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ESSILFIE-BONDZIE J.A.:
The Plaintiff/Respondent
instituted an action in March
1996 in the High Court of
Justice Sefwi-Wiawso, against
the 1st and 2nd defendants
jointly and severally for
"damages for trespass unto and
unlawful closure of his Beer Bar
and Spirits shop commonly known
and called "CORNER BAR" in H/NO.
C38 at Asaman in
Sefwi-Wiawso/Western Region on
or about 14th of March 1996.
The plaintiff's case was that he
rented the shop from Opanyin
Kwaku Matwah now deceased in
1991 and that the 1st defendant
is the customary successor of
the late Kwaku Matwah and upon
whom the interest of the late
Kwaku Matwah devolved according
to customary. The plaintiff said
that he was made to remodel the
store at the cost of ¢45,870.00
and rent was fixed at two
hundred and fifty cedis
(¢250.00) per month with effect
from 1st September, 1985.
Tenancy Agreement dated 29th
August, 1985 was executed
between the parties.
The terms of the said Tenancy
Agreement was tendered in
evidence as Exhibit A. Clauses
3, 4 and 5 of the agreement
read:
"(3) That the said amount of
Forty-Five Thousand-Eight
Hundred and Seventy cedis
(¢45,870.00) which the Tenant
herein, Mr. Thomas Yaw Chickah
has paid to us will lapse for
(121/2) twelve and half years
starting from 1st September,
1985.
(4) That there will be no
increment whatsoever after the
121/2 years is not past (That is
to say not before the 121/2
years had past)
(5) That a renewal of the rent
will start soon after the 121/2
years are over as stated in the
agreement made thereof. Dated at
Sefwi Wiawso this 29th day of
August 1985."
According to the plaintiff after
succeeding to the property the
1st defendant increased the rent
to ¢2000.00 per month at first
and then to ¢5,000.00 both of
which he consented to pay and
was paying until April 1995 when
the 1st defendant gave him six
months notice to quit the
premises which plaintiff
resisted.
The 1st defendant on the other
hand averred that in 1995 he
took action before the Rent
Officer at Tarkwa for recovery
of possession of the store after
giving six months notice to quit
to the plaintiff. He contended
that the Rent Officer ordered
recovery of possession which
order was referred to the Rent
Magistrate who subsequently
ordered the ejection of the
plaintiff. The 1st defendant
therefore counter-claimed for
recovery of possession of the
store for non-payment of rent
and also arrears of rent from
April 1995 to date of judgment.
The learned trial judge upheld
the case of the plaintiff and
gave him judgment. He however
dismissed the 1st defendant
counter-claim. He awarded the
following damages against the
1st defendant "I therefore award
damages for the plaintiff
against the 1st and 2nd
defendant jointly and severally
and order that plaintiff recover
from the 1st and 2nd defendants
(jointly and severally) all his
daily business losses at the
rate of ¢500,000.00 per month
from 14 March 1996 to the date
of judgment together with
interest at an annual rate of
30% from 14 March 1996 to the
date of final judgment." The
learned judge further made the
following award.
"I award damages of ¢3million
for trespass unto and unlawful
closure of plaintiff's Beer and
Spirits Shop against 1st and 2nd
defendant jointly and
severally."
In this appeal the 1st
defendant/appellant (who will
herein after named simply the
1st defendant) has filed one
original ground of appeal and
five additional grounds. The
plaintiff/respondent will in
this judgment be simply referred
to as the plaintiff.
The first ground of appeal is
"that the judgment is against
the weight of evidence".
It is noticeable from his
pleadings and evidence that the
plaintiff rented the premises
from the late Opanyin Matwah and
Tano Kuma. Opanyin Kwaku Matwah
died sometime in 1991 and he was
succeeded by the 1st defendant
according to custom. According
to the plaintiff there was an
agreement covering the Rental
premises. The agreement was
accepted in evidence and marked
as Exhibit A. A look at the said
agreement indicates that the 1st
defendant predecessor Opanyin
Kwaku Matwah who thumbprinted
the document was illiterate and
the agreement was written in
English. The action was
instituted on the 21st March
1996 obviously after the death
of Opanyin Kwaku Matwah.
In his evidence the plaintiff
recounted that in the course of
the dispute between him and the
1st defendant they appeared
before the Rent Control Officer
at Tarkwa. The plaintiff gave
the following evidence.
"When I went to Tarkwa I was
asked why I had refused to quit
1st defendant's premises. I told
the officer that there was an
agreement covering my Rental
occupancy. I showed the
agreement to the Rent Control
Officer. He asked the 1st
defendant why he was evicting me
from the premises in the light
of agreement. 1st defendant
denied the existence of such an
agreement so the officer made a
Photostat copy for the 1st
defendant and told him he had no
right to evict me from the
premises." (The emphasis is
mine). It is evident from
Exhibit A that the agreement
covering the Rental premises
between the plaintiff and the
1st defendant's predecessor
Opanyin Kwaku Matwah that the
latter was illiterate and
therefore thumbprinted and made
his mark on the document. There
is nothing to establish that the
person who wrote the document
for such an illiterate read or
caused to be read over and
explained the contents of the
document in terms of section 4
of illiterate protection
ordinance CAP 262 (1951) to
Opanyin Kwaku Matwah.
Again it has been held by the
courts, that the burden is
always on the party relying on
the document to prove that it
was read over and if necessary
interpreted to the illiterate
person and that it was
understood by him.
In the instant case there is
evidence that the 1st defendant
denied the existence of any
tenancy agreement and therefore
the plaintiff who was relying on
it (Exhibit A) was obligated
before the document was accepted
by the court to prove that
Exhibit A was read over and
interpreted to the 1st
defendant's illiterate uncle
before the latter thumbprinted
it. No such evidence was led by
the plaintiff. In WAYA VRS
BYROUTHY (1958) 3 W.A.C.R. 413.
It was held that "where an
illiterate executes a document
any other party to the document
who relies upon it must prove
that it was read over and if
necessary interpreted to the
illiterate." This decision was
approved and echoed in the
Supreme court's case of BOAKYEM
AND OTHERS VRS ANSAH (1963) 2
G.L.R. 223. The court further
held that where on illiterate
attests to the execution of a
document by making his mark on
it, there is no presumption that
he has knowledge of the contents
of the document.
In the light of the principles
alluded to above, I hold that
since the 1st defendant denied
the existence of the tenancy
agreement allegedly made by his
predecessor the plaintiff ought
to have led evidence to prove
that the content of the document
were read and explained to him
before his illiterate uncle
thumbprinted it. As he failed to
do so, I further hold that the
tenancy Agreement Exhibit A
never bound the 1st defendant's
predecessor and is therefore of
no effect.
Now having declared the tenancy
Agreement - Exhibit A as being
of no effect the law that should
govern the relationship between
the plaintiff and the 1st
defendant is the Rent Act, 1963
(Act 220).
As already said the 1st
defendant counter-claimed for
recovery of possession of the
store for non-payment of rent,
also for arrears of rent from
April 1995 to date of judgment.
At page 51 of this judgment the
learned judge held as follows:
"Evidence before the court shows
that the plaintiff was in
occupation of the premises now
in dispute by virtue of the
terms in Exhibit A ie the
TENANCY AGREEMENT.
There is no provision for rent
review until after 121/2 years.
Therefore 1st defendant had no
right to demand any increase in
rent and that the increase from
¢250.00 to ¢2,000.00 at the
instance of the 1st Defendant
was unlawful and - null and
void. Similarly the 1st
defendant had not right to ask
the Rent Officer to assess the
rent of the premises for by
virtue of the terms of Exhibit A
there was no provision for the
review of the rent and any
assessment effected by the 2nd
defendant at the request of the
1st defendant is null and void
abinitio and of no effect."
As already decided in this
judgment the Tenancy Agreement
Exhibit A the bases of the
plaintiff's claim is
unenforceable and of no effect.
The trial judge erred in relying
on it to give judgment in favour
of the plaintiff. Even if I am
wrong in declaring that Exhibit
A as of no effect. It is my
judgment that the learned
judge's view that because the
Tenancy Agreement - Exhibit A
has no provision for rent review
for 121/2 years the parties
could not review the rent was
erroneous. Indeed it's trite law
that parties to an agreement can
mutually amend, vary or revoke
the said agreement even if there
is no such provision in the
Agreement. See PLYMOUTH
CORPORATION VRS HARVEY (1971) 1
WLR 549 and NASH VRS. ARMSTRONG
(1861) 10 CB (NS) 259.
There is evidence on record that
the rent increases were mutually
agreed to by the parties and
plaintiff consented to paying
same until he stopped paying in
April 1995 after he was served
with the notice to quit.
Paragraphs 2 and 3 of the
plaintiff's reply and Defence to
the counter-claim read as
follows:
"2. Save that the 1st defendant
increased the rent to ¢2,000.00
per month by consent before the
increase to ¢5000 on the basis
that 250.00 per month was meager
the plaintiff denies paragraph 7
and 8 of the 1st defendant's
statement of Defence.
3. The plaintiff repeats
paragraph 2 above and says that
he agreed to the increase of
¢2,000 per month after the death
of 1st defendant predecessor
Opanyin Kwaku Matwah on
humanitarian grounds because the
1st defendant removed the old
roof and re-roofed the
store-room and other parts of
the premises and which said
re-roofing was made at a
considerable cost."
As stated 1st defendant's
counter-claim was for recovery
of possession for NON PAYMENT of
rent from April 1995 and for the
said rent arrears.
Section 17 (1) (a) of the Rent
Act (Act 220) provides,
"17 (1) Subject to the
provisions of sub section (2) of
section 25 and of section 28, no
order against a tenant for the
recovery of the possession of,
or for the ejectment from, any
premises shall be made or given
by the appropriate Rent
Magistrate or any other Judge of
a Court of competent
jurisdiction in accordance with
the provisions of any other
enactment for the time being in
force, except in any of the
following circumstances:—
(a) Where any rent lawfully due
from the tenant has not been
paid or tendered within one
month after the date on which it
became lawfully due.
.........................................................."
It is unquestionable that under
section 17 (1) (a) of Act 220
(supra) the 1st defendant claim
was legitimate and lawfully. Now
since the uncontroverted
evidence established that the
plaintiff paid the agreed rent
till April 1995 when he stopped,
the 1st defendant was entitled
to judgment on his
counter-claim. I think the
learned judge misconstrued and
misdirected himself on the
nature of the 1st defendant
counter-claim which misdirection
led him to dismiss the said
counter-claim.
The above finding disposes of
grounds (a) and (b) of the
grounds of appeal. It is my view
that the rest of the grounds
involve the same question of law
and I will therefore deal with
them together.
In his judgment the learned
judge upheld the case for the
plaintiff and awarded the
following damages.
"On the question of damages the
court is of the opinion that
there is evidence from both the
plaintiff and the 1st defendant
that the store was being used
for commercial purposes by the
plaintiff. He was selling
assorted drinks therein and that
the Beer Bar was being well
patronised. The plaintiff was
making reasonable profits
¢30,000.00 to ¢100,000.00 per
day. The store has also been
locked up since 14th March 1996.
Plaintiff's items such as
glasses, pieces of furniture,
frigidaire (Deep Freezer),
ceiling fun, tables etc have all
been locked up (see Exhibit D)
the inventory dated 14th March
1996. I therefore award damages
for the plaintiff against the
1st and 2nd defendants jointly
and severally and order that
plaintiff recover from the 1st
and 2nd defendants (jointly and
severally) all his daily
business losses at the rate of
¢500,000.00 per month from 14th
March 1996 to the date of
judgment together with interest
at annual rate of interest of
30% from 14th March 1996 to the
date of final payment."
The plaintiff's claim is for
general damages for trespass to
his store. In attempting to
prove trespass against 1st and
2nd defendants the plaintiff
called Francis KPORWONU a Sgt of
the Ghana Police Force then
stationed at Sefwi-Wiawso. He
gave evidence as PW 1. His
testimony was that sometime in
March 1996 ie 8th March to be
precise, a Rent officer from
Tarkwa accompanied by the 1st
defendant came with a letter of
authority dated 8th March 1996
to eject the plaintiff from a
Store-room at house No. C 38,
Sefwi-Wiawso. The letter was
referred to him by his District
Commander. The said letter was
tendered and marked as Exhibit
C. PW 1's evidence was that he
went to the Store with the 1st
defendant the Rent Officer (the
2nd defendant) and opened the
store. When they got to the
store the plaintiff was present
but when he was invited to
witness the inventory which was
to be taken, he refused the
invitation and went away. PW1,
said the Rent Officer and the
1st defendant then took an
inventory of the items in the
store and locked the store. The
inventory document - Exhibit D
was signed by them and he kept a
copy. He said that after taking
the inventory the store was
locked and the Rent Officer kept
the key.
The essence of the evidence of
PW 1 was that he acted with the
authority of his District
Commander after the 1st and 2nd
defendants have shown them
letter of authority. The
plaintiff was called to witness
the taking of the inventory but
he refused to do so. Under the
circumstances, what was the
basis for the trespass?
Again I Mr. Alfred Osei Mensah
(PW 2) a District Registrar in
charge of the Tarkwa Community
Tribunal gave the following
evidence under
cross-examination.
"Q: On the face for it, Exhibit
C is an authority to eject the
Tenant and was issued by the
Chairman of the Tarkwa Community
Tribunal.
A: Yes.
Q: It was directed at the Rent
Officer at Tarkwa to carry out
the order.
A: Yes.
Q: By the said authority, the
Rent Officer was to eject from
House No. C 38, Sefwi-Wiawso,
Nana Thomas Chika (the plaintiff
who is also called Nana Yaw
Nsowah).
A: Yes.
Q: He (Chika) was eventually to
hand over the keys to one
Okyeame Kobiri (the 1st
defendant).
A: Yes.
Q: The document you are holding
on the face of it is a valid
document executed by the
Chairman of the Tribunal.
A: On the face of it, it is a
valid document.
Continuing the cross-examination
the following also transpired.
Q: On the face of Exhibit C the
Rent Officer could act on the
terms of the Order without
necessary knowing whether they
were valid or invalid.
A: yes."
A look at Exhibit C evinces the
fact that it was signed by the
Chairman of the Community
Tribunal. There was no attempt
by the plaintiff to prove that
the signature of the Chairman on
Exhibit C was forged or not
genuine. I must say that in the
light of the evidence of the
plaintiff's own witnesses it is
difficult to find the basis for
the justification of award of
damages for trespass. I hold
that since the 1st and 2nd
defendants committed no trespass
there was no proof that Exhibit
C on which the police acted to
lock the store was forged.
In his own evidence-in-chief the
plaintiff also conceded that
"presently my assorted drinks,
glasses etc have since been
removed from the Store upon
Orders of the Court made on 10th
December, 1996."
Under cross-examination the
plaintiff also gave the
following testimony.
"Q: At a point in the course of
this matter you applied to this
court to have your drinks
released to you.
A: Yes, I did.
Q: Your items were released to
you."
A: Those I requested were
released to me leaving others in
the Store."
It is deducible from the
evidence on record that
throughout the trial the
plaintiff made no attempt to
prove any damage for trespass at
all apart from repeating his
averment in the statement of
claim, that he was earning on
average about ¢80,000.00 to
¢100,000.00 per day from the
Store which was denied by the
1st defendant.
There is no proof on record to
justify the award of ¢500,000.00
per month as the plaintiff
business losses made by the
trial judge. It is my judgment
that the award of ¢500,000.00
per month as the plaintiff's
losses from the 14th March 1996
to the date for judgment,
together with interest of 30%
from 14th March, 1996 to the
date of final payment has no
legal bases. The learned trial
judge failed to provide any
legal justification whatsoever
for the award.
For the matters discussed above,
I will set aside the judgment of
the High Court and give judgment
for the 1st defendant on his
counter-claim. The appeal is
accordingly allowed.
Having come to the above
decision I do not think any
useful purpose will be served by
my dealing with the rest of the
grounds of appeal filed by the
1st defendant?
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
ARYEETEY J.A.:
I agree.
B.T. ARYEETEY
JUSTICE OF APPEAL
OWUSU-ANSAH J.A.:
I also agree.
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL
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