ODIKO VRS APPIAH AND ANOTHER [2023] GHADC 1216 (18 December 2023)

IN THE DISTRICT COURT TDC TEMA HELD ON MONDAY THE 18TH DAY OF DECEMBER 2023 BEFORE HER WORSHIP BENEDICTA ANTWI (DISTRICT COURT MAGISTRATE) SUIT NO: A9/23/23 BENJAMIN OUT ADZIN ODIKO (SUING AS THE ADMINISTARTOR OF …. PLAINTIFFS THE ESTATE OF ROSINA ODIKO DESCD) VRS 1. GODRED APPIAH 2. BROWN MORNYUIE …. DEFFENDANTS JUDGMENT By a writ of summons issued in the registry of this court on the 26th January 2023, plaintiff claimed against six (6) defendants as follows: a) An order for ejectment of defendants from house number AV-12 120 Abli Adama close GZ-068-0240, Nungua – Accra b) An order for vacant possession of H/No. AV-120 Abli Adama close GZ-068-0240 Nungua- Accra [Date] Upon service of the writ on the defendants, all the defendants vacated the premises with the exception of the above two defendants. Plaintiff subsequently amended the writ on the 18th April 2023 and claimed the same reliefs against the only two defendants herein. Both defendants were duly served with the amended writ on the 19th April 2023 together with hearing notices for the 8th of June 2023. The defendants however failed to show up in court. It must be stated that the defendants never showed up in court throughout the course of this suit, despite hearing notices duly served on them. The defendants herein refused to honor all the hearing notices duly served on them. The court thus proceeded with case and ordered the plaintiff to file his witness statement for the suit to proceeded to trial. PLAINTIFF’S CASE Plaintiff averred by his pleadings that he is the administrator of the estate of one Rosina Odiko, his wife (now deceased). The house in issue forms part of the estate of the deceased. During the lifetime of his wife, she rented out the property in issue to the defendants. However, fter the expiration of the tenancy, the defendants refused to pay further rent and the plaintiff gave them three months’ notice to vacate the property as their tenancy will not be renewed. The defendants asked for more time to enable them look for alternative accommodation but even after the expiration of that extension, the defendants still refused to vacate the property. On the 22nd November 2023, plaintiff testified by relying on his witness statement filed on the 29th August 2023 and tendered into evidence the following exhibits. [Date] Exhibit “A” Letters of Administration Exhibit “B” Notice to vacate Exhibit “C” Notice to vacate The plaintiff did not call any witness and thereafter, closed his case. BURDEN OF PROOF In every civil suit, the burden of proof lies on the party who asserts a claim. The burden of producing evidence as well as the burden of persuasion is cast on such a party and the standard of proof required to discharge the burden of persuasion in civil matters is one of preponderance of the probabilities. Sections 12 (1) and (2) and 11(4) of the Evidence Act, 1975 (NRCD 323) are the statutory provisions that deal with the burden of proof and the standard of proof. These statutory provisions have been the subject of discussion in a plethora of decisions in our courts. Some of the cases in point are Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882, In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. A party can discharge the burden of persuasion by leading evidence to prove the claim and relief he seeks. In the case of In re Presidential Election Petition (No. 4) Akuffo-Addo & Ors. Vs. Mahama & Ors. [2013] SCGLR (Special Edition) 73, the Supreme Court held at page 322 of the report as follows: “Our understanding of the rules in the Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff, [Date] or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.” The court therefore proceeded to determine the sole issue of whether or not the plaintiff is entitled the reliefs endorsed on his writ od summons. DETERMINATION The plaintiff sued in his capacity as the administrator of the estate of his late wife. He tendered into evidence exhibit “A” which is a letter of administration granted him on the 9th November 2022 over the estate of one Rosina Odikro. Under section 17 (1)(a) of the Rent Act 1963, (Act 220), a landlord can institute an action for recovery of possession where the rent is in arrears for one month or more. Osekere v Saah (1967) GLR 144 cited. The plaintiff, desirous of perusing this right under section 17 of Act 220, supra duly served notices on the defendants. Upon the service of the notices, all the tenants but the two herein surrendered and gave vacant possession to the plaintiff. In Alameddine Brothers v. Paterson Zochonis & Co. Ltd (1971)2 GLR 403 it was held that for the duration of notice will be dependent on the type of periodic tenancy; one weeks’ notice for weekly tenancies, one month’s notice for monthly tenancies, and six months’ notice for yearly tenancies. When exhibit “B” which was a three months notice was sent to the defendants to vacate the property, they i.e. defendants wrote back to the plaintiff asking for an extension of time to enable them look for an alternative accommodation. By exhibit [Date] “C” they asked for three (3) months in addition to the initial three months the plaintiff gave them per exhibit “B” Exhibit “C” was written in May 2022. The plaintiff states per paragraph four (4) of his claim that the time granted to the defendants has long elapse but they continue to remain in occupation without paying any rent. The plaintiff further testified that he is no longer interested in the rent arrears due him and only seeks to recover vacant possession from the defendants. having satisfied the requirements of notices and its conditions in the Rent Act. in seeking vacant possession, The court has analyzed the unchallenged evidence put before it by the plaintiff and is convinced that by the evidence on record the defendants were given due notice of their breach of their covenant to pay rent and were also served with this writ together with the witness statements and hearing notices throughout the course of this suit. In the case of Republic v High Court (Fast Track Division) Accra; Ex parte Ayikai (Akosoku IV Interested party) {2015-2016} 1SCGLR 289 it was held that when a lawyer and his client disable themselves from being heard in proceedings, the party cannot turn around and accuse the court of having breached the rules of natural justice. I find in the absence of any evidence to the contrary, that the plaintiff has been able to prove on a preponderance of probabilities that he is entitled to the claims endorsed on his writ of summons. I therefore hold that the plaintiff is entitled to his reliefs and I accordingly order as follows; [Date] 1. Plaintiff is entitled to recover possession of house number AV-12 120 Abli Adama Close GZ-068 -0240 Nungua -Accra from the defendants. 2. Cost of GH¢ 3000 cedis in favour of plaintiff as against the defendants [SGD] BENEDICTA ANTWI DISTRICT MAGISTRATE PARTIES: PLAINTIFF ---PRESENT DEFFENDANTS --- ABSENT [Date] [Date] 7