Asiedu v Armah and Another (A9/58/22) [2024] GHADC 758 (20 October 2024)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON 20TH OCTOBER, 2024 SUIT NUMBER: A9/58/22 JAMES ASIEDU PAA NII - PLAINTIFF HOUSE NO. C2 ANKWA DOBRO, EASTERN REGION VRS. 1. BISHOP EBENEZER N.A. ARMAH - DEFENDANTS HOUSE NO. UNKNOWN NII BOI TOWN LAPAZ - ACCRA 2. THE RICH FAMILY CHURCH INTERNATIONAL NO. 17, BREMANSU STREET NII BOI TOWN, LAPAZ-ACCRA ............................................................................................................................. TIME: 11:03AM P age 1 | 12 PLAINTIFF ABSENT REPRESENTED BY GEORGINA AMOAKO 1ST DEFENDANT PRESENT REPRESENTING THE 2ND DEFENDANT DIVINE KWEKU ASIGBETSEY, ESQ. FOR PLAINTIFF ............................................................................................................................. JUDGMENT This suit was commenced by way of a writ of summons filed in this Court, on 13th July 2022 wherein the Plaintiff claimed the following reliefs against the Defendant; a) An order directed at the Defendants to pay the accrued rents for two shops as ordered by the Rent Officer being GH¢ 13,400.00 b) An order directed at the Defendants to pay to the Plaintiff, the rent accrued and due for the rooftop facility as of date being GH¢ 29,000.00 and any subsequent months till the instant suit is finally determined. c) An order directed at the Defendant to desist from making further developments on the facility from date of service of the instant Writ on them. d) An order directed at the Defendants to pay interest at the prevailing rate on the amount of arrears due the Plaintiff till the date of final payment. e) A refund of the one year rent allowed the Defendants by the Plaintiff for the provision of electricity and washroom facilities for the shops. f) Cost of litigation including legal fees. From the attached statement of claim, it was averred that Plaintiff is the owner and Chief Executive Officer of Leesborough Company Ltd which has two shops and a rooftop facility. It was averred that the Plaintiff entered into a rental agreement on behalf of the Company with the 1st Defendant who happens to be the church of the 1st P age 2 | 12 Defendant. The Plaintiff stated that he entered into two separate agreements with the Defendants on 27 February and 24th May all in 2017 in respect of the rooftop facilities and two shops respectively. Plaintiff further stated that parties agreed with a rent of GH¢ 750.00 monthly for the rooftop and GH¢ 800.00 monthly for the two shops, with effect from date of execution of the tenancy agreement. The Plaintiff stated that as part of the agreement, the tenant was to make expenditure not exceeding GH¢ 58,560.00 in order to put the facilities into desirable state for their use. Plaintiff stated that the tenant was to occupy the rooftop for 10years. The Defendant denied that amount agreed upon to be spent on the expansion of the facility. According to the Defendant, they spent an amount of GH¢ 133,051.00 on the rooftop. According to the Defendant, the stores were fully completed save for the provision of electricity and water. The Defendant stated the agreement was built, operate and transfer after the total cost of constructing the structure has been exhausted. According to the Defendant, when the matter went to Rent Control, the valuation report by the department exceeded the amount of GH¢ 133,051.00. Defendant stated that the extra expenditure incurred was necessitated by building expert from Accra Metropolitan Assembly which the Plaintiff was informed. Defendant averred that the Plaintiff has constantly been interrupting his peaceful possession of the shops as well as the rooftop facility. Defendant further averred that the Plaintiff has prevented the 2nd Defendant Church from having service with thugs by locking the rooftop facility amidst threats. Defendant stated that the amount spent on the uncompleted shops exceeded GH¢ 9,600.00 and therefore counterclaimed as follows; P age 3 | 12 1) An order for the payment of GH¢ 15,000.00 by the Plaintiff as damages for the destruction of the 2nd Defendant facilities. 2) An order for the payment of GH¢ 2,000.00 by the Plaintiff as compensation for the attack and assault of the 1st Defendant and his daughter. 3) An order for the payment of GH¢ 20,000.00 by the Plaintiff to the 2nd Defendant for the loss of proceeds from Church service on 3rd October, 2021. 4) An order restraining the Plaintiff, his agents, assigns, and anybody claiming through him to desist from interfering with the Defendants peaceful occupation of the roof top facility until the total expenditure of GH¢ 133,051.00 is exhausted. 5) Cost including legal fees. Issues Parties filed witness statement after pleadings have ended. From the foregoing, it is evident that the main issues for consideration by this Court are; 1) Whether or not there is any agreement between the Plaintiff and Defendant. 2) Whether or not the Defendants owe GH¢ 13,400.00 being accrued Rent for two shops. 3) Whether or not the Defendant is to pay an amount of GH¢ 29,000.00 and any subsequent payment till the suit is finally determined. 4) Whether or not the Defendant is entitled to recover an amount of GH¢ 15,000.00 as damages for destruction of 2nd Defendants facilities. 5) Whether or not the Defendant is entitled to GH¢ 42,000.00 as compensation for the attack and assault. 6) Whether or not the Defendant is entitled to collect GH¢ 20,000.00 for Plaintiff being loss of proceeds from church service on 3rd October, 2021. P age 4 | 12 Evaluation of Evidence and Resolution of issues It is trite that in civil cases, the general rule is that the party who his or her pleadings or writ raises evidence essential to the success of his/her case assumes the onus of proof. The one who alleges, be he a Plaintiff or Defendant assumes the initial burden of producing evidence. It is only when he has succeeded in producing evidence that the other party will be required to lead rebuttal evidence, if need be. Proof lies upon him who affirms or alleges not upon him who denies, since by the nature of things he who denies a fact cannot produce any proof. See the following; SC II (1) & (2), 12 (2) AND 14 OF THE EVIDENCE ACT 1975 [NRCD 323] AS WELL AS THE CASE OF TAKORADI FLOUR MILLS V SAMIR FARIS [2005 – 2006] SCGLR at 900. GIHOC REFEGERATION HOUSEHOLD v JEAN HANNA ASSI [2005 – 2006] SCGLR 458, T. CHANDRIAM v TETTEH [2018] 120 GMJ 112 at 147 CA per AGNES M.A DORDZIE, JA and AIR NAMIBIA v MICRON TRAVEL [2015] 91 GMJ 173 at 191 CA per Kanyoke JA. The Plaintiff had the onus of discharging the burden of producing sufficient evidence in respect of their claim on a balance of probabilities. The Plaintiff testified through his attorney on 27/4/2023 by relying on his witness statement filed on 4th November, 2022. The evidence was essentially the same as the averments in his pleadings, he exhibited ‘B14’ to ‘B21’ and ‘B22’ to ‘B31’ series. The Plaintiff’s evidence was that he entered into a tenancy agreement with 1st Defendant for occupying two shops and rooftop facility. Plaintiff stated that since March 1st that the Defendant was expected to make payment of the rent, any attempt to collect same has resulted in confrontation. P age 5 | 12 She testified that Plaintiff sent a letter to the 1st Defendant, a notice of his intention to discontinue with tenancy when the existing agreement expires on 28/2/22. Plaintiff stated that an amount of GH¢ 8,000.00 out of the GH¢13,400.00 has been handed over to the Plaintiff leaving a balance of GH¢ 7,600.00. Plaintiff also testified that the Defendant was allowed to use GH¢ 9,600.00 which would have been rent payable for one to install sewage and utility in the shops and leave them upon termination of tenancy. The Plaintiff stated the 1st defendant, the two shops left were unfit for rental and occupation when he was ordered do vacate shops by Rent Office. Attached is pictures of the state in which 1st Defendant left the shops and marked exhibit ‘A’ series. The Defendant also testified on 3rd January, 2024 by relying on his witness statement and supplementary witness statement. He stated that he entered into an agreement to build, operate and transfer after the total cost of constructing the structure has been exhausted. He said that he paid the entire project and all further development were communicated to the Plaintiff, copies of pictures attached and marked as Exhibit ‘1’. From the evidence adduced, I found as a fact the Plaintiff entered into an agreement with Defendant. It is not disputed by the Plaintiff. The Plaintiff insisted that the Defendant has not complied, with the orders by Rent Office. He stated the Defendant owes him GH¢ 13,400.00 and in respect of two stores, GH¢ 32,000.00 for roof top. This ensued under cross examination of the Plaintiffs by the Defendant. Q. Since you filed this this writ of summons has there been any new development in respect of this matter. A. No My Lord, but since the Rent control gave an order for money to be paid due the Plaintiff by the Defendant, they have not complied, yet still the Defendant is running his church on roof top. As at now the Defendant owes GH¢ 13,400.00 in respect of two stores, GH¢ 32,000.00 for roof top. P age 6 | 12 Q. By the build, operate and transfer agreement, the Defendant was to operate the structure for 7 years until 2027 before transferring it to the Plaintiff. Is that so? A. Yes but 10 years agreement out of which we collected three(3) years advance in total, he expended an amount of GH¢60,000.00 on the entire project. However, when he brought the expenditure of GH¢ 13,351.00 we agreed. Q. And that this total expenditure was to set off the monthly rent of GH¢ 750.00. Is that so? A. That is so, if we had completed before he came to occupy, we will not have given it out at that price. Q. And that after the extra month you told the Court, the figure should have increased from GH¢ 16,000.00 upwards but not decrease to GH¢ 13,000.00 in your witness statement. A. Yes, My Lord but before we ended up at Rent Office, the arrears was GH¢ 19,200.00. Q. In paragraph 17 of witness statement, you said that the 1st Defendant made part payment of GH¢ 5,800.00 at of GH¢ 13,400.00 and handed over the keys to the shop to the Rent officer who handed over same to me. A. Yes, My Lord, but the amount was not GH¢ 13,400.00 but rather a little over GH¢ 19,000.00 but the Defendant paid GH¢ 5,800.00. From the evidence adduced in the trial it was quite clear that the 1st Defendant spent GH¢ 13,300.51 in constructing the facility is that not so? Q. From your pleadings before the Court, you agreed that 1st Defendant spent an amount of GH¢ 13,300.51 in constructing the facility is that not so? P age 7 | 12 A. Yes, My Lord. Q. And that you are demanding an amount of GH¢ 29,000.00 as arrears of rent in respect of the roof top facility, is that not so? A. That is not correct, the reasons why we are in Court is to claim GH¢ 13,400.00 that is not roof top apartment. Q. And that in respect of GH¢ 13,400.00 you said in paragraph 18 of your witness statement he refused to pay a balance of GH¢ 7,600.00 is that no so? A. That is not so. Before we proceeded to Rent Control, the arrears was GH¢ 19,200.00 and the Defendant paid GH¢ 5,800.00 leaving balance of GH¢ 13,400.00 when we referred the matter to Rent Control, the officer of Rent Control recommended for the recovery of GH¢ 13,400.00. This GH¢ 13,400.00 in respect of two stores that the Defendant was occupying. If we are to talk about roof top, then from 1st March, 2020, the Defendant was to pay GH¢ 750.00 each month when he has not paid up to date. Q. I am suggesting to you that the explanation you gave to the Court is in sharp contradiction to your paragraph 17 & 18 of your witness statement. A. I don’t know what you are talking about. Q. In paragraph 17 of your witness statement, the 1st Defendant made part payment of GH¢ 5,800.00 out of the GH¢ 13,400.00 and handed over the keys to the Rent Officer who handed same to you. A. It is true, but the Defendant was owing GH¢ 19,200.00 out of GH¢ 19,200.00 the Defendant paid GH¢ 5,800.00. Further cross examination of Defendant by Plaintiff went further to prove that the recommendation by Rent Officer has not been complied with. P age 8 | 12 Q. The matter was first heard at Rent Control Office, is that correct? A. Yes, My Lord. Q. And the Rent Officer at the hearing in respect ordered you to vacate the shop? A. It is not true. I suggested further I will hand over the shop. Q. You were also ordered to make payment of GH¢ 13,400.00 to the Plaintiff. A. So far as I am concern GH¢ 7,600.00 is the outstanding. Q. Did you appeal this order by the Rent Officer? A. Yes My Lord Q. Where did you appeal to? A. At the rent control. Q. Do you have the said appeal before this Court? A. I don’t have with me at the moment. Q. Do you still maintain that you don’t owe the Plaintiff? A. I don’t owe the Plaintiff because our rent has not expired. Secondly, the rent control did assessment of cost. The jurisdiction of the Rent Magistrate in District the Court is contained in Act 459, Section 47(1) (d) as amended by Act 620. Act 220 deals with cases, involving premises, buildings or such like structures, whether fully or partially completed and which were already in existence at the commencement of the relationship of Landlord and tenant. In Ghana the only grounds on which a tenant can lawfully be ejected from premises are those spelt out in Act 220. Section A 25(2) and 28 and in some extreme cases by writ of summons on the basis of common law. P age 9 | 12 Any ground which does not fall within Act 220 or is not covered by the common law cannot be sustained in the Court. See Adu Sarkodie vs. Karam & Son Ltd (1975) 1 GLR 411. Under Act 220, Section 17(1) the general grounds by which a tenant can be ejected may be summed up as follows; 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; b) Where an obligation of the tenancy, other than that specified in paragraph (a), so far as that obligation is consistent with this Act, has been broken or nor performed; c) Where the tenant or a person residing with the tenant has been guilty of conduct which is a nuisance or an annoyance to adjoining occupiers; d) Where the tenant or a person residing with the tenant has been convicted of using the premises or allowing the premises to be used for an immoral or illegal purpose; e) Where the condition of the premises has in the opinion of the Rent Magistrate or judge deterioted owing to acts of waste by, or the neglect or default of, the tenant or a person residing with the tenant; f) Where the tenant has given notice of the intention to quit in writing and in consequence of the notice the landlord has contracted to sell or let the premises or has taken any other steps as a result of which the tenant would, in the opinion of the Rent Magistrate or Judge, be seriously prejudiced if the tenant could not obtain possession; g) Where the premises are reasonably required by the landlord for personal occupation as a dwelling house by the landlord, a member of the family of the P age 10 | 12 landlord or a person in the whole-time employment of the landlord, the premises being constructed to be used as a dwelling house, but i. The circumstance that the premises are reasonably required by the landlord for personal occupation by someone in the employment of the landlord shall not be a sufficient circumstances if the magistrate or judge is not satisfied that the landlord usually provides premises for occupation by an employee of the class to which that employee belongs, and ii. An order shall not be made if the Rent Magistrate or Judge is satisfied having regard to the circumstances of the case, including an alternative accommodation available for the person for whose occupation the premises are required or for the tenant, that greater hardship would be caused by granting the order than by refusing it; h) Where the lease has expired and the premises are reasonably required by the landlord to be used by the landlord for the landlord’s own business purposes, the premises being constructed to be used as business premises, if the landlord has given not less than six months’ written notice to the tenant of the intention to apply for an order for the recovery of the possession of, or the ejectment from the premises; i) Where the premises were let to the tenant by reason of the tenant’s employment in the service of the landlord and the employment has ceased; and j) Where the landlord was personally in occupation of the premises and has let the premises substantially furnished for a term during the landlord’s absence from the Republic or that area of the Republic in which the premises are situated and has returned and requires the re-occupation of the premises for personal occupation; but an order granting the possession of, or the ejectment from, the premises shall not be granted on or after the commencement of this Act, unless P age 11 | 12 the lease is in writing and sets out that the lease has been granted for a term during the absence of the landlord from the Republic or that area. From the evidence adduced, the Plaintiff entered into tenancy agreement with the Defendant for two shops and rooftop facility owned and operated by the Plaintiff. Per the evidence the Defendants reneged on their commitment to pay rent for the facilities with effect from March 2020, contrary to the terms of the agreement. Again, on the issue of excess expenditure on the roof top, the Defendant failed to support their assertion of informing the Plaintiff with any evidence. Having regard to the evidence adduced, the Court holds that the Plaintiff have been able to discharge, the burden of proof on them and as such their claims stands. Cost of GH¢ 2,000.00 is awarded against each Defendant. SGD HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P age 12 | 12