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JUDGEMENT
BY COURT:
The Plaintiff by his writ issued
on 14th February 2007
claimed the following from the
defendants.
1.
An order appointing a valuer to
assess the economic rent payable
for the demised land from the 1st
day of June 1970 to date.
2.
An order that the 1st
defendant pays to the Plaintiff
the assessed rent.
3.
Recovery of possession of the
said demised land from the
defendants
4.
Mesne profits
5.
Damages for breach of the terms
of the said lease.
In the Statement of Claim that
accompanied the writ, the
Plaintiff pleaded that he is the
administrator of the estate of
Humphrey Djan Tetteh, the
original leasor of the land in
dispute and had instituted the
action against 1st
Defendant who claims to be the
son of George Kofi Kattah
(deceased) the lessee of the
land the subject matter of
dispute and the person currently
in possession of the land and
the 2nd Defendant,
who also occupies part of the
land, at the instance of the
defendant. The Plaintiff
pleaded that on 5th
September 1969, the late
Humphrey Djan Tetteh (herein
after referred to as the
‘lessors’) leased the land in
dispute to George Kofi Kattah
(hereinafter referred to as the
lessee) for a term of 10years
certain, with on option for
renewal for a further 10 years
effective from 1st
June 1969. According to the
Plaintiff, the 1st
Defendant has not renewed the
lease, yet he occupies it and
has not been paying rent but
been collecting rent from the 2nd
Defendant.
Even though the 2nd
Defendant entered appearance, no
defence was filed. The 1st
Defendant however entered
appearance and by his amended
Statement of defence filed on 23rd
April 208, denied that the land
in dispute forms part of the
estate of the leasor. He
however admitted that he is in
occupation of the land in
dispute as the son and successor
to the lessee. The defendant
also challenged the capacity of
the plaintiff to commence this
action. The defendant pleaded
further that when the lease
expired, in 1979, the option for
renewal was exercised, and rent
was paid over the period, with
the last payment made in 1991.
The defendant also pleaded that
they opted to purchase the land
before the expiration of the 10
years in 1989. According to the
defendant, the lessors dragged
their feet on the sum to be paid
for the purchase since 1991, and
they did not also take any step
to demand the purchase price
until 2006. By this, the
Defendant pleaded that the
Plaintiff’s action is statute
barred.
On 22nd July, 2008
original issues filed on 15th
May, 2008 and the additional
issues filed on 27th
June, 2008 were set down for
hearing.
Original issues ‘a’ ‘b’ and ‘d’
which read as follows:
a)
Whether or not the plaintiff is
the administrator of the estate
of the late Humphrey Djan Tetteh
Lomotey and if so.
b)
Whether or not he is bringing
this action on behalf of the
said estate.
Will be resolved together with
additional issue 2 which is the
same as issue‘d’ which is as
follows:
Whether or not the Plaintiff has
capacity to solely bring this
action in respect of the land in
dispute.
In paragraph 1 of the Plaintiffs
statement of claim, he stated
that he is the administrator of
Humphrey Djan Tetteh Lomotey and
is bringing the action on behalf
of the estate. The defendant
denied this, and stated that the
land does not form part of the
estate of the lessor.
The Plaintiff gave evidence
that, he is the eldest son of
the lessor who died in 1987.
That he was appointed the
successor and had applied for
letters of Administration to
administer the estate of the
lessor. A photocopy of the L.
A. was admitted as exhibit ‘B’.
Exhibit ‘A’ which the defendant
admits is the lease covering the
transaction between the lessor
and the lessee was executed by
only the lessor for himself and
his brothers and sister.
The defendant who denied the
capacity of the Plaintiff, and
also pleaded that the land does
not form part of the estate of
the lessor, did not mention who
is the current owner of the
land. The Defendant however led
evidence that they dealt with
the Plaintiff after the death of
the lessor. Not having
mentioned who are the current
owners of the land, and having
dealt with the Plaintiff after
the death of the leasor, the
Defendant is estopped from
denying the capacity of the
Plaintiff with reference to
dealings with the land in
dispute. In the case of Kwame
Vrs. Serwah and others (1993-94)
1 GLR 429, Bamford-Addo and
Hayfron Benjamin JJ SC held that
“…. since the plaintiff had been
aware that K.M was developing
the plot and yet he had not
pointed out to K.M the defects
in his title, the plaintiff was
guilty of acquiescence and
standing by and should not be
allowed to avoid the devised
made by K.M……. Accordingly the
defendants were entitled to
raise the ground of estoppels by
laches or acquiescence or
both.
I therefore resolve issues ‘b’
and ‘d’ and additional issue 2
in favour of the Plaintiff that
he is the administrator of the
lessor and that he has capacity
to commence this action on
behalf of the estate of the
lessor.
Original issue ‘e’ will be
resolved together with
additional issue 3.
These are as follows:
e) Whether or not the 1st
Defendant or his father the late
Gorge Kattah exercised the
option to renew the lease of the
said land before its expiration
on 31st May 1979 by
effluxion of time.
3. Whether or not the 1st
Defendant or his late father
George Kofi Kattah
constructively exercised the
right of option to renew the
lease after the expiration of
the first ten (10) years term on
31st day of May,
1979.
The Plaintiffs gave evidence
that the lease was not renewed,
but before the time for renewal
was up, the lessee had died.
However the 1st
Defendant moved into the land
after the death of the lessee
whose date of death was given by
the 1st defendant as
1979, but by D.W. 1 as 1976.
Even though the month of the
date had not been given, the
Plaintiff himself gave evidence
that the lessee died before the
time to exercise that option was
up.
It is trite that time does not
run against a deceased person,
but in this case the 1st
defendant admitted in his
pleading that he is in
possession of the land in
dispute, as a son and the
successor to the lessee. Since
he has been taking advantage of
the lease he was under an
obligation to perform the
conditions in the exhibit ‘A’.
Clause 4 (a) of exhibit ‘A’ is
as follows: “That the lessors
shall upon the request of the
lessee whether in writing or
not, made anytime before the
commencement of the last month
of the term hereby created and
if there shall not at the time
any existing breach of or
non-observance of any of the
covenants on the part of the
lessee grant to him a further
term of Ten (10) years from the
expiration of the term hereby
crated upon the same terms.
From exhibit ‘A’ the right to
renew should have been exercised
before the expiration of the
first 10 years, but not after,
as the defendant wanted this
court to believe. In the case
of AKIM AKROSO STOOL and others
Vrs. AKIM MANSO STOOL & ORS.
(1989-90) 1 GLR 100, the Court
of Appeal held in its holding 3
that “What the words in a
document meant could only be
derived from the document
itself. The intention of the
parties had to be gathered from
the written instrument. The
function of the court was to
ascertain what the parties meant
by the words which they had
used. The Court was to declare
the meaning of what was written
in the instrument and not what
was intended to have been
written so as to give effect to
the intention expressed….”
Since the option to renew was
not exercised in the first 10
years the defendant’s contention
that it was in the 2nd
10 years as raised in his
additional issue 3, is not
tenable. I therefore hold that
the right to renew was not
exercised.
Original issue 4 will also be
resolved together with issue ‘f’
‘f’ whether or not the 1st
defendant continues to occupy
and use the said land without
paying any rent to the Plaintiff
or the said estate despite
demands made on him to do so by
the plaintiff.
4. Whether or not the 1st
Defendant or his late father
paid rent in respect of the
second ten (10) years term.
The plaintiff gave evidence that
the defendant did not pay any
rent from 1st June
1979 to 31st May,
1989. Whilst the plaintiff was
under cross examination, he
insisted that the defendant had
not paid any money to him until
exhibits 1, 2, and 3 were
tendered through him. He
explained that his father’s
lawyer the late Peter Alla
Adjetey charged them ¢120,000.00
for breach of contract. The
defendant challenged the
plaintiff on this and led
evidence that they met at Mr.
Peter Alla Adjetey’s chambers,
and they agreed that an amount
of ¢120,000.00 should be paid as
rent for the next 10 years, and
this was up to 1989.
According to the Defendant on 29th
May, 1985, he paid an amount of
¢30,000.00 to the plaintiff
through Mr. Alla Adjetey.
Exhibit ‘4’ was tendered as
proof of this. Exhibit ‘3’ is
dated 26th July 1986
and is endorsed with arrears of
lease rent due. On exhibit 3
the balance due was ¢38,000.00.
Exhibit 2 is dated 30th
May, 1991 and it was endorsed
with the sum of ¢5,000.00 as
part payment of ¢28,000.00.
Then there is Exhibit I which is
dated 12th July, 1991
and endorsed with Five thousand
Cedis, which is the last payment
of ¢38,000.00. These payments
were commenced in 1985 and since
exhibit 4 was issued by the
plaintiff’s lawyer and it was
described as part payment of
arrears of rent. I accept the
Defendant’s evidence that the
¢120,000.00 was the rent for the
period 1979 to 1989.
One may say that since an amount
of ¢120,000.00 was paid as rent
for 10 years it meant the option
for renewal was exercised. This
view is incorrect because if it
had been a renewal, the rent
should have continued to be
¢30.00 a month as clause 4 of
exhibit ‘A’ stated that it
should be on the same terms.
The yearly rent would have been
¢360.00 and for the 10 years it
would have been ¢3,600.00.
This should have been so because
in the case of DACOSTA & others
Vrs. Ofori Transport Ltd
(2007-08) SC GLR 602, the
Supreme Court affirmed the
decision of the Court of Appeal
and held that “the Court of
Appeal had correctly stated that
where rent had been
contractually fixed in a lease,
the courts would not review it
during the continuance of the
lease.”
In this case, the right to renew
was not exercised so the
original contract was abrogated
and a new rent was agreed
upon. The fact that a new rent
was agreed upon does not
necessarily mean that the option
of renewal was exercised as was
held in Union Trading Co. Vrs
Karam (1975) 1 GLR 212.
I therefore hold that the
Defendant paid rent for the
period 1979 to 1989, and that is
the ¢120,000.00.
Issues ‘g’, ‘h’, 5 and 6 read as
follows:
g) Whether or not the 1st
Defendant applied to exercise
the option to purchase the said
lease on the 27th day
of April 2006 through a letter
written on his behalf by his
lawyer and if so
h) Whether or not the
Plaintiff rejected the amount of
¢25,000,000.00 offered by the 1st
Defendant as the purchase price
of the said land.
(5) Whether or not the 1st
Defendant or his late father
opted to purchase all the right,
title and estate of the lessors
as provided in the leasehold
agreement in respect of the land
in dispute.
(6) Whether or not the
lessors took steps to accept the
¢4,000.00 payment of the agreed
purchase price in respect of the
land in dispute on the
expiration of the in leasehold
as provided in the leasehold
agreement.
Clause 4 (b) of exhibit ‘A’
reads as follows:
“it is also agreed that at any
time before the expiration of
the term hereby created, the
lessee shall have the option of
purchasing all the right, title
and estate which the lessors
have in or over the said
premises as per the schedule
hereat attached at a price to be
negotiated and agreed upon by
both the lessors and the lessee,
having regard generally to the
existing or current value of
land located in the same area as
the demised premises herein, but
in any even not exceeding
¢4,000.00 and the lessors shall
convey the said demised premises
unto the lessee.”
From this clause 4(b) of exhibit
‘A’ the lessee could only
exercise the right to purchase
before 31st May
1979. It is only within that
time that the lessee can pay not
more than N¢4,000.
The Plaintiff led evidence that
the defendant did not exercise
the right to purchase, but the
Defendant contended that they
did. The burden is therefore on
the Defendant to proof as was
held in the case of Barker-Woode
Vrs. Nana Fitz (2007-08) SC GLR
879. On 8th April,
2009, the Defendant led evidence
in chief as follow:
“At the end of 1989, I went to
the Plaintiff in the house at
La, Trade fair and told him that
I wanted to buy the land for
¢4,000.00 as in the agreement.
The plaintiff said he will not
agree because the price was too
small…”
From the defendant’s own
evidence it was at the end of
1989 that he wanted to purchase
and the plaintiff refused. Since
that was not within the period 1st
June, 1969 to 31st
May, 1979, the Plaintiff was not
bound to accept the offer to
buy.
In Page Vrs. Mallow Investments
(1974) 119 sol Jo 48, the
defendant demised premises to
the plaintiff for a term of 25
years from September 29th,
1970. It gave an option to the
plaintiff to purchase the
reversion in fee simple by
giving to the defendant notice
“no more than 18 months after
the commencement of the term
hereby granted”. On June 5th1972,
the plaintiff gave notice. It
was held that the words after
commencement of the term hereby
granted referred to the date on
which the term started, namely
September 29th 1970.
The plaintiff’s notice was
therefore invalid being out of
time.
In this case the defendants own
evidence shows that he did not
exercise the option to purchase
before the term created expired.
In Acquah Vrs. Oman Ghana Trust
Holdings Ltd (1984-86) 1 GLR 157
at page 160 Mr. Justice Apaloo
C.J. said “it is common ground
that the company did not
exercise the option to renew.
Accordingly the lease determined
by effluxion of time on 30th
October 1979.”
In this case the defendant
attempted to lead evidence that
a contract for the sale of the
house was concluded between him
and the plaintiff. Since the
plaintiff denied this contract,
the burden was on the Defendant
to proof. The defendant led
evidence that a meeting was
called by his lawyers in the
office of Kudjawa and Co. and
that it was exhibit ‘E’ dated 1st
December, 2004 which called for
the said meeting. He himself
could not tell when the meeting
was called. The Defendant also
said at the end of 1989, I went
to the plaintiff in the house at
La, Trade Fair and told him that
I wanted to buy the land for
¢4,000.00 as in the agreement.
D.W.1 however led evidence that
they went to the house of the
plaintiff several times to pay
rent and discuss the purchase of
the land. D.W.1 also gave
evidence in chief as if he was
at the meeting that decided that
an amount of ¢25,000,000.00 was
to be paid as the purchase price
for the land. During cross
examination D.W. 1 had to admit
that he was not at the meeting.
Considering the contents of
exhibits ‘D’ which is dated 28th
October 2004, that of ‘C’ dated
14th October 1991,
Exhibit ‘E’ dated December 1st
2004, exhibit ‘F’ dated April 27th
2006 and exhibit ‘G’ dated 15th
May 2006, and the contradictions
in the Defendant’s case, I do
not believe the evidence of the
Defence that a contract of sale
was concluded. I therefore hold
that at no time did the
Defendant nor his father opted
to purchase the land. The
plaintiff was therefore
perfectly entitled to reject the
¢11,000,000.00 as part- payment
of the purchase price of the
land.
On issue ‘I’ that is “Whether or
not the ¢11,000,000.000 paid by
the 1st defendant out
of the said ¢25,000,000.00 was
taken as part-payment only of
the rent arrears owed by the 1st
defendant.
The plaintiff gave evidence that
since the defendant did not pay
rent from 1st June
1979, he took that money as
arrears of rent. The defendant
however says that the
¢11,000,000.00 was part-payment
of the purchase price. Since I
have held that no contract was
concluded with regard to the
purchase of the land, the
¢11,000,000.00 cannot be
part-payment of the purchase
price.
Since I have already held that
from 1st June 1979 to
31st May, 1989, the
defendant paid rent of
¢120,000.000 even though the
lease had then lapsed, I reject
the plaintiff’s case that no
rent was paid since 1979 but
hold that from 1st
June 1989 to date no rent had
been paid. Since there is also
no evidence that rent was
negotiated as was done for 1st
June 1979 to 31st
May, 1989 but the defendant had
since remained in occupation,
they became statutory tenants
under Section 36 of the Rent Act
1963 (Act 220). In Acquah Vrs.
Oman Ghana Trust Holdings Ltd
(Supra), the Court of Appeal
held in its holding 4 that “As
the contractual determined A
could not properly claim rent
which was a matter of
agreement. But the company (0)
was obliged to pay reasonable
periodic sums for their use and
occupation of the premises as
they could not be better off
financially because they chose
to hold over. That claim for
rent sounded in Mesne profits.
And the quantum of mesne profits
was normally the rent reserved
in the lease.
Since in this case the rent
reserved in the lease in 1969
was ¢30.00 per month and had
expired by May 1979, this cannot
be taken as economic rent for
the premises. I therefore order
Rent control Department to
assess the recoverable rent of
the premises from 1st
June, 1989 to 31st
July, 2009. The ¢11,000,000.00
which the defendant paid should
be deducted from the assessed
recoverable rent. The balance
remaining should be paid to the
plaintiff. Until the 1st
defendant gives up vacant
possession the plaintiff should
collect monthly rent on the
assessed recoverable rent.
The next issue to consider is
whether or not the plaintiff’s
action is statute barred. From
the defendant’s own evidence,
for the period 1st
June 1979 to 31st May
1989, he and the plaintiff
agreed on an amount of
¢120,000.00 as the rent for the
premises. It is therefore rent
for the period 1st
June 1989 that had not been
paid. Within this period, there
is evidence on record that the
plaintiff had been making demand
for the payment of rent. In
October 1991, exhibit ‘C’ was
written for and on behalf of the
plaintiff. In July 1991 exhibit
I was issued to the defendant.
In 2004, exhibit ‘D’ was written
on behalf of the plaintiff and
exhibit ‘E’ dated December 1st
2004 was written in reply to
exhibit ‘D’. The defendant said
a meeting was held when exhibit
‘E’ was sent, but he does not
know when the meting took
place. The plaintiff also said
a meeting took place after
exhibit ‘E’ but it was not to
discuss the purchase price, but
on payment of rent. In May
2006, exhibit ‘G’ was written
and the sum of ¢11,000,000.00
was paid. These acts indicate
that the plaintiff had not
abandoned his interest in the
land, and the defendant also
recognized the plaintiff’s
interest in the land.
In a case of this nature, it
cannot be said that the
plaintiffs had abandoned their
interest, or that the defendant
is in adverse possession. This
is so because in Akoto Vrs.
Gyamfi-Addo and Another
(2005-06) SC GLR 1018 it was
held in holding 2 of the head
note that ‘In land law,
“possession” was used not in the
popular sense of physical
occupation of the land but it
included receipts of rents and
profits or the right to receive
same………”
Again in Djin Vrs. Musah Baako
(2007-08) SC GLR 686, Mr.
Justice Atuguba JSC at pages 696
to 697 considered section 10 of
the Limitation Decree, N.R.C.D.
54, and considered the
circumstances that will operate
to bar the title of an owner of
land under the Limitation
Decree. He then cited with
approval the statement of Lord
Denning MR. in Wallis Cayton Bay
Holiday Camp Ltd Vrs. Shellmex &
BP Ltd (1975) 1 QB 94 at 103.
In that case Wallis stated their
claim on actual possession for
12 years. They farmed the land
as their own for 10 years and
used it as their own for another
two years. They said Shell-mex
ought to have brought an action
for possession during those 12
years; and that not having done
so, Shell-mex are barred, and
Wallis have a possessory tile
under the Limitation Act, 1939.
Lord Denning MR. said, there is
a fundamental error in that
argument. Possession itself is
not enough to give a title. It
must be adverse possession. The
true owner must have
discontinued possession, or have
been dispossessed and another
must have taken it adversely to
him. There must be something in
the nature of an ouster of the
true owner by the wrongful
possessor.”
Since in this case the defendant
himself recognizes the title of
the plaintiff, and been paying
rent up to 31st May,
1989 and been negotiating to
purchase it from the Plaintiff
without success, the defendant
is estopped from saying that the
plaintiff is estopped by laches
and acquescense under Section 10
of N.R.C.D. 54.
The defendant’s interpretation
of Section 9(i) of N.R.C.D 54 is
also wrong. Assuming no rent
had been paid, the plaintiff
could have recovered arrears of
rent from 14th
Ferbruary, 2001 since the writ
was issued on 14th February,
2007. In this case there is the
¢11,000,000.00 that was paid on
27th April 2006. In
calculating when the right of
action accrued to the plaintiff,
it will be after 27th
April 2006. I therefore hold
that the plaintiff’s action is
not statue barred.
Even though the plaintiff
claimed damages for breach of
the terms of the said lease,
nothing was said on this in the
written address.
I am however aware that in Monta
Vrs. Paterson Simons (Gh) Ltd
(1982-83) GLR 195 the High
Court, presided over by Mr.
Justice Amua-Sekyi J. as he then
was, held that “the general rule
of law was that a tenant was
required to deliver up
possession to his landlord at
the end of the term. If he
failed to do so he would be
liable for the continued use and
occupation and might also be
required to pay damages if any
had resulted from his failure to
give up possession.
In this case the plaintiff did
not lead any evidence that he
had suffered any loss as a
result of the failure to give up
vacant possession. I am
therefore unable to award the
Plaintiff any damages for breach
of the said lease i.e. failure
to give up vacant possession.
In conclusion, I enter Judgement
for the Plaintiff as follows:
(a)
That the Department of Rent
Control is ordered to assess the
recoverable rent for the land in
dispute together wit the
buildings thereon from 1st
June, 1989 to 31st
July, 2009.
(b)
That the assessed rent, less the
sum of ¢11,000,000.00 should be
paid to the Plaintiff as Mesne
profit.
(c)
That the plaintiff is at liberty
to collect Mesne profit as
assessed from 31st
July, 2009 to time of handing
over vacant possession.
(d)
That the plaintiff is to recover
possession of the premises by 1st
October, 2009.
The defendant’s counter-claim is
dismissed.
The Plaintiff is awarded cost of
GH¢5,000.00.
Counsel:
Mr. Kweku Osae Asare holds
Mr. William Addo’s brief for the
Plaintiff.
Mr.
Anthony Desewu for the 1st
Defendant.
(SGD) MR. JUSTICE
S.H. OCRAN
Justice
of the High Court
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