DWOMOH v. OBUASI URBAN COUNCIL [1963] 1 GLR 134

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 18TH FEBRUARY, 1963

BEFORE: APALOO J.

CASE REFERRED TO

Doe d. Cheny v. Batten (1775) Cowp. 243; 98 E.R. 1066

NATURE OF PROCEEDINGS

ACTION for damages for trespass and an order against the defendant council to re-allocate building plots to the plaintiff.

COUNSEL

G. Davey for the defendant.

Plaintiff in person.

JUDGMENT OF APALOO J.

By a home-made writ, the plaintiff claims what I paraphrase to be damages for trespass and an order upon the defendant-council to make a re-allocation of two building plots described as No. 9 Kwabrafoso and 101 Tutuka Obuasi to himself.

[p.135] of [1963] 1 GLR 134

The evidence shows that the Obuasi land is owned by the Ashanti Goldfields Corporation. The defendant-council which was said to have been established in 1952, administers the land as agent for the Ashanti Goldfields Corporation Ltd. In the course of this duty, the council allocates building plots to applicants, collects rents and pays a proportion of the land revenue to the Ashanti Goldfields Corporation Ltd. In 1949, the plaintiff who normally resides at his home at Mampong, bought from one Kwadwo Fordjuor a building known as house No. 301 Nsuta, Obuasi. It was a swish building. It does not seem to have been in particularly good condition and as early as 1950, the plaintiff wrote to the Obuasi Sanitary Board seeking permission to make repairs on it (exhibit 3). No such permission seems to have been given and the reason seems to have been that the council required that plot for development work. Accordingly, the defendant was paid compensation by the council and also allocated two plots. They are the plots in dispute. The plaintiff says as soon as he was allocated the plots, he erected two swish buildings on them—one on each. He says the buildings had each reached roof level when he paid one of his periodic visits from Mampong to the site. At that stage, one of the two builders whom he had engaged, had died and the other abandoned the work. On account of this the site had grown weedy and the plaintiff says he got his sister, a Madam Akua Mainu, to weed the walls. He then returned to Mampong. Sometime after this, the plaintiff did not say exactly when, his self-same sister came to him at Obuasi and informed him that the council had demolished his buildings and also claimed to have allocated his plot to someone else. The defendant-council for its part says that the said plots were allocated to the plaintiff in 1957 on condition that he erected a building on them within a period of twelve months. It says no such buildings were erected by 1956. Accordingly, in November that year by local broadcast announcements, by a notice in the Ashanti Times and notices placed on the said plots, the council made known to the plaintiff its intention to re-enter the plots and that the council did so re-enter. The council contends therefore that the plaintiff’s right to occupy these two plots determined.

‘I’he matter is not, however, so easy because the plaintiff in fact paid ground rent for these plots up to and including 1960 and the rents were accepted from the plaintiff in February 1959, after the council claimed it had exercised its right of re-entry. To that, the council says, those rents were accepted by mistake and that there was no intention to waive the breach. The plaintiff disputes this and says no right of re-entry has in fact been exercised by the council and the council were merely manoeuvring to dispossess him of the plots in order to allocate them to a favourite.

Accordingly, the questions which I have to determine are, (1) did the council have a right of re-entry; (2) if it had, was it validly exercised; and (3) if it was, whether the breach of contract for which the right of re-entry was exercised was waived by the subsequent acceptance of rent. [p.136] of [1963] 1 GLR 134

As I understand the law, the breach of a covenant by a tenant does not entitle the lessor to resume possession by re-entry upon the premises unless an express stipulation to that effect is contained in the lease. On the other hand, a stipulation which is framed, not as a mere covenant but as a condition carries with it a common law right of re-entry if the condition is broken. The allocation of the disputed plots which was admittedly made to the plaintiff was apparently not evidenced in writing. Accordingly, the defendant-council was not able itself to produce anything containing a covenant on the part of the plaintiff to erect a building within a specified time and reserving to the council a right of re-entry for breach of covenant. The defendant-council obviously relies only on the building permit but that document is a building permit pure and simple and does not evidence the allocation of the plots. Indeed clause 2 of that permit expressly states that the permit “does not confer any right or title to the lands or buildings nor the right to occupy.” The terms on which the allocation was made to the plaintiff of the plots in dispute must have been oral only. This is rather less than satisfactory. None of the witnesses called by the defendant-council gave evidence as to any terms on which the plaintiff was allocated the plots. The plaintiff said in cross-examination that he could not remember whether the local council told him to develop the plot within one year from the date of the grant. I think, however, in all probability, that he must have been told that. The object of the allocation appears to have been for development and it does not make sense if an allocation is made without any condition as to when in point of time the plots should be developed. This view is fortified by the averment in paragraph seven of the plaintiff’s statement of claim. In that paragraph, the plaintiff argues that the plot could not be re-allocated to another person without written notice to himself. The plaintiff claims that the notice ought to have been in July 1959 “when the one year time to develop the plots had not been due.” That seems to me to indicate that the plaintiff well knew that the condition on which the plots were allocated to him was that he should erect buildings thereon within twelve months. I therefore reach the conclusion, although with a great deal or diffidence, that when the plots were allocated to the plaintiff in 1951, it was subject to a condition that the plaintiff should develop them by erecting buildings thereon within one year. It follows that the defendant-council were entitled as a matter of law, to re-enter if this condition be broken. The plaintiff claims that this condition could not have been broken because he erected swish buildings on the land as soon as he got the plots. He says these two buildings reached roof level and were demolished by the council because the council was desirous of allocating the plots to a favourite of theirs. I reject that evidence. Had that been so, the plaintiff would at least have called some persons who witnessed this demolition. Indeed the plaintiff could have put his sister who allegedly [p.137] of [1963] 1 GLR 134 witnessed the demolition or weeded round the walls into the witness-box. I accept the evidence of Mr. Shaw, the defendant-council’s foreman, that in 1956 when the council re-entered the plots neither was developed. The plot at Kwabrafoso had a trench dug on it obviously as a foundation for a building. The plot at Tutuka had nothing on it. I accept the evidence of Mr. Fordjuor, the clerk of council, that the council gave notice of its intention to re-enter all the undeveloped plots including the plots in dispute by announcement in the local broadcasts and by publication in the Ashanti Times newspaper. I also find, accepting the evidence of Mr. Shaw, that the council in about November 1956 posted notices of re-entry on the plots in dispute. I hold therefore that the right of re-entry, which I have held the council entitled to, was validly exercised. That ought to dispose of this case. But as I have said, the plaintiff on the 16th February, 1959, paid ground rent of both plots from the 1st January, 1957 to the 31st December, 1960, and this sum was accepted by the defendant-council. The question therefore which falls for determination is, whether the council waived the breach by this subsequent acceptance of rent. The plaintiff who does not seem to be a novice in the delicate art of litigation, naturally and properly lays stress on this fact. The acceptance of rent after the exercise of a right of re-entry, seems to me a positive act which amounts to a recognition of the continuance of the tenancy. That should be waiver. The case of Doe d. Cheny v. Batten1 decides that what is insisted on as amounting to waiver, must be done cum animo. It follows therefore that the act of accepting rent which the plaintiff relies on as an act of waiver, must involve a conscious decision by the council. It is plain on the evidence that the defendant-council did not authorise the acceptance of rent from the plaintiff after entering into possession of the plots. Indeed, it seems obvious that the council were unaware of such payment by the plaintiff until 1961.

I think that in all probability, the plaintiff had a hint of the re-entry of the plots in dispute by the council and he went behind the council and paid these rents to a probably negligent or inadvertent officer of the council for the very purpose on which he now relies, namely, that it amounted to a waiver by the council of the exercise of its right of re-entry. The plaintiff ought clearly not to be allowed to benefit from this manoeuvre. I am satisfied therefore, that the rent which was accepted from the plaintiff on the 16th February, 1959, was accepted in error. I hold that it did not amount to a waiver by the council of the exercise of its right of re-entry.

It follows therefore that in my judgment this case crumbles and ought to be and is dismissed. There must be judgment for the defendant-council. I order that the plaintiff do pay the costs of this action assessed at 35 guineas.

DECISION

Judgment for the defendant.