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]
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
