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DASI AKAKPO & ANOR. v. BEN JOHNSON & ANOR. 11/11/1999 C.A. 80/98.,

IN THE SUPERIOR COURT OF JUDICATURE

THE COURT OF APPEAL

ACCRA – GHANA

________________________________________

CORAM: BROBBEY, J.A. (PRESIDING)

TWUMASI, J.A.

ARYEETEY, J.A.

CIVIL APPEAL NO. 80/98

11TH NOVEMBER, 1999

DASI AKAKPO& ANOR.

- VERSUS -

BEN JOHNSON & ANO.

_______________________________________________________________________________

 

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.:

 
 

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