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ARYEETEY, J.A.:
In this judgment I
would refer to the plaintiff/respondent as simply the
plaintiff, the defendant/appellant and
co-defendants/appellants as defendant and co-defendants
respectively. The plaintiff's claim against the
defendant is for the following reliefs: "(a) Ejection
from the land situate off Avenor comprising site plan
No. ACA 3095822 measuring 40' x 120' x 110' x 100',
which the Ghana Railway Corporation gave to the
plaintiff in [1998] and which land the defendant has
refused to vacate same in spite of repeated demands. (b)
General Damages for trespass". According to his
Statement of Claim the plaintiff is a grantee of the
Ghana Railway Corporation in respect of the land
described in the writ of summons. That land forms part
of land acquired by the Government of Ghana in 1909.
About six months prior to the issue of the writ of
summons the defendant trespassed on the land and put up
wooden structures on it. In spite of warning from the
plaintiff the defendant persisted in his acts of
trespass. The defendants' stand is that he had been in
uninterrupted possession of the land in dispute
twenty-four years prior to the alleged trespass on the
land. His possession followed a grant by the Ashong
Kwaku family of Avenor. He maintains that the wooden
structure complained of was put up by him some four
years before the challenge from the plaintiff, on the
land of which he had been in possession. On the very day
hearing in the case concluded on 6th November 1998 an
application for joinder was filed on behalf of the
co-defendants.
After the court had
granted the application for joinder the co-defendants
filed their defence and counterclaimed for what looked
like declaratory reliefs namely: "(a) That they are the
traditional allodial owners of a larger area of land of
which the portion in dispute forms a part as same is
described by paragraph 2 of Statement of Claim. (b) The
plaintiff is unknown to the co-defendants and has no
right to disturb the defendant who is known to them
customarily". The contention of the co-defendants in
support of the defendants stand is that as allodial
owners of a much wider area of land, which embraced the
land in dispute they approved of the grant of the land
by Ashong-Lamptey family to the defendant. The two
concluding paragraphs of the judgment of the court below
read as follows:
"From the totality of
the evidence adduced in court the plaintiff is entitled
to his claim as per the writ of summons. I therefore
make an order that the defendant herein should vacate
forthwith from the plot in dispute and yield up vacant
possession to the plaintiff.
The plaintiff is not
entitled to his claim for general damages since he has
not lost anything as a result of the litigation by the
defendants. Costs of ¢500,000 is however awarded against
the defendant and co-defendants."
Originally only one
Ground of Appeal was filed, namely "The judgment of His
Honour the judge cannot be supported by the plaintiff's
claim with regard to the evidence".
Later twenty Additional
Grounds were filed which are listed below as follows:
"(1) The judgment is
against the weight of the evidence on record.
(2) The court below
failed to bring the analytical mind to the several
conflicting pieces of evidence on record.
(3) The court below
failed to observe the plaintiff's averment of a lease
from the Ghana Railway Corporation from 1988 is not
supported by his own exhibits 'B' and 'C', which recite
leaseholds commencing from 1997 and 1998 respectively.
(4) The court below was
inadvertent to the fact that exhibit 'C' dated 15-9-98
was obtained by the plaintiff POST MOTAM LITEM and as
such had no cogency or evidential value since the writ
was then subsisting as from 10-6-97.
(5) The court failed to
appreciate that the plaintiff's failure to tender a
certified true copy of the alleged state acquisition for
the Ghana Railway to extend of the corporation's right
of use and right to lease was fatal to the success of
the plaintiff's case. The court was left in the state of
uncertainty and conjecture as to the extent of the
Corporation's right or power to devise or sublet the
land concerned.
(6) The court below
failed to advert its mind to the plaintiff's admission
that the object of the Railway Corporation is to run the
Railway business vis-a-vis the plaintiff's own evidence
that he had taken the alleged lease for the different
object of selling LIQUIDFIED GAS.
(7) The trial court
failed to give effect to the plaintiff's admission that
the defendant was in occupation of part of the disputed
land before he purported to acquire a portion from the
Railway Corporation.
(8) The court below
failed to give effect to the [unrefuted] and
[undestroyed] evidence of long possession on record.
(9) The court failed to
carry justice by resolving the several pieces of OATH
AGAINST OATH against the defendant and co-defendant.
(10) The court below
failed to give effect to Article 20 Clauses (5) and (6)
of the 1992 Constitution as well as Articles 267, 164 of
1969 and 190 of [1997] Constitution.
(11) The court below
miscarried justice by merely finding that the plaintiff
is a tenant of the Railway Corporation who are the
owners of the plot' without adverting to the effect of
this finding on plaintiff's locus standi and Railway
laches and acquiescence.
(12) The court below
erred grossly in rejecting the defendant's grantor's
statutory declaration, which was the defendant's
immediate ROOT OF TITLE, which the defendant was obliged
by law to establish (Page 55 of the Record).
(13) The court below
misunderstood the case of the defendant and co-defendant
to the effect that the purported licence to the
plaintiff for gas sales the Corporation diverted from
the Railway business and offended against Article 20
Clauses (5) and (6) of the 1992 Constitution and
wrongfully assumed that the attack was upon the
plaintiff directly instead of upon the Corporation his
purported licensor.
(14) The court below
also misdirected itself by holding that the right of
complaint lay not in the mouth of the defendant and
co-defendant... but only in the corporation.
(15) The court below
erred in finding that it was surprising that the
DEFENDANT failed to join the Railway Corporation to this
action whereas it was incumbent upon the plaintiff to do
so if that was advisable to him. The court put the onus
on the wrong party.
(16) The court below
failed to direct itself to the law that the defendant
has a legal right to direct a counterclaim straight
against the plaintiff who has brought him to court and
not necessarily against a 3rd party not before the
court.
(17) The court below
missed the point about the tradition of the defendant's
root of title when it held that the evidence of the
co-defendant gave was 'anything but convincing to sway
the case in favour of the defendant'.
(18) The court below
misdirected itself in holding the grant to the defendant
ineffective because it was not effectuated as required
by the Conveyancing Decree... whereas prior to the
Decree, it was not obligatory for customary grants to be
documented at all nor evidenced in writing.
(19) The trial court
failed to appreciate that rejecting or dismissing the
plaintiff's claim for general damages for trespass
presupposes that the defendant was properly in
possession of the disputed land and therefore not liable
for the first claim for ejectment either... The trial
court committed a miscarriage of justice by not
dismissing the plaintiff's case totally.
(20) Since the
plaintiff's two-fold claims failed as to the half of it,
the court below failed to do justice by not granting
costs to the defendant and co-defendant".
I would take at one go
the original Ground of Appeal together with Additional
Grounds 1,2,3,4,7,8 and 9. I have elected to pursue that
course on account of the fact that all the grounds of
appeal listed above have something to do with the trial
circuit judge's alleged failure to resolve the issues
raised by the conflicting accounts by the plaintiff and
the defendant relating to the plaintiff's presence on
the land in dispute. According to the plaintiff he came
onto the land in 1988 after he had procured a licence
from the Ghana Railway Corporation, the owners of the
land. The challenge from the defendant is to the effect
that it was he who permitted the plaintiff to be on the
land. The plaintiff tendered in evidence exhibits B and
C, which represent two licences which he procured from
the Ghana Railway Corporation. Exhibit B is dated 1st
March 1997, three months before the writ of summons was
issued. Exhibit C is dated 15th September 1998, which
was after the issue of the writ and therefore would be
of no relevance to the matter before the court as
submitted in defendant's and co-defendants' written
Statement of their case. It is worthy of note that
exhibit B was the only licence procured by the plaintiff
from the Ghana Railway Corporation before the issuance
of the writ of summons. In fact even though the
plaintiff testifies that he obtained permission from the
Ghana Railway Corporation in 1988 to operate his gas
business on the land no licence was produced by him to
indicate that his relationship with the Ghana Railway
Corporation started from a date earlier than 1st March
1997 as represented on exhibit B. In what appears to be
the plaintiff's desperate attempt to convince the court
that his presence on the land in 1988 was as a result of
licence from Ghana Railway Corporation, he gave the
following oral testimony before the court, which is
recorded at page 16 of the record of appeal as follows:
"On 17/2/88 I made a search. [Tendered in evidence and
marked exhibit A.] The Search concluded that the plot
was for Ghana Railway Corporation. I had licence from
Ghana Railway Corporation to operate the land measuring
120' x 110' x 60' x 60' x 40'".
In actual fact the
plaintiff filed the search, exhibit A on 17/2/98, which
was eight months after the filing of the writ of
summons, as depicted by the RECEIVING STAMP of the Lands
Registry which appears at the top of exhibit A. He did
not file the search on 17/2/88 as implied by his sworn
evidence in court. It is very obvious that the reason
why the plaintiff sought to mislead the court into
believing that he filed the search ten years earlier was
his attempt to buttress his contention that it was not
the plaintiff but the Ghana Railway Corporation that
permitted him to be on the land in the first instance.
The plaintiff's assertion that his presence on the land
was at the instance of the Ghana Railway Corporation is
not backed by any written licence from Ghana Railway
Corporation. Also the plaintiff has not led evidence to
establish that he had any form of permission, oral or
documentary from the Ghana Railway Corporation to be on
the land. It means the defendant's stand that it was he
who permitted the plaintiff to be on the land is more
plausible and the learned trial circuit judge should
have ruled on that issue. According to the defendants
oral testimony in court he had been on the land for
twenty-four years without encountering challenge from
any quarter. He denied that the land belonged to Ghana
Railway Corporation and maintained that the Ashong
Family own the land. According to him the plaintiff came
to him and asked for the land. Even though he had
planted hedges around the land he cut the hedges and
gave a portion of the land to the plaintiff.
Another important area,
which the defendant and co-defendant seek to address, is
the capacity of the plaintiff to bring the action
against the defendant in the first place. That brings us
to our consideration of Additional Grounds 11, 15 and 16
respectively namely "(11) The court below miscarried
justice by merely finding that 'the plaintiff is a
tenant of the Railway Corporation who are the owners of
the plot' without adverting to the effect of this
finding on plaintiff's locus standi and Railway laches
and aquiescence. (15) The court below erred in finding
that it was surprising that the DEFENDANT failed to join
the Railway Corporation to this action whereas it was
incumbent upon the plaintiff to do so if that was
advisable to him. The court put the onus on the wrong
party. (16) The court below failed to direct itself to
the law that the defendant has a legal right to direct a
counterclaim straight against the plaintiff who has
brought him to court and not necessarily against a 3rd
party not before the court". The contention of the
defendant's and co-defendants' counsel is to the effect
that being mere licensee the plaintiff is not entitled
to bring the action against the defendant in the first
place.
In the case of Heap v.
Hartley reported in 42 C.D. 461, C.A. it was held that
an exclusive licence is a leave to do a thing, and a
contract not to allow someone else to do the thing; but,
unless coupled with a grant, it confers no more than any
other licence any interest or property in the thing, and
the licensee has no title to sue in his own name. In
that case Fry, L.J. said at page 470 of the report:
"An exclusive license
is only a license in one sense; that is to say, the true
nature of an exclusive license is this. It is a leave to
do a thing, and a contract not to give leave to anybody
else to do the same thing. But it confers like any other
license, no interest or property, but the licence pure
and simple, and by itself, never conveys an interest in
property. It only enables a person to do lawfully what
he could not otherwise do, except unlawfully. I think,
therefore, that an exclusive licensee has no title
whatsoever to sue".
In the instant case the
plaintiff relies on licence from the Ghana Railway
Corporation in pursuit of his claim for ejectment of the
defendant from the land in dispute and secondly for
damages for trespass. Even though as a licensee the
plaintiff might not be in the position to purse a claim
in furtherance of the interests of his licensor, Ghana
Railway Corporation, would he not be entitled to pursue
a claim in respect of his own interest? According to the
terms of the licence the plaintiff is entitled to take
possession of the land, which is described in the
attached site plan. That means provided he takes
possession of the land described in the writ of summons
he ought to be in the position to challenge any
trespasser who invades his rights. To maintain his
action for trespass there is the need for the plaintiff
to establish that he and not the defendant was in
possession at the time of the alleged invasion of his
right. The learned authors B.J. Da Rocha and C.H.K.
Lodoh at page 97 of the second edition of their book,
Ghana Land Law and Conveyances have this to say on
"possession":
"Possession of land
usually means actual physical possession of the land or
the right to immediate possession of the land. For
example, a lessee may be in physical possession of the
land of the lessor but such a lessor has an immediate
right to possession of the leased land when the lease
terminates either by expiry or by the occurrence of an
event expressly provided for in the lease as terminating
it. Possession is of great importance in land law. The
rule of the English common law, which has been
assimilated into the common law of Ghana, is that
possession by itself gives a good title to land against
the whole world except someone having a better legal
right to possession. In Wuta-Ofei v Danquah, the Privy
Council held inter alia that:
'... the possession
which the respondent sought to maintain was against the
appellant who never had any title to the land. Hence the
slightest amount of possession would be sufficient; and
since there was no evidence that the respondent ever
abandoned her possession, which she obtained by virtue
of the 1939 grant and the only reasonable inference from
the evidence is an intention to retain possession, she
had satisfied the test and was entitled to maintain an
action for trespass.'"
After having endorsed
the plaintiff's entitlement to sue for trespass on
condition that he was in possession of the land in
dispute at the time of the alleged trespass, the all
important issue to resolve is whether or not he was
actually in possession of the land in dispute at the
time that the alleged trespass was committed by the
defendant.
As discussed earlier in
this judgment it is not in dispute that the defendant
was already in possession of the land before the
plaintiff's arrival to occupy a portion of it as far
back as 1988. Since the plaintiff's assertion that he
had licence from the Ghana Railway Corporation in 1988
to be on the land has no support from the evidence on
record it is quite safe to prefer the version of the
defendant that it was he who in 1988 permitted the
plaintiff to be on the land. It appears for nine years
or so that the plaintiff and the defendant remained on
the land in peaceful co-existence. It is very obvious
that it was in 1997 when the defendant procured the
licence, exhibit B from Ghana Railway Corporation that
trouble started. There is no indication on record that
prior to the procurement of exhibit B the plaintiff had
obtained any permission from Ghana Railway Corporation
to carry on with his trade on the land. Exhibit B, which
is a letter, is headed "PERMISSION TO OPERATE
TEMPORARILY ON RAILWAY LAND AT OFF AVENOR", followed by
the sentence: "The attached site plan No. ACA 3095 D22
shows by pink verge the site measuring approximately 40'
x 120' x 110' x 60' x 100' being considered on licence
for your temporary use". The letter ends in the
following words:
"The use or occupation
of the site is purely temporary arrangement and does not
confer to licensee any preferential claim to have the
site leased to him or her. If the above terms are
acceptable to you kindly indicate to enable us register
you accordingly". According to the terms exhibit B was
supposed to be a yearly tenancy arrangement and that is
confirmed by exhibit C whose terms are exact
reproduction of exhibit B. Therefore the plaintiff's
testimony to the effect that exhibit B was a renewal of
his first licence, which he obtained in 1988 cannot
represent the true position. If indeed his first licence
were in 1988 he would have had at least eight renewals
of that licence before exhibit B was issued in 1997.
The boundary owners to
the attached plan in exhibit B are not specified and
that is an indication that the plan was prepared without
any reference to the defendant's prior occupation of the
land, which the plaintiff undoubtedly admits. It stands
to reason that since the defendant was already in
possession before the plaintiff obtained the licence
from Ghana Railway Corporation care should have been
taken to ensure that the area demarcated in the plan
attached to exhibit B does not fall within any portion
of the area occupied by the defendant. Since that was
not done it becomes totally impossible to determine
whether or not the area in dispute falls within the area
occupied by the defendant prior to the arrival of the
plaintiff on the land.
The counterclaim of the
co-defendants has to do with ownership of the land in
dispute, which bears no relationships with the
plaintiff's claim. As expressed earlier in this judgment
the plaintiff as licensee would have the capacity to
litigate only in respect of his own interest but not in
respect of ownership of the land in dispute which falls
within the domain of the licensor, Ghana Railway
Corporation. The co-defendants' challenge of the
plaintiff's capacity to sue should be seen as pertinent
only in respect of the interests of Ghana Railway
Corporation. In the same vein their counterclaim, which
constitutes a challenge to the alleged claim of
ownership of the land in dispute by Ghana Railway
Corporation cannot legitimately be addressed to the
plaintiff who as only a licensee admittedly lacks the
capacity to litigate in respect of the interest of Ghana
Railway Corporation.
I quite agree with the
sentiment expressed by the learned circuit judge that
the right thing to do was for the co-defendants to have
joined Ghana Railway Corporation as a party in the case
because that would afford the court the opportunity to
effectively deal with all the issues in the controversy.
As it turned out the absence of Ghana Railway
Corporation as party in the case rendered the whole
exercise of prosecuting the counterclaim of the
co-defendants otiose. On account of this I do not think
it is worthwhile to go into the merits of remaining
grounds of appeal, which have to do with the
counterclaim of co-defendants, which by implication was
wrongly directed at the plaintiff. For the reasons given
in this judgment the appeal succeeds in respect of the
judgment of the court below relating to the plaintiff's
claim. The appeal in that regard is allowed and the
judgment and costs of the court below are set aside. It
is rather strange that even though the learned circuit
judge did not make any pronouncement on the outcome of
the counterclaim of the co-defendants he awarded costs
against them.
In any case the
co-defendants did not make that a ground of appeal.
B. T. ARYEETEY
JUSTICE OF APPEAL
LARTEY, J.A.:
I have had the
privilege of reading the judgment just read and I agree
with it.
F. M. LARTEY
JUSTICE OF APPEAL
PIESARE, J.A.:
I also agree.
E. PIESARE
JUSTICE OF APPEAL
COUNSEL
MR. KWAME AFRIYIE FOR
MR. C.K. AMOAH FOR PLAINTIFF/RESPONDENT
MR. D.A. NII APONSAH
FOR DEFENDANT/APPELLANT AND
CO-DEFENDANTS/APPELLANTS
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