JUDGMENT
BROBBEY, J.A.:
At the start of this
litigation, there was only one plaintiff who shall be
referred to hereafter as the respondent or first
respondent. She claimed in the Circuit Court that she
was a sitting tenant on a piece of land at Kantamanto in
Accra. She avered that the land was actually owned by
the father of the 1st appellant. It was he who allowed
his mother to live there. After several years’ stay
there, she learnt that the 1st appellant had leased the
land to the 2nd appellant in 1989. According to her,
the second appellant demolished structures, she and her
husband had erected on the land as well as some of the
wares they saw there. She therefore issued a writ
claiming (a) a declaration that the 1st appellant was
wrong in ejecting him without a court order. (b) a
declaration that 1st appellant could not by-pass him to
lease the same plot given to them by his father.
(c) Damages for
unlawful ejectment.
(d) ¢2.5 Million
damages for destruction of the respondents building.
(e) General damages for
loss of income.
(f) Perpetual
injunction to restrain respondents from demolishing her
buildings.
After the trial
judgment was entered in favour of the
plaintiff/respondent. The appellants then appealed to
this court against that judgment. Initially the
appellants filed one ground of appeal. Later they filed
eight additional grounds of appeal. The appeal was
allowed on 28/10/99. We now proceed to give our reasons
of all the grounds of appeal, the most fundamental ones,
which undermined the judgment of the trial court, were
grounds four and five which read as follows:—
“(4) The learned judge
erred in determining the case under the Rent Act. and
(5) The trial judge
erred in joining the P.W.1 as a co-plaintiff”
The trial judge
proceeded with the entire case on basis that the statute
applicable was the Rent Act (Act.220).
This is borne out by
references in her judgment to the facts that the
respondents were statutory tenants, six months statutory
notice required to be given under Act. 220. to occupants
of business premises, and section 17 (1) (h) of Act.
220.
Act.220, S.1 (2) (b)
states categorically that the Act does not apply to
vacant lands. It provides that:
“1(2) (b) This act
shall not apply to any lease of any premises where such
lease, whether entered into or renewed before, on or
after the date of commencement of this act, was entered
into or renewed as a lease of land upon which there were
no premises at the time of the grant or renewal of the
lease”
In paragraph four of
the statement of claim the respondents themselves
averred that:
“Some time ago the late
Gilbert Johnson, the father of the first dependant
granted a piece of land to the plaintiff at Kantamanto
for the purpose of constructing on it a building for her
business.”
That only bare land was
granted was confirmed by the first respondent and the
second respondent or the PW1. Counsel for the respondent
simply ignored this powerful admission. He did not
comment on it in any way. Since Act.220 was
inapplicable to the instant case, the findings of the
trial judge that six months notice should have been
given under Act. 220 and her further findings of the
trial judge that that the respondents were statutory
tenants were legally un-sustainable. Those findings
were the wrong bases on which to have entered judgment
for the respondents.
Secondly, the husband
of the plaintiff/respondent who testified throughout the
trial as the PW1 was joined as co-plaintiff. The order
was made at the very end of the trial by the judge suo
motu. She invited no arguments from the parties. There
is no doubt that the trial judge had power to order
amendments to be made or parties to be joined at any
stage of the trial until the judgment had been signed.
Where however the parties are before the court, and
especially when counsel represents them, it is wrong
exercise of discretion to peremptorily make this order
suo motu. The position of the PW1 is worse in the
instant case because when he testified he gave no
indication that he wanted the appellant to pay in any
way for whatever they allegedly did to his properties or
the land.
The arguments of
counsel for the respondent in support of the joinder
were that the trial judge was right in joining the PW1
because she wanted to avoid the multiplicity of suits.
Even if that were the motive for the amendment, the way
in which the amendment was effected amounted to
non-compliance with the terms of L.I.1129, Order 15,
r.5(3) which read
“No person shall be
added as a plaintiff without his consent signified in
writing or in such other manner as may be authorised.”
The trial judge ordered
the joinder without the PW1 or his solicitor signifying
his consent in writing.
The trial judge found
out that there was a contract in existence between the
first respondent and the first appellant. She based her
finding on the fact that the plaintiffs were paying rent
monthly and therefore were statutory tenants. She
concluded:
“I find that at the
time the second defendant entered the land the
plaintiffs were statutory tenants on the land. The
plaintiff’s presence on the land I find to be lawful.”
The status of a
statutory tenant comes into being where a tenant under
Act.220 continues occupying a house or business premises
after the expiration of the tenancy. It has already
been explained that Act. 220 does not apply to the facts
of the instant case. The entire basis for which the
trial judge founded her judgment was wrong.
The respondent was the
plaintiff who first went to court and therefore assumed
the onus to prove her case. The fundamental issue in
this case is on what basis the plaintiff made her claim
in court. Unfortunately for her, the basis on which she
went to court differed from the basis on which judgment
was entered for him. The well established law is that a
trial judge should not substitute for a party a case
totally different from that which no party put forward;
See Dam vrs: Addo (1962) 2 GLR.200, S.C. and Bisi vrs:
Tabiri 1984 – 86 2 GLR. 283 CA.
In her writ of summons,
the respondent stated that she sued as a “sitting
tenant”. That was a nebulous expression because that
term could be applied to several tenancies including a
tenant farmer in occupation of land, a tenant at will, a
tenant at sufferance etc. The onus was on the plaintiff
to have established which of these formed the basis of
her action but that she failed to do.
In the judgment the
trial judge attempted to rationalize the basis of the
claim by finding that it was the mother of the plaintiff
who acquired the land from the father of the second
respondent some thirty-five years past. She added that
when the P.W.1 met the plaintiff he too had acquired a
portion of the land. Those points in the judgment did
not answer the basic issue that the exact nature of the
acquisition had to be clearly described since that would
have determined the nature of notice required to be
given before ejecting the plaintiff and the PW1. If they
were lessees, the ejectment could only have been valid
if it was done in the terms of the lease. No lease was
established in this case, let alone how long the
respondent and PW1 were permitted to occupy the land
before they could be asked to quit. If it was a tenancy
under Act.220, statutory notices under Act.220 had to be
complied with in order to make the ejectment valid. It
has already been explained that Act.220 did not apply to
this case. If the plaintiff and the PW1 were tenants at
will or tenants at sufferance, their position would have
been akin to that of licensees. The facts on the record
show that at best the plaintiff and PW1 were licensees.
The facts on the record show that at best the plaintiff
and PW1 were licenses because all that they were able to
prove was that they acquired the land from the father of
the first appellant and continued to pay rent. The
finding of the trial judge that the respondent and PW1
did not oppose the lease of the plot by the first
appellant to the second appellant was correct. But that
finding demonstrated further that the respondent and the
PW1 had no grounds based on a lease or any other
contract to resist the move to eject them.
Their failure to raise
any basis for opposing the ejectment and their
willingness to quit lent support to the view that they
themselves regarded their stay as licensees and the
appellants their licensors. If they were on the land in
any other capacity, that capacity was not proved. The
alleged offer to grant them alternative place, if true,
did not affect their position as licensees. The
appellants being defendants at the trial court had no
onus to prove how the plaintiff or PW1 acquired the
land.
By definition a bare
licensee is a person who, for his own purposes, is
permitted by the occupier of property to go or be upon
that property, so as not to be a trespasser. The bare
licencee has no contractual right to use the land and
the occupier may revoke the license at any time. See
Osborn’s Concise law Dictionary, 8th Ed. P.43. A
similar definition will be found in “Ghana land law and
conveyance” by a Rocha & London”, 1st Ed at p.77 which
reads:
“A license is a
permission given by owner of land or of an interest in
land which allowed the licensee to do certain acts in
relation to the land which would without the permission,
amount to a trespass. A licence strictly speaking, does
that create or confer interest in land. The original
common law was that, except in the case of a license
complied with an interest in land, a licensor may revoke
a licence granted by him.
The definition fits
well with the position of the respondent and the PW1 as
described by themselves in their pleadings and in the
trial court. Since they were licensees, all that was
required of the person in the position of licensor was
that they had to be given reasonable notice to quite the
land. The trial judge found in her judgment that the
respondent and PW1 were given three months notice. This
was supported by the evidence of the respondent and the
PW1. Having regard to this and to the finding of the
trial judge that they paid rents monthly, the
three-month notice was reasonable. The ejectment of the
respondent and PW1 from the land was therefore lawful.
A licensee who will not
quit land voluntarily after being given reasonable
notice may be ejected by reasonable means. The hard
facts in this case are that the properties of the
respondent and the PW1 on the disputed land were
eventually removed from there in order to pave the way
for the occupation of the second appellant. While the
respondent and PW1 maintained that the properties were
carried away by the first appellant, the appellants aver
that it was the respondent and the PW1 who voluntarily
carried their own belongings from the land.
In resolving this
issue, the trial judge failed to consider the most
material evidence, which the parties themselves adduced
before her and that related to the presence or absence
of the respondents during the demolition. In her
evidence in court, the plaintiff said that the
demolition of the structures took place in her absence.
In Exhibit I, written in 1992 when the facts of the case
were more fresh in his memory, the PW1 stated in no
uncertain terms that the demolition took place in his
absence.
He even gave the
impression in that petition, exhibit 1, that the 2nd
appellant himself did not demolish the structure but
rather “motivated people” to do that for him. While
testifying in court, this same PW1 said the demolition
took place in his presence. Even more startling was the
time of the demolition.
In Exhibit 1, the PW1
stated that there were two demolitions and they took
place at intervals of three days. In court he said they
took place at intervals of one year. These are serious
conflicts which should have led the trial judge to
disbelieve the stories of the respondent and the PW1.
The material conflicts confirm the contention of the
appellants that no demolition took place but probably
the PW1 and the respondent voluntarily carted their
structures from the land.
It has already been
explained that the respondent and PW1 were mere licences
who were given reasonable notice to quit. Their
ejectment was therefore lawful because as licences, they
needed no court order to be ejected. The issuance of
six months notice and a court order would have been
relevant if Act.220 were applicable to the instant
case. But, as already explained, this case cannot be
determined under Act.220 since it covered vacant land.
If a person is granted
vacant land even on leasehold basis, the fact that the
lessee develops that land does not prevent the lessor
from entering into another lease with a third party in
respect of the same land. What the lessor can or cannot
do will depend on the terms of the lease. In the
instant case, the respondent and PW1 as well as their
witnesses failed to establish that there was any lease
and what the terms of the lease were. Since the evidence
disclosed that the PW1 and the respondent were licensees
relief (b) failed. That relief sought a declaration
that the appellant could not by pass them to enter into
a lease with the 2nd appellant. Relief (c) which was a
claim for damages too failed because the ejectment of
the respondent and the PW1 were lawful. Damages cannot
obviously be ordered to be paid for a lawful act.
Similarly, there was no
basis for the reliefs in (d) and (e) in the face of the
evidence that it was the respondent and PW1 who
voluntarily carted their structures and belongings from
the land.
The last relief in (f)
also failed since the trail judge found that the
respondent and the PW1 did not oppose the lease of the
land to the 2nd appellants.
It is obvious from this
judgment, the testimonies of the respondent and the PW1
as well as the findings of the trial judge that the
respondent and PW1 have no lawful claims to the disputed
land. Relief one of the counter—claim succeeded and
should have been granted by the trial judge.
No evidence was led by
the appellants not their witnesses on the claim for ¢5
Million for obstructing the 2nd respondent’s building
operations on the land. The evidence was however clear
that 2nd respondent’s building on the land was somehow
obstructed. I would enter judgment for appellant.
Since no monetary value was placed on that, only nominal
damages could be awarded for him. One Hundred Thousand
Cedis will suffice as nominal damages for the 2nd
appellant.
Form the foregoing, the
appellants are entitled to an order of perpetual
injunction against the respondent and the PW1 since by
their own showing and the findings of the trial judge
they do not oppose the lease of the land to the 1st
appellant.
For the foregoing
reasons, the appeal succeeds and is allowed.
ABANKWA: Respondents
say they are not on the disputed land. They live on
part of the land.
DR. BAAKU: I suggest
that the court gives the respondents time to quit
BY COURT: The
respondents are given three months from today to quit
the disputed land.
S.A. BROBBEY
JUSTICE OF APPEAL
TWUMASI, J.A.:
I agree.
JUSTICE OF APPEAL
P.K. TWUMASI
I also agree.
JUSTICE OF APPEAL
ARYEETEY, J.A.: |