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MADAM AFUA TEMA v. KWABENA WADIE, E. K. AMPADU [09/05/2002] CA/NO.49/98.

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA - GHANA

_____________________________________

CORAM:  WOOD, JA (PRESIDING)

              AKOTO-BAMFOR, JA.

             OWUSU-ANSAH, JA.

CA/NO.49/98

9TH MAY 2002

MADAM AFUA TEMA                    :           PLAINTIFF/RESPONDENT

VRS

1. KWABENA WADIE

2. E. K. AMPADU                           :            DEFENDANTS/APPELLANTS

______________________________________________________________________________

 

 

JUDGMENT

AKOTO-BAMFO:

Madam Afua Tema, the plaintiff-respondent, hereinafter referred to as the plaintiff is the landlady of the property the subject-matter of the appeal, whereas the defendants/appellants now simply referred to as defendants are tenants occupying two Store rooms on the ground floor of the said property comprising more than 20 rooms.

The plaintiff commenced an action against the two defendants for:

1.  the recovery of those respective stores occupied by them.

2.  order of ejectment.

3.  Mesne profits.

The plaintiff’s case as per her statement of claim was that she served written notices on all her tenants including the defendants to surrender vacant possession of their stores in order for her to use cement blocks for partitioning the various rooms in place of the plywood originally used.

All the tenants pleaded to be allowed to do the partitioning themselves so as to remain in occupation.  According to her even though all the other tenants fulfilled their promises, the two defendants who were in the habit of picking quarrels and generally showing disrespect to her, refused to use  the cement blocks for the partitioning. It is further her case that two defendants financed a relation of hers who laid adverse claims to the property in issue to litigate over same with her albeit unsuccessfully.  In addition the two defendants defaulted in the payment of their rents.

The defendants essentially denied the plaintiff’s claims.  As per the statement of defence, they averred that they had the partitioning done; and that they neither owed rents nor financed the plaintiff’s relation in the litigation aforementioned.  They further denied constantly picking quarrels with her.

Among the issues set down for trial were:

1.  whether the two defendants used cement blocks to partition their store rooms before the action was commenced.

2.  whether the two defendants have been giving a lot of troubles to the plaintiff and have proved to  be difficult tenants.

3.  whether the plaintiff is entitled to the reliefs brought by her.

The learned judge gave judgment in favour of the plaintiff and ordered the defendants to surrender vacant possession of the store rooms within three months of the order.

It is against this decision that the defendants appealed to this court.

A sole ground of appeal was filed: namely that the judgment was against the weight of the evidence adduced at the trial.

Before proceeding to consider the arguments advanced I wish to note that even though a notice of appeal was filed in respect of both defendants on 4/9/97, it was only the 2nd appellant on whose behalf written submissions were made as evident from the processes filed in this Court on 30/7/2001.

It is obvious therefore that the 1st appellant having failed to comply with rule 20 of C.I. 19 as amended is deemed to have abandoned his appeal.

Learned counsel for the 2nd appellant submitted that in so far as the respondent failed to establish her case against the 2nd appellant in that there was no evidence to support the allegations made by her; the learned  Judge erred in finding for the respondent.  He further argued that since the renovation works were completed before the commencement of the action, the respondent had no cause of action and the learned judge was wrong in entering judgment in her favour on the issue.

In reply learned counsel for the respondent argued that the findings of fact were amply supported by the evidence on record and that in so far as the learned Judge adequately assessed the appellant’s defence, the appeal should fail.

It is not disputed that a landlord-tenant relationship existed between the appellant and the respondent and therefore the governing statute is Act 220, the Rent Act particularly Sec. 17(1) thereof which sets out the circumstances under which a court could exercise its powers of eviction.

The Rent Act undoubtedly seeks to provide security of tenure for tenants by placing restrictions on the Common Law rights of the landlord to terminate a tenancy.  In Section 17 of the Act therefore is a provision that no order against a tenant for the recovery of possession or ejectment therefrom may be made by a court unless at least one of the conditions stipulated is satisfied.

Among the conditions are where a tenant is in arrears (2) where an obligation of the tenancy is broken (3) where the tenant is guilty of acts of nuisance or where the lease has expired and the landlord intends to demolish the building or intends to remodel the premises or carry out a scheme of development.

In paragraphs 4, 5, 6, 7, 9 and 14 of the statement of claim the respondent averred that even though the appellant undertook to have the dividing wall constructed, he failed so to do.

In court however, it became clear as per her own testimony and that of her witness that the appellant indeed partitioned the store for this question was put to her:

Q. “I am putting it to you that the defendants partitioned the stores one year six months ago.

A.  I am not aware because they have not told me.” 

Indeed her witness testified thus “after they had been served with the letter, I heard they partitioned the store.”

The mason who testified for the appellant corroborated the evidence of the appellant and added that one could not see the partitioning from outside and that he was the mason who was engaged for the job.

Significantly, the learned Judge found that the wall was constructed; his complaint was the timing, for he found that the defendants were late in partitioning the storerooms.

Clearly the case set up by the respondent on that issue at the trial was inconsistent with her pleadings, a finding therefore ought to have been properly made against  her.

Appiah v. Akos Trading Co. 1972 1 GLR 28 and Dan v. Addo 1962 GLR 200

I am of the view that the findings made by the learned judge were not supported by the evidence.  Assuming the appellant constructed the wall late can it be said that he had committed a breach under Section 17 of the Rent Act?

I think not.

It is not clear from the record whether it was a term of the tenancy that the tenants had to partition the stores.  If it was not a term of the tenancy; then the appellant could not be said to have committed a breach.

The learned trial Judge dwelt at length on the fact that the appellant could not establish when the partitioning was done and found that since he undertook to partition the store but failed “ at Common Law, the defendant having breached the agreement the plaintiff has every right to eject them.”

I must say that these conclusions are unfortunate and have no basis in the Rent Act particularly Section 17(1) (b).

He fell into error when he, as it were, displaced the burden or producing evidence and drew conclusions which were at variance with the evidence adduced before him.

Even though under Section 17(1)(b) the Rent Act a landlord could properly recover possession of his premises if an obligation was broken, the said obligation must be consistent with the provisions of the Rent Act and must also be one which gives rise to forfeiture at Common Law.  As observed, in the absence of evidence that the partitioning was a term of the tenancy, the appellant could not have committed a breach.

The respondent further pleaded thus: “two defendants have been giving a lot of troubles to the plaintiff and have proved to be very difficult tenants”.

Significantly, in both her pieces of evidence and those of her witness, no mention was made of the appellant with regard to those issues.  It is apparent that the thrust of the respondent’s complainants were directed at the non appellant. The respondent therefore failed woefully to adduce any evidence in proof of her case against the appellant on this issue.  Her evidence is silent on any acts committed by the appellant in that regard. Nonetheless, the learned judge found “the defendants in the instant case are in no better position when they caused the arrest of the plaintiff their landlord”.

A close examination of the respondent’s own evidence shows that she made no allusion to any arrest; it was her witness who testified that the non appellant and not this appellant reported the respondent to the police.  The learned Judge therefore had no basis for making the findings  set out above.

Furthermore, the allegation in the statement of claim that the appellant was in the habit of picking quarrels with the respondent was not supported by the evidence.  In spite of this the learned Judge found and, wrongly in my view, that the appellant was guilty of nuisance and therefore ought to be ejected.

For the foregoing reasons, I would allow the appeal and set aside the orders made by the learned Judge.

Costs.

V. AKOTO-BAMFO (MRS.)

JUSTICE OF APPEAL

WOOD, JA:

I agree.

G. T. WOOD (MRS.)

JUSTICE OF APPEAL

OWUSU-ANSAH, JA:

 I also agree.

P. K.  OWUSU-ANSAH

JUSTICE OF APPEAL

COUNSEL

*Vdm*

 

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