HIGH COURT, KUMASI
DATE: 5TH FEBRUARY, 1962
BEFORE: APALOO J.
CASES REFERRED TO
(1) Wheatin v. Maple & Co. [1893] 3 Ch. 48, C.A.
(2) Whaley v. Laing (1857) 2 H. & N. 474; 157 E.R. 196
(3) Hill v. Tupper (1863) 2 H. & C. 121; 8 L.T. 792; 159 E.R. 51
(4) Moreland v. Richardson (1855) 25 L.J. Ch. 883
(5) Hervey v. Smith (1856) 22 Beav. 299; 52 E.R. 1123
(6) Corby v. Hill (1858) 4 C.B. (N.S.) 556; 140 E.R. 1209
(7) Durell v. Pritchard (1865) 1 Ch. App. 244; 13 L.T. 545
(8) Colls v. Home and Colonial Stores Ltd. [1904] A.C. 179, H.L.
NATURE OF PROCEEDINGS
CLAIM for mandatory injunction to demolish premises and for perpetual injunction to restrain defendant from trespassing or interfering with plaintiff’s rights of way and light.
COUNSEL
E. K. Amoah for N. Y. B. Adade for the plaintiff.
S. K. K. Sotomey for the defendant.
F. K. Mensah-Bonsu for the third party.
JUDGMENT OF APALOO J.
By his writ issued out of this court on the 28th of May, 1960, the plaintiff claims against the defendant a mandatory injunction to pull down all that store constructed on the lane between Plots O.T.B.130 and 489 and a perpetual injunction to restrain the defendant and her agents from trespassing or in any manner interfering with the plaintiff’s right of way and light over the said lane.
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The main facts of this case are not in dispute. The plaintiff is the lessee of the premises situate and known as plot No. 130, Old Town Section B, Kumasi. That building is a shop and opens on to Lebanon Street. Adjacent to the plaintiff’s said building, is another building known as plot 489 O.T.B., the title of which is derivatively vested in Mr. A. Chedid. The latter sued jointly with the plaintiff but has since discontinued. Between these two buildings, is a lane which runs from Guggisberg Road to Lebanon Street. By a deed dated the 1st of October, 1938, the Commissioner of Lands acting on behalf of the government of the Gold Coast granted the plaintiff in conjunction with two others exclusive right of way over the said lane. The said deed also granted Philip Bardawil, who is said to be the predecessor in title of the aforesaid A. Chedid, licence to erect gates at Guggisberg Road and Lebanon Street ends of the said lane subject to certain conditions. The licence was said to be revocable by the government at anytime without notice. Mr. A.W. Vanderpuye, who gave evidence on behalf of the Commissioner of Lands testified that that licence is still in force and has not been revoked. That licence was admitted in evidence without objection and marked exhibit A. Mr. Obuobisa, the town planning officer, tendered in evidence a sketch plan of the area showing the lane in dispute. This was admitted in evidence without objection as exhibit 1. With the consent of counsel, I viewed the area and was shown the lane in the presence of the parties and counsel on the 26th of January, 1962.
Sometime about February or March, 1960, the defendant constructed on this lane a four-walled store thus completely blocking the said lane. The plaintiff complains that that building deprived him of the right of way granted to him by the deed exhibit A and also disabled him from opening two windows of his store which open on to the lane. He said he was deprived of right of light. At the request of the town clerk, Mr. J.I. Adubofuor, the health superintendent of the Kumasi Municipal Council, conducted an inspection of the area and submitted a report which was tendered and admitted in evidence as exhibit 3. That report, which substantially confirms the plaintiff’s complaint, said inter alia “This building has cut off air entering into one store at No. O.T.B. 130”. That report also stated that that lane provided an access road to Lebanon Street but that it has now been permanently closed by the said building. I found this to be so at my own inspection of the spot.
The defendant by her defence substantially admits the plaintiff’s claim save that she contends that the windows opening on to the lane have been sealed off for many years. In addition, the defendant says the lane was declared a sanitary lane and thus became vested in the Kumasi Municipal Council by whose authority and consent she constructed the said building. Accordingly, she sought and was on the 7th December, 1960, granted leave to issue third party notice against the Kumasi Municipal Council. Against the council, the defendant claims to be indemnified for any liability that may be found established against her in this action. On being served with the third party notice, the Kumasi Municipal Council entered an appearance and filed a defence in which among other things, it disputed the plaintiff’s claim that he has acquired an easement of light either by immemorial user or by virtue of the Prescription Act, 1832.1(1) With regard to the right of way over the lane in dispute, the third party claims that the control of the lane became vested in itself on behalf of the Crown and that it revoked the plaintiff’s licence to pass and repass over the lane without notice.
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The plaintiff claims that he is entitled by prescription at common law and under the Prescription Act, 1832, to a right of light from windows opening on to the lane. In my judgment, in so far as the plaintiff seeks to say that he has acquired an easement of light by prescription at common law, he must fail on the very simple ground that he could not have done so since his building was erected in 1928 and not in 1189 which is said to be the period of legal memory. A claim under the Prescription Act, 1832, must equally fail because by the proviso to section 3 of that Act, an easement of light cannot be acquired under the Act if “it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing”. In this case, on the plaintiff’s own showing, the right which he exercised in the lane in dispute was expressly granted him by the deed exhibit A. It was also decided in Wheatin v. Maple & Co.2(2) that an easement of light cannot be acquired against the Crown. It is not and cannot be disputed that the ownership of the lane in dispute was until the 1st of July, 1960, vested in the Crown and in the President of the Republic since that date. Mr. Adade for the plaintiff quickly realised the difficulties he had to face with his contention of an acquisition of an easement either of way or of light and said he would content himself with the licence he acquired under the deed exhibit A. It is his contention, supported as it is with the evidence of the Lands Department, that the licence still subsists.
It would seem that at sometime subsequent to 1938, the lane in dispute became a sanitary lane.
Although there is no direct evidence of it, a letter written by the Lands Department to the Town Planning Committee showed that the Lands Department so regarded it. That letter is exhibit B. Mr. Mensah-Bonsu for the Kumasi Municipal Council has contended very ably and absolutely strenuously that by virtue of the provisions of section 78 (2) of the Kumasi Town Council Ordinance3(3) the lane in dispute became vested in the Kumasi Municipal Council and that the latter has since without notice revoked the plaintiff’s licence. The open spaces and sanitary areas which became vested in the Kumasi Municipal Council by virtue of the provisions of section 78 (2) of the Kumasi Town Council Ordinance were specified and set out in schedule 3 of that Ordinance. I have searched in vain for the lane in dispute in that schedule. Even if such a lane were vested in it, in my judgment, it can only be
for the limited purpose of carrying out the duties, or in the exercise of the powers, conferred upon it by that legislation. I cannot possibly accept any contention that such vesting enabled the Kumasi Municipal Council to make a grant of it for a purpose foreign to the true intendment of the Ordinance, e.g. to a Lebanese merchant as in this case, for the construction of a private commercial store. That would be tantamount to a contention which counsel discreetly shrank from making, that by the provisions of section 78 (2) of the Ordinance, the government divested itself of its ownership of the lane in dispute in favour of the Kumasi Municipal Council. In a sense, counsel for the Kumasi Municipal Council was arguing an academic case. Although he argued that the lane became vested in the Kumasi Municipal Council who are entitled to revoke the plaintiff’s license, and by implication grant it to anyone it pleases, counsel seriously disputed the defendant’s claim that the third party “allocated” the lane to her. I feel no doubt at all that a grant of any estate of the lane in dispute can only validly be made
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by the government in whom the ownership of the lane is vested. In so holding, I share the view which seems to be the one held on this matter both by the Lands Department (see exhibit B) and the Town Planning Department (see exhibit C).
It seems clear from the evidence that pursuant to the further licence to Bardawil the latter erected two gates at both ends of the lane in dispute. The evidence shows that at some unspecified time those gates were removed but there is no evidence as to who in fact removed them or when. The plaintiff says he assumed they were removed by the defendant when she was about to build the store in the lane in dispute. Counsel for the Kumasi Municipal Council contended that such removal was done by the Kumasi Municipal Council and amounted to a revocation by conduct of the plaintiff’s exclusive licence. He argued that the erection and maintenance of the gates were a condition precedent to the enjoyment of the right of way and that the gates having been removed the plaintiff’s licence was gone.
I cannot accede to this argument. In my judgment, it stems from a misconstruction of the deed (exhibit A). The right to erect the gates was granted to Bardawil over and above the exclusive right of way and the object was obviously to enable the plaintiff and his co-grantees the more effectively to enjoy their exclusive right of way over the lane in dispute. I accept the evidence of Mr. Vanderpuye and find that the license granted to the plaintiff to pass and repass on the lane in dispute has not been revoked.
The defendant claims that the lane was “allocated” to her by the Kumasi Municipal Council and her counsel cautiously avoided any use of the term “grant”. Whatever that means, the third party vehemently denies it. The defendant produced nothing to substantiate her claim that any interest by whatever term it is described was passed on to her of the land in dispute by the Kumasi Municipal Council. As I have said, only the government can make a valid grant of any estate in the lane to the defendant. The government by its agent, the Commissioner of Lands, expressed itself categorically as opposed to making any grant whatsoever of the land to the defendant (exhibit B). The position therefore is that the defendant who has no vestige of title whatsoever has constructed and maintained on the lane, a building and has by such unneighbourly act, to use the words of Mr. Adade, “abrogated
the rights lawfully granted to the plaintiff” by exhibit A and which rights I have held to be subsisting.
The question, therefore, is whether the plaintiff has any rights and if so what rights against the defendant. On this, I am bound to say, I received rather little help from counsel for the plaintiff who has apparently not found time to look up any authorities on the question as to what legal rights a licensee has against a stranger. The position at law, as I understand it, is that since a licensee has no legal estate or interest in the servient land, he has no remedy against a stranger for disturbance of his right although he has a remedy in personam against his licensor for any disturbance of the licence committed by him. This is the ratio decidendi of Whaley v. Laing4(4) and the rather famous case of Hill v. Tupper.5(5) But a licence which is of such a nature as to be specifically enforceable runs with the land in equity so as to be enforceable not merely against the grantor but also against all subsequent owners and occupiers save a bona fide purchaser
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for value without notice. See Moreland v. Richardson6(6) and Hervey v. Smith.7(7)
It was suggested by the learned authors of Smith’s Leading Cases that whenever the right claimed is one which may by law be made the subject-matter of property, then enjoyment of such a right, though only under a licence revocable by the grantor is, as against a wrongdoer, sufficient title to enable the licensee to maintain an action upon it. In Corby v. Hill8(8) a wrongdoer was held liable to a person whose horse, while being driven along a private road with the leave and licence of the owners of the road, was injured by running against a dangerous obstruction placed on the road by a wrongdoer.
Whatever may have been the difference in the treatment of a licensee in law and equity in times past, no problem now arises since law and equity are concurrently administered, and the rules of equity prevail over those of the common law. In this case, the fact that the defendant is a wrongdoer is plain to me beyond argument. And by her wrongful conduct she has disabled the plaintiff from exercising a right of way over the disputed lane, a right which, in my judgment, he was clearly entitled to exercise.
Had an interim injunction been sought to restrain her from erecting the said structure, I feel no doubt it would have succeeded. In Durell v. Pritchard9(9) it was held that there is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the commencement of the action. But in Colls v. Home and Colonial Stores Ltd.10(10) it was said that the jurisdiction to grant a mandatory injunction must be exercised with great caution and should be confined to cases where the remedy by way of damages is inadequate for the purpose of justice and for restoring things to their former condition. As to whether the wrong done to the plaintiff by the defendant is better remedied by damages rather than an injunction, my mind has fluctuated for several days and I have arrived at a conclusion with hesitation.
In arriving at a conclusion, I take into consideration the fact that the plaintiff objected to this structure being constructed on the lane and brought this home to the defendant. In this wise, I accept Mr. Namih’s evidence which was not challenged. The defendant continued and completed the building in spite of this objection. The defendant is or must be deemed to have been aware of the plaintiff’s licence and in blocking his lane for her own purposes, she must have realised that she was doing him great wrong. I find it impossible to believe that a Lebanese merchant who is desirous of building a store in Kumasi could not have been aware that she must obtain a lease or some sort of grant of the land from the Lands Department. In merely proceeding to build, on obtaining a passed plan from the Kumasi Municipal Council, the defendant must have been aware that she was involving herself in a shady transaction. I cannot believe that the defendant would not have known that the Lands Department expressed itself clear and unequivocal terms that it would not grant a lease of the lane to her. I myself have been shown the store and it is a nuisance and a very substantial one to the plaintiff.
It is impossible for the plaintiff to open the two windows which open to the lane. I do not find it proved that these windows have been sealed off for many years. I prefer the plaintiff’s evidence that they were opened and closed just
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as suits the tenant of the store. Although there are two other windows, these open on to a sanitary site and let in air from garbage which is anything but wholesome. The structure itself is not a very elaborate or complicated one and can be pulled down without great hardship. To let it remain would be tantamount to granting the defendant a judicial licence to maintain this nuisance almost in perpetuity. The plaintiff’s conduct in this matter is entirely without blemish. He brought the fact of his objection to the structure to the defendant timeously and wrote both to the Kumasi Municipal Council and the Lands Department. Both were powerless to help him. In my opinion, all the equities of this case are in favour of the plaintiff and are against the defendant. In these circumstances, to withhold an injunction, would, in my judgment, be wrong and unjust. I consider therefore that a mandatory
injunction must go and the offending structure must come down. As I have said, the structure is not elaborate or complicated. The defendant estimated it at £G800. I think the defendant should have two months to pull it down.
Accordingly I make, as prayed, an order of mandatory injunction directed to the defendant to pull down all that store constructed on the lane between Plot No. O.T.B. 130 and O.T.B. 489 on or before the 5th of April next. Thereafter there will be an order of perpetual injunction restraining her, her servants, agents or workmen from trespassing or in any manner interfering with the said lane. I award the plaintiff sixty guineas costs against the defendant.
As between the defendant and the third party, the defendant has entirely failed to make out any case calling for indemnity from the third party. Her claim for such indemnity depends upon her allegation that the third party “allocated” the lane in dispute to her. Her attorney was compelled to admit that all the Kumasi Municipal Council did was to perform its statutory duty of passing her building plan. It did no more and the defendant produced nothing to show that the third party even purported to grant her any right in the lane in dispute. Accordingly, there will be judgment for the third party against the defendant with 40 guineas costs.
DECISION
Mandatory injunction granted.
Judgment for the plaintiff and the third party.
