TETTEY VRS. MENSAH AND ANOTHER (A11/16/2024) [2024] GHADC 569 (5 November 2024)

IN THE DISTRICT COURT HELD AT PRESTEA ON TUESDAY THE 5TH DAY OF NOVEMBER, 2024 BEFORE HIS WORSHIP IDDI ADAMA, ESQ SITTING AS THE DISTRICT MAGISTRATE SUIT NO. A11/16/2024 BETWEEN BEN TETTEY OF BOGOSO **** PLAINTIFF AND 1. ISAAC GYASI MENSAH 2. CONSTANCE ACKON BOTH OF BOGOSO **** DEFENDANTS JUDGEMENT The instant suit was commenced on the 13/3/2024 by the Plaintiff herein for the following reliefs: 1. An order of the Honourable Court compelling Defendants to compensate Plaintiff with an amount of GH₵36,000.00 for demolishing Plaintiff’s one storey building situate at Bogoso. 2. Any other equitable relief(s) the Court may deem fit. A brief fact of the case is that, about 20 years ago, Plaintiff rented a piece of land measuring about 24 x 24 feet from one Madam Charlotte Arhin for his carpentry work and paid monthly rent. It is Plaintiff’s case that after 5 years in occupation and payment of rent, 2nd Defendant approached and requested he pay the subsequent rent to her as the landlord of which Plaintiff obliged. Eight years ago Plaintiff states that 2nd Defendant granted him the 1 | P age permission to build a block storey building store which he did and had two storerooms each on both the ground floor and the first floor. Plaintiff states that, eight months before the institution of the matter, 2nd Defendant sold the land to 1st Defendant who demolished his building without compensation and started development on the land and all efforts to garner compensation proved futile, thus the present action. In his Witness Statement filed on the 10/6/2024, Plaintiff stated that he know the 2nd Defendant as his landlady and the 1st Defendant as the person the 2nd Defendant sold his rented land to. That the 2nd Defendant 11 years ago rented her land along the Prestea Bogoso road for interested persons to build their shops and store of which he sought permission and approval was given by 2nd Defendant to do so on a 24 x 24 feet land he rented. This according to Plaintiff was with the concurrence of 1st Defendant. According to the Plaintiff the structure was constructed at great cost as the land was undulating. Per his witness statement Plaintiff indicated that the agreed rental was GH₵1,200.00 per anum of which payment was made every 24 December each year. It is Plaintiff’s case that two years ago, 2nd Defendant demanded he demolish his structure since the land has been sold to 1st Defendant. Thus, Plaintiff demanded for compensation as he subsequently saw that the demolition has actually been carried out. Further enquires according to Plaintiff is that, it was 1st Defendant that carried out the demolition and that his wife, PW1 bears witness. During cross examination by 1st Defendant, Plaintiff claimed that 2nd Defendant had informed him of the sale but failed to inform him of the person who carried out the demolition for him to claim compensation. When probed further Plaintiff informs the Court that PW1 said someone informed him that it was 1st Defendant that demolished his structure. This interaction is on page 5 & 6 of Record of proceedings. The effect is 2 | P age that neither the Plaintiff nor his wife who is PW1 in this present action was present when the demolition took place. It was through hearsay that Plaintiff lays his claim. When 2nd Defendant was called to cross examine Plaintiff. It was put to him that the structure was erected without her consent and that the Plaintiff took the land without her express permission to which Plaintiff categorically denied same. Plaintiff insisted 2nd Defendant rented the land to him about 10 years ago and denied taking the land without permission. In laying credence to his statement, Plaintiff alleged that an announcement from the information centre that culminated in his coming forward to rent the land and the demarcation was done with the help of 2nd Defendant’s caretaker. There was no further prove to ascertain same. It is the position of Plaintiff that a report to the Registrar of this Court by 2nd Defendant sometime past was for compensation for the demolition of his structure and not for his refusal to vacate the land when suggested by the 2nd Defendant. Further to this when suggested by the 2nd Defendant that there was no rental agreement and no receipts were issued for same, Plaintiff denied and alleged that receipts were issued by 2nd Defendant without providing same in evidence. It was further revealed during cross examination that the Plaintiff had rented the disputed property to a third party without recourse to 2nd Defendant, the landlady. PW1, Mary Tettey, who is the wife of Plaintiff in her witness statement, stated that in his bid to lease a land for his carpentry workplace approached 2nd Defendant who agreed to rent same. The portion was demarcated by 2nd Defendant’s son. It was attributed that the nature of the Plaintiff’s job was reason for giving him the extreme end which was highly undulating. PW1 further stated the agreed rent was GH₵20.00 per month which was further increased to GH₵50.00 per month for the concrete floor and GH₵50.00 for the two (2) bedrooms constructed. PW1 further stated that Plaintiff was up to date on payments of 3 | P age rent till two years ago when 2nd Defendant demanded Plaintiff demolish the structure because the land has been sold to 1st Defendant to which Plaintiff demanded compensation to that effect. That upon enquires it was revealed to her that it was 1st Defendant who carried out the demolition of the structure. Further to this PW1 indicated that she confronted 1st Defendant who alleged that 2nd Defendant has told him that the owner of the structure have been compensated and that he should go ahead and demolish the structure. PW1 further asserted that 1st Defendant offered to meet Plaintiff to settle the misunderstanding but this never materialised. During cross examination PW1 insisted that rent was paid to 2nd Defendant through her which stood at GH₵1,200.00 yearly. When asked whether receipts were issued by 2nd Defendant, she answered in the affirmative but was unable to produce receipt to prove same. Further probe to produce the receipt compelled PW1 to state no receipts were issued for the rent alleged. The interaction is informative and I quote: Q. I want to put it to you that I have not taken any money from the Plaintiff with regards to the land in dispute? A. It is not true I was the one the Plaintiff has been giving money to be given to you. Q. Did I give you a receipt on the payment you made to me. A. You were writing the amount I pay to you on a small sheet of paper. Q. How much were you paying every month. A. GH₵1,200.00 yearly. Q. I want to put it to you that it’s not true. You have never given me any money. A. It is true that I was giving you money. 4 | P age Q. I want to put it to you that I did not take any money from you or the Plaintiff because I did not rent the land in dispute to the Plaintiff? A. It’s not true, we were paying the money to you. Q. Then give the receipt of those payments to the court? A. You were not giving us receipts. Q. When was the last time you and the Plaintiff made payment in respect of the land in dispute. A. We were paying the money in December, that was two (2) years ago. During cross examination, PW1 became jittery as to her demeanour when the above questions were posed and gave conflicting answers to the Court with regards to the payment of rent. In one breath, PW1 indicates receipts were issued but in another breath stated no receipts was issued by 2nd Defendant but still insisted she was telling the truth to the Court. This acts boils down to her credibility as a witness. 1st Defendant filed his witness statement on the 19/6/2024 and stated he had never met Plaintiff but for his presence in Court. That he know the 2nd Defendant as a person who owes the land he is constructing stores on and to be shared on equal basis when completed. According to 1st Defendant the land was given him in 2022 and on it, was a container and a carpentry shop. 2nd Defendant assured him of clearing the container or structure to pave way for the construction of which eight (8) months later the construction commenced. 1st Defendant denied having anything to do with the demolition of the structure. This was further denied during cross examination and also denied when suggested to him that he told PW1 he would see Plaintiff for negotiations for pulling down Plaintiff’s structure. In her witness statement filed on the 1/7/2024, 2nd Defendant stated 1st Defendant to be her tenant who is constructing a one storey building stores on the disputed land to be 5 | P age shared equally when completed. According to her she demarcated and rented her plots of land to interested persons to erect their container stores some time ago subject to them vacating same when she needs the land for a project. The Plaintiff was however not part of that agreement as there was none. In due course, according to 2nd Defendant she notified all her tenants on the land who vacated same except the Plaintiff who continued to construct the structure as depicted per Exhibit ‘1’ attached to her witness statement. 2nd Defendant further stated that she warned Plaintiff to stop but Plaintiff ignored and constructed the structure as exhibited per Exhibit ‘1’. 2nd Defendant indicated that one Isaac Banor (DW1) who is her caretaker was sent to warn Plaintiff but he was also ignored. Further complaint was lodged at the registry of this Court which was also ignored by Plaintiff. It is the case of 2nd Defendant that since Plaintiff had removed all his belongings from the structure, she went ahead to clear the site for her project. It is also the case of the 2nd Defendant that the land upon which the Plaintiff claims to have stayed for 20 years was different from the disputed land. 2nd Defendant attached as Exhibit ‘2’ a picture of the aforesaid structure. It is 2nd Defendant’s claim that in 2018 Plaintiff approached her and said he was erroneously paying rent of GH₵100.00 for the land upon which his carpentry shop is located to one Charlotte Arhin instead of the rightful owner being her 2nd Defendant. This according to 2nd Defendant Plaintiff paid GH₵900.00 out of the GH₵1,200.00 and was issued with a receipt attached and marked as Exhibit ‘3’. During cross examination, 2nd Defendant stood on her grounds that she never gave the disputed land to Plaintiff. When it was suggested to her that Plaintiff has been on the land for the past 11 to 12 years without any protest from her, 2nd Defendant indicated that due to Plaintiff’s trespassory act a report or complaint was lodged with the Registrar of this Court to settle the matter and that she never agreed with Plaintiff to raise pillars and put up the structure on the disputed land. 6 | P age 2nd Defendant’s witness (DW1) Isaac Banor was however disqualified as a witness and his statement expunged as he was present in Court when cross examination of PW1, 1st and 2nd Defendants was taking place. The issues for determination at this juncture is: 1. Whether there was a valid rental agreement (either implied or express) between the Plaintiff and the 2nd Defendant. 2. Whether the demolition of the structure on the disputed land demands compensation to be paid to Plaintiff. In determining the legality for compensation as claimed, it is incumbent on me to determine whether there subsist a contractual relationship between Plaintiff and 2nd Defendant. It is trite learning that he who asserts must prove that assertion. This position is captured under section 11(1) and (4) of the Evidence Act 1975 (Act 323); “11(1) For the purpose of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence” This boils down to the balance of probability where the party upon whom the burden lies to prove his assertion to the extent that it would be more probable than that of his opponent if posed to a reasonable mind. This is to the effect that the Plaintiff must adduce sufficient evidence for his claim to be successful and if such evidence is not sufficiently proved to the satisfaction of the Court, 7 | P age the Court would be deposed to dismiss his claims. Such evidence led by the Plaintiff must be such that will convince the Court that the existence of the fact is more probable than its non-existence. The Plaintiff therefore has to lead evidence on what he claims, otherwise he cannot get the Court to order the Defendants to give him what he wants. It is also trite rule that the person to start leading evidence is the one against whom a ruling will be given if no evidence is led. This principle is stated as per Section 17 of Act 323 and I quote “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 evidence.” Pursuant to Section 36(1)(c) of the Rent Act 1963, (Act 220) defines a tenant to include a person who leases premises from another person in consideration of the payment of rent. Further to this a landlord as defined under section 36(1) includes a person who leases premises to another person in consideration of the payment of rent and a person deriving title under the original landlord. Section 36(1) and (1)(c) depicted above indicates that a tenant is a person who leases premises from a landlord and is subject to pay rent. A landlady in this regard is a person who leases premises in consideration for the payment of rent by the tenant. The Plaintiff in this present action indicated in Court that he rented the land in dispute from the 2nd Defendant and as such pays rent as consideration to the 2nd Defendant. 2nd Defendant denied ever leasing the disputed land to the Plaintiff. The Plaintiff did not offer any evidence to his assertion of paying rent to the 2nd Defendant. However when DW1, Mary Tetteh who happens to be the wife of Plaintiff was cross examined on her statement it was asserted that 2nd Defendant agreed on a 8 | P age rent of GH₵20.00 each month for the land and after the structure was erected 2nd Defendant revised her rent to GH₵50.00 for concrete floor and GH₵50.00 for the two (2) bedrooms. The interaction between PW1 and 2nd Defendant quoted supra is informative. It came to the fore that neither the Plaintiff nor his witness, PW1 were able to give evidence to indicate that they paid rent as tenants to the 2nd Defendant who is the landlady for that matter. The only instance where the 2nd Defendant acknowledges there was a Landlord/Tenant relationship is deductible from Exhibit ‘2’ and ‘3’. A careful examination of Exhibit ‘2’ is a picture of a carpentry shop made up of a wooden pillars and a shed with roofing sheet. In there lies some furniture indicating it to be a carpentry shop. To this 2nd Defendant asserted that it was the shop that Plaintiff pays rent to her at GH₵100.00 per month and the Plaintiff has paid GH₵900.00 of the one year rent of GH₵1,200.00. Attached and marked as Exhibit ‘3’ is a receipt. A critical scrutiny of the receipt depicts the name Ben Tetteh upon which an amount of GH₵900.00 and a balance of GH₵60.00 is quoted on the receipt and is numbered 0016118. The date however was not legible as it being a photocopy. It is trite that where the pleading of a party is not denied, there is an implied admission of that averment which eliminates all responsibilities on the party in favour of whom the admission is deemed from leading evidences in proof of the admitted facts. See: Adwoa Bokor v Madam Agbo Addoye (Substituted by Philip Odoi) [2021] unreported SC 21-12-2008 (C.A No. J4/38/2021) Torkornoo JSC (As she then was). The fact that the Plaintiff did not deny the assertions of the 2nd Defendant regarding evidence as depicted by Exhibit ‘2’ and ‘3’, it is deemed that the Plaintiff has admitted same as failure of a party to specifically deny averments in the opponent’s pleadings shall be deemed as admission. It is further deduced from the interaction between PW1 and 2nd Defendant that on one breath PW1 indicated during cross examination that 9 | P age receipts were issued by 2nd Defendant with regards to the disputed land and in another breath states that no receipts were issued when demanded to produce same in Court. This depicts PW1 as not to be a witness of truth. The answers given by PW1 determine her credibility as her inconsistent response to questions posed. As such she fails the test as her story is not in harmony with the balance of probability which a practical and informed mind would not readily recognise as reasonable. See Chantel v Koi [2011] 29 AMJ @ page 51, Kusi Appiah JSA. 2nd Defendant on the other hand denied any contractual relationship with the Plaintiff with regards to Exhibit ‘1’ the land in dispute upon which is built a one storey structure with the ground floor having a concrete structure with two gates in the front and a shed on the top of it after a careful scrutiny. This was however not controverted by the Plaintiff as such deemed as admission of the assertion of the 2nd Defendant. And since per the definition of a Landlord in Act 220 there is no evidence led by the Plaintiff to proof that 2nd Defendant leased the premises to him neither was there prove of the payment of consideration by way of rent. Be it as it may it is informative to note that Section 17(1)(h) of Act 220 only requires a Landlord who sought to recover possession of his business premises is to satisfy the Court that she reasonably required the premises to be used by her for her own business purposes was a statutory requirement which the Landlord is under a duty to discharge. Even if the point was not raised or pleaded by the tenant, no Court could make an order for possession unless it was shown that it was reasonable to make the order. The issue of whether or not the premises was reasonably required by the Landlady was a question of fact for the judge with the consequence that the tenants failure to deny by way of pleading would not take away the judge’s power to decide that fact on the evidence before him. See Joseph v Farisco (Ghana) Ltd [1991] 2 GLR 151. 10 | P age It is therefore evidential from the pleadings of 1st and 2nd Defendants that the disputed land was needed to construct stores which were to be shared on equal bases. Paragraph 3 of the witness statements of 1st and 2nd Defendants filed on the 19/6/2024 and 1/7/2024 is instructive. I am therefore convinced that the Plaintiff was unable to satisfy the Court that there existed a valid contractual relationship by way of landlord/tenant relationship between him and the 2nd Defendant. Based on the balance of probabilities as per the evidence adduced so far there is no valid rental agreement between the Plaintiff and the 2nd Defendant. As to whether the Plaintiff is entitled to compensation for the demolition of his structure. I am inclined to determine what compensation is and whether the Plaintiff is entitled to same though the first leg fails in respect of non-existent contractual relationship. Compensation also referred to as damages is a sum of money claimed as compensation or awarded by a Court as compensation to the Plaintiff/Claimant for loss or injury suffered by the Plaintiff/Claimant as a result of a tortuous act or breach of contract committed by the Defendant or his agent. When a Plaintiff makes a claim for damages, the Plaintiff or Claimant is required under the law to provide evidence in support of the claim and to provide facts that would form the basis of assessment of the damages he will be entitled to. See Ecobank Ghana Ltd. v Aluminium Enterprise Ltd (JA/18/2020) unreported SC 13/5/2020 Prof. Klotey JSC. The principle underlying award of damages in both tort and contract is the principle of restitutio in integrum and the Court considers two factors in determining so. These are remoteness of damages and the measure of damages. See Royal Dutch Airlines & Anor v Farmex Ltd. (1989/90) 2 GLR 623 at page 625. 11 | P age Damages are also general or special and in this present case it is special damages as demanded by the Plaintiff. It is trite learning that special damages must be pleaded and proved strictly. In Delmes Agency Ghana Ltd. vrs. Food Distribution International Ltd. (2007/2008) SCGLR 748 at page 760 the Court said as follows “Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate. In this regard, the plaintiff did not offer any evidence to determine the amount of damages by way of the evaluation of the structure, the amount expended in the construction of the structure in terms of construction materials, labour cost etc. it is further noted that there is no contractual relationship between the Plaintiff and 2nd Defendant and his acts amount to trespass to property. Further to this the Plaintiff did not provide by way of evidence a tortuous act that would entitle him to compensation or damages. For it is a maxim of equity that: “He who comes into equity must come with clean hands”. From the entirety of the evidence adduced there was no evidence to prove that the Plaintiff entered into an agreement with the 2nd Defendant and also there was no proven evidence to at least prove the payment of rent. Such a person however cannot obtain compensation or damages for that matter where there is no iota of evidence to prove his tenancy status. In this regard the relief sought for compensation for the demolition of Plaintiff’s structure fails in its entirety. No order as to cost. Plaintiff has the right of Appeal to the High Court, Tarkwa. H/W. IDDI ADAMA, ESQ. 12 | P age (DISTRICT MAGISTRATE) 13 | P age