B.P. (WEST AFRICA) LTD. v. BOATENG [1963] 1 GLR 232

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 4TH MARCH, 1963

BEFORE: AKAINYAH J.

CASES REFERRED TO

(1) Karama v. Aselemi; Oben v. Ekparam (Consolidated) (1938) 4 W.A.C.A. 150

(2) Boun v. Steele (1893) Sar.F.L.R. 77

(3) Kano v. Atakpla [1959] G.L.R. 387

(4) Pagay v. Toku (1894) Sar.F.L.R. 89

(5) Graves v. Ampimah (1905) 1 Ren. 318, F.C.

(6) Acquaye v. Halm (1917) K.F. 14

(7) Kwamin v. Kufour (1914) P.C. ‘74-’28, 28; 2 Ren. 808, P.C.

(8) U.A.C. Ltd. v. Apaw (1936) 3 W.A.C.A. 114

(9) Bassayin v. Bendentu II (1931) 5 W.A.C.A. 1, P.C.

NATURE OF PROCEEDINGS

ACTION for perpetual injunction and damages for trespass. The defendant counter-claimed for damages for trespass in respect of the said land.

COUNSEL

Akyea-Djamson for the plaintiffs.

G. Koranteng Addow for the defendant.

JUDGMENT OF AKAINYAH J.

In this action the plaintiffs’ claim is for a perpetual injunction restraining the defendant, his servants, workmen or agents from entering upon the piece or parcel of land situate and being at Nkawkaw lorry park known as a petrol pump site measuring 45 feet by 32 feet and for £G600 damages for trespass of which £G101 9s. 9d. represent special damages. The defendant also pleads that he is in possession of the said land as a lessee of the South Kwahu Local Council (to the knowledge of the plaintiffs) and counter-claims for £G600 damages for trespass committed by the plaintiffs on the said land. [p.234] of [1963] 1 GLR 232

The agreed issues are as follows: (a) whether at the date of the trespass the defendant had a valid lease of the land, the subject-matter of this suit from the South Kwahu Local Council; (b) whether the defendant committed trespass on the plaintiffs’ property; and (c) whether the plaintiff-company are entitled to the reliefs sought.

The facts are that about nine or ten years ago, the Kwahu stool, by its state council, made an oral customary grant of the land in dispute to the defendant at a rent of £G9 per annum on condition that as long as he paid the said rent of £G9 every year the defendant would remain on the said land. The defendant entered upon the land and built a one-roomed cement block house and a zinc sheet house thereon for £G800 and commenced trading by selling minerals and petrol supplied to him by A. G. Leventis Co., Ltd. At the request of the defendant, that company installed petrol pumps, an electric generating plant and a compressor on the said land. Four years later, the South Kwahu Local Council was established.

When the said local council was set up, the defendant was requested to produce his lease for inspection and upon being told that the defendant held the land by an oral customary grant, the local council told the defendant to apply for a written lease because the state council— his grantor—had ceased to exist and that it had taken over its assets and liabilities. Consequently the said South Kwahu Local Council granted a lease to the defendant for a term of five years. There is no evidence of the terms and conditions, if any, of the said lease.

When the defendant’s said lease was coming to an end by effluxion of time, the plaintiffs told him that they would like to do business with him and therefore he should renew his said lease. In due course, the defendant obtained a new lease (exhibit 2) for a term of ten years certain from the 16th March, 1961, at a rent of £G36 per annum. At their request, a copy of the said lease was given to the plaintiffs and they gave to the defendant a receipt (exhibit 3) dated the 22nd March, 1961, which reads as follows: “Received from Kwame Boateng on behalf of B.P. one copy of his agreement with the Nkawkaw Local Council allowing him to hold his land in the lorry park for a period of ten years.”

Without telling the defendant that they had changed their mind and were no longer interested in doing business with him, and unknown to the defendant, the plaintiffs started negotiations with the said South Kwahu Local Council at the beginning of 1962 with a view to getting a lease of the same piece of land (known to them to be in possession of the defendant) to be granted to them. Consequently the said local council gave a written notice (exhibit B) dated the 5th April, 1962, to the defendant to the effect that his lease (exhibit 2) would be terminated on the 5th May, 1962. By a letter dated the 2nd May, 1962 (exhibit C) the defendant protested to the council that the said notice was not in order and maintained that he lawfully held a tenancy for a period of ten years.

[p.235] of [1963] 1 GLR 232

By an indenture of lease (exhibit A) dated the 8th May, 1962, the said local council demised the said land in dispute together with the defendant’s buildings thereon to the plaintiffs for a term of ten years, at an increased rent of £G60 per annum, Emmanuel Sakitey Nyarko (P.W. 1), clerk of the said local council said that, although exhibit C was dated the 2nd May, 1962, the defendant handed it to him on the 9th May, 1962, (a day after the said council had granted the lease, exhibit A to the plaintiffs.) By their letter dated 9th May, 1962, (exhibit F) the plaintiffs informed the defendant that by an agreement dated the 8th May, 1962, the land in dispute was leased to them therefore he should vacate the said “premises” forthwith to enable them to commence development. He was also warned that his continued occupation of the said premises would constitute a trespass on their property.

The evidence showed that equipment installed on the land by A.G. Leventis & Co., Ltd. for the defendant belonged to the plaintiffs for whom Leventis & Co., Ltd. were commercial agents. The plaintiffs therefore sent their engineer and fitters to examine the said pumps and generator and to take possession of the plot. The defendant did not permit the workmen to carry out their work and, it is alleged, he knocked down one of the plaintiffs’ said petrol pumps and damaged it. According to the plaintiffs, the said pump was repaired at a cost of £G101 9s. 9d.

P.W.2 Christopher Frederick Finch, the plaintiffs’ manager admitted that in March 1961 his company had possession of the defendant’s lease (exhibit 2), that they had to take a lease of the said land because they wished to continue to have an outlet for their products at the site where they had invested a considerable sum of money; that the termination of the defendant’s lease made it easier for the plaintiffs to obtain a lease of the land, and it was in the interest of the council also because it had a rent which would be paid regularly.

Mr. Koranteng Addow for the defendant made a number of submissions and contended that the South Kwahu Local Council had no power to grant the lease (exhibit A) to the plaintiffs and referred to the Local Government Act, 1961.1 He said even if the council had any power at all, exhibit A was granted with notice of the defendant’s prior lease. The defendant was in possession and could only be ousted by the true owner or his agent.

Mr. Akyea-Djamson for the plaintiffs also submitted that the defendant could not plead title upon a lease (exhibit 2) and say in court that the said lease is void. In other words, he should not blow hot and cold. Counsel conceded that the Local Government Act, 1961, is silent on the local council’s power to grant leases but contended that as the local council had power under the Act to acquire land, it must have an inherent right to dispose of land. He admitted that the defendant had built what he called a “structure” on the land in dispute. Both counsel cited authorities in support of their submissions.

[p.236] of [1963] 1 GLR 232

For the proper determination of the issues involved, it is necessary to examine the statutes then in force and the relative legal positions of the state council and the South Kwahu Local Council at the time when the defendant was granted the lease for a term of five years.

Section 2 of the State Councils (Southern Ghana and Volta) Ordinance, 1952,2 defines “State Council” and “State” as follows:

“State Council’—(a) In relation to Southern Ghana, means the highest Council within a State in which the administration of the State is vested by customary law.”

“‘State’—(a) In relation to Southern Ghana, means a territorial area in respect of which a Paramount Chief may be elected and installed in accordance with customary law.”

Section 16 (1) of the said Ordinance enacted that—

“(1) It shall not be lawful without the consent of the State Council concerned, to alienate or pledge any Stool property and any instrument, and any transaction or agreement (whether in writing or not), which purports to effect any such alienation or pledge shall, in the absence of such consent, for all purposes be null and void. I

(2) Any person who contravenes the provisions of this section shall be guilty of an offence and shall be liable to a fine not exceeding one hundred pounds or in default of payment to imprisonment for a term not exceeding six months.

(3) In so far as they relate to land the provisions of this section shall be read in addition to and not in derogation of the provisions of Part VII of the Local Government Ordinance, 1951.”

In the Local Government Ordinance, 1951,3 the following definitions are given—

“‘Council’ means a district council, an urban council or a local council established under Section 3 of this Ordinance.”

“ ‘Stool land’ indicates any land or interest in land controlled by a Stool, head of a tribe or company captain for the benefit of the subjects of the Stool, tribe or company, as the case may be.” “‘Stool’ means the person or body of persons having such control.”

Sections 72 and 75 of the said Ordinance read as follows— “72 (1) To the extent specified in this Part of this Ordinance, the management of Stool lands shall be exercised by the Urban or Local Council, as the case may be, for the area concerned.

(2) Except as specifically provided in this Part of this Ordinance, nothing in this Ordinance shall be deemed to affect the ownership of Stool lands.”

“75 (1) Any disposal of any interest or right in land which involves the payment of any valuable consideration of which could, by reason of its being to a person not entitled by customary law to the free use of land,

[p.237] of [1963] 1 GLR 232 involve the payment of any such consideration; which is made—(a) by a Stool: or (b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration; shall be subject to the concurrence of the Urban or Local Council, as the case may be, for the area concerned and shall be of no effect unless and until such concurrence has been obtained and certified in writing under the hand of the chairman or clerk of the council.

(2) Any person aggrieved by the refusal of any council to approve the disposal of any interest or right in land under this section may appeal to a tribunal appointed under section 76 of this Ordinance which may, if it thinks fit, approve such disposal in writing, and such approval shall have the same effect as the concurrence of the Council concerned certified in accordance with the provisions of subsection (1) of this section.

(3) Nothing in this section shall be deemed to confer upon any person any right to dispose of any interest or right in land which such person is not entitled to exercise by virtue of customary law or any other law for the time being in force.”

By section 7 of the Stool Lands Control Acts, 1959,4 it was enacted as follows:

“7. The management of Stool land—(a) so far as vested by the Local Government Ordinance or the Municipal Councils Ordinance, 1953 in any Local Government Council, and (b) so far as vested in a State Council by section 16 of the State Councils (Southern Ghana and Volta) Ordinance, 1952, shall be transferred to the President and, accordingly, all the functions of a Local Government Council under section 73 and sections 75 and 76 of the Local Government Ordinance and sections 70, 71, 73 and 74 of the Municipal Councils Ordinance, 1953 and of a State Council under section 16 of the State Councils (Southern Ghana and Volta) Ordinance, 1952 shall be performed by the President.” The said Act of 1959 provided for the appointment of an officer to be called the administrator of stool lands who shall perform all the functions assigned to the President by the said Act. It is quite clear from the provisions of the relevant statutes quoted above that when the South Kwahu Local Council was set up, it did not eliminate or replace the Kwahu State Council but co-existed with it. The ownership of the land in dispute remained vested in the said stool but the power to manage it and all other stool lands generally was taken away from the Kwahu State Council and vested in the said local council. That power, in my view, was limited to the keeping of records of existing grants made by the stool, the concurrence of the local council in new grants and the collection of rents and other stool revenue fixed by the stool through the state council but did not include the right in the said local council itself to make any grants or other dispositions of stool lands nor to vary the terms and conditions of grants made by the stool through the state council. The statement made to the defendant that the Kwahu State Council had ceased to exist was therefore

[p.238] of [1963] 1 GLR 232 false and misleading and it induced the defendant erroneously to believe that the said local council had become his landlord.

By section 7 of the Stool Lands Control Act, 1959, the local council’s limited power to manage the land in dispute (which is stool land) was taken away and vested in the administrator of stool lands. Section 16

(3) of the said Act enacted that, “It shall be the duty of every person having the custody or control of any document, seal or stamp to which subsection (1) of this section applies to take all reasonable steps to deliver them to the Administrator.”

In order to succeed the plaintiffs, who are seeking an injunction to restrain the defendant from entering upon the land in dispute, must prove their root of title to it. See Karama v. Aselemi and Oben v. Ekparam.5 The plaintiffs must therefore prove that the South Kwahu Local Council had a legal right and was competent to grant the lease (exhibit A) to them and that they acquired title to the land in dispute. I am satisfied that the plaintiffs have failed to do so. At all events, even if the South Kwahu Local Council had some vestige of power, as counsel submitted, and properly granted and terminated the defendant’s agreement (exhibit 2), the plaintiffs would still have to prove that the defendant who is an illiterate native and cannot read and write (except to sign his name) and speaks no English, understood the terms and conditions of the said agreement (exhibit 2) so as to be bound by its stringent terms. In his evidence which was not challenged, the defendant categorically stated that the only condition of his oral customary grant was that so long as he paid the annual rent of £G9 he would remain on the land. Both the South Kwahu Local Council and the plaintiffs knew that during his tenancy under the said customary grant the defendant had improved the said land by building houses on it; therefore if fundamental changes were to be made in the tenure itself from one of perpetual lease to one of ten years certain with stringent terms and conditions introduced for the first time, it is, in my opinion, the duty of the said local council to read and explain the nature of the tenure and the new terms and conditions to the defendant and it must appear on the face of the document (exhibit 2) that that was done and the defendant fully understood them. By its nature there can be no doubt that the defendant’s said customary grant was a perpetual lease which could only be terminated by the landlord upon the defendant asserting an adverse claim to it or upon failure of successors in his family. The rent of £G9 per annum and the condition of the grant could only be altered by the landlord. So long as he paid the annual rent and he did not dispute the title of the grantor, the defendant was entitled to quiet enjoyment of the said land. At page 60 of Sarbah’s Fanti Customary Laws perpetual leases are discussed as follows:

“Grants of land for building purposes are very frequently made in the form of perpetual leases, either for some valuable consideration, or by way of reward for past services, or on the ground of mere affection or friendship. Lands so granted are resumable by the grantor and his successors on failure of successor in the grantee’s family.”

[p.239] of [1963] 1 GLR 232

See also Boun v. Steele.6 In Kano v. Atakpla7 Ollennu J. (as he then was) said:

“By customary law, where an owner of land grants land to another person for purposes of building, and the grantee builds on that land and occupies it (that is, expends money to improve the land) the grantor is not entitled to eject the grantee upon any flimsy excuse, or at his will. He can eject only where the grantee denies his title. But so long as the occupation of the tenant or the licensee is not inconsistent with the title of the owner and the licensee or grantee does not deny the title of the grantor or licensor, the possession of the grantee or licensee will be protected by customary law, and he cannot be ejected.”

In Pagay v. Toku8 and Graves v. Ampimah9 it was held that to bind an illiterate person by a stringent written document it must be proved that he understood fully its meaning. In Acquaye v. Halm10 it was held that there is a presumption in favour of illiterate natives who sign unconscionable documents. Again in Kwamin v. Kufour11 it was held that there is a presumption in favour of illiterate natives who sign unconscionable documents. In Kwamin v. Kufour, it was also held by the Privy Council that “there is no presumption that a native of Ashanti who does not understand English and cannot read or write, has appreciated the meaning and effect of an English legal instrument, because he is alleged to have set his mark to it by way of signature.” There are also the cases of U.A.C. Ltd. v. Apaw12 and Brassayin v. Bendentu II13 which followed the principle stated above.

Upon a careful consideration of the evidence, I find as a fact that nine or ten years ago, prior to the establishment of the South Kwahu Local Council, the said land was granted to the defendant upon the sole condition as stated by him and that the defendant built houses on the said land for £G800. I hold that when the South Kwahu Local Council was established four years later, the power to manage the said land by collecting rents due to the Kwahu stool became vested in the said local council by the provisions of the Local Government Ordinance, 1951, but, that power neither authorised the local council itself to make any disposition nor to vary the terms and conditions of grants made by the stool acting by the Kwahu State Council.

The said power to manage stool land was taken away from the said local council and vested in the administrator of stool lands by the Stool Lands Control Act, 1959, and the Kwahu Local Council became functus officio in so far as the land in dispute was concerned. In March, 1961, [p.240] of [1963] 1 GLR 232 there being no power enabling it so to do, the South Kwahu Local Council’s purported grant of a lease of ten years to the defendant was no lease at all. In the result, the defendant continued to be and remained a customary grantee of the landlord. The indenture of lease (exhibit A) purporting to be a lease of the land in dispute by the South Kwahu Local Council was void ab initio and the plaintiffs acquired no title whatsoever to the said land by the said document.

At the material date of the alleged trespass, the defendant was lawfully in possession of the said land as a customary grantee and did not commit a trespass on his own land. The plaintiffs are therefore not entitled to the reliefs sought. In any case I am not satisfied with their evidence as to the extent of the damage to their pump and the cost of its repair.

I am satisfied that but for the suspicious manoeuvres of the plaintiffs, a big petroleum company, the South Kwahu Local Council would not have interfered with the defendant’s tenancy. It was admitted by the plaintiffs’ manager that the termination of the defendant’s lease made it easier for the plaintiffs to obtain the lease. It cannot be denied that their approaches gave the local council the impetus to do what it knew to be obviously wrong and improper. It is unfortunate that the said local council was unable to resist the offer of a higher rent by the plaintiffs for the said land and the defendant’s buildings to the detriment of the defendant. The facts are such that people, not necessarily reasonable people, but many people, might suspect that something improper had been done behind closed doors.

In the circumstances, I dismiss the plaintiffs’ action. On the defendant’s counter-claim, I find as a fact that the plaintiffs committed a trespass on the defendant’s said land and aggravated the damages by their rash and impetuous complaint which culminated in the arrest and detention of the defendant by the police for some time.

There will be judgment for the defendant on his counter-claim for £G300 damages and costs of 150 guineas inclusive of 100 guineas counsel’s costs.

DECISION

Action dismissed. Judgment for defendant on his counter-claim.

[Reported by S. A. BROBBEY, ESQ., BARRISTER-AT-LAW]