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J U D G M E N T
BROBBEY, J.S.C.:This
is an appeal from the judgment
of the Court of Appeal which
had dismissed an earlier appeal
from the High Court by the
appellants before this court.
The facts giving rise to the
litigation are as follows: The
case concerns a house which was
originally owned by one Mark
George Okai. He died intestate
on 17th September
1939, leaving behind male and
female children. On his death,
letters of administration were
granted to William George Okai,
his eldest son, and Samuel
Adotei Brown, his nephew. Both
died later. On 14th
August 1945, two daughters of
Mark G Okai entered into a lease
agreement with Nicholas Timothy
Clerk in respect of that house.
The house was leased to the
latter for sixty years at a
yearly rental of sixty pounds
commencing from 1st
August 1945. The lessee paid
seven hundred and fifty pounds
on execution of the lease and
another seven hundred and fifty
pounds, the latter being
one-half of the children’s
share. The children’s share was
later returned to the lessee and
was never repaid by him. By
calculation, the lessee paid
rent from 1st August
1945 to 30th April
1964 which amounted to eighteen
years and nine months.
In spite of the execution of the
lease, some of the children of
Mark G. Okai remained in
occupation of the house and even
collected rents from some
tenants. The lessee took action
against those children, claiming
two hundred pounds as damages
for trespass, an order of
ejectment and refund of rents
collected by them. He obtained
judgment against them. The
co-defendants in that case
appealed to the West African
Court of Appeal (WACA). The
appeal failed. The WACA judgment
ordered the lessee, at his own
expense, to obtain planning
permit, pull down the existing
structure and construct an
entirely new building in its
place.
He failed to comply with that
order. He also failed to pay
rent from May 1964.
In June 1983, the surviving
children of the late Mark Okai
sued the lessee for one thousand
one hundred and forty five
pounds being rent arrears for
229 months from 1st
May 1964 to 1st May
1983, mesne profits and
forfeiture of the lease for
breach of covenant to pay rent
and non compliance with the
order of WACA already referred
to. For convenience, those
children will be referred to as
the plaintiffs and the original
defendant will be referred to as
N. T. Clerk for short.
N. T. Clerk filed his defence to
the action in August 1983. He
died in May 1985. Letters of
administration were granted to
the substitute defendants in
1992. After pending in court for
some time, the case was finally
determined in November 2002 in
favour of the plaintiffs. An
appeal by the substitute
defendants failed in the Court
of Appeal. It was against the
judgment of the Court of Appeal
that they have appealed to this
court.
At the trial, the main defence
put up by the appellant was that
after the court action which
ended with the WACA judgment,
the house in question was
ordered by court to be
auctioned. The auction resulted
in the house being bought by
Henry Quarcoo Mensah. After the
purchase, it was re-sold to N.
T. Clerk by Henry Quarcoo Mensah
and Samuel Adotei Brown, the
latter being the head of family
and successor to the late Mark
George Okai. The re-sale was
registered in 1953 as DR No.
679/1953. The appellants
contended that since the
property had been bought by N.
T. Clerk, he had no obligation
to comply with the WACA order or
to continue to pay rent. In
effect, it was their case that
the lease ceased to exist with
the coming into being of the
registered conveyance on the
sale of the property.
Both the High Court and the
Court of Appeal rejected the
defence for reasons which were
quite sound. In the first place,
the whole line of defence was a
clear afterthought. The original
defendant, N. T. Clerk, filed
his defence to the action of the
plaintiffs. In that original
defence, he stated in paragraph
12 that he had complied with the
WACA order to pull down the
house and rebuild it. There was
no evidence that he had complied
with the court order. When he
employed Mr. Johnny Hansen as
his solicitor, he filed an
amended defence to the effect
that the defendant attempted to
comply with the WACA order but
was prevented from doing so by
the children of the late Okai,
especially the fourth plaintiff
who testified on behalf of the
plaintiffs. The defendant could
not have complied with the order
and at the same time alleged
that he attempted to comply with
the same order. The
inconsistency in his stand only
showed that there was no
compliance by the defendant of
the order in question.
The evidence on record showed
that the trial judge and the
Court of Appeal were right in
not accepting the defence that
the WACA order was complied
with. A building permit was
necessary to be able to pull
down the existing structure and
re-build it as ordered by the
court. There was no evidence of
a building permit. The house to
be rebuilt was the very subject
matter up till this present
appeal. If indeed it had been
rebuilt, the parties would have
been aware of it as a physical
structure. No such evidence was
adduced because the appellants
knew very well that no
demolition and re-construction
had taken place. The relief of
the plaintiff for forfeiture of
the lease based on
non-compliance with the WACA
order was well established. Both
the trial Court and the Court of
Appeal were right in ruling in
favour of the plaintiffs on this
issue.
The stand of the defendants that
N. T. Clerk did not have to pay
rent since he had bought the
house at a public auction was
contrary to the stand taken by
N. T. Clerk himself when he was
alive. In his defence to the
action, he stated that he was
willing to pay rent if the
plaintiffs were willing to
accept same. He then proceeded
to pay into court an amount in
Cedis which by conversion
covered the arrears of rent that
the plaintiffs claimed. N. T.
Clerk himself never referred to
any auction sale when he first
filed his defence. The ideas of
auction sale and purchase of the
property were introduced into
the case by the defendants who
were substituted when the
original defendant, N. T. Clerk,
died. The trial judge rejected
them on the main ground that
there was insufficient evidence
to establish them. That was
affirmed by the Court of Appeal.
The facts supported the
conclusions of the two courts.
The most devastating factor that
undermined that line of defence
was that nowhere in the original
defence filed by N. T. Clerk
himself was it raised that he
had acquired the house by
auction sale and therefore he
did not have to pay rent. The
substitute defendants could not
by any stretch of the
imagination use as the basis of
defence what the original
defendant did not contemplate or
insert in his defence.
The substituted defendants
attempted some sort of a
cover-up by alleging that when
the action was first instituted,
N. T. Clerk was so sick that he
could not give “correct
instructions” to his solicitor.
There are well known methods for
establishing the mental state of
a party to a case. The normal
method is by production of
medical evidence on the state
health of the individual
concerned, in the instant case
the late N. T. Clerk. No
documentary, viva voce or any
other form of evidence was
adduced on the health condition
of N. T. Clerk beside the
allegation contained in the
pleadings. The allegation that
he was too sick to be able to
give correct instructions to his
counsel was woefully not
established.
In any case, when the facts are
critically examined, the only
conclusion one could come to is
that the allegation that N. T.
Clerk was sick could not be
true. If he were really sick,
how could he have remembered to
instruct counsel to put in his
pleadings that the plaintiffs
were not entitled to their
claim, that he had complied with
the WACA order, that he was
prepared to pay the rent if only
the plaintiffs would accept
same, and then paid into court
an amount which when converted
equaled the rent arrears claimed
by the plaintiffs in the writ?
As was rightly pointed out in
the statement of case of counsel
for the plaintiffs filed in this
court at page 6,
“The voluntary act
(of the money being paid into
court) by the
original defendant
cannot be interpreted otherwise
than that up to 19th
August 1983 the
defendant was recognizing the
plaintiffs as his
landlords”
N. T. Clerk conducted his
pleadings in his defence on the
firm basis that the lease was in
existence. He was well enough to
do all these when he filed his
own defence in August 1983 at a
time when he was alive. The
allegation of sickness inducing
“incorrect instructions” were
rightly ignored by the trial
court and the Court of Appeal.
He never pleaded any auction
sale as his defence, neither did
he trace his title to the house
through any auction sale. It
follows that the defence based
on the auction sale conflicted
with the stand of the original
defendant: While he proceeded on
the basis that there was a lease
in existence which was binding
on him, the substituted
defendants proceeded on the
basis that there was no lease
but that N. T. Clerk had bought
the house. How could those who
inherited the case from its
owner have known the case better
or more than the original owner
himself? The answer to this
simple question will demonstrate
beyond any doubt that the
defence based on the auction
sale could not be true and it
was therefore not surprising
that it did not find favour with
the trial court or the Court of
Appeal.
Even if there was any auction
sale, that could not have passed
any genuine title to the
defendant. The document
evidencing the sale was signed
by
Samuel Adotei Brown who claimed
to be the head of family and
successor to the Late Okai, the
original owner of the house. The
late N. T. Clerk knew right from
the beginning of the transaction
concerning the house that there
were two different interests on
the house: One interest was for
the family of Okai and and the
second interest was for the
children of Okai. This must be
taken to have been known to N.
T. Clerk when he made the first
payment on the execution of the
lease in 1945 and a further sum
of seven hundred and fifty pound
in March 1946. The latter
payment was said to represent
the interest of the children of
the late Okai. It was the latter
payment that was returned to N.
T Clerk and was never repaid.
It is trite law that a head of
family can dispose of landed
property only with the consent
and concurrence of the principal
members of that family. There
was no evidence that Samuel
Adotei Brown had that consent or
concurrence from the principal
members of the family. Without
the consent and concurrence, he
alone as head of family had no
authority to sell the property
and pass title of the family to
N. T. Clerk. Whatever he
purported to have conveyed to
him was therefore null and void.
The situation is worse with the
interest of the children. The
document evidencing the sale did
not refer to the interest of the
children at all, neither did it
state that Samuel Adotei Brown
represented the interests of the
children. The interest of the
children who indeed took the
action in the court remained
intact. Their title could not
have been passed to N. T. Clerk.
N. T. Clerk obtained no valid
title on the house from the
auction sale. The substituted
defendant was wrong in basing
her claim on the title of the
children.
Another point worthy of note is
that at page two of the
statement of case of the
substituted defendants before
this court, they maintained that
the continued obstruction of the
children of the late Okai “drove
N. T. Clerk to go into execution
of his affirmed judgment. He
took a writ of fi fa on 12
November 1952.” That writ
eventually resulted in the sale
by public auction of the
property in dispute. Was it
morally or ethically right for
the plaintiff who had caused to
be auctioned property that
constituted the subject matter
of his own case to turn round to
have purchased the same property
for himself? If for nothing at
all, equity frowned upon
whatever title that N. T. Clerk
could have derived from the sale
which was organized by himself
and for the benefit of himself.
The entire sale was irremediably
flawed. On the death intestate
of George Mark Okai, the house
became family property.
Ownership which reflected
interests in the house were
vested in the family of the late
Okai as well as all his
children. N. T. Clerk took
action against some, not all, of
the children. The action was
personal against the specific
children who collected rents,
allegedly committed trespass on
the house and were allegedly
liable for damages. If judgment
was entered against those
specific children, N. T. Clerk
had no authority to attach the
house which belonged to the
family and other children who
had collected no rents, had
committed no trespass and were
not liable for damages for
trespass and were not parties to
the case. He did not sue the
family and the other children.
The attachment of the property
was legally indefensible. It
could not form the basis of the
transfer of title in the house
to Henry Quarcoo Mensah who
allegedly bought it at the
auction. The fourth defendant’s
admission of the auction sale
did not help the case of the
appellants.
This is a case which turns on
the facts. The trial judge who
had the benefit of watching the
demeanour of the parties as they
testified before him made
findings which are clearly
supported by the evidence. It is
not the province of the
appellate court to interfere
with findings of facts where
they are found to be logical and
supported by the evidence on the
record. The original defendant,
N. T. Clerk, acknowledged that
the lease was in existence and
he was a lessee or a tenant. It
was in consequence that he paid
some of the arrears of rent into
court. By the time the case was
concluded in 2002, more rent had
accumulated which was not paid.
The plaintiffs were entitled to
that rent on the basis of their
claim for mesne profits. The
non-payment of the accumulated
rent was yet another
justification for the forfeiture
of the lease.
. There is no merit in the
appeal before this court. The
appeal fails and it is
dismissed.
S.A. BROBBEY
JUSTICE OF THE SUPREME COURT
MISS
S.A. B. AKUFFO
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
MRS. S. O. ADINYIRA
JUSTICE OF THE SUPREME COURT
S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT
MR. ADUMUAH-BOSSMAN FOR
APPELLANTS
MR. FRANK ADEEKU FOR
RESPONDENTS. |
