Elias J. Moubarak, Syrian Trader Of Sekondi V. Ayoub Japour, Syrian Trader Of Sekondi (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—possession—mesne profits—demolition—grants under native customary law—Land Registry Ordinance (Cap. 112, Gold Coast).

Facts

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.

Held

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.

Held further, 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.

Appeal of Plaintiff dismissed. Cross-appeal of Defendant allowed. Review order set aside.