COFIE
vs.
OTOO
[HIGH COURT (LANDS DIVISION), ACCRA]
[1959] GLR 300
DATE: 14TH SEPTEMBER, 1959.
COUNSEL:
PLAINTIFF IN PERSON.
OBETSEBI LAMPTEY FOR DEFENDANT.
CORAM:
OLLENNU J.
JUDGMENT OF OLLENNU J.
(His lordship stated the facts, and continued : -
It was submitted on behalf of the plaintiff that as the land had been conveyed to the
defendant under a solemn deed of conveyance, it was not open to her either to plead (or
to lead evidence to prove) a prior sale of - the same land to her by an oral agreement. It
was further submitted that the effect of that extrinsic evidence of events which
happened prior to the execution of the deed is to vary the contents of the solemn deed.
I cannot see the force of this submission. No objection was raised to the admission of the
evidence in question; in fact, one of the pieces of evidence in that behalf was tendered
on behalf of the plaintiff. I refer to Exhibit “E”, which is a receipt Afful gave to the
defendant some time before the date of the execution of the defendant’s document, and
it is for part-payment made by the defendant of the price of the land.
I understand the law to be that extrinsic evidence of transactions which have
culminated in a deed are not admissible to prove that the contents of the deed do not
represent the true agreement between the parties. But the oral and documentary
evidence tendered by the defendant in proof of the averments in her statement of
defence do not seek to vary the contents of her deed. Her main point is that she has
been in active possession of the land in dispute as owner thereof long before the date of
her deed; and that even though the deed does not recite the fact that it was executed to
evidence a fact already in existence, that omission to recite the original sale does not
affect the transfer already completed, or make the deed more than a mere written
evidence of a transfer of land already effected as between natives.
Following upon his submission that the evidence of the oral sale to the defendant
should be rejected, and the defendant strictly held to her deed of conveyance of the 14th
April, 1955, learned counsel for the plaintiff with great seriousness invited the Court to
hold that the case rests entirely upon priority as between the plaintiff’s deed of
conveyance dated the 26th February, 1953, and that of the defendant dated the 14th
April, 1955. Counsel accordingly submitted that because the date of his client’s deed is
earlier in time than that of the defendant, the plaintiff is entitled to the relief he seeks.
Had both documents been registered or both unregistered, there would have been
substance in this submission that and the Court had to consider was priority as to the
respective dates of execution of the deeds. But, as pointed out above, the plaintiff’s deed
has not been registered. The Court must therefore be guided by the law laid down in
the Land Registry Ordinance for determining priority between instruments which are
subject to the ordinance. Section 21(1) of the Ordinance provides as follows:—
“21(1) Every instrument executed on or after the 24th day of March 1883 (except a will
and except a Judge’s certificate signed before the commencement of this Ordinance) shall,
so far as regards any land effected thereby, take effect as against other instruments
affecting the same land from the date of its registration: Provided that every such
instrument shall take effect from the date of its execution, if registered within such of the
following periods as shall be applicable to it, that is to say:
(a) In the case of an instrument executed at the place where it is registered, the period of
ten days from its date;” etc.
The defendant’s document was not registered in Accra, the place where it was executed,
within ten days of its execution; therefore under the Ordinance it takes effect from the
8th day of August, 1955, the date of its registration, and takes priority over the
plaintiff’s deed as from that date.
The plaintiff was made aware of the registration of the defendant’s deed as far back as
the 6th July, 1956, when he caused a search to be made as stated by him in his evidence,
and by the report (Exhibit “B”) which he received in consequence of that search. On the
facts, I am satisfied upon the plaintiff ‘s own evidence that he entered upon the
transaction with Afful recklessly, without bothering to find out whether or not Afful
had title to the land. He acted at his own risk. Further, he has failed to satisfy me that he
ever had effective possession of the land in dispute.
On the other hand, I accept the evidence of the defendant that she has been in
possession of the land as owner thereof since 1948, exercising full acts of ownership
thereon. In any event I accept the evidence of the plaintiff that the defendant was in
such possession of the land in 1955, and had at the four corners thereon visible concrete
pillars bearing her initials “K.A.O.” I am further satisfied that the vendor Afful had sold
the land in dispute to the defendant in 1948, so that in 1953 he had no right title or
interest in it which he could legally convey to the plaintiff. In consequence, the plaintiff
acquired no interest in the land upon the purported sale to him.
Both on the law and on the facts the plaintiff’s claim must fail. It is dismissed, and
judgment is entered for the defendant, with costs fixed at 35 guineas inclusive.
