BEDIAKO vs. ARTHUR AND ANOTHER [1993]DLCA5039

Date	1993-05-13
Suit No.	[1992 – 1993] 4 G B R 1594 - 1602 C.A
Citation No.	[1993]DLCA5039

AMPIAH JSC

ESSIEM JA

ADJABENG JA

N K KUDJAWU (WITH HIM MISS IRENE KUMASENU) FOR THE APPELLANT.

JAMES AHENKORAH FOR THE RESPONDENTS.

[1993]DLCA5039
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													<main id="main" class="content" style="min-height: 60rem" >BEDIAKO<o:p></o:p>vs.<o:p></o:p>ARTHUR AND ANOTHER<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 1594 - 1602 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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13 MAY 1993<o:p></o:p>

JAMES
AHENKORAH FOR THE RESPONDENTS.<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">

AMPIAH
JSC, ESSIEM JA, ADJABENG JA<o:p></o:p>

</div>AMPIAH
JSC. <o:p></o:p>The plaintiff in this
action claimed to have purchased a piece of land with a dwelling house thereon
at Bubuashie, Accra, from one A K Oduro (now deceased). The house is numbered
89/18 Bubuashie, Accra. The late Oduro was said to have purchased the land on
which he built, from the Asere stool in 1959. The late Oduro had no conveyance
from the Asere stool. In 1977 when the plaintiff decided to purchase the
property, he was directed to the Asere stool, which conveyed the property to
the plaintiff. The deed, which was dated 6 December 1977 was registered as No
194/1978 and tendered in evidence as exhibit B.<o:p></o:p>The plaintiff gave notice
of the change of ownership in the property to the tenants in the house,
including the defendant. He then took charge of the house, made certain
renovations and collected rents from all the tenants in the house including the
defendant. This continued for about 3-4 years until the original owner, the late
Oduro, died in November 1981.<o:p></o:p>Soon thereafter a
misunderstanding arose between the plaintiff and the defendant. The defendant
who claimed to be a niece of the late Oduro, refused to pay further rents and
rejected the plaintiff’s claim to ownership of the house. Consequently, the
plaintiff brought this action against the defendant claiming:<o:p></o:p>“(1) A declaration that he is the
owner of all that piece or parcel of land situate lying and being at Bubuashie,
Accra;<o:p></o:p>(2) An order of recovery of possession
from the defendant of the portion of the house she occupies;<o:p></o:p>(3) Such further relief or reliefs as
the court shall consider appropriate in the circumstances.”<o:p></o:p>The defendant resisted the
claim.<o:p></o:p>On 11 June 1984, one Nana
Amoako Kosare Diamin II who claimed to be the head of late Oduro’s family
applied to join the action as a co-defendant. His request was acceded to. He
counterclaimed for a declaration of title to the property, recall and
cancellation of the plaintiff’s deed of conveyance, damages for trespass, order
for account and refund of all rents collected by the plaintiff from the house
from May 1977 to the date of judgment. He also claimed mesne profits and, an
order of perpetual injunction against the plaintiff.<o:p></o:p>On 29 June 1988, the judge
dismissed both the plaintiff’s claim and the co-defendant’s counter-claim. She
awarded costs of ¢100,000 and ¢60,000 against the plaintiff in favour of the
defendant and co-defendant respectively. Against this judgment the plaintiff
has appealed. The grounds of appeal are contained in the Notices filed on 29
June 1988 and 9 February 1993.<o:p></o:p>Counsel for the
plaintiff-appellant (hereinafter referred to as “the plaintiff”) has submitted
that “the learned trial judge misdirected herself on the practice and the law
of conveyancing and thereby, fell into error by holding that exhibit A and B
failed to prove the plaintiff-appellant’s title to the land and the house, the
subject of the dispute.”<o:p></o:p>With regard to exhibit A
the trial judge held that since it was a document affecting land, it was
required to be registered under section 24(1) of the Land Registry Act 1962
(Act 122) and since it had not so been registered it was ineffective to give
effect to the alleged sale of the property in dispute to the plaintiff. In
other words, exhibit A was incapable of supporting the plaintiff’s case. In
coming to this conclusion, the trial judge held that exhibit A (a receipt) was
an instrument as defined in Act 122 and since it affected land, it needed to be
registered before it became effective.<o:p></o:p>With all due deference to
the trial judge, it is not in all cases that a document referring to land needs
to be registered. It is not quite clear from Djan v Owoo [1976] 2 GLR 401, upon
which the trial judge relied so heavily, the nature of the receipts in that
case and for what purpose they had been tendered. It would be seen from the
case itself that even though the court rejected the receipts as ineffective,
the same court relied on them to order specific performance. In my opinion the
mere fact that land has been recited in a document does not make the document
registrable. A receipt which merely acknowledges that money has been paid for a
piece of land, but does not by itself convey the land, is not registrable to
become effective. It is acceptable as evidence in proof of payment if it is
duly stamped. If the position were to be otherwise, it would mean that where
the purchase price for land is paid by instalment, each receipt issued for a
part payment should be registered to make it effective. Would a rent card which
refers to a house (a landed property) be required to be registered? I do not
think so.<o:p></o:p>In the instant case, the
plaintiff had tendered the receipt (exhibit A) as evidence of payment for the
purchase of the house in dispute. The conveyance itself was tendered as exhibit
B to show the transfer of the house to the plaintiff in pursuance of the
payment. If the trial judge was satisfied that the signature on the receipt
(exhibit A) was that of the vendor, then that document having been stamped, was
evidence in support of the plaintiff’s case. The rejection of the document as
not having been registered was wrong.<o:p></o:p>Did exhibit A contain the
signature of the late A K Oduro? The trial judge observed:<o:p></o:p>“Though the plaintiff can claim no
rights under exhibit A - indeed I can make no observation on the signature
purported to be that of Oduro - I have compared it to exhibit 2A and 2B which
the parties are agreed are the genuine signatures of the deceased. It seems to
me that while 2A and 2B are similar and flow naturally, the signature on
exhibit A appears to me to be laboured and very different from both exhibits 2A
and 2B. It see</main>