EPHSON VRS LAVA LIMITED (SUIT NO. E12/7/17) [2023] GHAHC 556 (22 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HELD IN SEKONDI ON WEDNESDAY, THE 22ND DAY OF MARCH, 2023 CORAM: G. K GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT BETWEEN: ANNA EPHSON ::: PLAINTIFF SUIT NO. E12/7/17 H/NO. 732, 4TH CRESCENT LINK ASYLUM DOWN, ACCRA vs LAVA LIMITED ::: DEFENDANT TRADE FAIR SITE, ACCRA. JUDGMENT: By a writ dated 28/10/2016, the Plaintiff claimed against the Defendant the following reliefs: (i) An order for recovery of possession by the Plaintiff of the room occupied by the Defendant as tenant in the Plaintiff’s house number 28/7, liberation road, Takoradi for: (a) (b) (c) Nuisance; Non-payment of rent; and To carry out a scheme of redevelopment/remodelling (ii) Recovery of the sum of Gh¢15,180.00 being rent arrears (iii) Mesne profits. From the accompanying statement of claim, the Plaintiff stated that she is the owner of House Number 28/7, the subject of this dispute and the Defendant too is a tenant of the commercial store rooms, a warehouse and an office room in the house. According to the Plaintiff, the Defendant committed nuisance in breach of his tenancy and particularly as failing and refusing to empty the septic tank when it became full and allowing same to spill. The Plaintiff states that she emptied the septic tank at great expense. The Plaintiff states again that the Defendant refused to pay rent of Gh¢600.00 per month and has an arrears of Gh¢15,180.00 rent payable as of 28/10/2016. The Plaintiff states that the premises is in a state of disrepair and the Plaintiffs needs same to carry out renovation and cannot do it if the Defendant is in occupation. The Plaintiff states that he has given the Defendant several notices and letters of her intention to recover the premise for the reasons above stated for the Defendant to vacate but has refused to heed. The Defendant on his part whilst denying the Plaintiff’s position, stated that the Plaintiff’s daughter and her large family permanently live in the premises and also denies causing nuisance and emptying the septic tank as according to the Defendant for over 20 years since it took occupancy upon the tenancy agreement, it has always settled the septic and also utilities including water on the whole premises singlehandedly and alone, including other waste disposals by Zoomlion company. The Defendant states the emptying of the septic was not done by it because the Plaintiff demanded Gh¢1,200.00 for same and upon inquiring for the details of the said amount, the Plaintiff got angry and emptied it herself. The Defendant states that the annual rent of Gh¢10,800.00 on 2016 was paid as same was done by cheque to the Plaintiff’s lawyers. The Defendant states that the premises is not in a state of disrepair but admitted that it had received letters from the Plaintiff’s lawyers but then the Plaintiff is not entitled to the reliefs sought. Parties were directed to file their receptive witness statements and same was complied with. ISSUES: (1) Whether or not the Defendant has committed nuisance in breach of its tenancy; (2) Whether or not the Defendant’s rent is in arrears (3) Whether or not the subject matter house is in the state of disrepair and whether the Plaintiff needs the premises to carry out a scheme of renovation/redevelopment. (4) Whether or not the Plaintiff is entitled to her claim (5) Any other issues. PLAINTIFF’S CASE: The Plaintiff testified through an attorney by name ALBERTA ARHIN. Testifying, she said the Plaintiff is the owner of House Number 28/7, liberation road, Takoradi and the Defendant is a tenant in the said House (hereafter called the premises) renting a commercial store, a warehouse and an office room in the premises, they having rented same for about 20 years now but have refused to pay rent of Gh¢600.00 per month and are in arrears of Gh¢15,180.00 as of 20/10/2016. The Plaintiff stated that the Defendant had caused nuisance in breach of their tenancy including the failing and refusing to empty the septic tank when it became full and allowing it to spill resulting in the Plaintiff emptying same at great costs to her. According to the Plaintiff, the premises is also in a state of disrepair and needs it therefore for renovation but cannot do so until the Defendant is ejected. To that end, the Plaintiff states that she had served several notices to the Defendant but the Defendant has refused to vacate the premises. The Plaintiff tendered in evidence Exhibits A, B, and C being the tenancy agreement and letters to the Defendant. In cross-examination, the Plaintiff denied that the action is premature. Again, the Plaintiff conceded that she had not obtained a certificate from the Assembly to the effect that the premises needs renovation, a procedure which ought to have been a condition precedent. The Plaintiff in cross-examination conceded that she is testifying upon a power of attorney granted by the original Plaintiff Anna Ephson, who had passed during the testimony but denied that she had no power to represent Anna Ephson as a result of her death. DEFENDANT’S CASE: The Defendant, being a tenant, in respect of a portion of the premises always paid its rent as per the agreement with the Plaintiff and denied causing nuisance and also denied refusing to empty the septic tank in the premises, as according to the Defendant, for about 20 years of their rental of the premises, they have single handedly emptied the septic tank, paid utilities like water to G. W. S alone for about 20 years and also exclusively paid Zoomlion for waste and sanitation for years. The Defendant tendered in evidence the payments and receipts to the above which are Exhibits 1, 1(a), 1(b), 2, 2(a), 2(b), 3, 3(a), 3(b), 3(c), 3(d), 3(e). According to the Defendant the only emptying is the septic which was not done by them is the recent one in which the Plaintiff demanded Gh¢1,200.00 for the purpose and upon demand by the Plaintiff to pay the same, the Defendant inquired to know the details of that huge amount, prompting the Plaintiff to get angry as a result of which the Plaintiff emptied same herself. The Defendant states that the premises is not in a state of disrepair. The Defendant states again that whilst the case is pending, the Defendant by cheque paid GH¢9,180.00 towards rent, of GH¢1,600.00 to GRA as withholding tax on rent paid. Therefore, according to the Defendant the outstanding amount is GH¢9,180.00. The Defendant states that they do not owe the Plaintiff any arrears of rent as per the tenancy; and that they paid rent of Gh¢10,800.00 for 15/6/2015 for which the Plaintiff acknowledged same by a receipt (Exhibit 1) and that the Plaintiff received Exhibit 1 before the writ was issued and which was a cheque as per Exhibit 1A and 1B. Again, the Defendant states that in February, 2017 they paid the Plaintiff through her agent Trudy Marfo an amount of Gh¢16,650.00 for 15/6/2016 and 31/12/2017 (Exhibit 2 being receipt of the Plaintiff to the Defendant vide cheques of Exhibit 2A and 2B. From the above, the Defendant maintained that they are not in any arrears of rent for GH¢15,000.00 when the Plaintiff brought the action against them. The Defendant further stated that whereas the Defendant uses the premises from Monday to Friday, the Plaintiff rather with her large family uses the premises all time with her family and so uses the facility more than the defendant in terms of water and waste; but in spite of all these, it is only the Defendant who over the years has been paying for all these utilities for 20 years for the water, waste, and sanitation by Zoomlion (see Exhibit 3,3A, 3B, 3C, 3D and 3E). The Defendant state that no nuisance has been caused, and that the premises is not in any state of disrepair and so the action ought to be dismissed. In cross-examination, the Defendant maintained that they are not in any arrears of rent as they have paid for 2022. Also, in cross-examination the Defendant admitted that the Plaintiff was a married person living with her husband and family elsewhere but comes to the premises and returns after some time. The Defendant conceded that if the emptying of the septic had been a lesser amount, the Defendant would have paid it as the Defendant conceded that the septic was full at the time. The Defendant maintained that they have been paying for sanitation and that there is only one (1) meter for the whole premises and the Defendant has over the years been paying for it. The Defendant admitted that the tenancy has not yet been signed after its latest renewal but then the rent for 2022 has been paid as it is so done yearly. Counsel were directed to file their written addresses and they duly complied with same. ADDRESS BY COUNSEL FOR THE DEFENDANT: In denying nuisance by the Defendant on the premises vide waste, the Defendant’s position is that it is only the Defendant who has been paying for sanitation facilities on the premises for over 20 years with receipts as proof which were not challenged. Defendant also denied that the premises was in a state of disrepair as the parties have been living in their respective portions of the premises. Counsel submitted on the capacity of the substitute Plaintiff thus: “It is significant to note that whilst the original Plaintiff’s attorney was being cross- examined on her witness statement that was anchored on a Power of Attorney (Exhibit A), the donor being the original Plaintiff passed over. The Donee/agent of the said Exhibit A was thereafter substituted for the original Plaintiff but elected not to file a new witness statement in her own name and right as Plaintiff. “When proceedings resumed after the Donee of the Power of Attorney became substitute, as the Plaintiff, but without filing any fresh witness statement in the matter; … the said damaging answers from the substituted Plaintiff which have dealt deadly blow to the case notwithstanding,…” “Having regard to the death of the original Plaintiff and that which transpired thereafter in so far as the proceedings in this matter are concerned, fundamental issue that has arisen to be resolved is whether the Plaintiff can be said to have led any evidence in support of her reliefs she has sued for” Supporting Counsel’s submission on the above he cited the cases of GORDON v. ESSIEN [1992] GLR 232; YONGE v. TONYBEE [1910] 1KB 215 & DZANKU v. AFALENU [1968] GLR 792 to the effect that where a donor dies the power is automatically terminated. Counsel submitted further that when a landlord required his premises for the purposes of S. 17(1)(g) (h)(i) and (e) of the Rent Act, (Act 220), he has to comply with regulation 18 of L. I. 369 and to furnish the appropriate rent officer with a declaration as in form 14 of the first schedule. The purpose is to assist in determining the genuiness of the landlord’s alleged intention. Counsel supported the above with the case of ASOAMOAH v. ZWENNES [1980] GLR 867. Counsel submitted that the Donee of Exhibit “A”, not having been conclusively cross-examined on her witness statement anchored in Exhibit A before the death of her principal and which power automatically ended on the death of the Donor, the substituted Plaintiff ought to have filed a new witness statement in her name and right to be cross-examined on it and thus her case was then reduced to mere pleadings as she has no evidence to substantiate her claim. Upon the above, the court was invited to dismiss the Plaintiff’s claim as per the dictates of the case on Power of Attorney. Counsel also submitted also that the Plaintiff could not prove her claim for the arrears of rent due and neither did the Plaintiff comply with the mandatory provisions of the law under the Rent Act and as per the case of ASAMOAH v. ZWENNES [1980] GLR 867. ADDRESS BY COUNSEL FOR THE PLAINTIFF: Counsel for the Plaintiff differed on the issue of capacity to the extent that upon the death of the original Plaintiff, the substitute Plaintiff ought to have filed a new witness statement and not doing so meant that the Plaintiff had no evidence on record. Counsel contended that this issue was raised and dealt with by the court in the cause of the proceedings and a reasoned ruling was written rejecting the argument of the defence, the disagreement of which the Defendant could have appealed against the said decision of the court. Counsel submitted that the defence is now seeking to have the court reverse or review its earlier decision and this is not permissible in law. Counsel submitted on nuisance that the Defendant breached provisions in the tenancy agreement by refusing to empty the septic tank when it became full and allowed it to spill causing nuisance, health risks and inconvenience resulting in the Plaintiff emptying same. Counsel submitted that for non-payment of rent in breach of tenancy, the Plaintiff is entitled to recovery of possession and that the Defendant, on a rent of Gh¢600.00 per mensem, was in arrears of Gh¢15,180.00 as at the time of the institution of the writ on 28/10/2016 and which during the pendency of the matter, the Defendant paid Gh¢14,152.50 vide cheque No. 007295 (Barclays Bank amount) for the rent period of 1/06/2016 to 31/12/2017. On mesne profit, Counsel submitted that the parties have been in court since 2016 and that the outstanding amounts should have been reviewed per the tenancy periodically and coupled with the documentation of the monthly rent of Gh¢600.00 per mensem, it is not significant considering the area of the premises in the central business area of Takoradi and prays for mesne profit. Counsel submitted that the premises is in a deplorable state and the Plaintiff needs to renovate same. Counsel submitted that Form 14 as per Regulation 18 of L. I 369 is not applicable in the circumstances where the Defendant is in default of rent and has also caused nuisance. Counsel submitted that the monies endorsed on the writ of summons in the sum of Gh¢15,180.00 with interest be paid by the Defendant as accumulated rent from the date of issue of the writ of summons to date of final payment with interest as a result of the diminishing in the value of the Gh¢600.00 rent per; mensem less the payment of Gh¢14,152.50 paid by the Defendant during the trial. Counsel finally prays for vacant possession. ANALYSIS /OPINION: The subject matter in this case is a landlady and tenant relationship based on Tenancy agreement and the enforcement of a party’s rights under the said Tenancy agreement bothering on recovery of possession of a commercial premises occupied by the Defendant as a tenant in the Plaintiff’s House No. 28/7, liberation road, Takoradi for nuisance, non- payment of rent, for renovation, for recovery of rent arrears and mesne profits and recovery of possession. The writ of summons was issued on 28/10/2016. The defence was filed on 28/11/2016. The issues were joined and reply was filed on 27/11/2017 and the parties filed their respective witness statements on 21/6/2017 and on 3/8/17 respectively together with the pre-trial check lists. All through the above, the matter was handled by P. Bright Mensah J (as he then was). Indeed, this case has passed through the hands of four (4) Justices including me spanning over a period of about seven (7) years. The matter was, after several adjournments all at the instance of Counsel for the parties, slated for hearing on 10/12/2018. But the actual hearing commenced with the Plaintiff Attorney testifying on 17/3/2020 before Cynthia Wiredu J and the witness’ mouth was sealed for further cross-examination. On 17/5/2021, the court was informed of the passing of the Plaintiff. On 12/7/2021, when the case was called, whereas Counsel for the Plaintiff urged the court to proceed with the matter after the substitution of the original Plaintiff by Alberta Arhin who formerly was the Donee of the Power of Attorney, Counsel for the Defendant insisted that a fresh witness statement ought to be filed. This resulted in an application made to that effect, resulting in the application being dismissed on 28/7/2021, per the inherited records. On 4/11/2021, this court, once again differently constituted, ordered the proceedings to be typed out for possible adoption and on 6/4/2022, the proceedings in the matter were adopted and further cross-examination of the Plaintiff continued on 18/7/2022 and ended the same day yet again by the court differently constituted. On 17/11/2022, this court differently constituted again, and this time by me, adopted the proceedings in the case and the defence opened the same day with cross-examination by the defence Counsel. On 28/11/2022, Counsel for the Defendant closed his case at the end of the cross- examination of the Defendant by the Plaintiff’s Counsel. The parties were directed to file their respective written addresses which they dutifully and timeously complied with. Before delving into the issues raised and set out, I have had to discuss a very thorny and delicate issue which has been raised by the parties in their addresses particularly the defence. Indeed, if the Defendant had not raised it, the court suo motu would have done so, as, in the court’s view, it is of interest in our civil procedure. It is about a person who before substituting a party, had been granted Power of Attorney after the close of pleadings to represent a party and testify, but in the process of cross-examination, the Donor of the Power passes on and the same Donee has substituted the original Plaintiff and continued with the case viz further cross-examination without filing any fresh witness statement and continuing with the matter to its conclusion. To better appreciate the situation, I wish to bring the following to the fore. The writ of summons was issued on 28/10/2016 by the Plaintiff which by the evidence was aged 90 years. On 8/6/2017, the Plaintiff granted Power of Attorney to Alberta Arhin specifically for the purpose of the case in issue (see Exhibit “A”). As a result of Exhibit “A”, the Donee filed her witness statement in her name and pre-trial check list on 26/6/2017 and testified in that capacity on 17/3/2017 by the court differently constituted and cross- examination of the witness commenced that very day as a result of the innovation in our civil procedure wherein parties’ evidence are written and tendered to be adopted by the court as evidence-in-chief during trial. Indeed, the witness’ mouth was sealed on the said 17/3/2020. From the records, the original Plaintiff (the Donor of Exhibit “A”) died on 7/3/2021. On 27/4/2021, an application on notice for an order for substitution on behalf of the Applicant (the former Donee of Exhibit A, Alberta Arhin) was filed seeking to substitute the Applicant for the Plaintiff (the Donor of Exhibit “A”) and on 17/5/2021, the application was granted and the order for substitution made to the effect that Alberta Arhin shall now be substituted for Anna Ephson, the original Plaintiff who died on 7/3/2021 for the purpose of prosecuting the above named suit. It may be interesting to note that in the affidavit supporting the application, and specifically in paragraph 4 thereof, the Applicant averred thus: “4. That as a matter of fact, I prosecuted the suit for and on behalf of the now deceased Plaintiff in her lifetime under a Power of Attorney she donated to me.” After the substitution, the substitute Plaintiff chose not to file any new witness statement, as by practice is required, but opted to continue with the further cross-examination as she was indeed under cross-examination when the original Donor died with the power, and held on with the position until Counsel for the Defendant completed her cross- examination. In his submission, Counsel for the Defendant argued as follows: “It is significant to note that whilst the original Plaintiff’s attorney was being cross- examined on her witness statement that was anchored on a Power of Attorney (Exhibit “A”), the Donor being the original Plaintiff passed on. The Donee/Agent of the Exhibit “A” was thereafter substituted for the original Plaintiff but ELECTED NOT TO FILE A NEW witness statement in her own name and right as Plaintiff.” Counsel went further to submit thus: “When proceedings resumed after the Donee of the Power of Attorney became substituted, as the Plaintiff, but without filing any fresh witness statement in the matter…The said damaging answers from the substituted Plaintiff have dealt a deadly blow to her case…” Counsel went further to submit as follows: “Having regard to the death of the original Plaintiff and that which transpired thereafter in so far as the proceedings in this matter are concerned a fundamental issue that has arisen to be resolved is whether the Plaintiff can be said to have led any evidence in support of the reliefs she has sued for.” Counsel submitted that the Donee of the Exhibit “A” not having been conclusively cross- examined on her witness statement anchored on Exhibit “A” before the death of her principal and which power automatically ended on the death of the Donor, the substituted Plaintiff ought to have filed a new witness statement in her name and right to be cross- examined on it and thus her case was then reduced to mere pleadings as she has no evidence to substantiate her claim. Counsel submitted that upon the above the court was invited to dismiss the Plaintiff’s claim as per the dictates of the law on Power of Attorney. Not surprisingly, Counsel for the Plaintiff disagrees. Counsel submitted that the submission of Defence Counsel had during the trial been raised by Counsel for the defence and same dismissed and so Counsel cannot resurrect same by way of review now. It is the above issue that I intend to address before going onto the main issues raised and set out for the trial of the case. On 28/10/2016, the writ of summons was issued. On 6/6/2017, Power of Attorney was granted to the Donee On 26/6/2017, witness statement was filed (in substitute’s name) On 17/3/2020, Hearing commenced with Donee testifying and cross-examination commenced. On 7/3/2021, the original Plaintiff expired. On 17/5/2021, there was substitution with Donee now substituting the original Plaintiff. On 18/2/2022, further cross-examination of the former Donee (now the substitute Plaintiff continued and completed. The point is that the substitute Plaintiff continued with the case without filing a fresh witness statement and completed same. This is where the problem, which Counsel calls a fundamental breach arises. The fact is that the original Plaintiff is dead, the fact also is that right after pleadings had close, the original Plaintiff granted Power of Attorney (Exhibit “) to the Donee now the substitute Plaintiff to prosecute this case for her wherein she filed a witness statement as an Attorney and testified and was cross-examined but could not close her case when the Donor of the power expired half way during cross-examination. The settled law, as properly espoused by Counsel for the Defendant in his written submission as stated above is that, upon the death of the Donor of the Power, the said power automatically ceased and (indeed, that the power, by law, ended with the death of the Donor or by revocation. Cases abound on this and they include: (1) DZANKU V. AFALENU [1968] GLR 792. Again, the settled law is that in the circumstance of the Attorney then under cross- examination, upon the death of the Donor and the power having automatically ceased and the substitution having been effected, the party had to have the incomplete evidence expunged by the court in the first place. Then the law is that the substitute party ought to seek leave of the court to have a new witness statement filed upon the pleading and to be cross-examined by the opponent. The above were not done. And so, Counsel for the Defendant terms it as a “fundamental breach” and for that reason, there, technically was no evidence to be relied upon apart from the pleadings and so the court was invited to dismiss the Plaintiff’s claim against the Defendant. Naturally, Counsel for the Plaintiff disagrees and submits that the above situation/problem was raised by Counsel for the Defendant and a ruling was made on it dismissing Counsel’s argument as a result of which the court allowed the substitute Plaintiff to complete her evidence via the continuation of the cross-examination without necessarily filing a new witness statement. Counsel submitted that if Counsel for the Defendant was still not satisfied with the decision of the court albeit differently constituted, what Counsel for the Defendant ought to have done was to have appealed and not seek now to resurrect the decided issue by way of a review of the court’s decision. For whatever reasons this court, differently constituted, agreed in dismissing Counsel’s invitation during the trial and now being canvassed in Counsel’s submission, to dismiss the Plaintiff’s claim for the said fundamental error, I beg to bring the following for consideration. Admittedly, there is an irregularity on the part of the Plaintiff as above stated. But the question is: is the irregularity so “fundamental” as Counsel calls it to the effect that it ought at all costs to affect the germane issues at the trial? Is the breach/irregularity not curable at all? Will that serve the interest of substantial justice in the peculiar circumstances of this particular case? Is the irregularity technical so as to defeat substantial justice? Must the whole case be thrown out just because of not filing a new witness statement as canvassed by Counsel for the Defendant when the witness has almost completed her cross- examination having already had a power of Attorney, filed her witness statement, testified, being a relative to the original Plaintiff, upon the death of the original Plaintiff the same person/Donee of the power of Attorney having been authorised by the family of the deceased to continue with the case, and cross-examined to complete the case be thrown merely because she did not file a fresh witness statement? To attempt to answer these questions, I wish to state that: - The defect or irregularity could be curable. - It is the same Donee who has substituted the original Plaintiff. - - - It is the same person who filed the witness statement in her own name as an Attorney. It is the same Donee/person who testified and was cross-examined by the defence. I find that she filed the witness statement in her name as the Attorney, the filing of a new witness statement which would legally and officially have been hinged on the pleadings would not have been different would not have been different in any way at all from what had previously been filed. - The facts would not have changed if a new witness statement had been filed. - The evidence would not have changed if a new witness statement had been filed. - This, in the court’s view is not fundamental breach contrary to what had been described by Counsel for the Defendant but only a small technical issue which is curable by the court, in respect of the case which has passed through the hands of four (4) Justices including me during the 7 year duration of the trial. Therefore, in my candid view, I find that this is a landlady/tenant matter bothering on tenancy of a premises, and not land, not inheritance, not relating to individuals right. The substitute Plaintiff from the records, even after the institution of the writ had always been presented by the Attorney all through up to the stage when she was granted power of Attorney, filed her witness statement in her name as an Attorney, testified as an Attorney as the Donor was aged and over 90 years and was also a biological child of the principal and equally may have interest in the premises as a child, cross-examined up to the time of the death of the principal, got substituted thereafter and continued with the cross- examination and completed same without necessarily filing a new witness statement which in any case would not have been any different from what the same Attorney now turned substitute Plaintiff would have filed. In the case GHIOC v. HANNAH ASSI (No. 2) [2007 – 2008] 1 SCGLR 16 the court favoured the delivery of substantial justice in a case and preferred that to being too technical in the administration of justice. It does appear to me also that a very strict adherence to the rules of procedure in some instance could lead to absurdity and a substantial denial or miscarriage of justice. Clear case in point is the one we are addressing in this judgment. Luckily, there appears, indeed, to be a shift in the thinking of the law courts regarding the strict adherence to the rules of procedure on witness statement and case managements where some latitudes seem to be allowed so as to achieve a substantial delivery of justice where the courts seem not to be too technical in some matters of procedure, all in the best interest of substantial justice and fairness. I am indeed also emboldened by the statement in the case of DORBI v. FRIMPONG [2013] 44 MLG F. 150 where Justice Atuguba, an authority on civil procedure stated at page 163 thus: “As to this, we wish to point out that the battle for substance, as opposed to technical and fastidious justice has been reversibly won”. My understanding of the above is that SUBSTANCE, as opposed to technicalities is what the courts should look out for. Prior to the decision in Dorbi v. Frimpong (supra), the apex court had stated in HALLE & SONS S. A. v. BANK OF GHANA & WARM WEATHER ENTERPRISE LTD [2011] 1 SCGLR 378 that the courts must allow flexibility in the rules of procedure as it is not possible for an honest litigant in the courts in Ghana to be defeated by mere technicality, any slip and any mistaken step in litigation in view of the rule… and; must allow flexibility in the rules of procedure to enable courts to make such orders as it considers just and necessary for doing justice to the case.” Yet of greater aid to me in this regard are the cases of: (1) OPOKU & ORS (NO. 2) v. AXES CO. LTD (NO. 2) [2012] 2 SCGLR 1214 on effect of non-compliance with the rules of court and Order 81 of C. I 47 which serves as comprehensive insurance and policy covering all procedural defects from C. I 47. (2) R v. NII ADAMAH-THOMPSON & ORS; EXP. AHINAKWAH II (SUBSTITUTED BY AYIKAI [2012] 1 SCGLR 379 on Order 81 of C. I 47 to the effect that the failure to comply with the rules does not nullify proceedings. Under r. 2(1), a party affected by any proceedings he considers irregular is enjoined to apply by motion to have the said proceedings set aside. However, he is denied such right by r. 2(2) if he has taken any fresh step in the matter. Fresh step will include any step taken to comply with the terms of the alleged irregularity. It was also held in R v. HIGH COURT, ACCRA EXP. GHANA MEDICAL ASSOCIATION (ARCHMANN-AKUMMEY INTERESTED PARTY [1012] 2 SCGLR 768 and quoting and referencing Dr. Twum JSC in BOAKYE v. TUTUYEHENE (2007 – 2008) SCGLR 970 that: “The new Order 81 has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense, any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or the proceedings.” To sum up on this, I wish to state with a quote from Adinyirah JSC on the rules of court being a Handmaid rather than a mistress in the case of Halle & Sons S. A v. Bank of Ghana (supra) thus: “Although I agree that court cannot conduct its business without a code of procedure, I think that the relations of rules of practice to the work of justice is intended to be that of a handmaid rather than a mistress, and the court ought not be so far bound and tied by rules, which are after all only intended as general rules of procedures, as to be compelled to do what would cause injustice in the particular case.” Therefore, I find that in the circumstances, this court, being a court of justice being interested in delivery of substantial justice as against being technical, and considering the fact that the mistake is not so fundamental as contended by Defence Counsel, considering the fact that the filing of a new witness statement would not have changed the facts, evidence and the records as they will also still be the same particulars in so far as the witness statement was filed by the same person in her name (as an attorney) and completed the cross-examination as a substitute Plaintiff, and which particularly a new witness statement would have been the same as the old one is expunged, the mistake is not fundamental so as to defeat the Plaintiff’s claim and the cause of justice. Therefore, I find that the mistake has been cured by the court albeit differently constituted when the application was made to that effect which was subsequently dismissed by this court differently constituted. Therefore, this technical issue, could not in the circumstances have affected the case substantially so as to defeat the cause of justice. I now wish to deal with the issues as set out for determination in the case thus: (i) (ii) Whether or not the Defendant has committed nuisance in breach of its tenancy? Whether or not the Defendant’s rent is in arrears? (iii) Whether or not the subject matter house is in the state of disrepair and whether the Plaintiff needs and whether the Plaintiff needs the premises to carry out a scheme of renovation/redevelopment? (iv) Whether or not the Plaintiff is entitled to her claim? (v) Any other/issues (raised by the pleadings)? Indeed, it is the law that he who alleges bears the onus of proof in civil matters. See: (1) (2) (3) Section 10, 11 and 12(2) of evidence Act of 1975 (NRCD 323) Serwaa v. Kesse [1960] GLR 228, S. C Janet Tagoe v. Alfred Nii Tetteh [2016] 98 GMJ 125 @ 147 – 148. Also, as stated earlier in this judgment, this is a landlady/tenant matter bothering on tenancy agreement and the alleged breach of some provisions of same. And, considering the subject matter, the Rent Act, 1963, (Act 220) considerably plays a role in the determination of the issues raised for determination in this case. The introduction/preamble of the Rent Act, (hereafter called Act 220) states as follows: “An Act to consolidate and amend the law relating to the control of rents and the recovery of the possession of premises in certain cases…” Of relevance to the determination of the issues in this judgment are Sections 17 and 18 of Act 220 which provides as follows: PART V: (RECOVERY OF POSSESSION AND EJECTMENT): “17(1) Subject to the provisions of subsection (2) of S. 25 and of S. 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 or in accordance with the provisions of any other enactment for the time being in force, except in any of the following circumstance: (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; (b) Whether any obligation of the tenancy, other than that specified in paragraph (a), so far as such obligation is consistent with the provision of this Act, has been broken or not performed; (e) Where the condition of the premises has in the opinion of such magistrate or judge deteriorate owing to acts of waste, of or the neglect or default of, the tenant or any person residing with him. (h) Where the lease has expired and the premises are reasonably required by the landlord to be used….. (f) Where the lease has expired and the tenant is a statutory tenant and the landlord (i) (ii) Intends to pull down the premises and construct new premises Intends to remodel the premises and the remodelling cannot be carried out with the tenant in occupation; or (iii) Requires possession of the premises to carry out a scheme of re- development, if the landlord has given not less than six (6) months written notice to the tenant of his intention to apply for an order for the recovery of possession of, or the ejectment from, the premises, so, however, that; (aa) The Magistrate or Judge may, on making or giving an order under this paragraph, make it a condition that of the landlord fails to carry out his intention within such period as may be allowed by such Magistrate or Judge the landlord shall reinstate the former tenant as a statutory tenant at the same rent as that formerly payable or pay to the tenant such compensation as the magistrate or Judge may consider reasonable. “18. Tenant to have option to new tenancy of remodelled premises. “18(1) Where possession of premises is required for ground set out in paragraph (f) of subsection (11) of S.17 and premises are vacated – (a) Pursuant to an order and the appropriate elect Magistrate or Judge or (b) Voluntarily after a notice given by the landlord, the statutory tenant so dismissed shall be deemed to have an option to be Reinstated in the premises remodelled at the reasonable rent accessed in accordance with Section (4). Also, as stated earlier, the subject matter of the suit is on Landlord (tenant agreement) of a commercial premises - Takoradi wherein Anna Ephson as the Landlord entered into a tenancy agreement with Lava Limited on 31/5/2011 for a term of two years commencing on 15/06/2011 at a Rent advance for two years at Gh¢14,400.00 with the rent to be renewable every two years. The said agreement was tendered in accordance by the Plaintiff as Exhibit ‘B’. Some of the relevant portions, Exhibit ‘B’ are clauses 3, 4, 7(a) (e) (f) (g) (j) (m) thereof and detailed as follows; “ 3: The Landlord has agreed to rent the store and warehouse, and the Tenant has agreed to pay to the landlord rent advance in the sum of Gh¢14,400.00 to cover a term of two years certain commencing on the 15th day of June, 2011, the rent to be reviewed every two years”. “4: The tenant shall have an option to renew the tenancy after the expiration of six years subject to new terms and conditions to be agreed on between the parties and if the tenant is desirous of renewing the term hereby granted, it shall give at least six month notice of its intention to renew prior to the expiration of six (6) years”. “7: THE TENANT COVENANTS WITH THE LANDLORD AS FOLLOWS; (a) To pay the rent hereby reserved in the manner stated herein. (e) Not to do any act or thing in the store and warehouse which may become a nuisance, danger, or annoyance or aggressive conduct or other acts to adjoining or neighbouring property or that will constitute a breach of the peace” “(f) Not to allow or about the store and warehouse anything which may be or become unsanitary or a danger to health. (g) To pay all charges or bills for telephone, electricity and water consumed on the store and warehouse during the tenancy and other outgoings implored by the utility services on the store and warehouse. (j) At the expiration or some determination of the tenancy if not renewed to deliver up possession of the store and warehouse to the landlord including all additions thereto in a good state of repair and condition and in a tenantable state fair wear, and tear permitted. (m) Unless the term hereby reserved at the expiration or sooner determination of the term hereby granted to peaceable yield up the store and warehouse to the landlord in a tenantable state of repair.” 9. THE PARTIES HEREBY AGREE THAT: (a) If the Tenant shall fail to perform or observe any of the covenants on his part contained in this tenancy to be observed or performed by the tenant and this has been brought to the notice of the tenant by the landlord then the landlord or any person authorised by him or claiming through him, may re- enter upon the property or any part thereof in the name of the whole, and immediately this tenancy shall determine but without prejudice to the rights and remedies of the landlord or any person lawfully claiming through or in trust for him, in respect of any previous claims against the tenant for previous breach of the covenants. (c) If the rent renewed or any part thereof remains unpaid for thirty (30) days after the date of execution of this agreement or if any of the conditions and stipulations contained in this agreement on the rent of the tenant to be observed and performed are not performed or observed, the landlord may exercise her right to enter the store and warehouse and the tenancy shall be forfeited subject to the provisions of the Conveyance Act, 1973, (NRCD 175). (d) If the tenant desirous of renewing the term hereby granted if and only if the landlord is willing to renew for further terms subject to renegotiation of the rent and subject to terms and conditions to be agreed up by the parties the Tenant shall serve notice in writing to the landlord to renew the tenancy six (6) calendar months prior to the expiration of the term hereby granted. (e ) Any notice required to be served under this tenancy shall be sufficiently served on the landlord if it is sent to the landlord address provided herein by registered post or to his last known address in Ghana, or delivered to him by hand, and to the Tenant his address provided herein by registered post or sent to him at the property.” Now, the issues: ISSUE 1: WHETHER OR NOT THE DEFENDANT HAS COMMITTED NUISANCE IN BREACH OF ITS TENANCY” Nuisance has generally been described as something which causes offence, annoyance or trouble. It is also described as a human activity or a physical condition that is harmful or offence to others and gives rise to a cause of action. Nuisance may also involve an unreasonable or unlawful use of property that results in material annoyance, inconvenience, discomfort or injury”. The Black Law Dictionary, 11th Ed. By Bryan A. Garner defines nuisance as “A condition, activity or situation such as a loud noise or foul odour that interferes with the use or enjoyment of property”. “It is failure to act resulting in an interruption with the use or enjoyment of property”. S. 17 (1) (c) of Act 220 provides as follows: “1(c) Where the tenant or any person residing with him has been guilty of conduct which is a nuisance or an annoyance to adjoining occupiers”. Clause 7(e) and (f) of Exhibit “B”, the tenancy agreement between the parties provided as stated earlier in this judgment thus: The tenant covenants with the Landlord as follows: “(e) Not to do any act or thing in the store and warehouse which may become a nuisance, danger, or annoyance or aggressive conduct or other acts to adjoining or neighbouring property or that will constitute a breach of the peace” “(f) Not to allow or about the store and warehouse anything which may be or become unsanitary or a danger to health. The Plaintiff claimed, pleaded and led evidence to establish that the Defendant had committed nuisance in breach of his tenancy and particularised that the Defendant failed or refused to empty the septic tank when it became full, but allowed it to spill. The Defendant denied causing nuisance and contended that for over 20 years, he alone had been emptying the septic tank and pay for other waste generated in the house as well as water consumed in the whole of the Plaintiff’s house as the Plaintiffs also lived in the premises with their family. Indeed, the Defendant tendered receipts and documents in proof of his payment for some outgoings and utilities including Zoomlion receipts and water receipts. But none of the receipts tendered in evidence, vide Exhibits 1, 2, 3, 4, 5 and 6 included any payment for emptying the septic tank. In fact, the evidence is that since the tenancy agreement was entered into in 2011, the septic tank has been empties only once and that was the one which the Plaintiff claims to be a nuisance and breach by the Defendant of the Tenancy. Further, the Defendant did admit by the record/evidence that when the septic tank became full the Plaintiff requested the Defendant to settle the amount for emptying which the Defendant refused to honour resulting in the Plaintiff emptying the septic tank at a cost of Gh¢1,200.00. The Defendant having admitted in his pleadings and in evidence that the septic tank was emptied by the Plaintiff, there indeed was no need for the Plaintiff to lead any further evidence on it. For it is trite that when an adversary admits a fact, no better proof is required. See the cases of: (1) SAMUEL OKUDZETO ABLAKWA & OR v. JAKE OBSETSEBI LAMPTEY & OR [2012 2014], SCGLR 16 – when a matter is admitted proof is dispensed with. (2) IN RE ASARE STOOL; NIICOI OLAI AMONTIA IV (SUBSTITUTED BY) TAFO AMON II v. AKORTIA OWORSIKA III (SUBSTITUTED BY LAWYER AYIKU III [2005 – 2006] SCGLR 637. From the above, I therefore rule in favour of the Plaintiff against the Defendant that the Defendant in consideration of Exhibit “B” clause 7(e) and (f) on the covenants of the Defendant (as a tenant) committed nuisance and therefore in breach of the said Exhibit “B”. What actually worsens the situation is when the Defendant having been alerted by notice of Exhibits “C” & “A” from Plaintiff’s lawyer refused to rectify their mistake by attempting to repay the costs for empting the septic tank by the Plaintiff. ISSUE II, IS: WHETHER OR NOT THE DEFENDANT’S RENT IS IN ARREARS? As part of the claim of the Plaintiff, she required possession of the premises, amongst others, for non-payment of rent. To that extent, the Plaintiff, as at the institution of the action in 2016, specifically on 28/10/2016, claimed for the recovery of the sum of Gh¢15,180.00 from the Defendants being rent arrears, as the Defendant had failed or refused to pay for same at Gh¢600.00 per mensem. According to the Plaintiff, whilst this matter was pending, the Defendant made a payment of Gh¢14,152.50 through a Barclays Bank Account cheque No. 007295 supposed to be rent for 15/06/2016 to 31/12/2017. This is evidenced through Exhibit 2 dated 5/4/2017. This is about six (6) months into the commencement of this action before this cheque was issued and paid to the Plaintiff. Does the above action of the Defendant paying the amount of Gh¢14,152.50 to the Plaintiff on 5/4/2017 constitute a breach of the tenancy agreement for non-payment of rent? The Defendant naturally, per their pleadings answered in the negative. And the Plaintiff answered in the affirmative. According to the Defendant, the proof of payment of rent for 15/6/2015 to 14/06/2016 is evidenced in Exhibit 1(a) and (b) being cheques numbers 517590 and 51759 of Universal Merchant Bank, Accra Main Branch of the Defendant’s Account totalling Gh¢10,800.00 and dated 17/2/2016 respectively. The above was premised on paragraph 5 of the statement of defence and paragraphs 7 and 8 of the Defendant’s witness statement claiming to have paid a total of Gh¢10,800.00 as stated above and per the said period of 15/6/2015 to 14/6/2016. Disproving the Defendant’s claim of having paid as above stated for the above period through Exhibits 1(a) and 1(b), the Plaintiff disproved the Defendants that even though the Defendant did issue Exhibits 1(a) and 1(b) to the Plaintiff, the Plaintiff’s Exhibit “D” disproved the Defendant’s said claim of having paid rent to cover the stated period of 15/6/2015 – 14/6/2016. Exhibits “D” is a letter dated 6/4/2017 and authored by the Defendant’s manager instructing its bankers, the Universal Merchant Bank not to honour the said cheque No. 517590 contending that the Plaintiff had misplaced the cheque. According to the Plaintiff, in effect, cheque No. 517590 (Exhibit “1A”) was not drawn down particularly so as the Plaintiff consistently denied receiving the cash even though she earlier acknowledged the receipt of same of Exhibit ‘1’. It must be noted that, Exhibit “D” was tendered in evidence by the Plaintiff through the Defendant in cross-examination of the Defendant. Counsel for the Defendant resisted and objected to the tendering of the document (Exhibit “D”) through the witness but this was overruled and admitted in evidence. The reason for the admission of Exhibit “D” in evidence was that the document had earlier been properly identified by the witness and as authorised by the Defendant’s manager Raja who had been/issuing cheques to the Plaintiff as a known manager. I find that Exhibit “D” sought to and indeed blocked cheque No. 51590 (Exhibit 1A) as there was no counter evidence from the Defendants that the cheque was later reissued. This being so, I hold that as at the time of the institution of this action, the Defendant was in breach for non-payment of rent. This is so because, as at 28/10/2016, this cheque (Exhibit “1A”) and (Exhibit “D”) blocked by the Defendant had not been reissued to the Plaintiff to cover the period 15/6/2015 to 14/6/2016 when the writ was issued on 28/10/2016. The situation of the Defendant on the non-payment of rent by the Defendant became even worse during the cross-examination of the Defendant who sought to be evasive and detached from answering pertinent questions on the subject thus: Q: Rent payment for the premises of the Plaintiff occupied by the Defendant was yearly? A: True. Q: And it was supposed to be paid in advance? A: We pay it yearly. Q: For example, if the payment is due for the year, you pay in January to cover the rest of the year? A: Correct. Q: In order words, if the rent due for a year has to be paid, you do not wait up to December to pay for the whole year. You rather pay in January to cover the rest of the year? A: We pay it yearly. So, the time that they pay it, I am not aware. Q: When was the last time that the Defendant paid rent? A: I do not know the last time that we paid. But I know that it has been paid. Q: Do you have anything to show in respect of this alleged payment? A: Yes, my Lord. Q: How much did you pay and to whom was it paid? A: It was paid to the Plaintiff’s Bankers. Q: Was it the original Plaintiff or the substitute Plaintiff? A: Madam Anna Ephson. Q: And you say you paid it this year (2022)? A: Yes, my Lord. Q: How much is the rent per month now? A: As at now, I do not know the amount that the Defendants pay. But I know that it is paid. Q: You receive from your Bankers statement of your Account with your Bankers? A: Yes, my Lord. Q: I suggest to you that cheques Exhibits “1A” and “1B” were not received by the payee therein stated? A: I do not know that. From the above, it is quite clear that the Defendant could not produce the evidential evidence of proving the payment of the contentious money on Exhibit “D” by way of proving to the court the reissuing of the blocked cheque even though the witness claimed to have the proof to produce to the court which he never did. Again, the evidence is that the original Plaintiff died in 2021. Yet, the witness claims that all rent up to 2022 has been paid to the original Plaintiff by the above cross-examination. Counsel for the Defendant in cross-examination asked the Plaintiff the following questions. Q: Finally, give the court, the date on which your mother died? A: 7/3/2021. In POKU v. POKU [2008] 18 MLRG @ 30 it was stated that “literally, the burden of proof is therefore on the party of asserting the facts with the evidential burden shifting as the justice of the case demands. Further, in SAGOE v. SSNIT [2011] 30 GMJ 133, it was stated thus:” the party who asserts has the legal incidence of the legal burden. The above affecting the credibility of the Defendant, I rule in favour of the Plaintiff against the Defendant for non-payment of rent. Further, the evidence is that as at 28/10/2016 when the writ was instituted, the Defendant was owing a rent arrears of Gh¢15,180.00 which the Plaintiff as per relief (ii), considering the fact that Exhibit “D” actually cancelled the payment of rent for the period 15/6/2015 to 14/6/2016, and which had not, as at the time of the institution of the writ been reissued to the Plaintiff, I rule that the Plaintiff is entitled to recover the sum of Gh¢15,180.00 of rent as at the institution of this action. It is also a fact, from the records that during the pendency of this action, the Defendant did pay an amount of Gh¢14,152.50 through Barclays Bank Account by cheque No. 007295 vide Exhibit 2 to the Plaintiff in respect of rent on 5/4/2017. A withholding tax of 15% was also paid by the Defendant to GRA (Ghana Revenue Authority). And from Exhibit 2, being the receipt of the original Plaintiff, the proceeds is to cover rent for the period 15/6/2016 up to 31/12/2017. This amount may be used to settle part of the rent arrears recoverable by the Plaintiff from the Defendant. Again, in paragraph 11 and 12 of the Plaintiff’s witness statement, the Plaintiff admitted that whilst this matter was pending, the Defendant issued to her a cheque of Gh¢9,180.00 in payment of part of its accumulated rent in respect of the premises in addition to the payment of Gh¢1,620.00 to Ghana Revenue Authority (GRA) as withholding tax on the part of the rent paid by Defendant. The Plaintiff, unfortunately did not detail the type of cheque, its number, the Bank that issued same and the date of issue to the Plaintiff. On the authority of Samuel Okudzeto Ablakwa & anr (supra) and the In re Asare Stool (supra) when an adversary admits a fact in issue, there is indeed no need to lead further evidence on the matter. I find that this amount as admitted by the Plaintiff in her evidence cannot be the same as the amount as captured in Exhibits 2, 2(a) and 2(b) as even though from the records, both payments were made during the pendency of the suit, the figures are totalling different including the figures for the withholding tax for GRA. For instance, the withholding tax as captured in Exhibit 2(b) has the figure which was Gh¢2,497.00 quite different from the Plaintiff’s admission of the payment of a withholding tax of Gh¢1,620.00 to GRA as admitted by the Plaintiff in paragraph 12 of the Plaintiff’s witness statement. Similarly, the amount on Exhibit 2(A) of Gh¢14,152.00 and receipted by the Plaintiff in Exhibit 2 is totally different from the amount admitted by the Plaintiff in paragraph 11 of her witness statement. I rule therefore that during the pendency of the matter, the Defendant, aside the payment of Gh¢14,152.00 and receipted by the Plaintiff as rent for 15/6/2016 to 31/12/2017 on 5/4/2017, the Defendant actually, and as particularly admitted by the Plaintiff in her paragraphs 11 and 12 of the witness statement made a further payment of rent in respect of the premises in the total sum of Gh¢10,800.00. Therefore, the payments made during the pendency of the suit are: 5/4/2017, Gh¢16,650.00 (constitute of Gh¢14,152.50 to Plaintiff by cheque and another cheque of Gh¢2,497.80) the receipt of which the Plaintiff acknowledged by Exhibit 2 on 5/4/2017 through Trudy Afriyie Marfo. I have to explain that this Gh¢10,800.00 paid by the Defendant to the Plaintiff is totally different from the one stated for Exhibit (1a) and (1b) which was withdrawn by the Defendant by Exhibit D and which the Defendant never denied. Indeed, the Gh¢10,800.00 being payment for rent arrears was admitted by the Plaintiff in her evidence in paragraphs 11 and 12 of her witness statements which was paid after 28/10/2016 but during the pendency of this suit. But the UMB cheque for the payment of rent for 15/6/2015 to 14/6/2016 with a value of Gh¢10,800.00 was dated 29/02/2016, many months before the suit commenced. So, the two cannot be the same – whereas one was not honoured by Exhibit “D” and the suit commenced, the other was paid during the pendency of the suit. ISSUE III: WHETHER OR NOT THE SUBJECT MATTER HOUSE IS IN THE STATE OF DISREPAIR AND WHETHER THE PLAINTIFF NEEDS THE PREMISES TO CARRY OUT A SCHEME OF RENOVATION/REDEVELOPMENT. To have a fair appreciation of the matter, I wish to decouple the issue in point as it is clear that the parties, in setting down the issues raised in the pleading agreed to lump the two together as particularly set out by the Plaintiff. Again I am of the opinion that I will not be wrong in decupling the issues: And I do concede that at the Pre-trial stage, the above could have been resolved by the court albeit differently constituted, as on the authorities, the court has power to ignore or add to the issues at the pre-trial stage. Even a totally new issues arising out of the pleadings could be raised and set out for determination by the court at that stage. I am fortified therefore on the authority of FATAL v. WOOLEY [2013 – 2014] SCGLR 1070 on the above position. Having decoupled the issue (issue III), I now proceed to consider “whether or not the subject matter house is in the state of disrepair”. The Plaintiff pleaded that the premises is in state of disrepair and thus needs same to carry out a scheme of renovation/development to conform to current building standards which cannot be done while the Defendant is in occupation. The Plaintiff in her evidence on this did not provide any additional information to support her claim. It was a repeat of the averments in the pleadings. Prior to the claim for recovery of possession/ejection of the Defendants from the premises, the Plaintiff, through her lawyers caused notices to be given to the Defendant through Exhibits “C” and “D” which among others included the reasons of urgent renovation of the premises as it was in a dilapidated state. Indeed, the information on the state of the premises is captured in Exhibit “C1” dated 8/5/2015 and it is captured in paragraphs 2 of page 2 of Exhibit “C1” thus: “We are also instructed that the property is in a dilapidated state and requires urgent renovation”. “Consequently in the light of your breach of the tenancy agreement mentioned supra and relying on clause (J) and 10(a) coupled with the urgent need to renovate the property to save same from destruction and prevent any danger to the neighbours and passerby, we have been instructed to demand, which we hereby do, that you give vacant possession of the stores and warehouse within………” Exhibit “C” is basically an extension of time to the Defendant to give vacant possession of the premises as according to the letter, the Plaintiff “accepted” that the Defendant should be given a period of one (1) year to enable the Defendant give vacant possession of the property. The Defendant vehemently and consistently maintained that the property is not in a state of disrepair requiring renovation. As stated earlier, apart from the averments in the pleadings and repeated in the evidence, the Plaintiff did not lead any cogent evidence to prove the state of disrepair in the subject matter and requiring urgent redevelopment. The above has been held by the courts as bad practice in adducing evidence. This is also supported by the cases of: (1) MAJOLAGBE v. LARBI [1959] GLR 190 (2) ZABRAMA v. SEGBEDZI [1991] 2 GLR 221 The only real inkling produced by the Plaintiff is, as captured by Exhibit “C”, giving reasons for requiring the property for renovation. Having stated the above, it must be noted however that the evidence provided that the Defendants have occupied the premises as tenants for over 20 years. During this period there is no evidence that any renovation has taken place. The following may be of relevance in this instance. CROSS-EXAMINATION OF THE PLAINTIFF BY THE DEFENCE COUNSEL: Q: I am putting it to you that the premises occupied by the Defendant does not need any re-modification as you want the court to believe? A: It is not correct. The place was to be rehabilitated. It gets flooded when it rains. The manager called me to have a look at it but the assistant manager stopped him from informing me because he felt I will bring it to the notice of the court. Q: All these allegations happened after you have come to court? A: It had already happened. Q: It is true that this particular premises is situated at Barclays Bank, Takoradi? A: Yes, my Lord. From the above, the court has a clue as to the state of the premises as floods do disturb both parties as both possess in the same compound but as the Defendant, being a commercial enterprise and has customers, its customers may bear the brunt of the flood whenever it rains. But will this alone be a ground for the Defendant to give vacant possession? I do not think so as in my candid view, such works could be undertaken by the landlord in an arrangement with the Defendant without giving vacant possession of the premise except when the renovation is massive and comprehensive but there is no plan yet on this. But I am indeed struck by Exhibits C and “C1” on the need for the renovation. Exhibit “C”, is a letter from the Plaintiff’s Solicitor to the Defendant is dated 8/5/2015 which required the Defendant to give vacant possession, among others, of the premises and a three (3) month notice was given to the Defendant. Exhibit “C” dated 5/2/2016 from the Plaintiff’s same letters to the Defendant was basically on an extension of time to give vacant possession of the premises. It was striking in paragraph 3 of Exhibit “C” that the Plaintiff in writing to the Defendant stated thus: “We are hereby instructed to inform you, which we hereby do that UPON A THROUGH CONSIDERATION, OUR CLIENT HAS ACCEPTED THAT you should be given a period of one (1) year and to enable you to give vacant possession of the property. Consequently, you are required to give vacant possession of the property to our client on or before 15th day of June, 2016. “We are also instructed that you pay rent due on the tenancy”. My understand of the above is that the Plaintiff having accepted that the Defendant be given one year notice, after the initial Exhibit “C1” presupposes that some discussions must have ensued between the parties as a result of which an extension of time from what had initially been given to the Defendant in Exhibit “C1” to Exhibit “C” being initially a year’s notice to the Defendant. Beyond what has been stated above, and on the cross-examination of the Plaintiff on the premises getting flooded whenever it rains, there is no other evidence on the state of the premise requiring the Defendant to give vacant possession of the commercial premises in dispute. The Defendant’s position is that the premises is not in any state of disrepair as both parties are comfortably and conveniently still using the premises. The fact is that the Defendant has occupied the premises for over 20 years and without renovation. 20 years is long enough for wear and tear to show well. Exhibit C1 gives a hint of renovation. The Defendant by Exhibit C, apparently after negotiation, prompted the Plaintiff to reschedule its notice to accommodate the Defendant’s concern, and from the cross-examination of the Plaintiff, whenever it rains the premises get flooded. The cumulative effect of all the above influences the court to conclude that the premises is in a state of disrepair and would naturally need renovation and the court so finds. On the issue of: “Whether or not the Plaintiff, needs the premises to carry out a scheme of renovation/redevelopment; the court’s view, from the records may be of relevant. Redevelopment is the action or process of developing something again or differently. It may be the construction of a new building in an urban area, typically after demolishing the existing building and its synonyms include renovation, revival, repair, refurbishment or reconstruction. Also, Black’s Law Dictionary, 11th Ed, by Bryan A. Garner @ 1530 defines redevelopment (in real estate) to mean a rehabilitation of an urban-residential or commercial section that is subject to blight or in decline, especially, by erecting new buildings or renovating the old ones…” The evidence is that the premises are made up of a store, offices and a warehouse. It is near the Barclays Bank, of Takoradi. The evidence is that the Defendant is a company with salesmen and has rented the premises for over 20 years. There is no evidence on record to the effect that the premises had been renovated before. The evidence also is that since 2011 when Exhibit “B” was executed there has not been any review of rent at least from the records. The evidence also is that when it rains, the premises is flooded. The evidence is that the Plaintiff has prior to the institution of the action, notified the Defendant at least for about 8 months of her desire to renovate/redevelop the property. The evidence is that since 2015, by Exhibit C and “C1” the Plaintiff has indicated of her desire to renovate the premises and has accordingly alerted the Defendant who from Exhibit “C” gives the notice that they need time to give vacant possession of the premises to the Plaintiff. In my view, just as the Defendant needed the premises for the operations of its business so must the Plaintiff have the right to effect renovation in view of the length of the tenancy for over 20 years without renovation particularly as there has not been any upward review of the rent and also the fact that the premises is at a prime area of Takoradi quite near the Barclays Bank. From the above, I rule in favour of the Plaintiff as against the Defendant that the Plaintiff will need the premises so as to carry out a scheme of renovation/redevelopment. There is yet an issue (ISSUE IV): “WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HER CLAIM”. This court differently constituted set the above as an issue for the determination in the case. In the case of DALEX FINANCE AND LEASING COMPANY LIMITED v. EBENEZER DAMSEL ANNOR & 2 ORS (UNREPORTED), CIVIL APPEAL NO. J24/2021, DATED 14TH APRIL, 2021, the Supreme Court through Pwamang JSC stated thus: “We take this opportunity to deprecate the emerging wrong practice where in a civil case “whether or not the Plaintiff is entitled to the claim” is put down as an issue for the trial. The whole trial is aimed at determining whether or not the Plaintiff is entitled to the reliefs he seeks. So how can that become a distinct issue” “…This practice is a product of lazy work and a stop must be put to it. This is not the first time this reminder is being given by this court.” From the above decision therefore, I am convinced and indeed bound that it is not fashionable to set out as a distinct issue for determination whether or not the Plaintiff or a party is entitled to his claim or counterclaim. In the above regard, Issue IV, set out for determination in this case will not be discussed, per the above decision. Now, coming back to Exhibit “B” which is the Tenancy agreement between the parties, the relevant portions of which I have taken pains to reproduce in this judgment, I indeed find that the Defendant has breached several provisions of the tenancy agreement (Exhibit “B”) which contrary to clause 3, ought to have been renewed every two years but which the records never stated that ever since the agreement as executed in 2011, has never been reviewed as stated therein. Clauses 3, 4, 7(a), 7(e), 7(f), 7(j), 7(m), 9(c) and (d) of Exhibit “B” have been breached by the Tenant (in this case the Defendant). As stated elsewhere in this judgment, as at 28/10/2016, the Defendant had breached Exhibit “B” and was in arrears of rent in the sum of Gh¢15,180.00. During the pendency of this suit the Defendant, from the evidence made payment thus: Gh¢16,5000 + Gh¢14,152.50 total: Gh¢30,652.50. So, from 28/10/2016 to the present, even though the Defendant has insisted on owing no rent arrears, only two payments have been proven by the Defendant. From 28/10/2016 up to this day of Judgment (22/3/2023), the Defendant has paid a total of Gh¢27,450.00. And since there is no evidence of any increment in the rent payable, a conservative calculation of rent due from 28/10/2016 from the institution of the writ to the present totalling 78 …… months (about seven (7) years) at the conservative static events Gh¢6,00.00 per mensem will total Gh¢46,800.00. That will still mean that as at today, the Defendant is in arrears. Has the Defendant taken any steps to rectifying various breaches in the clauses of Exhibit ‘B’? From the Evidence, my answer is in the negative. For instance, on emptying the septic tank which the Defendant refused to pay for, resulting in the Plaintiff bearing the cost in doing it and yet, the Defendant in spite of the notification of same through Exhibits ‘C1’ or ‘C’ refused to pay same. Also, since the Institution of this action on non-payment of rent as one of the grounds of ejectment, the Dependent has been non-cooperative. From the evidence, I am convinced that the Defendant, may, after all, be ready to give vacant possession of the premises to the Plaintiff having regard to his conduct of not correcting the various breaches of the numerous clauses in Exhibit ‘B’ and also the Plaintiff by Exhibit ‘C’ having accepted to extend the notice to give vacant possession possibly upon discussions with the Defendant when both Exhibits were sent to the Defendant in that regard. Again, from the Evidence, aside the Defendant having breached various clauses in Exhibit ‘B’ (the Tenancy agreement), the Defendant has also breached the provisions of S .17(1) (a), (b), (c), (e), (h) of Act 220 as earlier provided in this judgement, and I so find. From the above, I find also that the Plaintiff, as the landlord who has the burden of proving the non-payment of rent, has dischargedd the said burden creditably. In GYATO v. PIPIM [1980] GLR 71, it was held that under the Rent Act, (Act 220), S. 17 (1) (a), the Landlord’s right to commence proceedings for recovery of possession or ejectment for non-payment of rent accrued to him where any rent lawfully due from the tenant had NOT been paid or tendered within one (1) month after the date on which it became lawfully due. Once this cause of action had accrued to the landlord and he had commenced proceedings for Recovery of possession or ejectment, the subsequent payment or tendering to the landlord of the arrears of rent claimed by the writ did not abate the cause of action I also find that from the records before the court, S. 17 (1) (g), (h), (i), and (k) of Act 220 on the mandatory requirement on a landlord requiring his promises to comply with regulation 18 of LI. 369 is not applicable to the instant case. This is what has been submitted by Counsel for the Defendant citing the case of ASAMOAH v. ZWENNES [1980] GLR 867. Understandingly, I concede that Counsel’s submission on the above is the true position of the law under Act 220. But the difference is that Counsel’s submission on the position of the law although very cogent and valid, is not applicable to the instant case, I beg. The position is that, Regulation 18 of the Rent Regulations, 1964 (L. I. 369), applied in cases where the landlord might require possession of his premises, relying on or coming under any of the provisions of S. 17 (1) (g), (h), (i) and (k) of Act 220. WHERE HOWEVER, the landlord came under any of the provisions of S. 17 (1), (a), (b), (c), (d), (e) and (f) of the Act, he was not required to comply with the regulation because when a tenant, for instance, failed to pay due rent, to where he was in breach of a covenant as in the tenancy agreement, or where, as in the present case, he was guilty of conduct which constituted nuisance or an annoyance to adjoining occupiers, he automatically forfeited his right of occupying the premises under Act 220 and the landlord was entitled to and might come to court direct to ask for ejectment if the tenant refused to quit – see the case of MENSAH v. ADDISON [ 1981] GLR 7874. One may equally argue that since Exhibit “B” was not renewed after its expiration, the Defendant became a statutory tenant and therefore ought to be protected by the courts as per Act 220. “Statutory Tenant” under Act 220, S. 36 thereof means a tenant who: a. Remains in possession of premises after the determination of any means of his tenancy and cannot by reason of the provision of this Act be deprived of such possession by his land. S. 29 of Act 220 deals with obligations of statutory tenants which include the terms and conditions to the effect that, he shall observe and be entitled to the benefit of all the terms and conditions of his original tenancy, in so far as the same are consistent with the provisions of Act 220 and shall HOLD the premises subject to any restrictive covenants contained in the terms and conditions of the lease between the landlord and the Principal Tenant. My understanding of a statutory Tenancy is that he shall be under the Terms and Conditions of the original tenancy, as in this case Exhibit “B”. The issue of non-payment of Rent is still applicable, the issue of non-correction of breaches of the Tenancy are still applicable to the statutory tenant and also the issue of ejectment for breaches for the covenant and clauses in the agreement including non-payment of rent are all applicable to him. In the Supreme Court case of ANOKYE v. OSEI [2008] 19 MLRG, 1, S. C. @ 7 Per Woode JSC (as she then was) stated the right of a tenant where the landlord required the ejectment of a tenant so as to carry out remodelling or renovation works. Further to the above, it has been held in SARFO & anor v. BADU [1977] 2 GLR 63, that Act 220 does not regulate the Relationship of the landlord and tenant in general but it is only the Rent factor that the Act regulates. This, to my understanding, brings me to the relevance of Exhibit “B” in this judgement. From the evidence on record, the breaches of clauses in Exhibit “B” are not just one of act, that is, non-continue breaches, but rather continuing breaches of clauses in Exhibit “B” making it very difficult to aid the Defendant in any way. This also makes it very difficult for any court to make any order on re-entry after any remodelling of the premises. I am supported by the case of MENSAH v. COFIE (1991) 1GLR 254. On this point, even if the court were minded to consider same as it is not in the circumstances, under Act 220 and also under Exhibit “B” not mandatory. Indeed, the issue/fact of non-payment of rent more commonly termed arrears of rent, is so fundamental that the breach of same in the tenancy agreement goes to the very root of the transaction. It has been held that on the breach of payment of rent, the tenant forfeits the right to repossess the property after renovation. In the instant case, the evidence is that there is indeed an arrears of rent which have not as yet been paid even though from the totality of the evidence, and since the commencement of the action on the non-payment of rent and arrears of rent, the Defendant has during the pendency of the matter made some substantial payment influencing the Defendant to boast that there is no arrears of rent. MESNE PROFIT: The Plaintiff claimed for Mesne profit. Black’s law Dictionary 11 Ed, by Bryan A. Guner describes an action for mesne profit as a lawsuit seeking damages suffered by a landowner who has succeeded in a common law action for ejectment whereby the Plaintiff may recover for both the use of the land during the wrongful occupation and the costs of ejectment. It is consequential to an action for recovery in ejectment. It is also the profits of an estate received by the tenant in wrongful possession between two dates, it is sometimes stated. In the Supreme Court case of THERESAH HALIGAH v. DUKE BANSON (2018) 119 GMJ 120, SC, on mesne profit, the apex court stated that mesne profit was usually based on the least rent payable where one party was unable to purchase the house but continued to live in it without paying rent. Counsel for the Defendant, in his submissions, stated that the Plaintiff’s claim be dismissed in its entirety. Counsel for the Plaintiff however, on mesne profit made the following submissions; “My Lord, the property in issue is a building in the central business area of Takoradi. The Defendant occupies virtually the whole of the property and pays a paltry GH¢600,000.00 a month as rent. And even this amount it has refused to pay or attempting to short change the landlady. This matter has dragged in court since October 2016 to date, a period of almost 7 years without the Defendant paying rent. The Economic circumstances in the country which has taken a downward trend over the land few years has rendered the meagre GH¢600,000.00 rent insignificant in monetary terms. The writ is endorsed with a claim for mesne profit. As the parties have been in court, the rent which ordinarily should have been reviewed periodically has not been so reviewed. It would be the apogee of injustice for the Defendant to be permitted to in justly profit from the weaknesses of the judicial system in the country”. The truth of the matter is that aside the submission as above stated, and the fact that the Defendant has breached various clauses of Exhibit “B” for non-revision of rent since 2011 when the agreement was executed, the Plaintiff could not lead any further Evidence on Mesne profit. On this claim, the Defendant denied same. In TETTEH v. T. CHANDIRAMS & CO. (GH) LTD & ORS [2017 - 2020] 2 SCGLR 770, it was held that a party was obliged to adduce credible Evidence to prove a claim where the alleged claim was denied. The party was not merely to mount the witness box and repeat the pleadings where the claim was capable of positive proof. The Plaintiff’s case was that as at the Institution of the writ, the Defendant was in arrears of rent for GH¢15,180.00 at GH¢ 600.00 per mensem. During the pendency of the matter, the Defendant made two payments of GH¢ 16,500.00 and later GH¢10,800.00 both of which totalled GH¢27,300.00 as rent paid by the Defendant during the pendency of the suit for 29/10/2016 and 31/12/2017 at GH¢600.00 per mensem. As found out in this judgement and per the evidence, the UMB cheque of GH¢10,800 to cover 15/6/2015 and 14/6/2016 as per Exhibit 1, 1(a) and (b) was not paid by the Defendant to cover the stated period as per Exhibit “D” tendered in Evidence through the Defendant as Exhibit “D”, the said cheque was withdrawn by the Defendant by the letter of the Managing Director. The Defendant’s contention that some rent were paid to the Plaintiff’s solicitor for rent was not supported by any evidence or document and so same cannot form part of this record as same is not supported by the evidence in any way. This is particularly so, as the Defendant generally hinged his Evidence as documents and receipts. From the records available to the court, the Defendant made no payment for the period 1/1/18 up to 23/3/2023 which stands at 63 (sixty-three months) at only GH¢600.00 per mensem totalling GH¢37,800. 00 for 51/3 years. This amount of GH¢ 37,800.00 represents rent arrears for five years and three months. Under the tenancy between the parties, clause 7(a), 9(a), 9(c) of Exhibit “B” required that the rent be reviewed every two years. This court will not make any determination on it. Also it is on record and as per the tenancy agreement the tenant made an undertaking and covenant to pay all outgoings including the payment of expenses for emptying the septic tank at GH¢1,200.00 which the Defendant refused to pay resulting in the Plaintiff eventually being compelled to pay albeit angrily and costing her an amount of GH¢ 2,000.00 according to the records. The court finds that the Plaintiff too occupies part of the premises and so if the Defendant has been paying for all the outgoings, then it stands to reason and it will not be out of tune if the landlord, in this case the Plaintiff, for once pays for the emptying of the septic tank. Therefore, I find that from 1/1/2018 up to 23/2/2023, the Defendant owes an arrears of rent to the Plaintiff in the sum of GH¢37,800.00 representing five and a quarter years (63) months at GH¢600.00 per mensem and I order the payment of same forthwith by the Defendant to the Plaintiff. Also, after the issuance of the writ of summons and during the pendency of this matter, the Defendant made two (2) payments between 29/10/2016 and 31/12/2017 representing fifteen months at GH¢600.00 per mensem and totalling GH¢27,450.00. As stated elsewhere in this judgement, the amount of GH¢10,800.00 being the UMB cheque for 15/6/15 and 14/6/16 could not be added to the payments as per Exhibit “D”, the said cheque (Exhibit 1, 1(a) and (b) was withdrawn by the Defendant per the reasons stated therein. Again, between 29/10/16 and 31/12/2017, which is a period of fifteen months at GH¢600.00 per mensem, the total rent of arrears payable by the Defendant to the plaintiff under the terms of Exhibit “B” stood at GH¢9,000.00. The summary on the rent due by way of arrears from 29/10/2016 up to 23/3/2023 and the payments (by the evidence) made are as stated below: a. GH¢15,180.00 Rent arrears prior to the institution of the action. b. GH¢9,000.00 Rent arrears/ due from 29/10/16 to 31/12/2017 (15 months). c. GH¢37,800.00 Rent arrears/due from 1/1/2018 to 23/3/2023 (63 GH¢46,800.00 months). d. GH¢27,450.00 Being the total payments (by the evidence) for rent arrears/due from 29/10/16 up to 23/03/2023 (but paid between 29/10/2016 and 31/12/2017 in two instalments). e. GH¢9,000.00 + GH¢37,800.00 = GH¢46,800.00 f. Less Rent Payment of =GH¢27,450.00 g. Rent payable as at 23/3/2023= GH¢19,350.00 Therefore, from the above and as per the records. Before the court, the Defendant is to pay GH¢19,350.00 representing arrears of rent payable by the Defendant to the Plaintiff from 29/10/2016 up to 23/3/2023 (the date of this judgment and the Plaintiff is to recover same from the Defendant under the issue of Mesne Profit. Now, on Renovation, I wish to state that in the circumstance of this case, consideration of Form 14 under Regulation 18 of L. I. 369 is not applicable where the Defendant is in default of Rent and has committed Nuisance as stated above. Here, again, the Defendant is NOT to be reinstated after the renovation. The cases on non-payment of rent which are: a. KUMA & ANOR v. KOI-LARBI [1991] 1 GLR 537 SC b. GYATO v. PIPIM [supra] fortify me on the above and as recovery of possession as prayed for by the Plaintiff in this case. As contained in Exhibit “B” which made provision for condition after recovery of possession or re-entry, the courts have held that S. 29(1) of the Conveyance Decree, 1973 (NRCD 175) provides that the Lessee should be given adequate notice and time to remedy the breach or make reasonable compensation or both as a precondition to any action for recovery of possession was procedural only, and therefore whether or not it had been complied with in any given case was a question of fact rather than of law to be determined as the Evidence – DAHABIEH v. S. A. TARQUI & BROS [2001-2002] 1 GLR 171. In this case, the Plaintiff per Exhibit C and C1 gave the Defendant due notice for breaches particularly on Nuisance and non-payment of rent as particularly contained in Exhibit “B”. The notices in Exhibits C & C1 respectively were dated 5/2/2016 and 8/5/2015 respectively. Exhibit C’s last paragraph states as follows: “You are also instructed that you pay rent due on the tenancy”. On Exhibit C, the Plaintiff detailed various breaches of Exhibit “B” to include sub-clauses “e”, “f” and “g” of clause 7 thereof. As said earlier in this judgment, the demeanor of the Defendant’s Representative who testified for the Defendant raised questions about his credibility particularly in answering questions from the Plaintiff’s Counsel to the extent of providing evasive answers. Much as I applaud the Defendant for being positive, confident and boastful to the effect that the Defendant does not owe the Plaintiff any rent, which generally looked true to some extent, the fact still remained that he defaulted in the payment of rent as contained in Exhibit C and C1 long before the institution of this action and even thereafter. Also, the fact remained that although, the Defendant breached the covenant on payment of rent as agreed between the parties as per Exhibit “B”. As contained in S. 80 of NRCD 323 on credibility of witness, which provides guidance on determining the credibility of the witness and also supported by the case of ZANYO v. FOFIE [1992] GRL 475, I find the witness’ demeanor quite unhelping in the case which raises some questions about his answers in cross-examination as stated earlier in this judgment. Section 10, 11, 12 and 14 of NRCD 323 are the provisions on proof which require a party to lead cogent evidence so that on the totality of the evidence on record, the court will find that a party’s version is more credible than the rival version. The above is also reiterated in the cases of: a. ZABRAMA v. SEGEDZI [1991] 2 GLR 221. b. TAKORADI FLOOR MILLS v. SAMIR FOOD [2005-2008] SGLR 298. I find therefore that on the totality of the evidence before the curt, the Plaintiff has proved his case as against the Defendant on all the reliefs sought and thus same are granted accordingly. To conclude therefore, I uphold the Plaintiff’s case as against the Defendant as judgment is entered in favour of the Plaintiff as against the Defendant thus: 1. Recovery of possession by the Plaintiff of the rooms occupied by the Defendant as tenant in Plaintiff’s H/No. 28/7, Liberation Road, Takoradi, for nuisance, non- payment of rent and renovation. 2. Recovery for the sum of GH¢15,800.00 being rent arrears before the institution of the action on 28/10/16. 3. I further order the recovery of payment of the sum of GH¢19,350.00 being mesne profit as per the above rendition/…… same being rent arrears for the period of 29/10/16 up to 23/3/2023. 4. The Defendant is given a period of six (6) months from the date of this judgement within which to make vacant possession of the premises for the Plaintiff subject to the payment of rent of GH¢ 600.00 per mensem. Even though per Exhibits C and C1, the Defendants were made aware of the recovery of possession for renovation as far back as 2015, implying that the Defendants have had at least 8 years notice and preparation for vacant possession, being a Commercial Business Enterprise, and this court being a court of equity also, is minded in giving the Defendants further six (6) months to give the vacant possession of the premises. Also, it has to be noted very well that when a tenant failed to pay rent due to which he was in breach of a covenant in the tenancy agreement as exactly in this case, or where he was guilty of conduct which constituted nuisance or any annoyance to adjoining neighbours, or occupiers, the tenant automatically forfeited his right of occupation of the premises under Act 220 and the landlord was entitled to come to court directly to ask for ejectment if the tenant refused to quit. And this was the decision on MENSAH v. ADDISON [supra]. 5. I finally award cost of GH¢ 15,000.00 to the Plaintiff against the Defendant. SGD G. K. GYAN-KONTOH ‘J’ JUSTICE OF THE HIGH COURT COUNSEL: 1. JOHN MERCER FOR THE PLAINTIFF. 2. S. A AGBOTTAH FOR THE DEFENDANT. 51