Selasie v Bonney (A9/32/2024) [2024] GHADC 743 (10 December 2024)

IN THE DISTRICT COURT HELD AT BAATSONAA ON TUESDAY THE 10TH DAY OF DECEMBER, 2024 BEFORE HER WORSHIP MABEL N. L. AHELE DISTRICT COURT MAGISTRATE SUIT NO:A9/32/2024 KING PRIEST SELASIE ---- PLAINTIFF VRS MR. JOSEPH BONNEY ----- DEFENDANT ________________________________________________________________ PARTIES: PLAINTIFF PRESENT DEFENDANT ABSENT JUDGMENT Plaintiff by a writ of summons filed on 6th August, 2024 prayed the Court for the following reliefs: a) An order for the Defendant to settle rent arrears of GH₵3,000.00. b) An order for ejection of the Defendant from his premises for his personal use. c) An order for the Defendant to pay GH₵700.00 as cost incurred at the Rent Control Office d) Cost 1. Plaintiff’s case It is Plaintiff’s case that, he and the Defendant entered a one-year tenancy agreement at a monthly rent of GH₵ 1,200.00. The tenancy expired on 30th April, 2024. According to the Plaintiff, he served notice to the Defendant to Page 1 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT settle all rent arears and vacate the premises. He later reported the matter to the Rent Control Department but the Defendant failed to show up, hence this action. 2. Defendant’s case The Defendant appeared in Court and admitted owing rent to the Plaintiff but denied owing to the amount claimed by the Plaintiff. He however could not tell the Court how much rent he owes and therefore, the case was then fixed for trial on oral submission for the Plaintiff to prove his case. The date of the trial was announced in the presence of the Defendant but he failed to show up in Court to participate in the trial proceedings. Since Defendant failed to appear in Court after notice of the trial date have been duly given to him, the Court proceeded with the trial proceedings in accordance with Order 25 r 6 and Order 1 r. 1(2) of C.I. 59. It is trite law that a party who fails to appear in court after due service on him, is taken to have deliberately failed to take advantage of the opportunity to be heard. The audi alteram partem rule cannot be said to have been breached in such situation. See REPUBLIC V HIGH COURT, CAPE COAST; EXPARTE MARWAN KORT [1998-99] SCGLR 833 AND ANKUMAH V CITY INVESTMENT CO. LTD. [2007-2008] 1 SCGLR 1064 3. Issues for Determination 1. Whether or not the Plaintiff is entitled to eviction order and recovery of possession of the premises. 2. Whether or not the Plaintiff is entitled to an order for rent arears. 3. Whether or not Plaintiff is entitled to a refund of cost incurred at the Rent Control Office. 4. Evidential burden Page 2 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT Sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323) provide that the burden of proof on a party in a civil suit should be on a balance of probabilities. In ADWUBENG V. DOMFEH [1996-97] SCGLR, the Supreme Court held that in all civil actions, the standard of proof is proof by the preponderance of probabilities, and there is no exception to that rule. Also, in the case of YORKWA V. DUAH [1992-93] GBR 281, the Court of Appeal decision per Brobbey J.A. (as he then was) stated that: “The provisions of the Evidence Decree, NRCD 323, require that in a case like the instant one, the obligation to adduce evidence should first be placed on the plaintiff”. Section 12(1) also states that “except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities” 5. Under What Circumstance will this Court grant an order for eviction? The Rent Act, 1963 (Act 220), particularly Section 17(1) provides for the circumstances under which a Court of competent jurisdiction can make an order against a tenant for recovery of the possession of, or ejectment from any premises. The Act provides that a court shall not make an order against a tenant for recovery of possession or from ejectment from the premises unless at least one of the circumstances spelt out under section 17(1) of the Act has been established by a landlord. These circumstances include non-payment of rent, subletting without the landlord’s consent, requiring the premises for personal use by the landlord, etc. Among such circumstances is where where any rent lawfully due from the tenant has not been paid or tendered within one month after the date on which it became lawfully due. 6. Evaluation of Evidence The Plaintiff in proving his case testified that, the Defendant owes him three months’ rent arrears of GH₵3,000.00 as at the date he brought the matter before the Rent Control Department. It was his testimony that, the one-year tenancy Page 3 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT agreement he entered with the Defendant was at a monthly rent of GH₵1,200.00. He further testified that the tenancy expired on 30th April, 2024. He supported his testimony by tendering in evidence Exhibits ‘A’ and ‘B’, containing the tenancy agreement and the receipts of expenses incurred at the Rent Control Department. 7. It can be gleaned from the Exhibit ‘A’ of Plaintiff that, the tenancy agreement was executed on 18th April, 2023 and therefore, terminates on 17th April, 2023, although the date of termination of the agreement was not stated by the parties. Again, Exhibit ‘B’ of the Plaintiff are receipts obtained from the Rent Control when he brought the matter before the Rent Officer. The first receipt obtained was dated 27th July, 2024. Therefore, per my deductions, as at the time the Plaintiff went to the Rent Control Department to make claim of the three months’ rent arrears, the tenancy agreement had expired three months ago, meaning that, the Defendant, during the pendency of the tenancy agreement, did not default in payment of his rent for which Plaintiff could claim as rent lawfully due to warrant eviction of the Defendant from the premises. 8. It was again his claim that the Defendant breached a term of agreement, thus using GH₵2,000.00 for minor repairs in the premises. By this claim, the Plaintiff has the legal burden to prove his assertion. Gbadegbe JSC in the case of SAGOE V. SSNIT (2011) 30 GMJ 133; (2012) 52 GMJ 47 at page 58 held: “The party who asserts the affirmative of an issue has the incidence of the legal burden…” 9. The Plaintiff adduced no prove to persuade the Court that what he alleges is the truth. In fact, Exhibit ‘A’ of the Plaintiff showed no such term of agreement to the effect that the Defendant was obliged to use the purported balance of GH₵2,000.00 for repairs. The combined effect of paragraphs 3 and 4(k) of Exhibit ‘A’ is to the effect that, the Defendant fully settled his rent for the one- year duration of the tenancy. Page 4 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT 10. For the purposes of appreciation, the content of paragraphs 3 and 4(k) is reproduced here as follows; “Pg. 3. The Tenant’s rent shall be GH₵10,000.00 for 12 months. Pg. 4(k). That the tenant has paid an amount of GH₵10,000.00 (being rent advance)” I must point out here that, beneath the inscription of ‘being rent advance’ as stated in paragraph 4(k), was written in ink, “full payment” which can be inferred that the Defendant was not in any rent arrears during the pendency of the tenancy to be settled. Moreover, the tenancy agreement did not state any monthly rent of GH₵1, 200.00 as claimed by the Plaintiff. The Plaintiff is not entitled to an order of eviction against the Defendant on the grounds that he has breached any term of the tenancy. 11. Issue 2: Whether or not the Plaintiff is entitled to an order for rent arears. After the expiration or determination of the tenancy agreement on 30th April 2024 as stated by the Plaintiff, the Defendant continued to be in possession of the premises after he had served on him, notice to vacate the premises. If the Defendant failed to vacate Plaintiff’s premisses, then he became a statutory tenant. Statutory tenant means a tenant who remains in possession of premises after the determination by any means of the possession by the landlord. See section 36(1) (b) of Act 220. A statutory tenant holds the premises as a monthly tenant subject to all the terms of the expired tenancy. See page 59 of Ghana Land Law and Conveyancing, 2nd Ed. by BJ da Rocha and CHK Lodoh. 12. Therefore, if the Defendant remains in possession of the premises of the Plaintiff after determination of the tenancy on 30th April, 2024, then he was required to pay a monthly rent to the Plaintiff. As stated earlier, the tenancy agreement did not specifically state a monthly rent and I cannot tell by which Page 5 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT basis the Plaintiff arrived at his claim of GH₵3,000.00 rent for the three months if indeed, the monthly rent was GH₵1,200.00 as averred. But since the Defendant paid a flat rate of GH₵10,000.00, the said amount when divided by 12 months is equal to GH₵833.00. The Defendant was required to pay a monthly rent of GH₵833.00 to the Plaintiff and therefore, if the Defendant has been in possessed of the premises from 30th April 2024 till date, he has eight (8) months’ rent, i.e., GH₵6,666.00 rent to pay to the Plaintiff. In the circumstance the Court hereby orders the Defendant to pay a total rent of GH₵6,666.00 to the Plaintiff by the end of December, 2024. 13. Issue 3: Whether or not Plaintiff is entitled to a refund of cost incurred at the Rent Control Office. Again, Plaintiff is claiming a refund of expenses incurred at the Rent Control Department when he reported the matter for redress by the Rent Officer. The receipts obtained from the Rent Control Department office when summed up is GH₵675.00 and not GH₵700.00 as claimed by the Plaintiff. The Plaintiff is therefore entitled to a refund of GH₵675.00. The Defendant is accordingly ordered to pay the cost of GH₵675.00 incurred by Plaintiff at the Rent Control Department. 14. The Plaintiff further claimed GH₵350.00 as water bill from the Defendant yet he showed no evidence of such bill when he mounted the witness box to prove his case. He is therefore not entitled to this relief. 15. In conclusion, Judgment is accordingly entered as follows: a) The Court hereby orders the Defendant to pays a total rent of GH₵6,666.00 to the Plaintiff by the end of December, 2024. b) Defendant is ordered to pay the cost of GH₵675.00 incurred by Plaintiff at the Rent Control Department. Page 6 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT 7. A cost of GH₵300.00 is awarded in favour of the Plaintiff against the Defendant. H/W MABEL N. L. AHELE (MAGISTRATE) 10/12/2024 Page 7 of 7 10-12-204 KING PRIEST VS. MR BONNY JOSEPH - JUDGMENT