OSHODEMIRIN vs. TETTEH [1973] 1 GLR 1

CASES REFERRED TO

(1) England v. Palmer (1955) 14 W.A.C.A. 659.

(2) Bowmaker, Ltd. v. Tabor [1941] 2 K.B. 1; [1941] 2 All E.R. 72; 110 L.J.K.B. 497; 164 L.T. 411;

57 T.L.R. 435, C.A.

(3) Equitable Life Assurance Society of the United States v. Reed [1914] A.C. 587; 83 L.J.P.C. 195;

111 L.T. 50, P.C.

(4) Ayr Harbour Trustees v. Oswald (1883) 8 App.Cas. 623, H.L.

(5) Spurling v. Bantoft [1891]2 Q.B. 384; 60 L.J.Q.B. 745; 65 L.T. 584; 56 J.P. 132; 40 W.R. 157; 17 Cox C.C. 372, D.C.

(6) Yabbicom v. King [1899] 1 Q.B. 444; 68 L.J.Q.B. 560; 80 L.T. 159; 63 J.P. 149; 47 W.R. 318; 43 S.J. 190.

(7) Edward Ramia Ltd. v. African Woods Ltd. (1956) 1 W.A.L.R. 193, W.A.C.A. affirmed [1961] G.L.R. 2; [1960] 1 W.L.R. 86; 104 S.J. 125; [1960] 1 All E.R. 627, P.C.

NATURE OF PROCEEDINGS

APPEAL by the plaintiff against a judgment of the High Court, Accra, dismissing his action for a declaration of title and damages for trespass. The facts are fully set out in the judgment of Azu Crabbe J.S.C.

COUNSEL

Mustapha for the appellant.

Ahenkora for the respondent.

JUDGMENT OF AZU CRABBE J.S.C.

The facts in this case are in a comparatively small compass so far as they are relevant to what we have to decide in this appeal, and they are these: On 25 August 1964, the Accra-Tema Development Corporation formally granted the plaintiff licence to enter plot No. D/129 C, situated at Ashaeman, within the corporation’s area of administration, and to erect thereon a temporary dwelling-house. One of the conditions of the licence was that the plaintiff would pay to the corporation a monthly fee of ten shillings in advance on the first day of every month. Another important clause in the licence reads as follows:

“This licence may be either expressly revoked by the Corporation by one month’s notice in writing expiring at any time, delivered to you the licensee or posted on the said land, or impliedly terminated by you the licensee, whenever your fee is one month or more in arrears, or may be expressly terminated by you, the licensee, giving to the corporation one month’s notice in writing of your intention so to do.”

At the trial the plaintiff produced official receipts (exhibits Al-A5) for rents he had paid for the following periods: August 1964, September-December 1964, January-May 1965, June 1965-May 1966, June-May

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1967. These receipts are dated 28 August 1964, 23 October 1964, 6 May 1965, 5 April 1966 and 16 May 1967 respectively. It follows that, except for the month of August 1964, the plaintiff’s rent had always been in arrears for more than one month. It also seems clear that since June 1967, the plaintiff’s rent had been in arrears.

Subsequent to the granting of the licence to the plaintiff to enter plot No. D/129 C, Ashaeman, the Tema Development Corporation decided that Ashaeman should be further developed, and in order to ascertain who the previous plot holders were, the Managing Director of the Tema Development Corporation, Mr. F. K. A. Jiagge, gave notice to all holders of plots in Ashaeman to the effect that:

“2. It has come to the notice of the Tema Development Corporation that many plot holders resident in and outside Ashaeman have not registered their plots. In view of the development programme envisaged to commence as soon as possible, all plot holders are requested to register or re-register their plots,

whether developed or undeveloped IMMEDIATELY, giving: [Particulars are stated].

3. In the event of failure to submit the above particulars by the end of February 1967, the Tema Development Corporation will assume that the plot has been abandoned and will reclaim it for re-allocation.”

The publication of this notice was by insertion in the local newspapers, radio announcements and by posters. The plaintiff failed to re-register as requested by the notice.

The case for the plaintiff was that one day when he visited the plot in dispute he saw the defendant clearing weeds on it, and when he challenged the defendant she said that she had bought the plot from a certain man for £G60 (¢120.00). At his request, the defendant accompanied him to the Tema Development Corporation offices where it was confirmed that the plaintiff was the registered owner of that plot. According to the plaintiff, the defendant was advised to settle the matter with him and as a result she offered to buy the plot, but he declined to sell. The plaintiff said that on a subsequent visit to the plot he again found the defendant working on the land, and not being satisfied with the defendant’s conduct he immediately instituted proceedings in the High Court, Accra, against her.

The plaintiff’s writ was filed on 17 April 1968, and in it he claimed against the defendant: (a) declaration of title to the plot in dispute, (b) £G500 or ¢1,000.00 damages for trespass, (c) perpetual injunction, and (d) recovery of possession.

The defendant’s case briefly was that she went on the disputed land on the authority of one Adotey who was the most senior officer in the Ashaeman office of the corporation in 1968. She thereafter built ten kitchens on the plot, and it was during the roofing of these kitchens that

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the plaintiff brought this action against her. The defendant, however, admitted that she had not paid any rent to the Tema Development Corporation. There was also no evidence that her name appeared on the Tema Development Corporation register of plot-holders.

The learned trial judge made the following findings:

(1) That the plaintiff was an “occupational licensee merely” of plot No. D/129 C, Ashaeman.

(2) That the plaintiff owed arrears of rent for the period June 1967 to April 1968 inclusive, that is, ten months at the rate of 10s. per month.

(3) That these arrears of rent were being owed in breach of the first of the terms of the plaintiff’s licence, and that the plaintiff had thereby impliedly terminated his license.

(4) That, up to the date of commencement of his action, the plaintiff had failed to register his plot in accordance with the managing director’s notice of 1967.

(5) That the allocation of the disputed plot by Adotey to the defendant was justifiable.

(6) That at the date of the commencement of the action the plaintiff had no right to sue in trespass.

Accordingly, the learned trial judge concluded his judgment as follows:

“In the result I find that the plaintiff, not being the owner of the plot and not being in possession at the material time, is not entitled to sue for the remedies on the writ, and his action is hereby dismissed with costs assessed at N¢200. I enter judgment in favour of the defendant.”

At the commencement of the hearing of this appeal, Mr. Mustapha, counsel for the plaintiff, sought leave to amend the endorsement on the writ of summons to read as follows:

“The plaintiff’s claim is for:

(1) Declaration of title to the possession to all that piece or parcel of land situate lying and being at Ashaeman known as plot No. D/129 C, alloted to the plaintiff by the Tema Development Corporation since 1964.

(2) The plaintiff claims ¢200.00 damages from the defendant for trespass committed by the defendant on plaintiff’s plot of land known as No. D/129 C, Ashaeman.”

Following the authority of England v. Palmer (1955) 14 W.A.C.A. 659, we granted leave to amend as prayed, though we did not think it was strictly necessary to amend the writ of summons. For, as Sir Henley Coussey J.A. said in that case at p. 660:

“In a trespass action an averment of ownership is consistent with and in my view amounts to an averment of possession, for ownership may be proved by proof of possession. ‘As mere possession is sufficient to maintain trespass against any one who

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cannot show a better title, the plaintiff’s allegation that the defendant broke the close of the plaintiff’ (the use of the word ‘close’ being an averment of ownership), ‘is satisfied prima facie by proof that the defendant broke a close in the possession of the plaintiff; and this is not only prima facie, but ultimately, sufficient against any one who cannot avoid the effect of it by shewing that notwithstanding the actual possession by the plaintiff, he the defendant has a better right to it’¾ per Lord Denman, C.J., in Whittington v. Boxall ((1843) 12 L.J.Q.B. 318) ¾ a proposition which is not affected by the later case of Jones v. Chapman ((1847)

2 Ex. 812).

It follows that as far as concerns him an allegation that the plaintiff is owner puts possession and not ownership in issue, for it cannot be supposed that the plaintiff means to take upon himself a larger amount of proof than the law requires for the purpose of an action in trespass. Heath v. Milward ((1835) 132 E.R. 39). And that is how this issue stood in the Court below when the action went to trial.”

In my opinion, except for his fifth finding, the findings made by the learned trial judge were perfectly justified by the evidence. As regards the finding affecting the defendant, I think that the learned trial judge, with all due respect, fell into an error, for there was no evidence that the defendant was a registered holder of the plot in dispute, neither was there evidence that she ever paid any rent. Consequently, I think that she was as much a trespasser as the plaintiff.

In this appeal the only submission made by Mr. Mustapha worthy of any consideration is that exhibits Al-A5 are evidence that the Tema Development Corporation waived their right under the Tema Corporation (Ejectments) Act, 1963 (Act 159), s. 1, to revoke the plaintiff’s licence. But Mr. Ahenkora, counsel for the defendant, argued in reply that waiver of previous breaches does not entitle the plaintiff to say that in this particular case there had been a waiver. The Tema Corporation (Ejectments) Act, 1963, is short and it reads: [His lordship here read the provisions of Act 159 as set out in the headnote and continued:]

One of the functions of the Tema Development Corporation under the Tema development Corporation Act, 1963 (Act 158), is to allocate undeveloped land within its administrative area to the public, and it is in the public interest that those who cannot pay rents for any land allocated to them should be ejected, and their lands re-allocated to other members of the public. Moneys accruing from allocated lands form part of the funds of the corporation from which the corporation performs its functions under the Tema Development Corporation Act, 1963 (Act 158). This Act, therefore, imposes a duty on the corporation to collect rent from its tenants or other occupiers of property belonging to the corporation. Section 1 of the Tema Corporation (Ejectments) Act, 1963

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(Act 159), makes provision for the ejectment of persons in arrears of rent to the Tema Development Corporation, and section 2 also provides criminal sanctions for those who fail to vacate any premises or other property in respect of which there are arrears of rent. There can be no doubt, in my view, that the power given by the Tema Development Corporation Act, 1963 (Act 158), to allocate land and to collect rents accruing therefrom, and the provisions of the Tema Corporation (Ejectments) Act, 1963 (Act 159), ensuring the prompt payment of these rents, are intended for the welfare of the general public. The law is that a statutory requirement imposed for the protection or benefit of the public cannot be waived. As Goddard L.J. (as he then was) said in Bowmaker, Ltd. v. Tabor [1941] 2 All ER. 72 at p. 76, C.A.:

“The maxim which sanctions the non-observance of a statutory provision is cuilibet licet renuntiare juri pro se introducto. Everyone may waive the advantage of a law made solely for the benefit or protection of an individual in his private capacity, but this cannot be done if the waiver would infringe a public right or public policy: see MacAllister v. Bishop of Rochester (1880) 5 C.P.D. 194.”

Also, when a statutory provision lays down a rule of public policy, neither party to a contract can contract out of it. Thus in Equitable Life Assurance Society of the United States v. Reed [1914] A.C. 587, P.C. Lord Dunedin, who delivered the opinion of the Privy Council said at p. 595: “Their Lordships have no doubt that this is a section intended to lay down a rule of public policy, and that it is impossible for either an assured or an assurer to contract himself out of it or to waive its effect.” And a public body, entrusted with powers to be exercised for the benefit of the public, cannot, any more than an individual, waive their right to exercise any of those rights: Ayr Harbour Trustees v. Oswald (1883) 8 App.Cas. 623, H.L.; Spurling v. Bantoft [1891] 2 Q.B. 384; see also Yabbicom v. King [1899] 1 Q.B. 444. In Edward Ramia Ltd. v. African Woods Ltd. [1961] G.L.R. 2, P.C. there was failure to comply with section 12 of the Concessions Ordinance, Cap. 136 (1951 Rev.), which provides that any person desiring to obtain a concession in respect of an area of land in Ashanti shall, inter alia, make an application to the chief concerned, and must give notice of the application to the Chief Regional Officer. Section 13 provides that “No concession shall be certified as valid . . . (11) unless . . . the concession has been obtained in accordance with the provisions of section 12.” In the West African Court of Appeal, Sir Henley Coussey P. said in Edward Ramia Ltd v. African Woods Ltd. (1956) 1 W.A.L.R. 193 at p. 200, W.A.C.A.

“Sections 12 and 13 (11) are so clearly designed to protect the grantor in the public interest that in my opinion the learned judge erred in holding that a waiver is possible of any of the conditions of section 12 and that the grantors had waived them. To accede to this proposition would be entirely to ignore the intention of the Legislature for the public good and to defeat one of the main purposes of the Concessions Ordinance.”

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This statement by Sir Henley was approved by the Privy Council: see [1961] G.L.R. 2 at p. 6, P.C.

I have no doubt that section 1 of the Tema Corporation (Ejectments) Act, 1963 (Act 159), was intended to lay down a rule of public policy and that its effect cannot be waived by the corporation. It follows, therefore, in my opinion, that Mr. Mustapha’s argument must fail.

The position in this case is that neither the plaintiff nor the defendant has a good title to the land in dispute, but the defendant was the one in physical possession at the commencement of these proceedings. In my opinion this is a proper case to apply the maxim, Melior est conditio possidentis ubi neuter jus habet: The condition of the possessor is the better where neither claimant has title.

I think the learned trial judge came to the right conclusion, and I would dismiss this appeal with costs.

JUDGMENT OF PREMPEH J.S.C.

I agree.

JUDGMENT OF ARCHER J.A.

I also agree.

DECISION Appeal dismissed with costs. S.E.K.