Gyare II v Oteng and Another (C2/019/2024) [2025] GHAHC 182 (24 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON MONDAY THE 24TH DAY OF FEBRUARY, 2024 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURTJUDGE SUITNO. C2/019/2024 NANA OWUSU GYAREII AKWAMUHENEOF PLAINTIFF TECHIMANTRADITIONAL AREA VS. 1.DR. KWAKU OTENG 1STDEFENDANT 2.K. F.M.RADIO STATIONTHROUGH 2ND DEFENDANT THEMANAGERESS MADAM GIFTY JUDGMENT Plaintiff present Defendants absent AndrewOduro holding brief ofYawWireduPeprahforthe Plaintiff present 1 Eric Boamahholding brief ofHansAwudefor the Defendants PRELIMINARYMATTERS The Plaintiff issued a writ of summons against the Defendant on 26th October, 2023. Attempts to serve the Defendants with the writ personally proved futile. With leave of the Court the Plaintiff served the writ of summons on the Defendants by substituted service. All subsequent processes including hearing notice with Court Notes were served on the Defendants by substituted service. The Plaintiff obtained judgment in default of appearance against the Defendants when the Defendants were served with the writ of summons and they failed to enter appearance within the time stipulated by the rules. After Case Management Conference (CMC) was held and the Plaintiff was to mount the witness box Counsel for Plaintiff prayed the Court to adjourn the matter because the Defendants’ Counsel who had not filed notice of appointment of solicitor approached them for settlement. The Court adjourned the matter although the Defendants andtheir Counsel did notappear. At the next sitting Counsel for Plaintiff intimated to the Court that the Defendants did not avail themselves for settlement and prayed the Court for the Plaintiff to mount the witness box. The Plaintiff and his two witnesses mounted the witness box and gave their evidence in chief but the Defendants failed to appear to cross examine them 2 although they were served with hearing notice to appear. The Court discharged the Plaintiff and his witnesses and adjourned the matter for judgment. Before judgment could be delivered Counsel for Plaintiff filed motion to recall the Plaintiff and served the Defendants with the motion and hearing notice to appear but they did not, the Court heard and granted the application. When the Plaintiff was to mount the witness box togive his further evidence in chief, a lawyerfiled notice ofappointment of solicitor for the Defendants. Counsel for Plaintiff intimated to the Court that although he has been served with the notice of appointment of solicitor the Court may proceed with the case. Counsel holding brief for the Defendants prayed the Court to oblige the Defendants and their Counsel with one last opportunity to appear failing that the Court may proceed. The Court granted the Defendants’ prayer, adjourned the case and ordered the Defendants to procure a copy of the proceedings for their lawyer to appear at the next sitting to cross – examine the Plaintiff and if they fail to do so the Court will proceed without them. The Plaintiff gave his further evidence in chief and he was discharged because the Defendants failed to appear to cross – examine him and the case was adjourned for judgment. In the case of Rex v. Appeal Committee of London Quarters Session Ex Parte Rossi [1956] All England Report (AER) 670 at 674, Denning L.J as he thenwasheld that; 3 “…it is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully apprised of the proceedings before it makes an order againsthim.” Inthe light of the above the Court holds the view that the Defendants in the present suit were given more than fair notice of the proceedings and they were fully apprised with the proceedings from the beginning to the end as they were served with several hearing notices by substituted service to appear to defend themselves. It is evident on record that the Defendants had adequate notice of the proceedings which is evident by their interruption of the proceedings twice as stated above. The Court is justified in the light ofthe aboveauthority toproceed solely onthe Plaintiff’s evidence. PLAINTIFF’S EVIDENCE The Plaintiff is a businessman and Akwamuhene of Techiman Traditional Area in the Bono East Region and bonafide owner of a house in Techiman with digital address No. GPS DT – 0009718, the subject matter of dispute. The 1st Defendant is a businessman and owner of the 2nd Defendant radio station in the above mentioned house of the Plaintiff. According to the Plaintiff he entered into a tenancy agreement with the 1st 4 Defendant in or around January 2017 represented by one YawAwudu Dompre for three years to use the said house for the operation of the 1st Defendant’s radio station. The monthly rent was Five Thousand Ghana Cedis (Ghs 5,000.00). The 1st Defendant made an initial payment of Fifteen Thousand Ghana Cedis (Ghs 15,000.00) for three months. The manageress of the radio station one madam Gifty paid additional Ten Thousand Ghana Cedis (Ghs 10,000.00) which summed up to Twenty Five Thousand Ghana Cedis (Ghs 25,000.00)for fivemonths. The 1st Defendant’s radio station started operation on 1st January, 2017 until 20th February, 2023 when fire completely destroyed the premises. By then the Defendants owed the Plaintiff rent of Twenty Three Thousand Ghana Cedis (Ghs 23,000.00) which he demands from the Defendants jointly and severally. The Plaintiff contends that the fire outbreak was caused as a result of the Defendants’ negligence and therefore the Defendants should restore the premises to its previous condition before the fire outbreak. The Plaintiff’s particulars of negligence are that the 1st Defendant failed to put in place adequate measures to prevent the fire outbreak in the premises in the course of its operations. According to the Plaintiff in order to restore his premises to its previous position he caused an expert to estimate the cost involved which stood at Eighty Three Thousand One Hundred and eleven Ghana Cedis (Ghs 83, 111.00) which he demanded from the Defendants but they refused to pay. The Plaintiff claims against the Defendants jointlyand severallyasfollows; 5 (i) The recovery of the outstanding balance of Ghs 23,000.00 being the outstanding rent as at 20th February, 2023 on the house with digital address number GPS DT- 0009718, Techiman in the Bono East Region of Ghana which the Plaintiff rented out to the 1st Defendant in January 2017 for the operation of the 2nd Defendant’s radio station at a monthly payable rent of Ghs 5,000.00 which said amount the 1st Defendant has willfully failed or refused to pay to the Plaintiff despite several demands. (ii) Interest at the prevailing Commercial Bank Rate on the outstanding rent amount ofGhs 23,000.00fromFebruary 2023tilldate offinal judgment. (iii) Adeclaration that the fire which gutted the Plaintiff’s house with digital address No. GPS DT – 0009718 Techiman on 20th February, 2023 at the studios of the 2nd Defendant and in so doing caused very extensive damage to the Plaintiff’s said house was caused through the negligence of the 2nd Defendant which said 2nd Defendant is the propertyofthe 1stDefendant. (iv) Recovery of the sum of Ghs 83,111,00 which is the estimated cost of repairs on the Plaintiff’s house withdigital addressNo. GPS DT–0009718,Techiman 6 (v) Generaldamages (vi) Cost In the Plaintiff’s evidence in chief, he repeated the averments in his statement of claim and tendered the tenancy agreement as exhibit “A” dated 12th January, 2017 and demand notice dated 18th May, 2023 as exhibit “B”. In his further evidence in chief, he tendered exhibits “B1”, “B2”, “B3” and “B4” as cost he incurred in repairing damage to his premises the subject matterofdispute to supporthis evidence. EVIDENCE OF PW1 PW1 testified that after he completed Senior High School in 2013, he furthered his education at Easy Media School in Techiman in the year 2016 and underwent attachment with Asta FM, Techiman. Thereafter, he gained employment at K. F. M Radio Station Techiman in the year 2017 assound technician. He was in charge of all the electrical machines and electrical aspects and lighting system in the station. He worked without any problem until the year 2021 that he started complaining about the air conditioners at the station to the manager of the station. The 2nd Defendant (manager) was not happy about his complaints so she calls outsiders to fix the problem.According 7 to PW1, on 2nd February, 2022 (sic) that the station got burnt he attended his uncle’s funeral at Kintampo and he received a phone call from the manager that the station has got burnt. When he followed up the next day to find out what caused the fire, the manager told him that the air conditioner in the studio of the FM station started the fire. PW1 contends that he is aware that the said air conditioner was old and faulty and could not function properly occasionally and he is much aware that it was a faulty air conditionerthatcaused thefire. EVIDENCE OF PW2, PLAINTIFF’SSUPOENAEDWITNESS PW2 is anAssistant Chief Fire Officer / Regional Fire officer of the Ghana National Fire Service, Bono East Regional Headquarters Techiman. He stated that on 20th February, 2023 he received a distress call through his men on duty around 11:20pm that fire had engulfed the KFM studio and they reduced their findings into a report. PW2 tendered the report titled “Letter confirming Fire Outbreak on the First Floor of Plaintiff’s buildingdated 30th January,2024”asexhibit “C”. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW It is fitting to note that the Defendants spurned opportunities the Court gave them to participate in the trial without even entering appearance to the suit. That 8 notwithstanding the Plaintiff must adduce sufficient evidence and succeed on the strength of his own case. The Plaintiff obtained judgment in default of appearance against the Defendants but it is useful to note that this present judgment takes precedence overthe said judgment in default ofappearance. The Plaintiff’s case is that he rented his building situated at Techiman with digital address No. GPS DT – 0009718 for three (3) years at a monthly recoverable rent of Ghs 5,000.00 to the Defendants. The Defendants paid Ghs 25,000.00 out of the said rent to him with rent arrearsof Ghs 23,000.00outstanding and althoughhe levied a demand on the Defendants to paythe outstanding rent they failed to do so.He tendered exhibit “A”, a tenancy agreement dated 12th January, 2017 executed between him and the 1st Defendant Dr. Kwasi Oteng of KFM Radio for three (3) years at a monthly rate of Ghs 5,000.00. According to the Plaintiff he had received three (3) years rent advance of One Hundred and Eighty Thousand Ghana Cedis (Ghs 180,000.00) from the Defendants from 12th January, 2017 to 12th January, 2020. By exhibit “A” the Plaintiff established that a landlord / tenant relationship existed between him and the Defendants and that the Defendants paid rent to him as landlord. The Plaintiff proved further that the building thesubject matterofdispute belongstohim. Exhibit “B”, a demand notice written by the Plaintiff’s lawyers to the Defendants dated 18th May, 2023 affirms the Plaintiff’s relationship with the Defendants as landlord and tenants and the fact that the Defendants paid Ghs 25,000.00 to the Plaintiff as part 9 payment of rent for his above mentioned building. The letter also informs the Defendants of cost estimates in respect of the damage caused to the Plaintiff’s building at Ghs 83,111.00 which the Plaintiff demands from the Defendants. The estimates were further confirmed with exhibits “B1” “B2”, “B3” and “B4” by the Plaintiff. It is instructive to note that the demand notice dated 18th May, 2023 predates the date the Plaintiff issued the writ of summons on 20th October, 2023 which gave the Defendants enough time between May 2023 and October 2023 to respond to the letter but they failed to do so. Exhibit “B1” is an invoice of electrical items the Plaintiff bought from an electrical shop in Techiman dated 28th April, 2023 to the tune of Ghs 28,394.5. It is importanttonotethat these itemswereestimated afterthe fire incident occurred. Exhibit “B2” though undated shows the prices of building materials including doors, other building materials and cost of workmanship to the tune of Ghs 26,300.00. Exhibit “B3” is an invoice dated 28th April, 2023 with items like cement, metals, cost of workmanship etc. to the tune of Ghs 11,302.00 and exhibit “B4” dated 15th May, 2023 has building materials including nails, wood etc. to the tune of Ghs 17,415.00. Atotal of the above expenses according to the Plaintiff sums up to Ghs 83,111.50 but I found Ghs 83,411.50. These receipts / invoices were served on the Defendants who did not attend Court to dispute the Plaintiff’s claim and although exhibit “B2” does not bear a date, I have no reason to doubt its authenticity. Upon review of the invoices, Exhibit “B1” remains as Ghs 28,394.50. Exhibit “B2” remains Ghs 26,300.00. Exhibit “B3” is Ghs 10 10,900.00instead of Ghs 11,302.00 indicated onthe invoice. Exhibit “B4” sums up to Ghs 13,165.00 instead of Ghs 17,415.00 stated on the invoice. There is an additional Ghs 4,000.00 which I cannot tell what it stands for on the face of the invoice so I deducted it. The total sum is therefore, Ghs 78,759.50 instead of Ghs 83,111.00 as claimed by the Plaintiff. PW1 confirmed the Plaintiff’s claim that the fire that gutted his house was because of the Defendants’ negligence. He testified that he worked with the Defendants as sound technician and he was in charge of all the machines and electrical aspect i.e. the lighting system in the station. He worked at the station from 2017 until 2021 before he started complaining about the air conditioners at the station but the manager was not happy about it and called people from outside to work on them. He is aware that a faulty air conditioner which was very old and could not function properly occasionally caused the fire. Fromthe evidence ofPW1the Court holdsthe view that the Defendants did not take the complaints of PW1 seriously to replace the air conditioners which according to PW1wereveryold, faulty and could notfunctionproperly occasionally. Furthermore, the Defendants were served with the evidence of PW1 but they did not challenge it and therefore the Court accepts it as the true state of facts at the KFM radio station before the fire gutted it and thereby fits into the Plaintiff’s claim that the fire was as a result of the Defendant’s negligence. PW2 the Regional Fire officer of the Ghana National Fire Service, Techiman Bono East region led evidence that on that fateful day, 11 his men received a distress call around 11:20pm that fire had engulfed the studio of KFM radio station. They went to the scene and presented a report to confirm the outbreak of the fire which he tendered as exhibit “C”. Exhibit “C” dated 30th January, 2024 is a response to a request for a letter confirming the fire incident. Although 30th January, 2024postdate the date the Plaintiff issued the writ of summons on 26th October, 2023,I haveno reasontodoubt its authenticity because from thetone of the letter,it was prepareduponrequest. The content of the report is that on Monday, 20th February, 2023 the Municipal command of the Ghana National Fire Service received a distress phone call reporting of fire outbreak at the Plaintiff’s property. Their Dual Purpose Tender DPT with registration number FS 547 was dispatched to the scene at 2245 hours and finally extinguished the fire at 0038 hours. The letter confirmed that the fire outbreak at the said facility is true. Although there are inconsistencies in the evidence of PW2 that his men received a distress call around 11:20pm and exhibit “C” states that they arrived at the scene at 2245 hours, I have no reason to doubt the evidence in chief of PW2 and the content of the letter confirming that the Plaintiff’s house got burnt on the said date 20th February, 2023. The Plaintiff did not attach photographs of his burnt house. However, the evidence of PW1 and PW2 confirm that the building was engulfed by fire on that fateful day on 20th February, 2023. For all the foregoing reasons I am convinced that the 12 Plaintiff has discharged his burden of proof in accordance with law and therefore he is entitled tothe reliefs he is claiming beforethe Court. In the case of Sarpong (Decd) (Substituted by) Koduah v. Jantuah [2017 – 2020] 1 Supreme Court of Ghana Law Report (SCGLR) 736 at 740 holding (2) the Court held asfollows; The principle enunciated in Majolagbe vLarbi [1959] GLR 190, did not mean a party should not or could not repeat what had been pleaded in evidence. What that principle meant was that, that party should lead such evidence as would constitute proof in law. Since a party was required to stick to his pleadings when giving evidence, there was nothing wrong where that party repeated on oath what had been pleaded; the only consideration of the courtwas to ascertain whether what the party had said on oath was sufficient to discharge the burden of persuasion that laid on him… In the light of the above authority, the Court is fortified with its view that the Plaintiff has discharged his burden of proof not only by mounting the witness box to repeat his averments on oath but tendered documents to substantiate his claim. He also called witnesses who affirmed his testimony and cemented his evidence with a further document. In awarding generaldamages to the Plaintiff, I considered the fact that general damages would arise by inference of law and therefore unnecessary to be proved by evidence. 13 The case of Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 at 1142 refers. Regarding cost, I considered Order 74 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) and considered cost so far awarded in favour of the Plaintiff during the proceedings, that the Plaintiff filed several processes and incurred cost, reasonable transport expenses borne by the Plaintiff to prosecute this case and the fact that the Plaintiff engagedalawyertoprosecute the case onhis behalf amongothers. CONCLUSION For the foregoing reasons I hereby hold in favour of the Plaintiff against the Defendants jointlyand severallyasfollows; (i) I hereby enterjudgment forthe Plaintiff to recover anoutstanding balance ofGhs 23,000.00 being the outstanding rent as at 20th February, 2023 on the house with digital address number GPS DT-0009718, Techiman in the Bono East Region of Ghana which the Plaintiff rented out to the 1st Defendant in January 2017 for the operation of the 2nd Defendant radio station at a monthly payable rent of Ghs 5,000.00 which said amount the 1st Defendant has willfully failed or refused to pay tothe Plaintiff despite severaldemands. 14 (ii) The Plaintiff to recover interest at the prevailing Commercial Bank Rate on the outstanding rent amount of Ghs 23,000.00 from February 2023 until date of final judgment. (iii) The Court hereby declares that the fire which gutted the Plaintiff’s house with digital address No. GPS DT – 0009718 Techiman on 20th February, 2023 at the studios of the 2nd Defendant and in so doing caused veryextensive damage to the Plaintiff’s said house was caused through the negligence of the 2nd Defendant whichsaid 2ndDefendant is the property ofthe 1stDefendant. (iv) The Plaintiff to recover a sum of Ghs 78,759.50 as estimated cost of repairs on the Plaintiff’s house with digital address No. GPS DT – 0009718, Techiman instead of Ghs 83,111.00claimed by the Plaintiff. (v) General damages of Fifteen Thousand Ghana Cedis (Ghs 15,000.00) is hereby awardedin favourofthe Plaintiff (vi) Cost of Thirty Thousand Ghana Cedis (Ghs 30,000.00) is hereby awarded in favourofthe Plaintiff. 15 (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 24TH FEBRUARY2025 16