BOU-CHEDID vs. YALLEY [1976]DLCA371

Date	1976-06-29
Suit No.
Citation No.	[1976]DLCA371

JIAGGE J.A

SOWAH J.A

ARCHER J.A.

ENNISON FOR THE APPELLANTS.

MUSTAPHA FOR THE RESPONDENT.

[1976]DLCA371
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													<main id="main" class="content" style="min-height: 60rem" >BOU-CHEDID <o:p></o:p>vs. <o:p></o:p>YALLEY<o:p></o:p>&nbsp;[COURT
OF APPEAL]<o:p></o:p>[1976] 2 GLR 258<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
29 MARCH 1976.<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">

ENNISON FOR THE APPELLANTS.<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">

JIAGGE, SOWAH AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>This
appeal involves two legal points (a) whether an equitable owner in possession
can maintain an action in trespass and claim damages, and (b) whether the
personal representative of the deceased from whom the equitable owner derives
his title can defeat the equitable title by claiming priority because the legal
estate is vested in him, the personal representative.<o:p></o:p><o:p>&nbsp;</o:p>The facts
briefly are as follows: In 1940, Miss Wilhemina Williams, agreed to sell a
piece of land at Aboom Wells Road, Cape Coast, to the respondent, Mrs. Nancy
Yalley (hereafter referred to as the plaintiff) then resident with her husband
at Accra. The purchase price of £40 was paid to Miss Wilhemina Williams through
her father, lawyer Awoonor Williams of Sekondi. In 1941, Miss Williams married
the co-defendant, K. A. Taylor, but she died soon afterwards. Litigation over
her estate ensued for several years and in 1947 the co-defendant was granted
letters of administration. It appears that a deed of conveyance in pursuance of
the contract of sale was never executed by the deceased before her death and
while the litigation was in progress, it was uncertain as to who could execute
the deed of conveyance. However, the plaintiff in the meantime had taken
possession of the land and between 1950 and 1955 successfully prosecuted her
claim to the land against the defendants who attempted to alienate portions of
the land.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In 1972,
the plaintiff discovered that building operations had commenced on the land and
that the two defendants were responsible for the operations. She accordingly
sued them in trespass and the co-defendant who had employed the defendants to
build for him applied to be joined as co-defendant. After hearing evidence, the
High Court, sitting at Cape Coast gave judgment for the plaintiff. The
defendants appealed.<o:p></o:p>During
the hearing of the appeal, the grounds of appeal argued were:<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">“(a) The
learned judge having found that there was no title in the plaintiff ought to
have dismissed the other reliefs sought by the plaintiff. <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">(b) The
learned judge misdirected himself on the law as to the nature and quality of
the interest of a purchaser before completion of a contract for the sale of
land. <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">(c) The
learned judge erred in law in holding that there was a valid contract which was
capable of specific performance when the contract between the plaintiff and the
co-defendant’s predecessor in title was void for uncertainty.”<o:p></o:p><o:p>&nbsp;</o:p>The sum
total of these grounds was that the precise land, the subject-matter of the
sale, had not been ascertained before the death of Miss Williams and therefore
there was no contract of sale which a court of equity could specifically
enforce. As there was no agreement for sale, the respondent could not succeed.
This argument, in my opinion, is contrary to the evidence. Before 1941 when the
co-defendant married Miss Williams, the full purchase price had been paid and
the vendor herself had issued a receipt signed by her 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">