LASSEY AND ANOTHER VRS DDP OUTDOOR LTD (A2/46/22) [2023] GHADC 758 (9 November 2023)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2’ KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 9TH NOVEMBER, 2023. SUIT NO. A2/46/22 1. PROF. ANYETEI TONYELI LASSEY 31 FIORE DRIVE ADJIRIGANOR, ACCRA. 2. DR. DEMI LASSEY 31 FIORE DRIVE ADJIRIGANOR, ACCRA. :: PLAINTIFFS VS. DDP OUTDOOR LTD 1 ADAMAN CLOSE, TESANO OFF NSAWAM ROAD ACCRA :: DEFENDANT JUDGMENT INTRODUCTION In their Writ of Summons issued out on 12th October 2021, the Plaintiffs herein prayed this Court to grant them the following reliefs against the Defendant: PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. a. An order directed at Defendant to pay the sum of the cedi equivalent of USD 1,250.00 (One Thousand, Two Hundred and Fifty United States Dollars) being outstanding rent. b. An order directed at Defendant to pay the sum of GH¢ 2,200.00 (Two Thousand, Two Hundred Ghana Cedis) being the cost expended on painting the premises. c. An order directed at Defendant to pay the sum of GH¢ 120.00 (One Hundred and Twenty Ghana Cedis) being cost expended on collecting the waste (rubbish) from the premises. d. Costs inclusive of legal fees. According to the Plaintiffs’ claim, the Plaintiffs are a married couple and own a block of apartments at Shormeh Street, North Dzorwulu, Accra whereas the Defendant was their tenant until 14th August 2021. The Plaintiffs averred that they let out Flat 3 of their apartment to Defendant for a year with an option to renew for a further two-year term per a tenancy agreement dated 1st July 2017 and the premises was used by Defendant’s officer known as Norbert Rufu. It was further averred that the rent was to be paid a year in advance and all fixtures and fittings were to be kept in good condition by the tenant. Pursuant to this, the Defendant upon execution of the agreement paid the rent for the initial term and moved into the premises but upon renewal of the tenancy, the Defendant defaulted in the agreed mode of payment and payments of the rent were done sporadically with portions of the rent being in arrears until Defendant’s officer vacated the premises on 14th August 2021 without notice. It is the Plaintiffs’ case that at the time Defendant’s officer vacated the premises, the rent arrears was USD 1,250.00 and Plaintiffs had to incur expenses in renovating the premises such as GH¢ 2,200.00 on painting and GH¢ 120.00 on collection of waste from the premises. PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. The Plaintiffs averred that several demands on the Defendant to settle the rent arrears and amount spent on the painting ad waste collection went unheeded to and subsequently, they caused their Lawyers to write a demand letter to Defendant but this as well has not yielded any positive feedback from Defendant, hence resort to this Court action. No representative of the Defendant ever appeared in Court in respect of this suit notwithstanding service of the Writ of Summons and hearing notices. The Court proceeded to hear the Plaintiffs prove their claims in accordance with Order 25 Rule 1(2)(a) of the District Court (Civil Procedure) Rules, 2009 (C. I. 59). ISSUES The main issues for determination by this Court are: a. Whether or not the Defendant is in arrears of rent. b. Whether or not the Defendant ought to pay the cost alleged to have been expended on painting the premises and waste collection. EVALUATION OF EVIDENCE It is the duty of a Plaintiff to prove his or her case for a determination to be made in his/her favour. A party who raises issues essential to the success of his/her case assumes the onus of proof and as such a person who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a person has been successful in producing evidence that the other party will be required to lead rebuttal PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. evidence, if need be. In the case of T. Chandiram v. Tetteh [2018] 120 GMJ 112 @ 147 C. A, Her Ladyship Agnes M. A. Dordzie, J. A (as she then was) noted on the standard of proof in civil cases as follows: “[T]he standard of proof in a civil suit is placed on the ‘balance of probabilities. Section 12 (2) of the Evidence Act defines it as follows: “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” Again, in the case of Agbosu v Kotey; In Re Ashalley Botwe Lands [2003-2004] SCGLR 420, His Lordship Brobbey, JSC (Rtd.) noted: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the defendant... At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” The Plaintiffs therefore had the responsibility of adducing evidence which is sufficient enough to avoid a determination against them on the issues before the Court. The absence of the Defendant from Court does not automatically entitle the Plaintiffs to the reliefs they are claiming in this Court and as such, their evidence before the Court should be PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. convincing enough and they have the duty of discharging the burden of proof on them, that is, on the preponderance of probabilities. Issue a. Whether or not the Defendant is in arrears of rent. The 2nd Plaintiff testified by relying on her witness statement filed on 29th November 2022 which was duly adopted by the Court. She testified that a tenancy agreement was executed between Plaintiffs as landlords, and Defendant as tenant, on 1st July 2017 in respect of Plaintiffs’ property being Flat 3, No. 8 Shormeh Street, North Dzorwulu, Accra for the occupation of Defendant’s officer known as Rufu. A copy of the tenancy agreement was tendered in evidence as Exhibit ‘A’. Per the agreement, the monthly rent was fixed at USD 850.00 payable a year in advance, which Defendant promptly paid, and Defendant had an obligation of keeping the premises in good and substantial repair and maintain and service all installed equipment and fixtures in good condition. The 2nd Plaintiff’s evidence was that after expiration of the first year, there was an oral agreement extending the term on the same conditions in the initial agreement, however, Defendant failed to pay the rent in advance and payments made were always in arrears and in breach of the agreement. She testified that notwithstanding the breach, the tenancy was not terminated and subsisted until 14th August 2021 when Norbert Rufu vacated the premises without notifying them, at a time when Defendant’s rent arrears had reached One Thousand, Two Hundred and Fifty United States Dollars (USD 1,250.00). From Exhibit ‘B’, the letter dated 23rd August 2021 from Samuel M. Codjoe, Esq., of Law Trust Company to Defendant, it is stated that the Defendant handed over the keys on 4th August 2021. It was therefore not the case that Defendant left without the knowledge of the Plaintiffs. PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. From Exhibit ‘A’, it is obvious that the Plaintiffs entered into a tenancy agreement with the Defendant for Plaintiffs’ two bedroom unfurnished Flat No. 3 in House No. 8 Shormeh Street, North Dzorwulu, Accra for a term of 1 year commencing 1st July 2017 with an option to renew for further term of two years. Clause 3(1) of the agreement stated clearly that the Tenant had covenanted to pay the rent reserved at the time and in the manner provided in the agreement, which is a year payable in advance. Exhibit ‘A’ was duly signed by Norbert Rufu for DDP Outdoor Ltd in the presence of his witness, Semah Vuley. The 2nd Plaintiff’s evidence that the rent payable by the Defendant after the first year of the tenancy was sporadic, resulting in rent arrears of USD 1,250.00 as at the time of vacation of the Defendant’s officer from the premises on 14th August 2021 remained unchallenged. The Defendant did not come to dispute this or to tender in any evidence to show that it had paid this rent arrears. The law is certain that proof lies upon him who affirms or alleges, not upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See Deliman Oil v. HFC Bank [2016] 92 GMJ 1 @ 19-20 C. A. per Barbara Ackah-Yensu, J. A. and Lydia Tetteh v. Madam Akweley &Another (2019) JELR 107108 (HC). The Defendant was notified to settle his rent arrears as seen from Exhibit ‘B’ but it has still failed to settle the arrears. I find as a fact from the evidence on record that the Plaintiff indeed is in arrears of rent. Issue b. Whether or not the Defendant ought to pay the costs alleged to have been expended on painting the premises and waste collection. The 2nd Plaintiff in her evidence testified that the Defendant left the property in a state of disrepair and they had to incur costs of Two Thousand, Two Hundred Ghana Cedis (GH¢ 2,200.00) in painting and One Hundred and Twenty Ghana Cedis (GH¢ 120.00) in waste PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. collection from the premises. As part of the Tenant’s covenants in Exhibit ‘A’, Defendant was under an obligation to pay for rubbish collection and once this obligation was not fulfilled and the cost had to be borne by the Plaintiffs, it is fair that the Defendant is made to refund to the Plaintiffs that amount spent by them on his behalf, being the One Hundred and Twenty Ghana Cedis (GH¢ 120.00). In respect of the amount alleged to have been spent on painting, being Two Thousand, Two Hundred Ghana Cedis (GH¢ 2,200.00), I must state that whereas Clause 3 of the agreement (Exhibit ‘A’) provided that the tenant was to paint the interior of the premises in the same colour scheme as at the beginning of the term if needed, Clause 4 on the Landlords’ covenants provided that the exterior of the premises and external walls shall be painted at two yearly intervals, commencing from date of this agreement. The Plaintiffs were therefore to satisfy the Court that the cost of GH¢ 2,200.00 alleged to have been expended on painting was in respect of the interior and that the interior of the premises had been left in such a manner that it obviously required painting. No evidence such as pictures of the interior or receipts or documents showing that the painting was exclusively in respect of the interior was provided by Plaintiffs save the bare assertions. The law is settled that where a matter is capable of proof in a positive way, a party who wants a determination in his or her favour ought to adduce sufficient evidence for the determination to tilt in his favour and not merely repeat his or her averments on oath. The Court is not satisfied that this was done by the Plaintiffs especially in the light of the provisions of the portions of the agreement referred to supra. The Plaintiffs would therefore not be entitled to the Two Thousand, Two Hundred Ghana Cedis (GH¢ 2,200.00) being sought by them from this Court. The Plaintiffs as part of their reliefs are praying for costs inclusive of legal fees. Order 7 Rule 1(1) of C. I. 59 provides that costs in a suit is at the discretion of the Court and the PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. Court may after hearing the parties award costs it considers just. The Court considers the peculiar circumstances of each case in arriving at the quantum of costs such as amount of expenses incurred by the party or his lawyer, amount of Court fees paid, length and complexity of proceedings, conduct of parties and/or their lawyers during proceedings, length of trial, number of witnesses. The Court must be fair to both parties in awarding cost. See: Bank of Ghana v Nyarko (1973) 2 GLR 265, GATCO Chempharam v Pharmadex Gh. Ltd. (1999-2000) 2 GLR 262 @ 275, Neuseite Meditek and Konsult vs. United Bank for Africa (Gh) Ltd. [2021] DLCA 10755. The Plaintiffs led no evidence in respect of the legal fees being claimed by them such as receipt or invoice to show how much legal fees they paid or have to pay to their lawyers for prosecuting this case. Legal fees are also not to be awarded by the Court separately as the Court in awarding costs considers all factors such as reasonable remuneration in terms of the lawyer’s work. In the case of Sega Exports Ltd. v. Dart Hills Ltd. (2013) JELR 69694, CA, the Court speaking through His Lordship Justice Dennis Adjei, J. A. held as follows: “I do not think it is lawful for the court to award lawyer’s fees under a separate heading as was done by the trial High Court Judge. The court in assessing costs is to take into consideration reasonable remuneration for the lawyer in respect of the work done by him in the proceedings and compensate the victor for reasonable expenses incurred and as well as the cost fees paid. Looking at the circumstances of the case, it is obvious that the amount of $7,000.00 which was described as lawyer’s fee was not only wrong but it was excessive. I will set aside the lawyer’s fees which was fixed for $7,000.00 and substitute GH¢10,000.00 as costs.” Having considered the factors to be taken into account by the Court in awarding costs, the Court fixes the cost for Plaintiffs at GH¢ 3,000.00. PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. CONCLUSION Upon a careful consideration of the evidence adduced by the 2nd Plaintiff at the trial, the Court is satisfied that Plaintiffs have been able to discharge the burden of proof on them on the preponderance of probabilities in part. Judgment is accordingly entered for the Plaintiffs against the Defendant as follows: a. The Defendant is to pay to the Plaintiffs the sum of the Ghana cedi equivalent of USD 1,250.00 (One Thousand, Two Hundred and Fifty United States Dollars) being outstanding rent. b. The Defendant is to pay to the Plaintiffs the sum of One Hundred and Twenty Ghana Cedis (GH¢ 120.00) being cost expended on collecting waste (rubbish) from the premises. c. Cost of GH¢ 3,000.00 is awarded for the Plaintiffs against the Defendant. [SGD] AMA ADOMAKO-KWAKYE (MS.) (MAGISTRATE) Counsel Zeinab Abdul-Aziz, Esq. holding brief of Samuel M. Codjoe, Esq. for Plaintiffs. No legal representation for Defendant. PROF. ANYETEI T. LASSEY & ANOR. V DDP OUTDOOR LTD. 9