Land law
and conveyancing – Land
Development (Protection of
Purchasers) Act – Good faith -
Defendant building in face of
plaintiff’s protests - Defendant
offering to buy land from
plaintiff without success -
Defendant incorporating
plaintiff’s structure on the
land into his own structure –
Defendant not entitled to
protection of Act 2 - Land
Development (Protection of
Purchasers) Act 1960 (Act 2).
The
respondent acquired the land in
dispute from the Sempe Stool and
commenced building operations
thereon. Despite the
respondent’s protests the
appellant commenced building
operations on the land. He then
offered to buy the land from
respondent, which the latter
rejected. The appellant went
ahead to complete his building
and annexed the respondent’s
structure on the land into his
building. The respondent then
issued a writ of summons for
declaration of title, recovery
of possession, perpetual
injunction and damages for
trespass. The appellant pleaded
the Land Development (Protection
of Purchasers) Act 1960 (Act 2).
The trial judge declined to
apply the Act and entered
judgment for the respondent. On
appeal by the appellant,
Held:
The appellant was not entitled
to protection under Act 2 as he
never believed that the land
belonged to him. He built in bad
faith and the trial judge
rightly declined to apply the
Act. The Act was never intended
to aid persons who, fully aware
of want of title, nevertheless
built in complete disregard of
the interests of the rightful
owners. Besides the appellant
failed to establish that he took
a conveyance of the land neither
did he disclose his purchase
price to enable the court make
the requisite order if the Act
were to apply. The appeal would
therefore be dismissed. Dove
v Wuta-Ofei [1966] GLR 299,
SC, Conney v Bentum-Williams
[1984-86] 2 GLR 301, CA referred
to.
Cases referred to:
Dove v Wuta-Ofei
[1966] GLR 209, SC.
Conney v Bentum-Williams
[1984-86] 2 GLR 310, CA.
APPEAL from decision of High
Court.
Adumua-Bossman
for the appellant.
Okine
for the respondent.
ESSIEM JA.
This is an appeal from the
judgment of Lutterodt J, by
which she upheld the
respondent’s claim. The claim
was for (a) declaration of title
(b) recovery of possession (c)
perpetual injunction (d) damages
for trespass. The respondent
based her claim on a customary
grant by the Sempe stool of the
land in dispute.
The evidence
on record shows that the
respondent obtained the land in
dispute by customary grant from
the Sempe Stool in the 1960s.
She started developing the land
after obtaining building permit
No 1347/75. Her case is that the
appellant entered the land and
without her consent continued to
develop the land even after she
had made it plain to him that
the land was hers and had
refused to sell it to him. There
is evidence on record that the
appellant and PW3 approached the
respondent to negotiate with her
to sell the land to him but the
respondent refused. In spite of
this the appellant went ahead
and put up a building on the
land.
The evidence shows that the
respondent had started building
on the land when the appellant
entered the land. In his
evidence, the chief of Sakaman,
a sub-chief of the Sempe stool
and caretaker of the land for
the Sempe stool, testified that
when he noticed workmen on the
land he stopped them and asked
them to let Ocansey, the man who
employed them to work on the
land, come and see him. The
witness subsequently took the
appellant to see the respondent,
the real owner of the land. The
respondent said she refused to
sell the land to the appellant.
In spite of this, the appellant
went ahead and built on the
land. From the evidence of PW4,
when the appellant entered the
land, the respondent’s
foundation had been laid and
“the first blocks had been laid
to mark out the rooms.”
When the appellant gave evidence
he was cross-examined on the
ownership of the land in
dispute. This bit of the
cross-examination is of
interest.
“Q Your plot is within
plaintiff’s land?
A On the basis of what
PW4 told me if they are able to
prove a valid grant to plaintiff
then I have taken her land. If
not then obviously the land on
which my building stands is not
hers.”
There is no
question that the land in
question had been validly
granted to the respondent by the
rightful owner. There is also
evidence that before the
appellant entered the land the
respondent had started building
on it. To me the appellant built
on the land knowing fully well
of the respondent’s claim to the
land and that she had started
building on the land. The
evidence also shows that
whatever building the respondent
had on the land was taken over
by the appellant and
incorporated into his own. This
was done without theconsent of
the respondent.
I have no doubt at all that if
the appellant had exercised a
little caution he would have
avoided the situation in which
he now finds himself namely,
putting up a building on
somebody’s land. He saw a
structure on the land; he was
challenged by PW4; he later went
with PW3 to see the respondent
who refused to release the land
to him.
He thus built on the land with
the full knowledge that the
respondent had started building
on it before he entered the
land. He knew after meeting the
respondent that the latter had
laid claim to the land and was
the person building on it before
he defendant went onto the land.
His offer to buy the land from
the respondent did not
materialise yet he continued to
build. On the facts the learned
trial judge was right in giving
judgment in favour of the
respondent.
Does the Land
Development (Protection of
Purchasers) Act 1960 (Act 2)
help the appellant? The learned
trial judge was of the opinion
that the Act did not apply on
the facts of this case to offer
protection to the appellant. The
evidence shows that, when the
appellant went on the land he
saw that someone had started
building on it. He continued to
build in spite of this knowledge
and as the evidence shows, he
actually incorporated whatever
structure was on the land into
his building. He pleaded with
the appellant to sell him the
land; this was refused. He
nevertheless went ahead and
built on the land.
In Dove v Wuta-Ofei
[1966] GLR 299, the Supreme
Court discussed the application
of the Land Development
(Protection of Purchasers) Act.
It was held in that case that
the respondent did not act
recklessly but rather erected
the building in good faith. That
was a case in which the
respondent had built on the
appellant’s land. It was held by
the Supreme Court per Apaloo JSC
that:
“As the declared policy of the
Act is to confer valid title on
purchasers who built on lands on
the faith of titles subsequently
adjudged to be invalid, it seems
to me only natural, that the Act
should require that the
purchaser, to avail himself of
the statutory protection, should
have acted honestly and
reasonably at the date of the
original acquisition of the
land, and having so acted should
have believed in the validity of
his title... It is possible to
conceive cases in which the mere
disobedience of warning can be
regarded as such reckless
conduct as would disentitle a
person to the protection of the
Act but this is not one of such
cases. To hold that the erection
of a building after warning in
all cases renders a person
reckless and thus disentitles
him to the statutory relief
would rob the Act of its potency
and thwart the declared object
of the legislature ...”
In my opinion
whether a person who has built
on another’s land should be
protected under the Act or not
depends on how honestly he acted
in putting up the building. For
example, did he believe that he
was building on his own land?
The evidence in this case cannot
support any claim by the
appellant that he honestly
believed he was building on a
land which belonged to him. As
has already been pointed out
when he went onto the land he
saw that somebody had started
building on it. This was enough
to put any person on his
enquiry. Furthermore there is
evidence that he approached the
respondent to buy the land in
dispute from him after PW4 had
warned him that the plot
belonged to the respondent. In
spite of the refusal of the
respondent to sell him the land
he nevertheless went ahead and
built on the land and
incorporated into his own
building, the building which the
respondent had already started
on the land.
The learned High Court judge
after considering the facts of
the case concluded that Act 2
could not be invoked to protect
the appellant. I agree with the
learned judge on this. The
appellant, before he started
building, knew that somebody had
started building on the land. In
my opinion he was reckless and
indeed the rate at which he
built suggests strongly that he
was aware of his want of title
to the land. His strategy was to
present the respondent with a
fait accompli and then plead Act
2. Act 2 was never intended to
aid people who, fully aware of
their want of title to land,
nevertheless built in complete
disregard of the interest and
title of the owner. In Conney
v Bentum-Williams [1984-86]
2 GLR 301 the Court of Appeal
expressed the following opinion
on the application of Act 2:
“(2) Some of
the conditions to be proved by
the party seeking protection
under the Land Development
(Protection of Purchasers) Act,
1960 (Act 2), were that he was a
purchaser, he took a conveyance
and had in good faith
constructed a building on the
disputed land. Those were all
questions of fact to be
determined by the trial court.
The word “conveyance” denoted an
instrument which carried from
one person to another an
interest in land. In the instant
case, the defendant failed to
satisfy the above conditions.
Quite apart from the absence of
a conveyance he failed to show
whether the sale to him was in
accordance with customary law,
as that could have brought the
transaction within the
interpretation clause in Act 2,
s 4 which provided that the
expression “conveyance” included
transfer of land by customary
law. Again he failed to name the
purchase price as that would
have enabled the court to double
that price for him to pay in
case the other conditions of the
Act had been fulfilled. But the
finding of the absence of good
faith on the part of the
defendant dealt a decisive blow
to the application of Act 2¼”
and further:
“We think, on the evidence, the
defendant acted recklessly in
putting up the building. He
first wanted to steal a match
over the plaintiff because
despite the adverse claim being
made by the plaintiff and
indeed, in the teeth of
opposition from the plaintiff,
he went ahead to construct the
building completely indifferent
to the outcome of the dispute.
There is no doubt that he put up
the building in bad faith…”
I adopt these
words and apply them to the
facts of this case and hold that
the appellant is not entitled to
protection under Act 2.
For these
reasons I shall affirm the
judgment of the court below and
dismiss the appeal.
LAMPTEY JA.
I agree.
OFORI-BOATENG JA.
I also agree.
Appeal dismissed.
Kizito Beyuo, Legal Practitioner |
