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ELIAS J. MOUBARAK
V.
AYOUB JAPOUR
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
1ST DAY OF MARCH, 1944
2PLR/1944/12 (WACA)
OTHER CITATION(S)
2PLR/1944/12 (WACA)
(1944) X WACA PP. 102 – 107
LEX (1944) – WACA PP. 102 – 107
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, AG. C.J., GOLD COAST
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BETWEEN:
ELIAS J. MOUBARAK, SYRIAN TRADER OF SEKONDI — Plaintiff
AND
AYOUB JAPOUR, SYRIAN TRADER OF SEKONDI — Defendant
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REPRESENTATION
F. Awoonor Williams — for Plaintiff
J. H. Coussey — for Defendant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW – LAND:- Proof of title to boundary to land – Rival claimants with root title granted by same grantor under native customary law – Evidence of title to boundary asserted based on subsequent conveyance executed by different representatives of grantor other than those who executed the original grant – Where said conveyance later in time than rival grant – Relevant considerations
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CASE SUMMARY
The Plaintiff sought possession of certain premises in the occupation of the Defendant. Each party claimed as successors in title to grants made under native customary law; the Plaintiff from a grant obtained in 1913, and the Defendant from one in 1920. Subsequently, in 1933, the original owners of the land executed a conveyance with plan attached in favour of the predecessor in title to the Plaintiff, the plan showing an apparent overlap of 9 feet on to Defendant’s plot.
At the outset of the proceedings the area in dispute was clear and defined, but the trial Judge in his judgment lost sight of this definite issue, and further omitted to deal with that part of the claim for mesne profits and demolition; the effect of the judgment thus being in favour of the Plaintiff for a strip of the house site, and for the Defendant as regards the rest of the premises. On review the claim for mesne profits and demolition were adjudged, and the narrow strip of the house site which had been awarded to Plaintiff was described.
The Plaintiff appealed and the Defendant cross appealed.
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DECISION(S) APPEALED AGAINST
The trial judge held, inter alia –
“In this action the plaintiff claims from the defendant possession of a piece of land in Essei Street, Sekondi. It has been made clear during the trial that the only land in issue is the actual site of a house No. 12 /13 Essei Street, occupied by the defendant.”
and later in his judgment, said:-
“The defendant does not now dispute the plaintiff’s title to one of the two plots bought by him in 1941, viz.: a comer plot bounded on one side by Essei Street and on another by Sixth Street, although he did in the early part of the proceedings. The length of this plot in Essei Street is 80 feet from the eastern end of the street, not including the space of 6 feet between the relevant drain and the building line in Sixth Street.
”Making allowance for this space of 6 feet, the plot in question comprises land on which house No. 12 /13 stands to the extent of 9 feet ; if this is not included then to the extent of 3 feet.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. That the description and plan in the 1933 conveyance was not proved to truly and accurately represent the extent of the 1913 grant; and consequently the plaintiff could not found upon that deed granted thirteen years after the grant to the defendant; that the plaintiff failed to discharge the burden of proof and that the defendant showed a more satisfactory grant, albeit later in date.
2. That the Land Registry Ordinance (Cap. 112, Gold Coast) does not give to a registered deed any priority over an earlier grant by native customary law; also that too much reliance should not be placed on plans prepared from descriptions given by illiterates.
3. Too much reliance must not be placed on descriptions in plans attached to instruments executed by illiterates who can understand very little from a plan. There is no evidence that anyone present at the 1913 grant to Brem went on the land in 1933 to instruct the surveyor as to the exact limits of the 1913 grant.
4. Appeal of Plaintiff dismissed. Cross-appeal of Defendant allowed. Review order set aside.
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MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J. (Sierra Leone):-
The Plaintiff sued the Defendant in the Divisional Court, Sekondi. As these are cross-appeals from the judgment of that Court, it will be convenient in this Court to refer to the parties throughout as Plaintiff and Defendant respectively.
The claim in the Writ of Summons was as follows:-
“The Plaintiff seeks to recover from the Defendant possession of all that piece or parcel of land situate between the corner of Sixth St. and Eseei St. Dutch Sekondi measuring 132 ft. by 2 ft. by 97 ft. by 62 ft. more or less the property of the Plaintiff of which the Defendant is in wrongful possession.
“The Plaintiff also claims mesne profits from the 1st September, 1942 to ‘date of delivery of possession.
“The said land is bounded on the North by Essei St. on the South by a 10 ft. passage, Mrs. Cromwell’s house and Moubarak’s property on the East by Sixth St. and on the West by a 12 ft. lane and J. Annu-Esuman’,s land.”
There is some confusion in the evidence as to measurements of various pieces of land referred to, but at the outset of the trial and up to judgment in the Court below there was no doubt whatever about the issue between the parties. Quite definitely the Plaintiff’s claim as against the Defendant was to recover possession of the site on which stands a house occupied by the Defendant, and just as definitely the Defendant’s case was that the Plaintiff was not entitled to recover possession of that site or any part of it. It was agreed by Counsel in this Court that the “site” meant the land actually occupied by the building and compound almost enclosed by the building, no more and no less.
At the outset of his judgment the learned Judge appeared to understand that this was the clear issue between the parties when he said:-
“In this action the plaintiff claims from the defendant possession of a piece of land in Essei Street, Sekondi. It has been made clear during the trial that the only land in issue is the actual site of a house No. 12 /13 Essei Street, occupied by the defendant.”
But later in his judgment it appears that the learned Judge lost sight of the definite issue between the parties when he said:-
“The defendant does not now dispute the plaintiff’s title to one of the two plots bought by him in 1941, viz.: a corner plot bounded on one side by Essei Street and on another by Sixth Street, although he did in the early part of the proceedings. The length of this plot in Essei Street is 80 feet from the eastern end of the street, not including the space of 6 feet between the relevant drain and the building line in Sixth Street.
”Making allowance for this space of 6 feet, the plot in question comprises land on which house No. 12 /13 stands to the extent of 9 feet; if this is not included then to the extent of 3 feet.
“No serious question arises as to this. The main question has been as to the other of the two plots bought by the plaintiff from Nyasemhwe, which comprises all the land on which the house stands excepting in so far as it stands on the first-mentioned plot.”
It is quite clear that the learned Judge was mistaken in this part of his judgment. Counsel for Defendant in his argument before us drew attention to this manifest mistake of the learned Judge and Respondent’s Counsel did not in his reply attempt to suggest that the learned Judge was not mistaken in the part of his judgment last quoted.
A careful study of the judgment and the record makes it difficult to understand how the learned Judge came to make this mistake. Referring to the strip in question he says “No serious question arises as to this.” In his judgment the important question as to the width of the strip was left unanswered as if of no importance, whereas, with part of the Defendant’s house standing on the strip, how could the width be regarded as too unimportant to decide? Also in his judgment the learned Judge made no order nor even any reference as to mesne profits or as to demolition of part of the house, rendered necessary by his judgment. Indeed, the opening paragraph and the operative part of the judgment are consistent and intelligible only on the hypothesis that the Judge had forgotten that the strip of land he was giving to the Plaintiff had a part of the house on it, or overlooked the importance of that fact.
In effect the Court below gave judgment for the Plaintiff for a narrow strip of the house site, at the. east side and including the east wall of the house; and judgment for the Defendant as regards the rest of the house site. In his judgment the learned Judge did not deal with the question of mesne profits, but on a Motion for review he made an order for mesne profits at the rate of £1 per month from the date of the writ until delivery of possession of the narrow strip. He also, on the Motion for review, ordered the demolition of that part of the house which stands upon the narrow strip. In that order, though not in “his judgment, the learned Judge defined the narrow strip as being 9 feet in width.
From the judgment and subsequent order these cross-appeals are taken.
In considering these appeals there are two questions (1) as to the narrow strip and (2) as to the rest of the house. The Defendant’s appeal relates only to (1); the Plaintiff’s appeal only as to (2). These questions may be treated separately, though they are not, on the view we take of the case, separate questions at all.
As regards the narrow strip, the question resolves itself into a competition between the grant from the owners of the land which the Plaintiff alleges his predecessor in title, Brem, obtained in 1913, and the grant from the same owners which the Defendant alleges his predecessor in title, Brodwimaba, obtained in 1920. Both these grants were under native custom and the evidence does not show that the parties to the grants went on the land with a surveyor to define by a survey and plan the exact boundaries of the plots respectively granted. Brem himself gave evidence and all he said by way of defining what his grant gave him was: “A plot at the comer of Essei Street and Sixth Street was given to me by Anaisie II., in 1913.” Not a word did he say as to the linear measurements or the shape of the plot. Not a word is to its being a particular plot on a particular plan. Not a word as to physical boundary marks on the South-west. His evidence does not help at all to determine, to within the rather fine limit required by this question, namely nine feet, how far the plot extended South-west from Sixth Street, even if we take it that the term “Sixth Street” was a sufficiently defined line at the time, which is doubtful. Brem’s evidence is useless on this question and there is no other contemporaneous evidence as to the exact extent of the grant to him in 1913.
The grant to Brodwimaba is evidentially in a much more satisfactory position. At the time of the grant she had a house on the land which she had bought from a Lagosian, and her object in getting the grant was obviously to make good her title to the land on which the house stood. There stood the house, and the grant was given for good consideration. It would be an amazing, indeed an incredible thing if the grant had been given to cover the whole house except the small eastern strip of which we have heard much in this case.
As regards the grant to Brodwimaba the witness Kojo Aba, whose evidence the learned Judge expressly accepted, said:-
“I was Councillor in Segu Winwah’s time.
When we were building the Ahinfie we were in need of money, so we called Brodwimaba and asked her for a loan of £50. She gave us the amount. The Chief and his Councillors for the consideration of this amount granted to Brodwimaba the land on which stands House No. 12/13. She had bought the house already from a Lagos man.”
That evidence is conclusive as to the extent of the grant to Brodwimaba; that it covered the whole land on which the house stood. It is significant that it was never in cross-examination suggested to Kojo Aba or to Ekow Annu, the other witness to Brodwimaba’s grant, that a narrow strip of the house at the east side was excluded from the grant.
Upon the evidence it seems clear enough that Brodwimaba’s 1920 grant of the whole land on which the building stands is amply proved and that the Plaintiff has failed to discharge the onus of proof upon him that the 1913 grant to Brem extended South-west so as to cover the narrow strip of the house which the learned Judge has given to him, or to extend into the area of the house at all.
It is true that the Plaintiff attempts to pray in aid by way of proof of the extent of land given to Brem in 1913 a formal conveyance with plan attached which the owners of the land executed in favour of Brem in 1933. But the Plaintiff cannot for this purpose found upon that deed granted thirteen years after the grant to Brodwimaba, unless he can prove that the description in that deed and the delineation in the plan attached to it truly and accurately represent the extent of the 1913 grant to him. Not a single witness is called to prove this, and the Court is left entirely in the dark as to who provided the information far, the description and the plan, and as to the source of that person’s information. The persons who signed the formal conveyance as the owners were not the persons who represented the owners in the 1913 grant.
It is a most surprising thing that the Plaintiff, whose first witness was the surveyor who signed the plan on the conveyance, never put the conveyance in evidence until later on, and never asked the surveyor to disclose the source of the information on which he made the plan attached to the conveyance. In short, as it is not proved that the 1933 conveyance to Brem referred to the same land as was given to Brem in 1913, it is of no evidential value whatever on the question of the exact extent of the 1913 grant and in no way assists the Plaintiff to discharge the onus of proof upon him.
The Plaintiff has sought to eke out his case by reference to the Land Registry Ordinance (Cap. 112), but there is no substance in that plea. The Land Registry Ordinance clearly does not give to a registered deed any priority over an earlier grant by native law and custom; Furthermore the Ordinance (section 23) provides that registration of an instrument shall not “confer upon it any effect of validity which it would not otherwise have had.”·
Parenthetically we may note that too much reliance must not be placed on descriptions in plans attached to instruments executed by illiterates who, as from judicial experience we know, can understand very little from a plan. There is no evidence that anyone present at the 1913 grant to Brem went on the land in 1933 to instruct the surveyor as to the exact limits of the 1913 grant. Nor is there evidence that any of the illiterate granters of the conveyance to Brem went on the land with the surveyor so as to show him correctly and accurately the plot of which he was to make a plan for the conveyance.
Upon the evidence as explained we are satisfied that the Plaintiff did not discharge the onus of proof upon him as to the exact extent of his 1913 grant. The learned Judge was therefore wrong to hold as he did that the Plaintiff was entitled to judgment in respect of the land on which any part of the house stands and the Defendant’s appeal must be allowed.
As regards the main part of the building, to which the Plaintiff’s appeal relates, the position is even clearer in favour of the Defendant. The following material findings of fact by trial Judge are conclusive:-
“I find that the Omanhene Segu Winwah and his Elders did grant the land to Madam Brodwimaba long before his successor purported to grant it to the plaintiff.”
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“In the result I uphold the defendant’s title as against that claimed by the plaintiff in respect of the plot in question.”
We can find not the slightest ground for interfering with these findings with which on the evidence we agree. The Plaintiff’s appeal must therefore be dismissed.
For these reasons the judgment of the Court below of 4th May, 1943 is set aside including the order as to costs and there is substituted therefor a judgment for the Defendant dismissing the Plaintiff’s claim with costs to be taxed. The review order of 8th July, 1943, both as to mesne profits and as to demolition of a portion of the building is also set aside and the Defendant is awarded the costs on that motion, to be taxed. The Defendant is also awarded the costs of both the cross-appeals in this Court assessed at £56 12s. 8d.
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