AKWEI vs. AGYAPONG AND ANOTHER [1962]DLHC1337

Date	1962-04-13
Suit No.
Citation No.	[1962]DLHC1337

OLLENNU J.

E. N. MOORE FOR THE PLAINTIFF.

J. O. DADEY FOR THE DEFENDANTS.

[1962]DLHC1337
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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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AKWEI<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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">&nbsp;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:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">AGYAPONG AND ANOTHER<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, KUMASI]<o:p></o:p>[1962] 1 GLR 277<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 13TH APRIL, 1962.<o:p></o:p>

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

E.
N. MOORE FOR THE PLAINTIFF.<o:p></o:p>

J.
O. DADEY FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 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>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p>By section 4 of the Statute of Frauds, 1677,1(1) a statute of
general application, applicable to Ghana by virtue of section 154 (4) of the
Courts Act, 1960,2(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(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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>