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AKWEI v. AGYAPONG AND ANOTHER


  • New
  • 1962-04-13
  • HIGH COURT
  • 1 GLR 277-279
  • Print

OLLENNU J.


Summary

Contract?-Sale of land?-Methods of sale?-Note or memorandum required by Statute of Frauds?-Statute of Frauds, 1677 (29 Cha. 2, c. 3) s. 4.

Headnotes

In a suit for declaration of title, recovery of possession and damages for trespass, the defendants, admitting the title of the plaintiff, pleaded that there is a binding agreement for the sale of the land to the first defendant, and that the defendants were on the land with the leave and licence of the plaintiff by virtue of the said contract of sale.

Judgement

ACTION for declaration of title to land and recovery of possession.

The plaintiff claims declaration of title, an order for recovery of possession, damages for trespass and injunction in respect of a piece of land situate north of the Mental Hospital, Accra. The said piece of land is demarcated on the plan exhibit 1 and thereon edged pink.

The plaintiff's title to the land has been expressly admitted but the trespass is denied. It was pleaded for the first defendant that a binding agreement for sale of the said parcel of land exists between the plaintiff and first defendant, and that the entry of the first defendant upon the land was in pursuance of the said contract for sale, or upon leave and licence granted to him by the plaintiff.

The law of Ghana recognises two forms of contract for the sale of land. These are: (1) contract for the sale of land under the common law as defined in section 17 of the Interpretation Act, 1960 (C.A. 4), and (2) contract for the sale of land under customary law. [p.278]

By section 4 of the Statute of Frauds, 1677,1 a statute of general application, applicable to Ghana by virtue of section 154 (4) of the Courts Act, 1960,2 a contract for the sale of land under the Ghana common law, with certain special exceptions, has to be evidenced by a note or memorandum in writing to make it enforceable. There is no such note or memorandum in writing in this case, and no circumstances have been shown which take this case out of the statute: see Short v. Morris.3

Contract for the sale of land by customary law is concluded by the offer of drink made by the prospective purchaser and acceptance of it by the prospective vendor. No negotiations in connection with the transfer of land or grant of an interest in land under customary law can be concluded without drink given and received to seal it. As D.W.1 properly admitted, since no drink was offered and received, it means that the negotiations between the parties, whatever they were, did not reach a stage of conclusion. This is further borne out by the evidence of D.W.2 the surveyor, who, explaining why he did not sign the plan exhibit 1 drawn by him said that the said plan is not complete, and that the defendants simply wanted to know by the plan whether or not the land the defendants had started to build upon included portion of the land of the plaintiff, and that after he had drawn the plan and the people had seen that the area included the plaintiff's land, they said they were going to negotiate with the plaintiff for the sale of his portion to them, adding that if the plaintiff agreed to sell, they would return to him and instruct him to prepare the final plan. He said the defendants had not gone back to him since he prepared exhibit 1. Thus apart altogether from the law on the point, this evidence of D.W.2 leads to a definite conclusion that the plaintiff never at any time agreed to sell the land, subject-matter of the suit, to the defendants or any of them, and he did not grant them or any of them leave and licence to go upon the land to put pegs on it, or to carry out building operations of any sort.

The evidence that both the first and second defendants went on the land without prior consent of the plaintiff and that they went for the purpose of carrying out building operations thereon and were met there by the plaintiff, has been admitted though there is a dispute as to the particular day and time when the plaintiff so met them. The initial entry by the defendants upon the land is trespass in each of them. The defendants aggravated the injury to the plaintiff by commencing to build thereon against opposition by the plaintiff, and persisting to rush through with it in defiance of the court's order for interim injunction.

The defendants have not claimed protection under the Land Development (Protection of Purchasers) Act, 1960.4 But I am bound to direct myself on the provisions of that Act. Having given the Act due consideration I have come to the conclusion that it does not apply to this case because, among other things, the defendants had not at the date of the institution of the action, erected a building on the land in terms of erection of a building as defined in section 4 (2) of the Act; whatever structures they now have on it were constructed during the pendency of the suit and in contempt of the court's order for interim injunction; their act is therefore not bona fide, and so this case does not come within the purview of the Act. [p.279]

There will be judgment for the plaintiff against the defendants jointly and severally for: (1) declaration of his title to the land subject-matter of the suit; (2) an order for recovery of possession of the said land; (3) G50 damages for trespass to the said land; and (4) injunction. The plaintiff will have his costs fixed at 70 guineas inclusive.

Decision

Judgment for plaintiff.

Plaintiff / Appellant

E. N. Moore

Defendant / Respondent

J. O. Dadey

Referals

Short v. Morris (1958) 3 W.A.L.R. 339
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