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(1973) 1 GLR 1-8


On 25 August 1964.The Accra-Development Corporation

granted the plaintiff licence to enter plot No.D/129 C,

situated at Ashiaman and to erect thereon a temporary
As a condition the plaintiff was to pay a monthly fee of 10
shillings in advance on the first day of every month.

There was also a clause in the licence that read: '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.


The plaintiff, a licensee of the Tema Development

Corporation, had since August 1964 been in arrears with

his rent. The T.D.C. had however accepted payment in
arrears up to 1967 (exhibits Al-A5).
In 1967 the T.D.C. asked plot holders to re-register their
plots, stating that on failure to do so it would be assumed
that the plot had been abandoned.
The plaintiff did not re-register his plot. The same plot
was subsequently granted to the defendant by a senior
officer of the corporation but there was no evidence that
she registered it or ever paid any rent.

Upon entry of the plot by the defendant she was sued by
the plaintiff inter alia:
(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 trial judge, upon the facts, held that the plaintiff was

neither the owner of the plot nor in possession and gave

judgment for the defendant.
The plaintiff appealed.
The case travelled from the trial court to the Court of
Appeal with Azu Crabbe and Prempeh JJ.S.C. And Archer
J.A. sitting as Judges.

Counsel for the plaintiff sought leave to amended the writ

of summons to aver possession.

The only issues before the Court of Appeal were whether
exhibits Al-A5 were evidence that the T.D.C. had waived
their rights under Act 159, s. 1 to revoke the plaintiff's
licence and
whether a statutory requirement imposed on a public body
like the T.D.C. could be waived.


The appeal was dismissed on the ground that the power

given by Act 158 to the T.D.C to allocate land and collect

rent accruing therefrom, and the provisions of Act 159
ensuring the prompt payment of these rents were
intended for the welfare of the general public.
The defendant was on the facts as much a trespasser as
the plaintiff but this was a proper case to apply the maxim
melior est conditio possidentis ubi neuter jus habet in
her favour because she was in physical possession at the
commencement of the proceedings.

Cases referred
1) England v. Palmer (1955) 14 W.A.C.A. 659.
(2) Bowmaker, Ltd. v. Tabor [1941] 2 K.B. 1
(3) Equitable Life Assurance Society of the United States v.

Reed [1914] A.C. 587

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

(5) Spurling v. Bantoft [1891]2 Q.B. 384; 60 L.J.Q.B. 745; 65

L.T. 584
(6) Yabbicom v. King [1899] 1 Q.B. 444


Trespass to land is unjustifiable interference with the

possession of land.
This Tort is committed against possession and not ownership. A
person commits trespass to land when his right of entry has
ceased(Remaining on land).
In this instant case the plaintiff violating section one of Act 159
revoked his license and therefore was not in possession of the
plot at the time of the suit.
There was evidence that the defendant had not paid rent to
TDC and her name was not registered. However, upon the
facts she has built 10 kitchens on the said plot and this
demonstrated that she was in possession of the land.
However both plaintiff and defendant were seen as trespassers
but the court found in favour of the defendant based on the

melior est conditio possidentis ubi neuter jus habet in

her favour because she was in physical possession at the

commencement of the suit.
Again in trespass to land mere use without possession or
mere ownership without possession is not sufficient.
Therefore the plaintiff did not have the capacity to institute
the suit.
We therefore agree with the holdings of the court of