OTOO vs. BINEY AND ANOTHER [1966]DLHC1738

Date	1966-02-10
Suit No.
Citation No.	[1966]DLHC1738

ARCHER J.

HAYFRON-BENJAMIN FOR THE PLAINTIFF.

I. K. ABBAN FOR THE DEFENDANT AND CO-DEFENDANT.

[1966]DLHC1738
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													<main id="main" class="content" style="min-height: 60rem" >OTOO <o:p></o:p>vs. <o:p></o:p>BINEY AND ANOTHER <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1966] GLR 90<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:
10 FEBRUARY
1966.<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">

HAYFRON-BENJAMIN FOR THE PLAINTIFF.<o:p></o:p>

I. K. ABBAN FOR THE DEFENDANT AND CO-DEFENDANT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>The
plaintiff by her writ of summons claimed damages for trespass committed by the
defendant on the plaintiff’s land and prayed further for a perpetual injunction
restraining the defendant. The plaintiff’s case is that she bought for £G600 a
piece of land at Aboom Wells Road, Cape Coast, by auction conducted by private
treaty by a licensed auctioneer named Essien. As a result of this sale a deed
of conveyance, exhibit B, was executed in her favour by the vendor William
Essuman-Gwira Sekyi, the administrator de bonis non of the estate of William
Edmund Pieterson deceased of Cape Coast. Immediately after the sale she took
possession of the land which included premises situated on the western portion
of the land. In the year 1962, the plaintiff discovered that the defendant had
trespassed on the land by erecting pillars and by commencing building
operations notwithstanding the plaintiff’s warnings to the defendant to keep
off the land. The defendant’s case is that he approached the co-defendant for
land to build on in 1960. The co-defendant assured him that the land in dispute
was free to be sold, and after making searches at the Accra and Sekondi deeds
registries which revealed that there were no registrations in respect of this
piece of land, he took a conveyance from the co-defendant for the purchase
price of £G141 15s. including £G6 15s. trama. He stamped and registered his
deed of conveyance exhibit 1. The defendant therefore maintained that as a
purchaser for value without notice who had registered his conveyance, his deed
enjoyed priority over the plaintiff’s unregistered conveyance by virtue of
section 21 (1) (b) of the Land Registry Ordinance1 The defendant further
maintained that the plaintiff was never in possession of the land covered by
the defendant’s deed of conveyance and had never exercised any rights of
ownership over this land.<o:p></o:p>This is a
formidable defence and according to law the plaintiff by suing in trespass and
claiming an injunction against further trespass had put her title in issue: see
Kponuglo v. Kodadja2 followed in Nkyi XI v. Kuma (Bedu subst.).3 The plaintiff
did not and in fact could not deny the fact that her deed of conveyance was not
registered but relied solely on the fact of her possession and the provisions
contained in the Land Registry Ordinance, s. 24 which reads, “Registration
shall not cure any defect in any instrument registered, or confer upon it any
effect or validity which it would not otherwise have had.”<o:p></o:p><o:p>&nbsp;</o:p>On the
strength of this section, learned counsel for the plaintiff submitted that the
co-defendant had no power to convey the land because, as an administrator de
bonis non, the grant to administer the estate could not cover the realty or
immovable property of the late Pieterson. When this submission was made, my
mind with supersonic speed travelled to the aphorism that those who live in
glass houses should not throw stones. How and from whom did the plaintiff
herself obtain her conveyance? She took her grant also from an administrator de
bonis non and if the plaintiff’s counsel submission were sustainable then the
plaintiff herself took no grant at all. When the executor of late Pieterson
died, the plaintiff’s grantor, William Essuman-Gwira Sekyi, carried out the
directions in the will of the late Pieterson to the effect that the land known
as Pieterson Estate should be sold after 21 years from the death of Pieterson.
The power to sell was contained in the will and it was not derived from the
letters of administration granted to William Essuman-Gwira Sekyi as
administrator de bonis non. Similarly when Mr. Sekyi died leaving the estate of
Pieterson not fully administered, the co-defendant, a beneficiary under
Pieterson’s will, applied to the court for a grant to enable him to complete
the administration, that is; to carry out the directions in regard to the late
Pieterson’s estate. It is therefore impossible to hold that there was a defect
in the title of the co-defendant as vendor to the defendant. Learned counsel
for the, plaintiff relied on the case of Pappoe v. Wingrove &amp; Co., Ltd.,4
where Smyly C.J, held that an administrator who is granted letters of
administration, “does not, by reason of those letters, obtain control over the
real estate of the deceased, although he may have such control by reason of the
Native Law and Custom, independently of such letters.” Until the coming into
force of the Administration of Estates Act, 1961,5 that principle was
unassailable law. Now, the Ghana High Court has jurisdiction to grant letters
to cover both movable and immovable property but it is obvious that the
applicant must specifically apply for the grant to cover the immovable property
after declaring it.<o:p></o:p>Nevertheless,
the principle in Pappoe v. Wingrove &amp; Co., Ltd. (supra) does not apply in
this present suit because the co-defendant did not apply for letters simply to
administer the estate of Pieterson but was granted letters as administrator de
bonis non to carry out the wishes of the testator. The power to sell the land
was conferred by Pieterson on his executor, and both the plaintiff’s grantors
stepped into the shoes of the deceased executor one after the other with the
approval of the court. The power to sell was not conferred by the court but by
the testator Pieterson himself and the court lawfully granted the co-defendant
consent and authority to exercise the power of sale.<o:p></o:p>