Taa-Asiedu v Obeng (A9/04/2023) [2025] GHADC 231 (21 January 2025)

INTHEDISTRICT COURT HELDAT BEREKUMON 21ST DAYOF JANUARY, 2025 BEFOREHIS WORSHIP AUGUSTINEAKUSA-AM DISTRICT MAGISTRARE SUITNO. A9/04/2023 FRANCIS TAA-ASIEDU ==PLAINTIFF VRS GABRIELOBENG ==DEFENDANT JUDGMENT The plaintiff’s claim against the defendant is for an order to eject the defendant for failure to pay rent and refusal to remove his metal container on a parcel of land leased to him. The plaintiff also prays the court to order the defendant to pay an amount ofGH1, 080.00being rentarrearsdue him. The plaintiff was gifted plot No. 11 Block ´B’ sector 3 situate and lying at Berekum by his late father Op. Gyan Kwadwo in 1984. He thus provided customary drinks and cash tohis latefather as “aseda”. 1 The plaintiff registered the land with the Berekum Traditional Council and the Berekum East Municipal Assembly and has since being paying the necessary statutoryfees. Seeattached exhibit “A”series. On 1st May 2018 the defendant entered into tenancy agreement with the plaintiff to have his metal container placed on a portion of the parcel of land gifted to the plaintiff. A two-year Tenancy agreement was subsequently executed by the parties. The tenancy agreement was tendered as exhibit “C”. The tenancy ended on 30th April, 2020 and the plaintiff decided to renew same by increasing the monthly rent to GH₵30.00 for a period of three years. The defendant has since the end of the tenancy, refused to renew same and has equally failed to remove his metal container therefrom. A notice of rejection (exhibit D) was served on the defendant but he refused tocomply hence this action. Esther Kyeiwaa wife of the plaintiff herein testifies as DW1. She submitted that she signed the tenancy agreementbetween the parties as awitness forthe plaintiff. The defendant submitted that he indeed entered into a tenancy agreement with the plaintiff. That, after the tenancy had ended, he sought renewal of same but the plaintiff unilaterally increased the rent so he protested. Notwithstanding his proteststheplaintiff insisted ontaking the newrent. 2 According to the defendant, during this statement, the siblings of the plaintiff came to warn him not to pay any rent to the plaintiff since he alone did not own the parcel of land leased to him. The defendant further revealed that one of the sisters of the plaintiff by name Afom Yaa invoked curses on him not to pay any further rent to the plaintiff orrisk being dealtwithby the gods. After failing to pay rent to the plaintiff, the container was locked with a different padlock bythe plaintiff therebycausing his cashew nuts togobad. KofiTaahjunior brotheroftheplaintiff testified asDW1 forthe defendant. He testified that the plaintiff did not have the capacity to rent any portion of plot number 11 Block B sector 3 situate at Berekum to the defendant. He submitted that the Iand is the property of the entire children of the late Opanin Gyan Kwadwo. So the plaintiff thoughthe eldest son, could not purportto be the sole owner ofthe land towarranthim tolease any portion thereof. He testified that they had warned any prospective tenant not to deal with the plaintiff since hehas no capacity to rent any portionofthe disputed land. Atthe end ofthe trialthe issues that callfor determination are:- a.Whetheror nottheplaintiffhascapacityto rent aportion ofplot number 11BlockB sector 3. 3 b.Whether or nottheplaintiffis entitled to relief. Before I deal with the issues for determination I shall briefly touch on the burden of proof in civil actions. The law is settled that it is the duty of the plaintiff or counterclaimant toprove his case for hewho allegesmust proveinordertosucceed. In other words, it is the party who raises an issue essential to the success of his case who assumes the burden of proving such issue. See FAIBI V. STATE CORPORATION (1968) I GLR 471. This burden of proof has statutory blessings under sections 10 (1) and (2) 11 (1) and (4) and 12 (1) and (2) of the Evidence Act, 1975 (NRCD 323) Therefore, in the instant case, the burden lies on the plaintiff to adduce sufficient admissible evidence to convince the court that his claim is more probable thannot. The first issue for determinationis whether ornotthe plaintiff hascapacity. During trial the defendant told the court that he had, entered into a formal tenancy agreement with the plaintiff but decided to stop paying rent to him because he later got to know that his capacity as landlord was being challenged by his (plaintiff) siblings. Indeed DW1 who is ayounger brother of the plaintiff testified in court that the land on which the defendant had put up his metal container belongs his entire siblingsand not solely fortheplaintiff. 4 On the evidence, it is the plaintiff who has been paying all statutory fees since 1994. This is evidenced by receipts he tendered in court. Once it is the plaintiff who has beenpaying statutoryfees since 1994,heis presumed tobe the ownerofthe land. DW1 in his evidence could not produce any scintilla of evidence to convince the court that plot number 11 Block B sector 3belongs to his entire siblings. When asked when their father died, he could not even answer. The following ensued during crossexaminationofDW1 by theplaintiff. Q. Ifyoubelieve that theland belongstoallchildrenofour late fatherwhy haveyoupeoplenot instituted any actionagainst me forclaiming sole ownershipofsame. A. We decided notto sue youbecause we knowthe land belongstoall ofus. If truly DW1 reasonably believes the land belongs to his entire siblings, action should have been taken long ago against the plaintiff for claiming sole ownership. None of his siblings has thrown any such challenge. Long possession of land is prime facie evidence of ownership. I am therefore convinced that the land belongs tothe plaintiffand he thereforehad thecapacity torentaportion tothe defendant. I now proceed to determine whether or not the plaintiff is entitled to relief. The plaintiff entered into a tenancy agreement with the defendant as landlord. Exhibit ´C’ which is the tenancy agreement specifically stipulates in paragraph 2 that “the 5 tenant has NO. RIGHT to transfer, sublet, harbour any wanted person and any illicit ofcontraband commodity inthe Kiosk/Container/Room/plot”. During crossexamination ofthedefendant, thefollowing ensued; Q. Per our tenancy agreement you could not sublet or assign your interest but youhave done so and taking rent. A. It’s true I have sublet it tosomeone. My explanationis that I had takenabank loan so after you locked the shop I had to sublet it to enable me to service the loan. Q. When my siblings instructed you not to pay any rent to me again, have you paid any renttoanyone else? A. No. I have not paid rent to anyone because you locked the shop and my cashew gotspoiled. The mere fact that the defendant breached the covenant in the tenancy agreement by subletting the shop to another person is enough for him to forfeit the lease. The sanctity of agreement must be respected and so for 6 breaching the agreement, the defendant had sinned against same and ought tobe ejected. Furthermore, the defendant had admitted under cross examination that he had stopped paying rent to “anyone” after the siblings of the plaintiff had dissuaded him from paying rent to the plaintiff. Section 17 (1) (a) of the Rent Act 1963 (Act 220) authorises the Rent Magistrate to eject a tenant and order recovery of possession for the landlord if rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfullydue. The ownership of plot number 11 Block B sector 3 situate at Berekum is not the business of the defendant. He should have been paying rent to the plaintiff as agreed under the tenancy agreement and allow the plaintiff to battlethe ownership ofthe land withhissiblings. I have perused Exhibit ´D’ which is a notice to the defendant to quit from the land. The defendant should have taken advantage of this notice to quit therefrom when he notice that the plaintiff was litigating with his siblings. Instead, he chose to remain on the land and took advantage of the situation to sublethis container toanotherpersonto enable him service his bank loan. 7 He also took advantage of the situation and stopped paying rent to his landlord, the plaintiff herein. The conduct of the defendant is vexatious, reprehensible and condemnable. On the totality of the evidence adduced in court, I am convinced that the plaintiff hasdischarged thestatutoryburden ofprooftobe entitled torelief. Judgement is thereforeentered against the defendant asfollows:- a. The defendant should remove hismetalcontainer fromthe land withintwo weeks. b. The defendant should pay allrentdue atGH₵30.00monthly from1st May,2022todate. b. CostsofGH₵1,700.00for theplaintiff. (SGD) H/WAUGUSTINE AKUSA-AM (MAGISTRATE) 8