AGYEKUM AND ANOTHER VRS. OPOKU (A9/185/23) [2024] GHADC 489 (16 October 2024)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, ADABRAKA DISTRICT COURT ‘2’, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 16TH OCTOBER, 2024. SUIT NO. A9/185/23 1. PATIENCE AGYEKUM 2. ROSELYN ALHASSAN :: PLAINTIFFS H/NO. B643/6 ABOSSEY OKAI, ACCRA VRS. PRINCE OPOKU H/NO. B643/6 :: DEFENDANT ABOSSEY OKAI, ACCRA JUDGMENT INTRODUCTION The Plaintiffs initially caused the issuance of a Writ of Summons on 6th February, 2023 against the Defendant herein. However, on 28th February, 2023, Plaintiffs issued an Amended Writ of Summons against the Defendant praying this Court for the following reliefs: PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU a. An order of the Court directed at the Defendant to pay an amount of GH¢4,000.00 to the Plaintiffs being unpaid rent from June, 2022 to February, 2023. b. An order of the Court directed at the Defendant for the immediate vacation of the shop of the Plaintiffs. c. Interest on relief (a) at the prevailing commercial bank rate from the 1st day of July, 2022 to the date of final payment. d. Costs. WRITTEN STATEMENTS The case of the Plaintiffs is that the Defendant rented their shop with House No. B 643/6 for fifteen years from June, 2007 to June, 2022, paying ‘Goodwill’ of GH¢3,000.00 and rent of GH¢100.00 per month for the period. According to Plaintiffs, although Defendant’s tenancy ended in June, 2022, the latter has remained in occupation without paying rent and the rent arrears as at February 2023 was GH¢4,000.00 since the monthly rent had been increased to GH¢500.00 with effect from June 2022. They asserted that persistent demands made on the Defendant to pay the rent arrears and vacate the shop had proved futile, with the Defendant hurling insults at 2nd Plaintiff anytime she went to demand the rent. They averred that unless compelled by this Honourable Court, Defendant will fail, refuse and ignore to pay the rent and vacate the shop. Defendant defended the action by filing his Statement of Defence and Counterclaim on 18th July, 2023. According to him, he rented the shop for fifteen years and the tenancy was expected to expire in June, 2023 at a monthly rate of GH¢5.00. He averred that on 6th September, 2010, 1st Plaintiff informed him of an increase in the rent from GH¢5.00 to GH¢10.00 and demanded three years advance payment of GH¢360.00 which he paid. PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU Defendant’s case was that he has been paying his rent to 1st Plaintiff religiously. He further averred that he paid an amount of GH¢1,200.00 to 1st Plaintiff as rent for 2020 to 2022 at a monthly rate of GH¢50.00. According to Defendant, the rent for 2023 will be due in June, 2023 as such, he has no rent arrears to settle. Defendant further asserted that he was made to pay goodwill of GH¢7,500.00 to 1st Plaintiff and her brother, one Kwabena Adjei Adjekum for a period of five years in the year 2017. Defendant further claimed that due to the goodwill he paid, his rent will expire in June, 2028. Defendant thus, counterclaimed against the Plaintiffs as follows: a. An order of specific performance directed at the Plaintiffs compelling them to perform their part of the agreement by allowing the Defendant to remain as a tenant in H/No. B 643/6 Abossey Okai, Accra and until June, 2028 or in the alternative, an order for refund of an amount of GH¢7,500.00 being goodwill paid to the 1st Plaintiff and her brother Kwabena Adjei Adjekum for the period of five years together with interest at the prevailing Bank of Ghana rate. b. An order of perpetual injunction restraining the Plaintiffs, her agents, assigns, personal representatives, etc from interfering with his peaceful enjoyment of his rent. c. Any other relief this Honourable Court may deem fit. Plaintiffs responded to Defendant’s Statement of Defence and Counterclaim by way of a Reply and Defence to Counterclaim filed on 25th July, 2023. According to Plaintiffs, per the agreement entered into between them, Defendant’s tenancy was to commence on 9th June, 2007 and expire on 8th June, 2022. It was their case that 1st Plaintiff received an amount of GH¢4,300.00 from Defendant sometime in 2015 being part payment of GH¢4,800.00 as rent for five years. Plaintiffs added that even though Defendant was required to pay GH¢4,800.00, he only paid GH¢4,500.00. According to Plaintiffs, they were not aware that Defendant paid PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU any money to someone else other than them as Defendant wants this Court to believe. As such, the Defendant is not entitled to his claims. ISSUES The issues for determination are: 1. Whether or not the Defendant is in arrears of rent. 2. Whether or not the Defendant is entitled to any refund from the Plaintiffs. These issues would be discussed together. RESOLUTION OF ISSUES It is the duty of a Plaintiff to prove his case for a determination to be made in his/her favour. A party who raises issues essential to the success of his/her case assumes the onus of proof and as such a person who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a person has been successful in producing evidence that the other party will be required to lead rebuttal evidence, if need be. In the case of T. Chandiram v. Tetteh [2018] 120 GMJ 112 @ 147 C. A, Her Ladyship Agnes M. A. Dordzie, J. A (as she then was) noted on the standard of proof in civil cases as follows: “[T]he standard of proof in a civil suit is placed on the ‘balance of probabilities. Section 12 (2) of the Evidence Act defines it as follows: “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” Again, in the case of Agbosu v Kotey; In Re Ashalley Botwe Lands [2003-2004] SCGLR 420, His Lordship Brobbey, JSC (Rtd.) noted: PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the defendant... At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” In a case where a Counterclaim is filed by a Defendant, the Defendant assumes the position of a Plaintiff as regards his or her Counterclaim and would therefore have to prove the counterclaim. The Supreme Court speaking on the burden of proof on a Defendant who has a Counterclaim held in the case of Nortey (No. 2) v African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703 as follows: “Without any doubt, a defendant who files a counterclaim assumes the same burden as a plaintiff in the substantive action if he/she is to succeed. This is because a counterclaim is a distinct and separate action on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of NRCD 323 the Evidence Act (1975).” The Court of Appeal also noted as follows on the same topic in the case Alex Etoh Kwaku v Bridgette Ofosu Asabea [2014] 72 GMJ 68: “It is trite learning that in civil suits when the defendant counterclaims, for the purposes of the relief, that party becomes the plaintiff and bears the same burden of establishing that relief. The yardstick being the same as the plaintiff, on the preponderance of probabilities.” PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU Both the Plaintiff and the Defendant herein therefore had the duty in the course of the suit to produce sufficient evidence in respect of their respective claims on a balance of probabilities for a determination to be made in their favour. See also the case of In Re Krah (Decd.); Yankyeraah v Osei-Tutu & Another [1989] DLSC 601. The 2nd Plaintiff testified for herself and on behalf of the 1st Plaintiff. The crux of her testimony was that sometime in 2007, they rented their shop located at Abossey Okai to Defendant for fifteen years at a monthly rate of GH¢100.00 from June, 2007 to May, 2022. According to her, Defendant paid an amount of GH¢30,000.00 as goodwill for the duration of the tenancy. She tendered in evidence a copy of their agreement as Exhibit ‘A’. She stated that the Defendant was still in occupation of the shop notwithstanding the expiration of his tenancy. She further stated that the monthly rent had been increased to GH¢500.00 effective June 2022. According to the 2nd Plaintiff, the Defendant had refused to pay the rent which has accrued after the expiration of his tenancy despite several demands on Defendant to settle his indebtedness. The Defendant’s evidence was that he entered into a fifteen years tenancy agreement with the 1st Plaintiff at a monthly rent of GH¢5.00 which tenancy was expected to expire in June, 2023. He tendered in evidence a copy of the tenancy agreement and same was marked as Exhibit ‘1’. According to him, 1st Plaintiff increased the rent payable on a number of occasions yet, in all instances, he paid the rent he was required to pay. It was his testimony that he is not in arrears of rent and that his fifteen-year rent was yet to expire. Defendant testified that he paid goodwill of GH¢5,000.00 for five years to the 1st Plaintiff on 17th July 2015 and tendered in evidence a copy of the receipt issued him for the payment. He further testified that he was compelled to pay goodwill of GH¢2,500.00 to 1st Plaintiff’s brother known as Kwabena Adjei Adjekum who alleged that he had obtained judgment as PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU landlord over the property and who also caused his layers to write demand letters to him. These payments were also made in October and December 2017. Defendant stated that the payments to Kwabena Adjei Adjekum were with 1st Plaintiff’s agreement and by virtue of these goodwill payments made, his tenancy will expire in June, 2028. From the evidence adduced before this Court, Plaintiffs testified that they rented out their shop located at Abbossey Okai to Defendant for fifteen years at a monthly rate of GH¢100.00 from June, 2007 to May, 2022. She tendered in evidence a copy of their agreement as Exhibit ‘A’. However, in Plaintiffs’ subsequent testimony, they stated that Defendant’s tenancy expired on 22nd June, 2023 as per their agreement. Defendant on the other hand earlier testified that his fifteen years tenancy agreement entered into with Plaintiffs was expected to expire in June, 2023. He also tendered in evidence a copy of the tenancy agreement as Exhibit ‘1’. He further testified that due to the goodwill of GH¢7,500.00 he paid to 1st Plaintiff and his brother for additional five years period, his tenancy will now expire in June, 2028. It seems as though both parties were conflicted as to when their agreement was to expire having regard to the contradictory dates, provided in evidence by both parties. Before determining the substantive issue, it is important for this Court to ascertain the exact date the parties entered into the tenancy agreement (date of commencement) and the date they intended for their agreement to come to an end. From the record, it is not in dispute that the parties entered into the agreement in June, 2007 for a period of fifteen years. In fact, per the tenancy agreement tendered in evidence by both parties, their agreement commenced on 9th June, 2007 and it was for a period of fifteen years. One would be guided by simple mathematical calculation that fifteen years from the year 2007 is the year 2022. PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU This notwithstanding, it has been captured under clause 2 of their tenancy agreement that their agreement was to expire on the 8th day of June, 2023 with an option for renewal. No wonder the parties are conflicted as to when the agreement was to end. I honestly do not know how a fifteen years agreement which commenced on 9th June, 2007 was expected to expire in June, 2023. I would like to believe that it was an oversight on the part of the lawyer who drafted the title deeds for the parties. Clearly, an agreement which commenced on 9th June, 2007 which was expected to be for a period of fifteen years would have expired on 8th June, 2022. In fact, Defendant himself admitted same under cross examination when he was questioned in respect of this issue by Counsel for the Plaintiffs. The following as happened under cross examination of Defendant is worth reproducing: Q: In Exhibit A, you will agree with me that the whole agreement started in June, 2007. A: That is what he is saying and I agree with him. Q: Per the same exhibit A, the period of the agreement is for 15 years, is that so? A: That is so. Further cross examination revealed that: Q: If you look at the agreement between you and Plaintiffs, your tenancy expired in June 2022, not so? A: That is correct. From this piece of evidence together with the supporting evidence on record, it is evident that the parties’ agreement commenced on 9th June, 2007 and same was expected to expire on 8th June, 2022. Having ascertained the commencement and the expiration date for their PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU agreement, I will now proceed to determine whether Defendant is in arrears of rent and therefore entitles Plaintiffs to recover possession of the shop occupied by him. Plaintiffs from their evidence asserted that Defendant has remained in occupation of the shop, the subject matter of the suit since the expiration of his tenancy and has refused to pay rent in respect of same. Defendant however testified that since he paid goodwill of GH¢7,500.00 to 1st Plaintiff and his brother, his tenancy would expire in June, 2028. It is important for me to point out once again that the parties had a written agreement, Exhibit ‘A’. Defendant’s assertion that since he paid goodwill of GH¢7,500.00 to 1st Plaintiff and his brother, his tenancy would expire in June, 2028 was not captured in their agreement. It is an elementary principle of law that written agreements are regarded as final and conclusive of what the parties had agreed upon or was on the mind of the parties when they entered into the agreement. Pursuant to Section 25(1) of the Evidence Act, 1975 (NRCD 323) whenever conclusive presumption has been established by the facts of a case, parties to the transaction in that case will be estopped from adducing evidence to contradict or vary the terms of that transaction. Where therefore the court is faced with documentary evidence and oral or parole evidence, documentary evidence should prevail over the parole evidence. This is so if the oral evidence is conflicting with the documentary evidence. See: Mougaine v Yemoh [1977] DLCA 1365 and Wilson v Brobbey [1973] DLHC 2339. This rule is not without exceptions and where the exceptions apply, oral evidence would be admissible to either vary, add to or contradict the terms of a written agreement. In the mind of the Court, Defendant has not been able to establish to the satisfaction of the Court the existence of any of the exceptions to the rule. Assuming without admitting that Defendant’s allegations are true per his Exhibit ‘4’, ’6’ and ’7’ and that the payments of PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU goodwill paid in 2017 was for a period of five years, same would have expired in 2022. There is nothing before this Court to show that the additional five years alleged was supposed to run at the expiration of their tenancy agreement, Exhibit ‘A’ as rent. Having entered into a tenancy agreement with 1st Plaintiff, why would Defendant proceed to make payments to 1st Plaintiff’s brother in 2017 when Defendant’s tenancy had not yet expired? The burden was therefore on Defendant to establish that he entered into a new agreement with 1st Plaintiff’s brother especially when Plaintiffs have strenuously denied any association with the said brother in respect of the monies paid to him. Defendant’s claim is therefore against 1st Plaintiff’s brother. The Defendant has failed to prove that he is entitled to any refund from the Plaintiffs herein. Section 17(1)(a) of the Rent Act, 1963 (Act 220) provides as follows: Section 17—Recovery of Possession and Ejectment. (1) Subject to the provisions of subsection (2) of section 25 and of section 28, no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by the appropriate Rent Magistrate, or any other Judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force, except in any of the following circumstances:— (a) Where any rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due The payment of rent in tenancy agreements is a fundamental obligation of the tenant under the contract so made. The right of the landlord accrues whenever this obligation is breached by the tenant. A breach of this obligation is a ground for the termination of the agreement. The court in Gyato v. Pipim [1980] GLR 71-76 succinctly held that: “Under the Rent Act, 1963, PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU the landlord's right to commence proceedings for recovery of possession or ejectment for non-payment of rent accrues to him where any rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due. Once this cause of action has accrued to the landlord and he has commenced proceedings for recovery of possession or ejectment, the subsequent payment or tendering to the lessor or landlord of the arrears of rent claimed by his writ does not abate the cause of action. Indeed, any payment of rent made after the commencement of action for recovery of possession or ejectment for non-payment of rent, must be construed as an admission that the plaintiff's action was well-founded and that he is entitled to judgment.” From the record, Plaintiffs claimed that since the expiration of his tenancy in 2022, Defendant has failed to perform his rent obligations as expected of him even though he remains in occupation. This Court has found established that whatever payment Defendant made to 1st Plaintiff’s brother did not operate to form part of the terms of the agreement Defendant entered into with 1st Plaintiff. This Court is of the considered opinion per the evidence on record that the Defendant has failed to pay rent in respect of the shop he occupies since the expiration of his tenancy agreement in June, 2022. I therefore do not see why the Plaintiffs’ prayer for an order for recovery of possession and an order directed at the Defendant to pay the rent owed should not be granted. CONCLUSION Having considered the evidence adduced by the Plaintiffs, I find that the Plaintiffs have been able to discharge the burden of proof on them in respect of their claims and judgment is accordingly entered for them against the Defendant as follows: a. The Defendant is to pay to the Plaintiffs the sum of GH¢4,000.00 being unpaid rent from June, 2022 to February, 2023. PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU b. The Defendant is to pay rent for the period of occupation of the shop during the pendency of the suit; that is from March 2023 to 15 October 2024. c. The Defendant is to vacate the shop forthwith. d. Cost of GH¢3,000.00 is awarded for the Plaintiffs against the Defendant. H/W AMA ADOMAKO-KWAKYE (MS.) MAGISTRATE Counsel Emmanuel Owusu-Banah, Esq. for the Petitioner. Abraham Arthur, Esq. for the Respondent. PATIENCE AGYEKUM & ANOTHER V. PRINCE OPOKU 12