Koomson and Another v Duku (G/WJ/DG/A2/61/2023) [2025] GHADC 193 (15 January 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA ON WEDNESDAY THE 15TH DAY OF JANUARY, 2025 BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUIT NO: G/WJ/DG/A2/61/2023 1. SARAH KOOMSON 2. SOLOMON KOOMSON PLAINTIFFS VRS BENJAMIN DUKU DEFENDANT 2ND PLAINTIFF IS PRESENT AND REPRESENTS 1ST PLAINTIFF DEFENDANT IS ABSENT JUDGMENT The plaintiffs filed a writ of summons and particulars of claim at the registry of this court on 17th January 2023 for the following reliefs; 1. Recovery of the sum of GHC1,500.00 being outstanding debt due. 2. An order for interest on the outstanding amount from July 2022 to the date of payment, costs and any further orders as the court may deem fit. 3. Costs The defendant filed a statement of defence on 23rd May 2023 and counterclaimed as follows; a. An order of the court directed against the 1st and 2nd Plaintiffs for the payment of the sums of GHC8,000.00 and GHC15,000.00 being the cost of balance for rent and modification/renovation respectively on the said shop as at November 2022; 1 b. Interest on the sum of GHC8,000.00 and GHC15,000.00 being the cost of balance for rent and modification/renovation respectively at the prevailing Commercial Bank rate from November 2022 to the date of final payment c. General damages d. Costs Parties were referred to the Court Connected Alternative Dispute Resolution (CCADR) for a possible settlement of the dispute however the feedback from the mediator indicated that parties were unable to settle the dispute. The court accordingly set down the matter for trial. On 9th January 2024, the defendant filed an application for stay of proceedings due to ill health. He attached a medical report from the Bortianor Polyclinic dated 3rd January 2024 signed by one Richard Owusu Ansah, a Physician Assistant marked as Exhibit 1. 2nd plaintiff disputed the claim of the defendant and prayed the court to issue a subpoena to compel the author of the said medical report to attend court to be cross examined to verify the authenticity of the report. On 24th July 2024, there was proof of service of a hearing notice on the defendant however when the case was called, he failed to attend court. The Physician Assistant Mr. Richard Owusu Ansah, the author of Exhibit 1 informed the court under cross examination that the defendant was admitted at the Bortianor Polyclinic in November 2023 with weakness on his left side. He stated that defendant was subsequently discharged and referred to the Korlebu Teaching Hospital for further management. He testified further that defendant reported to the clinic on 3rd January 2024 with a high blood pressure and requested for a medical report to enable him bring to the attention of the court his health status. 2 In response to the issue of whether or not the defendant was fit enough to attend court, this is his response; “of course, he can come to court. He is not bedridden.” He added that at the time defendant came for the medical report he was not bedridden as claimed in paragraph 5 of defendant’s affidavit in support of his motion. He added that he never referred defendant for any herbal treatment. Upon hearing the physician assistant and having considered the fact that there is proof of service of a hearing notice on the defendant, the Court refused the application and dismissed defendant’s counterclaim and allowed plaintiffs to prove their claim pursuant to Order 25 rule 1(2)(a) of the District Court Rules 2009, C.I. 59. THE CASE OF THE PLAINTIFFS 2nd defendant testified on behalf of the plaintiffs. It is the case of the 2nd defendant that the plaintiffs let the shop the subject matter of this dispute to one Samuel Agya Eku for three years effective 1st June 2019 who in turn sublet the shop to the defendant without the knowledge and consent of the plaintiffs and that the said Agya Eku had no capacity to rent out the shop to the defendant. He tendered in evidence pictures of the shop after it was constructed and rented out. Same were admitted and marked as Exhibits A and B. He also tendered a picture of the condition of the shop after the defendant had vacated from the premises in evidence. Same was admitted and marked as Exhibit C. According to him, the shop had electricity and toilet facility before it was rented out to defendant. He tendered evidence of the electricity supply and the toilet facility and same was marked as Exhibit D. He tendered a copy of the receipt issued to Samuel Agya Eku. Same was admitted and marked as Exhibit E. 3 It is his case that the defendant has changed the character of the property without the consent of the plaintiffs which will cost a whopping sum to convert same back to its original state. He concluded by stating that the defendant’s tenancy expired in June 2022 and since then defendant has failed to pay any rent and is still holding on to the keys to the shop. He prayed the court to order the defendant to pay rent as well as damages caused to the shop. He did not call any witness. Defendant failed to attend court to cross examine the 2nd plaintiff. ISSUES SET DOWN FOR DETERMINATION The court set down the following issues for determination; 1. Whether or not the defendant is a tenant of plaintiffs and if so what was the duration of the tenancy? 2. Whether or not plaintiffs are entitled to recover the sum of GHC1,500.00 from the defendant being rent owed since July 2022 3. Whether plaintiffs are entitled to eject defendant from the shop BURDEN OF PROOF It is trite that a party who alleges a fact bears the burden of proof to produce evidence in support of that allegation. Sections 10, 11, 12 and 14 of the Evidence Act 1975 provides the standard of proof in any civil matter. In Barkers-Woode v Nana Fitz [2007-2008] 2 SCGLR 879 at 891, Dr. Date-Bah JSC held as follows; 4 “The common law has always followed the common-sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim.” EVALUATION OF THE EVIDENCE Section 36 of the Rent Act, 1963, Act 220 defines tenant as follows; “tenant” means any person who leases premises from another person in consideration of the payment of rent and includes- (a) any person deriving title under the original tenant; (b) a sub-tenant (c) a person who before the commencement of this Act has retained possession of premises and who on and after such commencement continues in possession of such premises; and (d) a person who shall retain possession of any premises by virtue of the provisions of this Act. Plaintiffs’ Exhibit E dated 11th February 2022 reads as follows; “I Sarah Koomson have received GHC2,500.00 from Benjamin Duku as part payment of store rent at Kokrobite Tuba, previous payment of GHC5,000.00 was received same by above name (landlady) on 1st June 2019” At paragraphs15 and 16 of 2nd plaintiff’s witness statement, he explained that Exhibit E is a receipt of payment which shows that the property the subject matter of this dispute was rented out to the defendant for three years effective 1st June 2019 plus additional sum of GHC100.00 per year as weeding / spraying fee. Defendant admitted the claim of the plaintiffs at paragraph 4 of his statement of defence when he stated as follows; 5 “The defendant further denies and says that he rented the shop from 1st plaintiff for GHC200.00 every month which amounted to GHC2,400.00 every year to use for PUB.” At paragraph 10 of defendant’s statement of claim, he added; “The defendant says that he took possession of the shop for two years that is between November 2020 and November 2022 From the evidence, I find that the shop the subject matter of this dispute was rented to the defendant by 1st plaintiff and not one Agya Eku as plaintiffs would want the court to believe. I hold therefore that defendant is a tenant of the plaintiffs. The commencement date of the rental of the store as gleaned from Exhibit E supra is 1st June 2019. Going by the assertions of the defendant, it is safe to make a finding of fact that the tenancy was from 1st June 2019 to 2022, making it a period of three years. From defendant’s own showing as gleaned from paragraph 10 of his statement of defence, he ceased operating from the store since November 2022. There is however no evidence to show that he has handed over the keys to the plaintiffs or made any payment for the period that he has been in possession of the keys. I hold therefore from the totality of the evidence that the plaintiffs have been able to prove their claim on the preponderance of probabilities. Judgment is accordingly entered in favour of the plaintiffs against the defendant as follows; 1. Defendant is ordered to vacate from the premises the subject matter of this dispute and yield up vacant possession to the plaintiffs for non-payment of rent pursuant to section 17(1) of the Rent Act 1963, Act 220. 2. Defendant is ordered to pay rent to the plaintiffs from July 2022 to the date of judgment at the rate of GHC200.00 per month. 6 3. Defendant is ordered to pay utility bills outstanding if any to the plaintiffs prior to vacating from the premises. 4. Costs of GHC2,000.00 is awarded in favour of the plaintiffs against the defendant. ……..………………………………. H/W RUBY NTIRI OPOKU (MRS.) DISTRICT MAGISTRATE 7