ADAMS vs. BANINI [1994]DLCA5199

Date	1994-03-24
Suit No.	[1994 - 95] 2 G B R 833 – 837 C A
Citation No.	[1994]DLCA5199

LAMPTEY JA

LUTTERODT JA

FORSTER JA

E A MINGLE FOR THE APPELLANT.

L N OTOO FOR THE RESPONDENT.

[1994]DLCA5199
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													<main id="main" class="content" style="min-height: 60rem" >ADAMS<o:p></o:p>vs.<o:p></o:p>BANINI<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;
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[1994 - 95] 2 G B R 833 – 837 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; &nbsp;DATE: 24 MARCH 1994<o:p></o:p>

L
N OTOO 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>LAMPTEY JA. <o:p></o:p>Sometime
in January 1966 the Onamroko Adain family made a customary grant of a plot of
land at Tantra Hill, Accra to Peace Aku Banini (hereinafter referred to as the
plaintiff). In 1977 the above transaction was reduced into writing and an
indenture thereon was duly executed by all the parties. The plaintiff duly
stamped and registered the indenture. The plaintiff planted four pillars to
mark and demarcate the boundaries of her plot of land. She also engaged the
services of Albert Nyame Ashitey, PW1 as a caretaker over her plot of land.<o:p></o:p>Sometime
in 1982 Ashitey, PW1, noticed that building operations had been commenced on
the plaintiff’s land. Ashitey promptly warned the building contractor to stop
work and to leave the land but his warning was ignored by the contractor and
his workers. They continued the building operations on the land. The plaintiff
was informed by Ashitey that a building was being put up on her plot of land.
She also warned the building contractor to stop work. Her warning was treated
with contempt and ignored. She caused to be placed on the land a signboard with
“Stop work”. Since the building contractor persisted in continuing the building
operations and the act of trespass, the plaintiff sued George Adams
(hereinafter called the “defendant”) who had purchased a plot of land adjoining
the land of the plaintiff and had engaged the building contractor to put up the
offending dwelling house on a part of plaintiff’s plot of land. The plaintiff
claimed against the defendant the reliefs endorsed on the writ of summons; in
particular, the plaintiff sought a declaration of title to the land described
in the writ of summons under head (a).<o:p></o:p>In
his statement of defence, the defendant claimed that he obtained his title from
the Onamroko Adain family; that in demarcating the common boundary between his
plot of land and that of the plaintiff, the surveyor had unwittingly trespassed
into the plaintiff’s plot by some 22 feet. This admission notwithstanding, the
case proceeded to trial because the defendant had invoked the provisions of Act
2 in support of his case. At the end of the hearing on the merits, the case of
the defendant was rejected. Judgment was entered for the plaintiff for all the
reliefs he had sought and claimed, except that, the plaintiff was not awarded
damages for the trespass committed by the defendant. I must observe that the
plaintiff had not cross-appealed against this omission on the part of the trial
judge. The defendant was aggrieved by the decision of the lower court which
dismissed his defence and his plea to rely on and benefit from Act 2.<o:p></o:p>The
appeal raises the sole issue whether the trial judge erred in law in dismissing
the defence founded on Act 2. The onus of satisfying the court that Act 2 applied
to the facts of this case and further that the defendant successfully adduced
evidence to prove and establish that Act 2 was available to him lay squarely on
him.<o:p></o:p>A
defendant must satisfy the court that: (a) he is a purchaser of the plot of
land and in good faith erected a building on it. See on this s 1(1)(b) of Act
2; and (b) that he erected a building, that is to say that, at the date of the
filing of the writ of summons he had carried out the greater part of the work
required for the erection thereof. See on this, s 4 (2) of Act 2.<o:p></o:p>First
is the issue whether the defendant was a purchaser of the plot of land who
commenced the building of a dwelling house in good faith. Before us, learned
counsel for defendant contended that there was no structure on the disputed
land at the time the defendant's building contractor commenced building
operations on the land. It was further argued that the defendant had purchased
the land adjoining plaintiff’s plot; that the surveyor demarcating the plot had
inadvertently trespassed into the plot of plaintiff to the extent of 22 feet.
Learned counsel stated that this was a mistake honestly made by the surveyor.
He submitted that the defendant was not therefore, guilty of bad faith. In
reply to this contention, learned counsel for plaintiff pointed to evidence to
show that the plaintiff had caused to be planted four corner-pillars on the
land. He drew attention to evidence to show that the caretaker of the plaintiff
PW1, Ashitey and the plaintiff herself as soon as the building contractor
commenced digging the foundation and actually proceeding with raising the super
structure, warned him to stop work. There was also evidence that the plaintiff
posted a sign board with the warning “Stop Work” on the disputed land. He submitted
that the conduct of the building contractor and of the defendant in all the
circumstances was evidence of bad faith.<o:p></o:p>In
my view the evidence on which the defendant relied to prove good faith is
wholly unsatisfactory. The defendant admitted that he personally did not
conduct a search at the deeds registry to ascertain whether or not the disputed
land belonged to his vendor when the plaintiff and PW1 challenged them. He was
prepared to leave this important precautionary step to be taken by his agent, the
building contractor. This was what the defendant told the court on the issue of
conducting a search:<o:p></o:p>“After giving me the site plan I gave
it to my contractor to make a search on the land. I do not know, the result (of
the search).”<o:p></o:p>The
building contractor did not conduct a search even though according to the
defendant he instructed him to do so. It is plain and clear that the defendant
was reckless in this regard, especially when his right and title to the
disputed plot of land was challenged by PW1 and also by the plaintiff. A search
at the deeds registry would, no doubt, have revealed that the Onamroko Adain
family, his vendor, was not the owner of the disputed land. The search would
have showed that since 1977, the plaintiff had become the lawful owner of the
disputed plot of land. Indeed, the evidence of the defendant clearly showed
that as soon as he was shown the land, he commenced building a dwelling house
on it within one week. This was what he told the court under cross-examination:<o:p></o:p>“…the following day we went for
demarcation. My contractor started the construction a week after the
demarcation…”<o:p></o:p>