|
_________________________________________________________________
J U D G M E N T
____________________________________________________________________________________
According to
plaintiff’s case, 1st
defendant is the
owner/beneficiary of H/No. B
420/7, Awudome Estate, Accra.
This house originally belonged
to John Addo Allotey (deceased)
who was 1st
defendant’s husband and it was
upon his demise that 1st
defendant assumed ownership of
the said house. This house is
situated on a parcel of land
part of which was leased to
plaintiff. This lease is
evidenced by three documents
dated 4th December
2001, 21st May 2002
and 29th December
2002 respectively.
Following the lease, the
requisite documents regarding
amendments for extension were
obtained and the requisite
payments made.
Plaintiff then developed
the plot for the purpose for
which she acquired the lease.
The structure plaintiff
developed on the land was
floored, thus making the
structure the ground floor.
2nd
defendant then came into the
picture at the instance of 1st
defendant and constructed
offices on top of plaintiff’s
structure, that is, 2nd
defendant had developed the
first floor by the permission of
1st defendant.
Plaintiff has described
2nd defendant’s entry
on the land as a trespass. She
has also contended that any
lease agreement between 1st
defendant and 2nd
defendant is in breach of the
lease agreement and has
therefore prayed the court to
cancel any such agreement.
In the premises, plaintiff
prayed for the under mentioned
reliefs:-
1.
Declaration that plaintiff is a
lessee of all that parcel of
land forming part of H/No. B
420/7, Awudome Estates, Accra.
(out –house);
2.
An order restraining the 2nd
defendant from erecting a storey
building upon plaintiff’s single
storey building put up on H/No.
B 420/7, Awudome estate, Accra
(out-house);
3.
Cancellation of any lease
agreement purporting to have
been made between 1st
and 2nd defendants
touching upon plaintiff’s
leasehold property in the said
H/No. B 420/7, Awudome Estate,
Accra and
4.
General damages against the
defendants.
1st defendant
admitted entering into a lease
agreement with plaintiff. She
also admitted leasing the top of
plaintiff’s stores to 2nd
defendant who would have
finished and using same but for
the intervensions of plaintiff.
A few comments on the
legal propriety of the claims
indorsed on the writ of summons
alluded to supra will
demonstrate the nebulousness and
the hollowness nature of
plaintiff’s claims. Claim (1)
for instance is for a
declaration that plaintiff is a
lessee of the out house of H/No.
B 420/7, Awudome. Is plaintiff
claiming that she is the lessee
of the property she constructed
on the plot as well as the
property (offices) developed, by
the second defendant?. If she is
asking to be declared the lessee
of the structure (the stores)
she put up, no one is begrudging
her of that claim. Indeed, the
evidence on record abundantly
showed that 1st
defendant had entered into a
lease agreement with plaintiff
and it was by dint of this
agreement that plaintiff
developed the stores (the ground
floor) on the land. Why then
would plaintiff ask for such a
declaration?. In any event, how
does she profit from such
declaration? My inability to
find any reasonable answer that
is profitable in law regarding
the position of plaintiff leads
me to regard plaintiff’s claims,
particularly claim (1) as not
only unproductive but vacuous.
Plaintiff cannot ask to
be declared the lessee of the
offices put up or developed by 2nd
defendant. Indeed if plaintiff
were to ask to be declared the
lessee of the developed offices
of 2nd defendant
because the ground floor was
first leased to her by the owner
of the land (1st
defendant), she would be asking
me to make her take and enjoy a
property she had not spent a
pesewa in its development. Such
a claim will be outrageous and
legally shocking.
Plaintiff did not make a
case that she bought the land on
which she developed the stores.
She rather acquired a lease
interest which has some
duration. The duration of the
lease was put in issue but
looking at the claims as
endorsed on the writ of summons,
I have chosen not to comment on
it as plaintiff never sought any
relief pertaining to whether the
lease was for 20 years or 40
years. What is essential to note
is that plaintiff is merely a
lessee of the stores she had
constructed. Having floored the
structure (the stores) and in
the absence of any clear
provision in any of the three
documents touching and
concerning the lease as to
whether the top floor was also
leased to her by the owner, the
1st defendant, the
latter reserves the right as
owner/lessor of the land to
enter into another lease
agreement with anybody of her
choice provided the new
agreement would not detract from
the former lease.
When plaintiff contended
that I should cancel the lease
agreement between 1st
defendant and 2nd
defendant, I thought she had
legal basis for such contention.
As I write this opinion,
plaintiff has not drawn
attention to any law to the
effect that a lessee who put up
stores and floored same has any
claim of right over what happens
to the first floor which is
leased to another person by the
owner. Neither do I know of any
such law.
It appears to me that
plaintiff is even a stranger to
the agreement between 1st
defendant and the second
defendant. How then can
plaintiff, a stranger ask the
court to cancel such an
agreement?
I confess I do not
appreciate what possible legal
purpose such a court order can
be reasonably expected by
plaintiff.
The property is the
property of 1st
defendant subject to the lease
agreement with plaintiff and as
a lessee plaintiff has no
recognizable legal right to
dictate who 1st
defendant deals with the
property provided such dealing
will not affect any of the legal
rights of a plaintiff, in her
capacity as a tenant/lessee.
With respect to the claim
for injunction against 2nd
defendant, I do not think that
claim should be dignified by any
further comment and I will
dismiss it as not only untenable
but preposterous.
From the foregoing, I do
not see the necessity of going
into determining the other
issues in this case.
Accordingly, plaintiff’s case is
dismissed with costs of GH¢2,000
against plaintiff in favour of 1st
defendant and GH¢5,000 against
plaintiff in favour of 2nd
defendant who has been denied
the use of the offices since
2002
when plaintiff instituted the
instant action which has proven
to be nothing but frivolous and
vexatious.
(SGD) ANTHONY OPPONG
JUSTICE OF THE HIGH COURT.
LAWYERS:
FELIX QUARTEY ESQ; FOR
PLAINTIFF.
ERIC ATIEKU ESQ; FOR DEFENDANTS.
.
|
