Musah v Yeboah and Others (A9/19/23) [2025] GHADC 117 (5 March 2025)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 5TH DAY OF MARCH, 2025. BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A9/19/23 MUSAH ABDU TUDJANI IN HIS CAPACITY AS ADMINISTRATOR THE ESTATE OF ALHAJI TUDJANI DANQUAH CIRCLE OSU, ACCRA >>> PLAINTIFF VRS. 1. MR YEBOAH @ HAEGEST JEWELLARY 2. TSOTSO ADJETEY 3. SABAN ALL OF HS NO 256/1 AWUSIATO, OSU >>> DEFENDANTS ___________________________________________________________________________ PARTIES: Plaintiff absent represented by Martin Osei Boadu Defendants absent LEGAL REPRESENTATION: Laurinda Kafui Apaloo holding brief for Nii Martei Koley for the Plaintiff JUDGMENT INTRODUCTION Counsel for the Plaintiff filed this instant suit on the 4th of July, 2024 against the Defendants and prayed for the following reliefs; 1. Recovery of possession of HS NO 256/1 Awusiato, Osu. 2. Costs. 3. Any other orders that this Honourable Court may deem fit. Although the Defendants were served with the writ of summons and hearing notice on the 10th of July, 2024 they Defendants refused to appear in court. Another hearing notice was served on the Defendants on the 12th of September, 2024 and yet again the Defendants refused to be present on the 26th of August, 2024. The court therefore ordered the Plaintiff to serve hearing notice on the Defendants and same was complied with on the 9th of September, 2024. The Defendants refused to show up on the 16th of October, 2024 and as a result the court ordered the Plaintiff to file his witness statement and the orders of the court were complied with on the 8th of October, 2024. Another hearing notice was served on the Defendants on the 23rd of October, 2024 and yet again the Defendants refused to show up on the 5th of November, 2024. The Plaintiff was therefore allowed to proof the his case on the 5th of November, 2024 pursuant to Order 25 rule 1(2)(a) of the District Court Rules (2009) C.I 59. PLAINTIFF’S TESTIMONY The Plaintiff’s case is the subject matter in dispute was acquired by his late father sometime in the year 1997 for a period of 50 years. He goes on to state that the Defendants were already tenants of the property when his father purchased the property and as a result they were allowed to continue with their tenancy in the subject matter. He also states that when the tenancies of the defendants ended they failed to pay rent to his father even though they acknowledged his ownership of the property during his lifetime. He states that as a result the Defendants’ failure to pay their rent his father asked the Defendants to either renegotiate new tenancy agreements with him or vacate the property. He states that the Defendants have continued to refuse to pay their rent for their occupancy of the property for several years and have also neglected the building and its surroundings which have led to the property be a deplorable state. He also states that the he and the other beneficiaries of his late father’s estate are desirous of renovating the property but have been unable to do same because of the Defendants’ occupation of the property. He also states that due to the Defendants occupancy of the property for almost 23 years, his father during his lifetime never go to got enjoy the full benefit of the property. He further states that the beneficiaries of the property will also not get to enjoy the benefits of estate of his father’s estate if the Defendants are not ordered to vacate the property. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is caried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323),” See the case of Ababio v. Akwasi IV [1994-1995] GBR 774 The Court has a duty to examine the evidence on record and determine whether the Plaintiffs have met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. The Plaintiff’s witness mounted the witness box and relied on his witness statement on the 5th of November, 2024 and repeated his assertions against the defendants. Although the Plaintiff he failed to tender into evidence a copy of the letters of administration granted to him by a court of competent jurisdiction it is settled law that by virtue of the rules on intestacy contained in section 4(1) (a) of the Intestate Succession Law, PNDC Law 112, following the death of the father of the Plaintiff, the property devolved upon the children and by virtue of the Plaintiff being the son of the late Alhaji Tudhani, he has an immediate legal interest in the property and as a result he is competent to defend and or sue in respect of the property. See Adisa Boya v. Zenabu Mohammed (Substituted by Adama Mohammed) and Mujeed, Supreme Court. Civil Appeal No. J4/44/2017. 14th February,2018. The Plaintiff’s case is that the Defendants have failed or refused to pay rent for several years which mean that the Defendants will be deemed as statutory tenants. The Rent Act, 1963 (Act 220) governs landlord and tenant relations and under this Act landlords are entitled to recover possession of rented premises but it is subject to certain conditions which must be met before same can be granted by a Rent Magistrate. Section 17 of Act 220 states as follows; Subject to subsection (2) of section 25 and to section 28, an order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall not be made or given by the Rent Magistrate, or any other judge of a court of competent jurisdiction in accordance with any other enactment except (a) where a rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due; From the above it is clear that before a rent magistrate can order for the recovery of possession where the tenant who in this case is the Defendant fails to pay rent after it has become due after a month. The burden is thus on the Plaintiff to satisfy the court that the tenant has failed to pay the rent after a month since it has become due. There is no doubt that it is the main object of the Rent Act to protect a tenant against arbitrary eviction by a landlord and to restrict the land landlord’s common law right to recover possession in those cases where he has exhibited a that indeed the tenant has breached the requirements as stated in Act 220. That being said it is clear from the evidence on record that the Defendants have become statutory tenants and the court must discuss who qualifies as a statutory tenant. A statutory tenant comes into being when the contractual element of a tenancy is terminated and the tenants’ remains in possession of the property because of the protection they derives from a statute. Such tenants cannot be deprived of possession because of the Act and that the status of a statutory tenant can only be changed if the parties enter into a new contractual tenancy. The Defendants having continued to occupy the premises after the expiration of the rent period became a statutory tenant within the meaning of section 36 and against the will of the Plaintiff could only be protected by Act 220. Section 36 of Act 220 defines a statutory tenant as a tenant who remains in possession of premises after the determination by means of his tenancy and cannot by reason of the provisions of this Act be deprived of such possession by his landlord. Section 29(1)(a) of Act 220 lays down the conditions under which a statutory tenant can continue to hold on to the demised premises after his lease has expired. It provides, that: (1) A statutory tenant, so long as the statutory tenant retains possession, (a) shall hold the premises as a tenant from month to month, and subject to that tenancy shall observe and is entitled to the benefit of the terms and conditions of the original tenancy, so far as those terms and conditions are consistent with this Act The word ‘the terms and conditions of his original tenancy in this section refer to the terms and conditions in the contractual tenancy under the tenant was holding immediately before she became a statutory tenant. It therefore follows that the covenants or conditions and all other obligations stipulated in that contractual tenancy and which are consistent with the provisions of the Act are carried forward into the statutory tenancy. The words emphasised in the definition indicate that before a statutory tenancy can come into existence the prior contractual tenancy can come into existence, the prior contractual tenancy should first have been terminated; the mode of termination is immaterial. It is sufficient if any of the recognised legal modes of terminating tenancy is employed, e,g, effluxion of time, forfeiture, surrender, or where an agreement to that effect has been made, by a notice to quit given by either party or by abandonment. By virtue of section 29(1)(a) of Act 220, statutory tenants’ remains in possession as a tenant from month to month and they hold such possession under the same terms as are contained in the original tenancy, except that any provisions of the original tenancy that are inconsistent with the Act do not have legal force. I should make it clear that statutory tenants’, like the Defendants cannot be evicted except by an order of the court and only where any of the circumstances laid down in section 17 of Act 220 has been established to the satisfaction of the court. Thus, a Plaintiff seeking possession of his premises which are in the occupation of statutory tenants must first and foremost satisfy the court that the ground on which he is asking for an order of possession is recognised by section 17 of Act 220. The ground on which the Plaintiff herein is seeking to evict the Defendant is that for several years the Defendants have failed to pay any rent and have refused to vacate from the premises. This ground falls within section 17(1)(a) of Act 220 and accordingly carefully considering the evidence adduced by the Plaintiff’s witness the Defendants were bound to pay rent on a monthly basis in accordance with section 29 of Act 220. Having concluded that the Defendants are statutory tenants, they are obliged to pay rent agreed to under the original tenancy which means the tenancy under which the tenant was holding immediately before they became a statutory tenant. I am therefore of the opinion that in the instant case, the Defendants having failed to pay rent on a monthly basis they lost their protection under Act 220 and the Plaintiff is entitled to recover possession of the premises under section 17(1)(a) of Act 220. In Brewer v. Jacobs [1923] 1 K.B 528, D.C. where a statutory tenant committed a breach of covenant, Bailhache J. at page 531 said: “But for the increase of Rent, and c. (Restriction), Act, he would not be a tenant at all, and he is only in possession as long as he complies with the provisions of that Act. One of those provisions is that he shall pay his rent, and another is that he shall observe the covenants in his lease. He must find his protection, if any, within the Act, and other Acts do not apply at all. It must also be noted that the evidence of Plaintiff’s witness was unchallenged as the Defendants failed to appear to cross examine the Plaintiff’s witness due to their refusal to show up in Court despite being given several notices to appear. The position of the law is that when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trail to its conclusion and make findings on the basis of the evidence adduced at the trial and proceed to give judgment. In Fori v. Ayirebi (1966) GLR 627 SC it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. See the cases of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 890, In Re West Coast Dying Industry Ltd; Adam v. Tabdoh (1984-86) 2 GLR 561 SC and Watalah v. Primewood Products Ltd (1973) 2GLR 126 and Hammond v. Amuah (1991) 1 GLR 89 at 91. It is also settled law that a party is to suffer the consequences or liabilities for not attending court after he has been duly served with processes and accordingly notified. See cases of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten -Amoako Interested arty) (2009) SCGLR 185 at 190 and Agbewole v. Abodegbey (2012) 44 GMJ 124 at 129. From the discussion above I hereby conclude that the testimony of the Plaintiff’s witness therefore stands unchallenged and I therefore hold that the Plaintiff has been able to lead cogent evidence to prove on a preponderance of probabilities that the Defendants have failed to pay their rent and must be ordered to vacate from the property. Having failed to pay rent for several years I am of the opinion that the Defendants are undesirable tenants and must vacate the property. I hereby order the Defendants to vacate from the subject matter within a month from the delivery of this judgment. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendants are ordered to vacate HS NO 256/1 Awusiato, Osu. b. The Plaintiff is ordered to recover possession of HS NO 256/1 Awusiato, Osu c. Cost of One Thousand Ghana Cedis (GH¢ 1,000.00) each is awarded against the Defendants. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE