EBO ARTHUR VRS SAMUEL QUAYE & 3 ORS. (C4/11/2021) [2023] GHACC 1069 (6 June 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 6TH DAY OF JUNE 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI- YEBOAH, CIRCUIT COURT JUDGE. EBO ARTHUR --- PLAINTIFF SUIT NO. C4/11/2021 VRS 1. SAMUEL QUAYE --- DEFENDANTS 2. EMMANUEL QUAYE 3. EDMUND QUAYE 4. CHARLES OBLIE ============================================== ============================================== J U D G E M E N T The Plaintiff per his amended writ of summons and amended Statement of Claim issued from the registry of this court, on 20/12/21 instituted this action against the defendants seeking the reliefs endorsed on the writ. The plaintiff’s claim against the Defendants jointly and severally as follows: a. An order that the Tenancy Agreement between the parties be extended to cover the amount of GHC 25,000.00 (less the rent for 12 months i.e., August 2020 – August 2021) due and owing to the Plaintiff. Or In the alternative a refund of the amount of GHC 25,000 with interest (less the rent for 12 months i.e., August 2020 – August 2021) due and owing to the Plaintiff. . b. General and Specific Damages. c. Perpetual Injunction to restrain the Defendants, their workers, assigns, privies heirs in succession and title from harassing, interfering in any way with Plaintiff’s quiet enjoyment of his shop, damaging his goods. d. e. Cost including legal fees. Any order(s) that this honourable Court deems fit. The first Defendant on the 15/02/2021 had a Statement of Defence filed on his behalf by his Counsel earlier after a notice of entry of appearance was filed on his behalf. This was before the Plaintiff amended his Writ and Statement of Claim. First defendant did not amend his Statement of Defence. 2nd, 3rd and 4th Defendants filed their appearance together on the 8/01/2021 and after the Plaintiff amended his writ of summons and Statement of Claim, filed their amended Statement of Defence and Counter Claimed against the Plaintiff as follows: i. A declaration that the tenancy between the parties ended on 31st May 2020 which is 41 months from 1st March 2017. ii. Payment of arrears of unpaid rent from the period of the expiration of the said tenancy on 31st May 2020. iii. Interest on relief (i) supra at the prevailing commercial rate from on 31st May 2020 up to the date of final payment. iv. Immediate eviction of the Plaintiff from the said shop for the use of 2nd , 3rd and 4th Defendants as they need same for their own use immediately. v. General Costs especially legal cost. The Case of the Plaintiff The Plaintiff is a shop keeper and a tenant in Defendants’ shop and the 1st , 2nd and 3rd Defendants are siblings and Plaintiff’s Landlord whilst the 4th Defendant is the son of one of the Defendants. The case of the Plaintiff is that he has been a tenant of the Defendants since 2012 and he has been diligent and regular in paying rent. Plaintiff says the Defendants on 29th December 2020 in the evening, the Defendants came to Plaintiff’s shop and battered him. The Plaintiff says they also destroyed his items in the shop including standing fans, glass covering gas burner, glass show case and provided various values for the items. It is the case of the Plaintiff that he was subjected to public ridicule, scorn and opprobrium amidst insult, threat and eventually the shop was locked up. The Plaintiff says he was sick and told the Defendants of his condition and now it has caused him psychological trauma, mental stress and his physicality (sic) for the worse. Plaintiff then claimed per his amended writ of summons. The Plaintiff says that the defendants will continue to harass and torment him unless they are compelled to desist from their actions. THE DEFENDANTS’ CASE The Defendants in their defence denied the claims of the plaintiff. The 1st Defendant in a terse Statement of Defence filed on his behalf stated further that he has not conducted himself in any way to be guilty of Plaintiff’s averment in para 8-10 and pleaded further that in response to Plaintiff’s paragraph 12 he will be guided by the Court’s direction. The 2nd, 3rd and 4th Defendants in their amended Statement of Defence admitted paragraph 2 of the Plaintiff’s amended statement of claim and said that the said tenancy expired since 31st May 2020 which is 41 months from 1st March 2017 and said further that the contract does not include an extension. 2nd, 3rd and 4th Defendants stated further that what they want to put the said shop to is within their rights and does not concern the plaintiff in any way whatsoever and vehemently denied that they want to give the shop to another tenant. 2nd, 3rd and 4th Defendants further avers that various averments by the Plaintiff are a ruse for the plaintiff to continue to occupy the shops without payment of rent and the Plaintiff will be put to strict proof of his averments. They concluded that the Plaintiff is not deserving of any of the reliefs sort thereof. On the 4/03/2021 before the amendment by the Plaintiff, 2nd, 3rd and 4th Defendants filed an application, that is motion on notice for interlocutory Judgment in default of defence to their counter claim. On the return date, which was the 19/03/2021 the application was moved before the court and the court ruled for the applicants to prove their case before the court. ISSUES FOR TRIAL On 04th May 2021 application for direction was taken, and these were the issues: a. Whether or not the Plaintiff’s Tenancy Agreement expired on 31/05/2020. b. Whether or not Plaintiff on 29/12/2020 was battered by the defendants. c. Whether or not the Plaintiff is entitled to his reliefs. d. Whether or not the Defendants are entitled to their Counterclaim. e. Any other issues arising from the pleadings. PENDENCY OF THE SUIT In the cause of the suit pending before this court, Plaintiff changed his legal representation, and the necessary processes were filed. Counsel for plaintiff then brought an application to amend the Statement of Claim of the Plaintiff. After a number of adjournments before the Change of Solicitor and after the application was filed, usually at the instance of the Plaintiff, the application was eventually granted, and the Plaintiff was to file within 7 days. It must be noted that the application for direction was filed by the 2nd, 3rd and 4th Defendants. And even though the plaintiff was served with hearing notice of the date for the application to be taken and service was proved, the plaintiff was absent when the application was taken as demonstrated supra. The court afterwards ordered the court’s notes and hearing notice to be issued and served on the Plaintiff and the 1st Defendant. From the records, at one point, time was expanded and enlarged for the Plaintiff and the 1st Defendant on different occasions to file their processes before the court. This unfortunate situation as a result of the conduct of the Plaintiff has unduly delayed this suit all this while. Eventually, the Plaintiff filed his witness statement and that of his witnesses. The 1st Defendant, however, did not file his witness statement and generally did not participate in the conduct of the case after he filed his Statement of Defence. CASE MANAGEMENT CONFERENCE Case Management Conference (CMC) was conducted on the 20/01/2023 in the absence of the Plaintiff and the 1st Defendant. At the CMC, the 2nd, 3rd and 4th Defendants indicated through Counsel that they will have the 4th Defendant speak for them and they will call two other witnesses and again they will rely on a tenancy agreement which was subsequently labelled tentatively as Exh. 1. The suit was then adjourned for a hearing. EVIDENCE OF THE PLAINTIFF On the adjourned date for hearing of the case, the plaintiff was absent as well as the 1st Defendant. The order of the court on the day was “The case of the Plaintiff is closed, and the 2nd, 3rd and 4th Defendants will be called upon to open their defence as the 1st Defendant is also absent”. The hearing proceeded and the 2nd, 3rd and 4th Defendants opened their case before the court. The mouth of the witness was then sealed for cross examination by the plaintiff if interested. On the next adjourned date, the plaintiff appeared with a new Counsel who indicated that they intended to resolve the matter amicably. The suit was then adjourned at the instant of the plaintiff. On the next appearance, Counsel for plaintiff indicated that they still intend to settle the matter out of court and are still negotiating. Counsel for the 2nd, 3rd and 4th Defendants submitted that the case which has started can continue and if they are able to settle the necessary terms can be filed. Based on this, the witness, was cross examined by the Counsel for the plaintiff and finished. The suit was then adjourned for the next witness to be called. At the next appearance, Plaintiff was absent, and the Counsel for Plaintiff too was absent. Counsel for the 2nd, 3rd and 4th Defendants submitted that they were to call their next witness, but the remaining witnesses were afraid to attend court and therefore they elected to close their case. The court closed their case and that was the end of the hearing of the case and the suit was adjourned for Judgment. Therefore, there was no evidence of Plaintiff except the cross examination which was conducted by Counsel for the Plaintiff on his behalf. EVIDENCE OF THE DEFENDANTS The 2nd, 3rd and 4th Defendants opened their defence through the 4th Defendant who gave evidence for himself and 2nd and 3rd Defendants. The witness testified that the defendants are all of the same family, and the Plaintiff is a tenant in their property. The witness said on 1st March 2017 the plaintiff entered into a tenancy agreement and same was tendered as exhibit 1. The witness testified that per the agreement, the duration of the tenancy was 41 months from 1st March 2017 and ended on 31st May 2020. The witness gave further evidence that the agreement had no extension clause as the parties did not want any further relationship after its expiry. The witness testified that after the expiry the Plaintiff refused to deliver vacant possession of the property even though they need the property for their use. He also denied that the plaintiff was assaulted and gave evidence that he was rather assaulted by the Plaintiff using a standing fan. The witness then emphasis the fact that the Plaintiff has not paid rent to the Defendants family since the Tenancy agreement expired on 31st May 2020 and the plaintiff is in arrears of rent. The witness was cross examined after his testimony before the court by counsel for the Plaintiff even though the Plaintiff did not appear before the court to testify despite all the numerous adjournments that the suit suffered in the court. The witness was discharged before the court after the cross examination by Counsel for the Plaintiff. LEGAL ANALYSIS The basic principle in civil suits, a party whose positive assertions are denied by his opponent bears the onus of proof of those assertions. Section 10 and 11 (1) of the Evidence Act, 1975 N. R. C. D. 323 provides: 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. It is trite law that pleadings are not evidence and after a party filing pleading must lead evidence to establish the existence of the averments before the courts. See: Majolagbe v Larbi [1959] GLR 190, Zabrama v Segbedzi [1991] 2 GLR 221 and Adjetey Agbosu & others v Kotey & others (in Re Ashalley Botwe Lands) [2003-2004] SCGLR 430 In this case the Plaintiff who brought the action against the defendants after several adjournments, before and after, he amended his Writ of Summons and Statement of Claim and filing his witness statement and that of his witnesses, still did not appear before the court, to prove his case by leading evidence to establish the existence of his averments before the court. The Plaintiff also did not call the witnesses whose witness statements were filed. The right to be heard is an established common law principle and an inalienable right which should not be taken away unless the rules of Court permit same. See: 1. Republic v High Court, Exparte Salloum & Others (2012) 37 MLRG 34 SC. 2. Republic v Court of Appeal Ex-Parte Eastern Alloy Co. Ltd (20007-2008) SCGLR 371. The Supreme Court in the case of Ankumah v City Investment Co. Limited (2007-08) 2 SCGLR 1064 per Adinyira JSC as she then was at page 1076 stated as follows, “In any event the defendant after several attempts was finally served but failed to appear in Court. The trial Court therefore rightly adjourned the case for judgment. A court is entitled to give a judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not want to be heard”. In this case that the Plaintiff did not appear before the court and the defendants counter claimed, they are as good as the Plaintiff, and they must assert their own case. See: Brimpong v Bawuah (1994-95) GBR Pg 837 SC. It was therefore the defendants who are to prove their counterclaim against the Plaintiff. In this case the Counsel for the Plaintiff was in Court to Cross examine the 2nd, 3rd and 4th defendants witness. In all Civil Cases, the Plaintiff is to win his case on the preponderance of probabilities, under sections 11 (4) and 12 (1) of Act 232. See also Yorkwah v Duah (1992-93) GBR 278 CA, Takoradi Floor Mills v Samira Faris (2005-2006) SCGLR 985. Where the Defendants counterclaim, he is also to prove his counterclaim on the preponderance of probabilities since he is the Plaintiff in respect of the counterclaim. See: Fosuhene v Atta Wusu (2011) 1 SCGLR 273 The issues for determination will be considered together by the court together as they are very much related. And the issues are: a. Whether or not the Plaintiff’s Tenancy Agreement expired on 31/05/2020. b. Whether or not Plaintiff on 29/12/2020 was battered by the defendants. c. Whether or not the Plaintiff is entitled to his reliefs. d. Whether or not the Defendants are entitled to their Counterclaim. The witness of the 2nd, 3rd and 4th Defendants testify of the tenancy agreement that was signed by the parties with respect to the property that was rented to the Plaintiff. In paragraph 4 of the witness statement of the 4th Defendant, the witness testified to the tenancy agreement which the Plaintiff entered into on 1st March 2017. The witness in paragraph 5 stated: 5. “The duration of the Tenancy Agreement per Exhibit 1 is 41 months from 1st March 2017 and ended on 31st May 2020. The tenancy Agreement does not contain an extension clause as the parties did not want any further relationship after its expiry.” The witness also tendered exhibit 1 before the court to buttress his point. And per exhibit 1, that is the duration of the tenancy agreement as was testified by the witness. During cross examination this evidence of the witness was not challenged in terms of the duration of the tenancy agreement even though questions during cross examination affirmed the tenancy relationship of the parties. These questions were asked the witness by Counsel for the Plaintiff: Q6. Are you aware that the Plaintiff is your tenant. A. Yes Q8. How long have you been a landlord together with the other defendants? A. Six Years. The answers by the witness were not challenged by Counsel at all. This indicates the recognition by the Plaintiff of his relationship with the Defendants per the agreement that was signed by the parties and the duration of the relationship so far as the agreement was signed by the parties on 1st March 2017 and this is six years at the date, 28th March 2023, when the witness was testifying in the witness box before the court. Therefore, from the evidence the Plaintiff’s Tenancy Agreement expired on 31/05/2020 and issue (a) will be resolved in favour of the 2nd , 3rd and 4th Defendants. The testimony of the witness was that after the expiry of the agreement, the Plaintiff has refused to deliver vacant possession of the property to the Defendants family and the Defendants family is in urgent need of the property for use by some members of the family. The witness again during cross examination and in an answer to Q3., said to the effect, we asked him his time was due for vacation of the shop as the 2nd defendant has sent him several messages and he was not responding to the information passed to him and on that day when they got there, they asked him to hand over the keys. The witness in his evidence stated at paragraph 7 of his witness statement that, “The Plaintiff on an occasion assaulted the 4th defendant using a standing fan. The defendants never assaulted the Plaintiff”. This piece of evidence which was crucial to the case of the Plaintiff was not challenge during cross examination. During the cross examination the evidence of the witness was not confronted. For instance, this is what transpired: Q3. Did you physically touch the Plaintiff. A. No Q4. After the said act by the Plaintiff did you seek medical attention A. I wasn’t hurt so there was no need for medical attention. Q5. It appears to me that there was a form of physical contact. A. That is not true. The Plaintiff who alleged these against the Defendants as was pleaded did not mount the witness box to prove his case before the Court. The Court comes to the conclusion that Plaintiff on the 29/12/2020 was not battered by the Defendants. Issue (b) is therefore resolved. Again, from the evidence the Plaintiff is not entitled to his reliefs per issue (c) before the court as same was not proved. The 2nd, 3rd and 4th Defendants however counterclaimed against the Plaintiff and from the evidence and record before the court, the 2nd, 3rd and 4th Defendants were able to prove their case before the court with respect to issue (d) and they are entitled to all their reliefs per the amended Statement of Defence and Counterclaim. CONCLUSION The 2nd, 3rd and 4th Defendants counterclaim therefore succeeds except relief (iii) which is in error. In the interest of justice and public policy that litigation must come to an end and as provided in the rules, order 1 r 1 (2) and order 16 r 7 (1) of High Court (Civil Procedure) Rules, 2004 (C. I. 47), the Counterclaim relief (iii) will be amended by the court to read: iii. Interest on relief (ii) supra at the prevailing commercial rate from 31st May 2020 up to the date of final payment. Per this amendment the reliefs of the counterclaim of 2nd, 3rd and 4th Defendant succeeds in full. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 13