Injunction – Equitable relief –
Grant – Plaintiff permitting
defendant to develop disputed
land at rent to be negotiated –
Defendant claiming ownership
upon developing land – Court
granting declaration of
plaintiff’s title – Whether
court may dispossess defendant.
Land law and conveyancing – Land
Development (Protection of
Purchasers) Act – Act will not
avail person who develops land
in reasonable belief in title
–
Land Development (Protection of
Purchasers) Act 1960 (Act 2).
The plaintiff permitted the
defendant to construct a
building on the disputed land at
a rent to be agreed upon. Upon
the completion of the building
the defendant claimed title to
the land. The plaintiff sued for
perpetual injunction, arrears of
rent and declaration of title to
the land. The trial judge
disallowed the defendant’s
application for leave to amend
in order to raise Act 2 but
considered the plea in the
judgment. He dismissed the claim
of title and plea under Act 2
and entered judgment for the
plaintiff. The defendant
appealed unsuccessfully to the
Court of Appeal and finally to
the Supreme Court.
Held:
(1) Clearly the proposed
rent was for the defendant’s use
of the land, not for the
building. The court would uphold
the declaration of title to the
land in favour of the plaintiff
but it would be unconscionable
to grant perpetual injunction
and possession of the house. The
appeal against the declaration
of the plaintiff’s title to the
land and recovery of rent would
be dismissed but the appeal
against the grant of perpetual
injunction to restrain the
defendant from the land would be
allowed. The defendant must pay
rent for the occupation of the
land. Asseh v Anto [1961]
GLR 103, SC, Dove v Wuta-Ofei
[1966] GLR 299, SC, Odoi v
Hammond [1971] 1 GLR 375,
CA, Laryea v Oforiwah
[1984-86] 2 GLR 410, CA,
Abdilmasih v Amarh [1972] 2
GLR 414, CA referred to.
(2) A person invoking the
provisions of Act 2 must show
that he erected the building on
the disputed land in good faith
and reasonable belief that he
had good title to the land. With
the concurrent findings in
favour of the respondent, it
would be an impossible task for
the appellant to bring his case
within the ambit of the
provisions of Act 2. The
appellant having been permitted
to build on a portion of
respondent’s land should not be
allowed to turn round to say
that he went onto the land
reasonably believing that he had
a good title from someone else
or that he built on the land in
good faith. Dove v Wuta-Ofei
[1966] GLR 299 SC referred to.
Cases referred to:
Abdilmasih v Amarh
[1972] 2 GLR 414, CA.
Appiah v Baabu,
15 May 1967, CA.
Asseh v Anto
[1961] GLR 103, SC.
Dove v Wuta-Ofei
[1966] GLR 299, SC.
Laryea v Oforiwah
[1984-86] 2 GLR 410, CA.
Odoi v Hammond
[1971] 1 GLR 375, CA.
APPEAL against the judgment of
the Court of Appeal to the
Supreme Court.
ADADE JSC.
The plaintiff-respondent brought
this action in the High Court
for the following reliefs:
“(1) Declaration of title and
recovery of possession of all
that piece and parcel of land
situate lying and being at Sabon
Zongo Accra…
(2) Perpetual injunction
restraining the defendant, his
agents, workmen and servants
from entering upon the land or
interfering with plaintiff’s
enjoyment thereof.
(3) ¢3,500 damages for
trespass.”
The basis for these claims was
set out extensively in his
statement of claim, and boils to
this, that some time in 1966 he
voluntarily gave the piece of
land in dispute to the defendant
to erect a dwelling house
thereon for himself. The
defendant was then married to
the plaintiff’s sister. The
conditions attaching to the
grant, and the casus belli of
this litigation, are stated in
the statement of claim as
follows:
“(4) In or about 1966 the
defendant, under the pretext of
desiring to enter into a tenancy
arrangement with the plaintiff
commenced constructing a
two-room building on a part of
the land with a view to paying
rent to the plaintiff on
completion of the building.
(5) After the completion of the
building the defendant went into
occupation and has refused and
or neglected to enter into a
tenancy agreement with the
plaintiff.
(6) The plaintiff has repeatedly
demanded that the defendant
remove his structure from the
land and vacate same but
defendant has ignored all
demands and still remains on the
land.
(7) The plaintiff says that had
the defendant entered into the
tenancy agreement and paid the
rent of ¢192 per year then
demanded by the plaintiff he
would by now have recovered
¢3,500 as rent.
(8) The plaintiff therefore
claims this amount as damages
for trespass in addition to the
other reliefs claimed on the
writ.”
Ignoring the defendant’s defence
for the moment, it seems to me
clear that the rent which the
plaintiff speaks of in paragraph
4 of his statement of claim
cannot be any other than rent
for the occupation and use of
the land, and not for the
building itself, and that the
tenancy agreement referred to in
paragraph 7 can only be tenancy
of the land, and not of the
building. That is why in
paragraph 6, the plaintiff
“demanded that defendant remove
his structure from the land and
vacate same” for failing to pay
the rent for the land. According
to the plaintiff (paragraph 7)
the rent was ¢192 per annum.
Notice that this figure was
quoted by the plaintiff without
reference to the size and
quality of the building or
whether any of the rooms has
been rented out by the
defendant.
The defendant filed a defence,
denying the plaintiff’s title,
and claiming title through
another source. He was of
course, as a defendant, entitled
to do so, but at a risk. On 6
December 1978 the plaintiff
amended his statement of claim,
by introducing paragraph 5(a),
which merely repeated the
defendant’s denial of his
(plaintiff’s) title. But for
paragraph 5(a), the amended
statement of claim was the same
as the original statement of
claim filed on 5 March 1975.
At the end of the trial, the
defendant’s story was
disbelieved, and rightly so, in
my view. The court believed the
plaintiff’s version. But where
does that take us? Ignoring
minor conflicts in evidence, and
accepting fully the plaintiff’s
case, even as stated in the
statement of claim, the
plaintiff becomes entitled to no
more than the declaration of his
title to the land, and therefore
his entitlement to receive rent
for the use of the land, as
claimed. I will grant him these.
But as to perpetual injunction,
it strikes me that, on the facts
of this case, it will be
unconscionable to drive the
defendant and his family from a
house he has himself put up, and
give ownership thereof to the
plaintiff. After all, from the
plaintiff’s claim it is clear to
me that if the defendant had
paid the rent demanded, the
plaintiff had no intention of
seizing the house from him.
I will dismiss the appeal in so
far as title and the payment of
rent are concerned, but allow
the appeal on the perpetual
injunction. The defendant must,
however, pay rent for the
occupation and use of the land.
As stated above the writ of
summons was filed on 5 March
1975. The plaintiff says that as
at that date the accrued rent
was ¢3,500, which he claimed as
special damages. I will grant
him this, as arrears of rent up
to 31 December 1974. Given the
fluctuations in the value of the
cedi, the plaintiff must, be
entitled after 1974 to much more
than the ¢192 per annum. Doing
the best I can, I will grant him
an average of ¢1,500 per annum
for the 20 years period, ie 1
January 1975 to 31 December 1994
inclusive, amounting to ¢30,000.
This will also be due to the
plaintiff as special damages.
The rent after 31
December 1994 shall be increased
by not more than 5% of the
existing rent every 5 years up
to a maximum of ¢15,000 per
annum.
Subject to the above, I will
dismiss the appeal.
ABBAN JSC.
I have had the opportunity of
reading beforehand the judgment
just delivered by my brother
Adade JSC and those to be read
by my brother Amua-Sekyi JSC and
my sister Bamford-Addo JSC and I
agree with their conclusions.
AMUA-SEKYI JSC.
The plaintiff sued for a
declaration of title to land at
Sabon Zongo, Accra which he
claimed to be his as a grant
from Malam Baako, the reputed
owner thereof. According to the
plaintiff the grant to him was
made as far back as 1925 and
that in 1966 he permitted the
defendant to enter the land and
erect a building thereon. The
understanding, he said, was that
the defendant would pay rent to
be agreed upon at a later date.
The defence was that the land
was conveyed to the defendant by
Emma and Helena Mills and that
the story of permission having
been asked for by the defendant
or granted by the plaintiff was
entirely untrue.
In the High Court evidence was
produced which established that
the Mills had no title in the
land which they could lawfully
convey to the defendant. The
trial judge accepted the case of
the plaintiff that the defendant
initially entered the land with
the permission of the plaintiff.
He accordingly entered judgment
for the plaintiff. On appeal to
the Court of Appeal, the
judgment of the High Court was
affirmed.
At the hearing before us,
counsel for the
defendant-appellant conceded
that the defendant acquired no
title when he purported to take
a conveyance from Emma and
Helena Mills. His plea now is
that the Land Development
(Protection of Purchasers) Act
1960 (Act 2) be applied to
confer title on the defendant.
Unfortunately, on the findings
of the learned trial judge the
defendant could not have built
on the land genuinely believing
that it was his. He knows that
he was on the land by the leave
and license of the plaintiff.
The resulting legal position was
explained in Asseh v Anto
[1961] GLR 103, SC where Korsah
CJ said at page 106:
“There is ample authority for
the view that the legal maxim
quic quid plantatur solo solo
cedit is not applicable to
land held under native tenure.
Once permission of the owner has
been obtained to build the house
or to farm on family land the
house or farm remains the
property of the licensee and his
heirs and successors until the
house is demolished or
destroyed, when the land would
revert to the owners.”
I will therefore agree with the
views expressed by my brothers
in their opinions so far read. I
will refuse the order of
perpetual injunction, which was
sought by the
plaintiff-respondent to restrain
the defendant-appellant from
possessing and occupying the
disputed land which both the
High Court and the Court of
Appeal appeared to have acceded
to. I will also concur in the
order and terms as to the
payment of rent by the
defendant-appellant to the
plaintiff-respondent as
contained in the opinion of my
brother Adade JSC.
Subject to the above I will also
dismiss the appeal.
BAMFORD-ADDO JSC.
The plaintiff-respondent sued
defendant-appellant in the High
Court for:
“(1) Declaration of title, and
recovery of possession of all
that piece and parcel of land
situate lying and being at Zabon
Zongo, Accra…
(2) Perpetual injunction
restraining the defendant his
agents, workmen and servants
from entering upon the land or
interfering with plaintiff’s
enjoyment hereof.
(3) ¢3,500 damages for
trespass.”
The writ was accompanied by the
statement of claim which was
later amended. According to the
plaintiff he was the owner of
the land in dispute by virtue of
a customary grant made to him by
one Malam Baako (deceased) in
1925. He said that Malam Baako
was granted the Zabon Zongo
lands by Nii Kojo Ababio IV of
James Town in 1909 for the
settlement of the Hausa
community; that Malam Baako had
successfully defended his title
to the Zabon Zongo lands, in
Civil Appeal No 72/69 dated 13
January 1970 entitled Malam
Iddrisu Baako v Ebenezer Kwesi
Djan. The plaintiff averred
that upon obtaining his grant of
the land, he entered into
possession thereof and in 1925
he constructed a wooden building
No B 495/2 in the area known as
Town Engineering Office in his
name. According to him, in 1966
the defendant-appellant asked
him for land to build a two-room
house where he could live, as he
had been ejected from his former
place of abode. Being married to
the plaintiff’s relative he was
allowed by the plaintiff to
build on the land upon the
understanding that, after living
in the house for a while to
enable him to recover the amount
spent by him on the building,
the defendant-appellant would
enter into a tenancy agreement
with plaintiff for payment of
rent for his occupation of the
land. When later the appellant
refused to comply with this
understanding the plaintiff sued
him for the reliefs specified
above.
The defendant-appellant denied
the plaintiffs’ claim and said
he purchased the land from the
Ablorh Mills family and denied
that he was permitted to enter
the land by the plaintiff as he
claimed. He tendered in evidence
a document of title to the land.
Before the trial the plaintiff
died and his brother Malam Gambo
Baako was substituted as
plaintiff. After hearing
evidence, the trial High Court
gave judgment in favour of the
plaintiff for the reliefs
sought.
Dissatisfied with this the
defendant appealed to the Court
of Appeal which court also,
after a careful consideration of
the
grounds of appeal, dismissed the
appeal. The defendant-appellant
has now appealed to this court
on the only ground that “the
Court of Appeal erred in
misdirecting itself on the legal
effect of the provisions of the
Land Development (Protection of
Purchasers) Act 1960 (Act 2).”
The only relief sought was “that
the appellant be offered the
statutory protection of Act 2.”
To succeed in this appeal,
appellant must show that his
case falls within the provisions
of Act 2. Defendant-appellant’s
argument is that initially his
defence to the action was that
he was a bona fide purchaser of
the legal estate from Emma and
Helena Mills of the Ablorh Mills
family. During the course of the
trial he obtained leave to plead
and rely on:
(1) laches and acquiescence;
(2) the Land Development
(Protection of Purchasers) Act
1960 (Act 2).
The trial judge refused to grant
leave to amend the defence and
even though he later dealt with
those matters he did not have
the benefit of learned counsel’s
arguments.
Indeed the trial court dealt
with the issue of Act 2 and held
that defendant-appellant could
not have built the house on the
land in good and honest belief
of his title, since the
permission to build on the land
was originally obtained by him
from the plaintiff-respondent. A
portion of the judgment of the
trial High Court judge states at
page 57 of record:
“The defendant’s counsel had
made reference to Act 2 and
states that the defendant is
entitled to rely on it
notwithstanding that it was not
pleaded. He invites the court to
confer statutory title on the
defendant because he took the
conveyance in good faith and had
made substantial development on
it. Here the plaintiff’s case
was that he allowed the
defendant to build on the land
and afterwards to enter into a
tenancy agreement with him but
the defendant failed to do so.
If the defendant later took a
conveyance from someone who had
no title to the land I do not
see that Act 2 could in the
circumstances operate to confer
statutory title on the
defendant. He cannot be said to
have built in good faith.”
On the facts of the case a
larger land was granted to
plaintiff-respondent’s
predecessor by Nii Kojo Ababio
IV, James Town Mantse and the
land in dispute falls within
that larger area. The learned
trial High Court judge found as
follows at p 56:
“I find from the evidence that
the defendant approached the
original plaintiff for land to
build upon, and because he was
married to the plaintiff’s
sister in 1956, he was allowed
to build on the land and to
enter into a tenancy agreement
with the plaintiff later. This
accounted for his being allowed
to put up his building without
the plaintiff challenging him.”
This positive finding of fact
was supported by evidence. The
Court of Appeal also accepted
this finding as correct when it
said (per Adjabeng JA) that:
“Having read the evidence of the
substituted plaintiff, PW2 and
the defendant himself who said
he married the sister of the
Chief of Zabon Zongo in 1956, I
find it difficult to agree with
counsel that the findings quoted
above are not supported by the
evidence adduced at the trial.
In any case I think that they
are reasonable inferences from
the evidence given by these
witnesses … Obviously the judge
believed the plaintiff’s story
that the land in dispute was
granted by the original
plaintiff, a member of the Baako
family, to the defendant who now
turned round to deny the title
of his grantor. I think that on
the evidence the trial Judge was
entitled to accept the
plaintiff’s version and I am not
convinced that we can disturb
that decision.”
With those concurrent findings
in favour of the respondent, it
would be an impossible task for
the appellant to dislodge those
findings which are amply
supported by the evidence, so as
to bring his case within the
ambit of the provisions of Act
2. The appellant having been
permitted to build on a portion
of respondent’s land should not
be allowed to turn around to say
that he went onto the land
reasonably believing that he had
a good title from someone else
or that he built on the land in
good faith.
A person invoking the provisions
of Act 2 must show that he
erected the building on the
disputed land in good faith and
reasonable belief that he had
good title. In the case of
Dove v Wuta-Ofei [1966] GLR
299 SC, Apaloo JSC held at page
314 thus:
“As the declared policy of the
Act is to confer valid title on
purchasers who built on lands on
the 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 in the validity of
his title …”
Again the trial judge had
discretion in any given case to
decide whether the provisions of
Act 2 should be applicable, and
could exercise his discretion,
even if neither of the parties
raised the issue in his
pleadings. See Odoi v Hammond
[1971] 1 GLR 375, CA. In that
case the Court of Appeal in
considering the meaning of the
term “in good faith” in Act 2
prayed in aid the dicta of Azzu
Crabbe JA in the case of
Appiah v Baabu 15 May 1967,
CA where the court considered
the meaning of the term “in good
faith” in section 2(1) of the
Farm Lands (Protection) Act 1962
(Act 107) and held as follows:
“...The first most important
words are “has in good faith,”
ie upon honest though erroneous,
belief. If it is shown that a
farmer has no such honest belief
or that he has every reason to
know and believe that he has no
title to the land, and yet he
enters upon land by force and
occupies and farms it, he will
not be protected by the Act. To
interpret those words otherwise
will mean making the Act an
instrument of fraud … I would
add that if there was anything
which would arouse the suspicion
of the farmer that there was
something wrong with the
transaction leading to the
acquisition of the land, he
would not be acting in good
faith if he shut his eyes to the
facts or purposely abstained
from inquiring into them. His
conduct would then be
fraudulent, because he would be
taking an unscrupulous advantage
over the real owner of the land.
The onus is on the farmer to
show that his belief was
honestly held and was founded
upon the reasonable grounds, for
a belief which is destitute of
all reasonable grounds falls far
short of the standard of conduct
that will afford protection
under Act 107.”
The Court of Appeal in Odoi v
Hammond supra held that
section 1(1) of the Land
Development (Protection of
Purchasers) Act 1960 (Act 2) was
in pari materia with section
2(1) of the Farm Lands
(Protection) Act 1962 (Act 107)
and the term “in good faith” in
the two sections had the same
meaning. See also the case of
Laryea v Oforiwah [1984-86]
2 GLR 410 as well as
Abdilmasih v Amarh [1972] 2
GLR 414 at 416 where it was
held that:
“A judge could, in a deserving
case grant relief to an
aggrieved party under Act 2
whether or not that relief was
sought by way of pleadings. The
Act was passed to meet a social
need and its policy objective
ought not to be hemmed in by
technical procedural rules.”
Even though the
defendant-appellant was not
granted leave to amend, both the
trial court and the Court of
Appeal considered whether the
plaintiff was entitled, in the
circumstances of this case to
the statutory relief under Act
2, and both courts found that
this was an undeserving case for
the application of the
provisions of the Act. Having
regard to the findings of fact
by the trial court, confirmed by
the Court of Appeal there is no
way the defendant-appellant can
succeed in convincing this court
that he obtained the land in
dispute from the Mills sisters
and built upon it “in good
faith”, knowing full well that
the land belonged to the
plaintiff-respondent. In other
words, the facts found by the
trial court and the Court of
Appeal, which I find to be
supported by evidence, would not
permit the application of Act 2.
The defendant-appellant cannot
successfully invoke in the
circumstances of this case, the
provisions of Act 2 so as obtain
statutory title to the land in
dispute.
For the above reasons the appeal
is without merit and must be
dismissed. However the appellant
can continue to remain on the
land upon the terms and
conditions contained in the
judgment of the president, my
brother Adade JSC just read with
which I am in total agreement.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner |
