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ADINYIRA (MRS), JSC:-
This appeal is against a
judgment of the Court of Appeal
dated 6 February 2013 which
reversed the judgment of a High
Court delivered on 21 October
2010.The issue for resolution at
the High Court was one of
competing titles to a plot of
land covering an approximate
area of 0.18 acres leased to the
parties before us by feuding
claimants of a larger tract of
land in the case of Agyei
Osae & Ors v Adjeifio & Ors
[2007-2008] SCGLR 499 as to
who owns the allodial title to
an area of 1170.96 acres of land
at Otinshie stretching from off
the Accra- Tema motorway to the
Akwapim Hills.
A Court of Appeal judgment,
delivered on 15 July 2005, in
Agyei Osae & Ors v Adjeifio &
Ors, supra, reversed a
High Court decision declaring
ownership of this large track of
land to the Nii Osae Otinshie
family, by granting title to the
Kle Musum Quarter of Teshie. The
Court of Appeal however held
that “whatever rights the [Nii
Osae Otinshie family] had in
Otinshie are usufructury and
limited to the areas they have
effectively reduced in their
possession and the immediate
environs. This usufructury is
subordinate to the allodial
title of the Kle Musum Quarter
land.”
On appeal by the Nii Osae
family, the Supreme Court in
Agyei Osae & Ors v Adjeifio &
Ors, supra, affirmed the
Court of Appeal judgment that
the Kle Musum Quarter owned the
quarter land up to the Akwapim
hills but reversed the finding
that the Nii Osae Otinshie
family owned the usufruct in
Otinshie village and its
environs by holding that that
the said family owned the
allodial title as they founded
Otinshie village years before
the Teshie lands were shared
among the various Quarters of
Teshie.
With this backdrop let us turn
to the appeal before us.
The 1st
plaintiff/appellant/respondent
[1st Plaintiff] is a
trustee of the land for his
children and the 2nd
Plaintiff (since deceased) was
the head and lawful
representative of the Osae
Family of Teshie which made a
grant of the said land to the 1st
Plaintiff which was evidenced in
writing by an indenture dated 15
March 1997 and was registered.
The Defendant
/Respondent/Appellant
[Defendant] is an estate
developer in Accra.
The 1st Plaintiff’s
case was that he went into
possession of the plot of land
by constructing a fence wall and
a two bedroom outhouse on it and
put in a caretaker until the
latter vacated the house in 2005
without his knowledge. The 1st
Plaintiff said the Defendant
forcibly entered the land and
hastily developed the land and
he therefore instituted this
action in the High Court. After
joining the 2nd
Plaintiff to the action, the
Plaintiffs claimed by an amended
writ of summons the following
reliefs:
(a) A
declaration of title to all that
parcel of land known as Block
‘A’, plot No. 47 situate at
Otinshie Residential area and
covering an approximate area of
0.18 acres.
(b) General
damages for trespass
(c)
Perpetual injunction restraining
the defendant, his allies,
privies, assigns and or anyone
claiming through him from any
further interference with the
plaintiffs’ title to the said
parcel of land.
(d) Order for
recovery of possession.
(e) Costs
The Defendant denied the claims
of the plaintiffs and said he
acquired the land from the Afutu
and Osae family and registered
his title deeds. He said
subsequent to a decision of the
Court of Appeal in a judgment
dated 15 July 2005, the Tsie-We
family of Kle Musum were
declared allodial owners of the
land so he obtained a fresh
grant from them. According to
the Defendant the land in
dispute do not fall within
Otinshie village which the
Supreme Court affirmed the Afutu
and Osae family have absolute
ownership.
The Defendant claimed he
developed the land and was in
actual physical possession and
that the 1st
Plaintiff’s action was caught by
laches and acquiescence, and
that he was a bona fide
purchaser of the disputed land
without notice of the
plaintiff’s interest and that
the plaintiff is barred under
the Land Development (Protection
of Purchasers) Act 2. The
Defendant counterclaimed for a
declaration of title to the same
plot of land.
The primary findings made by the
learned trial judge on the
strength of the record, which
were affirmed by the Court of
Appeal are summarised as
follows:
i)
The land in dispute falls within
the land known as Otinshie
Village lands and that it is
owned by the 2nd
Plaintiff’s family before it was
leased to the 1st
Plaintiff on 15 March 1997
leading to the preparation of
the indenture Exhibit B.
ii)
Since the Osae family had
already alienated the plot to
the Plaintiff in 1997 the
subsequent grant by the same
family to the Defendant was null
and void.
iii)
That as the Defendant’s grantor,
the Tse-We family lost the case
at the Supreme Court, Exhibit 4,
and the lease which they
prepared for the Defendant
passed no title to the
Defendant.
iv)
That the 1st
Plaintiff fenced the land and
put up a two bedroom house on it
when he got the lease
In as much as the two courts
below are agreed on the findings
of facts itemized above, it is
not pertinent to set out the
evidence produced at the trial
in much detail but to proceed to
consider the grounds of appeal
to determine whether there is
any justification in the
submissions by counsel for the
Defendant that, there has been
some blunders or errors on the
part of the Court of Appeal in
dealing with facts of the case
which has resulted in a
miscarriage of justice to
warrant a reversal of the
decision of the Court of Appeal.
The
grounds of appeal
are:
a. The judgment is against the
weight of the evidence.
b. The appeal judges erred by
setting aside the judgment of
the trial judge.
c. The appeal judges erred by
holding that possession be
granted to
plaintiff/appellant/respondent.
d. The appeal judges
misapprehended the facts that
show the
defendant/respondent/appellant
was in occupation before he was
served with a writ of summons
and statement of claim and
consequently ruled that
defendant/respondent/appellant
cannot be protected under the
Land Title [sic] (Protection of
Purchasers) Act 2 of 1960.
e. The appeal judges
misapprehended the facts by not
finding as a fact that the
defendant/respondent/appellant
was a bonafide purchaser for
value without notice.
f. Additional grounds of
appeal would be filed on receipt
of a copy of the record of
appeal.
Grounds a, b, and c
were considered together by
Counsel for the Defendant and we
will do likewise.
Submissions by parties
In arguing grounds a, b, and
c together, Counsel for the
Defendant repeated his pleadings
that: the disputed land was
bare, waterlogged and bushy and
that he was a bona fide
purchaser of the land without
notice, active or constructive,
of plaintiff’s interest hence
plaintiff’s action is barred
under the Land Development
(Protection of Purchasers) Act 2
of 1960, [Act 2].
Counsel submits that when the
Defendant got the lease he took
possession and built a fence
wall and had almost completed
the house when agents of Tse- We
Family of the Kle Musum Quarter
of Teshie confronted him with
their Court of Appeal judgment
which declared them allodial
owners of Kle Musum lands
including Otinshie lands. He
therefore obtained a fresh lease
from them as per his Exhibit 4.
He submits this evidence
suggests clearly that there was
no structure on the land that
belonged to the 1st
Plaintiff. He submits that the
trial judge’s finding that the
fence wall and structure might
have been destroyed after the
2005 Court of Appeal judgment
can be supported by the evidence
and as a result he has to be
protected under Act 2.
Counsel for the Defendant
referred us to the cases of
Tuakwa v Bosom
[2001-2002] SCGLR 61; In
Re Okine (Decd); Dodoo and
Another v Okine and Ors
[2003-2004] SCGLR 582,
In Re Krobo Stool (No. 1) v
Opoku [2000] SCGLR 347
and Bonney v Bonney
(1992-93) 2GBR 779 which set
out the principles governing
when an appellate court would
interfere with the finding of a
lower court based on the worn
out principle that findings of
facts made by a trial judge are
presumed to be right primarily
because the trial judge had the
advantage of listening to the
entire evidence and watching the
demeanor of the parties and
their witnesses.
Counsel for the 1st
Plaintiff on the other hand
submits that no evidence was led
to the effect that his fence
wall and outhouse had been
destroyed at anytime.
The Court of Appeal in dealing
with this particular issue held:
“Nowhere in the record of
proceedings did anybody testify
that the wall and two bedrooms
structures were pulled down. The
defendant’s evidence that after
the Court of Appeal judgment
there was a lot of demolition in
the area does not mean that the
1st Plaintiff’s wall
and two bedroom house was
demolished. The 1st
Plaintiff insisted throughout
the trial that his two bedroom
structure still existed and he
tendered in evidence photographs
exhibits 5 to 5C (sic) which
show both buildings and the wall
still standing to support his
evidence
We have examined the record and
we find no evidence to support
the inferences the trial judge
made that the structures put up
by the Plaintiff might have been
demolished by the Tsie-We Family
after the 2005 Court of Appeal
judgment. Accordingly the
learned justices of appeal
rightly set aside this finding
by the High court as the
preponderance of the evidence
weighed heavily against the
inferences made by the trial
judge. Accordingly the appeal on
grounds a, b and c fails and
hereby dismissed.
GROUNDS D and E
can conveniently be dealt with
together
On the issue whether the Court
of Appeal judges misapprehended
the facts that show the
defendant/respondent/appellant
was in occupation before he was
served with a writ of summons
and statement of claim and
consequently ruled that
defendant/respondent/appellant
cannot be protected under the
Land Title [sic] (Protection of
Purchasers) Act 2 of 1960.
On the issue whether the Court
of Appeal judges misapprehended
the facts by not finding as a
fact that the
defendant/respondent/appellant
was a bonafide purchaser for
value without notice
.
Counsel for the Defendant
submission under this head is
mainly hinged on the findings by
the trial judge that the 1st
Plaintiff’s building was
demolished by the Tse-Wei Family
after the 2005 Court of Appeal
judgment which finding the Court
of Appeal has found was
erroneous and which we have
affirmed. So the question is can
Act 2 be pressed into service on
the Defendant’s behalf?
The purpose of Act 2 is to
protect purchasers of land and
their successors, whose titles
are found to be defective after
a building has been erected on
the land. The provisions of the
Act vest discretion in the High
Court to determine whether the
Act should be applied upon
considerations of certain
factors. Some of the conditions
to be proved by the party
seeking protection under Act 2
were that he was a purchaser; he
took a conveyance and had in
good faith constructed a
building on the disputed land
and finally the competing
hardships to the parties.
In Dove v Wuta- Offei [1966]
GLR 299 at 314, the
Supreme Court in expressing its
views on the application of Act
2, opined:
As the declared policy of the
Act is to confer valid title on
purchasers who build on land on
faith of title 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 of the validity of his
title.”
The legal issue that is usually
determined by the courts is the
measure of good faith of the
defendant. The term good faith
“has been accepted as an honest
belief in the validity of the
party’s title even though it
turns out by subsequent
adjudication to be an erroneous
view;” per Francois JA. (As he
then was) in Ayitey v Mantey
[1984-86] 1GLR 552 at 558
In Dove v, Wuta- Offei [1966]
GLR 299 the Court used the
term recklessness as a yardstick
for examining good faith.
In Ntem v Ankwandah [1977] 2
GLR 452 at 462, Apaloo CJ in
analyzing the principles in
other decided cases stated as
follows:
“If the defendant is found to be
reckless either in erecting or
continuing the erection of a
building on land whose title was
subsequently adjudged against
him, he is disentitled to
protection under Act 2.
Disregarding a warning may
render him reckless or not
depending on the facts of the
case.’
And at page 465 of the report,
the learned Chief Justice
described the defendant as
follows:
“He showed himself impervious to
all warnings and was entirely
heedless of danger. If ever a
person gambled and lost, it was
the defendant. The learned
circuit judge pronounced him
reckless. A fitter discretion of
his conduct cannot be imagined.”
In Ayitey v Mantey at
pages 560 to 561,
the Court Appeal quoted the
trial judge’s conclusions about
the appellant’s conduct: “to
have proceeded in the face of
all warnings in the hope that
the ever loving hand of Act 2
will come to his aid when he
acted against all sense of good
faith, was denying himself
conditions warranting the
protection of the Act.”
See also the cases of Conney
v Bentum-Williams [1984-86] 2GLR
301, Oforiwah v Laryea
[1984-86] 2GLR 410, Amuah –Sakyi
v Sasu [1984-86] 2GLR 479,
Evangelical Lutheran Church v
Aggrey Memorial Preparatory
School [1992-93] 1 GBR 149;
where the courts refused to
apply Act 2 due to the conduct
of the suppliants for relief in
ignoring warnings and challenge
to their title.
Counsel for the 1st
Plaintiff pressed on us that
when he visited the land in
October his building was still
on the land and he warned the
defendant’s workers and even
took pictures of his structures
which were tendered in evidence
as Exhibits C, C1-C8 without
objection from the Defendant.
Counsel for the Plaintiff
submitted further that no
demolition took place as from
the Defendant’s own evidence he
was on the land in October
before he was confronted by the
Tsie - We family that they have
been adjudged owners of Otinshie
land and he had to attorn
tenancy to them before he was
allowed to complete his house.
Applying the above principles to
the case before us, we are of
the view that the Defendant was
reckless in going on with the
construction of the house after
warnings by the 1st
Plaintiff as he was put on
notice about his defective title
and then there was physical
evidence that someone else was
in possession and has started
developing the land.
We therefore affirm the findings
of the Court of Appeal that:
“Having found that the disputed
land was walled at the time the
[Defendant] entered, the
Defendant should have seen that
the land was in possession of
the [Plaintiff] and the trial
judge erred in applying the Land
Title (sic) (Protection of
Purchasers) Act 2 of 1960.
We uphold this ground of appeal
and set aside the trial judge’s
application of Act 2 to protect
the [Defendant].
The Court of Appeal went on:
Having found that the plaintiff
had a better title to the land
in dispute the learned trial
judge should have proceeded to
grant the reliefs sought by the
plaintiffs and not sell the land
to the defendant for
GH¢42,000.00. Having failed to
grant the relief sought by the
plaintiffs, why should the court
award costs of GH¢8,000.00 in
favour of the plaintiffs. The
gymnastics engaged in by the
trial judge at the latter part
of his judgment is mind
boggling.
In our opinion, the trial judge
engaged in this gymnastics in
his attempt to apply sections 2
and 3 of Act 2 which required
him to compensate the plaintiff
for the hardship and injustice
that the application of Act 2
may occasion.
Even in this case if the trial
judge has exercised his
discretion properly in weighing
the injustice that may be caused
to any of the parties before
him, the scales of justice ought
to have tilted in favour of the
plaintiff and not the defendant
who recklessly went on hastily
with his building when
confronted by the plaintiff. The
Defendant being an estate
developer should have known
better. It was obvious that with
the haste within which he
completed the house and moved in
clearly demonstrated his
intention to upstage the 1st
Plaintiff.
As has been roundly sounded in
the numerous cases cited above,
far from injustice to the
defendant “the best the court
can do is to set its face firmly
against any use of the Act which
makes it a weapon in the hand of
the rich for the exploitation of
the poor.” See Ntem v
Ankwandah, supra,
where the defendant lost
his two storey building with
eight rooms and boys’ quarters
and a big terrace, and the
learned justices held that: “it
is the plaintiff who will suffer
incalculable hardship and
injustice if the order was made.
She will be deprived of her land
because she was less well off
financially than the defendant.
In the circumstances the best
the court can do is to set its
face firmly against any use of
the Act which makes it a weapon
in the hand of the rich for the
exploitation of the poor”. In
Amuah –Sakyi v Sasu (supra)
the Court expressed the view
that: “The Act was not designed
to aid such gamblers.”
From the foregoing we affirm the
decision of the Court of Appeal.
The appeal therefore fails and
is dismissed. The judgment of
the Court of Appeal is hereby
affirmed.
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
SHAHADU MOHAMMED FOR THE 1ST
PLAINTIFF/APPELLANT/RESPONDENT
NASHIRU YUSIF FOR THE
DEFENDANT/RESPONDENT/APPELLANT
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