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
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