BAKU vs. DAKU & ORS [1959]DLHC1994

Date	1959-02-27
Suit No.
Citation No.	[1959]DLHC1994

OLLENNU. J.

AKUFO ADDO FOR APPELLANT (3RD DEFENDANT).

RESPONDENT (PLAINTIFF) IN PERSON.

[1959]DLHC1994
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">BAKU <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">DAKU &amp; ORS<o:p></o:p>&nbsp;[HIGH COURT (LANDS DIVISION), ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 92<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27TH FEBRUARY, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AKUFO ADDO
FOR APPELLANT (3RD DEFENDANT).<o:p></o:p>

RESPONDENT
(PLAINTIFF) IN PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU. J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>This is
an appeal from a judgment of the Buem-Krachi Native Appeal Court, which upheld
a decision of the Buem Native Court “B” given in favour of the plaintiff, but
varied an order made by the Native Court “B” for the payment of an amount of
£24 10s. Od. to the 3rd defendant.<o:p></o:p><o:p>&nbsp;</o:p>The main
issues in the case are whether the farm in dispute is the property of the
plaintiff, and whether the purported sale thereof by the 1st defendant to the
3rd defendant was lawful. These two issues were resolved in favour of the
plaintiff by both the native trial-Court and the Native Appeal Court. Counsel
for the 3rd defendant has not sought to challenge those two concurrent findings
of fact, and their legal consequences.<o:p></o:p><o:p>&nbsp;</o:p>In this
Court it has been urged on behalf of the 3rd defendant that he is entitled to
be reimbursed the expenses which he had incurred on improving the farm during
the 16 years that it had been in his possession as a result of the wrongful
sale to him, and that this Court in the exercise of its equitable jurisdiction
should make an order to that effect. He led no evidence, however, to show that
he had made improvements on the farm. All that he said was that the farm
contained only foodstuffs when he purported to purchase it, and that it is now
a cocoa farm. His witness, however, said that there were young cocoa trees in
the farm, just beginning to flower, at the time of its purchase. Again, the 3rd
defendant did not disclose the mesne profits which he had realised from the
farm during the period of his wrongful occupation. There is therefore no
evidence that he has suffered any detriment for which equity should be invoked
in his aid.<o:p></o:p><o:p>&nbsp;</o:p>Again,
there is nothing to show that the plaintiff has been guilty of any improper
conduct to the detriment of the 3rd defendant. On the contrary, his evidence,
and that of his only witness (Yevoga Tsekor, the agent who negotiated the
purchase of the farm for him), disclosed recklessness on the former’s part in
entering into the transaction. Both the 3rd defendant and the agent relied upon
representations made to them by the 1st defendant, and by his brother Robert
(now deceased) that the farm belonged to the 1st defendant. They took no steps
to check those representations. Any loss which the 3rd defendant may have
suffered, therefore, is attributable to his own fault, and not to any conduct
or act of the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The
Native Appeal Court also held that as the 3rd defendant is a non-native of
Southern Togoland, and the alleged sale and purchase took place without the
previous consent of “the public authority,” the whole transaction was illegal,
and therefore null and void. The law applicable to this matter in 1939, the
date of the transaction, was to be found in Section 3(3)(a) of the
Administration (Togoland under British Mandate) Ordinance, now repealed. It
read as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(3) (a)
In the case of any laws relating to the transfer of land which are in force in
any part of Togoland under British Mandate under the terms of Article V or
Article VI of the Togoland under British Mandate Order in Council 1923, the
provisions of any such law shall be construed together with and subject to the
provisions of </main>