ABUBAKAR VRS. ANUM (A1/01/23) [2024] GHADC 500 (31 October 2024)

CORAM: HER WORSHIP MRS. ANNETTE SOPHIA ESSEL, SITTING AS DISTRICT MAGISTRATE, AMASAMAN DISTRICT COURT “B” ON THURSDAY THE 31ST DAY OF OCTOBER, 2024 SUIT NUMBER: A1/01/23 UMARU ABUBAKAR PLAINTIFF VRS EMMANUEL SOWAH ANUM DEFENDANT INTRODUCTION: JUDGMENT The subject matter of this suit is a building complex occupying 364 x 22 square feet of land at Abofu; a suburb in the Accra Metropolitan District of the Greater Accra Region of the Republic of Ghana. Parties in this suit are tenant and landlord respectively. Plaintiff is a businessman and a resident at Haatso. Defendant is a pensioner and a representative of the Anum Family of Accra. By a Writ of Summons filed in the registry of this court on 24th August, 2022 the Plaintiff per his Lawful Attorney: Seidu Kunda sued the Defendant for reliefs as stated below: (1) A declaration that the Plaintiff’s lease agreement will expire on 1st July, 2033. (2) An order to restrain the Defendant, assigns, servants, privies, agents or whosoever from interfering with the Plaintiff’s quick enjoyment of the store he has built on the leased land. (3) Damages for breach of contract. (4) Cost including legal fees. Page 1 of 14 (5) Further or the orders deem fit by the Honourable Court. CASE OF THE PLAINTIFF: The Plaintiff’s Lawful Attorney testified that the Plaintiff being a businessman dealing in second- hand goods expressed an interest in leasing Defendants land at the frontage of the defendant’s house at Abofu for business purposes. The intention of Plaintiff was to build a shop complex for trading his goods, occupy same and then subsequently return or transfer same to Defendant for an agreed period on mutually agreed terms between parties. In this regard Plaintiff Lawful Attorney arranged for parties herein to negotiate on their terms which subsequently resulted in a contract upon reaching a consensus following negotiations. Their agreement was reduced into a document which Plaintiff tendered as Exhibit B. According to the Plaintiff he understands that he has an obligation to construct a one storey- building comprising of four (4) shops, occupy same on Defendant’s land for a period of twenty- five (25) years and upon expiry/effluxion of time of tenancy subsequently hand over same to the defendant’s extended family. It is the claim of Plaintiff that he has constructed the said one-storey building and continues to occupy same. In support of this averment, Plaintiff tendered Exhibit C which is a coloured photograph of the said building. Plaintiff avers that he lives in Amsterdam. That following the construction of the ground floor set of three shops, his wife occupies same from where she operates his business whilst he continues to prospect for clients to occupy the top floor set of shops. He narrated that the defendant resides on the same grounds that accommodates the building complex. In describing same, he stated that the defendant’s home is directly behind the complex building. Plaintiff averred that following construction of the building complex, in the year 2020, the defendant herein unilaterally demanded one of the shops in the building complex built by Page 2 of 14 Plaintiff herein for his personal use which same Plaintiff resisted as same was not a term in their agreement. Peeved by this refusal of Plaintiff, the defendant sued Plaintiff herein to compel him to release the said shop to Defendant at the Sowutuom District Court in Suit Number A11/09/2021 which resulted in a judgment in favour of Plaintiff herein. In support of his averment Plaintiff tendered exhibit D which is the judgment in the said case. The pith of the plaint of the plaintiff is that during his period of occupancy of the premises, the defendant continually denies him the peaceful enjoyment of same through numerous acts of harassment with an intention aimed at compelling the plaintiff to prematurely vacate the premises. He further narrated that with respect to the act of harassment whenever prospective clients of Plaintiff visited the premises for purposes of renting the vacant shops, the defendant would ward off these clients by coming unto the premises and warding them off. In other instances, whenever customers enter his shops to purchase goods the defendant would enter the premises, make noise and create a scene of repossession of the premises by demanding the plaintiff to yield up vacant possession and hand over the keys of the premises. He stated that these acts of harassment on the part of Defendant was having an adverse effect on his finances as he could not get any tenant to occupy the top floor shops. His wife also complained that same was having a debilitating effect on his business as same did not create a congenial atmosphere for clients to patronize his trading venture. During trial the Plaintiff further testified that he was aware that he had to build the entire complex within his first year of occupancy: by July, 2008 and so was still working at it. He claimed he had been in occupancy of the premises for ten (10) years but work had stalled due to a litigation between Defendant and his neighbour on the positioning of the top floor shops and until resolved he didn’t continue the building works. He narrated that the Defendant continued to demand from him money for the payment of exorbitant property rate bills of which he had made Six Hundred Cedis (GH¢600.00) only ready for collection at the convenience of Defendant, yet Defendant refused to collect same but demanded One Thousand Eight Hundred Cedis (GH¢1,800.00) only. Page 3 of 14 The last straw that broke the Plaintiff back for him to run to the court was when Defendant unilaterally commenced the erection of a fence wall on his property which same would adversely affect the access and egress of Plaintiff’s customers who patronized his shop and also closed off the display section of the shop. Plaintiff asserted that although he had notified Defendant of all this, Defendant only dug his feet in deeper on grounds that the wall he was erecting was at the side of his property and not at the frontage of Plaintiff’s shop. CASE OF THE DEFENDANT: The Defendant contended that on 1st July, 2007, he entered into a lease agreement with Plaintiff with respect to the land on the frontage of his residence with measurements mentioned supra for the construction of six (6) shops and a toilet facility to be constructed by Plaintiff in a one storey building. It was agreed between parties that following construction plaintiff would occupy same for twenty-five (25) years. By the twenty-five (25) years agreement which commenced on 1st July, 2008 same was to expire on July 1st 2033. Defendant claimed that this contract was binding on the Plaintiff to build six (6) shops including a toilet facility within one year of tenancy and pay a royalty fee of Five Thousand Five Hundred Cedis (GH¢5,500.00) only. Upon completion of the shops and toilet facility within the first year of the agreement, Plaintiff was to pay a yearly or annual rent of One Hundred and Eighty Cedis (GH¢180.00) only. In support of his averment, the Defendant tendered Exhibit 1 which is a tenancy agreement between him and Plaintiff. The defendant stated that ten years into their occupation of the premises, the plaintiff had only built three shops of the ground floor in clear breach of paragraph 2 of the terms of their agreement. In this regard, he acting on behalf of his family wrote a letter dated 30th August, 2018 notifying Plaintiff of this clear breach and advising him to make good his obligation. A copy of this letter was tendered by Defendant as Exhibit 2. Defendant stated that later he unilaterally gave Plaintiff a further one year for compliance or in the alternative the lease be reviewed to Page 4 of 14 twelve and half years ending on 31st December, 2019. Thereafter if Plaintiff opted to remain in the premises he would then have to pay rent at a monthly rate of Four Hundred Cedis (GH¢ 400.00) only which same was subsequently increased to One Thousand Eight Hundred Cedis (GH¢1,800.00) only per month in January of every calendar year. Defendant asserted that following this decision, in February, 2022, Plaintiff was notified by letter of an increment in monthly rent at Thousand Eight Hundred (GH¢1800) only from January 2020 payable yearly. This said letter was tendered by Defendant as Exhibit 3. It is the plaint of Defendant that as at December 2022, the plaintiff was in rent arrears of Sixty- Four Thousand Seven Hundred Cedis (GH¢64,700.00) only which same Plaintiff had not rendered any explanation for non-payment. The pith of the Defendant’s contention is that Plaintiff unilaterally changed their agreed architectural plan of the building complex for three shops upstairs and three (3) shops downstairs in the building complex by building a structure of his preference thus gravely breaching their agreement dated 1st July, 2007. In support of his averment, Defendant tendered Exhibit 4. Finally, the defendant contended that, when the family undertook the construction of a wall to protect the entrance gate pillar of his home, Plaintiff unilaterally stopped the ongoing works and destroyed whatever works had been done. In conclusion the Defendant prayed for the recovery of the rent due worth Sixty-Four Thousand Seven Hundred (GH¢64,700.00) only as at December, 2022 from January, 2020, damages for breach of contract and cost. ISSUES FOR DETERMINATION: Page 5 of 14 From their pleadings evidence led and cross-examination, the court set down the following issues for determination: (1) (2) (3) Whether or not Plaintiff has breached the terms of agreement. Whether or not Defendants acts amounts to inducement. Whether or not Plaintiff has any protection under the law from the acts of Defendant. (4) Whether the Defendant is owed Sixty-Four Thousand Seven Hundred and Seven Hundred Cedis (GH¢64,700) only by Plaintiff. PROCEDURE OF TRIAL: Parties were both self-represented. Attempts at settlement at Court Connected Alternative Dispute Resolution (C. C. A. D. R) broke down. The court consequently proceeded to hear the matter. During Hearing the plaintiff testified by his lawful attorney and the defendant testified himself. They each called no witness. Following a brisk cross-examination of each other during Hearing, parties announced to the court the closure of their respective cases. STANDARD OF PROOF: When a court is called upon to resolve conflicting versions of facts, the duty of the court is distilled in a crucial question articulated by her Ladyship Georgina Wood CJ. on page 69 of Sarkodie v F. K. A Co Ltd [2009] SCGLR 65 in these words: “the main issue for the court to determine is simply that, on a preponderance of the probabilities, whose story is more probable than not?” That question put differently is - whose evidence had more weight and credibility? This being a civil suit, Sections 11 (1) & (4), and 12 of the Evidence Act 1975 (N. R. C. D. 323) has well settled the evidential and the persuasive burden that the law casts of parties in a civil matter. The standard of proof required of a party who makes assertions which are denied, is one on a balance of probabilities. This therefore requires a party making assertions to adduce such Page 6 of 14 evidence in proof of the assertions, such that the court is convinced, that the existence of the facts he asserts are more probable than their non-existence. Sections 10, 11(1) & (4) of the Evidence Act, 1975 (N. R. C. D 323) provides that: “Section 10 - Burden of Persuasion Defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 - Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” Section 12 of the Evidence Act, 1975 (N. R. C. D 323) provides that: Proof by a preponderance of probabilities 12(1) except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities. “Preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of facts or the court by which it is convinced that the existence of a fact is more probable than its non-existence”. Page 7 of 14 In explaining the principles relating to the duty to produce evidence, S. A Brobbey JSC. states at page 31 of his book Essentials of the Ghana Law of Evidence thus; “This literally means the proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof. Where the Plaintiff makes a positive assertion at the start of the trial, he bears the legal burden. At the same time, he bears the evidential burden to adduce evidence at the start of the trial.” In the case of Beatrice Butor Hammond v Adjei Agboh Suit No: LD/0437/2017 Kweku T. Ackaah Boafo J. in his resounding judgement noted that that there is no paucity of case law interpreting the provisions of the Evidence Decree, 1975 (N. R. C. D 323). In Ababio v Akwasi 111 [1994-95] GBR at 774 the Supreme Court reiterated the point of a party proving an issue asserted in his pleadings. Aikins JSC. delivering the lead opinion of the court held thus: “The general principle of law is that it is the duty of the plaintiff to prove his case that is, he must prove what he alleges. In other words, it is the party who raises in his pleadings and 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 the defendant succeeds in doing this, he wins, if not he loses on this particular issue. Also, in the case of Barkers-Woode v Nana Fitz [2007-2008] SCGLR 879 at 891 the Supreme Court held per Date-Bah JSC. that: “The common law has also followed the common-sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” ANALYSIS: Page 8 of 14 It is the case of Plaintiff that he entered into agreement for twenty-five (25) years with Defendant on terms which were reduced into writing for the construction of six (6) shops and a toilet facility which same was admitted by Defendant. As per Defendant’s Exhibit 1 and Exhibit 4, the building complex is built and in use suitable to the plaintiff’s purpose. This building was however not completed within one year but was constructed as per the terms of agreement between parties herein so clearly the terms of the contract has not been breached by the defendant. During trial the plaintiff testified that he willfully elected to delay the construction process and not the architectural plan. Below is a snippet of what transpired during cross-examination of the plaintiff: Q: Do you know the agreement says you are to take the year to complete the building the whole building of six shops: three on the ground floor and three on the top floor with Toilet facilities by 1st July, 2008. A: Yes, he is right but we did only the ground but whilst it is a business we are doing, we have twenty- five years period to hand over property to the family. We thought that within twenty-five years the property is in our possession so we have twenty-five years to build it. Now we have ten years to go and we have built the top. Even now the building is in our possession. Q: Why have you created a different design on the top floor instead of what you have done on the ground floor? A: As I mentioned earlier, it is a business that we are doing so we went to Mr. Sowah to suggest to him that where the business is located is not any business arena so why don’t we make it into a residence for us to achieve the mission that we came there for and he refused. Moreover, I don’t know what he is talking about. It is three stores down and another three stores up. In the case of Middlestone v Brown [1878] 38 L. T. 334 at 355 Jessel M. R. stated that: “It appears to me a matter of utmost importance that the court should keep men to their bargains when fairly entered into.” Damages accrue with a breach of contract. In view of the above, Plaintiff is ordered to pay Defendant Five Thousand Cedis (GH¢ 5,000.00) only as damages and ensure that within thirty (30) days of this order, he completes the top floor of the building complex into three shops as per Page 9 of 14 Clause Two of their agreement. The next issue for determination by the court is whether or not the acts of Defendant amount to inducement. In respect of this issue the burden of proof was on Plaintiff to prove same. The Plaintiff testified that in the year 2020, Defendant unilaterally demanded one of the shops which turned into a suit in which judgment was given in suit number A11/09/2021. He further added that Defendant drove away prospective clients of his and without invitation came into the premises to create a scene whenever his customers were at the shop. Not to mention a wall under construction by the defendant which affects access to his shop. This is stated in paragraph 10, 11, 12 and 13 of his Witness Statement. Below is a snippet of what transpired in court: Q: My Lord the wall he is talking about, he is the one that built the wall and the business that we are doing is a home-use appliance which time to time we bring in front of the store so that the two angles of the shop, people can locate the goods and come for it. So, he intentionally built that wall to block the other view not to see the goods. So, we approached him that what you are doing will hinder our business and we suggested to him that the wall is affecting our business. A: The wall built is not at the frontage but on the side. Goods are displayed at the frontage and not the side. What I feel is what I said but he said it is part of the house. In respect of this allegation, the Defendant did not deny same. In the case of Re Asere Stool; Nikoi Olai Amontia (substituted by Tafo Amon II VS. Akotia Oworsika (substituted by Laryea Ayiku III [2005-2006] SCGLR 637. The court held that: “Where on adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission which is an example Page 10 of 14 of estopped by conduct.” In the case of Takoradi Flour Mills v Samir Faris [2005-06] SCGLR 882, the Supreme Court held that: “The law is well settled, (as held by the trial court and affirmed by the Court of Appeal) that where the evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court”. Inducement under Section 27 of the Rent Act (Act 220) is a civil wrong and also an offence. So, Plaintiff deserves protection under the law. From a true and proper interpretation of Exhibit 1: Which is described as a leasing agreement which was made on 1st July, 2007 between parties, Clause 1 of the agreement stated that the Defendant agreed to lease the land at Abofu for twenty- five years. The period granted that the lease will expire in 2033 1st July. The second relief prayed by the plaintiff is an implied covenant in every tenancy. It is trite law that a landlord must give peaceful possession to his tenant. In the circumstances, the court hereby orders that the first and second reliefs of Plaintiff are granted. The plaintiff is to have peaceful enjoyment of the premises until the lease expires on 1st July, 2033. With respect to the counterclaim of the defendant, according to Section 25(5) of the Rent Act, 1963 (Act 220) rent must be paid in arrears. It is the contention of Defendant that Plaintiff was in arrears of rent payment from January 2020 to December, 2022 amounting to Sixty-Four Thousand Seven Hundred Cedis (GH¢64,700) only. In support of his averment Defendant tendered Exhibits 1, 2 and 3. Below is a snippet of what transpired during cross examination of the defendant: Q: How much was the plaintiff to pay to you monthly or annually depending on the arrangement you had at the time? A: It was GH¢180 per year and it was revised to GH¢ 400 per year and since 2019 the plaintiffs Page 11 of 14 haven’t been able to pay anything to the family. Q: Upon what criteria did you exchange rates from GH¢180 to GH¢400? A: My Lord it is an agreement between plaintiff and defendant. Both of us agreed on the GH¢400. Q: What is the agreed rate that should pertain now? A: Ermm we are yet to negotiate on the said rent, the next amount to be paid but it never occurred. The Defendant maintained that the rent was unilaterally reviewed by him thus resulting in the Sixty-Four Thousand Seven Hundred Cedis (GH¢ 64,700) only rent amount quoted. The basis for this claim is not explained to the court. Clause 4 of the agreement states two figures: leasing fee and annual rent. It is trite that rent increment rates are set following negotiations between parties. Nowhere in the testimony of Defendant is this found that any negotiations of rent whatsoever took place. It is patently evident that the tenancy agreement between parties herein is a blanket agreement. In the case of Wilson v Brobbey [1974] 1 GLR 250 the court held that; “Where parties have embodied the terms of their contract in a written document, extensive evidence or oral evidence will not be admissible to add to, vary subtract from or contradict the terms of the written document.” Also, in the case of Ata Textile Co Ltd v Estate of Zolotov 305, the court held that; “… a contract is in integrative framework. Its different parts are entwined and intermingled. Its various branches influence each other. In … a contract, a judge should on the one hand, view it historically, as a whole, but on the other hand, evaluate the connections between its various provisions, as part of the attempt to formulate the parties’ joint intent.” Generally, where a document containing contractual terms is signed, by a party of full age and understanding he is bound by his signature to the document in the absence of fraud or misrepresentation, the party signing it is bound by its terms and it is wholly immaterial whether he read the document or not. In the case of L’Estrange v F. Graucob [1934] 2K. B 394 the Court held that: “when a document containing contractual terms is signed, then in the absence of fraud, or, I will add, misrepresentation the party signing it is bound and it is wholly immaterial whether he has Page 12 of 14 read the document or not.” Thus, with respect to the claim of Sixty-Four Thousand Seven Hundred Cedis (GH¢64,700) only, reading the agreement between parties herein, rent is due for payment at One Hundred and Eighty Cedis (GH¢180.00) only per annum “when the stores are in operation ….” as per Clause 3. Reading Clause 3 and from the evidence led, the ground floor shops were expected to be completed in 2009. That being the case. Per Clause 3, the plaintiff is to pay the annual rent of One Hundred and Eighty Cedis (GH¢180) only per a annum from 2008 when it became due. Thus from 2009 to date the defendant is owed rent spanning a period sixteen years. The court will not allow the defendant to unjustly enrich himself together with his family members. Consequently, the counterclaim of the defendant succeeds in part: the plaintiff owes the defendant annual rent to the tune of Two Thousand Seven Hundred Cedis (GH¢ 2,700.00) only and is to pay same forthwith. In conclusion I hold that the plaintiff proved its claim against the defendant on a balance of probabilities. The counterclaim of the defendant succeeds in part. I accordingly enter judgement in favour of the plaintiff against the defendant. The court hereby orders that: 1. The plaintiff is to have peaceful enjoyment of the premises until the lease expires on 1st July, 2033. 2. The defendants, his agents, assigns and all persons taking instructions from or through him are restrained from entering the premises and doing any act that would constitute a nuisance to the plaintiff. 3. Plaintiff is ordered to pay Defendant Five Thousand Cedis (GH¢ 5,000.00) only as damages for the breach of contract i.e. delay in construction works and ensure that within thirty (30) days of this order, he completes the top floor of the building complex into three shops as Page 13 of 14 per Clause Two of their agreement. 4. The plaintiff owes the defendant annual rent to the tune of Two Thousand Seven Hundred Cedis (GH¢ 2,700.00) only and is to pay same forthwith. Cost of Five Thousand Cedis (GH¢5,000.00) only is awarded against the defendant in favour of the plaintiff. (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 14 of 14