GEORGINA NSIAH DUCARROZ VRS CROWN HOPE INTERNATIONAL ACADEMY (GJ/0763/2020) [2024] GHAHC 97 (26 January 2024)

IN THE HIGH COURT OF JUSTICE GHANA (GENERAL JURISDICTION COURT 4) HELD IN ACCRA ON FRIDAY THE 26TH DAY OF JANUARY, 2024 BEFORE HER LADYSHIP OLIVIA OBENG OWUSU (MRS.) J. GEORGINA NSIAH DUCARROZ (SUING PER HER LAWFUL ATTORNEY ERIC BOAKYE) HOUSE NO. UP 735, KNUST, KUMASI :: SUIT NO: GJ/0763/2020 PLAINTIFF VRS CROWN HOPE INTERNATIONAL ACADEMY :: BLOCK NO. 5 ACCRA-WINNEBA ROAD, BESIDE PRUDENTIAL BANK GHANA LTD WEIJA BRANCH, ACCRA DEFENDANT ======================================================= J U D G M E N T ======================================================= On the 11th of March 2020 the Plaintiff suing per her lawful attorney took out a Writ of Summons against the Defendant seeking the following reliefs: “ 1. An order of the Court declaring that the lease between the Plaintiff and the Defendants dated 25th November 2015 is forfeited. 2. An order for the Defendant to yield vacant possession of the property described in paragraph 1 of the Statement of Claim to the Plaintiff forthwith. 3. An order for the Defendant to pay the cedi equivalent of US$117,000 being the accumulated arrears of rent due and owing by it as at 4th March 2020. | P a g e 1 4. An order directing the Defendant to pay back an amount of $3,120 being the plaintiff’s portion of withholding tax deducted but not paid to GRA by the Defendant. 5. Mesne Profit at the rate of the cedi equivalent of $3,250 per month from 4th March 2020 to the date of final payment. 6. Interest on reliefs, 3, 4 and 5 7. Cost.” The Plaintiff’s case as gleaned from her Statement of Claim is as follows: She is the owner of a Three-Storey property known as Block No 5 situated along the Accra-Winneba Road beside Prudential Bank Ghana Ltd Weija Branch in the Greater Accra Region. Acting through one Eric Boakye and Mrs Florence Mintah she let out the property to the Defendant who was represented by two of its management staff Sylvia Bannerman-Balgun and Pastor Joseph Ikiebe. A tenancy agreement was signed by the parties on the 25th of November 2015 and the defendant was given vacant possession of the premises on the 4th of January 2016. The lease was for the Defendant to run a school and all educational purposes only subject to some conditions which includes but not limited to the following: a. The Defendant was to pay the rent agreed at the times and in the manner agreed upon to wit. The Defendant was to pay one-year rent in advance. b. The rent was to be reviewed after the first 3 years and thereafter every 2 years at a rate not exceeding 12% of the existing rent. c. The Defendant was granted permission to rehabilitate and restructure the building to suit the purpose of his business at his own cost. d. The Defendant undertook to pay 8% out of the 15% withholding tax for the initial 3 years and the subsequent payment of the whole tax was to be borne by the plaintiff. The Defendant undertook to submit to the Plaintiff within four (4) months of payment of rent the withholding tax certificate. | P a g e 2 The term of the lease was agreed to be for a total period of 15 years with an option to renew for a further term with a monthly rent agreed at the cedi equivalent of Three Thousand Two Hundred and Fifty United States of Dollars (US$3,250). A total rent of the cedi equivalent of Thirty-Nine Thousand United States Dollars (US$39,000) was therefore to be paid yearly in advance. The tenancy took effect from 4th March 2016 and the Defendant paid a year’s rent advance of the cedi-equivalent of US $39,000. Since March 2017 the defendant has not paid any rent to her despite repeated demands she has made for payment of the following: i. ii. iii. 4th March 2017 to 3rd March 2018 4th March 2018 to 3rd March 2019 4th March 2019 to 3rd March 2020 As at 4th March 2020 therefore the Defendant was in arrears of rent totaling US $117,000 or its cedi equivalent at the prevailing forex rate. The Defendant also failed or neglected to pay the withholding tax on the one-year rent advance it deducted from the cedi equivalent of the US$39,000 and wrongly pocketed the 8% portion deducted from the rent. It is the case of the Plaintiff that the Defendant has breached the covenant to pay rent which breach entitles her to recover the property as well as payment of the rent due her. Before going into the merits of the case it would be necessary to outline the circumstances that has led to this Judgment. On the 16th of November 2021 the court ordered the parties to file their Witness Statements and Pre-Trial Checklists. The Defendant failed to comply with the order of the Court. Consequently on 7th April 2022 the Court struck out the Defendant’s Defence in accordance with Order 32 Rule 7A (3) (b) of The High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by The High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I 87). The relevant Court Notes for that day read thus: | P a g e 3 “The Defendant has not filed its witness statement as ordered by the Court. In accordance with Order 32 r 7A3(b) the Court strikes out its defence….The Plaintiff is ordered to serve the Defendant with a Hearing Notice and the Court’s proceedings. Suit is adjourned to 10/05/2022 @ 9.30am”. The rule of court as stated in Order 32 Rule 7A of C.I 47 is as follows: “7A. (3) Where a party has failed to comply with any of the directions given at a case management conference or a pretrial review or both the judge may make any of the following orders:… (b) strike out the defence and counterclaim as the case may be, if the non-complying party is a defendant. This case thus proceeded with the evidence on oath of only the Plaintiff’s attorney. At the close of the pleadings, the following issues were set down for trial: i. Whether or not the Defendant is in default of rent for the property and if so how much. ii. Whether or not the Plaintiff is entitled to the reliefs endorsed on the writ. iii. Any other relevant issue raised from the pleadings or during the trial. As was held in the case of DALEX FINANCE AND LEASING COMPANY LTD VRS EBENEZER DENZEL AMANOR AND 2 ORS (2021) 172 GMJ 256 @ 304 the whole trial is aimed at determining whether a party is entitled to the reliefs claimed. The issue of whether or not the Plaintiff is entitled to the reliefs endorsed on the writ should not therefore be set down as a distinct issue. In my considered view, the plaintiffs' entitlement to judgment on her claim therefore depends on the fundamental issue (i) whether or not the Defendant is in default of rent and if so how much. | P a g e 4 A party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. This was the holding of the court in the celebrated case of BANK OF WEST AFRICA LIMITED V ACKUN 1963 1 GLR 176. It is the duty of the Plaintiff to prove what she alleges. It is when she has led evidence on a particular issue that the burden will shift to the Defendant to lead sufficient evidence to tip the scales in its favour. Turning now to consider the evidence, the Plaintiff appointed one Eric Boakye as her attorney. The case of the Plaintiff as narrated by her attorney was as follows: In November 2015 she let out her Three-Storey property known as Block No.5 situated along the Accra Winneba Road beside Prudential Bank of Ghana Ltd, Weija Branch to the Defendant. She executed a Tenancy Agreement with the Defendant. Exhibit “B” is the Tenancy Agreement. The Tenancy Agreement was for a period of 15 years with an option for a renewal. The parties agreed on a monthly rent of the cedi equivalent of Three Thousand Two hundred and Fifty United States Dollars (US$3,250) bringing the total to Thirty-Nine Thousand United States Dollars (US $39,000) per annum. The Defendant was given vacant possession of the property on the 4th of January 2016 but because of the renovation works which had to be carried out to suit its taste payment of rent commenced on the 4th of March 2016. The Defendant paid rent of the cedi equivalent of US$ 39,000 for a year in advance from 4th March 2016. The Plaintiff alleged that the defendant breached the covenant to pay rent. Apart from non-payment of rent she complained about the Defendant’s failure to pay back the withholding tax it deducted from the rent advance. Again the plaintiff denied that the dispute had been resolved by the Rent Control department. The evidence of her attorney discloses that she discontinued the action at the Rent Control Department. This was shown by Exhibit “C”, a letter dated 20th November 2019 by which the Rent Control Department was informed that she was discontinuing the action. | P a g e 5 According to the Plaintiff as at 4th March 2020 the defendant was in arrears of rent totaling US$117,000. She complained that despite repeated demands the Defendant has failed to pay the rent arrears nor give her vacant possession of her premises. It is clear that the basis of the Plaintiff’s Claim is that the Defendant is in arrears of rent. Under Act 220 section 17(1)(a) of The Rent Act 1963( Act 220) where the rent due has not been paid within one month from the date it became due a tenant may be ejected. Section 17 1 (a) of Act 220 reads: ~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;…. In the course of his written address it was submitted by Learned Counsel for the defendant that the failure of the Plaintiff to prove when she handed over of vacant possession to the Defendant and the amount of rent received is fatal to her claim. I find it difficult to appreciate the force of counsel’s submission. As indicated earlier on the Statement of Defence was struck out. The Defendant therefore had no defence. A Defendant wishing to deny material averments in the Statement of Claim is required to specifically deny those averments. See the case of EVELYN ASIEDU OFFEI V YAW ASAMOAH [2019] 1GLT 138. In that case it was held that “The law is certain that a party who intends to deny an averment in a pleading must do so specifically”. | P a g e 6 The only occasion when the plaintiff’s attorney was challenged on his evidence was when he was cross-examined by learned counsel for the Defendant. In my view what Counsel put across during cross-examination of the Plaintiff’s attorney may be considered as the case the Defendant would have relied on had its defence not been struck out. The challenge of counsel could not therefore be substituted for evidence which should have been led by the defendant in the course of the trial. I am mindful that the object of cross examination is to establish facts which are favourable to the cross-examiner or to weaken the opponent’s case. I however take the view that a court can only consider the evidence of parties in the light of the pleadings filed by them. The authorities indicate that the pleadings form the basis of the respective case of each of the parties. Pleadings are defined in Order 82 rule 3 of C.I.47 as “the formal allegations by the parties to a lawsuit of their respective claims and defences with the intended purpose of providing notice of what is to be expected at the trial” In HAMMOND V ODOI [1982-83]1215 @1235 Crabbe JSC stated thus: “Pleadings are the nucleus around which the case - the whole case — revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead.” And in ACCRA-TEMA CITY COUNCIL V NTIM (1969) CC 62, the Court of Appeal underscored the vital role of pleadings thus: “It is the purpose of such pleadings that they should help to define the issues and to indicate to the party who asks for them how much of the range of possible evidence will be relevant and how much irrelevant to those issues.” | P a g e 7 In this case the defence which the defendant raised through cross-examination did not arise on the pleadings. In the absence of the Statement of Defence a Defendant is deemed to admit all the facts pleaded in the Statement of Claim for an averment not denied is deemed to be admitted thus relieving a plaintiff of the burden of proving the allegations contained in the statement of claim at the trial. The position is made very clear by a host of authorities. See the cases of COLLISON V TAGOE [1997-98] 1 GLR 76, HESSE V ACCRA MUNICIPAL COUNCIL [1964] GLR 399 and ADDO V ASARE [1967] 1 GLR 231 Order 11 rule 13(1) and Order 11 Rule 14 of C.I 47 also provides “(1) Subject to subrule (4) of this rule any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it. In my opinion since there was no challenge to the facts contained in the Statement of Claim the Plaintiff was relieved of the burden of calling additional evidence to prove her claim. I agree with Learned counsel for the plaintiff that the defendant is “using the backdoor to raise a non-existent burden on the plaintiff to prove vacant possession”. Aside the Pleadings there is evidence to support the Plaintiff’s case that the Defendant is in arrears of rent and has failed to pay back the portion of the withholding tax it deducted. I have no reason to doubt that the plaintiff’s attorney told the court the truth. The Defendant had no justification in not paying these monies to the plaintiff. On the evidence, I find that the defendant has failed to pay rent and that as at 4th March 2020 it was in arrears of rent totaling US$117,000. In the case of GYATO V PIPIM [1980] GLR 71 it was held that under the Rent Act, 1963, the landlord's right to commence proceedings for recovery of possession or ejectment for non-payment of rent accrues to him 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. On the authorities I hold that | P a g e 8 the plaintiff is thus entitled as she seeks in relief (2) of her claim to have recovery of possession. This brings me to the order for interest and mesne profits which were two reliefs endorsed on the writ. The law is very well- settled on what constitutes “Mesne Profits”. At Page 237 of his book GHANA LAW OF LANDLORD AND TENANT 2017 Edition by A.K.P.KLUDZE the learned author has this to say on the subject: “Mesne profits represent damages for loss of possession during the period that the tenant remains in occupation after the issue of the writ”. The Plaintiff discharged the onus on her by leading evidence to show that there was tenancy arrangement for which rents could be demanded. There is the evidence of her attorney that as at 4th March 2020 the Defendant owed rent arrears of $117,000 and that since that date the Defendant has been in occupation of the property and has failed to pay rent. I accept the evidence of the Plaintiff’s Attorney there being no reason to suppose otherwise. In all the circumstances, I think the monthly rent of $3,250 represents a fair rental value of the property and the Defendant must pay mesne profits at that rate. The evidence also discloses that the Defendant remains in possession of the property. It is thus liable to pay mesne profits till it surrenders vacant possession of the property to the plaintiff. The Plaintiff also claimed interest. The authorities indicate that if money is not paid when due and an action has to be taken in court to recover it interest must be exacted on the unpaid sum from the date it became due. The basis for the award of interest has been that a person who has unjustifiably kept money which properly ought to have gone to its owner should not be permitted to benefit by having the money in his possession and enjoying the use of it. As was said by Lord Herschell L.C in LONDON, CHATHAM AND | P a g e 9 DOVER RAILWAY CO. V. SOUTH EASTERN RAILWAY CO. [1893] A.C. 429 AT 437, H.L. "when money is owing from one party to another and that other is driven to have recourse to legal proceedings in order to recover the amount due to him, the party who is wrongfully withholding the money from the other ought not in justice to benefit by having that money in his possession and enjoying the use of it, when the money ought to be in the possession of the other party who is entitled to its use.” See also the case of GHANA COMMERCIAL BANK V BINOO-OKAI [82-83] GLR 74. The evidence discloses that despite repeated demands the Defendant has failed to pay what it owes the Plaintiff. If these monies had been paid, the Plaintiff could have had the benefit of it. But they were not paid. The claim for interest will therefore be allowed. The authorities establish that interest is exigible up to the date of final payment. See the case of CITY & COUNTRY WASTE LTD V ACCRA METROPOLITAN ASSEMBLY [2007- 2008] 1 SCGLR 409. I am satisfied in the result that the Plaintiff has established her claim and is entitled to succeed in this action. There will be Judgment for the Plaintiff against the defendant for: 1. A declaration that the lease between her and the Defendant dated 25th November 2015 is forfeited. 2. Recovery of possession of the Three-Storey property known as Block No 5 situated along the Accra-Winneba Road beside Prudential Bank Ghana Ltd Weija Branch in the Greater Accra Region. 3. An order to recover the cedi equivalent of US$117,000 being the accumulated arrears of rent due and owed by the Defendant as at 4th March 2020. 4. An order to recover the cedi equivalent of $3,120 being the Plaintiff’s portion of withholding tax deducted but not paid to GRA by the Defendant. | P a g e 10 5. An order to recover mesne profits of the cedi equivalent of $3,250 per month from 4th March 2020 till the defendant yields vacant possession of the Three-Storey property known as Block No 5 situated along the Accra-Winneba Road beside Prudential Bank Ghana Ltd Weija Branch in the Greater Accra Region. 6. Interest is to be assessed on Reliefs 3, 4 and 5 at the prevailing Bank rate until date of final payment. 7. The Plaintiff is awarded Costs of Ten Thousand Ghana Cedis (GHC10,000.00). (SGD.) H/L OLIVIA OBENG OWUSU (MRS.) JUSTICE OF THE HIGH COURT COUNSEL: KWAME ADUABENG YANKYERA FOR PLAINTIFF PRESENT HOPE AGBOADO H/B FOR JUSTIN AMENUVOR DEFENDANT PRESENT REFERENCES. CASES 1. BANK OF WEST AFRICA LIMITED V ACKUN 1963 1 GLR 176. 2. EVELYN ASIEDU OFFEI V YAW ASAMOAH [2019] 1GLT 138 3. HAMMOND V ODOI [1982-83]. 4. ACCRA-TEMA CITY COUNCIL V NTIM (1969) CC 62, | P a g e 11 5. 6. 7. COLLISON V TAGOE [1997-98] 1 GLR 76. HESSE V ACCRA MUNICIPAL COUNCIL [1964] GLR 399 ADDO V ASARE [1967] 1 GLR 231 8. GYATO V PIPIM [1980] GLR 71 9. LONDON, CHATHAM AND DOVER RAILWAY CO. V. SOUTH EASTERN RAILWAY CO. [1893] A.C. 429 AT 437, H.L. 10. CITY & COUNTRY WASTE LTD V ACCRA METROPOLITAN ASSEMBLY [2007- 2008] 1 SCGLR 409. 11. DALEX FINANCE AND LEASING COMPANY LTD VRS EBENEZER DENZEL AMANOR AND 2 ORS (2021) 172 GMJ 256. 12. GHANA COMMERCIAL BANK V BINOO-OKAI [82-83] GLR 74. BOOKS 1. GHANA LAW OF LANDLORD AND TENANT 2017 Edition by A.K.P.KLUDZE STATUTE 1.The High Court (Civil Procedure) Rules, 2004 (C.I. 47). | P a g e 12