DAO v. KLU (DZABA—CLAIMANT) [1961] GLR 555

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 3RD OCTOBER, 1961

BEFORE: OLLENNU, J.

CASES REFERRED TO

(1) Ahortor v. Agbesih, Land Court, Accra, May 5,1960, unreported.

(2) Awortchie v. Aidgun, (1890) Sar. F.L.R. 56 (3) Lyall v. Dougan: Yanba (Claimant)(1890) Sar. F.L.R. 56

NATURE OF PROCEEDINGS

INTERPLEADER action to stop sale of house built by the judgment-debtor on land belonging to the claimant’s family on the ground that the debtor is a mere licensee.

COUNSEL

E. D. Kom for the claimant.

D. Y. Osei for the execution-creditor.

JUDGMENT OF OLLENNU J.

In this interpleader suit, the claimant contends that the execution-debtor has no attachable interest in the land with buildings thereon which have been attached by the execution-creditor in execution of a decree of the court against the execution-debtor. His case is that the land is the property of his family, that the execution-debtor built on it with his, the claimant’s permission on terms that he should give him two bottles of schnapps each year in acknowledgment of his title, and that at any time he required the land for own purposes, he, the execution-debtor, would give him vacant possession and either pull down his said building or leave it intact.

The evidence led by the claimant in support of his said case was corroborated by his witness

Asafoatse Kai Ameboe. That evidence was not shaken in any way in cross-examination or by the evidence tendered by the execution-creditor. On the contrary, the line of the cross-examination pursued an implied admission on behalf of the execution-creditor [p.557] of [1961] GLR 555 that the land is the property of the claimant’s family, but that by accepting two bottles of schnapps from the execution-debtor, the claimant must be deemed to have parted with his family’s said title absolutely to the execution-debtor.

I am satisfied upon the evidence that the land in dispute is the property of the claimant’s family, the Dzaba family, and that the execution-debtor is a mere licensee occupying it.

It was submitted on behalf of the execution-creditor that the claimant is estopped by virtue of an order of this court made on the 13th February, 1961, exhibit 1, which struck out an interpleader suit instituted by one Emmanuel Akorli Klu, brother of the execution-debtor. Since the present claimant is not claiming through the said Emmanuel Akorli Klu, the said order, exhibit 1, cannot operate as estoppel against him. Next, counsel for the execution-creditor submitted that the claim must be dismissed because the evidence shows that this property belongs to the family, whilst the claimant put in the claim in his individual capacity. In determining suits of this nature the court has to look at the real issue raised as can be gathered from the whole proceedings, pleadings and all and not merely at the form. It would be observed from paragraph 5 of his statement of claim that the claimant pleaded that he owns the property as his ancestral property. Again, in his evidence in chief he deposed that he is the person in charge of the said family property; and his witness deposed that he, the claimant, is the head of the family in control of the property. Even without the evidence that the claimant is the head of the family, the uncontradicted evidence that he is the person in charge and control of the family property means that the claim he has made is on behalf of the family, and not on his own behalf as his individual, self-acquired property. The submission on this point therefore fails.

It was further submitted that the failure of the claimant to call any member of the family to testify that the grant made by him to the execution-debtor was made with the knowledge and consent of the principal members of the family is fatal to the case of the claimant. It is difficult to appreciate the purpose of this submission, because if it is sustained, its effect would be that the grant to the execution-debtor is null and void, and he acquired no interest whatsoever in the property which can be attached. If the grant was made by the claimant, the head of the family, without the necessary customary consent, the proper person who should have the grant declared null and void would be the family. It is certainly not in the interest of the execution-creditor who claims through the execution-debtor to take that point as it is dead against his interest. Since no member of the Dzaba family has come forward to dispute the authority of the claimant to make the grant, it will be unjust to hold that the grant was not made with necessary customary consent, and thus prejudice the position of the execution-creditor. Therefore although the point was taken on behalf of the execution-creditor himself, I hold that there is nothing to rebut the presumption that the claimant who has been in charge of the family property acted without the consent and

[p.558] of [1961] GLR 555 concurrence in making the grant. I therefore hold that the licence granted to the execution-debtor is a valid one.

Finally it was submitted on behalf of the execution-creditor that the execution-debtor as licensee has some interest in the property which could be attached in execution, and therefore the claim should be dismissed. It is appropriate that that submission should be considered together with the submission made on behalf of the claimant that the execution-debtor being a licensee and not the owner of the land, has no attachable interest in the land, particularly in view of the condition of his licence that he should vacate the land and give the claimant vacant possession thereof at any time that the claimant should require his land. That condition, it was submitted, made the licensee a tenant at sufferance, whose tenancy could be determined forthwith upon notice.

By customary law, a licensee who has been permitted to build on land is entitled to occupy the land so long as the buildings he was permitted to erect remain in existence. The licence determines the moment that building falls into ruin. See Abortor v. Agbesih.1(1) The licensee therefore cannot rebuild or effect a major repair to the building without first obtaining fresh permission from his licensor so to do: Awortchie v. Aidgun.2(2) At the same time customary law abhors fraud and ill-gotten gain; it therefore discountenances any conduct or term in a contract or agreement which would operate to defraud. Such a term in an agreement would have no effect.

Now the alleged condition of the licence that the execution-debtor should vacate the land at any moment he is requested by the claimant to do so, means that the claimant could make such demand for vacant possession, very soon after the licensee would have completed erecting a building of some considerable value on the land. That condition therefore is unconscionable, and contrary to natural justice and good conscience, and therefore is not one which would be enforced by the courts. The custom is that where the licensor requires the licensee to quit land which he has been permitted to develop, the licensor must pay to the licensee the value of the development, otherwise the court will not entertain a claim for recovery of possession of the land and ejectment of the licensee therefrom.

Again, by customary law the interest in the land which is vested in a licensee is transferable by the licensee subject to the previous consent of the licensor. In the case of a voluntary transfer the licensor must be given the first refusal on such an alienation, so that if he should so desire he could pay the licensee the value of the development and keep the land so developed. In the case, however, of a sale in execution of a decree of a court of competent jurisdiction, the prior consent of the licensor is not necessary; but in such a case all that a purchaser acquires is the licence to occupy the land upon the same terms as the licensee execution-debtor occupied it. In the case of Lyall v. Dougan: Yanba (Claimant),3(3) where the [p.559] of [1961] GLR 555 claimant a licensor interpleaded against the sale in execution of his land with buildings erected thereon by the execution-debtor, it was held that the house having been erected by the execution-debtor, could be sold, but the land being the property of his licensor could not be sold. The correct statement of the law is, that the interest of the licensee can be sold in execution, but the purchaser acquires nothing more than the right, title or interest of the licensee, i.e. a licence to occupy the building on the land upon the same terms and conditions as the execution-debtor was permitted to occupy it.

Applying the law to the present case I hold that the claimant has established his claim that the execution-debtor is his licensee. I hold further that the right, title and interest of the execution-debtor, i.e. his right as a licensee and no more, can be sold in execution, and therefore the claim must succeed to that extent and that extent only. The claim is allowed, the claimant in his capacity as the representative of the Dzaba family is declared owner of the land and the licensor of the execution-debtor.

It is directed that the sale should proceed subject to the said right and title of the claimant’s family.

The claimant will have his costs fixed at 25 guineas inclusive.

DECISION

Claim allowed.