BOU-CHEDID v.

YALLEY
[1976] 2 GLR 258

Division: COURT OF APPEAL

Date: 29 MARCH 1976
Before: JIAGGE, SOWAH AND ARCHER JJ.A.

Land law and conveyancing—Contract for sale of land—Purchaser suing in trespass—Death of vendor
before contract executed and purchaser put in possession—Full purchase price paid—Purchaser taking
possession—Contract specifically enforceable—Defendant, vendor’s personal representative, building on
disputed land—Purchaser’s action for declaration of title dismissed against defendant but damages
awarded for trespass—Whether award of damages misconceived—Rights of equitable owner in
possession.

HEADNOTES
In 1940, before her marriage, Mrs. T. agreed to sell a plot of land at Aboom Wells Road, Cape Coast, to
the plaintiff. The purchase price was paid in full and Mrs. T. gave the plaintiff a signed receipt which
stated “Deed of conveyance to follow.” The deed was never executed because Mrs. T. died in 1941
shortly after her marriage to T., the co-defendant, and her estate was the subject of lengthy litigation.
However, on the advice of Mrs. T.’s solicitor the plaintiff entered into possession of the land. In 1947 T.
was granted letters of administration in respect of his wife’s estate, and shortly afterwards left the country.
In 1954 the plaintiff sued one B. for damages for trespass to the land in dispute and by letter sought the
assistance of T. who wrote confirming that his wife had sold the plaintiff a plot of land. The plaintiff was
successful.

[p.259] of [1976] 2 GLR 258

In 1972, T. authorised the defendants to commence building operations on the land. The plaintiff sued the
defendants and T. for a declaration of title and damages for trespass. The trial judge disallowed the claim
for declaration of title but awarded the damages claimed. The defendants and T. appealed on the grounds
that:
“(a) The learned judge having found that there was no title in the plaintiff ought to have dismissed the
other reliefs sought by the plaintiff.
(b) The learned judge misdirected himself on the law as to the nature and quality of the interest of a
purchaser before completion of a contract for the sale of land.
(c) The learned judge erred in law in holding that there was a valid contract which was capable of
specific performance when the contract between the plaintiff and the co-defendant’s predecessor in
title was void for uncertainty.”

Held, dismissing the appeal (Sowah J.A. dissenting): the judgment of the trial court should not be
disturbed because there was a valid contract between the plaintiff and Mrs. T. which was specifically
enforceable and which could have been converted into a legal estate had the plaintiff sought the assistance
of the court.
Per Archer J.A. Notwithstanding the vicissitudes of the courts in Ghana since they were established
about a century ago, no one will venture to suggest that throughout this period separate courts have
administered the common law and equity in Ghana. It follows that the plaintiff as an equitable owner in
possession can maintain an action in trespass at common law in any court of law in Ghana.
Per Jiagge J.A. An oral contract for the sale of land coupled with an admission by the vendor in writing
that the full purchase price had been paid and a promise from the vendor, also in writing, to execute a
conveyance in favour of the purchaser, creates a constructive trust and equity considers the vendor until
the conveyance is executed, as holding the legal title for the purchaser. Consequently the vendor cannot
deal with the legal title in a way detrimental to the interests of the purchaser.
The estate that devolved upon the co-defendant after the death of his wife was that of a legal estate held in
constructive trust for the plaintiff. In the interest of justice, the court must prevent the codefendant, a
constructive trustee, from taking any action that deprives the plaintiff of possession of the land in dispute.
Per Sowah J.A. dissenting. In this case the answer of the trial judge was quite clear: he was unable to
pronounce the declaration of title sought; the effect is a dismissal of that claim. The respondent was
unable to show that “title to the disputed land is in her” and there has been no appeal against the learned
judge’s refusal to grant that declaration. That the learned judge was right is beyond dispute, but in my
view be should have proceeded further to dismiss the whole of the claim . . . The only remedy open to the
respondent was a claim for the equitable relief of specific performance which has not been asked for.

CASES REFERRED TO
(1) General Finance, Mortgage and Discount Co. v. Liberator Permanent Benefit Building Society
(1878) 10 Ch.D. 15; 39 L.T. 600; 27 W.R. 210.

[p.260] of [1976] 2 GLR 258

(2) Stanhope v. Verney (Earl) (1761) 2 Eden 81; Co.Litt. 290 b; 28 E.R. 826.
(3) Pilcher v. Rawlins (1872) 7 Ch.App. 259; 41 L.J.Ch. 485; 25 L.T. 921; 20 W.R 281.
(4) Nisbet and Potts’ Contract, Re [1906] 1 Ch. 386; 75 L.J.Ch. 238; 94 L.T. 297; 22 T.L.R. 233; 54
W.R. 286 ; 50 S.J. 191, C.A.
(5) Asuah v. Egyirwah (1954) 14 W.A.C.A. 421.
(6) Taylor v. Ward Brew (1942) 8 W.A.C.A. 201.
(7) Nettey v. Odjidja [1959] G.L.R. 261, C.A.
(8) Kponuglo v. Kodadja (1933) 2 W.A.C.A. 24, P.C.
(9) Angmor (Tei) & Co. v. Yiadom III [1959] G.L.R. 157, C.A.
(10) British Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. [1964] G.L.R. 190, S.C.
(11) Joseph v. Lyons (1884) 15. Q.B.D. 280; 54 L.J.Q.B. 1; 51 L.T. 740; 1 T.L.R. 16; 33 R. 245, C.A.
(12) Performing Right Society, Ltd. v. London Theatre of Varieties Ltd. [1924] A.C. 1; 93 L.J.K.B. 33;
130 L.T. 450; 40 T.L.R. 25; 68 S.J. 99, H.L.

NATURE OF PROCEEDINGS
APPEAL by the defendants and co-defendants from an award of damages for trespass made against them
in an action for, inter alia, declaration of title to land.

COUNSEL
Ennison for the appellants.
Mustapha for the respondent.

JUDGMENT OF ARCHER J.A.

This appeal involves two legal points (a) whether an equitable owner in possession can maintain an action
in trespass and claim damages, and (b) whether the personal representative of the deceased from whom
the equitable owner derives his title can defeat the equitable title by claiming priority because the legal
estate is vested in him, the personal representative.
The facts briefly are as follows: In 1940, Miss Wilhemina Williams, agreed to sell a piece of land at
Aboom Wells Road, Cape Coast, to the respondent, Mrs. Nancy Yalley (hereafter referred to as the
plaintiff) then resident with her husband at Accra. The purchase price of £40 was paid to Miss Wilhemina
Williams through her father, lawyer Awoonor Williams of Sekondi. In 1941, Miss Williams married the
co-defendant, K. A. Taylor, but she died soon afterwards. Litigation over her estate ensued for several
years and in 1947 the co-defendant was granted letters of administration. It appears that a deed of
conveyance in pursuance of the contract of sale was never executed by the deceased before her death and
while the litigation was in progress, it was uncertain as to who could execute the deed of conveyance.
However, the plaintiff in the meantime had taken possession of the land and between 1950 and 1955
successfully prosecuted her claim to the land against the defendants who attempted to alienate portions of
the land.

[p.261] of [1976] 2 GLR 258

In 1972, the plaintiff discovered that building operations had commenced on the land and that the two
defendants were responsible for the operations. She accordingly sued them in trespass and the
co-defendant who had employed the defendants to build for him applied to be joined as co-defendant.
After hearing evidence, the High Court, sitting at Cape Coast gave judgment for the plaintiff. The
defendants appealed.
During the hearing of the appeal, the grounds of appeal argued were:
“(a) The learned judge having found that there was no title in the plaintiff ought to have dismissed the
other reliefs sought by the plaintiff.
(b) The learned judge misdirected himself on the law as to the nature and quality of the interest of a
purchaser before completion of a contract for the sale of land.
(c) The learned judge erred in law in holding that there was a valid contract which was capable of
specific performance when the contract between the plaintiff and the co-defendant’s predecessor in
title was void for uncertainty.”

The sum total of these grounds was that the precise land, the subject-matter of the sale, had not been
ascertained before the death of Miss Williams and therefore there was no contract of sale which a court of
equity could specifically enforce. As there was no agreement for sale, the respondent could not succeed.
This argument, in my opinion, is contrary to the evidence. Before 1941 when the co-defendant married
Miss Williams, the full purchase price had been paid and the vendor herself had issued a receipt signed by
her as follows:
“Received from Reverend J. R. C. Yalley the sum of ten pounds (£10) being balance in settlement of the
 purchase price of a plot of land from me situate at Aboom, Cape Coast, purchase price £40; Deed of
conveyance to follow. Dated Cape Coast this 2nd day of November, 1940.
(Sgd.) Wilhemina Williams.”

This is writing which satisfies all the requirements of the Statute of Frauds, 1677 (29 Cha. 2, c. 3), was
signed by no one but by the co-defendant’s own predecessor in title.
Moreover, the co-defendant in his letter of 20 July 1954 written from Cambridge and addressed to the
plaintiff stated as follows:
“Your letter to Mr. Abaidoo seeking help in obtaining an affidavit from me in respect of the Aboom land
matter has been sent to me . . .
I can outline here what I know of the affair because that will be the substance of my affidavit.
(1) I know that there was an agreement by my late wife to sell some land at Aboom to you.
(2) I was once asked by her to bring you a message to the effect that the transaction would be all right and
that you should not worry.

[p.262] of [1976] 2 GLR 258

(3) I understand that the purpose of the purchase was to enable you and your husband to build a house at
Cape Coast, to occupy in your interest, etc,. . . .
I will carry out your request for an affidavit as soon as I can possibly do so.
(Sgd.) K. A. Taylor.”

In view of these two pieces of evidence, it is not open to the co-defendant to argue that there was no
agreement to sell a plot of land to the plaintiff. The receipt from the deceased wife clearly stated
“conveyance to follow.” What would have the conveyance achieved? The formal execution of the deed of
conveyance was to have passed the legal estate in the land to the plaintiff but this did not happen through
no fault of the plaintiff. The vendor had died and there was litigation over her estate. In the circumstances
prevailing at the time, the plaintiff could not call upon any person to execute the deed. However, she was
in effective possession and could only rely on her equitable title. Notwithstanding her possession and her
equitable title which could be converted into a legal estate, if she had chosen to go to a court of equity for
specific performance, the co-defendant, fully aware of her vested rights, commenced to build on the land.
The reason is not difficult to find. The absence of a deed of conveyance was construed by the
co-defendant as an uninhibited licence to commit trespass. The co-defendant’s learned counsel has in this
court submitted that as the plaintiff had only an equitable title, she could not sue in trespass. The
co-defendant’s learned counsel has in this court submitted that as the plaintiff had only an equitable title,
she could not sue in trespass and claim damages in law. The plaintiff’s learned counsel in answer
submitted that the plaintiff as an equitable owner in possession can maintain an action to preserve her
possession. It seems to me the argument advanced by learned counsel for the co-defendant could have
been unassailable if he had advanced it in England before the Judicature Acts of 1873—1875 had been
passed. Before then there were separate courts of common law and of equity. With the passing of those
Acts, each court had jurisdiction to hear cases and make orders formerly the preserves of either the courts
of common law or the courts of equity. Law and equity were not fused as such, but it was the
administration of law and equity which was merged. This point is succinctly stated by Megarry and Wade
in their Law of Real Property (3rd ed.) at p. 1001 as follows:
“Today, an equitable owner also is entitled to possession can bring actions to assert his title and recover land
in the same way as a legal owner. Before the Judicature Acts, 1873 —1875, an action at law for the recovery
of land would fail if only an equitable title could be shown; but since the jurisdictions in law and equity have
been amalgamated an equitable title is fully recognised in any court.”
Thus in General Finance, Mortgage and Discount Co. v. Liberator Permanent Benefit Building Society
(1878) 10 Ch.D. 15 at p. 24, Jessel M.R. clarified the new jurisdiction as follows:
“jurisdiction in equity and common law is now vested in every Court of Justice, so that no action for
ejectment or, as it is now called, an

[p.263] of [1976] 2 GLR 258

action for the recovery of land, can be defeated for the want of the legal estate where the Plaintiff has the title
to the possession.”

Notwithstanding the vicissitudes of the courts in Ghana since they were established about a century ago,
no one will venture to suggest that throughout this period separate courts have administered the common
law and equity in Ghana. It follows that the plaintiff as an equitable owner in possession can maintain an
action in trespass at common law in any court of law in Ghana.
The next point is, to what extent is her equitable title binding? The point is dealt with in Halsbury’s Laws
of England (3rd ed.), Vol. 14, pp. 539—540 at para. 1011 as follows:
“When there is an existing equitable interest in property, and an interest is subsequently created in favour of
a purchaser for value without notice of the earlier interest, and that purchaser either gets in the legal estate at
the time of his purchase, or, in certain circumstances, after his purchase, his possession of the legal estate
gives him priority over the earlier equitable owner.”

Megar and Wade in their Law of Real Property (3rd ed.) at p. 119 sum up the point in the following
cardinal maxim: “Legal rights are good against all the world; equitable rights are good against all persons
except a bona fide purchaser of a legal estate for value without notice, and those claiming under such a
purchaser.” So fundamental is this maxim to the law of real property that Lord Henley L.C. in Stanhope
v. Earl Verney (1761) 2 Eden 81 at p. 85 described it as “the polar star of equity”; and James L.J. in
Pilcher v. Rawlins (1872) 7 Ch.App. 259 at p. 269 observed that the plea of a purchaser of legal estate for
value without notice is “an absolute, unqualified, unanswerable defence” against the claims of any prior
equitable owner. It seems to me that if the co-defendant is bent upon defeating the claim of the plaintiff,
then he must prove that he is a bona fide purchaser for value without notice and as such the onus lies on
him: see Re Nisbet and Potts’ Contract [1906] 1 Ch. 386. The evidence clearly shows that the
co-defendant was not a purchaser for value without notice. He entered the land not because his marriage
to Miss Williams was the consideration for any purchase. He came by the land because his wife had died
and the court had granted him letters of administration to administer her estate. The grant of letters of
administration did not convert him into a purchaser for value without notice. Indeed he was a mere
volunteer because he had given no consideration of value. As personal representative of his late wife, he
could only enforce rights which his late wife had vis-a-vis the respondent, and no more. But the evidence
is beyond doubt that his late wife did sell the land to the plaintiff who paid the full purchase price to the
vendor during her lifetime. The vendor undertook to execute a conveyance in due course but she did not.
If the plaintiff had sued the late wife for specific performance, she could have succeeded without much
difficulty because no court of conscience would have allowed the late wife to resile from the contract of
sale. It follows that the only

[p.264] of [1976] 2 GLR 258

legal defences which the co-defendant could plead against the plaintiff are those which could have availed
his predecessor in title. But did the predecessor in title have any? Before the death of Miss Wilhemina
Williams the legal estate was vested in her but she failed to transfer it to the plaintiff. Upon whom did the
legal estate devolve? At the trial, the co-defendant did not give evidence but his younger brother Kwesi
Kowur Taylor represented him and gave evidence as follows:
“The land in dispute is owned by the co-defendant. The co-defendant told me that he inherited same through
his deceased wife. The late Wilhemina Williams got married to the co-defendant and became wife of the
co-defendant. The marriage was on 16 January 1941, under the Ordinance. Twelve days after the marriage
Mrs. Taylor died. I know that the co-defendant was the person who took letters of administration in respect
of his wife’s estate . . . I know that the co-defendant inherited land and buildings at Aboom Wells from his
late wife. I know that the lands inherited by the co-defendant include the one in dispute. I know that the
co-defendant sold some of the lands he inherited. I know that portions of the land the co-defendant inherited
are still there.”

Before 7 June 1961 when the Administration of Estates Act, 1961 (Act 63), came into force, the High
Court had no power to grant letters of administration to cover the real property of a deceased person.
Letters were granted in respect of the personal or movable property only. Thus in Asuah v. Egyirwah
(1954) 14 W.A.C.A. 421 at p. 422 the West African Court of Appeal observed as follows:
“Although we have not the complete record before us, both counsel admit that it was an administration suit
and was conducted on that footing. Such suits in the Gold Coast are confined to the personal estate of the
deceased person and cannot deal with real estate or any interest in real estate.”

This was because letters were granted in respect of personalty only. It follows that when the co-defendant
was granted letters of administration on 21 November 1947, the real property left by his wife did not
devolve on him as personal representative because the court could not have granted him letters to cover
the realty. The co-defendant could only inherit by virtue of the provisions of section 48 of the Marriage
Ordinance, Cap. 127 (1951 Rev.), and it was incumbent upon him to demonstrate that in accordance with
the provisions of that section, the whole estate was shared and he took two-thirds as the surviving
husband and the deceased wife’s family took one-third; and that the lands apportioned to him included the
land in dispute. There was no evidence as to how he inherited the lands. The letters of administration
granted him in 1947 did not vest in him title to the real estate of his deceased wife, and he could not rely
solely on the letters of administration.
I shall now deal with the judgment in the case of Mrs. Nancy Yalley v. J.E. P. Brown dated 10 September
1955, and delivered by Acolatse J. in

[p.265] of [1976] 2 GLR 258

the High Court, Cape Coast. This judgment awarded the plaintiff in this appeal damages for trespass
against one J. E. P. Brown. The two following paragraphs in that judgment contain specific findings
which clearly estop the co-defendant:
“The plaintiff-appellant’s claim to the land was not challenged by the personal representatives of the late
Mrs. Taylor nor did the respondent’s vendor set up any adverse title against the appellant herein. In my
opinion it was not for the respondent to challenge the appellant’s title since he became a stranger to the land
in dispute as he has no title or interest through his vendor to stand upon.
The appellant on the face of the evidence has always been in possession of the land since the making of
exhibit D in 1940. She has the possessory right and interest in the land in dispute. She lost no time in
asserting her possessory interest by removing the pillars set up on the land by the respondent. She had an
equitable interest in the land and was in possession of the land as against the defendant.”

The co-defendant knew of this litigation in view of the letter which he wrote from Cambridge. His
lawyer, the late Mr. Abaidoo, gave evidence in that case. These two factors in my opinion clearly estop
the co-defendant from saying that he did not know that the plaintiff was in lawful possession of the land
in dispute. This is a remarkable example of how persons who claim to be successors in title can take
advantage of the absence of a formal deed of conveyance to defeat the legitimate interests of purchasers
who, beyond doubt have paid full consideration to the predecessors in title and have entered into
possession. It seems to me that in such cases the court should don on the mantle of the original deceased
vendors and proclaim the validity of the grants, because if the ghosts of the original vendors could speak
in court they would confirm the sale. I would uphold the judgment of the court below in favour of the
respondent and dismiss the appeal.

JUDGMENT OF JIAGGE J.A.

I have had the privilege of reading the judgment of Archer J.A. and I agree that the appeal should be
dismissed.
Mrs. Taylor, the wife of the co-defendant-appellant before her marriage entered an agreement with the
plaintiff for the sale of land at Aboom Wells, Cape Coast. The plaintiff paid the purchase price of the land
by instalments and on the receipt for the last payment Mrs. Taylor wrote:
“Received from Rev. J. R. C. Yalley the sum of ten pounds (£10) being balance in settlement of the purchase
price of a plot of land from me situate at Aboom, Cape Coast, purchase price £40; Deed of conveyance to
follow. Dated at Cape Coast this 2nd day of November, 1940.
(Sgd.) Wilhelmina Williams”

(That was Mrs. Taylor’s maiden name). The full purchase price was paid by the plaintiff to Mrs. Taylor
before her marriage to the co-defendant

[p.266] of [1976] 2 GLR 258

in 1941, and she indicated a clear intention to execute a deed of conveyance in favour of the plaintiff.
Mrs. Taylor died about a fortnight after her marriage but had not at that time executed a conveyance of
the land purchased by the plaintiff to her. The position immediately before her death therefore was that
she had bound herself by a contract to sell land to the plaintiff and had received full payment for the land.
She died still in possession of the legal title. In my view, a constructive trust arises and equity considers
Mrs. Taylor immediately before her death as holding the legal title for the plaintiff.
Soon after the death of Mrs. Taylor, the plaintiff went to see the solicitor who acted for Mrs. Taylor
during her life, for her conveyance. He explained to her that until a successor was appointed nothing
could be done. He, however, advised her to go into possession of the land to protect her interest. The
plaintiff thereafter took possession of the land and fixed her pillars on it.
Following the death of Mrs. Taylor, there was protracted litigation about her estate and the eventual
outcome was that judgment was given in favour of the co-defendant and he was granted letters of
administration in respect of the personal estate of the deceased.
However, by virtue of section 48 of the Marriage Ordinance, Cap. 127 (1951 Rev.), the real estate of Mrs.
Taylor vested in the co-defendant who inherited her. The issue then in relation to the land in dispute was
the type of estate that vested in the co-defendant after Mrs. Taylor’s death.
In my view, the estate that vested in the co-defendant in relation to the land in dispute was the estate held
by Mrs. Taylor immediately before her death. An estate that was the subject of an agreement for sale and
for which the full purchase price had been paid as evidenced in her receipt in which she also promised to
execute a conveyance to the plaintiff. The legal title that vested in the co-defendant was therefore a legal
title burdened heavily by the equitable interests of the plaintiff.
On the other hand, the plaintiff, ever since she took possession of the land after Mrs. Taylor’s death,
successfully asserted her rights and defended her interests against all trespassers. In one case, she even
solicited the help of the co-defendant in support of her claim. The co-defendant admitted that his wife had
sold land at Aboom, Cape Coast to the plaintiff.
Some years later, the plaintiff found the defendants preparing to build on the land and took action against
them claiming title to the land, damages for trespass and an injunction. The co-defendant was joined. The
fact that the co-defendant had the legal title complicated the issue and the trial judge was not able to grant
the title claimed. He, however, gave judgment in favour of the plaintiff that there was a valid contract for
the sale of land.
One of the grounds of appeal argued before this court was that there was no valid contract of sale between
Mrs. Taylor, the co-defendant’s predecessor and the plaintiff and that if there was such a contract it was
void for uncertainty. I do not find much merit in the argument in support of the submission that although
the co-defendant admitted that the plaintiff purchased a certain piece of land from Mrs. Taylor at Aboom,

[p.267] of [1976] 2 GLR 258

Cape Coast, he did not admit it was the land in dispute. Nowhere in the record of proceedings was there
any evidence show that the co-defendant had any personal knowledge of the plot of land sold by the late
Mrs. Taylor to the plaintiff. There was no evidence that the co-defendant knew the size, the situation,
location the boundary owners or any of the natural land marks on the land sold by his wife to the plaintiff.
From the evidence, it would appear that those who had personal knowledge of the land sold to the
plaintiff were Mrs. Taylor herself and her solicitors, the plaintiff and her husband. At the time
negotiations for the purchase of the land were concluded and the full purchase price paid, Mrs. Taylor
was Miss Williams and not married to the co-defendant. The marriage itself lasted only a fortnight when
Mrs. Taylor died.
As stated earlier in this judgment, the plaintiff went into possession acting on the advice of one of the two
solicitors who acted for Mrs, Taylor during her life. The plaintiff was never at any time challenged for
taking possession of the wrong piece of land. There is nothing on record to show that the plaintiff or her
husband who paid the purchase price on her behalf were ever mistaken about the identity of the land they
purchased.
The co-defendant knew of, at least, one action taken by the plaintiff to protect her interest. He did not
challenge her on the identity of the land she purchased. I am satisfied that there was no uncertainty
whatever about the identity of the land, and that the contract of sale was valid.
I sympathise with the view expressed by Sowah J.A. that the plaintiff could have brought the action in a
different form. Be that as it may, the co-defendant being vested with the estate held by Mrs. Taylor
immediately before her death, was vested with the estate of a vendor who was bound by a specifically
enforceable contract for the immediate sale of property and was in a sense a trustee of the land for the
purchaser.
In my view an oral contract for sale of land coupled with an admission by the vendor in writing that the
full purchase price had been paid and a promise from the vendor; also in writing, to execute a conveyance
in favour of the purchaser, creates a constructive trust and equity considers the vendor until the
conveyance is executed, as holding the legal title for the purchaser. Consequently the vendor cannot deal
with the legal title in a way detrimental to the interests of the purchaser.
The estate that devolved on the co-defendant after the death of his wife was that of a legal estate held in
constructive trust for the plaintiff. In the interest of justice, the court must prevent the co-defendant, a
constructive trustee, from taking any action that deprives the plaintiff of possession of the land in dispute.
For these reasons, I agree that the decision of the court below giving judgment in favour of the plaintiff
should not be disturbed and I shall dismiss the appeal accordingly.

JUDGMENT OF SOWAH J.A.

I have had the privilege of reading the majority judgments and would have been exceedingly glad if I had
persuaded myself to cast my vote in favour of the plaintiff-respondent as my Sympathies are

[p.268] of [1976] 2 GLR 258

all with her. Needless to add, that it is with reluctance that on principie I had to part ways with the
majority.
It is eminently desirable that the facts are correctly ascertained for the proper application of the law in this
matter and they are: that about 1940 Miss Awoonor Williams, as she then was, agreed to sell a plot of
land to the husband at Aboom Wells for the sum of £40, it appears that the purchase price was paid by
instalments of various sums. The agreement to sell and payment, can be gleaned from the correspondence
between the father of Miss Awoonor Williams and the husband. In 1941 Miss Awoonor Williams married
the appellant under the Marriage Ordinance of the then Gold Coast but died shortly after child birth.
At Mrs. Taylor’s death, she had neither executed a conveyance in favour of the respondent or her husband
nor had she placed her in possession. There was also not the slightest evidence that she intended either to
sell the whole of her land at Aboom Wells which from the description in the writ appeared to be a very
large piece of urban land or a portion thereof. But even conceding that the whole property was intended to
pass, the facts still remain that at the date of her untimely death, she had both the legal estate and
possession and if Miss Awoonor Williams then Mrs. Taylor had been untrue to her obligations and had
refused to execute a conveyance the respondent could not have taken possession of the land without the
aid of judicial power. If the respondent did, she would have been a trespasser. The only remedy that could
have availed her was an action in equity for specific performance.
Upon the death of the appellant’s wife there ensued long litigation between him and the trustees of an
alleged settlement by Mrs. Taylor whereby upon her death the whole of the estate became settled upon
certain trusts for her father. In the event the settlement was set aside: vide Kobina Arba Taylor v. W.
Ward Brew (1942) 8 W.A.C.A. 201 where the court stated at p. 205:
“These respective rights of succession are based mainly on section 48 of the Marriage Ordinance (Cap. 105),
the material part of which reads as follows:—’Where any person who is subject to native law or custom
contracts a marriage, whether within or without the Gold Coast, in accordance with the provisions of this
Ordinance or of any other enactment relating to marriage, or has contracted a marriage prior to the passing of
this Ordinance which marriage is validated hereby, and such person dies intestate on or after the 15th day of
February, 1909, leaving a widow or husband or any issue of such marriage; And also where any person who
is issue of any such marriage dies intestate on or after the said 15th day of February, 1909, the personal
property of such intestate, and also any real property of which the said intestate might have disposed by will,
shall be distributed or descend in manner following, viz:—Two-thirds in accordance with the provisions of
the law of England relating to the distribution of the personal estates of intestates in force on the 19th

[p.269] of [1976] 2 GLR 258

day of November, 1884, any native law or custom to the contrary notwithstanding; and one-third in
accordance with the provisions of the native customary law which would have obtained if such person had
not been married under this Ordinance:’ These rights were very clearly stated by respondent’s counsel.
Appellants’ counsel was unable when asked to give any reasoned criticism of the respondent’s counsel’s
statement which is a correct statement of the position under the local law. That statement is as follows: (a)
Apart from the Trust Deed, the third defendant would not have any right of succession at all, the property
 going as to two-thirds to the plaintiff and as to the remaining third under native custom to the settler’s
mother’s family. (b) Under the Trust Deed, the third defendant would take the whole property, and neither
the plaintiff nor any of the settler’s relatives on the female side would get anything.
It is clear therefore that under this Trust Deed the third defendant does get in the event which has occurred a
very considerable personal pecuniary benefit for himself, namely, the whole of an estate which on the
evidence amounts to at least £12,000.”

It does appear that soon after the litigation the appellant left for the United Kingdom to pursue medical
studies and was away for a very long period; certainly he was out of the country from 1942 to 1954. The
affidavits exhibited in this litigation indicate that at the commencement of this litigation he was still out of
the country.
During his absence the respondent entered upon the land and was able to resist others from so doing and
this is typified in the case between herself and one J. E. P. Brown. In my view the Brown case illustrates
the trite saying that possession is nine points of the law. The Brown case rested on the principle that a
person in possession can resist all contenders to his possession except the true owner.
It is said that the appellant was aware of this case and the inference apparently being drawn was that he
stood by and did nothing. But the affidavit which is cited in the majority judgment underscores these
points, namely, (a) that he admits there was an agreement to sell a certain piece of land at Aboom Wells;
(b) at no time did he admit that the lady was placed in possession.
In any case it was the respondent who was seeking his assistance to establish her claim against J. E. P.
Brown and in the affidavit he disclosed what he knew to be the true position. It is difficult to envisage
how a person living and residing hundreds of miles away from the scene of these events could be said to
be standing by whilst others fought his battle. In this connection I will refer to the case of Nettey v.
Odjidja [1959] G.L.R. 261, C.A. and particularly to the following passage at p. 268:
“The case of Marbell v. Akwei (14 W.A.C.A. 143) has in our opinion no application to the present case. The
appellant in that case stood by whilst someone was disputing a title which he, the appellant,

[p.270] of [1976] 2 GLR 258

had conveyed. The possessor of that title defended to uphold it, and lost, and it was held that the appellant,
who had stood by, must be bound by such decision. He had ‘stood by to see his battle fought by somebody
else in the same interest.’ The words ‘n the same interest’ are of importance. It appears from the judgment of
their Lordships in the Privy Council in the case of Ofori Atta II & anor. v. Bonsra II & anor. ([1958] A.C.
95) that the test to be applied in deciding whether the interests are the same is ‘whether the matter to be
determined in the present action was the same as the matter determined in the former action?’ Applying this
test, it seems to us clear that neither Armarh nor Nelson was defending any interest of the appellant or her
predecessors, and that therefore the reasoning of Marbell v. Akwei cannot here be applied.”

Brown was neither defending the appellant’s interest, nor claiming through him. In my view he is not
estopped by exhibit 1.
For a correct appraisal of these matters there must be a relation back to facts and events at the date of the
demise of Mrs. Taylor. To summarise them: firstly an agreement for sale of a piece of land at Aboom
Wells; secondly payment of the purchase price and thirdly the legal estate was vested in Mrs. Taylor and
on her death, devolved upon her successors as already outlined above.
The issue therefore is, could the respondent obtain the following reliefs against Mrs. Taylor or her
successors at law on their failure to convey title to her?
“(a) A declaration of her title to all that piece or parcel of land situate lying and being at Aboom Wells
Road, Cape Coast and bounded on the North by property of Indarku (sic) and Fanny Turkson
 measuring 180 feet more or less on the South by J. M. Sarbah’s land measuring 55 feet more or less
on the East by W. E. P. Essuman Gwira’s property measuring 220 feet more or less and on the West
by Aboom Wells Road measuring 220 feet more or less.
(b) N¢200.00 damages for trespass to the said land.
(c) Perpetual injunction restraining the defendants their agents, servants and workmen from trespassing
upon the said land.
(d) Recovery of possession of the said land.”

Before embarking upon an examination of her claims I will preface it with the following pronouncement
from Kponuglo v. Kodadja (1933) 2 W.A.C.A. at p. 24, P.C.:
“The respondent’s claim being one of damages for trespass, and for an injunction against further trespass, it
follows that he has put his title in issue. His claim postulates, in their Lordships’ opinion, that he is either the
owner of Bunya land, or has had, prior to the trespass complained of, exclusive possession of it.”

[p.271] of [1976] 2 GLR 258

In this case the answer of the learned trial judge was quite clear: he was unable to pronounce the
declaration of title sought; the effect is a dismissal of that claim. The respondent was unable to show that
“title to the disputed land is in her” and there has been no appeal against the learned judge’s refusal to
grant that declaration. That the learned judge was right is beyond dispute, but in my view he should have
proceeded further to dismiss the whole of the claim. For in this country there are only two modes of
transferring absolute title in land. Legal title to land can be transferred by the customary mode of
conveyancing that is by the performance of the guaha custom.
“In order to conclude a contract for the sale of land in native customary law certain ceremonies have to be
performed before ownership in the land can be transferred to a purchaser. That custom is known as the
Guaha custom.”

Per Korsah C.J. in Tei Angmor & Co. v. Yiadom III [1959] G.L.R. 157 at p. 161, C.A. The
correspondence however disclosed that the parties intended their rights and obligations to be governed by
the common law; therefore the only mode by which she could obtain the legal title must be by a
conveyance drawn in proper form. Perhaps it is only necessary to refer to the interesting case of British
Bata Shoe Co., Ltd. v. Roura & Forgas Ltd. [1964] G.L.R. 190, S.C. to highlight the importance of proper
form.
The issue whether the remedies available to an owner in equity were identical with those of a legal owner
was also discussed in the Forgas case. Adumua-Bossman J.S.C. having adopted with approval
pronouncements by Cotton and Lindley L.JJ. in Joseph v. Lyons (1884) 15 Q.R.D. 280, C.A. to the effect
that it was not intended that legal and equitable rights be treated as identical, continued at p. 225:
“Those pronouncements of the learned Lord Justices in that case were made with regard to the true effect or
interpretation of section 24 of the Judicature Act, 1873, the terms whereof appear to be virtually the same as,
or at least similar to, those of sub-section (1) of section 17 of our local Interpretation Act, 1960, providing, in
substance, that the common law of Ghana to be administered by the courts shall consist of the rules known as
the common law and the rules known as the doctrines of equity. Moreover they were made in answer to a
contention identical with that put forward by the learned counsel for the respondents in the instant case, and
might have been specially directed towards answering or meeting the contention in this case, so extremely
apt and appropriate they seem to be. It appears therefore to be necessary only to add that what learned
counsel has described as ‘incorporation’ seems to be no more than a bringing together, a collocation, under
one heading of the three principal sets of rules of law in force within the jurisdiction, which collocation,
however, leaves the differences and distinctions between them completely unaffected.”
[p.272] of [1976] 2 GLR 258

The next question is whether the respondent could, having failed in her bid for title, obtain the other
remedies, namely, recovery of possession, injunction and damages? I think not.
At all material time, the legal estate was vested in Mrs. Taylor deceased and her successors and a person
claiming title to Aboom Wells must necessarily claim through them. At no time was the respondent
granted or put in possession. True, she could maintain her illegal possession against all the world except
the true owners and this is what she appeared to have done and, no doubt, this is why she lost her claim
for title against the true owners. It is not being argued that if Mrs. Taylor before her death had refused to
execute a conveyance in respondent’s favour, she could maintain an action of the nature now before this
court; if she could not, by the same token her action against her successors should fail, unless of course
her successors had taken further steps, for example placing her in possession. In my view the only remedy
open to the respondent was a claim for the equitable relief of specific performance which has not been
asked for.
On the issue whether an owner in equity can claim an injunction I will refer to a passage in Performing
Right Society, Ltd. v. London Theatre of Varieties Ltd. [1924] A.C. 1 at pp. 13—14, H.L. and adopt it:
“But secondly, it was strenuously argued that apart from the statute the society, although equitable owners
only of the copyright, could sue for a perpetual injunction without adding the legal owners either as plaintiffs
or defendants; and counsel for the appellants went so far as to contend that since the fusion of law and equity
by the Judicature Acts an equitable owner of property can in every case sue for and obtain a perpetual
injunction for the protection of such property without joining the legal owner as a party. I am unable to take
that view. That an equitable owner may commence proceedings alone, and may obtain interim protection in
the form of an interlocutory injunction, is not in doubt; but it was always the rule of the Court of Chancery,
and is, I think, the rule of the Supreme Court, that, in general, when a plaintiff has only an equitable right in
the thing demanded, the person having the legal right to demand it must in due course be made a party to the
action: Daniell’s Chancery Practice, 7th ed., vol. i., p. 172. If this were not so, a defendant after defeating the
claim of an equitable claimant might have to resist like proceedings by the legal owner, or by persons
claiming under him as assignees for value without notice of any prior equity, and proceedings might be
indefinitely and oppressively multiplied.”

I am of the opinion that the lady’s writ is incompetent to maintain the claims she asks for. I will dismiss
her claim with liberty to bring the appropriate action if so advised.

DECISION
Appeal dismissed.
J.D.