Bello v Concordia Company Ltd and Another (A9/07/24) [2024] GHADC 719 (17 October 2024)

IN THE KOTOBABI DISTRICT COURT, KOTOBABI, ACCRA HELD ON THURSDAY 17TH OCTOBER, 2024 BEFORE HER WORSHIP MAAME YAA A. KUSI-MENSAH ESQ. MAGISTRATE SUIT NO: A9/07/24 SAHID BELLO - PLAINTIFF H/NO. 4 BLOHUM STREET DZORWULU, ACCRA VRS. 1. CONCORDIA COMPANY LTD 1st DEFENDANT P.O BOX P.O BOX 731 TEMA 2. SHEFIU MOHAMMED 2nd DEFENDANT P.O BOX 731 TEMA PARTIES: Plaintiff present 1st and 2nd Defendants absent COUNSEL: Solomon Kwatei Quartey Esq holding the brief of Faisal Bella Djibrilla Esq for Plaintiffs present No Legal Representation for Defendants JUDGMENT Sahid Bello vs. Concordia Company Limited and Anor 1 PROCEDURAL BACKGROUND Plaintiffs commenced this action on 25th April, 2024 seeking the following reliefs: i. An order for ejectment and recovery of possession of House No. 4 Blohum Street, Dzorwulu, Accra; ii. Recovery of the sum of Thirty-Six Thousand Ghana Cedis (GHC 36,000) being rent owed by Defendants from May 2021 to April 2024; iii. Interest on the sum of Thirty-Six Thousand Ghana Cedis (GHC 36,000) at the Commercial Bank lending rate from April, 2024 till date of final payment; iv. Any other relief(s) that this Honourable Court may deem fit Following the close of pleadings, Plaintiff filed his witness statement on 8th July, 2024 with relevant annexures in support of his claims and reliefs. Defendants on the other hand failed and/or refused to file any response to the instant suit although the record shows that at all material times they were served with every relevant process at each stage of the proceedings. The record indicates that following an order for substituted service granted by this Court on 23rd May, 2024, Defendants were served by posting of the relevant processes and hearing notices on the premises of 1st Defendant company and through the registered what’s app number of 2nd Defendant. Accordingly, trial was conducted on 12th September, 2024 upon satisfaction by this Court that there was notice to Defendants of sitting for that day. During trial, the witness statement of Plaintiff together with the annexures attached was tendered in evidence and adopted with no contention. FACTS Plaintiff herein contends that he is the owner of House No. 4 Blohum Street, Dzorwulu, Accra and entered into a tenancy agreement with 1st Defendant Company herein by way of Sahid Bello vs. Concordia Company Limited and Anor 2 rental of a shop to 1st Defendant. The tenancy agreement was dated 1st May, 2019 and 2nd Defendant signed the said Agreement for and on behalf of 1st Defendant. Plaintiff states that the tenancy was for a period of two years, i.e. from May 2019 to May 2021 however, 2nd Defendant claimed that the rent advance paid was for a period of five years which Plaintiff disputed. Nonetheless, Plaintiff in March, 2024 after the expiration of five (5) years wrote to Defendants through his lawyers to serve a demand notice on them to vacate the premises when the rent expired in May 2024. As I have already indicated, Defendants failed and/or refused to file any response to this suit or attend any of the hearings although the record shows that they were consistently served by substituted service with notice of proceedings. THE POSITION OF THE LAW ON SERVICE OF PROCESSES Since the Defendants failed to appear despite being served with the processes and several hearing notices by substituted service, the Plaintiff herein was not cross-examined on his evidence. Of course, a defendant is certainly not obliged to appear in court or provide an answer or response to a process which has been duly served. However, such a defendant ignores court papers at his own risk. This is because, when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trial to its conclusion and make findings on the basis of the evidence adduced at the trial, after which the court may then proceed to give judgment. This was the position taken by the High Court in J.A. Plant (Gh) Ltd vrs. Mahamadas Company Ltd (Suit No: BC 127/2015; judgment dated 15th January, 2016). In that case, the High Court noted that the defendant had knowledge of the time, date and place of the trial and yet failed to appear. Accordingly, the court entered judgment in favour of plaintiff per the reliefs endorsed on the writ based on the viva voce evidence and the exhibits filed by the plaintiff therein. Sahid Bello vs. Concordia Company Limited and Anor 3 In such circumstances, there cannot be a breach of the audi altarem partem rule of natural justice when it is clear that sufficient opportunity was given to a party to be present and heard on the matter but same was neglected by him. A party who has been duly served with processes and accordingly notified of court proceedings has no one but himself to blame when he is made to suffer the consequences or liabilities for not attending court. I am fortified in this view by the case of The Republic Vrs. High Court (Fast Track Division) Accra, Ex Parte State Housing Corporation (No. 2) (Koranteng Amoako - Interested Party) [2009] SCGLR 185 where the Supreme Court speaking through Wood JSC (as she then was) stated the position of a Defendant who fails to attend court as follows; “…A party who disables himself or herself from being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural justice...” See also The Republic vrs. Court of Appeal, Accra, Ex Parte East Dadekotopon Development Trust and Anor (Civil Appeal No. J5/39/2015, judgment dated 30th July 2015) where the Supreme Court again took the same view. It is further noted by this Court that usually, where a party makes an averment and that averment is not denied, no issue is joined and there is no need for the party making the averment to lead evidence on that averment to establish same. What is more, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. In Tutu vs. Gogo (Civil Appeal No 25/67, dated 28th April 1969, Court of Appeal, unreported, digested in [1969] CC 76), Ollenu JA (as he then was) stated: “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross- examination, and the opponent did not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court." This position was also stated in Fori vs. Ayerebi [1996] GLR 627 SC and reiterated by Brobbey J (as he then was) in the case of Hammond vs. Amuah [1991] 1 GLR 89 at 91. See also the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 890. Sahid Bello vs. Concordia Company Limited and Anor 4 However, this being a matter related to property ownership and the rights associated with same, despite the Defendants failure to join issue with any of the averments made, there was nonetheless still the need for Plaintiffs to establish their right of ownership to the property in order to justify the relief for ejectment and recovery of possession sought by Plaintiffs. This proof is necessary because judgments related to land and ownership rights are judgements in rem and not merely in personam and are therefore enforceable against the whole world and not just the parties in the matter themselves. See Akuse Amedeka Citizens Association vrs. The Attorney-General & Anor (Supreme Court Writ No. J1/10/2013; judgment dated 5th Jan, 2015). Furthermore, the law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion lies on both a plaintiff and defendant, and the standard of proof required in civil cases is on the “preponderance of the probabilities”. These evidential rules have been provided for by the virtue of sections 10, 11 and 12 of the Evidence Act, 1975 (NRCD 323). In Ababio vrs Akwasi IV [1994-1995] GBR 774 Aikins JSC expounded on this position of the law as follows: “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead evidence to tip the scaled in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this she wins, if not, she loses on that particular issue.” Similarly, in Ackah vs. Pergah Transport Ltd [2010] SCGLR 728 these evidential rules were summed up eloquently by her Ladyship Adinyira JSC where it was held that: “It is a basic principle of the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility, short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact…. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could Sahid Bello vs. Concordia Company Limited and Anor 5 conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” ANALYSIS OF THE FACTS AND EVIDENCE Plaintiff herein submitted in evidence an indenture between himself and 1st Defendant dated 1st May, 2019 (Exhibit A). This indenture was executed by Plaintiff and 2nd Defendant on behalf of 1st Defendant company in the presence of two other witnesses, and the duration of the tenancy agreement was stated to be two years with the amount of Twenty- Four Thousand Ghana Cedis (GHC 24,000) paid as rent advance. A second indenture was further tendered in evidence by Plaintiff (Exhibit B) also dated 1st May, 2019. However this time around, the duration of the tenancy agreement was stated to be five years with the amount of Sixty Thousand Ghana Cedis (GHC 60,000) paid as rent advance. Just like the first indenture, this second indenture too was executed by Plaintiff and 2nd Defendant in the presence of what appears to be the same two witnesses from the signatures. It is this second indenture for a tenancy lasting 5 years that Plaintiff is disputing and claims he did not agree to (see paragraph 9 of Plaintiff Witness statement filed 8th July, 2024). Notwithstanding this dispute by Plaintiff of the duration of the tenanacy, he still waited for the 5 year period to elapse in 2024, and about two months prior to the termination of the tenancy served 1st Defendant with a written demand notice dated 8th March, 2024 indicating that upon the expiration of the tenancy, he would not renew same (Exhibit C). In the absence of anything to the contrary, although the agreement is titled ‘indenture’ which is normally used for land or real estate agreements rather than tenancy agreements in Ghana, the above documents indicate that Plaintiff and 1st Defendant indeed entered into a tenancy agreement in respect of the said property for a period of time- be it two years or five years. If the duration is two years, the said tenancy expired on 1st May, 2021; But if the duration was five years, then the tenancy expired on 1st May, 2024. In either case, the tenancy agreement has now expired and Plaintiff is entitled to recover the property from 1st Defendant. Sahid Bello vs. Concordia Company Limited and Anor 6 Moreover, Plaintiff’s evidence given affirms that Defendants failed to respond to the letter notifying them of the expiration of the tenancy and the intention of Plaintiff not to renew same. Plaintiff further indicates in his witness statement that the premises is required for use by his daughter hence his need to recover same from Defendants (paragraph 11). As I have already emphasised above, having failed to contest the evidence led against them, Defendants herein are deemed to have admitted same and have shown by their own conduct to have no defence to the action. Nonetheless, in Owusu vrs. Tabiri and Anor [1987-1988] 1GLR 297, it was emphasised that a party must win his case on the strength of his own case and not on the weakness of the defence. I am thus satisfied as the trier of fact that Plaintiff herein has satisfactorily discharged his evidential burden of proof. I am further persuaded in the absence of any evidence to the contrary that Plaintiff is the owner of the property and a tenancy agreement did in fact exist between him and 1st Defendant herein which has since expired. The tenancy having expired, Plaintiff is entitled to his reliefs of ejectment and recovery of possession (section 17 of the Rent Act, 1963 (Act 220) is further applied). However with respect to the rent arrears of Thirty-Six Thousand Ghana Cedis (GHC 36,000) claimed by Plaintiff as rent owed by Defendants from May 2021 to April 2024, I am not satisfied that Plaintiff is entitled to rent arrears to the tune of that amount. This is because there is conflicting evidence on the duration of the tenancy, and it was not firmly established by Plaintiff that the duration of the tenancy was for two years only. In that regard, it cannot be certain what amount of rent arrears is owed exactly by 1st Defendant till date, and I find it impossible to conclude that Plaintiff is entitled to recover rent arrears to the tune of the amount claimed. Flowing from this, it would also be impossible to calculate the interest that would be owed on an unascertained amount. In conclusion, I accordingly enter judgment in Plaintiff’s favour for the 1st relief. However the 2nd and 3rd reliefs fail. Costs of Three Thousand Ghana Cedis (GHC 3,000) is awarded in favour of Plaintiff. Sahid Bello vs. Concordia Company Limited and Anor 7 SGD. MAAME YAA A. KUSI-MENSAH (MS). MAGISTRATE Sahid Bello vs. Concordia Company Limited and Anor 8