by him. In his evidence he stated that the land in dispute was not part of the area edged green and that it was within Dr Nanka Bruce’s property. I think that the land in dispute which is outside the area edged green is part of the Mukose land.

Now the defendants are not contending that the Asere stool has no interest in the disputed land. Their point is that, the Asere stool cannot sell or deal with the land in dispute without the consent and concurrence of the Nikoi Olai family. Since the authority of the Asere stool to dispose of land in the manner it did has been called into question it is for the plaintiff to call elders of the stool of Asere to testify and to satisfy the court that they have an absolute title to the Mukose lands and that they can dispose of them without the consent of the defendants.

The evidence on record shows that the plaintiff by her attorney entered into the witness box and repeated on oath, the averment in the statement of claim. This they say is contrary to the admonition given by Ollennu J in Majolagbe v Larbi [1959] GLR 190 at page 191 and in the end failed to stand on the strength of their case.

The co-defendant in fact tendered judgments and extracts of a case heard in the High Court, the Full Bench of the Court of Appeal as well as the Privy Council in support of his case but there is a clear and high authority in the case of Okoe v Horhomeno III GLR [1987-88] 1 GLR 434, SC which shows that this issue has been in substance fundamental to the decision in the earlier proceeding between the same parties and that the parties to that earlier proceeding are estopped from re-litigating the issue in this subsequent action between the same parties. The issue as to whether the Asere stool held a paramount title as well as the determinable or usufructuary estate in the area outside the area edged in green was decided by the Supreme Court in favour of the Asere stool in that proceeding and the co-defendant is estopped from re-opening the issue. The Supreme Court in dismissing the appeal (Francois JSC and Amua-Sekyi JA dissenting) held as follows:

“(1) the reference in Kotei v Asere Stool [1961] GLR 492, PC, to the area edged green was to the actual land sold to Captan. And it was clear from the pleadings, the address of counsel for the plaintiff’s family, the judgments of Jackson J, the Privy Council and that of Apaloo JA (as he then was) in Robertson v Nii Akramah II [1973] 1 GLR 445, CA that the area measured 903.15 acres. The Privy Council judgment in favour of the plaintiff’s family was therefore limited to only that area. Except for that area of 903.15 acres upon which the plaintiff’s family established its possessory title the remaining area was adjudged to be Asere stool land. Since the land in dispute in the instant case was completely outside the area in respect of which the plaintiff’s family had been given possessory title by the Privy Council, and furthermore the plaintiff failed to prove that members of his family had exercised their customary rights of farming or had occupied any portion or portions of the land outside the 90.315 acres, neither the judgment of the Privy Council nor that of the Full Bench of the Court of Appeal in the Robertson case [1975] 2 GLR 301, CA bound them. Consequently, those judgments could not be relied upon as estoppel per rem judicatam against the Asere stool.”

The learned trial judge therefore erred in holding that the plaintiff failed to establish a prima facia case. Now under native customary law “any Asere subject can settle on any part of Asere stool land not in prior occupation of another subject.” The evidence on record shows that when the plaintiff entered the plot in dispute there was no building on it. She, assisted by the attorney, erected pillars at the corners of the plot and planted three coconut trees on it. She registered her title deed and that from 1973 to 1977 she was not only in possession but occupied the land. She revealed that when the defendant interfered with her possession she made a report to the Odorkor police and she was arrested.

On the other hand the defendant tendered in evidence no registered document relating to her land. She led no evidence to prove the essential ingredients of a valid customary sale to her, for instance the giving of aseda indicating acceptance of a gift of land: Yoguo v Agyekum [1966] GLR 482. There is no evidence to show that she conducted a search at the deeds registry to satisfy herself that the plot was not in the prior occupation of another subject before she started to build. She alleges that when she was confronted, the building she was constructing had one block to reach roofing level. When she was subjected to cross examination she said it had reached window level. The co-defendant who went to the scene upon a report made to him by the defendant said he saw a concrete platform and added that the defendant had started laying block walls. Ollenu in the case of Lutterodt v COP [1963] 2 GLR 429 at pages 436-437 held that:

“Where, as in this case, the decision turns upon the oath of one prosecution witness against that of a witness for the defence, it is incumbent upon the trial court to examine the evidence of each of those two witnesses carefully along with other evidence in the case, oral, documentary and circumstantial as well, before preferring one of the conflicting evidence to the other; and where the preference is for the prosecution he must make it appear from his judgment that his said preference is reasonable, for the principle of law, is that if the court could not find reasonable grounds for preferring the evidence of the prosecution witness to contradictory evidence given by a defence witness, the prosecution has failed, because there would, at least, be reasonable doubt as to which of the two conflicting versions of the story is true, and the benefit of that doubt must be given to the defence.”

The defendant obviously is not a witness of truth because she has been inconsistent. I think I will adopt this approach and apply it to this case. The defendant obviously is not a witness of truth. In my view the defendant entered the plot in dispute and destroyed the corner pillars and coconut trees before she started erecting the building which now stands on the land. Even though an adverse claim was brought to her notice she continued to build and complete the building. She has herself to blame (Danquah v Ofei [1956] 2 WALR 185) and cannot take advantage of the statutory remedy provided by the Land Development (Protection of Purchasers) Act 1960 (Act 2).

On the totality of the evidence and for the above reasons I will set aside the judgment together with the costs entered against the plaintiff. In lieu of it, I enter judgment of the plaintiff as her claim succeeds. The case of the defendant fails.

BROBBEY JA. I also agree that the appeal should be allowed. In addition to what has been read by the president of this panel I will add the following: The appellant in this case was the plaintiff at the trial court. She traced her root of title to the Asere stool. The respondent who was the defendant also traced her root of title to the Nikoi Olai family. The Asere stool is made up of different families. Nikoi Olai family is one of the families within the Asere stool.

The Asere stool holds the allodial title over the area covering the lands in dispute. A family within the Asere stool, like the Nikoi Olai family, is entitled to occupy any portion of Asere stool land and reduce it to its possession, provided the land is vacant at the time of the occupation. Of course, if by the time of the entry the Asere stool land is already in possession, there will be no valid possession. Possession is established by act of physical occupation, farming or building on any portion of the land covered by the allodial title. A portion of the land in possession of an occupant cannot properly be alienated by the holder of the allodial title. All these are hackneyed principles of land law in Ghana which none of the parties in this case disputes.

Counsel for both sides are agreeable on these points. The main bone of contention is whether the disputed land had been reduced into possession of the respondent’s donor, the Nikoi Olai family, at the time the respondent acquired it or whether it was vacant land over which the Asere stool held allodial title or whether it was land already taken over by the Asere stool and given to the appellant.

The trial judge accurately stated the principles applicable to the case concerning onus of proof. The Nikoi Olai family laid claim to lands over which the Asere stool held allodial title but described by that family as the Mukose lands. Counsel for the appellant however contended that the Mukose lands were limited to what has been described as the green area covering 903.15 acres. The co-respondent denied this last point and maintained that his family lands covered beyond that. Cases were cited by counsel for both sides in support of their contentions. All the cases cited are clear in what they decided. The case of Kotei v Asere Stool [1961] GLR 492, SC, limited the Mukose lands to only 903.15 acres. That was confirmed by Roberstson v Nii Akaamah II [1973] 1 GLR 445, CA and Okoe v Horhomeno III [1987-88] 1 GLR 434, SC.

In the instant case, the surveyor testified that the disputed land fell outside the green area. He was not challenged on that. The respondent and co-respondent described the green area as being “contiguous or adjacent” to the disputed land. The co-respondent could therefore, properly describe the disputed land as being the land of the Nikoi Olai family which could be alienated by that family only if the family established that it had exercised customary rights of farming over or occupied or possessed it.

What was the evidence of possession led on behalf of either party? The case of the appellant at the trial court, simply put, was this: She acquired the land in 1973 from the Nanka Bruce family. That acquisition was evidenced by a registered document which was tendered as exhibit B. The Nanka Bruce family itself acquired the land in 1948 from the Asere stool. That too was evidenced by exhibit C. At the time of the acquisition she said the land was vacant. According to the appellant she exercised acts of possession over the land which she acquired by erecting corner pillars, planting coconut trees, and depositing sand and stones thereon. Her date of acquisition, which she fixed at 1973, was not disputed by anyone. It was amply supported by exhibit B.

On the other hand, the respondent averred that she acquired a vacant plot from the co-respondent and started building on it. She denied seeing corner pillars, sand, stones or cocoanut trees of the appellant on it at the time she acquired the land. The parties thus joined issue as to the whether the appellant reduced the land into her possession in 1973 or whether the respondent found vacant land with no evidence of occupation by anyone. The issue boiled down to the oath of the respondent against that of the appellant.

The record revealed serious and material inconsistencies in the case of the respondent which affected her credibility as far as the alleged acts of possession were concerned. Firstly, the date of her acquisition of the plot was uncertain. In her statement of defence she averred that she acquired it in 1972. When she testified in court in 1988 she stated that she acquired the land about ten years before then, which meant 1978. She finally admitted that she acquired the land in 1976.

Secondly, her evidence was conflicting on the exact stage of the building at the time she was challenged. In her evidence in chief she said she had constructed the house up to one block before roofing level when she was confronted by the appellant. While under cross-examination she said she had reached lintel level. Eventually when the co-respondent whose family offered the land was questioned on this issue, he stated categorically that at the time of the confrontation the respondent had laid the foundation to the house and concreted the surface of the platform. In view of the inconsistencies in the evidence of the respondent and co-respondent which obviously affected their credibility, the trial judge should have preferred the version on possession given by the appellant to that of the respondent and co-respondent. This should a fortiori have been the case when the trial judge’s evaluations were not based on his consideration of the demeanour or personal observation of the parties or witnesses who testified before him. The record does not disclose that to be the basis on which their evidence was evaluated.

A significant point on possession was made by the documents evidencing the titles of the appellant and respondent. It was not disputed that the appellant and her vendors held registered documents as per exhibits B and C. The respondent and co-respondent had no document to evidence their title to the land. If they had, they conceded that it had not been registered and in any case they never exhibited it at the trial court. The co-respondent admitted that his family had notice that Dr Nanka Bruce had registered the land in dispute. Yet they did nothing about the registration because according to the co-respondent that did not convey “conclusive” title.

If the appellant and Dr Nanka Bruce who had registered their documents do not have “conclusive title”, how could the respondent and Nikoi Olai family who had no documents at all claim to have had “conclusive title”? If the appellant and Dr Nanka Bruce who had registered documents had no “conclusive title” the respondent and the Nikoi Olai family had no better title to the disputed land. As was rightly held in Boateng v Dwinfour [1979] GLR 360, CA, even if registration did not confer State-guaranteed title, section 26 of the Land Registry Act 1962 (Act 122) conferred priority on a registered document against other documents, especially unregistered documents, affecting the same land. Registration conferred priority on the title of Dr Nanka Bruce and the appellant as against the title claimed by the respondent and the Nikoi Olai family.

To my mind, the knowledge of the co-respondent’s family that Dr Nanka Bruce had registered the title should be interpreted to mean that the co-respondent and his family had been made aware of the fact that Dr Nanka Bruce had entered the land or reduced it to his possession before the co-respondent alienated it to the respondent. It cannot be assumed that Dr Nanka Bruce registered a piece of land without boundaries and which was unidentified. Surely judicial notice can be taken of the fact that a land which had to be registered had to be identified, demarcated and its boundaries delineated by corner pillars, trees, plants or such-like evidence. In other words, the fact of the grant by Asere stool to Dr Nanka Bruce and the facts of demarcation and registration are positive evidence of possession of the disputed land by the Asere stool. The judgment of the circuit court judge was based on the fact that the appellant failed to prove her title or possession because she did not call a representative of the Asere stool, her grantors. I think that conclusion was not borne out by the evidence on the record.

The analyses I have given here show that there was sufficient evidence on record, without having to call a representative of Asere stool, which proved that the land was already in the possession of the Asere stool either in 1948 or 1973 before the respondent acquired it from the co-respondent in 1976. There was no evidence that by the time the co-respondent gave the land to the respondent the co-respondent’s family was in possession. There was no evidence of farming in the disputed area by any member of the Nikoi Olai family. The evidence of the co-respondent described generally what he called Mukose land acquired by his family. In fact his evidence was more consistent with green area of 903.15 acres which, according to the surveyor, did not cover the land in dispute. The evidence on record rather conclusively showed that by 1976 when the Nikoi Olai family gave the disputed land to the respondent, the Asere stool had exercised acts of possession on the disputed land as shown above or had already given it to the appellant in 1973 who had exercised acts of possession over it. Since the holder of the allodial title had effectively reduced the disputed land into its possession and passed it on effectively to the appellants the co-respondent’s family could not properly have given that same land subsequently to the respondent.

The respondent’s counsel further contended that the respondent had already constructed the house and was being occupied. He added that there was no injunction restraining the continuation of the building. In the circumstances, the respondent should be taken to have erected the building bona fide and therefore protected by the Land Development (Protection of Purchasers) Act 1960 (Act 2).

The requisites to be proved before a person invokes to his aid Act 2 have been well set out in a number of cases including Conney v Bentum-Williams [1984-86] 2 GLR 301, CA, Laryea v Oforiwah [1984-86] 2 GLR 410, CA, Ntem v Ankwandah [1977] 2 GLR 482, Dove v Wuta-Ofei [1966] GLR 299, SC and Annan v Buckle [1977] 2 GLR 329, CA. The most important requirements are that the person relying on Act 2 should show that:

After these have been satisfied, the court will then consider (4) hardship to the parties.

In the instant case, the evidence that the 1st respondent was a purchaser was unsatisfactory. The 1st respondent said she bought the land from the Nikoi Olai family. The co-respondent who represented that family testified that the land was acquired by the respondent in her capacity as a member of that family. What kind of purchase was it? No particulars of sale or acquisition were given. Even if it was a customary purchase, evidence should have been led on that. Whatever title the 1st respondent and co-respondent had was not even registered. On the other hand, as has already been stated in this judgment, the appellant and her grantors had regularised their acquisition by valid registration as per exhibits B and C. Almost all the decided cases on this issue have held consistently that in deciding on the protection afforded by Act 2 the most important requirement is the good faith or bona fide of the purchaser when constructing the building.

What amounts to bona fide is a question of fact determinable on the circumstances of each case. The onus of establishing the bona fides however is on the builder of the house, like the respondent herein. In the instant case, there was overwhelming evidence indicative of the fact that the respondent did not act in good faith in continuing with the building to completion. My reasons are as follows: Firstly, the respondent had no reason to believe that her grantors, the Nikoi Olai family, had any better title than the appellant. This is not a case where the respondent or co-respondent did not know that their opponents held registered documents. The co-respondent himself stated in his testimony that he knew of the Gazette notices of the registration of the title deeds of Dr Nanka Bruce. The view of Mr Ashaley Okoe that registration did not make “conclusive” the title of Dr Nanka Bruce was clearly misguided. It was not a valid basis on which the respondent could rely to decide whether to continue the building. Even if registration did not grant conclusive title, it created prima facie title. In any case, the fact of the registration could not be ignored. If the co-respondent and the respondent chose to ignore the registered documents while they themselves had no documents or registered documents of their own, then they took a risk for which they have themselves to blame. Whatever knowledge the co-respondent had was to be imputed to the respondent because if nothing at all, the respondent could have ascertained the position regarding the appellant’s registered documents from the co-respondent if she had enquired or made a search. As purchaser of landed property, the law required her to have made enquiries as to the validity of title of the property she was acquiring and she would be deemed to have made the enquiries. If she did not make the enquiries but merely proceeded to build, that would amount to recklessness which could not inure to her benefit. It would have been further evidence of risk for which she has only herself to blame.

The facts of this case are similar to those in Dzade v Aboagye [1982-83] GLR 209 which was decided in this court. In that case, land customarily granted by the Osu stool in 1939 was registered in 1975. In 1976, the defendant claimed to have acquired the same land from the Osu stool by the deed which was neither stamped nor registered and was not tendered in the trial court, just as in the instant case. The defendant nevertheless built on the land. On the issue whether Act 2 could aid the builder, it was held that good faith could not be imputed to a man who had reason to believe that his title to the land was not in order.

In the instant case the good faith could not be imputed to the respondent who had no reason to believe that her grantors who had no documents or registered documents had better title than that appellant and her grantors.

The second point touching on the bona fides of the respondent was that the appellant reported her conduct to the police when she started the building. At least from the testimony of the co-respondent, the confrontation by the appellant of the respondent took place when the respondent had merely concreted the platform. Not long thereafter the appellant issued the writ which culminated in the instant appeal. In effect, the appellant did all that she could properly do to drum it home to the respondent that there was opposition to the construction of the house and challenge to her title to the disputed land. The respondent counsel’s information to this court while arguing this appeal that the house had long been completed and was inhabited was clear admission that the respondent continued with the building fully conscious of the risk she was taking. That again demonstrated recklessness on her part for which she now has herself to blame.

Thirdly, the mere fact that no injunction was applied for or granted to restrain the respondent from continuing with the building amounted in no way to a diminution of the risk the respondent took to construct the house to completion. In Amua-Sekyi v Sasu [1984-86] 2 GLR 479, CA where an injunction was placed on the construction of a house in similar circumstances but the builder moved the court to discharge the injunction order and continued constructing the building, this court held that that amounted to “reckless conduct.” On a similar issue arising in Sasu v Amua-Sekyi [1987-88] 2 GLR 221, CA this court held that:

“(8) For the Land Development (Protection of Purchasers) Act.1960 (Act 2) to apply, all the conditions under section 1(1)(a), (b) and (c) had to be present and satisfied. The requirement of section 1(1)(b) that “the purchaser or a person claiming through him has in good faith erected a building on the land” was a condition which had to pre-exist before proceedings started and before benefit could be taken under the Act. That provision meant that the building on the disputed land had to have been erected and in good faith before proceedings were started. If the building was erected during the course of the proceedings, then the purchaser was aware that there was a dispute about his title and therefore his bona fides to erect the house had already been challenged. Consequently, if he persisted in doing so, he would have taken a gamble and would have done so at his or her own risk.”

I adopt that holding which I apply against the application of Act 2 to aid the respondent in this case. I would dilate on the principle further as follows: When a person like the respondent is putting up a house and litigation starts brewing over the land on which she is building, two situations arise, if she decides to continue with the construction to completion. The first is that the builder may proceed on the firm conviction that her tile is better than any one else’s title and so she may win the case. If she wins the case in court, she will no doubt have the land and the house. The second situation is that she is made explicitly conscious that someone else is claiming the land and litigation being what it is, it is not impossible for that one to win the case; should that occur, the builder will definitely lose the land. Since the builder is not the judge or final arbiter on the issue as to who is entitled to the land, the builder cannot say for sure that she owns the land.

Section 1(1) (b) of Act 2 requires that the purchaser must have “in good faith” erected the building on the land. “Good faith” literally means “honest.” In this context it should be interpreted to connote the type of honesty which is such that the builder in that state of mind cannot be said to have had any reason to believe that she could lose the land. Further, good faith in this context should mean honest unalloyed with any sense of chance, risk or adventure.

No one can tell the outcome of litigation for sure until it is finally concluded. This is indisputable. A person who proceeds to build on a plot of land engulfed by litigation is aware that there is the possibility that the litigation may end in favour of the opponent; with that knowledge if she proceeds to build, she cannot be said to believe honestly or bona fide that the plot belonged to her at the time of the construction. The subjective thinking of the builder will be irrelevant. It will not be enough for her to say that she had absolute faith in her title and that was why she built and so she should be taken to have built in good faith when she knows that some-one else lays claim to the land. The question which any builder placed in the position of the respondent herein should answer in this: “Does the builder have any reason to believe that he may lose the land on which he is building with the litigation subsisting simultaneously as she continues with the construction?” If the answer is in the affirmative, then common sense alone, if nothing else, should dictate to such a builder to stop the building because he could not be certain that the land on which she builds will belong to her in the future. A builder cannot genuinely assert the certainty of her title to the land when it is litigation which will make decisive determination of title to that land remains uncertain. If such builder continues to build in spite of the uncertainty of the title to the land, he or she cannot be said to have built in good faith. “Good faith” in the context of Act 2, section 1(1) (b) therefore necessarily refers to the state of mind of the builder in relation to title to the land and nothing else.

This, as I see it, the rationale for the principle that the person who builds on a land while litigation proceeds over that land, to the knowledge of such person, cannot be said to have built in good faith.

In the instant case, the knowledge that the appellant who challenged the respondent held a registered document on the disputed land, the intervention of the police at the instance of the appellant and the action instituted at court by the appellant to question the title of the respondent, should have induced the respondent to apprehend that it was not safe to build on that particular plot. In spite of all these, if the respondent decided to proceed with the building to completion, she could not be said to have acted bona fide. By building when she was palpably made aware that her title was on the line, she took a gamble. Gambling connotes consciousness of a risk. A person who is conscious of a risk like the respondent herein cannot seriously be heard to wail that she acted bona fide when she finds herself on the losing side. For the foregoing reasons, now that the case is over and she has lost the land on which she adventurously built the house, she cannot seek refuge under the protection in Act 2. I agree that the appeal should be allowed.

FORSTER JA. I have had the benefit of reading the opinions just delivered by my learned brothers, in which I firmly concur. I accordingly allow the appeal and set aside the judgment of the circuit court from which the appeal is brought.