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JUDGMENT
ESSILFIE—BONDZIE, J. A. :
The plaintiff is the respondent
in this appeal and the
defendant/appellant. By her writ
of summons the plaintiff
instituted an action at the
Circuit Court on the 15th July,
1996 claiming
“(a) general damages against the
defendant for unlawfully
demolishing her store situated
on the first floor of House No.
D.756/4 Knutsford Avenue,
Accra.
(b) Loss of earnings from her
mattress business at the rate of
¢3 million per month from 15th
June, 1996.
(c) An order of the Court
directing the defendant to rent
an alternative store for the
plaintiff in the Central
Business.
(d) Any further order or orders
as to this Honourable Court
would deem fit” (Sic).
The plaintiff is a trader in
foam products. Her case was that
she rented a storeroom at House
No. D.756/4 Knutsford Avenue,
Accra from one Kwaku Baah. She
hired it for ten years at a
monthly rent of ¢15,ooo.oo. She
tendered Exhibit A which is
claimed as lease agreement. The
house belonged jointly to the
defendant and the late Kwaku
Wadie. Her evidence was that on
17th June, 1996 the defendant,
for no just cause demolished the
building in which she had her
store. As a result of the
demolition, her foam mattress
business fetching her about ¢3
million a month has collapsed.
The plaintiff told the court
that Kwaku Baah who leased the
store to her was the customary
successor of the late Kwaku
Wadie who died in 1988.
The plaintiff called one
witness, the said Mr. Kwaku Baah
as P.W. 1. P.W. 1 told the
court that his uncle was
one-third (1/3) owner of the
house with the defendant. His
uncle’s interest in the house
was contained in an agreement
between him (Wadie) and the
defendant dated 8th June, 1988
which was tendered as Exhibit C.
P.W.1 testified that on the 17th
June,1996 the defendant without
his knowledge as the customary
successor of the late Kwaku
Wadie demolished the house in
dispute and this completely
incapacitated the plaintiff’s
trading activities.
The defendant denied liability.
He claimed that by a conveyance
dated 7th July, 1965 and
registered as No. 558/1966
Exhibit 1—he acquired the house
from the Aschkhar brothers. The
late Kwaku Wadie acted as a
frontman in the acquisition of
the house. He therefore agreed
to give him one-third (1/3)
interest in the house. He said
he had been managing the house
since he bought it. He rents out
the rooms and collects the rent.
He stated that he did not know
the plaintiff as her tenant and
that the plaintiff is not a
tenant in the house in dispute.
He also denied that P.W. 1, who
did not have any power or
authority to do so granted the
plaintiff the alleged lease.
Judgment was given in favour of
the plaintiff and the defendant
dissatisfied with the judgment
has appealed to this court on
the ground that the judgment is
against the weight of evidence.
The defendant also filed a
number of additional grounds of
appeal. But it is my view that
the determination of the
original ground of appeal namely
“The judgment is against the
weight of evidence” will make
the other grounds irrelevant and
superfluous.
The plaintiff’s claim was that
it was Kwaku Baah who gave him
the 10 years lease in respect of
one room in House No. D.756/4
Knutsford Avenue, Accra on the
11th day of February, 1993. This
was confirmed by Kwaku Baah
(P.W.2) in his evidence. This
was done after the death of
Kwaku Wadie the uncle of P.W.1
in February, 1988. In her
evidence the plaintiff said “one
Kwaku Baah a nephew of one Kwaku
Wadie gave the store to me. The
portion where my store was, was
owned by Opanin Kwaku Wadie. He
is deceased. He was succeeded by
Kwaku Baah.”
The record reveals that when the
plaintiff called Kwaku Baah as
P.W. 1 (her only witness) in the
case, P.W.1 said inter alia.
“The defendant and my uncle
bought a house in Accra. My
uncle was Opanin Kwaku Wadie…. I
have a document witnessing the
joint purchase. I wish to tender
the document. No objection
Exhibit C. ”A look at Exhibit C
indicates plainly that the
building belonged to the
defendant and the late Kwaku
Wadie in the ratio of two is to
one. That is, the defendant who
bought the house in the name of
Kwame Owusu (see Exhibit 1) will
take two thirds and the late
Kwaku Wadie one third share.
Neither the evidence of the
plaintiff nor that of P.W.1
showed that the building was
ever physically partitioned in
the said ratio for each party to
know which part physically
belonged to him. In other words
in the lifetime of Kwaku Wadie
the building was not partitioned
in the ratio indicated in
Exhibit C. The evidence further
reveals that on the demise of
Kwaku Wadie, P.W. 1 and two
others including the wife of the
deceased were granted a joint
Letters of Administration to
administer the estate of the
late Kwaku Wadie. Thus under
cross-examination P.W. 1 made
the following admissions
“ Question: When your uncle died
in 1988 you took Letters of
Administration?
Answer: Yes
Question: This was in September,
1989?
Answer: I can’t remember the
date.
Question: See the Letters of
Administration. What is the
date?
Answer: 20th August, 1989.
Question: You took the Letters
of Administration with two other
persons namely Madam Okorewa
Dansoa and George Dantwa Wadie?
Answer: Yes.
Question: Margaret Danson is the
widow of your uncle?
Answer: Yes.
Question: George Dankwa is his
son?
Answer: Yes
Question: In 1991 Margaret
Danson sued in the High Court in
respect of Wadie estate?
Answer: Yes.
Question: This case was still
pending in 1993 when you
purported to grant the lease to
the plaintiff?
Answer: Yes.
Now the pertinent questions are
(1) Since the Letters of
Administration was obtained
jointly by Kwaku Baah (P.W. 1)
the widow and the son of the
late Wadie to administer the
estate of the late Kwaku Wadie,
did P.W. 1 have the legal
authority to grant the premises
to tenants without the consent
of the other administrators?
(2) Again since Exhibit C the
basis of P.W. 1’s claim
stipulates that the lease in
dispute belonged to the
defendant and the late Kwaku
Wadie in the ratio of two to one
and as there is no evidence that
the house was physically
partitioned nor the rooms shared
in accordance with the terms of
Exhibit C, did Kwaku Baah (P.W.
1) have the right to rent any of
the rooms to plaintiff without
the consent of the defendant?
It is obvious that the answers
to both questions should be in
the negative. I hold that the
alleged 10 years lease to the
plaintiff as depicted in Exhibit
A was invalid. I am strengthened
in my finding because the effect
of Exhibit C were that none of
the parties physically shared
the rooms. And it would be
against the terms of the
agreement for any one of the
parties to rent out any of the
rooms without the knowledge of
the other party. Exhibits A, B
and B1 were signed by P.W. 1
showing monies received from the
plaintiff. Plaintiff’s evidence
discloses that she paid these
monies as rents to Kwaku Baah
(P.W.1) when she knew that the
building belonged to the
defendant and the late Kwaku
Wadie in the ratio of two to one
(2/1). She testified as
follows:—
“I know that the building was
purchased from the Aschars by
the defendant and the late
Wadie. The defendant had a two
third share and Wadie one
third.”
Although she claimed that she
had a copy of an agreement about
the division of the premises to
the parties she failed to tender
it in evidence on the ground
that P.W. 1 was unwilling to
give her the original. She was
emphatic that it was P.W. 1 who
let the room to her in the face
of clear evidence that the
premises did not belong to P.W.
1 alone. Under the circumstances
the learned trial judge ought to
have found that the plaintiff
was in possession of the room in
the premises unlawfully. Kwaku
Baah (P.W. 1) alone without the
consent of the other
administrators of the estate of
the late Kwaku Wadie and without
the consent of the defendant
cannot confer on him any
interest nor lease any room in
the premises to the plaintiff.
The inevitable question that
arises is how did the plaintiff
know that the room she was
occupying belonged to the late
Kwaku Wadie since the rooms in
the building have not been
shared in terms of Exhibit C?
The legal position is that the
maxim “NEMO DAT QUOD HABET”
applies with full force to the
case. In other words the lease
allegedly granted to the
plaintiff by P.W. 1 was null and
void. P.W. 1 cannot give what he
does not have. The plaintiff
therefore cannot bring an action
against the defendant and the
trial judge ought to have
dismissed her action.
It was also the case of the
defendant that the plaintiff has
never occupied a room in the
house. He testified on oath that
“ I do not know the plaintiff
had a store in the premises. I
have not demolished the
plaintiff’s store.” It is
significant to note that
although the plaintiff gave
evidence that she had traded in
that store for a little over
three years and some months,
Kwaku Baah (P.W. 1) her alleged
landlord said in evidence “that
plaintiff is a tenant. She is a
tenant in House No. D.756/4. She
has been my tenant for 7 years.”
In the above evidence whereas
the plaintiff was saying that
she had occupied the store for a
little over three years Kwaku
Baah was also saying that she
had been a tenant for 7 years.
Apart from this apparent
conflict, throughout his
evidence Kwaku Baah (P.W. 1)
never mentioned that he knew
that the plaintiff was operating
a store in the premises. There
was no evidence from any
customer or adjoining tenants
that the plaintiff was carrying
on a foam business in the house.
Moreover the trial judge found
in his judgment “that the
plaintiff failed to prove that
she earned ¢3 million a month
from the store” even though she
was claiming that amount as what
she was earning. In the light of
the foregoing I am compelled to
accept the claim of the
defendant that he did not know
of the existence of the
plaintiff at the time he carried
out the renovation works.
It is well settled that an
appellant court could not set
aside findings of fact where
they were based on the demeanour
of witnesses. But where they
were based on undisputed facts
and documents as in the instant
case, the appellate court was in
decidedly the same position as
the lower court and could
examine those facts and
materials to see whether the
lower court’s findings were
justified. See BARCLAYS BANK
GHANA LIMITED v. SAKARI SC GLR
pages 639 at page 641.
In this case upon examining the
evidence and in light of the
matters canvassed above, I hold
that the judgment of the Circuit
Court is not supported by the
evidence on record. The appeal
is therefore allowed and the
judgment of the Circuit Court
set aside.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL.
AFREH, J. A. :
I agree.
D. K. AFREH
JUSTICE OF APPEAL.
ARYEETEY, J. A.:
I also agree.
B. T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL
Awere Awuku for
Defendant/Appellant.
Andoh for Plaintiff/Respondent. |
