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MADJOUB RAFAT
V.
ROBERT ETRUE ELLIS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1954
W.A.C.A. NO. 100/53
2PLR/1954/94 (WACA)
OTHER CITATION(S)
2PLR/1954/94 (WACA)
(1954) XIV WACA PP. 430-432
LEX (1954) – XIV WACA 430-432
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
MADJOUB RAFAT, SYRIAN TRADER OF SALTPOND – Appellant
AND
ROBERT ETRUE ELLIS FOR HIMSELF AND AS HEAD OF ANUAH TSIBO ABURADZI FAMILY OF SALTPOND – Respondent
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ORIGINATING COURT(S)
Appeal against the judgment of the Land Court, Central Province by defendant
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REPRESENTATION
Akufo-Addo — for Appellant
Awoonor-Williams — for Respondent
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ISSUE(S) FROM THE DECISION(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Family property — Sale of under a writ against a member of the family — Fraud — Laches and acquiescence — Estoppel — When court would deem owners/family to have been standing by — Relevant considerations
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CASE SUMMARY
The appellant bought an unoccupied and dilapidated house at a sale under a writ against the respondent’s sister, and received a certificate of purchase, and later built on the plot. The property belonged to the family, who never consented to the sale; the respondent heard of it but did nothing; nor did he or his family do anything while the appellant was building though they knew he was. It was not until after the appellant had finished building that the respondent sued for recovery of possession on the family’s behalf. He obtained judgment and the defendant appealed.
The trial Judge thought the defence of the appellant was that the respondent-plaintiff stood by when the property was being sold and was estopped by the certificate of purchase. What the appellant-defendant relied on was the family’s standing by while he built without apprising him of the defect in his title.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the Appeal) that:
The respondent and his family knowingly permitted the appellant to incur expenditure on building and thereby waived and abandoned any rights they may have possessed.
Case cited:-
(1) Ramsden v. Dyson, 1866, 1 H.L. 140.
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MAIN JUDGMENT
The following Judgment was delivered:
WINDSOR-AUBREY, J.
The defendant-appellant appeals against the judgment of the Land Court, Central Province, granting to the plaintiff-respondent, suing for himself and as head of Anuah Tsibo Aburadzi family, recovery of possession of the property known as Wurakese House, Saltpond.
The title to the property and the means whereby the appellant acquired possession are not seriously in dispute.
The property is the family property of the plaintiff and his family. In 1942 the firm of G. B. Ollivant Ltd. obtained a judgment against Beatrice Ellis, the plaintiff’s sister, and attached Wurakese House, which was sold under a writ of fi. fa. and purchased by the defendant, who duly obtained a certificate of purchase. There is no doubt that plaintiff’s family never consented to the sale.
The plaintiff, however, who was then living in Kumasi, admitted that he heard of the sale some time in 1942 and alleged that he promptly instructed his solicitor to investigate and take action.
In fact, his solicitor took no action until September, 1945, when he wrote a letter (exhibit “C2”) to the defendant asserting the plaintiff’s title. By this time the defendant had erected a substantial building on the plot of land.
It seems clear that, although in 1938 a substantial building stood on the plot, by 1942 the building was unoccupied, and, furthermore, that at that date only the ground door of the building still existed, and that it was in a broken and dilapidated condition.
The issue before this Court is whether by laches and acquiescence the plaintiff is now estopped from claiming the property.
The learned trial Judge stated the issue before the Court to be as follows:-
“The defendant’s main grounds of defence were that the plaintiff is estopped by virtue of the certificate of purchase and by conduct for having stood by while tile property was being sold in execution of a decree for his sister’s debt with hilt knowledge and acquiescence and submitted that plaintiff and family slept on their rights.” ·
That passage seems to suggest that the learned trial Judge thought that the defendant relied on his certificate of purchase and the plaintiff standing by at the time of sale.
What the defendant relied on was the conduct of the plaintiff and the members of his family in standing by from 1942 to 1945 and permitting the defendant to erect a substantial building without any indication to him that there was a defect in his title.
The defendant relies on the case of Ramsden v. Dyson (1). In the course of his judgment Lord Cranworth remarked that to raise successfully a defence of this kind two things were necessary. Firstly, that the person expending the money must suppose himself to be building on his own land, and secondly, “standing by” by the real owner. The following is a quotation from his judgment:-
“If a stranger begins to build on my land, supposing it to be his own, and I, perceiving his mistake, abstain from setting him right, and leave him to persevere in his error, a Court of Equity will not allow me afterwards to assert my title to the land on which he had expended money on the supposition that the land was his own. It considers that when I saw the mistake into which he had fallen, it was my duty to be active, and to state my adverse title; and that it would be dishonest in me to remain wilfully passive on such an occasion, in order afterwards to profit by the mistake which I might have prevented.”
Concerning the first point, the defendant is a Syrian, the plot was unoccupied, and it was purchased under an execution sale. In these circumstances the defendant could reasonably believe that he was acquiring a good title to the property.
Concerning the second point, although the plaintiff may have heard of the sale too late to interplead, there was nothing to prevent him instituting an action for a declaration of title in 1942. Having regard to the evidence of his witness Nana Kwamina Intsiful, a chief, who admits also to being closely related to the family, I am satisfied that from 1942 onwards the members of the plaintiff’s family were well aware of the erection of the storied building by the defendant and deliberately stood by until the building was completed.
In this connection the plaintiff’s own evidence is enlightening as to his attitude of mind. He says:-
“I passed through Saltpond in 1945. I saw that a new building had been put up on the site of the property in question. I did not stop. I heard the property had been sold and I was not interested.”
This is not a question of the plaintiff and his family simply neglecting to enforce a claim. I am satisfied that they must, by their conduct, be held to have acquiesced, and knowingly permitted the defendant to incur expenditure on renovating and adding to the building. They have thereby waived and abandoned any rights which they possessed, and cannot now enforce them.
I would therefore allow this appeal, set aside the judgment of the Land Court, and enter judgment for the defendant in the Court below with costs to be taxed, The defendant-appellant to have his costs on this appeal fixed at £31 4s. 0d.
Any costs already paid to respondent by appellant to be repaid.
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FOSTER-SUTTON, P.
I concur.
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COUSSEY, J. A.
I concur.
Appeal allowed; Judgment for appellant-defendant.