Gabah Vrs Eha & Another [2023] GHACC 156 (31 March 2023)

IN THE CIRCUIT COURT OF JUSTICE HELD AT DENU ON 31ST DAY OF MARCH, 2023 BEFORE HIS HONOUR JOSEPH OFOSU BEHOME ESQUIRE – CIRCUIT COURT JUDGE SUIT NO. E13/01/2022 VICTORIA GABAH OF GBEDEKOPE/AFLAO …… PLAINTIFF VRS: 1. NELSON KWADZO EHA 2. ABIGAIL MORTEY …… DEFENDANTS BOTH OF GBEDEKOPE/AFLAO ---------------------------------------------------------------------------------------------------- PARTIES: PLAINTIFF …….. PRESENT DEFENDANTS …….. PRESENT ---------------------------------------------------------------------------------------------------- JUDGMENT The Plaintiff on the 23rd of August, 2021 issued a Writ of Summons accompanied by a statement of claim against the 1st Defendant. After entry of appearance on 5th November, 2021, the Court ordered Abigail Mortey to be joined to the suit as the 2nd Defendant on 21/02/2022. The Defendants filed a joint defence on 02/12//2021. In their defence they denied jointly and severally Plaintiff’s claims levelled against them. In further denial, they stated the house in question was rented by Abigail Mortey, the 2nd Defendant herein. In the Writ of Summons and the statement of claim the reliefs claimed by the Plaintiff against the 1st Defendant are the following: a. A declaration that all the three (3) bedrooms self-contained building with its boundaries stated in paragraph 14 of the Statement of Claim is the absolute property of the Plaintiff and not the property of the Defendant as being portrayed and must be treated as such. b. An Order of the Honourable Court directed at the 1st Defendant debarring him from further having anything to do in the house in question pending the final hearing and determination of the suit. Plaintiff further contends that she does not know the 2nd Defendant once she has no contract with her but the 1st Defendant. Defendants in their joint statement of defence denied Plaintiff’s statement of claim and stated further that the entire summons filed by the Plaintiff is frivolous, vexatious and unmeritorious. Defendants state that the house in question was rented by the 2nd Defendant, Abigail Mortey. In furtherance, they aver it was she the 2nd Defendant who sent 1st Defendant to one Vincent to take 1st Defendant to the Republic of Togo for the keys from the Plaintiff. The Defendants contend, when they went to Plaintiff in Togo-Lome, it was one Adzevi who took the keys from the Plaintiff and together they brought the keys to Abigail Mortey. The 1st Defendant states that when they handed over the keys to Abigail Mortey, it was then that Abigail Mortey engage the 1st Defendant to complete the building for her because the 1st Defendant is a mason. They aver it was Abigail Mortey who bought all the materials needed for the project to be completed. On 21st February, 2022, the issues agreed and set down for trial were: - A. Whether or not Plaintiff is entitled to her Claim. B. Whether or not there was a contract between the Plaintiff and 1st Defendant in respect of Plaintiff’s uncompleted three (3) bedroom self-contained at Gbedekope/Aflao. C. Whether or not there was any contract between the Plaintiff and the Defendant’s wife Abigail Mortey either in Ghana or in the Republic of Togo in respect of the said building. D. Whether or not the 2nd Defendant is entitled to her counterclaim. E. Any issue(s) arising from the pleadings so far filed but not specifically pleaded. WITNESS STATEMENTS OF THE PARTIES The Plaintiff file a witness statement on 14/03/2022. Plaintiff attached as an Exhibit the expenditure 1st Defendant incurred to the witness statement. This will be reverted to appropriately. In the said witness statement, the Plaintiff herein stated that, her late grandmother, Madam Kofishie Kunugbe Dzata gifted her a land at Gbedekope/Aflao and she built (3) three bedrooms, self-contained on it to the decking level and she then afterwards left for greener pastures at Kodzoviakope in the Republic of Togo. She stated further that on 14th February, 2015, 1st Defendant approached her son, Innocent Gagliyo who brought the former to her in Togo. She avers 1st Defendant came with the prayer that he wanted to complete her uncompleted building with his own money and thereafter off-set his expenditure against his rent payable. She contends both parties agree that Innocent should be made known of all expenses such that after completion the landlady together with Innocent and Defendant will sit down to do the necessary calculations and tenancy agreement thereby drafted. According to the Plaintiff herein, 1st Defendant could not fully honour the agreement of completion and also declined to come to the table for a set-off as was reached. Plaintiff avers however that somewhere in August, 2018, Defendants came to her for the set off but his son Innocent was not around and she implored them to go and come at another time when the son will be around but they refused to ever show -up. From Plaintiff, she visited the house on the 1st of September, 2018 and realized that one of the 3 bedrooms door was not fixed and the room were also not cemented and plastered hence she sent a message through 1st Defendant’s wife now the 2nd Defendant to tell the former to halt any further development till they sit on the table. According to Plaintiff, 1st Defendant has glossed over this directive and gone ahead to fix the door, plastered and cemented same and stayed in. Plaintiff says, the conduct of 1st Defendant was accordingly reported to the Rent Control but no resolution was reached. THE CASE OF PW1 Innocent Gagliyo, the 1st Plaintiff witness is the biological son of the Plaintiff and the very person who accompanied 1st Defendant to the Plaintiff in Togo where they reached their agreement. He corroborated the testimony of Plaintiff. THE EVIDENCE OF THE DEFENDANTS The 1st Defendant avers, he was the one who sent 2nd Defendant to see Vincent and the latter constituted and appointed a delegation of 2, Exa Kodjo and Adzevi to join him to see the landlady in Togo, for the keys to the very house in dispute. He contends, the house was at lentil level and not decking and more so that they were single rooms and not self-contained. He says, when they returned from Togo with the keys, the inspection of the house was done by the delegation and the 2nd Defendant. 1st Defendant says, the controversy has taken them to the Rent Control, wherein 2nd Defendant tabulated the expenditures she has incurred on the building but Plaintiff refuted same saying, it is above normal. EVIDENCE OF 2ND DEFENDANT In opening her defence, the 2nd Defendant told the Court that, she lives at Gbedekope-Aflao. The 2nd Defendant avers the house in dispute is made up of single rooms all over and not self-contained as claimed by the Plaintiff. She avers she was looking for a chamber and hall to rent and whilst going round she met one Vincent in his Kiosk at Gbedekope and she told him of her mission and the former told the latter that, the Aunt is having three uncompleted single rooms at Gbedekope which is at lentil and that the Aunt is in Togo so if she is interested, he can send someone to go for the keys in Togo. According to the 2nd Defendant, she was the one who sent 1st Defendant to Vincent to take 1st Defendant to the Republic of Togo for the keys from Plaintiff in the company of Eha Kodjo and Adzevi. 2nd Defendant contends, when they brought the keys, she together with the delegation inspected the house and the whole place was full of human excreta and it took her about five (5) months to clear the site of filth. 2nd Defendant says at the heat of the dispute surrounding the tenancy Plaintiff summoned the 1st Defendant to the Rent Control Office – Tokor and on the hearing date she joined 1st Defendant and explained the issue to the officer making it clear that 1st Defendant is not the one who rented the house from Plaintiff. 2nd Defendant avers she was then asked to calculate her expenses incurred on the house for the Plaintiff and she complied and tabulated the following: Roofing Sheets, Wood, Nails, Ply Wood, Cement among others and mentioned the figure. EVIDENCE OF DW1 In the evidence of Atonu, DW1, he contends, the Plaintiff is his maternal Aunt. He avers Plaintiff informed him of his uncompleted house which she has been looking for a tenant to rent and complete and off-set his/her expenditure with the rent that would be payable. He says, following this information, he called Adzevi on phone that 2nd Defendant has shown interest in his mother’s uncompleted house so she should come and take 2nd Defendant to her mother in Togo. He avers, after calling Adzevi for the 2nd Defendant he left and that later 2nd Defendant called and informed him that she could not go to Togo with Adzevi but rather delegated 1st Defendant to go with Adzevi. EVIDENCE OF DW2 Exa Samuel is a witness to Defendants and he is the son of the 2nd Defendant. He had little to offer. All his testimony centered on the tidying of the building’s environs and the type of building being at lentil and also being single rooms as opposed to being a self-contained structure. The following ensued between the 2nd Defendant and the Plaintiff on 12/10/2022: Q. Who was the person that you asked to look for someone to complete your house for you and fell on me. A. Innocent Afonu. Q. Did Vincent not tell you that I was the one who rented the house. A. No. Q. You said Vincent did not tell you I was the one who rented the house why then did you report me to the police. A. The reason is whenever I call the man, 1st Defendant you are the one who comes. Q. Does this not tell you I am the one who rented the house. A. No, it does not. Q. When you reported the issue to the commander and we appeared before him did I not tell you I was the one who rented your house and therefore you should direct everything to me. A. No. Q. Did you not come to the house with 2 of your children insulted me and tried to assault me till I locked myself in my room. A. Not true. Q. The cement, doors etc. among others that I bought totaling about GH¢80.930.00 on the building, have you refunded same to me. A. I do not know you but the 1st Defendant and the amount too is not up to what you are saying. Q. Did Rent Control not tell you to refund my money to me. A. No. Q. I suggest to you that you refund my money and I will move out of the house. A. I do not know you, it is the 1st Defendant that I know and after completing the house the 1st Defendant has not come back to me for any accounts for me to know whether I am indebted to him or otherwise for it has been (7) seven years now. Q. When we went to rent control did, I not tell you I rented the house and Vincent corroborated same. A. No. PROOF IN CIVIL CASES Section 11 of NRCD 323 has the following provision. 11 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. Section 13(1) of NRCD 323 also states; In any civil or criminal action, the burden of persuation as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. In civil cases the burden of proof is on the party who alleges or asserts a particular issue or fact and the standard of proof is on the preponderance of probabilities. In Barkers Woode vrs. Nana Fitz (2007-2008) SCGLR 879 at 891 Dr. Date-Baah JSC stated: “The Common Law has always followed the common sense approach that the burden of persuation on providing all facts essential to any claim lies on whoever is making the claim” Where the Plaintiff leads credible and admissible evidence in support of the claim the burden shifts unto the Defendant to lead evidence to tilt the scale in favour of the Defendant failing which a ruling will be made against the Defendant. In the case at hand the Plaintiff’s claim is that she had no contract/agreement with the 2nd Defendant and does not know her. In Ashanti Goldfields Co. Ltd. vrs. Westehester Resources Ltd. [2013] 56 GMJ @ 128, where the Court of Appeal per Korbieh J. A. held that where the evidence of a witness is unchallenged in cross- examination, it is deemed to have been admitted by the other side. See also Fori vrs. Ayirebi [1966] GLR 627-649. In paragraph 4, 5, 6 and 7 of DW1’s evidence, he states; “The Plaintiff made me aware that she is having an uncompleted building at Gbedekope 5. That if somebody is looking for accommodation, I can show the uncompleted building to the person and if the person is interested, he or she can complete it and stay in the room for his expenses. 6. That upon hearing this piece of information I called Adzevi on phone that 2nd Defendant is interested in the mother’s uncompleted building so she should come and take 2nd Defendant to her mother in Togo. 7. That after calling Adzevi for the 2nd Defendant I left and later 2nd Defendant called to inform me that she did not go to Togo with Adzevi but rather delegated 1st Defendant to go with Adzevi. Plaintiff did not refute DW1’s evidence that she has directed him to look for prospective tenants. I therefore hold that DW1 is an agent for the Plaintiff herein. In the case of: STATE VRS; ADANTEHENE’S DISTRICT COURT B1 EX-PARTE KUADE [1963] 2 GLR 238-276 S. C. “No one can become the agent of another person except by the will of that person. It may be in writing or orally or simple by placing another in a situation such that the other is understood to represent and act for the person who has so placed him” Also, per Lord Cramworth in POLE VRS: LEASK (1863) 33 LJ CH. 55. In the principle of Agency Plaintiff is supposed to ratify the acts of Vincent Atonu. Plaintiff cannot therefore claim she does not know 2nd Defendant because of the poor and irresponsible role Vincent played thus impacting negatively on 2nd Defendant. The following is also part of the cross-examination between the 2nd Defendant and the Plaintiff: Q. Who was the person that you asked to work for someone to complete your house for you and fell on me. A. Vincent Afonu. Q. Did Vincent not tell you that I was the one who rented the house. A. No. Q. Did you not come to the house with 2 of your children, insulted me and tried to assault me till I locked myself in my room. A. Not true. Q. The cement, doors etc among others that I bought, totaling about GH¢8,950.00 on the building, have you refunded same to me. A. I do not know you but the 1st Defendant, and the amount too is not up to what you are saying. Q. Did Rent control not tell you to refund my money to me. A. No. Q. I suggest to you that you refund my money and I will move out of the house. A. I do not know you, it is the 1st Defendant that I know and after completing the house the 1st Defendant has not come back to me for any accounts for me to know whether I am indebted to him or otherwise, it has been (7) seven years now. Q. When we went to rent control did, I not tell you I rented the house and Vincent corroborated same. A. No. In Quagraine vrs. Adams [1981] GLR 589-612, the Court of Appeal held that as a general rule, a person who spends money on improving the property of another, does so at his own risk, for he cannot claim, as of right, any reimbursement nor can he claim any proprietary interest in the property on account of his expenditure. However, there are a number of exceptions to this general rule. Equity, for instance, will intervene to protect the other party in circumstances where undue advantage accrue to the owner of the property and where such owner is guilty of inequitable conduct. In this case, the 1st Defendant that the Plaintiff claims she knows and has contract with is the husband of 2nd Defendant, Plaintiff lives in Kodzoviakope in Togo which is a few kilometers away that notwithstanding she stayed aloof for (6) six good years before attacking the Defendants, thus she contributed to or help nurture the Defendants lukewarm attitude to the drafting of the tenancy agreement, if the Plaintiff meant business she should have summoned the Defendant when the son became available after the Defendants missed the son on their first visit for the set-off and failure to turn up be visited with legal action. The expenditure that Plaintiff could produce was incomplete: It is herein tabulated: YEAR 2015 MATERIALS UNIT PRICE GH¢ CEMENT 15 x 20 300.00 COLOUR SHEET 36 x 25 900.00 2 X 4 20 x 17 340.00 DOOR 3 x 70 210.00 LOCK (ANCHOR) 3 x 20 60.00 BINDING WIRE 1 x 20 20.00 PAIR OF HINGES 3 x 3 9.00 ROOFING NAIL 4p x 4 16.00 4 INCH NAIL 2p x 3 6.00 3 INCH NAIL 1p x 3 3.00 -------------------- TOTAL GH¢1,864.00 WORKMANSHIP 800.00 --------------------- GRAND TOTAL GH¢2,664.00 ============ Plaintiff herein contends this is the expenditure she knows 1st Defendant expended on her uncompleted building. But Plaintiff knows someone had been staying in the building, had defied her orders and had not taken her to the rent control or the Court. Plaintiff avers on the 1st of September, her son Innocent Gagliyo accompanied her to her house (the house) in dispute but did not meet Defendants and they realized that one of the three bedrooms doors was not fixed and the room was not cemented and plastered and she (the Plaintiff) sent a message through the 2nd Defendant that the 1st Defendant should not continue with any activity in the house unless they meet and agree on the tenancy agreement. From Plaintiff, Defendants defied this order and went ahead to do all that she has instructed them not to do and this was the last straw that broke the female camel’s back. This order is confirmed by the 2nd Defendant. In the case of Acquah vrs. Oman Ghana Trust Holding Ltd. [1985-86] 1 GLR 157 C. A. it was held that: “Nobody should be allowed to take advantage of his own wrong by spending or making improvement to a house without the consent of the landlord”. In the instant case Plaintiff is justified not to absorb this very expenditure being the cost of this (1) one door, plastering and cementing of the one bedroom in question and which stands at: GH¢1,860.00. COST-ESTIMATE OF ONE (1) BED ROOM SCREEDING AND PLASTERING WORK FOR MADAM VICKY GABAH AT GBEDEKOPE-AFLAO IN THE VOLTA REGION MARCH 2023 ITEM DESCRIPTION QTY UNIT RATE AMOUNT 1. CEMENT BAGS 82 GH¢ GH¢ 2. SAND ITEM 3. WATER FOR THE WORK ITEM 50 4. TRANSPORT FOR THE WORK ITEM 150 5. WORKMANSHIP FOR ITEM SCREEDING 6 GRAND TOTAL OF ESTIMATE ITEM 1,860.00 Having given the background of the issue as above, the Court then made an order through its Registry (Registrar) to have the Rent Control outfit at Denu to assess the rent chargeable in the Disputed house as from February, 2015, to date. The feed-back was remitted to the Court on 10/03/2023 and for the sake of clarity this is reproduced herein: INSPECTION REPORT ON RENT ASSESSMENT AT GBEDEKOPE/AFLAO That upon careful inspection of the said property of Madam Victoria Gaba of Aflao GBEDEKOPE base on a house which contained three (3) single rooms. I recommended fifteen Ghana Cedis GH¢15.00 which the two parties agreed on since 2015 before the renovation started. According to the tenant Madam Abigail Mortey, she has completed the works in 2018, which I, used the GH¢15.00 to calculate from 1st January, 2018 to 30th December 2019, that is three single rooms (45.00 x 24 months – GH¢1080.00). Due to the current price for the assessment, I increased it from GH¢15.00 to GH¢20.00 taken effect from 1st January, 2020 to 30th December, 2021: That is (GH¢60.00 X 24 month = GH¢1440.00) I increase again in 1st January, 2023 to March, 2023 that is one year three months (GH¢25.00 x 3 = GH¢75.00. So GH¢75.00 X 15 months which is GH¢1, 125.00). My lord, this is all my inspection calculations concerning the two parties namely Madam Victoria Gaba (Landlady) and Madam Abigail Mortey (Tenant). 45 x 24 = GH¢1,080.00 60 x 24 = 1,440.00 75 x 15 = 1,125.00 -------------------- 3, 645.00 ============ The figure, GH¢3,645 is supposed to be the rent payable for the period under consideration. 2nd Defendant avers she spent an amount of GH¢8,930.00. This has been contested by the Plaintiff, she could not however provide her side of the estimated expenditure. The expenditure carried out by 2nd Defendant whilst she had been directed by Plaintiff to come to the table for a set-off is to be deducted from the Defendant overall expenditure for she had no consent from the Plaintiff. BY COURT: (a) Judgment is hereby entered for the Plaintiff in part thus, the one room completed by the 2nd Defendant without the consent of the Plaintiff is to born by the Defendant and which stands at the cost of GH¢1,850.00 (b) The counterclaim of the Defendant partly succeeds and the expenditure expended on the completed house by 2nd Defendant is to be set – off against the rent payable for the period of 6 years. (c) Cost of GH¢3,500.00 is awarded in favour of the Plaintiff and against the Defendants. FINAL ORDER: The Defendant is to grant vacant possession two (2) months from today i.e., 30/05/23 …and she is to pay rent during the pendancy of this order and she is to leave the house in a tenantable condition. COMPUTATION Amount in total spent by 2nd Defendant - 12-10-2022 GH¢8,930.00 -Rent payable for the period under consideration less GH¢3,645.00 Add back cost incurred by Defendant without consent (Approval) less 1,850.00 Add Cost in Course less 3,000.00 Add Rent for April and May 75 x 2 150.00 To be refunded to 2nd Defendant on the date of vacation in Court. 285.00 8,645.00 ======= (SGD) H/H JOSEPH OFOSU BEHOME CIRCUIT COURT JUDGE 14