NUTAKOR AND ANOTHER vs. ADZRAH [1965]DLSC1834

Date	1965-06-14
Suit No.
Citation No.	[1965]DLSC1834

MILLS-ODOI JSC

OLLENNU JSC

ACOLATSE J.S.C.

A. W. ACQUAAH FOR THE FIRST APPELLANT.

SECOND APPELLANT IN PERSON.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1965]DLSC1834
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													<main id="main" class="content" style="min-height: 60rem" >NUTAKOR AND ANOTHER <o:p></o:p>vs. <o:p></o:p>ADZRAH <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 445<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:
14 JUNE 1965.<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">

A. W. ACQUAAH FOR THE FIRST APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<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">

MILLS-ODOI, OLLENNU AND ACOLATSE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. This appeal is from a judgment of
Prempeh J. which awarded the respondent, the plaintiff in the court below,
£G4,000 damages for breach of covenant of title, 150 guineas counsel’s costs,
and other costs to be taxed. The appellants, the defendants in the court below,
do not dispute breach of their covenant of title, what they are dissatisfied
with is the quantum of damages; they contend that the learned judge of the High
Court misdirected himself on the law as to the basis of assessment of the
damages in such a case.<o:p></o:p><o:p>&nbsp;</o:p>By an
indenture of conveyance dated 11 October 1941, the defendants purported to
convey a piece of land to the plaintiff for a consideration of £G45, and
covenanted with him that:<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">“Notwithstanding
any act deed or thing by them the said vendors or any of their ancestors done
or executed or knowingly suffered to the contrary, they the said vendors now
have good right to grant and convey the land and hereditaments hereby granted
and conveyed or expressed so to be . . .”<o:p></o:p><o:p>&nbsp;</o:p>The deed
was executed by the defendants in their individual capacities as if the land,
the subject-matter thereof, is their self-acquired property, while in fact the
land is family property, a family of which they, the defendants, are members,
but none of them is the head of that family, and the transaction was entered
into without the knowledge of or reference to the head and principal members of
the family who, by law, are the sole persons capable of making a valid grant of
the land or of any interest therein. In law therefore, the indenture is void of
effect and conferred no right, title or interest in the land on the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>In 1942,
the plaintiff registered the document and deposited some cement concrete blocks
on the land in preparation to commence building operations thereon; the family
immediately thereupon challenged his authority to enter upon the land, advised
him that the land is family property, and warned him to keep off it. Between
1942 and August 1947 the plaintiff made several efforts to get the family to
give him title to the land, and paid £G25 to one other member of the family
towards that end; but the family refused to sell the land to him. In spite of
all warnings, the plaintiff in 1949 commenced to build on the land and, in the
teeth of strong opposition from the family, persisted in so doing, and
completed the building some time in 1950; meanwhile the family took action
against him in the Native Court B of Keta for a declaration of title, damages
for trespass and for recovery of possession; they obtained judgment against him
in 1957 and evicted him from the land. These are the facts upon which the
plaintiff sued the defendants claiming “£G7,255 damages (£G7,000 being the
value of the building on the land and £G255 being expenses incurred in
defending the plaintiff’s title).”<o:p></o:p><o:p>&nbsp;</o:p>The
defendants, as earlier observed, did not dispute liability for breach of their
covenant for title. They however contended that they were not liable to pay the
plaintiff the cost of the building. Paragraphs (6), (7), (9), (12) and (1 3) of
the first defendant’s statement of defence set out their plea in this regard:<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">“(6) By
1946, the plaintiff was informed by the Nutakor family that the land which was
sold to him by the defendants is family land and that the defendants were not
heads of Nutakor family nor were they authorised to sell the land, the
s</main>