OCANSEY vs. QUAYE [1992]DLCA5050

Date	1992-03-05
Suit No.	[1992 – 1993] 4 G B R 1623 - 1627 C.A
Citation No.	[1992]DLCA5050

LAMPTEY JA

ESSIEM JA

OFORI-BOATENG JA

ADUMUA-BOSSMAN FOR THE APPELLANT.

OKINE FOR THE RESPONDENT.

[1992]DLCA5050
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													<main id="main" class="content" style="min-height: 60rem" >OCANSEY<o:p></o:p>vs.<o:p></o:p>QUAYE<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 4 G B R 1623 - 1627
C.A&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 5 MARCH 1992<o:p></o:p>

OKINE
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>ESSIEM JA. <o:p></o:p>This
is an appeal from the judgment of Lutterodt J, by which she upheld the
respondent’s claim. The claim was for (a) declaration of title (b) recovery of
possession (c) perpetual injunction (d) damages for trespass. The respondent
based her claim on a customary grant by the Sempe stool of the land in dispute.<o:p></o:p>The
evidence on record shows that the respondent obtained the land in dispute by
customary grant from the Sempe Stool in the 1960s. She started developing the land
after obtaining building permit No 1347/75. Her case is that the appellant
entered the land and without her consent continued to develop the land even
after she had made it plain to him that the land was hers and had refused to
sell it to him. There is evidence on record that the appellant and PW3
approached the respondent to negotiate with her to sell the land to him but the
respondent refused. In spite of this the appellant went ahead and put up a
building on the land.<o:p></o:p>The
evidence shows that the respondent had started building on the land when the
appellant entered the land. In his evidence, the chief of Sakaman, a sub-chief
of the Sempe stool and caretaker of the land for the Sempe stool, testified
that when he noticed workmen on the land he stopped them and asked them to let
Ocansey, the man who employed them to work on the land, come and see him. The
witness subsequently took the appellant to see the respondent, the real owner
of the land. The respondent said she refused to sell the land to the appellant.
In spite of this, the appellant went ahead and built on the land. From the
evidence of PW4, when the appellant entered the land, the respondent’s
foundation had been laid and “the first blocks had been laid to mark out the
rooms.”<o:p></o:p>When
the appellant gave evidence he was cross-examined on the ownership of the land
in dispute. This bit of the cross-examination is of interest.<o:p></o:p>“Q&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Your plot is within plaintiff’s land?<o:p></o:p>A&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; On the basis of what PW4 told me if
they are able to prove a valid grant to plaintiff then I have taken her land.
If not then obviously the land on which my building stands is not hers.”<o:p></o:p>There
is no question that the land in question had been validly granted to the
respondent by the rightful owner. There is also evidence that before the
appellant entered the land the respondent had started building on it. To me the
appellant built on the land knowing fully well of the respondent’s claim to the
land and that she had started building on the land. The evidence also shows
that whatever building the respondent had on the land was taken over by the
appellant and incorporated into his own. This was done without the consent of
the respondent.<o:p></o:p>I
have no doubt at all that if the appellant had exercised a little caution he
would have avoided the situation in which he now finds himself namely, putting
up a building on somebody’s land. He saw a structure on the land; he was
challenged by PW4; he later went with PW3 to see the respondent who refused to
release the land to him.<o:p></o:p>He
thus built on the land with the full knowledge that the respondent had started
building on it before he entered the land. He knew after meeting the respondent
that the latter had laid claim to the land and was the person building on it
before he defendant went onto the land. His offer to buy the land from the
respondent did not materialise yet he continued to build. On the facts the
learned trial judge was right in giving judgment in favour of the respondent.<o:p></o:p>Does
the Land Development (Protection of Purchasers) Act 1960 (Act 2) help the
appellant? The learned trial judge was of the opinion that the Act did not
apply on the facts of this case to offer protection to the appellant. The
evidence shows that, when the appellant went on the land he saw that someone
had started building on it. He continued to build in spite of this knowledge
and as the evidence shows, he actually incorporated whatever structure was on
the land into his building. He pleaded with the appellant to sell him the land;
this was refused. He nevertheless went ahead and built on the land.<o:p></o:p>In
Dove v Wuta-Ofei [1966] GLR 299, the Supreme Court discussed the application of
the Land Development (Protection of Purchasers) Act. It was held in that case
that the respondent did not act recklessly but rather erected the building in
good faith. That was a case in which the respondent had built on the
appellant’s land. It was held by the Supreme Court per Apaloo JSC that:<o:p></o:p>“As the declared policy of the Act is
to confer valid title on purchasers who built on lands on the faith of titles
subsequently adjudged to be invalid, it seems to me only natural, that the Act
should require that the purchaser, to avail himself of the statutory
protection, should have acted honestly and reasonably at the date of the
original acquisition of the land, and having so acted should have believed in
the validity of his title... It is possible to conceive cases in which the mere
disobedience of warning can be regarded as such reckless conduct as would
disentitle a person to the protection of the Act but this is not one of such
cases. To hold that the erection of a building after warning in all cases
renders a person reckless and thus disentitles him to the statutory relief
would rob the Act of its potency and thwart the declared object of the
legislature ...”<o:p></o:p>In
my opinion whether a person who has built on another’s land should be protected
under the Act or not depends on how honestly he acted in putting up the
building. For example, did he believe that he was building on his own land? The
evidence in this case cannot support any claim by the appellant that he
honestl</main>