ATTIAPA vs. MARIAM [1993]DLCA4905

Date	1993-07-03
Suit No.	[1992 – 1993] 3 G B R 1628 – 1631 C.A
Citation No.	[1993]DLCA4905

ESSIEM JA

AMUAH JA

LUTTERODT JA

AMARKAI AMARTEIFIO FOR THE APPELLANT.

HANSEN FOR THE RESPONDENT.

[1993]DLCA4905
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													<main id="main" class="content" style="min-height: 60rem" >ATTIAPA<o:p></o:p>vs.<o:p></o:p>MARIAM<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] 3 G B R 1628 – 1631 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; DATE:3rd &nbsp;JULY 1993<o:p></o:p>

HANSEN
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;
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</div>ESSIEM
JA. <o:p></o:p>This is an appeal against
the judgment of Dove J by which the learned judge upheld the plaintiff’s claim
against the defendant. The claim was for the following reliefs: (1) a
declaration that she is the owner and beneficially entitled to the disputed
land; (2) ¢250,000 damages for trespass onto the said land by the defendant;
(3) perpetual injunction restraining the defendant her servants agents and
assigns from further interfering with the plaintiff’s use of the said land.<o:p></o:p>From the amended statement
of claim, the plaintiff purchased the land, the subject matter in dispute, from
one Violet Naanum Whitaker as far back as 1956 and constructed a platform for
her building thereon. Although the plaintiff did not obtain any document of
title before her vendor died, she later obtained one and registered it.<o:p></o:p>The plaintiff constructed
a platform on the land and left for Nigeria. It was on her return some years
later that she discovered that the defendant had trespassed on the land and
built a house on part of the land hence the present action.<o:p></o:p>The defendant, in her
statement of defence, denied the plaintiff’s claim. She pleaded that the land
was sold to her by Nii Atrema II, Mantse of Asere, Accra by a deed of
conveyance made on 12 March 1963.<o:p></o:p>The trial judge found from
the evidence that the defendant’s conveyance was dated 12 March 1963, stamped
in 1974 and registered in 1987. The judge found also that at the time that the
defendant obtained her grant, her grantors had no title to the land because the
land had been sold to the late Dr Nanka Bruce from whose family plaintiff
obtained her grant. The same was registered in 1979 in the Deeds Registry as No
3893/1979.<o:p></o:p>The trial court also found
that at the time of the grant made to the defendant in 1963 the Asere stool had
already divested itself of title to the land by its grant of a larger area of
land including the area in dispute to Dr Nanka Bruce in 1947 which grant had
been registered as far back as 1948. On the evidence the learned trial judge
found that the defendant had no title by the grant made to her in 1963. The
court also found that the defendant went into possession and constructed a
dwelling house on the land. He also found that the defendant-appellant’s
building was on part of the plaintiff-respondent’s land.<o:p></o:p>There is no evidence that
the defendant-appellant was aware of the plaintiff’s adverse title to the land.
However there is sufficient evidence on record that she had completed her
building and was occupying it when the plaintiff returned from her trip. The
plaintiff, from the evidence, drew water from the appellant’s house to complete
her house and she moved in. The evidence also indicates strongly that the
contractor who built the plaintiff’s house drew water from the defendant’s
house.<o:p></o:p>On the evidence therefore
the defendant-appellant was completely unaware that the plaintiff was the owner
of the land on which she had built her house. She sincerely believed that she
had title to the land. The learned trial judge declined to invoke section 10 of
the Limitations Decree 1972 (NRCD 54) and also declined the plea of laches and
acquiescence because they had not been pleaded. I think the trial judge was
right because estoppel must be pleaded.<o:p></o:p>The trial judge found that
the defendant-appellant’s document of title, exhibit 1, was registered in 1987
after the commencement of this action while the plaintiff-respondent’s document
exhibit A was registered in 1979 and her vendor’s was registered in 1948.<o:p></o:p>On the totality of the
evidence on record, the appellant developed her land in the honest belief that
she had obtained good title to the same and was unaware of the plaintiff’s
prior grant to the same land. On her return from Nigeria the plaintiff did not
raise any objection to the defendant’s occupation of the land in dispute until
a quarrel arose between them; it was then that the plaintiff-respondent took
the action herein. I am persuaded that on the totality of the evidence the
defendant honestly believed that she had valid title to the land in dispute
before she developed it.<o:p></o:p>In Laryea v Oforiwah
[1984-86] 2 GLR 410 holding (5), this court observed:<o:p></o:p>"The provisions of the Land
Development (Protection of Purchasers) Act, 1960 (Act 2) vested a discretion in
the court in any given case to determine whether or not the provisions of the
Act should be applied. The first and foremost factor for the trial court to
consider when determining a question of the purchaser’s protection under the
Act was the good faith of the purchaser..."<o:p></o:p><o:p>&nbsp;</o:p>As I have already pointed
out, the appellant honestly believed she had title to the land in dispute
consequently she is entitled to protection under the Act. The trial court
should have invoked this law and protected the appellant. I shall therefore invoke
Act 2 and confer title on the defendant-appellant in respect of the land in
dispute.<o:p></o:p>I therefore allow the
appeal and order that tittle to the land in dispute be conferred and is hereby
conferred on the defendant-appellant. The defendant-appellant should ensure
that the plaintiff has access to her house. The plaintiff should be paid twice
the value of the land at the time of purchase in accordance with section 3 (a)
of Act 2.<o:p></o:p><o:p>&nbsp;</o:p>AMUAH
JA.
I agree.<o:p></o:p>