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RULING
FOSTER, J.A.
In 1997, the
Plaintiff/Respondent (hereinafter called the Plaintiff)
sued out a writ in the High Court, Accra against the
Defendant as tenant claiming (as per amendment statement
of claim dated 14th July, 1998):
(1) An order of
ejectment from property No 109, East Cantonments, Accra.
(2) Rent arrears of the
cedi equivalent of US $ 38,250
(3) Interest on the
said sum from 1st July, 1996 to date of payment.
(4) Mense profits.
The Defendant duly
entered appearance and resisted the claim. Essentially,
the defendant denied that the plaintiff was his landlord
and contended that the sale of the property by the
previous owners to the plaintiff was a sham.
The trial High Court
Judge on 30th January, 1998 granted plaintiff’s summons
for Summary judgment, observing that”
“On the pleadings so
far filed in the suit, it is my considered Opinion that
the application should be granted”.
The defendant appealed
to the Court of Appeal and applied to the trial court
for stay of execution and upon the refusal of the court
to grant the application, the defendant repeated the
application for stay of execution in this Court. The
defendant in his affidavit in support of the application
recounted plaintiff’s claim that:
“ (2)…he is the new
owner of H/No 109, East Cantonments, Accra. Having
purchased same from UNILEVER (Ghana) Limited, and sought
an order for my ejection from the said house for
non-payment of rent of $2,125.00 per mensem”.
Defendant then repeated
the substance of his defence considered paragraph 3 that
he:
(a) Challenged
plaintiff’s alleged ownership of the house since he had
failed to exhibit any registered Deed of
Assignment/sale.
(b) That the rent
payable to UNILEVER at all times material to this action
was $1,500.00 per mensem and not $2,125.00 as claimed by
plaintiff.
(c) Challenged the
legality and enforceability billing of the agreement
charging rent in US$ contrary to the applicable fiscal
laws of the Bank of Ghana”
In the view of the
defendant these averments, and as pleaded in his defence
in the action, raised triable issues which the trial
judge should have resolved by a trial and therefore he
erred in entering summary judgment against the
defendant.
The issues must be
resolved by considering each separately.
As to the issues of
ownership:
The defendant does not
contend that he and not the plaintiff is the owner of
the property. He does not also dispute that the property
was owned by UNILEVER [GHANA] Limited. It is on record
that by their letter dated December 29, 1995, Unilever
notified the defendant as follows:
“TENANCY WITH UNILEVER
[GHANA] LIMITED
This serves to notify
you that the property occupied by your goodself has now
been sold to Mr. Sam Jonah of Ashanti Goldfields
Corporation.
You will therefore
attorn tenancy to your new landlord with effect from 1st
July, 1995. To wit you will acknowledge his ownership of
the property and agree the new tenancy with him.
Please let us have your
cheque in settlement of the rent up to June 1995”.
The letter was signed
by the Group Legal Adviser/Company Secretary and copied
to the plaintiff. It is on record as Exh. 1. There was
no adverse reaction, comments or challenge from the
defendant.
Subsequently, and, in
acknowledgement of the plaintiff as the new landlord,
the defendant attorned tenancy to him by three cheques
drawn on the Social Security Bank Limited.
In the circumstances,
the defendant was twice estopped from now contending
that the property was not owned by the plaintiff. First,
as a tenant he was estopped from denying the validity of
the title of his landlord, both at common law and under
Section 27 of the Evidence Decree, 1975, (NRCD 323). And
second by conduct in accepting the plaintiff as his new
landlord and attorning tenancy to him.
As to the illegality of
the agreement charging rent in US Dollars, the defendant
contends that since the rent was quoted in US Dollars,
it violated the Bank of Ghana Notice No BG/GOV/SEC/98/2
and was thus illegal and unenforceable. The agreement to
pay rent stipulated in US Dollars as shown by Exhs. LDK
4 – 6, being cheques issued by or on behalf of the
defendant in payments of rents due. The amounts on the
cheques were no doubt expressed in US Dollars. But
significantly, while these payments were made on 3rd
September, 1996, 23rd October, 1996 and 27th November,
1996 respectively, the Bank of Ghana Notice prohibiting
such receipts or payments in foreign currency was issued
on 14th January, 1998, and thus was not in operation at
the time of payments in 1996. Additionally, the Notice
exempted some designated foreign exchange dealers,
including authorised dealer banks “which may accept
foreign exchange from the public”. The lodgment of the
cheques with the Social Security Bank and by the
plaintiff, a member of the public could not be said
therefore to have been illegal.
As regards the
plaintiff’s claim for “rent arrears of the cedi
equivalent of US$38,250” it is clear that what was
claimed was payment in cedis. And that fact that it was
to be equivalent of a sum expressed in us Dollars did
not in my view violate the notice of prohibition issued
by the Bank of Ghana to the general public.
Indeed whatever was
received by the Respondent were paid into his account at
Ecobank, an obviously authorised dealer bank. It is most
illuminating to observe that on the face of the three
cheques the bank had converted the amounts quoted in
dollars into cedis, using the prevailing exchange rates.
Thus, on Exh LDK 4 the
$12,000.00 has ¢20,203,680.00 as the equivalent in cedis.
(using the conversion rate of ¢1,683.00 to the dollar).
And on Exhibits LDK 5 and 6, the cedis equivalent of
$6,000.00 is stated as ¢10,258,380.00 (as ¢1,709,13 to
the dollar) and ¢10,316,700.00 (as ¢1,719.45 to the
dollar), respectively. As thus demonstrated, the dealer
bank itself was aware that the amounts to be lodged into
the account of the respondent and to his benefit he was
required to be the cedi equivalent of the amounts quoted
in dollars on the three cheques. What was therefore
ultimately received by the respondent was payment in
cedis.
In my judgment, none of
the issues canvassed by the defendant in his Statement
of Defence could be said to raise triable issues so as
to render it incompetent in the judge entering summary
judgment against the defendant. And I do not share in
the optimism of the defendant that the appeal has a good
chance of succeeding. The defendant further contends
that if the judgment is not stayed, I would suffer
irreparable loss and damage if I am thrown out of my
present abode and forced to pay the rent being illegally
claimed”. The defendant is not claiming title to the
property; the loss in contemplation is ejectment arising
from his failure to pay the rent. It would seem that in
his view the hardship arises from the enforcement or
execution of the judgment by the plaintiff. I think that
mere inpecuniousity of a judgment debtor to satisfy a
claim comprised of a judgment, which in my view was not
illegal as claimed by the defendant, does not justify a
stay of execution.
The application for
stay is accordingly refused.
A.A. FORSTER
JUSTICE OF APPEAL
OFORI-BOATENG, J.A.
I agree.
J. OFORI-BOATENG
JUSTICE OF APPEAL.
ESSILFIE-BONDZIE, J.A.
I also agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL.
COUNSEL
STANLEY AMARTEIFIO FOR
THE PLAINTIFF/RESPONDENT
ADUMUAH-BOSSMAN FOR THE
DEFENDANT/APPLICANT. |
