ARKORFUL vs. SEY [1979]DLHC1034

Date	1979-11-02
Suit No.
Citation No.	[1979]DLHC1034

OSEI-HWERE J.

A. Q. A. ARCHAMPONG FOR THE PLAINTIFF.

A. H. SACKEYFIO FOR THE DEFENDANT.

[1979]DLHC1034
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ARKORFUL <o:p></o:p>vs. <o:p></o:p>SEY<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>&nbsp;[1980] GLR 752<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:
2 NOVEMBER 1979<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. Q. A. ARCHAMPONG FOR THE PLAINTIFF.<o:p></o:p>

A. H. SACKEYFIO FOR THE 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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>By a deed
of conveyance, exhibit A, the piece of land described in the plaintiff’s writ
was sold and conveyed by one Ebenezer Buabin Quansah to the plaintiff’s uncle,
Kojo Etsiwa Sarsah, on 15 November 1948. On the death of Kojo Etsiwa Sarsah he
was succeeded by his younger brother, Joseph Kojo Ahinesi, who was subsequently
succeeded by the plaintiff. As the ultimate successor of Sarsah the disputed
land came to the plaintiff’s possession. It is the plaintiff’s case that some
time ago he saw that gravel had been heaped on the plot of land. He went to
meet the defendant on the land and when he challenged him he said that he had
bought the plot from the elders of Apam. The plaintiff indicated to the
defendant his existing pillar on the land and asked him why he should buy land
on which there was a pillar but he did not reply. The plaintiff went to
complain to the Tufuhene and the acting regent, Nana Ekuma. The plaintiff
subsequently appeared with the defendant before the Tufuhene who asked for the
defendant’s documents on the land. The defendant only produced a hand-written
receipt. The Tufuhene advised that the plaintiff could take any action he liked
for the land. In October 1975 the plaintiff wrote to warn the defendant to stop
developing the land. The defendant, who is a building contractor, paid no heed
to his warning but rather brought more workers on the land. The plaintiff said
that he tried to restrain him by a motion for an interim injunction but that
for five months his motion was adjourned by the court. By the end of this
period the defendant had built up to about window level on the land. The
plaintiff brought this action for a declaration of title, damages for trespass
and perpetual injunction. The defendant’s case was simply that some time in
1963 he gave money to his uncle, Kofi Arhin, to buy him land at Apam and in
April of that year his uncle bought for him the land in dispute from the Oman
of Apam. The relevant document of title, exhibit 1, was subsequently prepared.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, who seeks a declaration of title, must prove not only his root of
title but also the identity of the land. Apart from exhibit A which conveyed
the land described therein to his uncle, Kojo Etsiwa Sarsah, the plaintiff
called his first witness, the successor of Ebenezer Buabin Quansah, to trace
his root of title further in point of time to a deed of conveyance dated 28
November 1916 which was admitted in evidence as exhibit D. Although this
document is not complete, as part is torn off, it cannot be controverted that
by it, one John Andrew Dadson, purported to convey to one Chief Henry Ebenezer
Thompson of Ekumpuano, a parcel of land at Apam. The first plaintiff witness
told the court that this land which is covered by exhibit D was sold or
transferred to his uncle Quansah by Chief Korsah IV, Ohene of Ekumpuano. The
first plaintiff witness tendered exhibit C as well as the indorsement on
exhibit D about the transfer to prove this transaction. It is the plaintiff’s
case that it is part of this land transferred to Ebenezer Buabin Quansah which
was sold to his uncle in exhibit A. The defendant’s counsel has challenged the
identity of the land conveyed by exhibit A with that in exhibit D. Although the
description of the lands in these documents does not appear to be identical, I
am satisfied from the evidence of the first plaintiff witness that it is but
part of this land in exhibit D which subsequently came to be sold to Kojo
Etsiwa Sarsah in exhibit A. Indeed, it was admitted by the Omankyeame Kweku
Mensah, the second defendant witness, that Ebenezer Buabin Quansah sold a
portion of the adjacent land to one Okoso who subsequently, and without doubt,
became the boundary owner of the land in dispute: see exhibit C.E. 1. He
however, went on to say that they re-sold Okoso’s land to him upon their
explanation that Ebenezer Buabin Quansah had no power to sell the land. The identity
of the land sold to the plaintiff’s uncle can again not be disputed because the
plaintiff said that he had his existing pillar on the land when the defendant
entered to develop it.<o:p></o:p><o:p>&nbsp;</o:p>It was
further contended against the plaintiff that his exhibits A and D upon which he
rooted his title are registrable instruments and that they are of no effect as
they have not been registered. Counsel buttressed his argument by referring the
court to section 24 (1) of the Land Registry Act, 1962 (Act 122). The effect of
sections 24 (1) and 36 of Act 122 is truly to render ineffective to pass any
estate or interest in land any unregistered instrument, other than a will or a
judge’s certificate, which is first executed after the commencement of the Act.
But as exhibits A and D were executed long before the commencement of Act 122,
counsel argued under a misconception that their non-registration rendered them
invalid. The relevant Ordinance applicable to them when they were first
executed was the Land Registry Ordinance, Cap. 133 (1951 Rev.), which, under
its section 5, made the registration of “instruments” permissible and not
compulsory and, by section 21, only gave priority to registered instruments.
The question of invalidity of unregistered instruments, although long existing
in common law jurisdictions, is an innovation introduced by Act 122. But just
as in the old enactment on the subject, i.e. section 21 (1) of Cap. 133, so in
section 26 of Act 122 registration affects priority of instruments. The
priority of the registered title over unregistered rights or interests is
se</main>