CHIEF LANDS OFFICER v. OPOKU
[HIGH COURT, ACCRA]
DATE: 17TH JULY, 1962
COUNSEL
Quist for the plaintiff.
K.G. Osei-Bonsu for N. Y. B. Adade for the defendant.
JUDGMENT OF DJABANOR J.
By his statement of claim filed on the 30th September, 1961, (writ issued on the 9th August 1961) the
plaintiff claimed as follows:
“(1) The plaintiff is entitled to the possession of the plot of land and premises known as No. 22 Block
VIII, North Zongo, Kumasi, now in occupation of the defendant Joseph Opoku or his sub-tenants.
(2) The defendant entered into an undertaking on the 4th July, 1956, to develop the said plot by
building a main residential house on it within two years from that date and to pay on the 1st day
of April in each year a rent of £G18 5s. per annum.
(3) The defendant having failed to comply with the terms of the above mentioned undertaking the
said Plot No. 22 Block VIII North Zongo was lawfully and duly re-entered upon on behalf of the
plaintiff with the intent of determining the said undertaking on the 24th day of July, 1959.
(4) After the said re-entry the said Joseph Opoku the defendant wrongfully went into occupation and is still in occupation thereof.
And the plaintiff now claims:
(1) Possession of the said premises.
(2) A declaration that the defendant has no interest in the said plot.”
In his defence the defendant admitted that he entered into an undertaking on the 4th July, 1956, as
stated in paragraph (2) of the plaintiff’s statement of claim but denied that the or plaintiff is entitled to
the possession of the plot. The plot has now been built upon.
The plaintiff claims to be entitled to the possession of the plot on two main grounds; first that the
defendant failed to pay the annual rent of £G18 5s. reserved, and secondly that the defendant in
breach of the covenant in the undertaking failed to complete the building on the plot within two years
from the 4th July, 1956.
[p.60] of [1962] 2 GLR 58
The written undertaking, the breach of which is the subject of this action had been lost, but by consent
a similar undertaking, made between the plaintiff’s predecessors in title and another party was
tendered.
As I understand it the plaintiff’s case is that in breach of paragraph (2) of the undertaking the
defendant failed to complete a building on the plot within two years from the 4th July, 1956, and that
therefore the plaintiff in accordance with paragraph (7) of the said undertaking re-entered the land and
thus determined the tenancy. The defendant’s contention is that the plaintiff has not re-entered, and
that even if he has, he has done so wrongfully, or else the plaintiff should not be allowed to re-enter.
Paragraphs (1) and (2) of the undertaking read as follows:
“(1) That I shall use the said plot for the purpose approved by the Development Permit No. 603 dated 23rd day of June, 1948, issued by the Kumasi Planning Committee.
(2) That I shall within one year from the date hereof commence to erect and within two years
complete buildings on the said plot such buildings to be erected in accordance with plans and
specifications to be approved by the Kumasi Town Council on behalf of the Asantehene.”
It is to be observed that the plot was to be used for the purpose approved by the permit granted by the
Kumasi Planning Committee on a certain date.
In the absence of the defendant’s own undertaking I can only supply this date (i.e. the date of the
permit to develop) from exhibit 4. From this exhibit the permit was dated the 14th October, 1958.
That means that the plot must be developed in compliance with the permit issued on the 14th October,
1958. Now according to paragraph 2 the building is to commence within one year and be completed
within two years of the “date hereof.” The plaintiff maintains that the relevant date of commencement
is the 4th July, 1956, the date of the signing of the undertaking, and the defendant contends that it
cannot be other than the date when the permit to develop was granted. It is not known precisely when
the plan was approved as having complied with the building regulations, but in my view it does not
matter. This undertaking was entered into by the defendant. The document is not an agreement. The
defendant is saying to the plaintiff: “In consideration of your permitting me to enter forthwith into
occupation of this plot I undertake that I shall use the said plot for the purpose approved by the
Kumasi Planning Committee.” It seems to me that this is the main undertaking, and that until the
purpose for which the plot is to be used is approved by the appropriate committee the defendant
cannot really say how long it will take him to undertake the development. I think that it is for that
reason that the date of the approval of the purpose for which the land is to be used is inserted in the
undertaking. In the instant case the plot was approved for the purpose of building a dwelling-house
thereon on the 14th October, 1958. I hold, therefore, that the date of commencement and completion
of the dwelling-house must be computed as from the said 14th October, 1958, and not the 4th July,
1956.
The evidence is that the defendant started to make cement blocks on the plot within one year of the
signing of the undertaking. In my view that constituted a commencement of building operations. By
exhibit C5 the defendant reported to the senior valuer, Lands Department,
[p.61] of [1962] 2 GLR 58
that he had completed the building on the plot. That letter was dated the 6th February, 1960. If that is
correct then the defendant had completed the building within two years from 14th October, 1958, and
the purported re-entry on that ground is unlawful and of no effect. If the defendant did not complete
before October 1960 (which I think is the truth), the re-entry taking place as it did before October
1960, is irregular and of no effect.
The plaintiff also purported to have re-entered on the ground of breach of covenant to pay rent. The
law on this is settled. At page 493, para. 378 of Hill and Redman’s Law of Landlord and Tenant (12th
ed.) appears the following:
“The proviso for re-entry on non-payment of rent is regarded in equity as merely a security for the rent,
and accordingly, provided that the lessor and other persons interested can be put in the same position as
before, the lessee is entitled to be relieved against the forfeiture on payment of the rent and any expenses
to which the lessor has been put…. If the lessor has brought an action to recover possession, the lessee or
his assigns may, at any time before trial, pay or tender to the lessor or pay into Court, all the rent in
arrear, together with costs, thereupon all further proceedings are stayed and the lessee or his assigns hold
the demised lands under the lease, without any new lease.”
By section 212 of the Common Law Procedure Act, 1852,1(1) if the tenant pays all the rent in arrear
before trial, the relief against forfeiture will be granted, but this provision applies only when the rent was six months in arrear. Wilberforce, J., so held in the recent case of Standard Pattern Company
Limited v. Ivey.2(2) In this instant case the rent was in arrear for only four months, and in any case
the evidence is that the rent for that whole year was tendered to the plaintiff but he took an amount of
£G5 11s. 7d. for rent from 1st April, 1959 to 20th July, 1959, and rejected the rest. In the
circumstances I will not allow the plaintiff to take possession of the plot on the ground of the breach
of this covenant either.
The plaintiff’s action is accordingly dismissed and there will be judgment for the defendant as he is
still entitled to the possession of the plot. The defendant will have the costs of this action assessed at
40 guineas.
DECISION
Action dismissed.
Judgment for defendant.
N. Y. B. A.
