NARH VRS. ASANTEWAA (A11/56/2022) [2024] GHADC 545 (12 November 2024)

BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) DISTRICT MAGISTRATE SITTING AT DISTRICT COURT GBESE, ACCRA ON TUESDAY THE 12TH DAY OF NOVEMBER, 2024. --------------------------------------------------------------------------------------------------- SUIT NO. A11/56/2022 KWAKU NARH ::: PLAINTIFF VRS. MADAM ASANTEWAA ::: DEFENDANT --------------------------------------------------------------------------------------------------- Time: 8:39am. Parties absent. Legal Representation: Michael Lartey, Esq with David Amponsah, Esq for Plaintiff. JUDGMENT By a Writ of Summons and Statement of Claim, the Plaintiff herein invoked the jurisdiction of this court on 21st July, 2022 seeking for the following reliefs: 1 i. Declaration that the House with H/NO. C296/18 AFUNYA LIN, ABELENKPE. ACCRA, a two-bedroom self-contain and hall apartment built by Kwaotsu is under the management of the family ii. An order for eviction/ ejectment of the Defendant her servants, agents. privies, assigns, licensees and workmen or whomsoever claiming any interest in the property iii. An order of perpetual Workmen or injunction restraining the Defendant or her agents, assigns, whomsoever claiming through her from ever occupying the property in issue herein. iv. v. An order of recovery of possession Costs On 19th September, 2022 the Defendant filed her Statement of Defence and counterclaimed for an order for the Plaintiffs to pay GH₵12,430.00 spent to renovate the Two bedroom self-contain before she vacates the room. The Plaintiff on 24th November filed a reply and defence to the counterclaim. The summary of each party’s case will be seen below. CASE OF PLAINTIFF According to the Plaintiff the Defendant is his tenant. Being an administrator and beneficial owner of the estate of the late Kwaotsu, the Plaintiff and principal members of his family obtained judgment in their favour sometime in 2016. By this judgment the Plaintiff and his family went into execution. In the process of going into possession the Plaintiff and the family members met the Defendant. In lieu of vacating the premises, the Defendant pleaded to stay and attorn tenancy to the Plaintiff and his family when she was informed about the judgment which the family agreed to. This occurred in the presence of the Plaintiff, some of his family members and the police. She was further informed that their opponents were not the right owners and to retrieve any money she has paid to them. Later, a tenancy agreement was executed covering the years 2017-2019. The agreement 2 was subsequently renewed but this was not reduced into writing with the expectation that by their action the old agreement would be renewed. Things began to go downhill when the opponents of the Plaintiff told the Defendant to stop paying rent sometime in 2021 which she heeded and for nearly a year refused to pay rent. The Plaintiff claims that it took the intervention of his lawyer to cause the Defendant to pay. This attitude of the Defendant reared its head again later that year when she once more refused to pay rent and was blatantly disrespectful to the Plaintiffs. This led to the parties mutually agreeing not to renew the tenancy agreement which expired in 29th June 2022. In lieu of handing over the keys of the room to them, Defendant rather took them to rent control claiming that the Plaintiff was indebted to her. The Plaintiff avers that the continuous occupation of the property by the Defendant is causing a lot of hardship to them especially when the family needs the room for its use and aver that the Defendant is adamant and will not stop her unlawful acts unless restrained and evicted from the property by this Court. CASE OF DEFENDANT The Defendant denied the claims of the Plaintiff and averred that by the time Plaintiff came into the picture she had already paid 5 years’ worth of rent to her previous landlord now deceased. According to her per an agreement between her and the previous landlord there was an agreement to renovate the property in exchange for a 3-year extension to the tenancy agreement making a total of 8 years on the agreement. It was in the midst of this 8-year period that Plaintiffs brought their judgment and his intention to eject her. Following this she paid 5 years’ worth of rent to the Plaintiff and now they are rescinding the agreement and want to eject her. She claims that at the time she was dealing with the previous landlord the Plaintiff had not obtained judgment so she cannot be faulted for paying 5 years’ worth of rent to the previous landlord as well as the renovation of the property. She claims her trip to the police was for assistance to 3 determine who to pay rent to as she was confused and that of rent control was to amend the record and not to challenge the Plaintiff on his ownership. She claims that the room or premises was not in its current state and it is the way it is now due to her renovating same hence her counterclaim. In reply and defence to the counterclaim, the Plaintiff denied the Defendant’s claim and avers that the Defendant never brought up the issue of her ever renovating the property in exchange for an extension on her tenancy, not even while the previous landlord was alive. Plaintiff insists that Defendant never paid 5 years’ worth of rent to him for him to rescind any decision of sacking her. He was even generous enough to reduce the rent to GH₵300.00 a month. Plaintiff claims that an initial rent advance of two years’ worth payment is normal and that subsequently payment of rent is made yearly. Plaintiff avers that it was Defendant’s report of him and his children assisted by Elizabeth Nartey (Narkie) to the police that caused him to bring the matter to court and Defendant further told the Plaintiff openly that she recognizes her opponent in the earlier suit “Nakie” as her landlord. Plaintiff avers that despite several notices the Defendant as well as other tenants failed to appear in court in the other matter. Plaintiff calls the actions of the Defendant deliberate and malicious and tried to hide behind the police to harass him. The police ended up finding nothing wrong with his actions after he produced his documentations. When this failed she ran to rent control. Plaintiff states that the size and shape of the building has not changed. The parties were ordered to file their respective witness statements and same was filed on 24th November, 2022 and 18th November, 2022 respectively. The parties filed Witness Statements for their respective witnesses as well. The matter was eventually set for hearing and the parties presented their respective cases. 4 ISSUES 1. Whether or not the property in dispute is under the control of the Kwaotsu family. 2. Whether or not a valid agreement between the Defendant and the previous landlord Kojo (deceased) to renovate the room in dispute for further extension of her stay in the property for eight years existed 3. Whether or not Plaintiff is liable to refund the Defendant with the amount of GH₵12,430.00 resulting from the renovation works. 4. Whether or not the Defendant is liable to eviction THE LAW THE BURDEN AND PERSUASION OF PROOF EVIDENCE ACT 1975 (N.R.C.D. 323) In examining the case put forward by the parties, the court must be circumspect and deal with facts as well as the evidence adduced and most importantly the law. The law that this court will be instructed by are as follows: Section 10 (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. (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 5 (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 12 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "Preponderance of the probabilities" means that degree of certainty of beli ef 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. Section 15 Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; Section 17 Except as otherwise provided by law, (a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In applying the above statute, in the case of Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held: 6 “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.” The case herein, without dispute, borders on issues of landlord and tenant. As such the Rent Act, 1963 (Act 220) being the principal enactment which regulates the relationship between a landlord and tenant will also be discussed especially section 17 and same is reproduced below: Rent Act, 1963, Act 220 Section 17—Recovery of Possession and Ejectment. (1) Subject to the provisions of subsection (2) of section 25 and of section 28, no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall be made or given by the appropriate Rent Magistrate, or any other Judge of a court of competent jurisdiction in accordance with the provisions of any other enactment for the time being in force, except in any of the following circumstances: — (a) where any rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due; (b) where any obligation of the tenancy, other than that specified in paragraph (a), so far as such obligation is consistent with the provisions of this Act, has been broken or not performed; 7 (c) where the tenant or any person residing with him has been guilty of conduct which is a nuisance or an annoyance to adjoining occupiers; (d) where the tenant or any person residing with him has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose; (e) where the condition of the premises has in the opinion of such Magistrate or Judge deteriorated owing to acts of waste by, or the neglect or default of, the tenant or any person residing with him; (f) where the tenant has given notice of his intention to quit in writing and in consequence of such notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which he would, in the opinion of such Magistrate or Judge, be seriously prejudiced if he could not obtain possession; (g) where the premises are reasonably required by the landlord for personal occupation as a dwelling house by himself, a member of his family or any person in his whole-time employment, such premises being constructed to be used as a dwelling house, so, however, that— (i) the circumstance that the premises are reasonably required by the landlord for personal occupation by someone in his employ shall not be a sufficient circumstance if the Magistrate or Judge is not satisfied that such landlord usually provides premises for occupation by an employee of the class to which that employee belongs, and (ii) no such order shall be made if the Magistrate or Judge is satisfied having regard to all the circumstances of the case, including any alternative accommodation available for the person for whose occupation the premises are so required or for the tenant, that greater hardship would be caused by granting the order than by refusing it; 8 (h) where the lease has expired and the premises are reasonably required by the landlord to be used by him for his own business purposes, such premises being constructed to be used as such, if the landlord has given not less than six months’ written notice to the tenant of his intention to apply for an order for the recovery of the possession of, or the ejectment from, the premises; (i) where the lease has expired and the tenant is a statutory tenant and the landlord— (i) intends to pull down the premises and construct new premises, (ii) intends to remodel the premises and the remodelling cannot be carried out with the tenant in occupation, or (iii) requires possession of the premises to carry out a scheme of re-development, if the landlord has given not less than six months’ written notice to the tenant of his intention to apply for an order for the recovery of the possession of, or the ejectment from, the premises, so, however, that— (aa) the Magistrate or Judge may, on making or giving an order under this paragraph, make it a condition that if the landlord fails to carry out his intention within such period as may be allowed by such Magistrate or Judge the landlord shall reinstate the former tenant as a statutory tenant at the same rent as that formerly payable or pay to the tenant such compensation as the Magistrate or Judge may consider reasonable, (ab) the Magistrate or Judge shall cause a copy of such order to be served on the appropriate Rent Officer for the area where the premises are situated and such officer shall take such proceedings as are necessary to ensure compliance with the terms of the order, and (ac) the making or giving of an order under this paragraph in the circumstances specified in paragraph (i) (ii) of this subsection shall be subject to any option of 9 the tenant to acquire under the provisions of section 18, a new statutory tenancy of any premises remodelled to which such an order relates; (j) where the premises were let to the tenant by reason of his employment in the service of the landlord and such employment has ceased; and (k) where the landlord was personally in occupation of the premises and has let the premises substantially furnished for a term during his absence from Ghana or that area of Ghana in which the premises are situated and has returned and requires the re-occupation of the premises for himself, so, however, that no order granting the possession of, or the ejectment from, the premises shall be granted on or after the commencement of this Act unless the lease is in writing and sets out that the lease has been granted for a term during the absence of the landlord from Ghana or such area. ANALYSIS In this present case both parties have made various allegations in putting forward their case which have raised the issues supra. The issues vis-à-vis the case of both parties and the law will be analysed. ISSUE 1 It is the case of the Plaintiff that the Defendant is his (and by extension the Kwaotsu family’s) tenant, a fact admitted by the Defendant. The Plaintiff further explained the process by which Defendant became his tenant which was once again admitted. The issue now arose when the Plaintiff alleged in his pleadings that the conduct of the Defendant was consistent with a person who refuses to attorn tenancy to her landlord. Plaintiff alleges that the Defendant refused to pay any more rent to him and took him to rent control and the police station. Defendant in her pleadings denied misconducting herself and claimed she was only confused about who to pay rent to hence her going to the police for 10 clarification and to rent control to amend the records. The Plaintiff alleges that he had informed her about the judgment he and his family had obtained regarding the property in dispute. Nonetheless the Defendant still thought it wise to report the matter to the police. This was asked at trial and answered as follows: Q: Did you take the Plaintiff, your new landlord to the Police Station? A: Yes, I can explain. I travelled and the Plaintiff’s son Joe was to take rent from one so he (Joe Kwaku Narh) called me that it was time to pay rent and I told him I had travelled and he told me if I don’t come and pay the rent I will return my things outside. So, I told him that there are laws in Ghana so he can’t do that. That is why I reported the matter to the Police and requested for a refund of the renovations I made so I can vacate. The Police advised that I take the matter to the Rent office. Before I proceed in determining issue one I find it necessary to make a preliminary comment. In the case of Union Trading Co. Ltd. v. Karam and Another (1975) JELR 64366 (HC) the court held as follows: “It is trite learning that a party is bound by his pleadings and cannot at the trial set up a case different from that which he has pleaded. If therefore I accept the submission of learned counsel for the Defendants that there was frustration, It would not only mean that would be accepting in favour of the first Defendant a case different from and inconsistent with that which the first Defendant himself put forward by his pleading, but would also amount to deciding the case on a point which was never a triable issue on the pleadings; and that would be fundamentally wrong: see Malm v. Lutterodt [1963] 1 G.L.R 1, S.C. and Wilkinson v. Edusei [1963] 1 G.L.R 393 at p. 396, S.C. See also Appiah v. Akers Trading Company [1972] 1 G.L.R 28 at p. 33” In applying the above principle, nowhere in the pleadings of the Defendant did she say that the Plaintiff’s son threatened to throw her out. As a matter fact she said she reported the matter to the police because she was seeking clarification. Clearly the Defendant is contradicting herself. To borrow the words of Justice 11 Abban therefore accepting this explanation will “amount to deciding the case on a point which was never a triable issue on the pleadings”. This therefore raises an issue of the credibility of the witness i.e. the Defendant to my mind. To prove that indeed the property in dispute is under the control of the Plaintiff and his family the Plaintiff elicited a judgment dated 14th October, 2016 obtained at the District Court, Accra Central presided over by His Worship Stephen Owusu. In this case the court held in favour of the Plaintiff herein and some of his other family members and concluded the judgment with the final orders two (2) of which are reproduced as follows: 1. It is hereby declared that the two-bedroom self-contain and chamber and hall apartment built by the late Kwaotsu is a family property; 2. The Plaintiffs, being head of family and principal members of the family respectively, are entitled to recover possession of the two bedroom self-contain and chamber and hall apartment built by Kwaotsu for and on behalf of the family. However, the persons occupying those rooms should have the option to attorn tenant to the family. If they so attorn tenant, the family will have the option, at the expiry of their tenancy, the renew their tenancy or recover possession; The Defendant’s witness (dw1), whose mother was a party to the above case testified on Defendant’s behalf. The evidence-in-chief took the form of a witness statement and was adopted by the court at trial. Dw1 stated categorically that the property belonged to her grandfather and that the Plaintiff had no capacity to be collecting rent from the Defendant. Under cross examination, the Defendant’s witness was asked about the judgment as follows: Q: In the case entitled Mary Nartey, Elizabeth Nartey and Obla Kojo/Kodzo vrs. Hyacinth Nartey and the Occupants suit no. A9/156/2016, do you recall giving power of attorney to Kojo/Kodzo Obla to represent you? A: No my lord. 12 Q: In the case entitled Kweku Narh, Tawiah Agbojah and Kweku Okumi vrs. Obla Kojo/Kodzo and Mary Nartey suit no A9/195/2016, do you recall giving power of attorney to Kojo/Kodzo Obla to represent you in that case? A: I have no idea of that case. Q: Do you ever recall giving power of attorney to Kojo/Kodzo Obla to represent you in any case that went before the Accra Central District Court which is properly called City Engineering to represent you in any case? A: No. Q: The Plaintiff’s witness attached a copy of a judgment given in Mary Nartey, Elizabeth Nartey and Obla Kojo/Kodzo vrs. Hyacinth Nartey and the Occupants suit no. A9/156/2016 to his witness statement, have you seen it? A: No. Q: Kindly take a look at the Power of attorney and identify if it is your signature? A: It is my signature but I don’t remember signing the document. When probed further dw1 had this to say: Q: Are you also aware that Kojo/Kodzo Obla and Mary Nartey were losers in the case entitled Kweku Narh, Tawiah Agbojah and Kweku Okumi vrs. Obla Kojo/Kodzo and Mary Nartey suit no A9/195/2016 are you aware? A: No my lady I am not aware because we were never served with a court suit. In the said judgment, the court made note of the fact that the 2nd Defendants Mary Nartey though served on several occasions to appear was never present in court and that the 1st Defendant Kojo/Kodzo Obla abandoned the suit halfway. I therefore find it difficult to accept dw1’s testimony as fact nor find her a reliable witness. There is no evidence on the record or at trial which shows that this judgment has been challenged on appeal or set aside. In addition, dw1 who 13 seemed to have been aware of the pendency of this suit never joined to be a party to challenge the Plaintiff’s capacity. In my view, Plaintiff has satisfied the evidential burden and I therefore find that since there has never been a challenge to the judgment the declarations made by the court in the earlier suit are still valid and the property in dispute is under the control of the Kwaotsu family. Issues 2 and 3 will be dealt with together. The Defendant per her counterclaim is claiming against Plaintiff a refund of GH₵12,430.00 being the cost of renovation on the property. She alleges that this came about per an agreement between herself and the previous landlord and in exchange she got an extension of the tenancy agreement. She exhibited two (2) tenancy agreements and the 1st tenancy agreement shows she has paid GH₵12,600.00 to the previous landlord. What she did not show was an agreement between her and the landlord in respect of any renovation works. Section 11 enjoins Defendant to show evidence that will persuade the court in her favour. The tenancy agreement exhibited is just that, a tenancy agreement. No where in the said agreement was a clause incorporated to show that renovation works were being done by the Defendant in exchange for an extension on her tenancy. It is trite that parties are at liberty to agree to anything as long as it does not contravene the law and a tenancy of 7 years is not unusual. The plaintiff per his counsel in the written address disputes the tenancy agreement dated 26th February, 2014 and claims it is a fake agreement. His basis is that the signatures on the 1st and 2nd tenancy agreements are substantially different. While they indeed appear different, I shall refrain from making a finding of fact based on the signature alone as I am not an expert in this field. What I do find interesting is that the Defendant in her pleadings never mentioned showing the Plaintiff her tenancy agreement with her previous landlord to give him the opportunity to either adopt that tenancy agreement or 14 enter a new one. In addition, the agreement was for 5 years and the later 3 years but she exhibited a 7-year lease and then a 1-year lease. She also never mentioned incurring expenses for the renovation works to the Plaintiff. If the Defendant’s version of events is to be believed, the question is at the time the Plaintiff and his family were executing the judgment, did the Defendant bring this agreement concerning the renovation to the notice of the Plaintiff. Both parties agree that nothing in the record asserts this. The defendant in her pleadings states clearly that the only time she brought it up was when she reported the Plaintiff and his son to the police. This was long after the Plaintiff and Defendant had entered several agreements. In the case of Tsatsu Tsikata v. Jubilee Ghana MV21 Inc & 1 Or (2016) JELR 64394 (CA) the court of appeal held as follows: “The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both; see Vyvyan v. Vyvyan 54 E.R. 817 as per Sir John Romilly MR. The exercise has to be a voluntary act.” Defendant during cross examination put her case across through Plaintiff and Plaintiff’s witness (pw1) as follows: Q: I am putting it to you that I used lawful means to come and live in the house. A: I don’t know that you came into the room the proper way. Q: I am putting it to you that you pay me all the costs I incurred in renovating the room. A: I did not ask her to do any renovations to the room and so if she did any she should go and remove them. Pw1: 15 Q: Per your Witness Statement, you said you saw me move into the room, not so. A: Yes, I got to know the Defendant when she was in occupation but not when she was about to rent the room. Q: When you saw me, you didn’t say anything. You did not fight with me and you did not prevent me from occupying the room. A: I did not ask you any question because the room in question is a family property and there is an issue about that room. Q: And you watched me stay in the room for four (4) years and why have you brought me to Court? A: It is true I didn’t ask you anything because there was an issue concerning the room and the family head took the matter to Court and then the family was given the room by the Court at the Accra Central District Court. Q: I am putting it to you that you should pay me the costs I incurred in renovating the room. A: We can’t pay you the renovation money that is why the family head gave the room back to you to live in for two (2) years. Q: I am putting it to you that you are not being truthful. A: It is true. In the year 2017 when your things were removed from the room, the family head gave you the opportunity to live in the room and we executed new agreement up to 2021. Q: But you know you owed me for four (4) years before the new agreement was executed. A: What you are saying is not true. Those you did the first agreement with were the same people the Accra Central Court took the room from and gave to the family head i.e the Plaintiff. 16 In all the pleadings and under cross both the Plaintiff and pw1 denied the existence of an agreement between the Defendant and her former landlord. Nowhere in the Defendant’s pleadings and even under cross did Defendant suggest that the Plaintiff was aware of the said agreement. I cannot therefore accept the defendant’s averment of an agreement as fact. Again, defendant’s conduct in entering a lease agreement with the Plaintiff without bringing up the money her former landlord owed her to the Plaintiff amounts to a waiver of her right to demand for her money. On this basis the Defendant’s counterclaim fails. Issue 4 The parties agree that they entered several tenancy agreements. The defendant however disputes agreeing to leaving the premises after the final tenancy agreement. in the Rent Act, supra the parameters by which a landlord can evict a tenant are provided in section 17 supra. The Plaintiff herein in his pleadings stated that the family needs the premises for use by other family members. Section 17(1)(g) states that “where the premises are reasonably required by the landlord for personal occupation as a dwelling house by himself, a member of his family or any person in his whole-time employment, such premises being constructed to be used as a dwelling house…”. In my opinion this is sufficient grounds to cause the Defendant herein to be evicted. It has already been established that the property is family property of the late Kwaotsu. In the judgment Kwaotsu died childless and without a wife therefore the property devolved on his extended family members. Secondly per the tenancy agreement dated 17th July, 2021, that went undisputed at trial, the parties agreed to terminate the tenancy agreement in June 2022. Even if the agreement between herself and the former landlord was accepted, that 17 agreement expired in 2023. In other words, any every agreement she has entered where this property is concerned has lapsed. Seeing as the premises is required for the use of the Plaintiff’s family I find Defendant liable to be evicted from the premises. FINAL ORDERS It is hereby ordered as follows that: 1. The H/NO. C296/18 AFUNYA LIN, ABELENKPE. ACCRA, a two- bedroom self-contain and hall apartment built by Kwaotsu is under the management of the family 2. The Defendant is to leave the H/NO. C296/18 AFUNYA LIN, ABELENKPE. ACCRA within one (1) month of this judgment and pay any and all outstanding rent to the Plaintiff. 3. The Defendant, her agents, assigns, workmen or whomsoever claiming through her is perpetually injuncted from ever occupying the property in issue herein. 4. Plaintiff is to recover possession from Defendant. 5. Costs of GH₵ 10,000 awarded against Defendant. SGD.) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) (DISTRICT MAGISTRATE) 18 19