HOME         UNREPORTED  CASES OF THE COURT

 OF

AUTHOMATED COURTS ACCRA 

 

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON

THE 11TH DAY OF FEBRUARY, 2009 BEFORE HIS LORDSHIP

MR. JUSTICE S.H. OCRAN.

 

SUIT NO. BL380/2008

 

_______________________________________________________

MRS. COMFORT PRAH

 

                                  VRS.

 

                                         BAFLA LTD

________________________________________________________

 

 

J U D G E M E N T

 

 

The plaintiff by her writ filed on 17th April 2008 claimed from the defendant the following:

 

  1. An order terminating the tenancy agreement dated 25th August 2004 on the grounds of breach of covenants.

 

  1. An order compelling the defendant to restore the structure and economic value of the premises and put same in tenantable state or condition.

 

  1. Alternatively an order to compel the defendant to pay for an agreed estimated cost of carrying out relief (b) supra.

 

  1. Recovery of fifty five million cedis (55,000,000.00 cedis) being eleven (11) months arrears of rent.

 

  1. Interest on the said arrears at current bank rate.

 

  1. Recovery of possession and ejectment

 

  1. Mesne profits.

 

  1. Costs

 

  1. Any other relief(s) or order(s) as to the Honourable Court may seem meet.

 

The writ was accompanied by a statement of claim in which the plaintiff claimed that the tenancy of house number 13, Kofi Dzata Street, Dzorwulu Residential Area, Accra by the defendant from her is governed by a tenancy agreement dated 25th August 2004. The agreed rent was GHc500.00 a month. The plaintiff also pleaded that at the commencement of the suit; the defendant was in 11 months arrears totalling GHc5500.00 and had refused to pay despite repeated demand. The plaintiff also pleaded further that the defendant had caused massive destruction to the property and by this changed the structure and the economic value of the premises and breached clauses 2a, c, d, f, j and 4a of the tenancy agreement.

 

The defendant entered appearance and filed a defence and counter- claim on 4-6-2008 but was subsequently amended and filed amended defence on 11-11-2008.

 

In the defence, the defendant admitted that the house in issue has been rented to the defendant company and that there is a tenancy agreement dated 25th August 2004. The defendant however pleaded that it was agreed between them that substantial structural change was to be effected on the property by the defendant at his own expense, to suit his taste. As a result of the renovations the defendant was given 3 months rent free.

 

The defendant pleaded further that he re- roofed the house completely and commenced structural changes as well as began the excavation for a storey building in the open compound but in the middle of the renovation, he was stopped by the successor, the plaintiff and her step-son, who had come from London on the ground that the plaintiff had no authority to rent out the property. That it was after the funeral of the deceased and resolution of probate issues that the plaintiff entered into a formal lease with the defendant. Thereafter, Unique Financial Services Ltd also stopped the defendant from working on the building. Defendant says it was agreed that a new agreement is to be prepared by the plaintiff.

 

The plaintiff denied the defendants assertion that he was stopped from renovating the premises but that it was the attempt to build a storey building without their consent that was stopped.

 

The issues set done for trial on 31st July 2008 were many, but the most important of them are as follows:

 

  1. Whether or not the premises was in a tenantable condition and state when the defendant rented the premises.

 

  1. Whether or not the plaintiff agreed on some renovations for which three months grace period was given to the defendant.

 

  1. Whether or not the defendant’s excavation for a storey building without the expressed knowledge consent and authority of the plaintiff amounted to a breach of the terms of the tenancy agreement.

 

  1. Whether or not at all material times, the defendant was in possession of the premises.

 

  1. Whether or not the defendant was bound to pay rent after the three months grace period.

 

  1. Whether or not the plaintiff ever stopped the defendant form carrying out the agreed renovation.

 

  1. Whether or not plaintiff ever disrupted or disturbed the defendant’s quiet possession and occupation of the premises.

 

  1. Whether or not the defendant has caused wanton destruction to the structural and economic value of the property.

 

  1. Whether or not the plaintiff is entitled to her reliefs endorsed on writ of summons.

 

  1. Whether or not the defendant is entitled to his counter- claim or at all.

 

  1. Other issues arising from the pleadings.

 

The plaintiff also gave evidence herself without calling any witness but tendered several exhibits.

 

The defendants gave evidence through its Managing Director and called three witnesses and also tendered exhibits.

 

It is admitted by the parties that house number 13, Kofi Dzata Street, Dzorwulu Residential Area, Accra is the subject matter of this tenancy. It is also admitted that exhibit ‘A’ is a copy of the tenancy agreement covering the tenancy.

 

In exhibit ‘A’ it is stated that the tenant has inspected the premises and has agreed to take the premises in its present state. The defendant’s Managing Director gave evidence that he as the sole owner of Defendant’s company inspected the premises before renting it. The defendant also gave further evidence in chief that he offered to pay 5,000, 000.00 cedis a month because the property was badly shaped.

 

Since the defendant inspected the building before occupying it and saw its state which state influenced the fixing of the rent that was to be paid, the defendant cannot complain that the premises was not in a tenantable condition. The general rule in contract is ‘caveat emptor’ i.e. buyer beware for you take what you bargained for. I therefore hold that the premises were in a tenantable condition and state when the defendant took occupation as is depicted on exhibit ‘B’.

 

The renovations that were being carried on were to suit the defendant’s taste and business at the defendant’s own expense. This is found in the evidence of the parties and from clause 1b of exhibit ‘A’. I therefore find that the plaintiff agreed on some renovations to be effected on the premises for which 3 months grace period was given.

 

The next issue to be considered is whether or not the defendant’s excavation for a storey building without the express knowledge and authority of the plaintiff amounted to a breach of the terms of the tenancy agreement.

 

The plaintiff led evidence that when they saw the defendant, undertaking renovations of the premises, photographs were taken and these were tendered as exhibits C and C1, D, D1 and D2 all taken on 29th June 2008. Under cross- examination the plaintiff denied a suggestion from the defendant that no storey building has been put up and said the defendant admitted that he wanted to build a storey building and she stopped him and referred to exhibit ‘E’

 

In paragraph 6 of the amended statement of defence, the defendant pleaded that he began the excavation for a storey building in the open compound but was stopped. In exhibit I, which is dated 28th June 2005, the defendant was asked to stop work involving the digging of the foundation but not the renovation. I therefore find that the defendant commenced the building of a storey building but was stopped. Clause 2J of exhibit ‘A’ states as follows:

“Not to make or permit to be made any alterations on the said premises without the previous consent in writing of the landlord.”

Since the plaintiff and the other administrators requested the defendant to suspend digging of foundation in the property it meant the digging of a foundation for a storey building had not been agreed upon and therefore amounted to a breach of the tenancy agreement as in clause 2j of exhibit A.

 

Even though exhibit I is dated 28th June 2005, the contents of exhibit 2 which is dated 7th December 2006 shows that the plaintiff did not consider the breach of clause 2j as a breach of a condition which entitled her to consider the tenancy agreement terminated. I have come to this conclusion because in exhibit 2, the plaintiff stated that she received GHc3, 000. 00 from the defendant after exhibit F had been received by the defendant. Exhibit ‘F’ is dated 20th April 2006. If the plaintiff considered the digging of foundation as a breach of a condition, she would not have accepted the GHc3, 000.00 paid after 20th April 2006.

 

From the analysis of exhibit I and the evidence of the plaintiff on her denial that she ever stopped the defendant on the other renovations, I hold that the plaintiff did not stop the defendant from carrying on renovation except the digging of foundation for a storey building.

 

The defendant and his witnesses admitted that they are still in occupation of the premises. Again, exhibits D, D1 and D2 taken on 29th June 2008 shows that the defendant was actively undertaking his business in the premises. I therefore hold that the plaintiff did not disturb or disrupt the defendant’s quiet possession and occupation of the premises and that the defendant had been in possession of the property at all material times.

 

It has been admitted by all the parties that UT Financial Services Ltd attached the property, but evidence available indicate that the plaintiff is not responsible for what UT Financial Services did. In exhibit ‘F’ UT Financial Services wrote that they mistakenly attached the property. The defendant should therefore hold UT Financial Services Ltd responsible but not the plaintiff since I have held that the defendant had been in possession of the property at all material times and that the plaintiff did not disturb or disrupt the defendant’s quiet possession and occupation of the premises, the defendant is bound to pay rent after the three month period.

 

What is the rent in this case? From exhibit ‘A’, rent was to be GHc500.00 per month for the 1st two years i.e. from 1st December 2004 to 30th November 2006. The defendant also admitted that rent is GHc500.00 and that exhibit ‘A’ is the tenancy agreement covering the tenancy. This rent should have been re-negotiated effective from 1st December 2006. Exhibit 2 which was written on 7th December 2006 indicated that rent for the 3rd year effective from 1st December 2006 had not been paid neither had clause 1d been applied.

 

Apart from exhibit 2, which said clause 1d had not been applied, no further evidence was adduced on whether it was subsequently applied or not. However, since the plaintiff led evidence that as at 23rd October 2008 the defendant was in arrears of one year, five months and D.W.3 also gave evidence on 1st December 2008 and said the defendant is in arrears of rent for one and a half years, adding December 2008 and January 2009 will make the arrears of rent one year 8 months i.e. 20 months rent. This at the rate GHc500.00 a month brings the arrears of rent to GHc10, 000.00.

 

Since from exhibit A, clause 1d, rent should have been re- negotiated upwards but should not be more than 25% of the previous years’ rent, the arrears of rent of GHc10, 000.00 will be raised upwards by 25%. This has been necessitated by the fact that as far back as 2003, Mr. Prah the husband of the plaintiff wanted rent of GHc800.00 and when the defendant refused, the premises was given to COB Company, manufacturers of sachet water. After they had left, the defendant showed interest again and still insisted on paying GHc500.00 which had been refused earlier on. The defendant explained that at that time, Mr. Prah was very sick so they needed the money badly so he agreed to take the GHc500.00.

 

After the death of Mr. Prah, the defendant continued, Mrs. Prah said she needed money for the funeral. This evidence shows that the rent was negotiated under duress and undue influence and the contract could have been set aside on this ground. Reference Attitsogbe vrs C.F.C Construction Co. (WA) and Read (2005- 06) SCGLR 858

 

However, since in exhibit A, it was stated that the tenant had inspected the premises and had agreed to take the premises in its present state but to undertake renovations and structural changes at the cost of the defendant and may be over and above the assessment done on behalf of the land lord, I will not set aside the agreed rent, especially as the defendant had already spent some money on the premises and also having removed some fittings as depicted on exhibit C. I will however allow an upward adjustment of 25% effective from 1st December 2006 to 30th November 2008.

 

This brings the monthly rent from 1st December 2006 to GHc625.00. The 20 month arrears of rent at the rate of GHc625.00 a month comes to GHc12, 500.00.

 

The plaintiff is therefore awarded the sum of GHc12, 500.00 as rent for the premises up to 31st January 2009. The parties should re- negotiate the rent for the remaining months from 1st February 2009 to 30th November 2010.

 

The next issue to be resolved is whether or not the defendant has caused wanton destruction to the structural and economic value of the property.

 

The defendant led evidence that it is in the process of renovating the premises as agreed on and had actually completed the roofing. Since from December 2004, the defendant had been paying rent, and I have held that they should continue to pay rent, I hold that the defendant has not destroyed the property. If at all, the defendant is improving the property and at the same time, paying the agreed rent.

 

Under section 17(1c) of Act 220, the plaintiff could have been granted recovery of possession but I am of the view that considering the circumstances of this case, an order for recovery of possession of the premises will not be equitable and also not be in the interest of the plaintiff.

 

The defendant led evidence that it had roofed the premises at its own cost and is in the process of renovating the other parts but had to stop because the M.D was of the view that exhibit I and the attachment by UT Financial Services Ltd made further investment in the property risky. Now that it had been made clear to the defendant that it had nothing to fear, the defendant will be permitted to remain in occupation but ordered to complete the renovation and restore all the fittings that have been removed from the premises.

 

Section 21 of Act 220 also stipulates that where a tenant has made improvements to the premises with the approval of the landlord and is requested to vacate those premises before the prescribed period, the landlord should pay compensation for the improvements that may be ordered by the rent officer.

 

In this case, since fittings on the premises have been removed and is yet to be fixed, but the roofing had been completed, equity demands that the defendant must complete the renovation and continue to occupy for the remaining terms agreed upon.

 

I therefore refuse the plaintiff’s request for recovery of possession and the defendant’s counter- claim since the renovation was for the defendant’s own benefit as was held in the case of ACQUAH VRS OMAN GHANA TRUST HOLDINGS LTD (1984-86) 1 GLR 157. In the present case, the parties also agreed that the plaintiff will not be made to pay for such renovations except that the defendant will not pay rent for three months i.e. from August to 30th November 2004.

 

The defendant is ordered to complete the renovation within three months from the date of the judgement. Should the defendant fail and/ or refuse to complete the renovations within that time, the plaintiff should come to this court by motion for an order of recovery of possession.

 

Since no interest has been awarded on the arrears of rent, plaintiff is awarded cost of GH¢5,000.00.

 

 

Counsel:                    Mr. Gyasi Nimako for Plaintiff

 

                                    Mr. David Kudoadzi for Defendant

 

                                                                                   

 

 

 (SGD) MR. S. H. OCRAN J.

           JUSTICE OF THE HIGH COURT

 
 
 

Legal Library Services        Copyright - 2003 All Rights Reserved.