SCHECK VRS OSOBA (E5/6/21) [2023] GHAHC 532 (19 April 2023)

IN THE HIGH COURT OF JUSTICE, WESTERN REGION, HELD AT SEKONDI, ON THE 19TH DAY OF APRIL, 2023, BEFORE HER LADYSHIP AFIA N. ADU- AMANKWA (MRS.) J. 1. BARBARA SCHECK 2. JOANA OSOBA VRS. SUIT NO. E5/6/21 1ST PLAINTIFF 2ND PLAINTIFF FLUSH CUT ENGINEERING SERVICES LTD DEFENDANT JUDGMENT The subject matter of this suit is a two-storey building with an adjoining two- bedroom self-contained outhouse. The building is situate at Chapel Hill, Takoradi and is numbered CH 65, Chapel Hill, Takoradi. The property originally belonged to Laura Brigid Scheck, who died intestate on 26th June, 2017. On 9th October, 2018, the High Court, Accra, granted Letters of Administration to the plaintiffs to administer the estate of the deceased, which included the subject matter property. The defendant occupied the property as a tenant under a tenancy agreement made between the late Laura B. Scheck and the defendant for seven years, which commenced from 1st February, 2011 to 30th January 2018 at a monthly rent of GHc500.00. Before the expiration of the lease, the plaintiffs wrote to the defendant informing her of the increase of the monthly rent of GHc500.00 to GHc1200.00. The plaintiffs contend that following the expiration of the lease on 30th January, 2018, the defendant has neither renewed the tenancy agreement nor paid rent except for the payment of GHc6000.00 on 19th April, 2018. They also contend that the house is in a very deplorable state requiring immediate repairs and renovation, which cannot be carried out with the defendant in occupation. They have therefore prayed for the following reliefs per their amended writ filed on 28th September, 2022: “1. Recovery of possession by the plaintiffs of house numbered H/No. CH 65, Chapel Hill, Takoradi occupied by the defendant as tenant: i. to enable the plaintiffs carry out a scheme of renovation/redevelopment ii. for Non-payment of rent 2. Recovery of rent arrears from February 2018 to date. 3. Mesne profit. 4. An order of the court to compel the defendant to re-roof the subject matter property and renovate same as contracted by the defendant so to do”. In her statement of defence filed on 11th June, 2021, the defendant denied that in 2018, there was an increase in the monthly rent from GHc500.00 to GHc1200.00. According to her, GHc500.00 had been the agreed monthly rent to the extent that the plaintiffs had acknowledged receipt of the agreed annual rent of GHc6000.00, which she paid in April 2018. She contended that the disputed property was in a tenantable state such that any intended scheme of renovation or repair could easily and conveniently be carried out whilst she was in possession. The following issues were adopted for resolution: i. Whether or not the subject matter house is in a state of disrepair, and whether renovation/repair works can be carried out with the defendant in occupation. ii. Whether or not rent for the premises is GHc500.00 a month. iii. Whether or not the defendant is in arrears of rent. iv. Whether or not the plaintiffs are entitled to the reliefs endorsed on their writ. v. Any other issue(s) arising from the pleadings. During the proceedings, the defendant voluntarily vacated the premises, rendering the plaintiffs' claim for the recovery of the premises moot. The issues then for determination is the rent payable and whether the defendant is in arrears of rent. The Evidence Act, 1975, NRCD 323, prescribes the procedure to be applied in every proceeding. It provides a useful guide on the burden required to be discharged by a party to a dispute at a trial. Section 11(1) of Act 323 obliges a party to introduce sufficient evidence to avoid a ruling against him on an issue. In seeking to recover rent arrears and mesne profits, the plaintiffs have the initial burden to produce evidence that would satisfy the court that the defendant is in arrears of rent. The duty placed on the plaintiffs is that they must prove their case on a balance of probabilities. Kpegah JSC pithily captures the position of the law on proof in Zabrama vrs. Segbedzi [1991] 2 GLR 221, wherein he restated the well- known principle in Majolarbi vrs. Larbi as follows: “The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden." This burden is not discharged by merely entering the witness box and repeating the claims or averments in the pleadings. The burden is discharged by leading admissible and credible evidence from which the facts being asserted can be properly and safely inferred or concluded. The plaintiffs claim that the agreed rent payable by the defendant under the tenancy agreement is GHc1200.00, while the defendant contends that it is GHc500.00. In proof of their claim, the plaintiffs testified through their attorney, John Christian. He testified that the plaintiffs were the administratrixes to the estate of the late Laura Brigid Scheck and also beneficiaries of the said estate. The subject matter property was a two-story building situate at Chapel Hill, Takoradi and numbered CH 65, Chapel Hill, Takoradi, with an adjoining 2-bedroom self– contained outhouse. The property originally belonged to Laura Brigid Scheck, who died intestate on 26th June, 2017. On 9th October, 2018, the High Court, Accra, granted Letters of Administration to the plaintiffs to administer the estate of the deceased, which included the subject matter property. He tendered in evidence as exhibit "B", a copy of the Letters of Administration. He further testified that the defendant occupied the house as a tenant under a tenancy agreement made between the late Laura Brigid Scheck and the defendant for five years, which commenced from 1st February, 2007 to 30th January, 2012. Upon expiration, the agreement was renewed for another five years, which expired on 31st January, 2018 at a monthly rent of GHc500.00 as of then. Before the expiration of the tenancy agreement, the plaintiffs wrote to the defendant to inform her of the monthly rent increase from GHc500.00 to GHc1,200.00 in tune with prevailing housing market rental trends. The defendant had not renewed the tenancy upon its expiration on 31st January, 2018 but nevertheless had failed or refused to pay rent except for the payment of the sum of GHc6,000.00 by cheque dated 19th April, 2018, drawn on its Barclays Bank account, Takoradi High Street Branch. The plaintiff’s attorney further testified that Chapel Hill, Takoradi, where the property was situate, was a prime residential and business area whose monthly rent for similar properties in the locality of the subject matter house was at least US$1,500.00 (its equivalent in Ghana Cedis). The house in issue was in a very deplorable state requiring immediate repair and renovation. He tendered pictures of the state of the house as exhibit “C” series. He contended that the plaintiffs could not carry out the renovation and repairs with the defendant in occupation. According to the plaintiff’s attorney, the plaintiffs had served several notices, letters and emails, some of which he tendered as exhibit "D", "D1", and “D2”, on the defendant for her to vacate the premises for them (plaintiffs) to carry out the renovation repairs but the defendant had refused to do so. Because of these matters, the plaintiffs were compelled to complain against the defendant to the Metropolitan Rent Officer. The Metropolitan Rent Officer made a determination against the defendant and ordered her to vacate the premises, but she refused to do so. He tendered a copy of the proceedings and decision of the Metropolitan Rent Officer in evidence as exhibit “E”. As the plaintiffs' lawful attorney, he filed, on their behalf, a complaint before the Metropolitan Rent Officer, Takoradi. Subsequently, the defendant brought action before the District Court, Takoradi, to set aside the proceedings and orders of the Metropolitan Rent Officer, but it was dismissed on 8th January, 2021. The plaintiffs also issued a writ at the District Court, Takoradi, against the defendant to enforce the decision of the Metropolitan Rent Officer, but unfortunately, the lawyer for the plaintiffs was late in attending court due to unforeseen circumstances, and the court received submissions from the defendant only and on that basis dismissed the action. The managing director of the defendant Company, Joseph El-Azzi, testified on the defendant’s behalf. He testified that he got to know the plaintiffs as administratrixes of the estate of the late Laura Brigid Scheck after her demise. Prior to her demise, the late Laura Brigid Scheck was the defendant’s landlady of H/No. CH65, Chapel Hill. In April 2011, the defendant entered into a seven-year tenancy agreement with the option to renew with the late Laura Brigid Scheck from 1st February, 2011 to 30th January, 2017. He tendered a copy of the tenancy agreement in evidence as exhibit “1”. The agreed monthly rent was stated in clause 2 of the agreement. After paying the required rent, the defendant company moved into peaceful occupation of the premises. Throughout the tenancy, the defendant dutifully paid the agreed rent to the landlady (now deceased) without any protest. Later and within the same seven-year term, the rent was increased to GH 500.00 per month by Laura Scheck (deceased), which the defendant paid. Upon the expiration of the defendant’s seven-year tenancy on 30th January, 2017, the defendant waited patiently for another renegotiation with Laura Scheck (deceased) in accordance with clause 1(d) of the Tenancy Agreement. However, this renegotiation did not materialize before Laura Scheck passed on. The defendant’s representative further testified that being a law- abiding person and knowing very well that the tenancy agreement had expired, the defendant paid a years’ rent advance of GHc6,000,00 via a cheque dated 19th April 2018 to the administratrixes of the estate of the late Laura Brigid Scheck with the hope that the administratrixes would engage the defendant and settle on a revised rent, if there should be any at all. The plaintiffs accepted the cheque but unilaterally wrote to the defendant without any prior engagement, demanding a monthly rent of GHc1,200.00. The defendant’s representative contended that the defendant was strongly against the increment of 140%, which was not realistic. The unpreparedness of the plaintiffs to sit down with the defendant to come out with a mutually agreed monthly rent led the parties to appear before the Rent Officer, Takoradi, in February 2020 and later the District Magistrate, Takoradi and currently before the High Court. He contended that the premises being the subject of this action, was not in a bad state of disrepair. It was in a tenantable state but for certain portions, which could conveniently be renovated with officers of defendant still in occupation. The parties tendered in evidence as exhibits “F” and “1”, the tenancy agreement entered into between them. Per exhibits “F” and “1”, the late Mrs. Laura Scheck rented out the premises to the defendant for seven years commencing from 1st February, 2011 to 30th January, 2017 at a monthly rate of GHc130.00 for the first two years and GHc250.00 for the remaining years. These facts are not consistent with the plaintiff’s testimony that upon the expiration of the agreement on 30th January, 2012, the agreement was renewed for another five-year term which expired on 31st January 2018. In exhibits “F” and “1”, the landlady leased the premises for a period of seven years commencing from 1st February 2011 to 30th January, 2017 instead of 30th January, 2018. The plaintiffs’ attorney clarified this issue when he testified that: “Two years into the said agreement, the defendant realized that the years given to him was six instead of 7 years. He complained to the landlord Laura who came with the 1st plaintiff to the house. The landlord also told him that the rent of GHc250.00 was too small and it should be increased to GHc500.00. So the mutual agreement between the parties was to extend the expiration of the lease to January 2018 and to also increase the rent from GHc250.00 to GHc500.00. And that all the other remaining clauses remained the same”. Thus, even though under the agreement, the lease was to expire in January 2017, the parties had mutually agreed for the lease to terminate in January 2018. Again, the parties had amended the monthly rent payable from GHc250.00 to GHc500.00. The defendant testified that during the seven-year term, the rent was increased to GHc500.00 by the late Laura Scheck, which she paid. Even after the expiration of the agreement, she paid GHc6000.00 to the plaintiffs to cover her rent for one year at GHc500.00 per month. The parties are ad idem as to the fact that the agreed rent payable under the lease was GHc500.00 a month. At the time of the expiration of the tenancy agreement, the agreed rent payable by the defendant was GHc500.00. However, the plaintiffs claim that before the expiration of the lease, they communicated to the defendant of the rent increase from GHc500.00 to GHc1200.00. The defendant, on the other hand, claims that upon the expiration of the lease, she waited patiently for another renegotiation with the landlord in accordance with clause 1(d) of the agreement. However, the renegotiation did not materialize before the landlady passed on. As it is the plaintiffs’ case that the agreed monthly rent was GHc1200.00, the burden lies on them to prove same on a preponderance of probabilities. Except to state that the increase in rent was communicated to the defendant before the expiration of the lease, it is not precisely known when that communication was made to the defendant. The defendant admits that the plaintiffs wrote to her demanding a monthly rent of GHc1200.00. But this was after she had paid GHc6000.00 to them in April, 2018 as rent for 2018. Exhibit “D2” is an email dated 9th November, 2018 from the 1st plaintiff to the defendant giving her notice to vacate the premises and to pay the accumulated rent arrears. In that letter, the 1st plaintiff acknowledged the monthly rent of GHc500.00, which the defendant was paying and explained that she was paying such a low rental rate for the premises so that she could apply the difference in renovating the place, which the defendant had failed to do. In that letter, the 1st plaintiff never alluded to the increased rent of GHc1200.00. Again, in the 1st plaintiff’s email of 27th May, 2019 to the defendant tendered as exhibit “D1”, the 1st plaintiff alluded to exhibit “D2” and reminded the defendant to vacate the premises. Again, no mention was made of the increased rent. In exhibit “D”, dated 19th August, 2019, Messers Obeng-Sakyi and Sogbodjor, lawyers for the 1st plaintiff, wrote to the defendant to vacate the premises by 30th November, 2019. Again, no mention was made of the increased rent. Looking at the plaintiffs' exhibit “D” series, I agree with the defendant that the parties did not agree on a revised rent. This should explain the lack of mention in any of the plaintiffs’ letters to the defendant requesting her to vacate the premises and to pay for her rent arrears. The plaintiffs have failed to provide evidence that the monthly rent was revised upwards from GHc500.00 to GHc1200.00. I find as a fact that the rent payable by the defendant upon the expiration of the lease was GHc500.00. The plaintiffs pray for recovery of rent arrears from February 2018 to date. They also pray for mesne profits. Quite apart from rent arrears which the defendant owes them, the plaintiffs contend that they are entitled to rents or profits accruing to them, which the defendant has denied them because of her possession of the premises. The plaintiffs’ attorney testified that Chapel Hill, Takoradi, where the property was situated, was a prime residential and business area. The monthly rent for similar properties in the locality was $1500.00 (its equivalent in Ghana cedis). Counsel for plaintiffs contend that the plaintiffs are entitled to mesne profits calculated at $1500.00 a month from 1st February 2017 to 30th June, 2022. But the question is whether the plaintiffs can pray for rent arrears from February 2018 to June 2022 and claim for mesne profits to be calculated for the same period. There is a difference between mesne profits and arrears of rent. While mesne profits is the money calculated after a tenant's rent has expired but still in possession, arrears of rent is the debt owed by a tenant. An action for mesne profits does not lie unless either the landlord has recovered possession, the tenant’s interest in the land has ended, or his claim joined with possession. The case of Osawaru vrs. Ezeiruka [1978] LPELR-2791 (SC) provides a distinction between mesne profits and arrears of rent when it stated thus: “The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed ‘mesne profits” since the tenancy had been determined by that date and any further occupation by the appellant after that date was holding over which technically was a trespass but of a kind arising specially from a particular relationship of landlord and tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent, the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But a claim for mesne profits, the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass from the date when the defendant ceased to hold the premises as a tenant and became a trespasser”. In a claim for mesne profits, the landlord is simply claiming for the profits or rent intermediate from the date the tenant ceases to hold the premise as a tenant or ought to have given up possession and the date he actually gives up possession. Rent is payable by a tenant for the use of occupancy of a property. So rent arrears would be debt owed by a tenant for his unpaid rent. And in such claims, the tenant would be validly and legally in possession of the premises and yet owe rent to his landlord. Thus, it is possible for a landlord to claim both rent arrears and mesne profits regarding a tenant’s possession of his premises. For example, Mr. A (tenant) enters into a yearly tenancy with Mr. B (landlord) to pay GHc1200.00 from 1st January, 2021 to 31st December, 2021. Mr. A impresses upon Mr. B to give him time to pay the yearly rent of GHc1200.00. Mr. A is liable to pay the rent until his lease expires on 31st December, 2021. Mr. A also remains in possession of the house without renewing his tenancy following its expiration on 31st December, 2021. Here, Mr. B can bring an action for rent arrears from 1st January, 2021 to 31st December, 2021 and for mesne profits from 1st January, 2022 till the date Mr. A gives up possession of the premises. The quantum of the mesne profits is normally the rent reserved in the lease. See Acquah vrs. Oman Ghana Trust Holdings Ltd. [1984-86] 1 GLR 157. Even though the tenancy agreement between the parties per exhibits “F” and “1” expired on 30th January, 2017, the plaintiffs’ attorney has clarified the issue to say that it ended on 30th January, 2018. The defendant failed to renew the agreement following its expiration. As of that date, the defendant had fully paid his rent and was therefore not in rent arrears. Having held over the premises after her lease had expired and despite written notices to quit, the defendant became a statutory tenant and was only protected in her possession of the premises by the Rent Act, 1963 (Act 220). Act 220 defines a statutory tenant as: “statutory tenant” means a tenant who (a) remains in possession of premises after the determination by any means of the tenancy and cannot, because of this Act be deprived of the possession by the landlord. According to B. J. da Rocha and CHK Lodoh in their book “Ghana Land Law and Conveyancing”, page 58, “When a tenant retains possession under a statutory tenancy, he holds the premises under virtually the same terms as those which existed under the contractual lease or tenancy. He is entitled to retain possession practically ad infinitum regardless of the wishes of the lessor or landlord and he enjoys, to all intents and purposes, a status of irremovability. A statutory tenant can only be ejected from the premises by an order of the court, unless he gives up possession voluntarily or unless the premises cease to exist”. By virtue of the protection afforded her by the Rent Act, supra, the defendant’s possession of the premises following the determination of her lease was valid, and she could not be described as a trespasser. That being the case, the plaintiffs could only claim for rent arrears and not mesne profits from 1st February, 2018 to the date she gave up possession of the premises. In his evidence, the plaintiffs’ representative acknowledged that the defendant moved out of the premises on 28th June, 2022. It was the defendant’s case that she moved out in December 2021 but handed over the keys to the plaintiffs’ attorney in March or April 2022. According to the defendant’s representative, he could not find anybody to give the key to. This explanation is lame given that he knew the plaintiffs’ attorney, and they had been to the District Court, Takoradi, regarding the premises. How could he hand over the keys to the plaintiffs' attorney if he could not find anybody? It is not in doubt that handing over keys to premises is symbolic and indicates that the premises have been restored to their owner. Thus, even though, the defendant had physically moved out of the premises, as long as she had not taken steps to hand over the keys to the property, she was still deemed to be in possession. At the expiration of the lease, the monthly rent payable was GHc500.00. Thus, the defendant is in rent arrears of GHc26,500.00 calculated at GHc500.00 for fifty-three (53) months (1st February, 2018 to June 2022). The plaintiffs have acknowledged receipt of GHc6000.00, which the defendant paid as rent in April 2018. When it is deducted from GHc26,500.00, that gives us GHc20,500.00 as rent owed by the defendant to the plaintiffs. The plaintiffs also pray for an order of the court compelling the defendant to re- roof the subject matter property and to renovate it as contracted by the defendant under the contract. As part of the terms of the contract entered by the parties, the defendant, under section 1(f) of the agreement, “agreed to re- roof the Demised Premises and generally renovate same”. This express covenant was entered into by mutual agreement between the parties under the lease. As has already been stated, upon the determination of her lease, the defendant became a statutory tenant and held the premises on the same terms as those which existed under the contractual lease or tenancy. The plaintiffs tendered pictures of the premises, which according to them, showed the deplorable state of the house. I could not make out the pictures which were not clear. The defendant takes a different view and contends that the property is not in a bad state of disrepair except for certain portions which could conveniently be renovated by her officers whilst in occupation. This admission shows that even if the premises are not deplorable, some portions may require renovations. But the term of the contract is not contingent on the occurrence of an event. The defendant simply agreed to reroof and renovate the premises. It is not subject to the deplorable state of the roof or the premises. Whether in a state of disrepair or not, as long as the defendant had entered into an agreement to reroof and renovate, then the court has to give effect to the parties' intention. As stated in the case of Poku vrs. Ghana Commercial Bank [1989-90] 2 GLR 37: “Parties to a contract would not be permitted to avoid the contract unless there were valid or lawful reasons to do so. It was not the duty of the courts to make contracts for the parties. And where the terms of the contract had been reduced into writing, the court would interpret them to give effect to the intentions of the parties”. As the defendant willingly agreed to reroof and renovate the premises, then she is obligated to do so as part of the terms of the lease. The extent of the renovation is covered by section 3(b) of the agreement, which states that “to keep the internal and external areas of the demised premises and all fixtures and fittings thereof (including the sanitary and water apparatus and electric fittings) in good and tenantable repair and condition (fair wear and tear and loss of damage caused by accidental and fire earthquake and tempest only excepted)”. In conclusion, judgment is entered for the plaintiffs on the following terms: i. ii. The defendant is to pay the plaintiffs GHc20,500.00 as rent arrears from 1st February, 2018 to 22nd June, 2022. The defendant is to re-roof and renovate the property as agreed under the tenancy agreement. COUNSELS John Mercer appears for the Plaintiffs. Samuel Agbottah appears for the Defendants. (SGD.) H/L AFIA N. ADU-AMANKWA (MRS.) JUSTICE OF THE HIGH COURT. 14