MEMUNA AMOUDY vs. MR. KOFI ANTWI [2004]DLSC6418

Date	2004-11-24
Suit No.	CIVIL APPEAL NO. J4/6/2004
Citation No.	[2004]DLSC6418

ATUGUBA J.S.C. (PRESIDING)

MISS AKUFFO J.S.C.

MRS. WOOD J.S.C.

DR. DATE-BAH J.S.C.

PROF. OCRAN J.S.C.

MR. JAMES AHENKORAH FOR THE APPELLANT.

MR. S. H. ANNANCY (WITH HIM GEORGE APPIAH) FOR THE RESPONDENT.

[2004]DLSC6418
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													<main id="main" class="content" style="min-height: 60rem" >MEMUNA AMOUDY <o:p></o:p>(PLAINTIFF/APPELLANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MR. KOFI ANTWI <o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO. J4/6/2004
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH NOVEMBER, 2004<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. JAMES AHENKORAH FOR THE
APPELLANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. S. H. ANNANCY (WITH HIM GEORGE
APPIAH) FOR THE RESPONDENT. <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ATUGUBA, J.S.C. (PRESIDING) MISS
AKUFFO, J.S.C. MRS. WOOD, J.S.C. DR. DATE-BAH, J.S.C. AND PROF. OCRAN, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>ATUGUBA,
J.S.C.<o:p></o:p>I
have had the advantage of reading the judgment of my learned Sister Wood JSC
and I agree with her conclusion that the appeal be dismissed. <o:p></o:p>Mr.
Ahenkorah, counsel for the appellants, (hereafter called the plaintiffs), has
vigorously contended that the plaintiffs' case was a simple action for
ejectment by his clients as licensors against their licensee, the respondent
(hereafter called the defendant); and that as the evidence clearly establishes
the facts of the license, the defendant is estopped under section 28 of the
Evidence Decree, 1975 (NRCD 323), from denying his licensor's title. <o:p></o:p>I
should have thought that before any presumption as to the right of possession
of the disputed land is raised in favour of the plaintiffs as licensors (as
provided in section 28 of NRCD 323), the basic facts upon which the presumption
is to operate must be established. In this case the acts extending to create
the relationship of licensor and licensee must first be established since
dealing in land can be done in several capacities: see Official Trustee Charity
Lands v Ferriman Trust Ltd [1937] 2 All ER 85. It is trite law that certain
facts may give colour to a certain legal relationship whereas no such
relationship was ever intended and therefore created. Thus in Booker v Palmer
[1942] 2 All ER 674 at 677, CA Lord Greene MR said: <o:p></o:p>"There
is one golden rule which is of very general application, namely, that the law
does not impute intention to enter into legal relationships where the
circumstances and the conduct of the parties negative any intention of the
kind." (The emphasis is mine). <o:p></o:p>The
defendant here strenuously denied any intent to create the relationship of
licensor and licensee with the first plaintiff and his family and the first
plaintiff's evidence lends credence to that contention. The plaintiffs had
undertaken to give the defendant a lease or otherwise satisfy him as to title. <o:p></o:p>Be
that as it may, the plaintiffs did not object to the adduction of evidence
inconsistent with their title under section 6 of the Evidence Decree, 1972
(NRCD 323). It is trite law that evidence let in without objection, unless
inadmissible per se, can be considered by the court: see Satt v Darko [1987-88]
1 GLR 123 CA; Quashie v Boahema [1987-88] 1 GLR 727, CA and Akuffo-Addo v Cathline
[1992] 1 GLR 377, SC. The Evidence Decree, 1975 (NRCD 323), s 10 requires a
court to consider all the evidence led in order to see if a party has
discharged the burden of production or persuasion. And on such consideration,
the plaintiffs' title was not established and judgment was rightly given
against them. <o:p></o:p>If
the plaintiffs had excluded evidence inconsistent with their title, by setting
down the question of estoppel as a preliminary point and establishing it
clearly by evidence, then they could have escaped from any defects in their
title since all they would then need to have proved was the relationship of
licensor and licensee. They did not do so. They allowed the whole matter to be
opened up by the issues settled for trial on the summons for directions and by
actual evidence led on the question of their title to the land by both parties.
Their case, as I earlier said, therefore fell or stood on all such evidence
led. By allowing their title to be thus challenged by the defendant, the
plaintiffs have reaped the fruits of volenti non fit injuria, a principle often
applied in tort but mutatis mutandis applicable to this context. <o:p></o:p>The
plaintiffs, however, are lawfully on the land as licensees of the Republic
despite the compulsory acquisition of the land by the Republic. A licence is
not an adverse interest: see Twifo Oil Plantations Project Ltd Ayisi [1982-83]
GLR 881, CA. As licensees, they have no estate to transfer to another. In
National Provincial Bank Ltd v Ainsworth [1965] 3 WLR 1 at 14, HL Lord Hodson
said: <o:p></o:p>"Thomas
v Sorrell (1673) Vaugh 330, 351 contains the classic definition of a license
propounded by Vaughan CJ: 'A dispensation or license properly passeth no
interest, nor alters or transfers property in anything, but only makes an
action lawful, which without it had been unlawful."' (The emphasis is
mine). <o:p></o:p>The
first plaintiff's family knew of the compulsory acquisition by the State and
their dealings with the land were therefore done in that frame of mind which
does not involve any notion of adverse possession to the title of the State or
the capacity to grant an interest therein to anyone. <o:p></o:p>For
</main>