Odoi v Tawiah (A9/21/23) [2024] GHADC 713 (1 October 2024)

IN THE DISTRICT COURT AT LA HELD ON TUESDAY THE 1ST DAY OF OCTOBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU- SAKYI, SITTING AS MAGISTRATE SUIT NO: A9/21/23 EMMANUEL ODOI OF HOUSE NO. 29/30, LA >>> PLAINTIFF VRS. MADAM TAWIAH OF LA >>> DEFENDANT _______________________________________________________________ PARTIES: Plaintiff present Defendant present JUDGMENT ________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit on 30/01/23 against the Defendant and prayed for the following reliefs; 1. Immediate Ejection 2. To leave room in a tenantable condition. 3. Costs In order to achieve speedy and effective justice the Court dispensed with the filing of written statements and witness statements and allowed the parties to testify orally. The Plaintiff mounted the witness box on the 27th of July, 2023 and cross examination by the Defendant was completed on the 20th of February, 2024. The Defendant on the other hand testified on the 20th of February, 2024 and cross examination by the Plaintiff ended on the 10th of July, 2024. The Defendant called one witness who testified on the 16th of July, 2024 and was cross examined on that day. DISCUSSION OF THE LAW The duty of the court at this stage is to evaluate the entire evidence on record and apply the burden of proof applicable to civil cases which is proof by a preponderance of probabilities. Sections 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) enjoins a party in a civil suit to prove his or her claim on a preponderance of probabilities. The Supreme Court echoed this principle in the case of Bisi v. Tabiri alias Asare [1987-88] 1 GLR 360 as follows: “…Preponderance of evidence became the trier’s belief in the preponderance of probability. But ‘probability’ denoted an element doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable that the choice rejected…” Also, in the case of Sagoe and Others v. Social Security and National Insurance Trust (SSNIT) (2012) 2 SCGLR 1093 the Court stated that; “Proof by a preponderance of probabilities” within the context of the burden of proof as stated in Section 12(2) of the Evidence Act,1975 (NRCD 323) simply means weightier or superior evidence”. See the cases of Bakers-Woode v. Nana Fitz (2007-2008) SCGLR 879 at 891 and John Dramani Mahama v. Electoral Commission and Another, Civil Suit No. H1/05/2021 dated 4th March 2021. It must also be noted that a trial judge is required to resolve all primary facts from the evidence adduced before it, make findings of same, and apply the appropriate laws, including the law of evidence. In the case of Quaye v. Mariamu [1961] 1 GLR 83 the Supreme Court held that the trial court has a duty to resolve the primary facts, and having done so to state his findings and apply the law. This Court is therefore required to evaluate the entire evidence on record, resolve all primary facts based on the issues set out to regulate the hearing of the matter, and apply the law. With the above principles in mind, I have set down the following issues down as issues for determination; a. Whether or not the Plaintiff breached his promise to marry the Defendant b. Whether or not the Defendant was a statutory tenant. c. Whether or not Defendant should be ordered to vacate the Plaintiff’s apartment. d. Whether or not the Defendant should be ordered to leave the room in a tenantable condition. PLAINTIFF’S CASE The Plaintiff’s evidence is to the effect that he rented his room located at House No. 29/30, La Accra to the Defendant for two years from the 1st of January, 2006 to 31st of December, 2008. He went on to state that he started a relationship with the Defendant after renting out the apartment to her. He goes on to state that after a while he heard rumours that the Defendant was entertaining another man in her room and upon confronting her, she informed him that the said man was her brother. He further states that he realized that the said man was the Defendant’s husband from how she interacted with him. The Plaintiff states that due to his discovery he ended his relationship with the Defendant and this reverted their relationship to that of landlord and tenant. The Plaintiff further states that when the rent period ended, he asked the Defendant to move out of the room as he was not ready to extend the rent period. The Plaintiff states that the Defendant refused to do so and demanded for money to rent a new apartment since they she was in a relationship the Plaintiff but he refused that request and all efforts to get the Defendant to move out of his room has proved futile till date. He also states that he lodged a complaint at Rent Control and tendered into evidence the rent summons as Exhibit A. DEFENDANTS CASE The Defendant mounted the witness box and testified that she rented the Plaintiff’s apartment for 3 years in 2006. She went on to state that after a month the Plaintiff expressed interest in her and she made him aware that she was married and had two children but she was having problems with her husband. She states that the Plaintiff informed her he didn’t mind and promised to marry her and went on to promise her a room out of the 10 rooms in the house. She goes on to state that she accepted the Plaintiff’s proposal due to the promise he made her as she was in a bad marriage and was not happy. The Defendant states that after a while the condition of the room started deteriorating with a leaking ceiling but all efforts to get the Plaintiff to renovate the room proved futile. She states that she decided to use her own resources to renovate the room by contracting the services of a carpenter upon seeking the consent of the Plaintiff. She states that after being in the relationship with the Plaintiff she found out that the Plaintiff was a married man and had 3 children, a fact which he later admitted but assured her not to worry as he was going to give her a room, which belonged to him in his father’s house in La. The Defendant states that they continued their relationship and that she got pregnant but the Plaintiff asked her to abort the pregnancy which she did. She also states that the Plaintiff has to compensate her for his breach of promise to marry her so she can use the money to rent another apartment. I will now discuss the first issue which is; a. Whether or not the Plaintiff breached his promise to marry the Defendant It must be stated that it is the Plaintiff who is making this assertion and thus bears the burden of proof on this issue. In an article titled “The Action for Breach of Promise to Marry in Ghana: New life to an old rule.” By H.J.A.N Mensa-Bonsu, the learned author states the law as follows; “An action for breach of promise to marry arises when a person makes a promise to makes a promise to marry another, and refuses to perform. The refusal could be by conduct… or by an express refusal upon a request for performance. Unchastity does not operate as a defence unless it is unknown to the defendant. Otherwise, it only goes in mitigation of damages.” It is clear from the above that in order for a party to be successful in an action for breach of promise to marry there should be more than a mere statement casually thrown about in a pointless manner. It is important to note that the circumstances under which a promise of marriage would be inferred must also be given considerable thought in order to solve two problems: forestalling the situation of blackmail which has discredited this action and discouraging unscrupulous persons from taking advantage of others. The question to be answered in this case is whether there was a promise to marry the Defendant and on which she relied on and to invest her earnings to secure their future life together; and whether there had been a failure to honour the promise. The promise should not be a mere statement casually thrown about in a pointless manner. In the case of Djabeng v. Tagoe [1989-90] 1 GLR 155 His Lordship Justice Ampiah at page 158 held as follows; “There is no doubt that in the initial stages of amorous relationships, the parties are so embedded in their love that utterances are made by one party to the other so as to sustain the relationship. Such utterances being more of fantasies than reality. One cannot doubt that amongst such utterances are statements like, “I love you more than anything else, I will die with you, I promise to marry and you alone”. What must be considered the seriousness the one making the promises attached to it and how the one the promise was made to receive the promise and what commitments being either financial or material were made to the knowledge of the other party on the basis of that promise. This decision is a question of fact which must be decided on a case by case basis so the court can determine whether the promise was the type actionable or the type to be taken as a mere statement. The evidence adduced by the Defendant was to the effect that the Plaintiff promised to marry her a month after she moved into his apartment and that they were in a relationship for 14 years. She went on to state that during the course of this relationship she got pregnant but aborted the pregnancy after the Plaintiff asked her to do so. She also stated that she lost her son from her previous marriage due to her relationship with the Plaintiff. It is trite that in civil trials the party who asserts a fact must prove that on a preponderance of probabilities; otherwise, she will be deemed to have failed to prove that issue. What amounts to proof in law has been defined by the Supreme Court speaking through Ansah JSC, in the case of Abbey & Others v. Antwi [2010] SCGLR 17, reiterated Ollenu J (as he then was), dictum in Majolagbe v. Larbi [1959] GLR 190, @ 192 as follows; “Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way e.g., by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.” The Plaintiff denied the assertion of the Defendant that he promised to marry her and stated that he was in a relationship with her for 3 months but he never promised to marry her. I will consider the evidence adduced by the Defendant that would lead a court to believe her version of events as decided in the case of Majolagbe v. Larbi (supra). The Plaintiff maintained his denial of promising to marry the Defendant during his cross examination on the 20th of February, 2024 as follows; Q. You told me you will marry me so are you ready to marry me or you are no longer interested in me so you compensate me and you can look for another apartment for me. A. I never promised to marry you and you rented the room before we entered into a relationship. It is upon the default of the payment of the rent that I instituted this instant action. I rented out the room in the year 2006 and it was for two years. After 3 months you brought in the said man and I told you after the expiration of the 2-year term you should vacate the apartment. Q. I put it to you that, we did not date for 3 months but we dated for 14 years and you promised to marry me A. That is false. We dated for 3 months but because of my persistence for you to move out of the room you mobilized your family members to have me mobbed and threatened to mob me if I did not stop trying to evict you from my room. Q. You have to compensate me and look for another room for me since you refused to marry me A. I will not give you any form of compensation because you cheated on me with another man. It is clear from the evidence adduced by the Defendant that she failed to discredit the evidence of the Plaintiff. She failed to proof her case during her cross examination on the 10th of July, 2024. This is what happened; Q. I am putting it to you that, I do not have any money to give to you and I do not have to rent any apartment for you. A. It is your duty to rent an apartment for me now that you are evicting me from your property because you promised to marry me all these years. Where are you expecting me to move with my children? Q. I only said I love you I never promised to marry you A. You promised to marry me It is also important to note that she failed to tender any evidence to support her case as to what commitments either financial or material she made due to the promise made by the Plaintiff. She also failed to call a witness to corroborate the nature of her relationship she had with the Plaintiff and to make matters worse the Defendant in her own testimony stated that she was already married when the Plaintiff expressed interest in her. Assuming that he Plaintiff did promise to marry her it is more probable that the Plaintiff did not attach any seriousness to the promise he made her when he knew she was already married. Neither did she lead any evidence to prove that Plaintiff went to perform the introductory customary rites which declares his intention of marriage to her family. All she did was to mount the witness box and repeat her assertions which is not enough to meet the burden on her. Unfortunately, the witness she called to testify for her only spoke to the renovation works she conducted in the room and was silent on her relationship with the Plaintiff. This was his testimony on 16th July, 2024; “The Defendant came to call me and informed me that she wanted to engage my services as a carpenter. I went and inspected her house and I realized that the roofing sheets and plywood were in bad shape. I prepared an estimate of the work to be done. The following day I came for the money from her and bought the plywood and roofing sheet and I did the work and cemented the floor. I then gave the receipt to the Defendant. It has been a while since I did this work for the Defendant. The Defendant informed me I should come and testify on her behalf”. A careful perusal of the evidence adduced by the Defendant’s witness does not support her case in anyway and there was no need to call him as a witness. Accordingly, I hereby hold that it is therefore more probable that although the Defendant and the Plaintiff were in a relationship the Plaintiff did not promise to marry the Defendant. Having come to this conclusion I also hold that the Defendant is not entitled to be compensated. a. I will now discuss the second issue which is Whether or not the Defendant was a statutory tenant. The Rent Act, 1963 (Act 220) governs landlord and tenant relations and under this Act landlords are entitled to recover possession of rented premises but it is subject to certain conditions which must be met before same can be granted by a Rent Magistrate. Section 17 of Act 220 states as follows; Subject to subsection (2) of section 25 and to section 28, an order against a tenant for the recovery of the possession of, or for the ejectment from, any premises shall not be made or given by the Rent Magistrate, or any other judge of a court of competent jurisdiction in accordance with any other enactment except (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; From the above it is clear that before a Rent Magistrate can order for the recovery of possession where the tenant who in this case is the Defendant fails to pay rent after it has become due after a month. The case of the Plaintiff is that the Defendant rented the Plaintiff’s apartment in 2006 for two years and that upon the expiration of the two-year period the Defendant failed to pay the rent due and she has refused to do so for fifteen years without paying rent. The burden is thus on the Plaintiff to satisfy the court that the Defendant has failed to pay the rent after a month since it became due. The Plaintiff tendered Exhibit A into evidence which is the rent summons issued to invite the Defendant but there was no evidence on record as to whether there was a hearing before the rent control officer. There is no doubt that it is the main object of the Rent Act to protect a tenant against arbitrary eviction by a landlord and to restrict the land landlord’s common law right to recover possession in those cases where he has exhibited a that indeed the tenant has breached the requirements as stated in Act 220. That being said it is important to determine whether or not the Defendant has become a statutory tenant. A statutory tenant comes into being when the contractual element of a tenancy is terminated and the former tenant remains in possession of the property because of the protection she derives from a statute. Such a tenant cannot be deprived of possession because of the Act and that the status of a statutory tenant can only be changed if the parties enter into a new contractual tenancy. The Defendant’s case is that she rented the apartment for three years in the year 2006. Assuming that that is the case then it means the rent period expired in the year 2009 and it is not in contention that she still occupies the room in the year 2024, 15 years after the expiration of the rent period and as such has become a statutory tenant within the meaning of section 36 Act 220 against the will of the Plaintiff and could only be protected by Act 220. Section 36 of Act 220 defines a statutory tenant as a tenant who remains in possession of premises after the determination by means of his tenancy and cannot by reason of the provisions of this Act be deprived of such possession by his landlord. Section 29(1)(a) of Act 220 lays down the conditions under which a statutory tenant can continue to hold on to the demised premises after his lease has expired. It provides, that: (1) A statutory tenant, so long as the statutory tenant retains possession, (a) shall hold the premises as a tenant from month to month, and subject to that tenancy shall observe and is entitled to the benefit of the terms and conditions of the original tenancy, so far as those terms and conditions are consistent with this Act The word ‘the terms and conditions of his original tenancy” in this section refer to the terms and conditions in the contractual tenancy under the tenant was holding immediately before she became a statutory tenant. It therefore follows that the covenants or conditions and all other obligations stipulated in that contractual tenancy and which are consistent with the provisions of the Act are carried forward into the statutory tenancy. The words emphasised in the definition indicate that before a statutory tenancy can come into existence the prior contractual tenancy can come into existence, the prior contractual tenancy should first have been terminated; the mode of termination is immaterial. It is sufficient if any of the recognised legal modes of terminating tenancy is employed, e,g, effluxion of time, forfeiture, surrender, or where an agreement to that effect has been made, by a notice to quit given by either party or by abandonment. By virtue of section 29(1)(a) of Act 220, the statutory tenant remains in possession as a tenant from month to month and will hold such possession under the same terms as are contained in the original tenancy, except that any provisions of the original tenancy that are inconsistent with the Act do not have legal force. I should make it clear that a statutory tenant, like the Defendant cannot be evicted except by an order of the court and only where any of the circumstances laid down in section 17 of Act 220 has been established to the satisfaction of the court. Thus, a landlord seeking possession of his premises which are in the occupation of a statutory tenant must first and foremost satisfy the court that the ground on which he is asking for an order of possession is recognised by section 17 of Act 220. The ground on which the Plaintiff herein is seeking to evict the Defendant is that since the year 2008 the Defendant has failed to pay any rent and has refused to vacate from the premises. This ground falls within section 17(1)(a) of Act 220 and accordingly carefully considering the evidence adduced by the Plaintiff the Defendant was bound to pay rent on a monthly basis in accordance with section 29 of Act 220. Having concluded that the Defendant is a statutory tenant, she is obliged to pay rent agreed to under the original tenancy which means the tenancy under which the tenant was holding immediately before she became a statutory tenant. I am therefore of the opinion that in the instant case, the Defendant having failed to pay rent on a monthly basis from 2008 the Defendant lost her protection under Act 220 and the Plaintiff is entitled to recover possession of the premises under section 17(1)(a) of Act 220. In Brewer v. Jacobs [1923] 1 K.B 528, D.C. where a statutory tenant committed a breach of covenant, Bailhache J. at page 531 said: “But for the increase of Rent, and c. (Restriction), Act, he would not be a tenant at all, and he is only in possession as long as he complies with the provisions of that Act. One of those provisions is that he shall pay his rent, and another is that he shall observe the covenants in his lease. He must find his protection, if any, within the Act, and other Acts do not apply at all”. Having failed to pay rent for fifteen years I am of the opinion that the Defendant is an undesirable tenant and must vacate the property. I must also state that renovating a rental property does not entitle the tenant to live in the said property especially when the renovation was done with the consent of the landlord. I hereby order the Defendant to vacate from the Plaintiff’s premises within a month from the delivery of this judgment. The next issue to be determined is whether or not the Defendant should be ordered to leave the Plaintiff’s premises in a tenantable condition. A tenantable condition refers to the condition of a property that is suitable for occupation by a tenant. It implies that the property is in a state of repair and maintenance that allows for comfortable and safe living. The Plaintiff failed to lead any evidence that the premises rented to the Defendant was in an untenantable state which needed repair. Thus, this court cannot make orders in a vacuum and order the Defendant to leave the property in a suitable condition for occupation by another tenant when no evidence has been led on that fact. Accordingly, the Plaintiff fails on his third relief. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant is ordered to vacate from the Plaintiff’s property located in House No. 29/30. La-Accra a month after this judgment is delivered. I will not make any orders as to cost. SGD H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE