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KORLEY v. BRUCE


  • New
  • 1962-01-16
  • HIGH COURT
  • 1 GLR 7-14
  • Print

OLLENNU, J.


Summary

Land?-Application to set aside order for recovery of possession made in Land Court?-?"Hardship and justice"?-Land Development (Protection of Purchasers) Act, 1960 (Act 2) s. 2 (1) and (2).Equity?-Acquiescence?-Whether equitable principles apply to claim based upon statute?-Essential features of acquiescence amounting to fraud.

Headnotes

The plaintiff and the defendant claimed title to the same land through the same grantor, the James Town stool. The plaintiff's alleged grant was subsequent to that of the defendant. The plaintiff built upon the land. There was evidence that the plaintiff's entry upon the land was resisted by the defendant from the very beginning and that a letter from the defendant?'s solicitor asking her to stop her building operations was delivered to the plaintiff. On the 10th September, 1959, in the Land Court, the defendant obtained against the plaintiff an order, inter alia, for declaration of his title to an area of land including the land with which the present action is concerned, for recovery of possession and for an injunction.Subsequent to the 1959 action, the Land Development (Protection of Purchasers) Act. 1960 (Act 2), was passed, and by legislative instrument became applicable to land in Accra on the 19th May, 1961. By section 2 of that Act it is provided:"2 (1) Where?-(a) a person (in this section referred to as 'the purchaser') took a conveyance of land in a prescribed area at some time after 31st December, 1944 and before the date on which the area became a prescribed area, and(b) the purchaser, or a person claiming through him, in good faith erected a building on the land, and(c) a possession order was made in relation to the land in proceedings finally disposed of before the date on which the area became a prescribed area, and was so made by reason that the conveyance taken by the purchaser did not operate to confer on him the title to the land, the person against whom the possession order was made may, at any time within twelve months after the date on which the area became a prescribed area, apply to the High Court for an order under this section.(2) If the court considers that the making of the possession order caused hardship and injustice to the person against whom it was made, the court may make an order setting aside the possession order and providing that the conveyance taken by the purchaser shall be deemed for all purposes to have operated to confer on him the title to the land:Provided that an order under this subsection shall not be taken to render unlawful anything done in the period before the making of the order or to found a claim for mesne profits or other compensation in respect of occupation during that period."The plaintiff sued under section 2 for an order setting aside the order for possession and for a declaration that a conveyance of the land made to her by the James Town Alata stool conferred a good title upon her. She did not produce the conveyance in court.Counsel for the plaintiff urged that "hardship and injustice" under section 2 (2) was constituted by the mere order for recovery of possession made against the plaintiff in the 1959 action. As further evidence of hardship it was alleged that in putting up the building, the plaintiff incurred a debt of G400, and as a result of being dispossessed of the building, she was not able to recover any money on it. It was not clear whether the plaintiff's building was completed at the time of the 1959 action, but by the time she was actually dispossessed on the 20th September, 1961, she had drawn about two years rent from the building, which fact she attempted to conceal from the court, together with the fact that her building was of swish only and of little value.

Judgement

ACTION by plaintiff under section 2(1) and (2) of the Land Development (Protection of Purchasers) Act, 1960 (Act 2) to set aside an order for recovery of possession of land made in the Land Court in the defendant's favour. The facts are set out in the judgment.

By a judgment of the Land Court delivered on the 10th September, 1959, the defendant obtained against the plaintiff an order, inter alia, for declaration of his title to an area of land including the land now in dispute, for recovery of possession of the same, and for injunction. Subsequent to that judgment an Act, the Land Development (Protection of Purchasers) Act, 1960,1 was passed. The provisions of the said Act were brought into operation in the Accra area, by legislative instrument, the Land Development (Protection of Purchasers) (Accra Prescribed Area) Instrument, 1961,2 and the Act became applicable to the Accra area on the 19th May, 1961, the date of the said legislative instrument. The plaintiff has now sued by virtue of the provisions of section 2 of the said Act claiming an order setting aside the order for possession, and for a declaration that the conveyance made to her by her grantors, the James Town Alata stool, conferred a good title on her.

The Act was passed to provide a very special remedy. [His lordship here read section 2 (1) and (2) which are set out in the headnote and continued:] To succeed, a plaintiff who claims relief under the said section of the Act must prove that:

(i) he took a conveyance of the land on a date subsequent to the 31st December, 1944 , and prior to the date of the instrument prescribing the area;

(ii) the land conveyed to him is within the prescribed area;

(iii) he, in good faith, erected a building on the land before the order for possession; and

(iv) a possession order was made against him in proceedings which determined before the date on which the area became prescribed.

In addition to proving each of those four essentials, he must produce evidence which should satisfy the court that the order for possession has caused hardship and injustice to him.

The remedy provided by the Act being a very special one, the statutory conditions for obtaining its relief must be proved specifically otherwise the court would not be justified in making an order under it to nullify a lawful judgment of a court of competent jurisdiction and thereby deprive a party of the fruits of the judgment. If a plaintiff fails to establish any one of those five statutory essentials, he would not be entitled to relief under the Act.

In paragraph 3 of her statement of claim, the plaintiff pleaded that a conveyance of the land was made to her by customary law in 1958 by the James Town stool. That averment of hers was not admitted by the defence, the plaintiff was therefore put to strict proof of it. Conveyance is defined in section 4 (1) of the Act to include "a transfer of land by customary law". Therefore it will be enough if the plaintiff is able to prove that she obtained a grant of the land in dispute by customary law.

All the plaintiff did in her attempt to prove this first essential of her claim is to give oral evidence that the land was granted to her as she alleged. I have said on many occasions that a party does not prove an averment he makes which is disputed by his opponent merely by repeating those same allegations on oath; he proves it by admissible evidence oral or documentary of other facts and circumstances which tend to show the truth of his said allegation.

When cross-examined on her evidence as to the conveyance, the plaintiff said: "I was given conveyance of the land. My mark and thumbprint were made to that document and I registered it". She repeated that fact in re-examination, there she said: "Yes my mark and thumbprint were made to the document given to me by the stool on the land, and I took it to the Lands Department". That document was not produced.

It was submitted for the plaintiff that she is an illiterate, and as such she is entitled to elect to rely upon the oral grant in complete disregard to the document and as she has elected to do so, the court too should ignore her evidence that she holds a document evidencing the grant to her.

It is difficult to appreciate this submission of learned counsel. The document is sure to contain the date of the grant, and it should be more reliable as to the date the grant was made than the memory of this illiterate plaintiff. The production of the document would have sealed the issue as to whether or not the conveyance to the plaintiff was made subsequent to the 31st December, 1944.

Where a document is in the possession of a party to a suit and he fails to produce it, the presumption of law is that its contents are against him. Therefore the refusal of the plaintiff to produce her document leads to the conclusion that if the said document were produced it would not show that the grant was subsequent to the 31st December, 1944, and that is particularly so because the plaintiff's oral testimony as to the date of the conveyance is most unsatisfactory and does not find corroboration in any shape or form from any other evidence oral or documentary. I hold that the plaintiff has failed to prove the first statutory condition of her claim.

Again, no evidence was led to locate the land in dispute within the prescribed area; all the evidence before the court is that the land is situate near a stream called Tsemu. Learned counsel invited the attention of the court to paragraph 2 of the statement of claim where the land is described as being at West Korle Gonno Chemunaa, and asked the court to take judicial notice, by reason of the mention of West Korle Gonno, that the land in dispute is within the Accra prescribed area. I do not see how the court can take judicial notice of such a fact which has not acquired any legal notoriety. There is a plan attached to L.I. 118 of the 19th May, 1961, and it would be quite an easy matter to give evidence locating the land within that prescribed area. I must say however that important though the location of the land is, there are more important issues so I would be inclined to say that since the land is described as in Accra, it might well be within the Accra area as described in the instrument.

The two most important issues in a claim under the Act are (i) the question of good faith and (ii) the question of hardship and injustice.

It was submitted on behalf of the plaintiff that since the relief claimed is based upon statute it is a pure legal claim in which equity has no place, and so the plaintiff need not come with clean hands, and that the duty of the court is to sit purely as a court of law and not a court of equity as well. Counsel further submitted, that the only point on which the court would be entitled to take equity into consideration is where it is shown that the act of the defendant is against conscience and religion. I do not agree with this proposition. To determine whether a person who seeks relief under the Act acted in good faith when he built on some one else's land, the court is bound to consider whether or not that person erected the building in circumstances which show that he could safely do so, or that he was at the time placed in such circumstances that he could not do otherwise, and whether he did so recklessly not caring what would happen; in short whether he had clean hands in so doing; and further whether he came to court with clean hands.

Both from principles of equity and principles of customary law which our courts administer, no court in Ghana will make an order for recovery of possession of land in favour of an owner of land who has been guilty of acquiescence: Abbey v. Ollennu3; Thompson v Mensah4; and Allotey v. Essien.5 Therefore the fact that a court made an order in favour of an owner of land to recover possession of land proved to be his, from a person who has built thereon is conclusive that in the opinion of the court the owner of the land has not been guilty of acquiescence, that is, acquiescence amounting to fraud.

The elements necessary to establish acquiescence are: (1) the person who enters upon the other person's land did so upon the honest, though erroneous belief that he had right to it; (2) he must have expended some considerable sum of money on or in respect of the land upon the faith of his mistaken belief; (3) the owner of the land must know all the time that he had right in the land which is inconsistent with the erroneous right claimed by the other; (4) the owner must know of the mistaken belief of the other person of his right; and (5) the owner must by his [p.12] silence or otherwise have fraudulently encouraged the other party to spend his money to develop the land, and had not called his attention to his error. See Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co.6

If any one of these five essentials is proved not to exist, theme is no acquiescence and an order for recovery would be made. Thus if a piece of land has been devised to A under the will of X but A did not know of the devise, the said will being in the custody of the court unknown to A and to the family of X, and in the meantime B entered upon that land and built on it, honestly believing that he had got a good title to it, having purchased the same from the family of X who sold the land, honestly believing that X died intestate, if the will was later discovered, A can recover possession of the land from B because he, A has not been guilty of acquiescence, he did not know of his right, and that would be so, though B has spent a lot of money to develop the land, and did so in good faith.

If on the other hand B knew that the land had been devised to A but A did not know of it, and in the meantime he, B rushed and erected a mansion on the land before the will could come to light there again A can recover possession of the land. In the former case B built on the land in good faith, and he would be entitled to relief under the Act. But in the second example B did not erect his mansion in good faith, his hands are not clean, and therefore the Act cannot aid him. Unless the Act is so interpreted it would become an effective instrument for the oppression and exploitation of many a poor land owner who has no capital for immediate development of his land.

Again where A claimed title to land from one vendor, and B claimed title to the same land from a different vendor, each of the vendors appearing to have a prima facie right to convey, and B builds on the land relying upon the prima facie right of his vendor, and later A is adjudged to be the owner of the land, the act of B in building on the land would be in good faith, and he could invoke the aid of the Act. On the other hand if A and B each claims title to one and the same piece of land from one and the same vendor, A by prior grant and B by a subsequent grant simpliciter without any intervening complications, and B proceeds to build on the land, and later A's prior grant is adjudged to be valid, the act of B in building on the land with knowledge of A's claim to prior grant, is certainly not an act done in good faith. Thus each case will depend upon its own merits.

On the question of hardship and injustice it was submitted for the plaintiff that the mere recovery of possession is itself hardship and injustice, and therefore the endorsement of the certificate of execution on the writ of possession, exhibit B, must be taken as conclusive evidence that the plaintiff has suffered hardship and injustice as contemplated by the statute. I cannot agree with that proposition. If the dispossession is in itself hardship and injustice the legislature would not have provided in section 2 (2) that the order for possession may be set aside only "if the court considers that the making of the possession order has caused hardship and injustice to the person against whom it was made". In my opinion the hardship and injustice mentioned in the subsection must be interpreted to be hardship and injustice other than the mere dispossession; for example some loss or bitter experience resulting from or accompanying [p.13] the dispossession, as, say, where a person spends considerable sums of money on an already completed house and does so to provide further amenities required by a tenant of the house. Here again each case will depend upon its own merits.

Now has the plaintiff proved to the court that she built on the land in good faith? Let us look at the facts. Both she and the defendant claimed title from the same grantor, the James Town stool, her alleged grant being subsequent to that of the defendant.

The plaintiff and her witnesses gave evidence that she built upon the land without notice of any adverse claim by the defendant, she said that the first intimation she had of the defendant's claim to the land was the writ of summons in the suit No. 188/1958, exhibit 5A, which she said was served upon her long after she had completed the building. She vehemently denied receiving any letter from the solicitor of the plaintiff warning her to stop her building operations on the land. When counsel for the defence first sought to tender copy of a letter which the solicitor for the defendant wrote to the plaintiff, counsel for plaintiff vehemently objected on the ground that no such letter was ever received by his client. Eventually the plaintiff, apparently without realising what she was saying came out with a statement that during the course of her erection of the building one of the two people with whom she was sued in the former suit, told her that she had received a letter from the defendant in which the defendant claimed portion of the land upon which she the plaintiff had started to build.

Completion of a building on the land by the plaintiff before the institution of the former suit would have been such a vital defence in the said suit, that one would have thought that if it were true that the building had been completed before the writ was issued, the plaintiff would have pleaded it specifically as a defence in her said suit. But strangely enough when the defendant pleaded in his statement of claim exhibit 5B that the plaintiff had broken and entered his land, and started building operations thereon, the only answer which the plaintiff had to it was to deny breaking and entering the land.

D.W.2, a daughter of the defendant gave most convincing evidence proving that the plaintiff's entry upon the land was resisted right from the beginning, as soon as her workmen began to clear the ground for the foundations of the building, and that the solicitor's letter was delivered to her workmen on the site when they were still working on the foundations. It was then that counsel for the plaintiff cross-examined alleging that the letter was in fact delivered by the witness to the workmen on the site but that it was towards the end of the work.

The vehement denial of the plaintiff, her witnesses and her counsel, of the receipt of the solicitor's letter, and the allegation of counsel that the evidence given of the delivery of that letter was false, became ridiculous, when counsel's attention was eventually drawn to paragraph 5 of his reply to the statement of defence where he pleaded receipt of the solicitor's letter dated the 13th December, 1958, which he and his client had contended was never received.

Again on the question of good faith and hardship, the plaintiff gave evidence that she raised a loan of G400 to supplement her own money to complete the building, but she said she was dispossessed of the building just as she completed it, so she had had nothing at all from it. By that evidence she created the impression on the court that she was dispossessed of the building immediately the judgment in the former suit was delivered on the 10th September, 1959. It was not until the defendant gave evidence and called his first witness that it came to light that after he had obtained the said judgment the defendant made no attempts to recover possession of the land until the 20th September, 1961, when he was placed in possession upon execution of the writ of possession, exhibit B.

The plaintiff and each of her witnesses made a very poor impression upon the court; each appeared as one struggling to conceal some vital facts from the court.

On the contrary D.W.2 the daughter of the defendant was most impressive. She was subjected to that sort of cross-examination which left much to be desired. Counsel called her father, an old man of 96, and a minister of religion, all sorts of names in court, and made remarks about him to her, which to say the least of it reflected badly on the use of counsel's judicial privilege. The language and mode of cross-examination provided a taste of the insults to which the witness said the plaintiff had been subjecting her father, the old man, ever since her first entry on the land.

It appears from the attitude shown by the plaintiff right from the first time she was challenged on the land, that the plaintiff thinks of the defendant as a beggar who would never be able to build on his land, and that he should therefore keep quiet if a wealthy and influential person enters upon his land by force and uses it in the way he likes against the wishes of the poverty-striken owner.

The evidence satisfies me that the plaintiff erected the building in defiance of all objections and protests raised by the defendant. That in my opinion is not building in good faith.

As I have already indicated, my opinion is that something more than the order for possession of the building must be proved to satisfy the court that the plaintiff has suffered hardship and injustice. The only other thing the plaintiff has alleged which may be considered as hardship is debt she said she has incurred in putting up the building. But she has not - produced any cogent evidence of the debt, her bare allegation is all we have, and she concealed the fact that she had drawn rents from the building for at least two years after the judgment. Above all the building is just a swish building which could not have cost the amount the plaintiff alleged; there again she was not honest with the court. In the circumstances I have not been satisfied that the dispossession has caused the plaintiff hardship and injustice.

The claim is dismissed with costs fixed at 100 guineas inclusive.

Decision


Plaintiff / Appellant

S. M. Codjoe

Defendant / Respondent

T. A. Nelson Cofie

Referals

(1) Abbey v. Ollennu (1954) 14 W.A.C.A. 567

(2) Thompson v. Mensah (1957) 3 W.A.L.R. 240, C.A.

(3) Allotey v. Essien (1958) 3 W.A.L.R. 527

(4) Mercantile Investment and General Trust Co. v. River Plate Trust, Loan and Agency Co. [1894] 1 Ch. 578; 63 L.J. Ch. 366

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