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Land -
Ownership - Contract of sale -
Gift - Conveyances to transfer
–Specific performance – Whether
or not the land in dispute was
given to the respondent was
there in existence a valid
contract of sale of that same
land between her and the
respondent company - Whether or
not the purported conveyance of
the land in dispute was void
because no foreigner is
permitted under the
1992
Constitution to own a
freehold interest in a landed
property - Article 266 (1) and
(2) - 1992 Constitution
HEADNOTES
Betty Lokko
and her husband, the late Joseph
Lokko were owners of two
contiguous plots of land at Osu,
Accra which were covered by two
separate title deeds. After the
death of her husband she was
appointed the administrator of
his estate. In that capacity she
sold her husband’s plot to Naa
Lamiley Amoah, the appellant
herein. This was accompanied by
sale by her of her own plot No.
1751/1957 to the appellant.
According to the appellant,
after she had bought the two
plots she made a gift of one of
them, to her sister the late
Mrs. Majorie Welbeck. She then
directed her lawyer, who
happened to be her husband to
prepare
conveyances to transfer the
interest in one of the plot to
Mrs. Welbeck and the other plot
into her name. Her instructions
were carried out by her lawyer.
Thereafter it came to the notice
of the appellant that one Dr.
Ahadzi claimed
ownership
of one of the plots. Apparently
fearing that her interest in
that plot would be jeopardised
Mrs. Welbeck, whom the appellant
described as beneficiary, asked
for the purchase price of that
plot to be refunded to her. With
the support of her husband, Mrs.
Welbeck persisted in her demand
for the refund of the purchase
price in respect of that plot to
her. Eventually Betty Lokko
refunded an amount of ¢6,000,000
by cheque dated 30th
December, 1993 to her. It is on
record that it was Mrs. Welbeck
who encashed the cheque. The
defendants denied the
plaintiff’s claim and contended
that even though the receipt for
the payment of the two plots was
issued in the name of the
plaintiff it was Mrs. Welbeck
who bought the plot. She later
resiled from the
contract
of sale of the land in
dispute and requested for a
refund of the purchase price to
her. The purchase price for that
plot was therefore paid to her.
The result was that at the time
of sale of the land in dispute
to the respondent company Betty
Lokko was its owner and not the
plaintiff. Later Mrs. Betty
Lokko through her agent, Alfred
Quartey, the original second
defendant, now deceased, sold
the said property to the
respondent company, Sensations
Limited. The plaintiff was not
pleased about the sale by Betty
Lokko of that plot to the
respondent company. The trial
High Court dismissed the
appellant’s claim in its
entirety and granted the
respondent’s counterclaim. She
appealed to the Court of Appeal
who also dismissed the action
HELD
The
appellant’s challenge is that
the Court of Appeal erred in
affirming the damages awarded by
the High Court since there was
no basis for it. Since it is
established that the respondent
company was the owner of the
property in dispute, after
having paid for it and completed
the registration process at the
Land Title Registry, the conduct
of the appellant in going to the
land and ordering demolition of
structures on it constituted
trespass. That was indeed a
proper basis for the award of
damages by the High Court. The
fourth Ground of Appeal is also
dismissed. For the reasons given
in this judgment we dismiss the
appeal in its entirety
STATUTES
REFERRED TO IN JUDGMENT
Conveyancing
Decree (Act) 1973, (NRCD 175)
1992
Constitution
High Court
(Civil Procedure) Rules, 1954 (LN
140 A).
CASES
REFERRED TO IN JUDGMENT
Hadley vrs.
London Bank of Scotland Limited
[1865] 2 De K7 SM 63
Amuzu v.
Oklika [1997-98] 1 GLR 89
Amuzu v.
Oklika [1998-99] SCGLR 141
Cross v.
Hillman Ltd. [1969] 3 WLR 787
Fofie v.
Zanyo [1992] 2 GLR 475
Kofi (Oppong)
v. Fofie [1964] G.L.R. 174, S.C.
Praka v.
Ketewa [1964] G.L.R. 423, S.C.
Azagba v.
Negov [1964] G.L.R. 450, S.C.
Asibey III v.
Ayisi [1973] 1 G.L.R. 102.
Adorkor v.
Gatsi [1966] G.L.R. 31 at 34,
S.C
Kyiafi V.
Wono. [1967] GLR 463,
Benmax v.
Austin Motor Co. Ltd [1955] 1
WLR 177, HL,
Morris v.
West Hartlejpool Steam
Navigation Co. Lt. [1956] 1WLR
177, HL
Tonazzi
Brunetti (1953) 14 WACA 403
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ARYEETEY,
J.S.C
COUNSEL
ALBERT ADAARE
FOR APPELLANT
KIZITO BEYUO
FOR THE 3RD
RESPONDENT WITH NAA ODOFOLEY
NORTEY
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
ARYEETEY,
J.S.C
This appeal is a straight fight
between the plaintiff/appellant,
Naa Lamiley Amoah, whom we refer
to simply as appellant and the
original 4th
defendant company, Sensations
Limited, whom we refer to as
respondent. A brief background
to this appeal would be
appropriate.
Betty
Lokko and her husband, the late
Joseph Lokko were owners of two
contiguous plots of land at Osu,
Accra which were covered by two
separate title deeds. Betty
Lokko’s title deed’s registered
number at the
Land
Registry was number 1751/1957
while the registered number of
her husband’s plot was
1750/1957. After the death of
her husband she was appointed
the administrator of his estate.
In that capacity she sold her
husband’s plot No. 1750/1957 to
Naa Lamiley Amoah, the appellant
herein. This was accompanied by
sale by her of her own plot No.
1751/1957 to the appellant. A
receipt, exhibit B which Betty
Lokko issued covered the sale of
the two contiguous lands.
According to the appellant,
after she had bought the two
plots she made a gift of one of
them, that is plot number
1750/1957, Betty Lokko’s late
husband’s plot, to her sister
the late Mrs. Majorie Welbeck.
She then directed her lawyer,
the late Cletus Amoah, who
happened to be her husband, to
prepare conveyances to transfer
the interest in plot number
1750/1957 to Mrs. Welbeck and
plot number 1751/1957, Betty
Lokko’s plot, into her name.
Her instructions were carried
out by her lawyer. Thereafter it
came to the notice of the
appellant that one Dr. Ahadzi
claimed ownership of plot number
1751/1957. Apparently fearing
that her interest in plot number
1750/1957 would be jeopardised
Mrs. Welbeck, whom the appellant
described as beneficiary, asked
for the purchase price of that
plot to be refunded to her. With
the support of her husband, Mrs.
Welbeck persisted in her demand
for the refund of the purchase
price in respect of plot number
1750/1957 to her. Eventually
Betty Lokko refunded an amount
of ¢6,000,000 by cheque dated 30th
December, 1993 to her. It is on
record that it was Mrs. Welbeck
who encashed the cheque.
Later Mrs.
Betty Lokko through her agent,
Alfred Quartey, the original
second defendant, now deceased,
sold property number 1750/1957
to the respondent company,
Sensations Limited. The
plaintiff was not pleased about
the sale by Betty Lokko of that
plot to the respondent company.
She therefore, by her amended
writ of summons brought a claim
against the defendants jointly
and severally for the following
reliefs:
a)
Specific performance
of an agreement made on or about
the 10th day of
October 1991 whereby the 1st
and 2nd defendants
agreed to sell to the plaintiff
a plot of land for ¢6,500,000
which agreement was part
performed by the plaintiff
paying the 1st and
second defendants ¢6,500,000
full purchase price of the plot
of land situate at X’tianborg,
Osu - Accra against a receipt
issued by 1st and 2nd
defendants.
b)
An order directed at the Chief
Registrar, Land Title Registry,
to rectify the Land Register of
the said plot of land by
deleting the name of the 3rd
defendant and cancelling its
Land Certificate and entering
the name of plaintiff in the
Land Register as the true and
lawful owner of the said plot of
land.
c)
A declaration that the sale or
purported sale to the 4th
defendant by the 1st
defendant was wrongful and or
null and void; an order setting
the purported sale aside or
cancelling the same.
d)
A declaration that the plaintiff
has equitable lien on the said
property and became entitled to
be given possession thereof.
e)
Perpetual injunction restraining
3rd defendants their
agents and assigns or workers
from entering the land to carry
out any building operations
thereon or for any purpose
whatsoever.
f)
Further or other orders as to
this honourable court may deem
fit.
The
defendants in their pleading
denied the plaintiff’s claim and
contended that even though the
receipt for the payment of the
two plots was issued in the name
of the plaintiff it was Mrs.
Welbeck who bought plot number
1750/1957. She later resiled
from the contract of sale of the
land in dispute and requested
for a refund of the purchase
price to her. The purchase price
for that plot was therefore paid
to her. The result was that at
the time of sale of the land in
dispute to the respondent
company Betty Lokko was its
owner and not the plaintiff.
The trial
High Court dismissed the
appellant’s claim in its
entirety and granted the
respondent’s counterclaim. She
appealed to the Court of Appeal
and filed as many as 17 Grounds
of Appeal. These are
substantially reflected in the
five Grounds of Appeal before
this court following the
dismissal of her appeal by the
Court of Appeal.
THE FINDINGS
OF THE TRIAL COURT
The main
issue of this litigation upon
which all other issues could be
founded is the
ownership
of plot No. 1750/1957 at the
time of sale of that property to
the respondent company. To us,
therefore, the determination of
that issue ought to settle the
other issues which are premised
on the ownership or otherwise of
Betty Lokko of plot No.
1750/1957 at the time she sold
the land in dispute to the
respondent company. It would
mean that if the court comes to
the conclusion that at the time
of sale of the land in dispute
Betty Lokko was the owner of
that property the appellant’s
claim would have no legs to
stand on and the respondent
company’s counterclaim would
succeed.
The trial
court made the following
findings which determined the
ownership of the land in dispute
at the time of sale by Betty
Lokko to the respondent: (a)
Following the payment for the
two plots nos. 1750/1957 and
1751/1957 as shown in exhibit B,
the receipt which was issued by
Betty Lokko, the appellant made
a gift
of plot No. 1750/1957 to her
sister Mrs. Majorie Welbeck who
thereby became the owner of that
plot. (b) Later Mrs. Welbeck
became disinterested in plot No.
1750/1957 because of litigation
in respect of plot No. 1751/1957
which was in the name of the
appellant. (c)The claim by the
appellant that the refund by
Betty Lokko to Mrs. Welbeck was
in respect of plot No. 1751/1957
cannot be true. (d) At the time
of commencement of the action
the appellant had no interest in
the land in dispute for which
she could sue for specific
performance. (e) Since there was
serious discrepancy between the
description of the land in
exhibit B, that is, the receipt
by Betty Lokko covering payment
for the two plots, and the
description of the land in the
Statement of Claim, the claim
for specific performance could
not be sustained. It is obvious
that since the plaintiff had no
interest in the land at the time
that it was purchased her claim
for specific performance would
have no basis.
APPEAL BEFORE
THE COURT OF APPEAL
Also before
the Court of Appeal the crucial
issue to be looked into was the
ownership of the plot No.
1750/1957 before the sale that
culminated in this appeal. That
is covered by Grounds 1 and 2 of
the appellant’s grounds of
appeal before that court. They
read as follows:
1)
The learned trial judge erred,
when after holding that it was
the plaintiff who was the
purchaser of the land in dispute
as evidenced by exhibit B, the
judge went further and held that
“the plaintiff’s land was
covered by conveyance with
registration number 1751/1957
and that of her sister by
document number 1750/1957”.
2)
The learned trial judge erred in
law when he treated exhibits 1
and 2, the unexecuted documents
which plaintiff instructed
plaintiff’s husband to prepare,
as if the said exhibits were
executed conveyances capable of
conveying any interest in land
and therefore the trial judge’s
holding that “Exhibits 1 & 2
also show that the plaintiff’s
intentions were carried out into
effect by PW1 preparing one of
the documents, Exhibit 2 in the
name of Mrs. Welbeck which
document [was] duly executed by
Mrs. Lokko and I agree with
learned counsel for the 3rd
defendant that the gift was
completed when the property was
delivered to the donee” was
wrong as exhibits 1 and 2 were
never executed and no piece or
part of the land covered by
exhibit B was ever delivered to
the plaintiff or plaintiff’s
sister.
The Court of
Appeal gave a clear response to
the submissions of appellant’s
counsel in the appellant’s
Statement of Case. Reading the
judgment of the Court of Appeal,
which supported the findings of
the trial court, Irene Danquah,
J.A. had this to say at pages
410 – 412 of the record of
appeal:
“I am in no
doubt from the evidence on
record that prior to the
institution of the action, the
plaintiff knew that her interest
was in plot No. 1751/1957 and
not plot No. 1750/1957. She was
at all material times in the
course of the transaction
represented by a lawyer who
happened to be her husband. On
her own instruction her husband
prepared the two conveyances for
the signature of Betty Lokko. It
is also not in doubt from the
evidence that prior to the
institution of the action Mrs.
Welbeck had resiled from the
agreement, had insisted for a
refund of the purchase price for
plot No. 1750/1957 and Betty
Lokko had refunded by issuing a
Cooperative Bank cheque for ¢6
million to her. What is worse
the plaintiff admitted that the
refunded sum of ¢6 million was
subsequently given to her by
Mrs. Welbeck and she accepted
it. ... To me that brought to an
end whatever interest Mrs.
Welbeck had in respect of plot
No. 1750/1957 including the
interest of the plaintiff if
any.
On the issue
of whether Exhibits 1 and 2 were
executed or not this is what the
appellant’s husband testified
to:
‘Q. You
admitted in the course of your
evidence in Exhibit N that after
you prepared the two conveyances
you sent them to Betty Lokko to
sign?
A. Yes, my
Lord. I did so because at that
point we thought we had two
plots but Mr. Quartey admitted
[in] criminal trial that even at
the time of sale the plot
covered by 1751/1957 had already
been registered in the name of
Dr. Hadzi.
Q. When
Alfred sent the documents to his
mother she signed them?
A. I said she
signed part of them not all so I
returned them to her to have
them signed.
Q. You admit
she signed the two conveyances?
A. Yes my
Lord, I was under the
apprehension that that they had
two plots.
Q. These two
conveyances, which Mrs. Lokko
signed were these prepared in
the names of your wife and Mrs.
Welbeck?
A. Yes, my
Lord.
Q. And you
said the respective site plans
were not signed?
A. Yes, my
Lord.
Q. So you
returned the signed conveyances
with the unsigned site plans to
Alfred Quartey?
A. Yes my
Lord.
Q. So that he
would have his mother sign them?
A. Yes, my
Lord.’
Apart from
the above evidence, I am of the
view that Betty Lokko cannot be
blamed for the default of the
Appellant and her sister in not
completing their portion in
their respective conveyances.
After all, what I understand an
execution of a conveyance as
required by the
Conveyancing Decree (Act) 1973,
(NRCD 175) S. 2 is the
presence of the signature of the
person against whom the contract
is to be proven. In the instant
case that person is Betty Lokko
and as I observed earlier she
executed her part as vendor in
both exhibits 1 and 2. I am
therefore not persuaded by
arguments of counsel for the
appellant on the first two
grounds of appeal and refuse
them.”
APPEAL BEFORE
THE SUPREME COURT
Before this
court the appellant’s Grounds of
Appeal are as follows:
(1)
The learned justices of the
Court of Appeal erred when they
held that the conveyance of the
land in dispute by Betty Lokko
to the respondent, Sensations
Limited was valid.
(2)
The learned justices of the
Court of Appeal erred when they
held that the refund of the
purchase price of the one of the
two (2) plots of land bought by
the appellant from Betty Lokko
was made before the purported
conveyance of the disputed
property to the respondent by
Betty Lokko.
(3)
The learned justices of the
Court of Appeal erred in
affirming the grant of the
counterclaim of the respondent
by the High Court.
(4)
The learned justices of the
Court of Appeal erred in
affirming the damages awarded
against the appellant when there
was no basis for the award of
such damages.
(5)
The judgment is against the
weight of evidence on record.
Counsel for
the appellant dealt with Grounds
1, 2 and 3 together. We intend
to add Ground 5 to them and deal
with the four at the same time.
At page 6 of the Statement of
the appellant’s case, counsel
for the appellant made the
following submissions:
“My Lords, it
is very humbly and respectively
submitted that their Lordships
in the Court of Appeal, were
clearly in error. The purported
transaction which took place
between the original 1st
defendant, Betty Lokko and Mr.
Lalu Dulani in July, 1993 which
purportedly resulted in Mr. Lalu
Dulani asking that the interest
in the land be transferred to
the 3rd respondent
Sensations Limited, took place
at the time that the contract
between the appellant and Betty
Lokko in respect of the land was
in force and no refund has been
made as regards the encumbered
plot! Therefore as at the date
when Betty Lokko purported to
sell the disputed plot to Mr.
Lalu Dulani, she had no title in
the land to convey to him.
Indeed it was not surprising
that no conveyance was given to
Mr. Dulani. Thus the rule in
Hadley
vrs. London Bank of Scotland
Limited [1865] 2 De K7 SM 63
at 70 which was cited with
approval in
Amuzu v.
Oklika [1997-98] 1 GLR 89
page 115 applied directly. Betty
Lokko at the date of the
purported transaction with Lalu
Dulani was a bare trustee of the
appellant and could not convey
any title in the property to any
other person. Therefore Mr. Lalu
Dulani could not have legally
conveyed No. 1750/1957 from
Betty Lokko in July, 1993.
It is
submitted that on the facts of
this case, the decision of this
court in the case of
Amuzu v.
Oklika [1998-99] SCGLR 141
is directly applicable. As at
the date in July 1993, when Mr.
Lalu Dulani purported to buy the
plot of land from Betty Lokko,
Betty Lokko had no interest in
the property which she could
sell to Mr. Lalu Dulani.”
As it can be
seen the substance of the
appellant’s contention
respecting Grounds 1,2 and 3 of
the grounds of appeal is that
Betty Lokko sold
the land
in dispute to the respondent at
the time that there was in
existence a valid contract of
sale of that same land between
her and the respondent company.
That contention completely
ignores the conclusions of the
trial High Court which are
affirmed by the unanimous
verdict of the Court of Appeal
that at the time of the sale
Betty Lokko was the owner of the
land in dispute with the
contractual relationship between
her and Mrs. Welbeck having been
brought to an end upon refund of
the purchase money to her by
Betty Lokko.
In the
appellant’s Statement of Case
the judgment of the Court of
Appeal, which supports the
findings of the trial High
Court, which formed the basis of
its judgment, is under attack.
What the contention of the
appellant in this appeal amounts
to is that the Court of Appeal
was in error when it supported
the findings of the High Court.
First of all the Court of Appeal
was obligated to consider
whether the findings by the
trial court, which is being
assailed by the appellant in her
Statement of Case, is supported
by the evidence on record. It is
only when the findings of the
trial court are not supported by
the evidence that the appellate
court could interfere and
substitute its own findings for
that of the trial court. It is
trite law that the trial court
has the exclusive duty to make
primary findings of fact which
would constitute the means by
which the final outcome of the
case would be arrived at. For
the trial court’s judgment or
verdict to be irrefutable: 1) It
must be supported by evidence on
record. 2) It must be based on
credibility of witnesses. 3) The
trial court must have had the
opportunity and advantage of
seeing and observing the
demeanour of witnesses. 4. It
must be satisfied of the
truthfulness of the testimonies
of witnesses on any particular
matter.
In the case
of Cross
v. Hillman Ltd. [1969] 3 WLR 787
at 798, C.A. Lord Widgery
cautioned that an appellate
court “... which sees only the
transcript and does not see the
witnesses, must hesitate for a
very long time before reaching a
conclusion different from the
trial judge as to the
credibility and honesty of a
witness”. The appellate
court can only interfere with
the findings of the trial court
if they are wrong because (a)
the court has taken into account
matters which were irrelevant in
law, (b) the court excluded
matters which were critically
necessary for consideration, (c)
the court has come to a
conclusion which no court
properly instructing itself
would have reached and (d) the
court’s findings were not proper
inferences drawn from the facts.
See the case of
Fofie v.
Zanyo [1992] 2 GLR 475.
However, just as the
trial court is competent to make
inferences from its specific
findings of fact and arrive at
its conclusion, the appellate
court is equally entitled to
draw inferences from findings of
fact by the trial court and to
come to its own conclusions. See
also
Kofi (Oppong)
v. Fofie [1964] G.L.R. 174,
S.C.; Praka v. Ketewa [1964]
G.L.R. 423, S.C.; Azagba v.
Negov [1964] G.L.R. 450, S.C.;
Asibey III v. Ayisi [1973] 1
G.L.R. 102. In Adorkor v. Gatsi
[1966] G.L.R. 31 at 34, S.C.,
the Supreme Court summed up
appellate powers as follows:
"The law
governing this is that while
findings of specific facts are
within the competency of the
trial court alone, a finding of
fact which is an inference to be
drawn from specific facts found
is within the competency of an
appeal court no less than the
trial court; in other words, an
appeal court is in as good a
position as the trial court to
draw inferences from specific
facts which the trial court may
find."
In effect in
the instant appeal the Court of
Appeal came to the conclusion
that the findings of the trial
High Court stood unchallenged by
the appellant. For success in
the three grounds of appeal the
appellant would have to
demonstrate what went wrong when
it in effect supported and
affirmed the findings of the
trial court as listed above. It
is not enough for the appellant
in her Statement of Case to
repeat the submissions that were
made before the Court of Appeal.
Her counsel is obliged to
demonstrate how the Court of
Appeal went wrong in affirming
the findings and decision of the
trial High Court. The
appellant’s Statement of Case
must come out with a reason why
the Court should have
substituted another finding of
fact for the crucial finding
that Betty Lokko was the owner
of the disputed property at the
time that she sold it to the
respondent company, a primary
finding of fact which the Court
of Appeal was in agreement with.
From the
evidence on record the refund of
the amount of ¢6,000,000 was
only in respect of one plot. The
appellant’s stand is that that
amount, that was admittedly
received by her sister, Mrs.
Majorie Welbeck, was given to
her. If that were the case it
would be expected that the
plaintiff would be aware that
that amount represented the
purchase money for the plot
which had been in the name of
her sister, Mrs. Welbeck. It is
therefore surprising that the
appellant still insists that the
payment of that amount, that she
was supposed to have eventually
received, related to the land in
respect of which there was
litigation. I have taken
some time to look at the
criminal proceedings before the
Circuit Court, exhibit N which
involved both the appellant as
complainant and Betty Lokko who
with her son, Alfred K. Quartey
faced a criminal charge of
Fraud. In exhibit N the
appellant testified as
complainant in a criminal trial
before the Circuit Court On 11th
August, 1995. Her testimony
boarded on the identity of the
land in dispute. This is at page
310 of the record of appeal. It
is as follows:
“In November,
1993, I received a letter from
accused’s lawyer to collect a
refund on the other land in Dr.
Ahadzie’s name. I have the
letter here – wish to tender it
– no objection – marked as exh.
D, dated 1.11.93. I replied
through my lawyer – and wish to
tender this letter – no
objection Exh. E dated 6/12/93.
After this letter I sent my
sister Mrs. Majorie Welbeck, to
collect ¢6 million from the
second accused representing the
one plot registered in Dr.
Ahadzie’s name. A cheque dated
3.12.93 was issued for the
refund of ¢6 million, remainder
of ¢6.5 million is still with
the 2nd accused.”
In the
appellant’s testimony in exhibit
N quoted above she links the
refund of the purchase money,
which Mrs. Welbeck received when
she resiled from the land sale
agreement with Betty Lokko, in
respect of plot No. 1750/1957,
to the offer of refund of the
purchase price of plot No.
1751/1957 contained in Betty
Lokko’s solicitor’s letter to
her. Obviously that testimony
was in line with the appellant’s
insistence against all odds that
the ownership of plot No.
1750/1957 never reverted to
Betty Lokko after she made a
refund to Mrs. Welbeck. The
appellant’s testimony was that
Betty Lokko’s solicitor’s letter
offering refund of the purchase
price related to the land in
respect of which there was
litigation, that is, the land
with registration No. 1751/1957.
According to her she sent her
sister to collect that money.
However, by the appellant’s
solicitor’s letter in response
she did not accept Betty Lokko’s
offer for refund. In fact the
offer of refund of the purchase
money was never accepted by the
plaintiff and was eventually
paid into court. At the trial
court the relevant letters which
have been referred to in exhibit
N are exhibits C, D and E.
On 1st
November, 1993, Betty Lokko’s
solicitor wrote to the plaintiff
the following letter, exhibit C:
“OFFER TO REFUND PURCHASE
MONEY
We act for
Mr. Alfred Quartey who arranged
for you to purchase the piece of
land situate at North-East
Christiansborg, Accra.
2. It is our
information that since the said
purchase, through no fault of
our client, there had been
several adverse claims. For
example the Land Title Registry
had mistakenly issued land
certificate in respect of the
particular land to one Alhaji
who had [purportedly] bought it
from Osu Alata Stool. Then on W.
G. Darko and also E. N. Nortey –
each of [whom] claims our client
has been fervently dealing with.
(3) Naturally
you feel unhappy and your
husband takes the view that you
have been defrauded by our
client and he casts insinuation
and insults our client at will.
(4) In the
circumstances, we have advised
our client to settle the
purchase money since you are not
in a position to abide the
outcome of those false claims;
and our client has reluctantly
agreed provided you will
indicate your acceptance within
2 weeks of date.
(5) It is our
instruction to inform you and we
hereby inform you that in the
event of your failure to take up
the opportunity within the said
2 weeks, and have your money
refunded to you in due time, our
client shall be compelled to
return the necessary funds and
it is a firm understanding that
this opportunity shall never be
repeated by our client’s
benefactor.
(6) It is our
further instruction to request
and we hereby request that you
take up the opportunity of
refund now or you await and
abide the outcome of the
multiple claims as aforesaid.”
By a letter
dated 18th February
1994, exhibit D, the plaintiff’s
solicitor rejected the offer for
refund of the purchase price of
the land which was obviously the
subject matter of litigation
referred to in exhibit C, that
is, plot No. 1751/1957. The
response from Betty Lokko’s
solicitor was another letter
(exhibit E) pointing out that
till Betty Lokko clears a
pending legal action, she would
not be in the position to put
the plaintiff in unencumbered
possession. That makes it
quite clear and unambiguous that
the refund by exhibit C quoted
above could only be in relation
to the land about which there
was litigation. Also on the
whole, in the course of the
trial the appellant was not
candid with the court so far as
the determination of the issue
of the identity of the land in
respect of which the refund of
the purchase price was made by
Betty Lokko to Mrs. Welbeck was
concerned. This is what we have
at pages 156 and 157 of the
record of appeal when she was
cross-examined in the course of
the trial:
“Q. I put it
to you that it was your late
sister who asked for a refund of
the purchase price of the area
of the plot covered by the deed
number 1750/1957?
A.
I disagree.
Q. Your
sister asked for a refund
because she said she did not
want to be involved in my
litigation?
A. I
disagree. The letters inviting
us to the discussions at the
Land Title Registry did not
mention my sister as having any
interest in the land.
Q. I suggest
to you that Betty Lokko was
entitled to sell the portion of
the land covered by deed no.
1750/1957 to the 4th
defendant after the refund had
been made to your sister?
A. I disagree
because Alfred Quartey had acted
on my behalf. He knew that I had
bought the land. He also acted
for Sensations Ltd.
Q. I suggest
to you that at no time did
Alfred Quartey act for
Sensations Ltd?
A. It is
true. It was at the Land Title
Registry that I got to know he
was trying to register the land
for somebody and I confronted
him at the Land Registry.
Q. Alfred
Quartey is dead?
A. Yes.
Q. When your
lawyer prepared the two
conveyances he also prepared
respective application forms for
the registration of you and your
sister’s titles at the Land
Title Registry?
A. I wouldn’t
know.
Q. I put it
to you that your lawyer and
husband applied in respect of
plot covered by deed No.
1950/1957 in the name of your
sister Majoarie Welbeck?
A. I do not
know.
Q. I put it
to you that your husband also
applied in your name for the
registration of the plot covered
by the deed 1751/1957?
A. I do not
know.
Since counsel
for the appellant has not been
able to demonstrate any error in
the reasons by the Court of
Appeal in supporting the
decision of the trial court, the
submissions that the judgment
was against the weight of
evidence cannot be sustained
(See the cases of
Kyiafi V.
Wono. [1967] GLR 463, Benmax v.
Austin Motor Co. Ltd [1955] 1
WLR 177, HL, Morris v. West
Hartlejpool Steam Navigation Co.
Lt. [1956] 1WLR 177, HL and
Tonazzi Brunetti (1953) 14 WACA
403
Also in
respect of the first three
grounds of appeal the
appellant’s counsel argued that
on the evidence Lalu Dulani,
being an Indian is not
permitted
under the 1992 Constitution to
own a freehold interest in a
landed property. That means
the
purported conveyance of the land
in dispute was void. He
relies on Article 266 (1) and
(2) of the Constitution in
support of his contention.
Article
266 (1) and (2) read:
“266 (1) No
interest in, or right over, any
land in Ghana shall be created
which vests in a person who is
not a citizen of Ghana a
freehold in any land in Ghana.
266 (2) Any
agreement deed or conveyance of
whatever nature which seeks,
contrary to clause (1) of this
article, to confer for a person
who is not a citizen of Ghana
any freehold interest in or
right over, any land is
void.”
In response
counsel for the respondent
submitted that the appellant’s
contention based on Article 266
(1) and (2) of the 1992
Constitution should be dismissed
in limine, firstly, because it
was being raised for the first
time before court. He referred
to Order 25 rule 2 of the old
High
Court (Civil Procedure) Rules,
1954 (LN 140 A). A short
answer to the appellant’s
contention is that Lalu Dulani
who happens to be an officer of
the respondent company is not a
party in this appeal and has no
interest in the land in dispute.
Therefore the provisions of the
1992 Constitution quoted above
are not relevant to this appeal.
DAMAGES
The
appellant’s challenge is that
the Court of Appeal erred in
affirming the damages awarded by
the High Court since there was
no basis for it. Since it is
established that the respondent
company was the owner of the
property in dispute, after
having paid for it and completed
the registration process at the
Land Title Registry, the conduct
of the appellant in going to the
land and ordering demolition of
structures on it constituted
trespass. That was indeed a
proper basis for the award of
damages by the High Court. The
fourth Ground of Appeal is also
dismissed. For the reasons given
in this judgment we dismiss the
appeal in its entirety.
[SGD]
W. A. ATUGUBA
[JUSTICE
OF THE SUPREME COURT]
[SGD] DR S. K.
DATE-BAH
[JUSTICE OF THE SUPREME COURT]
[SGD]
R. C. OWUSU(MS.)
[JUSTICE
OF THE SUPREME COURT]
[SGD] B. T.
ARYEETEY
[JUSTICE OF THE SUPREME COURT]
[SGD] V.
AKOTO-BAMFO [MRS.]
[JUSTICE OF THE SUPREME
COURT]
COUNSEL
ALBERT ADAARE
FOR APPELLANT
KIZITO BEYUO
FOR THE 3RD
RESPONDENT WITH NAA ODOFOLEY
NORTEY |
