• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT (LAND DIVISION)
  TEMA - A.D 2019
  

VICTORIA BOSOMPRAH - (Plaintiff)

vs.

TEMA DEVELOPMENT CORPORATION - (Defendant)
ELIAS AGOBO - (Defendant)
EMMANUEL AGOBO - (Defendant)

JUDGMENT

---

The facts of this case are far from complex. In 1995, the late Theresa Bosomprah applied for a lease from the first Defendant to operate a block factory on the land under the name Thexy Block Works.

 

The Plaintiff is the sister of the said Theresa Bosomprah, who bit the dust on 3^rd May 2002. She took over the running of her sister’s block factory business in her capacity as the customary successor. The first Defendant is a statutory corporation in charge of the planning, management and development of lands in Tema and its environs, including the land located at Ashaiman being contested in this Court.

 

The Plaintiff used to pay yearly rent to the first Defendant until in 2007, when the first Defendant refused to collect the rent from the Plaintiff. On 17^th August 2010, the Task Force of the first Defendant entered the Plaintiff’s land and demolished the structures on it, following complaints received from the second and third Defendants and a Judgment of the High Court, Tema. The Plaintiff finds the demolishing exercise carried out on the land by the first Defendant unlawful and discriminatory.

 

It was for the above reasons that on 14^th September 2010, the Plaintiff instituted the present action against the Defendants. The reliefs that were endorsed on her writ of summons were:

An order that there existed a proper and lawful tenancy agreement renewable annually between the plaintiff and the first Defendant.

An order that the demolishing carried out by the Defendants on 17^th August 2018 was unlawful and discriminatory and must be pronounced as such.

An order reinstating the plaintiff as a tenant on the land with full rights.

Perpetual injunction restraining the defendants from going ahead and re-allocating or furthering the re-allocation of the subject-matter land to any third party.

Special damages of GH ₵34,780.00 being the cost of equipment damaged by the Defendants in the process of demolition exercise.

 

 All the Defendants were served personally, but the matter was a two-horse race between the Plaintiff and the first Defendant. The first Defendant entered an appearance and proceeded to file its defence on 5^th November 2010. The second and third Defendants did not file any process, although they appeared in Court during the trial and even had the opportunity to cross-examine the parties. On 26^th October 2016, the Court adopted the issues raised by counsel for the Plaintiff and the first Defendant in the application for directions and additional issues respectively.

 

The ten (10) issues raised by the Plaintiffs were:

i. Whether or not the Plaintiff was in occupation of the land on which she operated her block making factory prior to 1995?

ii. Whether or not in 1995, the Plaintiff applied to the first Defendant for a lease to legitimize her occupation of the land for her business operations?

iii. Whether or not the first Defendant granted her request by tenancy renewal from year to year?

iv. Whether or not the permission granted the plaintiff by the first Defendant was a mere licence in law or a tenancy from year to year?

v. Whether or not the permission granted to the plaintiff involved the payment of rent every year to the first defendant?

vi. Whether or not the demolishing of the plaintiff’s structures on the land led to the destruction of plaintiff’s property?

vii. Whether or not first Defendant must pay to the plaintiff special damages to cover the loss of the plaintiff’s property amounting to GH 34,780.00?

viii. Whether or not the plaintiff must be re-instated on the land?

ix. Whether or not the actions of the first Defendant in demolishing the plaintiff’s structures were discriminatory and unlawful?

x. Whether or not the plaintiff is entitled to compensation?

 

The following were the additional issues filed by the first Defendant:

Whether or not the Plaintiff used the land for moulding blocks and not any other use?

Whether or not plaintiff obtained a building permit from the first Defendant and the Ashaiman Municipal Assembly before creating those structures rendering same unauthorized?

Whether or not the Judgment delivered in the case of Andrea Kofi Agobo Vrs. Victoria Bosomprah and Another in Suit No. 107195 in the High Court, Tema bars the plaintiff from laying claim to the land in dispute?

 

The Case of the Plaintiff

The Plaintiff’s case is that it has a lease with the first Defendant dating from 8^th May 1995. Prior to that, the Plaintiff’s late sister had been occupying the land. According to the Plaintiff, the demolishing exercise carried out by TDC was unlawful.

 

The Case of the first Defendant

It is the case of the first Defendant that it permitted the Plaintiff to be on the land on a licence and denied ever granting any lease to the Plaintiff. It contended that the licence expired in the year 2007 and it notified the Plaintiff to remove her structures from the land. Upon receipt of a Court’s Judgment and a petition from the other Defendants, it proceeded to demolish the structures constructed on the land by the Plaintiff. According to the first Defendant, the licence granted the Plaintiff did not allow her to erect permanent structure on the land and that the Plaintiff had turned the use of the land into residential, contrary to the purpose applied for. In its view, if the Plaintiff could illegally construct permanent structures on the land, then the Corporation was also justified in razing it down.

 

A Seychelles proverb says, “If the throat can swallow a knife, the anus must find a way of dispelling it”.

After examining the pleadings and the evidence adduced at the trial, it is evident that the thirteen (13) issues set down for trial are verbose and circuitous. I believe that it is not out of place to concentrate on the real issues. In the case of Fatal v. Wolley [2013-2014] 2 SCGLR 1070, Wood C.J. held at holding 2 thus: “It is sound learning that courts are not tied down to only issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on ground that it is not included in the agreed issues.”

 

Similarly, in the case of Mrs. Vicentia Mensah & Another v. Numo Adjei Kwanko II [2017] DLSC 2601, Akamba JSC speaking for the Court decided: “It must, however, be made clear that a court of law is not bound to consider every conceivable issue arising from the pleadings and the evidence if in its opinion few of the issues could legally dispose of the case in accordance with the law”. See also the cases of William Ashitey Armah v. Hydrafoam Estate (Gh.) Ltd [2014] DLSC 3000 & In Re Asamoah (Dec’d) Agyeiwaa & Ors. v. Manu [2013-204] 2 SCGLR 906 at holding 4.

 

A careful scrutiny of the issues would reveal that the thirteen (13) issues can conveniently be prune down to three (3), which are:

Whether the Plaintiff occupied the land, the subject matter of dispute as a licensee or as a tenant/lessee of the first Defendant?

Whether the first Defendant was justified in demolishing the structures of the Plaintiff?

Whether the Plaintiff is entitled to the reliefs she is seeking?

 

The parties were ad idem on the following facts:

i. The Plaintiff’s late sister occupied the land prior to her application to T.D.C. for the lease in 1995.

ii. T.D.C. collected annual rent from the Plaintiff between 1995 and 2007.

iii. The Plaintiff constructed permanent structures on the land.

iv. The Plaintiff did not obtain any building permit from T.D.C. and the Ashaiman Municipal Assembly before she began constructing the structures.

v. It was the first Defendant who demolished the structures of the Plaintiff on the land.

 

Whether the Plaintiff occupied the land, the subject matter of dispute as a licensee or as a tenant/ lessee of the first Defendant?

This is the main issue involved in this matter. The Plaintiff’s contends that the transaction between her and TDC is a tenancy or a lease and not a licence. She assumed the burden of proof. In the case of Citizen Kofi Entertainment Concept Ltd. v. Guinness Ghana Breweries Ltd. [2012] 46 GMJ 167, the Court of Appeal per Tanko J.A. at page 176 decided: ““The general principle of law is that it is the duty of a plaintiff to prove his case, i.e. he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the plaintiff leads some evidence to prove his claim, if not he loses on that particular issue”. See also the case of Danso-Dapaah v. Falcon Crest Investment Ltd. & 4 Ors. [2015] 89 GMJ 148 at page 171.

 

The Plaintiff relied on various Exhibits to canvass her case. After carefully, examining them, I came to one conclusion – that the first Defendant never granted anything like a lease or a tenancy to the Plaintiff as she would want the Court to believe. It appears the Plaintiff’s own documents tendered at the trial blighted her chances and cut her own throat. Her wrangling with the Defendants turned out to be mere threats. Amit Kalantri once said, “You cannot intimidate people with real guns but you can intimidate them with fake guns”.

 

I now begin an evaluation of the evidence of the Plaintiff relative to her claim that she is a tenant or lessee of the first Defendant. The Plaintiff relied extensively on Exhibits ‘A’ & ‘A1’ as the basis of her application for a lease. Exhibit ‘A’ is the application for a lease of land. The letter did not indicate the size of the land which the Plaintiff applied for, thereby creating some doubts as to whether it is the same land being contested. Exhibit ‘A1’, which is also an application form describes the land as being of 200 by 70. Even with that, I do not know whether it is in feet, inches or metres.

 

Besides, the measurement stated in the exhibit does not correspond with the description stated at the schedule under paragraph 13 of the Statement of Claim. The uncertainty of the land became more evident during the trial. When counsel for the first Defendant asked the Plaintiff during her cross examination the size of the land in contention at page 2 of the Proceedings, she could not tell. She only said, “It is in the site plan”. Meanwhile, she did not attach any site plan to her exhibits and I wonder whether she could be said to have established her land. A Lebanese proverb goes, “It is not enough for a woman to put her hands on her belly to get a son”.

 

The identification of the land is very vital in the determination of this suit, because when the Plaintiff was questioned by the second Defendant under cross examination that the land is the very land she counterclaimed for in the previous suit, she denied it (See pages 7 & 8 of the Proceedings). Interestingly, when counsel for the Plaintiff at page 4 of the Proceedings asked the Plaintiff, she conceded and only added that where TDC gave her was not part of Agobo’s claim. It is unclear whether the Plaintiff has two separate lands at the area, being one given to her by TDC and another given her by Agobo.

 

The action of the Plaintiff in this Court smacks of suspicion of an attempt to relitigate the same subject matter land. In the previous suit, the Defendants counterclaimed for land at the very area being contested now and lost. The suit was commenced in 1995. At that time, the Plaintiff’s sister had not crossed Jordan; she was alive. I am at a loss as to whether the land was granted by TDC to the Plaintiff herein or to her sister. If it was granted to the late Theresa Bosompra, why would the Plaintiff herein and the Defendant therein be able to file a counterclaim claiming TDC granted the land to her?

 

Exhibits ‘A’ & ‘A1’ tend to suggest that it was the sister of the Plaintiff who applied for the land and not the Plaintiff herein, hence the Plaintiff brought this action as her late sister’s customary successor. However, evidence showed otherwise. (See paragraphs 5 & 6 of the witness statement of the Plaintiff). The identity of the land is unclear in this case and in land litigations, it does not help the cause of the Plaintiff if she leaves the Court in doubt on critical issues being considered. See the cases of Brown v. Darko and Another (1961) GLR 539 at holding (3): Boakyem and Others v. Ansah (1963) 2 GLR 223 at holding 2 and Yawson v. Mensah (2012) 39 MLRG 121 at page 123.

 

Besides the ambiguity in the Plaintiff’s role relative to the land and the description of the land, there appears to be overwhelming evidence on record to suggest that the land was granted to Thexy Blocks Works as a licence and not a tenancy or lease. The Plaintiff shared a different opinion and has been trumpeting that position in this Court for the past nine (9) years. According to a Chinese proverb, “Opinions are like nails: the more often you hit them the deeper they penetrate”.

 

Exhibits ‘A’ & ‘A1’ and ‘B’ are all documents filled by the Plaintiff’s late sister, Theresa Bosompra. They are one sided documents emanating from the Plaintiff. The Plaintiff mentioned a lease granted her by the first Defendant which she claimed to have accepted, but she did not tender it in evidence. No one knows why the Plaintiff took out that lease if indeed it were so. Subsequent communications between the parties however, make it evident that the first Defendant never granted or intended to grant a tenancy or a lease to the Plaintiff.

 

At paragraphs 8, 9 & 10, the Plaintiff’s confidently stated in her witness statement thus:

“(8) I will further show that we have been paying rent assiduously to the Defendant since the grant and doing business peacefully on the land until the said demolishing authority by the 1^st Defendant. (Attached are copies of rent receipts paid in respect of the land marked Exhibit “C”).

(9) 1^st Defendant treated the Plaintiffs as tenants and often wrote to demand rent. (Attached is a letter from the 1^st Defendant demanding rent marked as Exhibit “D”).

(10) That the Plaintiff’s year to year tenancy was renewed without interruption until the date on which the factory was demolished in 2010. Attached is a copy of the 1^st Defendants renewal notice application marked as Exhibit “E”.

Paradoxically, all the three exhibits support the first Defendant’s position that the land given to the Plaintiff was a licence and not a lease.

 

On Exhibit “C”, the money paid is stated as “Being Payment in Respect of LICENCE FEE 3715”. It is not like Exhibit “1(B)” which is a receipt issued to Agobo by TDC described as Payment of Ground Rent. Another observation is that on the Plaintiff’s Exhibit “C”, it is indicated that the payment made expires on 31-12-2006 and 31-12-2007 respectively. This can be contrasted with Agobo’s payment which has no expiration date written on it.

The Plaintiff’s Exhibit “D” is a letter allegedly written by the first Defendant demanding rent. This document is clearly headed: “RE: LICENCE FEE ARREARS ASH/LIC/3”. It was written on 20-10-1999. If the Plaintiff claimed, the first Defendant granted them a tenancy, why would the Corporation write to demand licence fee and not ground rent?

 

In Exhibit “D”, when the Plaintiff’s sister wrote for a renewal of her interest in the land, she captioned it, “Renewal of licence –ASH/LIC/3, Tema”. This letter is dated 16^th July 1996 after the first Defendant had allegedly granted the land to Thexy Block Works. If it was a lease that was granted, why would her late sister write seeking to renew her licence? The answer is obvious. She knew that she had no lease with the first Defendant and could not have asked for that. The Nigerians say, “A naked man does not put his hands into his pocket”. From the evidence in totality, there was no doubt that the first Defendant consistently dealt with Thexy Block Works as a licensor/licensee and it appears the Plaintiff’s late sister did not ever consider their relationship otherwise.

 

I am tempted to believe that the Plaintiff sincerely believes that the relationship between her sister and the first Defendant was one of a licensor/licensee, but after losing out in the case with Agobo, she re-strategized to bring this action. I say so because there is nothing on record to show that the first Defendant ever communicated with the Plaintiff herein about the interest of Theresa Bosompra prior to the commencement of the suit. However, from day one, the Plaintiff indicated in her statement of claim that the first Defendant would contend that it granted a licence over the land. How did the Plaintiff get to know the minds of the first Defendant if that was not the case?

 

The Plaintiff’s counsel forcefully argued that the first Defendant only granted a tenancy and not a lease. Since the truth cannot be quietened forever, he unwittingly exposed himself when cross examining the first Defendant’s representative. At pages 14 and 15 of the Proceedings, this is what ensued:

“Q: By the Plaintiff’s Exhibit “B”, she accepted your offer of the licence on 25-05-1995.

A: Yes, my Lord.

Q: So by the time you demolished the structures in 2010, she had been on this land for about 15 years?

A: My Lord, I do not know.

Q: I am putting it to you that because she accepted your offer of the licence in 1995, Plaintiff Exhibit “B”, Plaintiff had been on the land for about 15 years before you demolished her structures?

A: My Lord that is so, on licence basis….

Q: Even in 2010, TDC collected licence fee from the Plaintiff?

A: My Lord, I do not know”. (My emphasis).

 

From the discourse above, there is no doubt that the Plaintiff and her counsel truly believe that the grant made to the Plaintiff’s sister was a licence and not a lease or tenancy. Per their own documents and admissions, they are estopped from claiming otherwise.

 

Section 25 (1) & 26 of the Evidence Act, 1975 (NRCD 323) provides:

“25 (1) Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the instrument, or their successors in interest.

26. Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successors in interest”.

 

Let me further point out that these estoppels, according to section 24 (2) of the Act are conclusive presumptions and no evidence whatsoever can be entertained to rebut the presumption. The Supreme Court in the case of In Re Koranteng (Dec’d); Addo v. Koranteng & Ors. [2005-2006] SCGLR 1039 decided at holding 2 as follows: “Under section 25 (1) of the Evidence Decree, 1975 (NRCD 323), the facts recited in a written document were conclusively presumed to be true as between the parties to the document or their successors in title. Section 25 (1) had the effect of establishing an estoppel by written document which was applicable to the facts of the instant case.”

 

Also, in the case of Nief Simon Akill (Substututed by Vida Akill) v. James Christopher O. Lamptey (Substituted by Emmanuel O. W. Chruichank) & Another, Civil App. No. J4/05/2016, dated 20^th November 2017, S.C. (Unreported), the apex Court held: “The fact that persons through whom the plaintiff derived title-Obaamra’s lessees acknowledged her as the owner of the disputed property, estops the plaintiff by conduct within the scope and extent of section 26 of the Evidence Act from contending to the contrary and indeed, it being a matter that falls under conclusive presumptions, we are also precluded by section 24 of the Evidence Act from considering any evidence contrary to the conclusively presumed fact.” See the cases of Republic v. NHC (2010) 25 GMJ 164 & Nathaniel Bosomprah Fianko v. Philip Dodoo Djan & Another [20602/2004] C.A. No. 18/2002, per Gbadegbe J.A. (As he then was).

 

Granted there was nothing on record to show that TDC and the late sister of the Plaintiff ever referred to the transaction as a licence, I believe it would still have been a tall order for the Plaintiff to establish that she has a tenancy with the first Defendant. Tenancy is a common law interest in land which has become part of our laws. Under the Conveyance Act, 1973 (NRCD 175), it is deemed as a lease. (See section 45). Sections 1 to 3 of the Act requires all transfers of an interest in land exceeding three years, unless excepted by the law to be in writing and signed by the transferor or his lawful agent, otherwise they cannot be enforced. In the case of Kofi Sarpong (Dec’d) (Substituted by) Nana Kwasi Koduah v. Franklin Adubobi Jantuah [2016] DLSC 2877, the apex Court per Benin JSC held: “. . . Thus, the law as stated in sections 1, 2 and 3 (1) (f) of the Conveyancing Decree, 1973, NRCD 175 required any such lease to be evidenced in writing else it is ineffective to convey any title. Therefore the plaintiff who has no such agreement . . . could not claim to be the owner in possession . . . The plaintiff could not act in violation of the law and ask a court of equity to come to his aid..”

 

Gyan J. (As he then was) also in the case of Nana Amua Gyedua XV v. Mondial Veneer (Gh.) Ltd [2009] 5 G.M.J. 218 sitting at the High Court, Accra held at page 224, H.C. as follows: “The Conveyancing Decree (NRCD 175) demands that unless excepted under the law, a contract for the transfer of an interest in land cannot be enforced unless it is evidenced in writing and signed by the person against whom the contract is to be proved or his authorized agent.” See also the case of Asante Appiah v. Amponsah alias Mansah [2009] SCGLR 90, per Brobbey JSC.

 

From the evidence on record, the first Defendant never signed any document transferring an interest in the land to the Plaintiff. None of the Plaintiff’s exhibit tendered can be said to be a conveyance and no wonder they have not been witnessed as required in all conveyance. Section 40 (1) of NRCD 175 provides: “Every conveyance shall be executed in the presence of and attested by at least one witness”.

 

At page 4 of the written address filed by Counsel for the Plaintiff, he submitted thus: “All the incidence of a lease was present in the application which the Plaintiff presented to the first Defendant”. I am sorry to say that I have a different view to the submission. Exhibit “A1” is a one-sided document. It is an application form filled by the late

 

Theresa Bosompra. How can a one-sided document not signed by the transferor of the land constitute a lease?

In the case of A.R. Duodu Sakyiama v. TDC [2016] DLSC 2826, the Supreme Court explained that a one-sided document cannot amount to a legal lease: Appau JSC speaking for the Court held: “ … legal leases are almost invariably bilateral contracts, in which the tenant is not only given an estate in the land but also himself gives covenants, e.g., to pay rent and execute repairs, etc. Broadly put, a lease agreement is a contract between two parties, the lessor and the lessee. Aside of the fact that the Respondent offered the land in question to the Appellant for farming purposes under express terms, there is nothing to show that the Respondent and Appellant entered into or executed any written lease agreement or contract document….

Exhibit ‘A’ is no contract or agreement. It was just a mere offer letter. It was a unilateral grant or in other words an equitable grant or lease. It is trite that a lease agreement is a contract for lease of land and thus the terms of the contract have to be by mutual agreement. The formal lease that should have been prepared and executed by the Respondent and the Appellant as provided under paragraph 5 of Exhibit ‘A’ was not concluded. A contract or agreement must be executed or signed by both parties tying them to the terms expressed therein”.

 

His Lordship proceeded to state the essentials of a lease as follows: “The material terms of a valid lease are as stated by da Rocha and Lodoh in their book; ‘PRACTICAL DRAFTSMAN’, published by DR & L Printing and Publishing Services, Accra, Ghana – 1998; page 50, viz;

 

Identity of the lessor and the lessee and the capacities in which they are contracting;

A precise description of the land to be leased;

The duration of the lease and its commencement date;

The consideration for lease;

The covenants, stipulations and conditions which the parties intend to govern their relationship; and

Signature of the parties or their agents duly authorized in writing to sign on their behalf.

Exhibit ‘A’ does not satisfy all the requirements stated above; particularly requirements (e) and (f). Exhibit ‘A’ is therefore not a valid lease that is enforceable in our courts.”

 

In the case of Gyebu XV v. Mondial Veneer Ltd. [2009] 5 G.M.J. 218, Gyan J. again sitting at the High Court, Accra held at page 234 held: “A lease is an interest in land which is created to last for a fixed period.There can be no lease if the date for its commencement and the date for its expiration cannot be precisely ascertained…. This means the dates on which it begins and ends must never be in doubt. See Ghana Land Law & Conveyancing, by B.J. da Rocha & CHL Lodoh”. See the case of Nana Bediako Atwere (substituted by John Kwame Owusu) v. Osei Owusu (alias Yaw Owusu Achiaw) [2011] 36 GMJ 157 at page 188. The Court of Appeal the case of Okai v. Ocansey [1992-93] 3 GBR 1028, held per Adjabeng J.A. that there could not be a lease where the essential terms have not been agreed.

 

A ‘Lease’, according to Barron’s Law Dictionary, 5^th Edn. is defined at page 289 as: “an agreement whereby one party (called the landlord or lessor) relinquishes his right to immediate possession of property while retaining ultimate ownership. Ordinarily, when a lease is made, we find an agreement by owner lessor to turn over specifically described premises to the exclusive possession for a definite period of time and for a consideration commonly called rent.”

 

Can the Plaintiff tell the Court the duration of her alleged lease in this case? The answer is No! A lease may require the lessee to pay for the rent on periodic basis or annually, but that may not necessarily mean that the duration of the lease is for one year. The covenants of the grant in leases are very vital, but in this case, no covenant is stated. At page 3 of the Proceedings, the Plaintiff appeared not to know the purpose for which the land was granted by the first Defendant. Her counsel also stated at pages 4 & 5 of his written address as follows: “No evidence in the trial suggested that the plaintiff was given any set of rules to follow apart from the contents of Exhibits “A”, “A1” and “B” neither was it shown that the plaintiff breached any term or condition of the lease offer (Exhibit A1).

 

Further, counsel for the Plaintiff in distinguishing between a lease and a licence submitted on the authorities of Street vrs. Mountford [1985] AC 809, [1985] 2 All ER 289 & Radish vrs. Smith [1959] 101 CLR 209 at 222 and concluded that the transaction herein is a tenancy and not a licence.

 

He stated in respect of the former case that: “The House of Lords held that where an occupier was granted exclusive possession, (2) for a term, (3) at a rent, then subject to certain well extinguished exceptions created by service occupancy or where there was no intentions to grant a tenancy and all the circumstances and conduct of the parties showed what was intended was that the occupier should be granted a personal privilege with no interest in the land, a tenancy would be created…”

 

It may be recalled that the principle enunciated in the case was not without exceptions. Among the exceptions is ‘where there was no intention to grant a tenancy’. The first Defendant explained that part of the land was a road reservation and they did not want to create a permanent interest in the land, hence the licence. The continuous receipt of licence fee re-affirms the point and I do not believe the rule would apply in that circumstance.

 

It appears that counsel for the Plaintiff construed the long presence of his client on the land as ripening into an interest in the land. I regret that I agree with counsel to the contrary. It is said that, “No matter how long a log stays in water, it cannot become a crocodile”. I believe that I am shielded by the decision of Baah J. in the case of First Eye Limited v. Jehovah God See Me Herbal [2013-2015] 1 GLR 101, H.C. (Accra) at holding 1 thus: “… The length of stay of the defendants on the land was immaterial. Further, the payments of the rents created no interest in the land beyond the license that was created on their behalf”. See also the cases of Mensah v. Blow [1967] GLR 424, CA & Nuamah v. Frimpong [1973] 2 GLR 37.

 

Further, it is worthy of note that there are basically three types of licences; contractual, gratuitous and bare. See the cases of Marian Obeng Mintah v. Francis Ampenyin [2016] 95 GMJ 1 at pages 4-5, S.C. With contractual license, the licensee may provide consideration or rent, but that alone does not change the character of the relationship from a license to a tenancy.

On the totality of the evidence on record, I am strongly of the view that the land granted to the Plaintiff’s sister by the first Defendant was a licence and not a lease or tenancy and I so find.

 

Whether the first Defendant was justified in demolishing the structures of the Plaintiff?

Having found that the Thexy Block Works was occupying the land as a licensee, there is the need to find out what rights the Plaintiff has on the land in the circumstance of this case where her properties were destroyed. According to a Brazilian proverb, “Between the beginning and the end, there is always a middle”. The Akans equally say, “If you see two men fighting, don’t ask ‘what is the matter? Ask what was the matter?”.

 

At page 5 of the address filed by counsel for the Plaintiff, he submitted: “If this honourable court holds that the plaintiff has a lease or tenancy, then by law the plaintiff will be entitled to be treated as a tenant or lessee of 1^st defendant and therefore entitled to due process, instead of the forcible ejection and demolition”.

 

I believe the converse of the submission holds true; that if the Court finds that the Plaintiff has no tenancy or a lease, then she would not deserve the courtesies for tenants. According to a Yoruba proverb, “As long as there is lice in the seams of the garment, there must be blood stain on the fingernail”.

It needs reiterating the point that the late Theresa Bosompra operated Thexy Blocks Works as a sole proprietorship business. There was therefore no dichotomy between the owner and the business.

 

Legally, the demise of a sole proprietor should lead to the demise of her business name. “When the roots of a tree begins to decay, it spreads death to the branches”, says a Nigerian proverb.

The learned industrious Professor of Law, Philip Ebow Bondzi-Simpson at page 8 of his book, Company Law in Ghana had this to say, “ … in Ghana, sole proprietorships seldom survive the death of the proprietor. The health and life of the sole proprietor’s business is inevitably linked to the death and life of the sole proprietor himself”.

 

Under Ghanaian law, it seems to me that sole proprietors die with their business names and the Plaintiff, being the customary successor, ought to have notified the Registrar General for the removal of the name Thexy Blockk Works from his records within three (3) after the cessation of business by Theresa Bosompra herself upon her demise. (See section 10 of Registration of Business Names Act, 1962 (Act 151). According to an English proverb, “Death closes all doors”.

 

Generally under the common law, a licence comes to an end upon the passing of the licensee and third parties could have no rights under the license. At page 274 of his book, Land Law Practice and Conveyancing in Ghana, second edition, Dennis Adjei J.A. wrote: “… a licence is incapable of binding persons who were not parties to the licence agreement”. It seems that the licence in this case is a contractual one, but it still does not change the fact that a third parties was not expected to take over from the licensee after her demise. BJ da Rocha & CHK Lodoh in their book, Ghana Land Law and Conveyancing (2^nd edition) noted at page 165 thus: “Even a contractual license was considered as creating no proprietary interest in land. The contractual licensee had no title or interest to transmit to his successor in title”.

 

In the case of Ahenkra v. Yamark [1992] 1 GLR 486, it was held at holding 3 as follows: “Since at common law a licence was a contract, under the rule of privity the burden of a contract could not be passed on to a third person. Accordingly, third parties were not bound by a licence”.

 

I must be quick to add that in special circumstances, equity may intervene. In the case of Errington v. Errington [1952] 1 KB 290, Lord Denning treated a contractual licence as binding against a third party during the subsistence of the licence. However, the House of Lords later in the case of National Provincial Bank v. Ainsworth [1965] AC 1175, reverted to the old position that contractual licence does not bind third parties.

 

Therefore, it can be said in this case that when Theresa Bosompra died in 2002, the licence granted her by the first Defendant became extinguished. The Plaintiff ought to have notified the first Defendant of her sister’s death and if she was interested, re-applied. An Irish proverb says, “No matter how tall your grandfather was, you have to do your own growing”.

The Plaintiff is purporting to wear the apparels of her late sister, but she has no apparel of her own and instead of quietly enjoying the borrowed robes, she has had the guts to sue the first Defendant. A Shona proverb say, “Those with tattered skirts should avoid dancing too close to the fire”.

The Plaintiff’s failure to notify the first Defendant of her sister’s death or re-applied but continued to deal with the property under the guise of her sister’s trade name as if she was alive was wrong in law. Our elders say, “He who goes to sleep with an itching anus, wakes up with smelly fingers”.

 

Moreover, the Plaintiff conceded that the licence expired in 2007 and was not renewed. Upon the expiration of the licence, Thexy Block Works should have taken its properties from the land and not to put up permanent structures. According to one Ewe proverb, “A stranger does not hold the head of a coffin”. Upon the determination of a license, the licensee has a reasonable time to remove her items from the land. In the case of Quagraine v. Adams [1981] GLR 599, the Court of Appeal held per Boisosn J.A. thus: “Now a licensee is entitled to a reasonable time, in which to remove himself and his property after the licence was revoked. This is so whether the licence was gratuitous or contractual”. See also the case of Archiaa v. Ampate [2012] 52 GMJ 180 at page 203, per Owusu J.A.

 

The demolishing exercise that was undertaken by the first Defendant took place in 2010, three good years after the expiration of the licence. I believe three years was a reasonable period for the Plaintiff to have removed her structures from the land. The Plaintiff’s beef with the first Defendant that, it was not its duty to remove the structures on the land, is not only unconvincing, but highly ludicrous. If the first Defendant has the responsibility by law to manage, plan and develop lands within Tema Acquisition Area, then I believe it has the power to remove any unauthorized structure on their land. A Georgian proverb says, “If you forgive the fox for stealing your chicken, it will eat your sheep”. Again, official acts under Section 37 (1) of the Evidence Act, 1975 (NRCD 323) are presumed to have been regularly performed.

 

In view of the above analysis, I find that the first Defendant committed no wrong in demolishing the structure of the Plaintiff on its land. After all, our elders say, “A loose tooth will not rest until it is pulled out”.

 

Whether the Plaintiff is entitled to the reliefs she is seeking? 

The Plaintiff has been unable to prove her claims. In the words of Terence McKenna, “The problem is not to find the answer, it’s to face the answer”. The Plaintiff had earlier lost in a similar suit. Her counsel submitted in his written address that the Court should disregard it. She sought for perpetual injunction as part of her reliefs. Whereas the Courts can conveniently grant an interlocutory injunction sought by a licensee against her licensor, there are doubts whether the same can be granted in the case of perpetual injunction.

 

Baffoe- Bonnie JSC speaking for the Supreme Court in the case of The Republic v. Bank of Ghana & 5 Others, Ex parte Benjamin Duffour [2018] DLSC 2503 decided: “A licence does not pass an interest in land nor does it transfer property in the land. It can be distinguished from easement, leases and tenancies which transfer proprietary rights… Irrespective of the type of licence being held by the appellant, the grant of a perpetual injunction restraining a licensor from ejecting his licensee is highly doubtful. An injunction may be obtained in cases of a licence coupled with an interest and a contractual licence. However to hold that such an injunction includes a perpetual injunction in the absence of any cogent evidence to aid the court would be untenable…”.

 

The Plaintiff could not also prove the special damages of GH₵34,780.00 claimed. It is common knowledge that special damages have to be proved. See the cases of Delmas Agency Ghana Ltd v. Food Distribution International Ltd (2007- 08) SC GLR 748, Moses Okrah v. African Development Bank [2016] DLSC 2866 per Yaw Appau JSC & Kobi v. Ghana Manganese Co. Ltd [2007-2008] SCGLR 771 at 772, SC.

 

At this stage, I proceed no further with my analysis. A Filipino proverb says, “No matter how long the procession, it still ends up in church”. On that note, I end this judgment by dismissing the entire claim of the Plaintiff.