ENOCH BRAKO VRS DENNIS ANINAGYE ADARKWAH (GJ/1490/2020) [2024] GHAHC 96 (31 May 2024)

IN THE HIGH COURT OF JUSTICE GHANA (GENERAL JURISDICTION COURT 4) HELD IN ACCRA ON FRIDAY THE 31ST DAY OF MAY, 2024 BEFORE HER LADYSHIP OLIVIA OBENG OWUSU, (MRS) J. SUIT NO: GJ/1490/2020 ENOCH BRAKO :: PLAINTIFF UNNUMBERED HOUSE, NORTH TAIFA ACCRA VRS. DENNIS ANINAGYE ADARKWAH :: DEFENDANT HOUSE NO. TAF/52D, TAIFA, ACCRA ============================================================================== J U D G M E N T ============================================================================== On the 29TH of September 2020 the Plaintiff commenced this action against the Defendant claiming the following reliefs: “1. An order for specific performance of the agreement between Plaintiff and Defendant in respect of one storeroom within House No. D438/A Arena. 2. An order of perpetual injunction retraining Defendant either by himself, his assigns, servants, agents or privies from interfering with the Plaintiffs rights to the one storeroom within House No. D438/A, Arena. 3. Costs 4. Any further order(s) of the court as it may deem fit.” 1 Besides denying the claim of the Plaintiff, the Defendant set up a counterclaim for the following reliefs: “a) Ejection and recovery of possession of one storeroom within House No. D438/A Arena. b) Damages for breach of the tenancy Agreement dated 2nd May 2008. c) Mesne Profits at the rate of GHC 2,500 from June 2020 till the date of ejection. d) Costs” The case of the Plaintiff as disclosed in his pleadings is as follows: By a Tenancy Agreement dated 31st day of March 2000 the Defendant leased to him one storeroom within House No.D438/A Arena in the Greater Accra Region. The agreement was for a period of ten years commencing on the 1st day of April 2000 at a rent of GHS300.00 a month. Upon the execution of the agreement the Defendant further guaranteed that upon the expiration of the ten-year period his tenancy would be renewed every ten years. According to the Plaintiff this oral agreement was to be reduced into writing. However owing to the existing relationship between him and the Defendant at the time as well as the fact that he was already in possession of the property and conducting his business he did not pressure the Defendant for such. The Plaintiff further avers that prior to the expiration of the first ten-year period the Defendant demanded for the payment of GHS14,000.00 which he having been guaranteed a renewal upon the expiration of every ten years duly complied. He maintains that upon the expiration of his tenancy on the 31st March 2010 it was renewed for another ten years by a tenancy agreement dated 2nd May 2008 which expired on 31st March 2020. It is his case that despite 2 the agreement between the parties to renew the tenancy every ten years the defendant demanded that he vacates the premises or pay a monthly rent of GHS2000.00. He contends that the Defendant has consistently harassed and threatened him with thugs to get him out of the shop. From his Statement of Defence the Defendant’s stand may be summed up as follows: He is the landlord of the Plaintiff. By a Tenancy Agreement dated 31st March 2000 he rented to the plaintiff one storeroom within House No. D438/A Arena in the Greater Accra Region. The Parties agreed that the rent was subject to review every 2 years and was paid biannually. He only agreed to rent out part of his shop that he was previously operating because he was financially constrained and unwell at the material time and always had plans to operate his shop when he regained his health and when his children who were minors came of age. Apart from the initial agreement executed between the parties there was a subsequent agreement that did not incorporate a guarantee that upon the expiration of the ten-year period the Plaintiff’s tenancy would be renewed by him every ten years. Upon the expiration of the initial ten-year period the Plaintiff paid Fourteen thousand Ghana Cedis as goodwill to him. Consequently they executed a second Tenancy Agreement dated 2nd May 2008. Before the expiration of the Tenancy Agreement, he caused a demand letter to be served on the Plaintiff. In the said letter he instructed the Plaintiff to vacate the shop by the 1st of April 2020. It is the case of the Defendant that he never agreed to renew the Tenancy Agreement. By way of defence to the counterclaim the Plaintiff says that it was not a term of the agreement that the defendant would operate the shop when he regained his health and his children who are minors came of age. He presses the point that the defendant guaranteed that upon the expiration of the ten-year period the tenancy agreement would be renewed for another 10 years. In defence to the defendant’s counterclaim he maintains 3 that the defendant is not entitled to any of his claims. To him it is the Defendant who has breached the oral agreement which they executed. At the close of the pleadings, the following issues were set down for trial. 1. Whether or not the parties orally agreed that the tenancy agreement will be automatically renewed every ten years. 2. Whether or not because of the relationship between them the parties did not reduce into writing the oral agreement for the rent to be renewed every ten years. 3. Whether or not the subsequent agreement dated May 2008 contained a term that the rent will be automatically renewed every ten years. 4. Whether or not the Defendant agreed in or around July 2019 to renew the rent upon its expiration in March 2020. Before I proceed to resolve the issues in this case it would be necessary to outline the circumstances that led to this Judgment. On the 11th of November 2022 the Plaintiff who had failed to file his Witness Statement did not appear in Court and was not represented. The court therefore struck out his claim against the Defendant for failing to comply with the Court’s orders to file his Witness Statement and Pre-trial Check list. The relevant Court Notes for that day read thus: “The Plaintiff has not filed his Witness Statement although he has been served with a Hearing Notice, Court Notes and a copy of the proceedings of 12th October 2022. In accordance with Order 32 7A the Court strikes out the Plaintiff’s Claim for non- compliance. Suit is adjourned to 22/11/2022 at 10:30 am and 30/11/2022 @ 11:30am…” 4 The Rule of Court as stated in Order 32 Rule 7A of C.I 47 as amended by The High Court (Civil Procedure) (Amendment) Rules, 2014 (C.I 87) C.I 87 is as follows: “7A. (3) Where a party has failed to comply with any of the directions given at a case management conference or a pretrial review or both the judge may make any of the following orders: (a) strike out the action, if the non-complying party is a plaintiff”. After the case management conference the suit was fixed for hearing on 15th February 2023 the Defendant being permitted to prove his Counterclaim. This case thus proceeded with the evidence on oath of only the Defendant who called no witness. In my considered view, the Defendants' entitlement to Judgment on his Counterclaim depends largely on the fundamental issue whether or not the parties orally agreed that the Tenancy Agreement will be automatically renewed every ten years. Issues 1, 2, 3 and 4 will thus be condensed into this single issue. A party who counterclaims bears the onus of proving his counterclaim on the balance of probabilities. In the case of FIADZORGBE VRS KPOGO [2015–2016] 2 SCGLR 1287 the Supreme Court had the opportunity to point out the nature of a counterclaim. It held that a counterclaim was a separate action in which the Counterclaimant assumed the burden to establish that his assertion was true. Similarly in the case of AKONU -BAFFOE V EBUAKU [2013] 55 G.M.J 43 the Court held that in essence a Defendant’s Counterclaim is treated in the same way as the Plaintiff’s case. The roles are reversed and the Defendant as the Plaintiff in the Counterclaim assumes the burden to prove his case. Consequently where in a course of action in which there is a Counterclaim the Plaintiff’s Claim is struck 5 out, dismissed, discontinued or stayed, the defendant could proceed to prosecute his Counterclaim as it was independent of the original claim. See the cases of FOSUHENE V ATTA WUSU [2011] 1 SCGLR 273 and HYDRAFOAM ESTATES (GH) LTD V OWUSU (PER LAWFUL ATTORNEY) OKINE & OTHERS [2013-2014] 2 SCGLR 1117. The Defendant gave evidence which in sum is what is pleaded in paragraphs 2 -13 of the Statement of Defence. His testimony was that the Plaintiff rented a shop from him on 31st of March 2000. Before the tenancy agreement expired, he told him he wanted to renew it which he obliged. He therefore renewed the tenancy agreement for another 10 years ending 31st March 2020. According to the Defendant it was never his intention to continue renting out the shop to the Plaintiff. He contended that he always knew that as soon as his children came of age and his finances improved he would return to operate his shop with their assistance. He maintained that upon the expiration of the Plaintiff’s tenancy agreement he served him with a demand letter asking him to vacate the shop. The Plaintiff refused to vacate the shop and pleaded with him to extend the time to enable him complete a shop he was constructing within the same vicinity. According to the Defendant the Plaintiff again appealed to him to extend the period he was to vacate the shop to December 2020 to which he refused and asked him to pay GHS 2,000 monthly for the period he occupied the shop. He alleged that the Plaintiff pleaded with him and he accepted an amount of GHS 3,000.00 as rent from April 2020 to September 2020. It was the Defendant’s case that currently shops within the vicinity are being rented for more than GHS 2,500. In support of his case he put in evidence documentary evidence which were marked Exhibits “1”, “2”, “3”, “4,” “5,” “6” and “7”. The Plaintiff based his defence to the Counterclaim on an agreement entered into between him and the Defendant to renew the tenancy every ten years. 6 My view of the evidence on record is that there was no agreement that the tenancy will be automatically renewed every ten years. At the trial the Defendant hitched his Counterclaim on Exhibit 3C, the tenancy agreement which he executed with the Plaintiff on 2nd of May 2008. It was not incorporated in this agreement that the tenancy will be automatically renewed every ten years. I therefore can find nothing in the evidence which supports the contention of the Plaintiff. I reject his contention. As indicated earlier on the Plaintiff’s claim was struck out. The only occasion when the Plaintiff sought to challenge the evidence of the Defendant was when his Counsel cross-examined the Defendant. In my view what Counsel put across during cross-examination of the Defendant may be considered as the case the Plaintiff would have relied on had his claim not been struck out. The challenge of counsel could not be substituted for evidence which should have been led by the Plaintiff in the course of the trial. The Defendant was cross-examined no doubt in an attempt to discredit him, but in my opinion, his evidence was not shaken. The onus of proving that there was an automatic renewal agreement lay on the Plaintiff. He failed to discharge it. On the allocation of the burden of proof Sections 14 and 17 of the Evidence Act 1975 (NRCD 323) provide as follows: Section 14 “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting” Section 17 7 “(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof. (2) Except as otherwise provided by law, the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.” It seems sufficiently clear, in the light of The Evidence Act 1975 (NRCD 323) that the Plaintiff failed to discharge the particular burden of proof which lay on him. I find that there was no oral agreement between the Parties that the tenancy agreement will be automatically renewed every ten years. The basis of the Defendant’s Counterclaim is that he requires the shop for his own business purposes. Before a Court can order recovery of possession of business premises in favour of a landlord it must in accordance with the provisions of the Rent Act, 1963 (Act 220), s 17 (1) (h) be satisfied that the landlord reasonably needs the premises for his own business and that the requisite statutory notice of at least six months has been given to the tenant. The evidence clearly shows that the lease held by the Plaintiff has expired and that he has remained in possession as a statutory tenant. From Counsel’s cross-examination of the Defendant and the answers given, it is certain that the 2nd Tenancy Agreement expired on 31st March 2020. On record the dialogue proceeded in the following manner with the defendant under cross-examination. “Q: At the last court sitting you testified that before the expiration of the 1st Tenancy Agreement you took an amount of GHC14,000.00 from the Plaintiff, 8 A: Yes My Lady Q: Did you issue a receipt to that effect? A: I am sure I gave him a receipt Q: I have a receipt in the name of Denaco Limited issued on 27/03/2008 in the sum of GHC14,000.00 being ten years good will from 1/04/2010 to 31/03/2020 Was this receipt issued by you? A: The name of the company is mine and I remember I gave him a receipt covering the GHC 14,000.00..” As at 5th November 2020 when the Defendant put in his Counterclaim against the Plaintiff, the Plaintiff had not vacated the premises; hence the Counterclaim. By Section 36 of the Rent Act 1963 Act 220 “a tenant becomes a statutory tenant if he remains in possession of the premises after the determination by any means of his tenancy and cannot by reason of the provisions of this Act be deprived of such possession by the Landlord.” Having held over the premises after his lease had expired, despite the written notices to quit, the Plaintiff became a statutory tenant and was only protected in his possession of the premises by the Rent Act, 1963, (Act 220). From the evidence the Defendant has given the Plaintiff sufficient notice to comply with section 17 (1) (h) of the Rent Act, 1963 (Act 220). Exhibit 4B is a letter from the Defendant to the Plaintiff and it is dated 10th October 2019. Exhibit 4B informed the Plaintiff that the tenancy will not be renewed and requested the Plaintiff to vacate and hand over the keys to the shop by 31st March 2020. In Exhibit 5 dated 27th April 2020 the Defendant reminded the Plaintiff of the notice to quit the premises which had been given about 6 months earlier and extended the time by 3 months. The Defendant’s Counterclaim was filed on 5th November 2020. This shows that the action was commenced after the Defendant had given the Plaintiff more than six months’ notice. Apart from the Pleadings there was also evidence to support the Defendant’s case that he reasonably requires the shop for his own business. I have no 9 reason to doubt that the Defendant told the Court the truth when he testified that he requires the shop for his own business purposes. The Defendant is entitled, on the evidence, to an order for recovery of possession of the shop. This brings me to the order for damages and mesne profits which were two reliefs endorsed in the Counterclaim. What is the measure of damages which the Defendant is entitled? In my judgment, it is such sum of money for loss of possession during the period that the Plaintiff remains in occupation after the issue of the writ. At Page 237 of his book GHANA LAW OF LANDLORD AND TENANT 2017 EDITION BY A.K.P.KLUDZE defined “Mesne profits” as “Mesne profits represent damages for loss of possession during the period that the tenant remains in occupation after the issue of the writ”. As indicated earlier on there is evidence that the Plaintiff has been in occupation of the subject matter in dispute and has failed to pay rent since September 2020. In my view the profits lost to the Defendant by reason of his having been wrongfully dispossessed of his property can be adequately compensated by mesne profits. In lieu of Damages I would therefore award the Defendant mesne profits. The Defendant is claiming Mesne Profit at the rate of GHC 2500 per month from June 2020 till the date of ejection. It is pertinent to indicate that this piece of evidence stood unchallenged. In his Witness Statement the Defendant stated: “Currently the shops within the vicinity are being rented for more than GHC2,500.00. I pray that this honourable Court will grant me my Counterclaim.” The law is quite well settled that when a party has given evidence of a material fact and is not cross-examined upon it, he need not call further evidence of that fact: See FORI V 10 AYIREBI [1966] G.L.R. 627. By the failure of the Plaintiff to controvert the Defendant’s evidence on this material fact through cross-examination he is deemed to have admitted the fact stated by the Defendant as the truth. The Defendant therefore did not have to lead further evidence on the issue of Mesne Profits. I accept the evidence of the Defendant there being no reason to suppose otherwise. The monthly rent of GHC 2,500.00 represents a fair rental value of the property and the Plaintiff must pay mesne profits at that rate. The Defendant succeeds on his Counterclaim and Judgment is entered for him against the Plaintiff for: a. Ejection and recovery of possession of one storeroom within House No. D438/A Arena. b. Mesne Profits at the rate of GHC 2,500 (Two Thousand Five Hundred Ghana Cedis) a month from October 2020 till date of ejection. c. The Defendant is awarded costs of Thirty Thousand Ghana Cedis (GHS 30,000.00) (SGD.) H/L OLIVIA OBENG OWUSU (MRS.) JUSTICE OF THE HIGH COURT PARTIES: 1. PLAINTIFF ABSENT THOUGH SERVED 2. DEFENDANT PRESENT 11 COUNSEL: PRINCE BOAHEN GYAN ESQ. HOLDING BRIEF FOR BAFFOUR GYAWU BONSU ASHIA ESQ. FOR PLAINTIFF PRESENT ALFRED ENYAAH ESQ. WITH KELVIN KABUTEY DOSOO ESQ. FOR DEFENDANT PRESENT CASES REFERRED TO 1. AKONU -BAFFOE V EBUAKU [2013] 55 G.M.J 43 2. FIADZORGBE VRS KPOGO [2015–2016] 2 SCGLR 1287 3. FOSUHENE V ATTA WUSU [2011] 1 SCGLR 273 4. HYDRAFOAM ESTATES (GH) LTD V OWUSU (PER LAWFUL ATTORNEY) OKINE & OTHERS [2013-2014] 2 SCGLR 1117 5. FORI V AYIREBI [1966] G.L.R. 627. STATUTE 1. THE RENT ACT 1963 (Act 220), 2. THE HIGH COURT (CIVIL PROCEDURE) RULES 2004 (C.I 47) 3. THE HIGH COURT (CIVIL PROCEDURE) (AMENDMENT) RULES 2014 (C.I 87). 4. THE EVIDENCE ACT 1975 (NRCD 323). BOOKS GHANA LAW OF LANDLORD AND TENANT 2017 Edition by A.K.P.KLUDZE 12