HEADNOTES
The essential facts of the case
are contained in documents
tendered at the trial to be
found in the record of appeal
and not subject to serious
contestation. The co-defendants
were sitting tenants in landed
property at Kumasi popularly
called Edward Nassar
Supermarket, owned by the 1st
defendant. In 1997 the 1st
defendant offered the property
for sale through Merchant Bank
(Ghana) Ltd. The plaintiffs
purchased the property on terms
contained in an agreement for
sale dated 11th
February, 1998 and paid the
purchase price to Merchant Bank
(Ghana) Ltd. Upon this, the 1st
defendant applied to the Lands
Commission, Kumasi for consent
to formally assign the property
to them and same was granted on
29th April, 1998.
Thereafter, the 1st
defendant notified the
co-defendants that plaintiffs
were the new owners of the
property so thenceforth, they
should deal with them. The
co-defendants took objection to
the sale and in a letter dated
11th June, 1998 their
lawyer wrote to the 1st
defendant to protest, claiming
that they were supposed to have
been given the first option to
purchase the property. In a
response dated 21st
July, 1998 the 1st
defendant stated that the
tenants were all along aware
that the property was being sold
but made no serious effort to
purchase it. 1st
defendant however purported to
re-open the sale of the property
to accommodate the
co-defendants, but when Merchant
Bank (Ghana) Ltd were contacted,
they informed the co-defendants
that the property had been sold
already and there was nothing
anyone could do to reverse the
sale except the plaintiffs
consented to it. The plaintiffs
however held to their purchase
and demanded that the draft
assignment for which the Lands
Commission had given consent be
sealed by the 1st
defendant to them. Strangely,
the keeper of the seal of 1st
defendant refused to seal the
deed of assignment, wherefore
plaintiffs sued in the High
Court for specific performance,
recovery of possession and
perpetual injunction The
co-defendants applied and were
joined to the case. The High
Court gave judgment in favour of
the plaintiffs and the
co-defendants appealed but lost
in the Court of Appeal and they
have further appealed to the
Supreme Court.
HELD
Consequently, there is no merit
whatsoever in the claims the
co-defendants have been pursuing
all these years and their appeal
to this court fails and same is
hereby dismissed. The judgment
of the High Court dated 26th
November, 2013 granting all the
reliefs claimed by plaintiff, as
well as that of the Court of
Appeal dated 19th
October, 2016 are hereby
affirmed
STATUTES REFERRED TO IN JUDGMENT
Conveyancing Act, 1973 (NRCD
175)
Rent Act, 1963 ( Act 220
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BAFFOE –BONNIE, JSC:-
COUNSEL
PAUL ADU-GYAMFI FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
KWAME ADOM-APPIAH FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS.
SULLEY SAMBIAN FOR THE
CO-DEFENDANTS/APPELLANTS/APPELLANTS.
BAFFOE –BONNIE, JSC:-
We wish to place on record from
the very onset that we find no
merit in the appeal and
therefore dismiss same. We
believe that the judgment of the
Court of Appeal discussed the
very essential issues and more,
and came to the right
conclusions. We therefore see
this short write up as
confirming the very unassailable
judgment delivered by the Court
of Appeal.
This case commenced in the High
Court, Kumasi on 12th
October, 1998 and for more than
twenty years it is still pending
in the courts as the
co-defendants have appealed
against the judgment of the
Court of Appeal dated 19th
October, 2016. This is a sad
narrative of the manner we
deliver justice to law abiding
parties who seek redress from
our courts, particularly in a
case such as this one which is
quite straight forward. We hope
that this delivery will signal
the end of a matter which we
believe could have been
curtailed by resort to legal
arguments.
The essential facts of the case
are contained in documents
tendered at the trial to be
found in the record of appeal
and not subject to serious
contestation. The co-defendants
were sitting tenants in landed
property at Kumasi popularly
called Edward Nassar
Supermarket, owned by the 1st
defendant. In 1997 the 1st
defendant offered the property
for sale through Merchant Bank
(Ghana) Ltd. The plaintiffs
purchased the property on terms
contained in an agreement for
sale dated 11th
February, 1998 and paid the
purchase price to Merchant Bank
(Ghana) Ltd. Upon this, the 1st
defendant applied to the Lands
Commission, Kumasi for consent
to formally assign the property
to them and same was granted on
29th April, 1998.
Thereafter, the 1st
defendant notified the
co-defendants that plaintiffs
were the new owners of the
property so thenceforth, they
should deal with them.
The co-defendants took objection
to the sale and in a letter
dated 11th June, 1998
their lawyer wrote to the 1st
defendant to protest, claiming
that they were supposed to have
been given the first option to
purchase the property. In a
response dated 21st
July, 1998 the 1st
defendant stated that the
tenants were all along aware
that the property was being sold
but made no serious effort to
purchase it. 1st
defendant however purported to
re-open the sale of the property
to accommodate the
co-defendants, but when Merchant
Bank (Ghana) Ltd were contacted,
they informed the co-defendants
that the property had been sold
already and there was nothing
anyone could do to reverse the
sale except the plaintiffs
consented to it.
The plaintiffs however held to
their purchase and demanded that
the draft assignment for which
the Lands Commission had given
consent be sealed by the 1st
defendant to them. Strangely,
the keeper of the seal of 1st
defendant refused to seal the
deed of assignment, wherefore
plaintiffs sued in the High
Court for specific performance,
recovery of possession and
perpetual injunction. The
co-defendants applied and were
joined to the case. The High
Court gave judgment in favour of
the plaintiffs and the
co-defendants appealed but lost
in the Court of Appeal and they
have further appealed to the
Supreme Court.
We have read closely the
judgment of the Court of Appeal
and are satisfied that it
answered competently and
comprehensively, all the grounds
of dissatisfaction the
co-defendants had with the
judgment of the trial court.
The central issue in this case
is a very narrow one and it is;
whether the co-defendants, as
sitting tenants, had a right of
first option of purchase at the
time the property was bought by
the plaintiffs? As the Court of
Appeal rightly held, there is no
common law right of a sitting
tenant to be given first option
when the landlord decides to
sell the property. Such right
can only be conferred by
agreement between the tenant and
the landlord or by statute.
Incidentally this erroneous
proposition of the law is held
by many practitioners of the
law.
In the statement of case of the
co-defendants at page 12 they
stated as follows;
“….the appellants were asked by
the 1st defendant
company to assist financially to
renew the expired lease, so as
to enable them, as tenants to
continue to occupy the premises
and this the appellants obliged,
on the understanding that the
property will not be sold or
assigned to any person without
them given the first option.”
The claim by co-defendants that
they acted on an understanding
that they would be given a first
option of purchase is not what
was pleaded in their statement
of defence and counter-claim and
is not borne out by the evidence
on record. What they pleaded was
that, as sitting tenants,
they were entitled to be given
that option. Clearly
therefore, the claim that they
were of that understanding is an
after thought which, in any
case, did not bind the 1st
defendant since it was their
unilateral understanding.
Besides that, the co-defendant
averred in their defence and
counter-claim that after the
renewal of the head lease by 1st
defendant they entered into
tenancy agreements with it. They
tendered some agreements as
Exhibits 15 to 26. But while
some of them bear dates after
the date of renewal of the head
lease, others are dated prior to
the renewal. None of these
agreements contains a term to
the effect that the
co-defendants would be given a
first option to purchase the
property. Though the tenancy
agreements that pre-dated the
renewal may have expired as at
the date of the sale to
plaintiffs, the law is that a
tenant who holds over premises
after the expiry of a tenancy
agreement continues in
possession on the terms of the
expired agreement. See
section 29(1)(a) of Act, 220.
In the circumstances, the legal
rights of the co-defendants were
as stated in the agreements they
tendered which they are bound by
and cannot contend the contrary.
It is therefore plain, that the
co-defendants did not have a
contractual term for a first
option of purchase.
We have examined the relevant
statutes in Ghana to see if
there is a statutory conferment
of a right of first option of
purchase by a sitting tenant.
Section 22 of the
Conveyancing Act, 1973 (NRCD
175) by law implies certain
covenants by a lessor of
property, but a right of first
option of purchase by a lessee
is not among the implied
covenants. Similarly, the
Rent Act, 1963 ( Act 220),
which confers general rights on
tenants, has not conferred a
right of first option of
purchase on sitting tenants.
Consequently, there is no merit
whatsoever in the claims the
co-defendants have been pursuing
all these years and their appeal
to this court fails and same is
hereby dismissed. The judgment
of the High Court dated 26th
November, 2013 granting all the
reliefs claimed by plaintiff, as
well as that of the Court of
Appeal dated 19th
October, 2016 are hereby
affirmed.
But before resting from this
judgment, we wish to express our
reservation about the manner
this simple case was managed by
the High Court leading to
unacceptable delay of the
plaintiffs in obtaining justice
from the court. As we pointed
out at the outset, the facts in
the case are covered by
documents which are not disputed
and if the trial court had
adverted its mind to the
pleadings and properly
identified the legal issues that
arise on the undisputed facts,
this case should have been
determined by legal arguments
and concluded timeously. We urge
trial courts to pay due
attention to the legal questions
that arise in cases before them
and take advantage of the case
management mechanisms that have
been provided for in the Rules
of court to relieve parties from
avoidable delay and high cost of
litigation.
(SGD) P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
GBADEGBE JSC:-
I agree with the reasoning and
conclusion of my brother Baffoe-
Bonnie JSC.
N.
S GBADEGBE
(JUSTICE OF THE SUPREME COURT)
BENIN, JSC:-
I agree with the reasoning and
conclusion of my brother
Baffoe-Bonnie JSC:-
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
APPAU JSC:-
I agree with the reasoning and
conclusion of my brother Baffoe-Bonnie
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the reasoning and
conclusion of my brother Baffoe-Bonnie
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
PAUL ADU-GYAMFI FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
KWAME ADOM-APPIAH FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS.
SULLEY SAMBIAN FOR THE
CO-DEFENDANTS/APPELLANTS/APPELLANTS.
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