Abubakar Vrs Abubakar [2023] GHADC 292 (4 May 2023)

IN THE DISTRICT MAGISTRATE COURT HELD AT KOFORIDUA THIS THURSDAY THE 4TH DAY OF MAY, 2023 BEFORE HER WORSHIP NANA AMA DABBAH FYNN NKANSAH SUIT NO: A9/34/2022 ………. PLAINTIFF IBRAHIM ABUBAKAR HSE NO. KND17 ADA- KUNTANKUNTAN KOFORIDUA VRS SADIQ MOHAMMED ABUBAKAR ……… MAGAZINE-ADA ……………………………………………………………………………………………….. DEFENDANT JUDGMENT ………………………………………………………………………………………………. The Plaintiff herein issued a Writ of Summons together with an Affidavit in support against the Defendant on 27/01/22 claiming the following reliefs; 1. An order for the eviction of the Defendant from the Plaintiff’s land lying and situate at Magazine Ada a suburb of Koforidua in the Eastern Region of Ghana. 2. Order for the defendant to pay GH₵250.00 to the plaintiff as rent arrears from 2016 till date. 3. Interest on the said amount from MAY, 2020 till date of final payment. 4. General damages for breach of contract. 5. Cost incidental to the suit 6. Any further order (s) this Honourable Court deems fit. THE PLAINTIFF’S CASE In brief, it is the Plaintiff’s case that he owns a piece and parcel of land lying and situated at Ada Magazine which he rented to the Defendant from February 2013 to February 2015 at an amount of GHS 240.00. That the said agreement was renewed for further 2 years from January 2015 to expire in January 2017 at GHS 300 yearly. The crux of Plaintiff’s case is that since 2017, the Defendant has refused to pay rent, hence this action. THE DEFENDANT’S CASE The summary of the Defendant’s case is that after the second agreement elapsed, he sent an amount of GHS 900.00 to one of his workers to pay to the Plaintiff for 3 years rent advance from 2017-2020 which Plaintiff did not give any receipt for the said payment. The Defendant admits that he still works on the said land but has refused to pay rent because the Government had acquired some portion of land close to where he works for construction of a dam and as such the land he works on does not belong to the Plaintiff therefore he needs not pay him any rent. It is trite and stated in a plethora of legal authorities that the burden of proof in civil cases is on the preponderance of probabilities and the party who makes an assertion must lead cogent evidence in proof of same. Upon a critical evaluation of the evidence led by both parties, the determination of the case herein shall turn on whether or not the Plaintiff is entitled to his reliefs. The first relief sought by the Plaintiff is for the eviction of the defendant from the Plaintiff’s land described above. Section 17(1)(a) of the Rent Act, 1963 (Act 220) provides that: 17. Recovery of possession and ejectment (1) Subject to subsection (2) of section 25 and to section 28, an order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall not be made or given by the Rent Magistrate, or any other judge of a court of competent jurisdiction in accordance with any other enactment except (a) where a rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due; In effect, where one month has elapsed after the rent of a tenant became due and unpaid, the court could make an order for the recovery of possession of the premises and ejectment of the tenant accordingly. With regard to the evidence on record, even though the issue of payment of GHS 900.00 by the Defendant through a worker of his has not been resolved yet, the Defendant does not deny that he still occupies the said land the Plaintiff rented to him over years. The Defendant in his Witness Statement stated thus; 14. After sometime, Government came and sack (s.i.c) many people from the land (including the Plaintiff who claims to be the owner of the land) and cut sod for construction of dam. This made me believe the land is not for Plaintiff as he claimed. 15. The Plaintiff had not shown us a document proving that the land is for him and moreover Government had laid claim on the said land and had cut sod for construction since the year 16. I am not owing Plaintiff any rent because the land does not belong to him but rather government’s land. From the evidence adduced by Defendant at trial, the Defendant’s justification for failing to pay rent is that the land is government land and also that he had asked the Plaintiff severally for his documents of ownership of the land and he had failed to do so. On the claim of non-ownership of the premises for Plaintiff by Defendant, let me hasten to cite the dictum of Georgina Wood JSC (as she then was) in the case of ANTIE & ADJUWAH v OGBO (2005-2006) SCGLR 49 where she states thus: “The common law rule as to forfeiture by a licensee or tenant who challenges the title of his licensor or landlord has received statutory recognition under Sections 27 and 28 of the Evidence Decree, 1975 (NRCD 323). The law is that a licensee or tenant who denies the title of his licensor or landlord, either by claiming that title to the subject matter is vested in himself or herself or someone else forfeits his or her interest. In view of the Plaintiff’s direct challenge to the defendant’s lawful claim of ownership, he has forfeited his right to remain in the premises.” On the combined effect of the authorities cited above and the fact that Defendant admits non payment of rent of a period which exceeds a period of a month, I accordingly grant the 1st relief of the Plaintiff and order that the Defendant vacates the premises of the Plaintiff forthwith. The second relief sought by the Plaintiff is for recovery of rent arrears of GHS 250.00 as rent arrears from 2016 till date. Even though the Plaintiff seeks arrears from 2016 per his reliefs, the totality of the evidence led highlights that his claim is from 2017. In paragraph 13 of the Witness Statement of Plaintiff, he states thus; 13. He has not paid me rent since January 2017. Again the amount of rent arrears sought is GHS 250.00 and I must say it’s taken me a ton of time to unravel the basis of this amount. Per the Exhibit B, the rent paid was GHS 25.00 per month thus, GHS 300.00 yearly. Going by this GHS 250.00 sought, can this court conclude that the Plaintiff is seeking rent arrears for only 10 months? That cannot be so in my opinion. Anyway, let us go into the evidence led concerning the period of rent arrears in issue which is germane to the determination of this relief. It is the Plaintiff’s case that the rent arrears has accumulated from 2017. However, the Defendant claims that he made payment of GH₵900.00 being rent from 2017-2020. The Defendant during his cross-examination stated thus; Q: How was the payment made? A: I sent the money through my worker to be paid to Plaintiff and afterwards Plaintiff called to inform me that he has sent Master Kaakyire to go and collect the money for him. Q: You have not attached any document to show that after the second agreement you have paid any money to Plaintiff. A: Yes, because when I paid the money he did not give me any receipt till date. Q: Where is that worker of yours through whom you sent the money? A: He always follows me to Court, I cannot tell if he is outside. From the evidence led, aside the bare assertion by the Defendant of paying GHS 900 through his worker, he did not put before the court anything to substantiate same. He intimated to the court that the said worker whom he paid the money through used to always come to court with him and did not know if he was standing outside the Court on the day he was testifying. Is that not preposterous, that the Defendant whose assertion of payment of GH₵ 900.00 has been challenged all through this trial, did not see the need to call the very person through whom he made the payment? It is the settled position of the law and the Supreme Court in the seminal case of MAJOLAGBE v LARBI [1959] GLR 190 opined that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment cannot be sufficiently proved by just mounting the witness box and reciting the averment on oath without adducing some corroborative evidence in support of same. Again, the Defendant stated that he was in Accra and sent the said GH₵ 900.00 through his phone to his said worker, could the Defendant not have tendered his statement of account or even call this said worker to testify on his behalf? In the absence of any such proof of the payment, the Defendant failed to satisfy the Court of the payment of the said money and as such the Court shall not attach any weight to that piece of evidence. In KOFI MANU v AKOSUA AGYEIWAA & 3 ORS Civil Appeal No. J4/11/2012 dated 26th July, 2013 the Supreme Court speaking through AKAMBA JSC held as follows: “This Court will not ordinarily grant any relief which a party has not formally asked for. The only instance when a relief has been, so to speak, granted without being specifically asked for is in an instance when that relief emerges or is apparent from the evidence on record”. See also HANNA ASSI v GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS (NO.2) [2007-2008] 1 SCGLR 15 The Plaintiff implored the court to order the Defendant to pay him rent arrears of GH₵250.00 but the evidence adduced at trial indicates that the amount is actually more than that. Therefore, to tip the scale of justice in favour of the person so deserving, this court is fortified in the aforementioned cases of KOFI MANU v AKOSUA AGYEIWAA & 3 ORS and HANNA ASSI v GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS (NO.2). This Court has found, based on the evidence on record that the rent arrears are from January 2017 till date. In calculating same, the Court shall take inspiration from the last rate of rent at GH₵25.00 per month; 300gh yearly. Thus 6 years, 4 months arrears amounting to GH₵1,900.00. The Court is not oblivious of the economic challenges evident in our country which could have enhanced the rent payable through the years but in the absence of any evidence by the Plaintiff in proof of any increase or otherwise, the Court in doing justice cannot embark on any guesswork to arrive at any new figures. Consequently, the Court grants the the relief b of the Plaintiff in part to the extent that he is entitled to recover rent from 2017 till date and not from 2016 till date as claimed. The 3rd relief sought by the Plaintiff is for interest on the said amount from May 2020 till date of final payment. Here again, there is a conundrum regarding the claim of interest on the GH₵250.00 from May 2020. Considering that the error of the amount of GH₵ 250.00 has been discussed under relief b, the court shall proceed to unravel the rationale behind the claim for interest from May 2020 when the Plaintiff admits he had not been paid rent by Defendant since January 2017. On a lighter note, bearing in mind that the Plaintiff swore on the Quran, I was almost tempted to conclude that he drew inspiration from the holy book of Quran which states that “Riba is Haram” meaning “Interest is forbidden”. However, since there was somewhat claim for interest, then I am inclined to think that the Plaintiff meant to make a claim for interest but at a reduced extent. On that score, the court grants relief c and orders that interest calculable at the commercial bank rate on the GH₵1,900.00 from May 2020 till date of final payment. On the issue of general damages for breach of contract being sought by Plaintiff as relief d, the question which continuously lingers on my mind is was there an existing contract between the parties which a breach has occasioned? The first tenancy agreement dated 7th of February, 2013 had imbedded in it paragraph 5 which states: 5. The tenancy shall be reviewed after the 6th day of February, 2015. Indeed, there was another agreement dated 10th January, 2015 which for the sake of emphasis I shall endeavour to reproduce verbatim; RECEIPT ON HIRING OF LAND This is to certify that I, IBRAHIM ABUBAKAR of House Number KNT/B.25 – Zongo - Koforidua, have given my piece of land at Ada-Koforidua to SADICK of Koforidua. That Rent per month is GH₵25.00 (Twenty-Five Ghana Cedis). Rent Advance of GH₵600.00 (Six Hundred Ghana Cedis) is to be paid by the TENANT which covers a period of Two Years. The starting date is from 10TH January, 2015 to expire on 10th January, 2017. Thus, the second receipt also had a limited time frame of 2 years meaning that after the 10th of January, 2017, same had expired. In simple terms, the contract was over and from that date, a further stay on Plaintiff’s land by Defendant made him a trespasser to the Plaintiff’s premises. It is trite that trespass to land occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places objects on same. This tort of trespass is actionable per se without the need to prove damage. Let me hasten to add that even if a licensee exceeds their licence, or remains on the land after it has expired or been revoked, the licensee becomes a trespasser. Thus, it is opinion of the Court that there has not been any breach of contract since subsequent to January 2017, the parties had discharged their duties under both contracts in full. The Plaintiff did not lead evidence in proof of any breach of the contract prior to 2017, thus, post 2017, there was no contract for a breach to even arise. Under the circumstances, the court awards damages of GH₵1,500.00 in favour of Plaintiff against Defendant for trespass. I must say that there are certain things that baffle me and it has to do with the conduct of both parties. First, it appears that Counsel for Plaintiff did, for the want of better word, shoddy work for his client so that they left the court to calculate the proper amount being claimed as rent arrears for them. Such a rookie mistake ought to have been made by a litigant who is not legally represented but not one represented by Counsel. It is appalling to say the least. Now to the Defendant, where do you get off by claiming that the property does not belong to the plaintiff. The fact that government has used a portion of land close by for a dam means that the land does not belong to the Plaintiff. If we are to proceed on this ludicrous assertion, then landlords in this country are doomed because any tenant can get up on any day and begin to question the landlord’s title to their property. This question should have been asked at the beginning before any agreement had been entered into, not when your tenancy has elapsed and it is time to yield vacant possession or renew the agreement that you decide to be wishy-washy. It is my belief that this is a matter that could have been easily settled had it not been for the obstinacy of the Defendant. Be that as it may, cost of GH₵2,000.00 is awarded in favour of Plaintiff against the Defendant. SGD: NANA AMA DABBAH FYNN NKANSAH MAGISTRATE 7