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CHIEF LANDS OFFICER v. OPOKU


  • New
  • 1962-07-17
  • HIGH COURT
  • 2 GLR 58-61
  • Print

DJABANOR, J.


Summary

Building lease?-Government land?-Breach of covenant?-Written undertaking by lessee to develop land within two years for a purpose approved by a third party?-Computation of the two-year period?-Commencement of building operations?-Whether making of cement blocks constitutes commencement.Landlord and Tenant?-Lease?-Forfeiture?-Arrears of rent?-Rent tendered but refused?-Whether tenant entitled to relief against forfeiture.

Headnotes

On taking a lease of a piece of land at Kumasi from the Government Lands Department, the defendant signed an undertaking on the 4th July, 1956, agreeing to develop the land "for the purpose approved ... by the Kumasi Planning Committee." It was further agreed that the defendant "shall within one year from the date hereof commence to erect and within two years complete buildings on the said plot. . . ." The defendant made a few cement blocks early in 1957. The Kumasi Planning Committee did not grant a development permit to the defendant until the 14th October, 1958. Thereafter he actively began to build.On the 24th July, 1959, the Lands Department by its agents re-entered the plot and purported to terminate the lease for breach of the undertaking, contending that the defendant failed to commence the building within one year of the 4th July, 1956, and in any case he did not have on the plot a completed building by the 4th July, 1958. The Lands Department refused to accept any rent tendered to them relating to the period subsequent to the 24th July, 1959.

Judgement

ACTION for forfeiture of a lease for breach of an undertaking and for non-payment of rent.

By his statement of claim filed on the 30th September, 1961, (writ issued on the 9th August 1961) the plaintiff claimed as follows:

"(1) The plaintiff is entitled to the possession of the plot of land and premises known as No. 22 Block VIII, North Zongo, Kumasi, now in occupation of the defendant Joseph Opoku or his sub-tenants.

(2) The defendant entered into an undertaking on the 4th July, 1956, to develop the said plot by building a main residential house on it within two years from that date and to pay on the 1st day of April in each year a rent of G18 5s. per annum.

(3) The defendant having failed to comply with the terms of the above mentioned undertaking the said Plot No. 22 Block VIII North Zongo was lawfully and duly re-entered upon on behalf of the plaintiff with the intent of determining the said undertaking on the 24th day of July, 1959.

(4) After the said re-entry the said Joseph Opoku the defendant wrongfully went into occupation and is still in occupation thereof.

And the plaintiff now claims:

(1) Possession of the said premises.

(2) A declaration that the defendant has no interest in the said plot."

In his defence the defendant admitted that he entered into an undertaking on the 4th July, 1956, as stated in paragraph (2) of the plaintiff's statement of claim but denied that the or plaintiff is entitled to the possession of the plot. The plot has now been built upon.

The plaintiff claims to be entitled to the possession of the plot on two main grounds; first that the defendant failed to pay the annual rent of G18 5s. reserved, and secondly that the defendant in breach of the covenant in the undertaking failed to complete the building on the plot within two years from the 4th July, 1956. [p.60]

The written undertaking, the breach of which is the subject of this action had been lost, but by consent a similar undertaking, made between the plaintiff's predecessors in title and another party was tendered.

As I understand it the plaintiff's case is that in breach of paragraph (2) of the undertaking the defendant failed to complete a building on the plot within two years from the 4th July, 1956, and that therefore the plaintiff in accordance with paragraph (7) of the said undertaking re-entered the land and thus determined the tenancy. The defendant's contention is that the plaintiff has not re-entered, and that even if he has, he has done so wrongfully, or else the plaintiff should not be allowed to re-enter.

Paragraphs (1) and (2) of the undertaking read as follows:

"(1) That I shall use the said plot for the purpose approved by the Development Permit No. 603 dated 23rd day of June, 1948, issued by the Kumasi Planning Committee.

(2) That I shall within one year from the date hereof commence to erect and within two years complete buildings on the said plot such buildings to be erected in accordance with plans and specifications to be approved by the Kumasi Town Council on behalf of the Asantehene."

It is to be observed that the plot was to be used for the purpose approved by the permit granted by the Kumasi Planning Committee on a certain date.

In the absence of the defendant's own undertaking I can only supply this date (i.e. the date of the permit to develop) from exhibit 4. From this exhibit the permit was dated the 14th October, 1958. That means that the plot must be developed in compliance with the permit issued on the 14th October, 1958. Now according to paragraph 2 the building is to commence within one year and be completed within two years of the "date hereof." The plaintiff maintains that the relevant date of commencement is the 4th July, 1956, the date of the signing of the undertaking, and the defendant contends that it cannot be other than the date when the permit to develop was granted. It is not known precisely when the plan was approved as having complied with the building regulations, but in my view it does not matter. This undertaking was entered into by the defendant. The document is not an agreement. The defendant is saying to the plaintiff: "In consideration of your permitting me to enter forthwith into occupation of this plot I undertake that I shall use the said plot for the purpose approved by the Kumasi Planning Committee." It seems to me that this is the main undertaking, and that until the purpose for which the plot is to be used is approved by the appropriate committee the defendant cannot really say how long it will take him to undertake the development. I think that it is for that reason that the date of the approval of the purpose for which the land is to be used is inserted in the undertaking. In the instant case the plot was approved for the purpose of building a dwelling-house thereon on the 14th October, 1958. I hold, therefore, that the date of commencement and completion of the dwelling-house must be computed as from the said 14th October, 1958, and not the 4th July, 1956.

The evidence is that the defendant started to make cement blocks on the plot within one year of the signing of the undertaking. In my view that constituted a commencement of building operations. By exhibit C5 the defendant reported to the senior valuer, Lands Department, [p.61] that he had completed the building on the plot. That letter was dated the 6th February, 1960. If that is correct then the defendant had completed the building within two years from 14th October, 1958, and the purported re-entry on that ground is unlawful and of no effect. If the defendant did not complete before October 1960 (which I think is the truth), the re-entry taking place as it did before October 1960, is irregular and of no effect.

The plaintiff also purported to have re-entered on the ground of breach of covenant to pay rent. The law on this is settled. At page 493, para. 378 of Hill and Redman's Law of Landlord and Tenant (12th ed.) appears the following:

"The proviso for re-entry on non-payment of rent is regarded in equity as merely a security for the rent, and accordingly, provided that the lessor and other persons interested can be put in the same position as before, the lessee is entitled to be relieved against the forfeiture on payment of the rent and any expenses to which the lessor has been put.... If the lessor has brought an action to recover possession, the lessee or his assigns may, at any time before trial, pay or tender to the lessor or pay into Court, all the rent in arrear, together with costs, thereupon all further proceedings are stayed and the lessee or his assigns hold the demised lands under the lease, without any new lease."

By section 212 of the Common Law Procedure Act, 1852,1 if the tenant pays all the rent in arrear before trial, the relief against forfeiture will be granted, but this provision applies only when the rent was six months in arrear. Wilberforce, J., so held in the recent case of Standard Pattern Company Limited v. Ivey.2 In this instant case the rent was in arrear for only four months, and in any case the evidence is that the rent for that whole year was tendered to the plaintiff but he took an amount of G5 11s. 7d. for rent from 1st April, 1959 to 20th July, 1959, and rejected the rest. In the circumstances I will not allow the plaintiff to take possession of the plot on the ground of the breach of this covenant either.

The plaintiff's action is accordingly dismissed and there will be judgment for the defendant as he is still entitled to the possession of the plot. The defendant will have the costs of this action assessed at 40 guineas.

Decision

<P>Action dismissed.</P> <P>Judgment for defendant.</P>

Plaintiff / Appellant

Quist

Defendant / Respondent

K.G. Osei-Bonsu for N. Y. B. Adade

Referals

Standard Pattern Co. Ltd. v. Ivey [1962] 1 All E.R. 452

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