EVANGELICAL LUTHERAN CHURCH vs. AGGREY MEMORIAM PREPARATORY SCHOOL [1992]DLCA4234

Date	1992-02-20
Suit No.
Citation No.	[1992]DLCA4234

ESSIEM JA

KPEGAH JA

OFORI-BOATENG JA

LETSA FOR THE APPELLANTS.

ADDO FOR THE RESPONDENT.

[1992]DLCA4234
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													<main id="main" class="content" style="min-height: 60rem" >EVANGELICAL LUTHERAN CHURCH<o:p></o:p>vs.<o:p></o:p>AGGREY MEMORIAM PREPARATORY SCHOOL<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

[1993
- 4] 1 GBR 150 - 157&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 20 FEBRUARY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>LETSA FOR THE APPELLANTS.<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">

ADDO
FOR 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 1.0pt 0in">

</div>KPEGAH JA. This is an
appeal from the judgment of Owusu-Sekyere, sitting at the circuit court, Accra.
On the 8th day of September 1978, the plaintiffs took out a writ of summons
claiming against the defendant title to a piece of land near Kanda Estate and
having an approximate acreage of 1.28 acres. The plaintiffs also sought the
ancillary reliefs of recovery of possession, damages for trespass and an order
for perpetual injunction.<o:p></o:p>Most of the essential
facts are not in dispute between the parties. The disputed land forms part of
an area originally leased to one Guy Warren by the Government of Ghana. Guy
Warren took his lease in 1964. He intended to build a school of music on the
said land. He was able to develop only part of the land and in order to relieve
himself of paying rent in respect of the undeveloped area, he, by a letter
dated 29/4/76, relinquished his interest to the Ghana Government in respect of
the undeveloped area. Earlier in time, one Beatrice Manu and her husband, Mr
Kobina Hagan, approached Guy Warren to rent part of the land to them for their
proposed school. This was in 1966. They rented the developed area and what was
referred to as a “compound”. The rent being paid to Guy Warren was ¢300 per
month; so that in actual fact Guy Warren rented only his building together with
the compound to the said couple. They continued to use the building and the
area as a school.<o:p></o:p>In the very year that Guy
Warren relinquished his interest, the Government leased the undeveloped area to
the plaintiffs. This was on 14/4/76. It is this specific area that the
plaintiffs claim the defendants had trespassed onto by building a school
thereon. The identity of the disputed area is admitted and the defendants do
not deny building on the said land. Their defence to the plaintiffs’ claim is
that they built on the land in good faith that is, believing that they had good
title to the land or unaware that their title was defective.<o:p></o:p>The learned trial judge
assessed the defendants’ position in his judgment as follows:<o:p></o:p>“In his address to the court on
27/1/83 B. A. A. Addo, counsel for the defendant concedes that that piece or
portion of land the defendant has erected a school building on forms part of
the land Guy Warren gave back to the Government of Ghana, who in turn leased it
to the plaintiffs but strongly contends that the defendant has erected a school
building on the land in good faith.”<o:p></o:p>The above position was not
changed in this court. Before us, just as in the court below, the defendants
sought protection under the Land Development (Protection of Purchasers) Act
1960 (Act 2).<o:p></o:p>This plea found favour
with the learned trial judge who held that “the defendant(s) erected [their]
building in question in good faith” and proceeded to statutorily decree title
in the defendants thereby perfecting the defendants’ defective title and
awarded compensation to the plaintiffs as provided for under Act 2.<o:p></o:p>The plaintiffs, in their
argument before us, seriously contended that the learned trial judge misapplied
Land Development (Protection Of Purchasers) Act 1960 (Act 2). The most forceful
argument was that before applying the provisions of Act 2, the court must
satisfy itself that the defendants have brought themselves under the Act by
satisfying the requirements for that purpose. A defendant cannot benefit from
the provisions of Act 2 unless he establishes certain facts. The requirements
which a “purchaser” must establish before enjoying the protection of Act 2 have
been stated in the case of Odoi v Hammond [1971] 1 GLR 375 at page 393. Azu
Crabbe JA (as he then was) stated the opinion of the Court of Appeal as
follows:<o:p></o:p>“For ‘the purchaser’ to claim the
protections afforded by section 1 he must show:<o:p></o:p>(1) that the land conveyed to him is
in a prescribed area;<o:p></o:p>(2) that he or the person claiming
through him has in good faith erected a building on the land;<o:p></o:p>(3) that proceedings have been brought
for an order of possession by someone who claims that he is entitled to the
land.” (Emphasis mine.)<o:p></o:p>His Lordship then
continued:<o:p></o:p>“If the court trying the case comes to
the conclusion that the purchaser did not acquire a valid title to the land in
dispute then, provided the purchaser had led satisfactory evidence in the first
and second matters, the court will have a discretion to make one of the orders.
Depending on the balance of hardship and injustice to the parties, the court
may make an order either (a) for possession in favour of the person entitled to
the land or (b) that the conveyance taken by the purchaser shall be deemed for
all purposes to have operated to confer on him the title to the land.”<o:p></o:p>It is therefore imperative
for a purchaser seeking legal refuge under the Act to first prove that he had
had a conveyance which is defective. The import and meaning of section 1 of Act
2 have been considered in several cases that I do not think any useful purpose
will be served, and certainly no new dimension will be added to the law on the
point, so I do not intend any exhaustive analysis of the case law.<o:p></o:p>The only thing the
defendants wave at the court to show conveyance of the disputed land to them is
the letter of consent from the Commissioner of Lands permitting Guy Warren to
rent his developed place to them. This was tendered as exhibit E and a plan of
the whole area originally leased to Guy Warren.<o:p></o:p>From the evidence it was
clear Guy Warren rented his developed area</main>