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JUDGMENT:
The Plaintiff, Continental
Terminals Limited, has sued the
Defendants, jointly and
severally. The 1st
Defendant is Ghana Ports &
Harbours Authority; the 2nd
Defendant is James Ben Gaisie,
Estate & Environmental Manager
of 1st Defendant
Company; and the 3rd
Defendant is Richard Deih,
General Manager, Estate of 1st
Defendant Company. The reliefs
being claimed by the Plaintiff
are as follows:
1.
Declaration that the
Defendants’ refusal to accept
payment of rent arrears by the
Plaintiff is in breach of
section 29 of the Conveyance
Act, 1973 (NRCD176).
2.
Relief
against forfeiture upon such
terms as may be just and
equitable.
3.
An
injunction restraining the
Defendants from re-entering or
re-possessing the demised
premises; and
4.
Such
other relief or reliefs as the
justice of the case requires.
The Plaintiff’s case as per its
amended Statement of Claim is
that by a Lease Agreement (“the
Lease”) dated 7th
September, 2007, the 1st
Defendant demised to it a parcel
of land at the Tema Port for the
construction of a port warehouse
and container terminal complex.
By the terms of the Lease,
Plaintiff was required to
commence development of the
demised parcel of land within
one year and to complete same
within three (3) years.
According to the Plaintiff, 1st
Defendant approved its
structural drawings and
Plaintiff proceeded to develop
the demised land by clearing it
of bush, grading and partly
filling the site, and erecting
concrete posts along the
boundary line of the land.
It is however the Plaintiff’s
claim that development slowed
down considerably due to delay
in the disbursement of a term
loan facility from the
Agricultural Development Bank
(ADB) which delay also led to it
falling into arrears of rent.
Plaintiff contends that its
financial challenges was
compounded by the inability of
its sister company, Cargo
Systems Limited, to fund its
project. Plaintiff further
claims that by a letter dated 28th
August, 2009 it presented to the
1st Defendant the
full payment of its rent arrears
as demanded by the 1st
Defendant by letter dated 18th
August, 2009 but same was
declined upon instruction by the
2nd and 3rd
Defendants. Plaintiff also
claims that the 2nd
and 3rd Defendants
are using the 1st
Defendant as a cover to deprive
the Plaintiff of the lease and
to allocate the demised land to
their favourites, contrary to
Article 284 of the 1992
Constitution.
The Plaintiff contends further
that the Defendants have
threatened to re-enter the
demised land and re-possess same
and unless restrained by the
Court, the Defendants’ conduct
will result in consequent
inconvenience, hardship and
irreparable harm to the
Plaintiff. It is Plaintiff’s
further case that it shall be
lawful for the 1st
Defendant to re-enter the
demised land if any covenant on
the Plaintiff’s part shall not
be duly performed or observed.
However the 1st
Defendant failed to exercise
that option and on the contrary
requested the Plaintiff, by a
letter dated 18th
August, 2009, to settle its rent
arrears and rent advance. Thus,
according to the Plaintiff, the
1st Defendant
therefore waived or is deemed to
have waived the right to forfeit
the lease.
The Plaintiff denied receiving
the 1st Defendant’s
letter dated 26th
August 2009 in which the 1st
Defendant is alleged to have
communicated its decision to
re-enter the said land to the
Plaintiff. The Plaintiff
contends that if the said letter
exists at all, it could only
have been created by the
Defendants purposely for
litigation. The Plaintiff
contends further that the 2nd
and 3rd Defendants
instructed their subordinate not
to receive payment of rent from
the Plaintiff when same was
presented in their bid to take
over the demised land for
re-allocation to their favourite
nominee. That, the 2nd
and 3rd Defendants
were under a duty under the
Directive Principles of State
Policy, the 1992 Constitution,
not to use the cover of the 1st
Defendant to act in a manner
that was capricious.
In their defence, the Defendants
contend that 1st
Defendant allocated the demised
land to the Plaintiff for
development of a multi-user
distribution centre subject to
terms and conditions contained
in the offer letter dated 9th
February 2006, and which terms
were accepted by the Plaintiff
per its letter of 22nd
February, 2006. That, on 7th
September 2007, the Plaintiff
and 1st Defendant
executed a Lease. The Defendant
contends that the Plaintiff has
breached the terms and
conditions of both the offer
letter and the Lease Agreement
in respect of failure of
Plaintiff to develop the land
and failure to pay rent during
the three(3) year period in
accordance with the said terms
and conditions. The Defendants
deny, however Plaintiff’s
assertion that the accrual of
rent arrears and the delay in
its development of the land was
because of its sister company’s
(i.e. Cargo Systems Limited)
inability to feed the Plaintiff
with funds. 1st
Defendant contends further that
Plaintiff’s assertion is untrue
since the Plaintiff in a letter
dated 9th July 2009
to the Minister of Transport
admitted facing difficulty in
raising the requisite funds to
pay its annual rents and also to
commence construction on the
said land (which letter was
forwarded to the 1st
Defendant by the Ministry dated
3rd August, 2009).
According to the 1st
Defendant, the Plaintiff has
failed to pay its rent for three
(3) years thereby compelling the
1st Defendant to
write to the Plaintiff on
several occasions demanding
settlement of outstanding rent
arrears due and owing to the 1st
Defendant. 1st
Defendant also denies that there
has been any development on the
said land by the Plaintiff.
According to the 1st
Defendant, it approved the
development of the land
according to Plaintiff’s
proposal submitted to the 1st
Defendant, and that the
Plaintiff never commenced any
construction on the said land.
Accordingly, the 1st
Defendant on 26th
August, 2009 duly notified the
Plaintiff of its decision to
re-enter the land citing the
breach by the Plaintiff of the
terms and conditions in the
offer letter and the Lease
Agreement.
1st Defendant
contends that the 2nd
and 3rd Defendants
are its employees who acted in
the course of their employment
and their being joined as
parties to the suit is vexatious
and an abuse of the process of
court. The 1st
Defendant contends further that
since the Plaintiff has failed
to develop the said land, same
has been re-entered by the 1st
Defendant and any relief against
forfeiture had been overtaken by
the event of re-entry on 26th
August 2009, as communicated to
the Plaintiff by the said
letter. This information was
subsequently communicated to the
Plaintiff’s Managing Director,
Mr. Osei Sarfo-Bonsu and two
other officers of Plaintiff on
28th and 31st
August, 2009 respectively when
they came to make payment of
plaintiff’s rent arrears. 1st
Defendant denies that Plaintiff
has suffered irreparable harm
since no development has taken
place on the said land in breach
of the terms and conditions
governing the Lease. And that
the Plaintiff is not entitled to
its claim. The Defendants thus
counterclaimed against the
Plaintiff as follows:
a.
Recovery of possession of all
that piece or parcel of land as
leased to the Plaintiff if the
Plaintiff has indeed not
received the letter of 26th
August 2009;
b.
Damages for breach of contract,
and
c.
Costs.
From the pleadings and the
evidence adduced the issues
identified by the Court for
determination are as follows:
1.
Whether or not the Plaintiff’s
non-payment of outstanding rent
entitled the 1st
Defendant to re-enter the land
in question and forfeit the
lease.
2.
Whether or not the Plaintiff is
in breach of the covenant to
commence development of the land
within one year from the date of
right of entry and to complete
the buildings within 3 years.
3.
Whether or not 1st
Defendant has re-entered the
land in question and whether the
1st Defendant is
entitled to recover possession
of the land.
4.
Whether or not the Plaintiff is
entitled to relief against
forfeiture.
5.
Whether or not the 2nd
and 3rd Defendants
used the 1st
Defendant as a shield to pursue
their private agenda of
depriving the Plaintiff of the
lease and allocating it to their
favourite.
1.
Whether or not the Plaintiff’s
non-payment of outstanding rent
entitled the 1st
Defendant to re-enter the land
in question and forfeit the
lease
The evidence before the Court is
that, the Plaintiff, by a
written application dated 2nd
November 2005 (Exhibit “1”)
applied to the 1st
Defendant for lease of land for
the development of a
distribution centre. The
facilities to be developed were
proposed in Exhibit “1” as
follows:
-
Two warehouses measuring 4,200
square meters in area
-
Open storage areas for holding
containers, iron and steel
produced and vehicles.
-
Vehicle repair maintenance
facility
-
Offices and customs facilities.
The 1st Defendant by
an offer letter dated the 9th
of February 2006 (Exhibit “2”)
offered the Plaintiff the land
upon the terms contained in that
letter. The Plaintiff accepted
this offer by a letter dated 15th
March 2006. Subsequently, the
Plaintiff and 1st
Defendant executed a Lease
Agreement dated 7th
September 2007 (Exhibit “G”) for
a term of 25 years at a yearly
rent of US$34,000.00 or its
equivalent in cedis payable half
yearly in advance.
By clause 2 (a) of the Lease the
Plaintiff made a covenant to pay
rent in accordance with the
terms of the Lease. The Lease
stated clearly in clause 1 that
the rent was an annual rent of
US$34,000.00 to be paid half
yearly in advance by the
Plaintiff. It is not in dispute
that over the years the
Plaintiff had failed to pay rent
in accordance with the terms of
the Lease and was therefore in
breach of clause 2(a) of the
Lease. The Plaintiff in his
evidence in chief admitted that
he had received demand letters;
Exhibit “7” dated 19th
May 2008; Exhibit 8 dated 5th
March 2008; Exhibit “9” dated 3rd
July, 2008; Exhibit 10 dated 18th
February 2009; and Exhibit 11
dated 18th August
2009). The schedule, Exhibit
“13” tendered in evidence by the
2nd Defendant showed
that the Plaintiff from the time
it accepted the offer of the
Lease had paid only US$9,940 out
of a total of US$119,000 due to
the 1st Defendant for
the period July 2006 to December
2009.
Clause 5 (a) of the Lease
provides as follows:
“(a) If the yearly rent
hereby reserved or any part
thereof shall be in arrears for
three (3) calendar months
whether formally demanded or not
if the Lessee shall enter into
liquidation whether compulsory
or voluntary (not being merely a
voluntary liquidation for the
purpose of amalgamation or
reconstruction) or if any
covenant of the Lessee’s part
shall not be duly performed and
observed it shall be lawful for
the Authority to re-enter upon
the said Demised Premises or any
part thereof in the name of the
whole and thereupon this Demise
shall absolutely determine but
without prejudice to the rights
of action of the Authority in
respect of any antecedent breach
of any of the Lessee’s covenants
herein contained.”
I will therefore find that per
the Lease Agreement the
Plaintiff’s breach of the
covenant to pay rent entitles
the 1st Defendant to
re-enter the demised land.
2. Whether or not the Plaintiff
is in breach of the covenant to
commence development of the land
within one year from the date of
right of entry, and to complete
the buildings within 3 years.
By clause 2 (d) of the Lease the
Plaintiff made a covenant to
commence development of the land
within one year from the date of
right of entry and to complete
the building or buildings within
3 years from the same date. No
building was to be developed or
altered without the previous
approval of the 1st
Defendant. The evidence shows
that the 1st
Defendant gave the Plaintiff the
right of entry onto the land by
a letter dated 17th
October, 2007 (Exhibit “5”).
The Plaintiff contends that it
has not violated clause 2(d)
because it had commenced
development within the said year
by grading and filling the land
and putting concrete pillars
along the borders of the land.
The Plaintiff, by the rules of
evidence has the burden of
producing sufficient evidence to
persuade the Court that the
alleged “development of the
demised premises” did take
place.
In proof of the alleged filling
and grading the Plaintiff
tendered in evidence through
P.W.2 (Solomon Tseh Wuve)
Exhibit “1”, which is the Bill
of Quantities dated 29th
September 2009 for an amount of
GH¢352,888. According to PW2,
this was evidence that the land
had been graded and filled. It
is however trite learning that
Bill of Quantities “itemises the
work described in the drawings
and specification” (Halsbury’s
Laws of England 4th
Edition Vol. 4 (3) Para 11
Footnote 6). Exhibit “1” is
therefore evidence of work yet
to be done and not work already
done. The Plaintiff was unable
to produce any receipt
indicating that any of these
items on the Bill had been
purchased within one year of 17th
October 2007. Moreover, Exhibit
“1” appears to have been
prepared one whole month after
the original writ was filed.
Indeed, Exhibit “1” was not
referred to in the original
writ. After Exhibit “1” was
prepared, the Plaintiff amended
its writ and made reference to
Exhibit “1” It is the view of
the Court that Exhibit “1” was
prepared purposely for the
instant case and can therefore
not be relied on.
In any case, even if the
Plaintiff had established that
it did grade and fill the land,
and place precast concrete posts
round the land, the question is;
do these acts constitute
“development of the demised
premises” within the meaning of
the Lease? I would say not.
For a better understanding of
Clause 2 (1) I shall quote the
entire clause as follows:
“To commence development of the
demised premises within one year
from the date of right of entry
and to complete the buildings
within 3 years from that same
date. The building or buildings
shall be in accordance with the
approved building code and
regulations and in conformity in
every respect with plans,
elevations, sections and
specifications previously
approved in writing by the
authority. No building on the
demised premises shall be
developed or altered in any
manner by the Lessee without
obtaining the prior written
approval of the Authority.”
Applying the basic principles of
interpretation to the Lease the
parties could only have intended
“development of the demised
premises” to mean development of
the buildings that the 1st
Defendant had by Exhibit “5”
previously approved. Any such
development of the buildings
would be visible for all to see
as against the alleged filling
or grading of the land, which
would not be visible to the
eye.
I will thus find that the
Plaintiff is in breach of the
covenant to commence development
of the land within one year from
the date of right of entry and
to complete the development
within 3 years.
3. Whether or not 1st
Defendant has re-entered the
land in question and whether the
1st Defendant is
entitled to recover possession
of the land.
As stated above, Clause 5 (a) of
the Lease grants the 1st
Defendant the right of re-entry
if the yearly rent or any part
of it remained in arrears for 3
calendar months whether formally
demand or not or if the
Plaintiff failed to perform any
covenant in the Lease. It is
therefore established that a
right of re-entry or forfeiture
exists in the Lease.
In determining this issue the
Court will be guided by the
provisions of the Conveyance
Decree, 1973 (NRCD 175), Section
29 (1) and (2) of NRCD 175 which
provides as follows:
“Section 29 – Restriction on
Re-Entry and Forfeiture
(1)
A
right of re-entry or forfeiture
under a provision in a lease fro
a breach of a covenant,
condition or an agreement in the
lease is not enforceable, by the
action or otherwise, until
(a)
the
lessor serves on the lessee a
notice,
(i)
Specifying the particular breach
complained of,
(ii)
Requiring the lessee to remedy
the breach, if the breach is
capable of remedy.
(iii)
Requiring the lessee to make
reasonable compensation in money
for the breach except where the
breach consists of a non-payment
of rent.
(b) the lessee has knowledge of
the fact that the notice has
been
served, and
(c) the lessee fails, within a
reasonable time after the
service of the
notice under paragraph
(a); to remedy the breach, if it
is capable
of remedy.
And except where the breach
consists of a non-payment of
rent, to make reasonable
compensation in money, to the
satisfaction of the lessor, for
the breach.
(2)
Where
the notice is sent by registered
post addressed to a person at
the last known postal address in
the Republic of that person
then, for the purposes of
subsection (1), that person
shall be deemed, unless the
contrary is proved, to have had
knowledge of the fact that the
notice had been served as from
the time at which the letter
would have been delivered in the
ordinary course of post.”
Sections 29 and 30 of NRCD 175
were interpreted in the case of
Western Hardwood Enterprises
Ltd. & Another v. West African
Enterprises Limited (1998) SCGLR
105 where the Supreme Court
held as follows:
“(4) Section 29 of the
Conveyance Decree, 1973 (NRCD
175), required that the lessee
be served with notice of the
breach of any covenant in the
lease complained of, and must
have knowledge of the fact that
such notice had been served
before the right of re-entry
could be exercised.
Furthermore, the enforceability
of the re-entry or forfeiture
under the lease should have been
by action or otherwise, and by
section 30 (1) where the lessor
proceeded by action or otherwise
to enforce his right of re-entry
or forfeiture under the
provisions in a lease or for
non-payment of rent, the lessee
might either in the lessor’s
action or in any action brought
by such person for that purpose
apply to the court for relief
against forfeiture.”
So, did the 1st
Defendant serve on the Plaintiff
a notice of the breaches, and
requiring the Plaintiff to
remedy the breaches? And is the
Plaintiff aware of the service
of such notice? It was the 1st
Defendant who made a case for
re-entry of the land and
therefore bore the onus to prove
that it had satisfied the legal
requirements. It is the
Plaintiff’s contention that it
was only after the receipt of
the Writ of Summons and
Statement of Claim that the
Defendants filed a defence
stating for the first time that
on the basis of the Plaintiff’s
breach of all material
conditions in the Lease and in
order to restore order, it had
decided to invoke its powers to
re-enter the land and
consequently notified the
Plaintiff of its decision to
re-enter the land. 1st
Defendant however contends that
it served several rent demand
notices (Exhibits “7”, “8”, “9”,
“10” and “11”) on Plaintiff
notifying the Plaintiff of its
breach of the covenant to pay
rent. As already stated the
Plaintiff does not deny
receiving these notices. 1st
Defendant contends further that
the Plaintiff continued its
violation of the covenant to pay
rent and paid only US$9,940 out
of the total of US$119,000.00
due to the 1st
Defendant for the period July
2006 to December 2009. By the
time the Plaintiff presented the
outstanding balance of the rent
the 1st Defendant had
taken a decision to re-enter the
land and refused to accept the
balance.
The 1st Defendant
also contends that it sent a
letter to the Plaintiff dated 26th
August, 2009 informing the
Plaintiff that it had re-entered
the land. However the Plaintiff
claims it never received the
said letter (Exhibit “14”). I am
wondering how come Plaintiff
suddenly went to pay the
outstanding balance on the rent
on 28th August, 2009
and not before. Exhibit “14”
is dated 26th August,
2009. The evidence is that
Plaintiff had received all other
communications sent by 1st
Defendant to Plaintiff with the
exception of Exhibit “14”. I
find that difficult to accept
and will therefore find that it
is more likely than not that
Plaintiff did receive Exhibit
“14”.
Counsel for the Plaintiff has
submitted in his written address
that 1st Defendant’s
claim that it has re-entered the
land is founded on the
misconception that by merely
writing and delivering Exhibit
“14” giving notice to the
Plaintiff that the 1st
Defendant’s “had decided to
re-enter” the land, the 1st
Defendant is deemed to have
actually, either re-entered the
land and/or effectively
forfeited the Lease. Counsel
submitted further that in so far
as the 1st Defendant
sought by Exhibit “14” to
re-enter the land and forfeit
the Lease, it was mandatory that
the 1st Defendant
complied strictly with section
29 (1) of NRCD 175 in terms of
the content of any such letter.
Among other things, the 1st
Defendant was under obligation
to specify a particular breach
of the parties lease agreement
that the tenant had committed.
According to Counsel, there must
also be a request by the 1st
Defendant on the tenant to
remedy that alleged breach. The
landlord is also required to
give the tenant a reasonable
time within which the tenant was
to remedy the breach. Then
finally, the landlord is
required to demand compensation
to be paid by the tenant in
appropriate cases. It is
therefore Plaintiff’s position
that neither Exhibit “H” nor
Exhibit “14” complied with the
requirements of law.
I beg to differ. In my opinion
what section 29 (1) (a) states
is that the lessor should serve
the lessee notice; (1)
specifying the particular breach
complained of. 1st
Defendant stated in Exhibit “14”
that Plaintiff had not commenced
development as agreed in the
lease and was in arrears for
more than three (3) months, thus
satisfying this requirement; (2)
if the breach is capable of
remedy, requiring the lessee to
remedy the breach. In my
opinion, this provision is not
mandatory; and (3) (except where
the breach consists of a
non-payment of rent) requiring
the lessee to make reasonable
compensation in money for the
breach. It is my opinion that
this does not apply in the
instant case.
In any case even if Plaintiff
was not aware of Exhibit “14”,
the 1st Defendant per
its counterclaim has
unequivocally made a claim for
recovery of possession of the
land has exercised its right of
re-entry.
It is settled law that “A
writ that unequivocally claims a
right to recover possession (as
distinct from one which includes
alternative claims for
injunction based on the lease
and its covenants continuing to
exist) operates as a re-entry in
law and so brings about
forfeiture as soon as it is
served on the tenant.”
(The Law of Real Property, Sir
Megarry and H.W.R. Wade, Steven
& Son’s Limited, 1984 Pg 672).
In Halsbury’s Laws of England, 4th
Edition, 2006 Reissue, Vol.27
(1) para 609 headed; “What
amounts to re-entry”. It
states as follows:
“The terms of proviso for
force-entry that if the
landlord elects to determine the
lease for forfeiture, he must do
so by re-entry which the
Landlord may effect by either
physically entering the premises
with the intention of
determining the tenancy or by
the issue and service of
proceedings for the recovery of
possession of the premises...
Actual entry is not necessary to
take advantage of the
forfeiture. When the cause of
forfeiture becomes complete, the
landlord may being a claim to
recover possession, and the
bringing of a claim to recover
possession in equivalent to
actual re-entry.”
I will therefore find that 1st
Defendant, having demonstrated
that it has satisfied the
preconditions for the exercise
of the right of re-entry under
section 29 of NRCD 175 and
having re-entered the land by
counterclaiming unequivocally
for recovery of possession, is
entitled to recover possession
of the land.
(4) Whether or not the Plaintiff
is entitled to relief against
forfeiture.
It is trite learning that a
lessor may become entitled to
forfeit the lease. Forfeiture
prematurely terminates the lease
before the expiration of the
period created. A lessor does
not automatically become
entitled to forfeit a lease for
breach of covenant or condition
to be performed or observed on
the lessee. The right to
forfeit for breach must be
expressly contained in the lease
otherwise the lessor cannot
exercise it. The right of
forfeiture can be enforced by
re-entry or by an action for
possession. A lessor entitled
to forfeiture can enforce his
right by peaceably re-entering
the land. The normal method for
effecting a forfeiture however
is by an action for possession.
In the instant case, I have made
a finding that the 1st
Defendant has a right to
forfeit. The right of forfeiture
is one vested in the lessor
which he can either exercise or
not exercise as he pleases. A
lessor may therefore waive his
right of forfeiture. Counsel for
Plaintiff has submitted that the
demand for rent as contained in
Exhibits “7”, “8”, “9”, “10”,
and “11” amounts to a waiver of
the right to forfeit the lease
for non-payment of rent. In my
opinion, the 1st
Defendant herein would be deemed
to have waived its right to
forfeiture if it had accepted
the rent presented to it on 28th
August, 2009. The said exhibits
only served as notice to the
Plaintiff of the breach of
covenant.
The issue is whether the
Plaintiff is entitled to relief
against forfeiture. The
position of the law is that
after the lessor has given
notice as required and taken
steps to enforce forfeiture, the
tenant may apply to court for
relief against forfeiture.
Section 30(1) and (2) of NRCD
175 provides as follows:
“Section 30 – Relief against
Re-Entry and Forfeiture
“(1) Where a lessor is
proceeding by action or
otherwise to enforce a right of
re-entry or forfeiture under a
provision in a lease, or for
non-payment of rent, the lessee
of the property and also a
sublease of the property
comprised in the lease or a part
of the lease may, in the
lessor’s action or in an action
brought by that person for that
purpose, apply to the court for
relief.
(2) Subject to subsection (1)
of section 29, where a lessee
applies to the Court for relief,
the Court may grant or refuse
the relief having regard to the
proceedings and conduct of the
parties and to the other
circumstances.
(3)
A
Relief granted under subsection
(20 may be on the terms as to
costs, expenses, damages,
compensation, penalty or
otherwise, including the
granting of an injunction to
restrain a similar breach in the
future, that the Court in the
circumstances of each case
thinks fit.
(4)
Where
a sublease applies to the Court
for relief, the Court may make
an order vesting, for the whole
term of the lease or a lesser
term, the property comprised in
the lease or a part of the lease
in that sublease on the
conditions as to execution of a
deed or any other document,
payment of rent, costs,
expenses, damages, compensation,
giving security or otherwise
that the Court in the
circumstances of each case may
think fit, but the sublease is
not entitled to require a lease
to be granted to the sublease
for a longer term than the
sublease had under the original
sublease.”
In granting the relief, the
court takes into account the
proceedings and conduct of the
parties and all other
circumstances. The court, if it
grants relief, may do so on such
terms as to costs, expenses,
damages, compensation or penalty
as it thinks fit. The court may
also grant an injunction to
restrain a similar breach in the
future if it thinks it is a
proper case to do so: section
30(2) of NRCD 175. In the
instant suit the Plaintiff is
claiming an injunction
restraining the Defendants from
re-entering or re-possessing the
demised premises.
Despite the fact that the
Plaintiff herein alleged in its
pleadings and also tried to
demonstrate that it had incurred
expenses in a total sum of
GH¢655,543.00, P.W.2 testified
that over four (4) years, the
only amount that the Plaintiff
had been able to pay was
GH¢5,000.00 allegedly owed to
Debrah & Associates. The cost
of the alleged filling and
grading of the land, and
erection of precast concrete
pillars in the sum of
GH¢359,565.00 remain unpaid.
The Plaintiff, in my opinion,
never demonstrated its ability
to fulfil its obligations in the
lease. The Plaintiff did not
demonstrate that it was capable
of developing the project as
stipulated in its proposal. It
would probably have helped the
Plaintiff’s case if it had paid
into Court the amount of
GH¢109,060.00 rent arrears which
it had attempted to pay to the 1st
Defendant but which had been
rejected; but the Plaintiff did
not do this. In my opinion, 1st
Defendant was right on refusing
to accept payment of the rent
since an acceptance would have
been deemed as a waiver of its
right to forfeit the lease; see
Interplast Limited v. Bonsu
(1979) GLR 285.
The Plaintiff itself stated in
its pleadings that the reason
for its inability to perform
with regard to the development
works and payment of rent was
due to the delay of the ADB to
disburse in a timely manner a
term loan facility which the
Plaintiff had applied for to
undertake the project, with the
Plaintiff using the demised
property to secure its repayment
obligation with the consent and
approval of the 1st
Defendant given by a letter
dated 31st October
2007. Plaintiff stated further
that its “precarious financial
position” was compounded by the
inability of its sister company,
Cargo Systems, incorporated in
2008, to feed the Plaintiff with
funds as projected, consequent
upon the 1st
Defendant’s refusal to allocate
cargo to the said Cargo Systems
Limited after being licensed as
a stevedoring company. In my
view, there is nothing placed
before the Court to show that it
was a term or condition of the
Lease or the proposals submitted
by the Plaintiff that
development of the land would
only commence when funds had
been received from the bank or a
sister company.
Furthermore, the 1st
Defendant provided whatever
assistance it could to the
Plaintiff when by a letter dated
31st October 2007
(Exhibit “L”) 1st
Defendant gave its consent to
the use of the land as security
to repay the term loan being
sought by the Plaintiff from
ADB. Exhibit “L” at paragraph 2
clearly stated that the grant of
consent was “without prejudice
to all the terms, conditions,
stipulations and covenants”
contained in the Lease. It is
also my opinion that by the time
the license was issued to Cargo
Systems, the Plaintiff was
already in violation of clauses
2(a) and 2(d) of the Lease. The
incorporation of this company
therefore could not have in any
way contributed to the fortunes
of the Plaintiff.
In my opinion, Plaintiff did not
take any steps which would make
it inequitable not to grant this
relief. I will therefore find
that in the circumstances of the
case, the Plaintiff is not
entitled to relief against
forfeiture.
5. Whether or not the 2nd
and 3rd Defendants
used the 1st
Defendant as a shield to pursue
their private agenda of
depriving the Plaintiff of the
lease and allocating it to their
favourite.
The Plaintiff’s case is that the
2nd and 3rd
Defendants used the 1st
Defendant as a shield to pursue
their private agenda of
depriving the Plaintiff of the
lease and allocating it to their
favourite. It is trite learning
that he who asserts must prove.
The Plaintiff therefore bore the
burden of producing sufficient
evidence to prove the allegation
made by him against the 2nd
and 3rd Defendants.
In my opinion the Plaintiff did
not adduce a scintilla of
evidence to prove this
allegation. P.W.1, in his
evidence in chief simply
repeated the averments pleaded
and stated as follows:
“We made them parties to the
action, in the first place the
original demand notice came from
the 2nd Defendant
office so when we tendered the
rent arrears as well as the rent
advance the secretary received
it stamped as having received
the cheques as well as the
letter on the same day. The
system is that after you have
received you have to send it to
the cashier to process the
payment. But when we went to
the cashier the cashier said
that he has received
instructions from the 2nd
Defendant not to process it. I
tried to contact the 2nd
Defendant on the phone the phone
was off, the 3rd
Defendant’s phone was off I
chase them out the office and
outside and later on I was able
to get the 2nd
Defendant on the phone. The 2nd
Defendant told me on the phone
that it was the 3rd
Defendant who instructed him not
to process our payment and we
suspected that they were up to
some tricks because it’s done
there projects are taken away
from..”.
It has been held in the
oft-cited case of Majologbe
v. Larbi & Ors [1959] GLR 190,
that”
“Proof in law is the
establishment of facts by proper
legal means. Where a party makes
an averment capable of proof in
some positive way, e.g. by
producing documents, description
of things, reference to other
facts, instances, or
circumstances, and his averment
is denied, he does not prove it
by merely going into the witness
box and repeating that averment
on oath, or having it repeated
on oath by his witness. He
proves it by producing other
evidence of facts and
circumstances, from which the
Court can satisfy that what he
avers is true”.
In the circumstances I will find
that Plaintiff has not proved
its assertion that the 2nd
and 3rd Defendants
are using 1st
Defendant as a shield to pursue
their private agenda.
1st Defendant has
counterclaimed for damages for
breach of contract. Counsel for
the Defendants, in her written
address, submitted that since
the Plaintiff failed to give up
possession of the land upon
determination of the Lease, the
1st Defendant is
entitled to damages in the form
of mesne profits. I have taken
note of the fact that the
Defendants’ claim is for damages
for breach of contract
simpliciter. There is no claim
for mesne profits. In any case,
in my opinion, Counsel’s
submission is misconceived.
Where a lessee wrongfully
deprives a lessor of his land,
the lessor will generally wish
to recover the land itself and
not the value of the land.
Damages will thus generally be
limited to loss arising from the
period of wrongful occupation by
the lessee. Such damages are
recoverable in the action for
mesne profits, in origin an
action of trespass. In the case
of Hasnem Enterprises Ltd v
IBM World Trade Corporation
[1993-94] 1 GLR 172 relied
on by Counsel, Benin J quoted
Goddard LJ in Bramwell v
Bramwell [1942] 1All ER 137 at
138, CA as follows:
“....a claim for mesne
profits can be joined with an
action for the recovery of land,
and mesne profits is only
another term for damages for
trespass, damages which arise
from the relationship of
landlord and tenant.”
But more importantly, in my
view, this suit does not call
for a damage claim. This is a
case in which the Defendants are
resisting a claim for relief
against forfeiture, and the
Defendants have also claimed for
recovery of possession of the
land in question. Defendants
have succeeded in both, and so
what have they lost? It is trite
learning that for the court to
make an award for damages the
Defendants have to establish the
basis for damages. There is no
evidence placed before the court
as to the basis. I will
therefore find that Defendants
are not entitled to damages.
In conclusion I will dismiss
Plaintiff’s entire claim. I
find that Article 284 of the
1992 Constitution mentioned in
the Plaintiff’s pleadings is
misplaced. As a result, there is
nothing to be said on this
point. I will on the other hand
hold that 1st
Defendant is entitled to recover
possession of the land in
question. Defendants claim for
Damages for breach of contract
is dismissed.
Costs of GH¢5,000.00 awarded in
favour of Defendants
(SGD)
BARBARA ACKAH-YENSU(J)
JUSTICE OF THE HIGH COURT
COUNSEL
KWAKU PAINTSIL
- PLAINTIFF
MARIETTA APPIAH OPPONG
- DEFENDANTS
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