AFRIYIE VRS. DJIBO AND ANOTHER (A9/271/22) [2022] GHADC 433 (19 December 2022)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, SITTING AT THE DISTRICT COURT ‘2’, KOTOBABI NEAR THE KOTOBABI CLUSTER OF SCHOOLS, ACCRA ON 19TH DECEMBER, 2024. SUIT NO. A9/271/22 BISMARK OSEI AFRIYIE TANTRA HILL …… PLAINTIFF NEAR GOLDEN DOOR RESTAURANT P. O. BOX 1395 KUMASI-ASANTE VRS. 1. MR. SAFIANU DJIBO SHOP NO.4 NEAR TIP-TOE LANE KWAME NKRUMAH CIRCLE, ACCRA (PLAINTIFF TO DIRECT SERVICE) …… DEFENDANTS 2. MRS. MARGARET OPPONG AMOAH UNNUMBERED PREMISES ASHALLEY BOTWE, ACCRA JUDGMENT INTRODUCTION BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER The Plaintiff caused to be issued a Writ of Summons on 24th March, 2022 against the 1st Defendant. The Defendant filed his Statement of Defence and Counterclaim on 4th April 2022. Subsequently, the Court joined Mrs. Margaret Oppong Amoah to the suit as 2nd Defendant and the Writ of Summons was accordingly amended on 3rd June 2022. The Plaintiff claimed the following reliefs in the Amended Writ of Summons: a. An order evicting the 1st Defendant from Shops Nos. 3 and 4 by virtue of his unlawful occupation of same; b. An order directing the 1st Defendant to pay for all costs arising out of his destruction and unlawful occupation of the Shop No. 3; c. An order for account of mesne profits for his unlawful annexation of the shop No. 3 from March 13, 2022 until the date of ejectment, calculated at GH¢200 per day; d. An order directed at the 1st Defendant to pay to the Plaintiff the sum of GH¢200 per day for his unlawful occupation of Shop No. 4 since May 4, 2022 till the day of last occupancy; e. An order of perpetual injunction restraining the 2nd Defendant from disregarding the Tenancy Agreement between she and Plaintiff; f. A declaration that the 2nd Defendant, by entering into a rental agreement with 1st Defendant breached the terms of the Tenancy Agreement between her and Plaintiff; g. Damages for breach of contract against the Defendants; h. Damages for trespass against the 1st Defendant; i. Costs of litigation, including reasonable attorney’s fees. A Statement of Defence was filed by 2nd Defendant on 13th June 2022 whereas 1st Defendant filed an Amended Statement of Defence and Counterclaim on 15th June 2022 and 6th September 2022. A Reply to 2nd Defendant’s Statement of Defence and Defence to Counterclaim was filed on 16th June 2022 and a Reply to 1st Defendant’s Amended Statement of Defence and Defence to Counterclaim was filed on 20th June 2022. 1st BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER Defendant’s responded to 2nd Defendant’s defence and counterclaim on 6th September 2022. WRITTEN STATEMENTS (PLEADINGS) The case of the Plaintiff is that he is the owner of a retail complex at Tip-Toe Lane near Kwame Nkrumah Circle whereas the 1st Defendant is his tenant. He asserted that he became the owner of the shopping complex by virtue of a contract with the owners and after the construction, he rented out portions of the complex to people including the 1st Defendant who occupies Shop No.4 on the ground floor. Plaintiff averred that 1st Defendant unlawfully and without his permission annexed a vacant adjoining shop, Shop No.3 by breaking the partition separating the two shops. According to Plaintiff, Defendant has since converted the two shops into a single one without his notice and authorisation. Even though he reported Defendant’s conduct to the Nima police station, the latter has disregarded the orders of the police and has persisted in his quest to take possession of the adjoining shop without his approval. Plaintiff further stated that the actions of the 1st Defendant are unlawful having regard to the fact that 1st Defendant’s rent in relation to the shop, the subject matter of the suit is about to expire and same forms the basis of a Consent Judgment given by the Court in Suit No. A9/51/20; Bismark Osei Afriyie v Mr. Tochukwa, Mr. Safianu, Mr. Chuka and Madam Sandra Naa Darkua. Plaintiff further averred that not having been granted any interest in the adjoining shop, 1st Defendant’s annexation was unlawful. Plaintiff asserted that despite several warnings, 1st Defendant has remained adamant and has persisted in his quest to undermine and disregard the law. According to Plaintiff, he rents a retail shop for commercial purposes at Tip-Toe enclave for Ghȼ250,000.00 as such, 1st Defendant’s unlawful conduct has caused him great financial loss. Plaintiff further stated that since the tenancy agreement he entered into with Defendants is still in force, BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER 2nd Defendant cannot directly enter into another agreement with 1st Defendant. According to Plaintiff, he is the only person clothed with legal authority and the right to assign and rent the retail shops to persons interested in renting same and not the 2nd Defendant. He therefore averred that unless compelled by this Honourable Court, the Defendants will unlawfully continue to act to his detriment. Defendants defended the action brought against them by the Plaintiff. Per his Amended Statement of Defence and Counterclaim filed on 6th September, 2022, 1st Defendant averred that he was previously a tenant of one of the shops rented out by Plaintiff and that he is not aware of any agreement between the Plaintiff and the 2nd Defendant. He averred that at a meeting held in or around November, 2021 between 2nd Defendant who is the landlady of the shopping complex and tenants of the facility which meeting the Plaintiff himself was present together with 2nd Defendant’s lawyer, 2nd Defendant informed them that the shopping complex was no longer under Plaintiff’s trust and as such, all matters in respect of rental of the facility were to be referred to her or her lawyer. According to him, the subject matter shop was validly rented to him by the landlady after the said meeting for valuable consideration of GHȼ140,000.00 for 5 years which he made part payment into the account of the landlord. 1st Defendant further stated that he entered into another rental agreement with the landlady in respect of Shop No.4 which is to take effect upon the expiration of the current term. It was 1st Defendant’s case that he had the approval of the landlady to merge the two shops (shops no. 3 and 4). 1st Defendant further asserted that though Plaintiff reported him to the police, Plaintiff failed to show up when 1st Defendant went to the police station with the landlady. The police upon hearing them asked him to proceed with his work in respect of the shops. It is therefore not true that the police ordered them to cease the construction as claimed by the Plaintiff. According to him, Plaintiff’s claims is against the 2nd Defendant and not him BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER and he has not trespassed the shops as claimed by Plaintiff. He therefore counterclaimed against Plaintiff as follows: a. That the Plaintiff is not entitled to his claim. b. An order directed at the Plaintiff to desist from harassing the 1st Defendant, his assigns, workmen and agents and allow them peaceful occupation and use of the facility. c. Cost of litigation, including legal fees. In her Statement of Defence and Counterclaim filed on 13th June 2022, the 2nd Defendant averred that the Plaintiff sometime in or about 2010/2011 entered into a contract with the owners of House No. 10, New Town Road, Kokomlemle, Accra to rent two out of a row of stores which were under construction. She averred that Plaintiff subsequently obtained the permission of the owners, the Adwoa Asoh family of Juaso represented by her and her younger sister, Mrs. Susan Frempong (deceased), to open up the shops and strengthen the structure. She stated that she and her deceased sister entered into an oral build, operate and release agreement with Plaintiff for a ten-year period commencing March/April 2012 with Plaintiff to have control over the constructed stores on the ground floor of the west wing of the house, which includes Store No. 3, for the first five years to offset the expenses incurred by him in the widening and strengthening of the stores. According to the 2nd Defendant, it was agreed that the Plaintiff would cease to have any interest in the ground floor stores by March/April 2022 and surrender the shops to her. She stated that the subject matter of this suit is the stores on the ground floor of the west wing of the house. It is 2nd Defendant’s case that the 1st Defendant approached her representatives in or about March/April 2022 by which time Plaintiff’s interest had expired, for a fresh lease of Store Nos. 3 and 4 to him and negotiations were commenced, with 1st Defendant permitted to remove the partitioning wall dividing the two stores. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER She averred that the Plaintiff had acted fraudulently by producing a written document purporting to be a tenancy agreement with her for ten years commencing in 2018 when there was no such written agreement. She further averred that Plaintiff had dabbled in fraud and forgery by inscribing on the alleged document, signatures purported to be hers and that of her deceased sister when they had not signed any such document. 2nd Defendant stated further that Plaintiff had leased Store Nos. 1 and 2 to an entity named ‘TECHNO’ disregarding the fact that his interest had been extinguished. In respect of the 1st Defendant, the 2nd Defendant averred that although she gave her consent for him to remove the partitioning wall of the two stores, subsequent negotiations did not result in any tenancy agreement between them since there was no consensus on vital issues. She stated that 1st Defendant was consequently asked to cease any work on the two shops but he disregarded this directive. She averred that the 1st Defendant’s continued occupation of the shops constituted trespass and he ought to give vacant possession to her. She stated that she was ready to indemnify 1st Defendant for the expenses he incurred in removing the partition and all necessary incidental costs. She counterclaimed against the Plaintiff as follows: 1. A declaration that the oral build, operate and release agreement which the Plaintiff entered into with 2nd Defendant and her deceased sibling to operate for ten years from March/April, 2012 has expired and/or lapsed. 2. A declaration that the Plaintiff ceased to have any interest in the row of stores on the ground floor of west wing of H/No.10 Newtown Road in March/ April of 2022 and his right thereto were perpetually and permanently extinguished therewith. 3. A declaration that the Plaintiff has no capacity to institute the instant suit in respect of the store on the ground floor in which he has no proprietary interests. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER 4. A declaration that 1st Defendant acted lawfully when he removed the partitioning dividing wall between store Nos.3 and 4 on the authorization of the representatives of the 2nd Defendant. 5. An order of the Honourable Court directed to the Plaintiff to account to the 2nd Defendant of any and all monies received to cover the period after March/April 2022 by the Plaintiff from purported lessees in respect of the stores on the ground floor and payment over of the amount found due to the 2nd Defendant. 6. An order of the Court directed to all purported lessees of the Plaintiff in respect of stores one and two presently occupied by “TECHNO” to give vacant possession thereof to the 2nd Defendant six months from the date of filing of this process. 7. A declaration that the purported tenancy agreement allegedly between the Plaintiff of the one part and 2nd Defendant and principal elders of the property owning family was void ab initio for fraud and forgery. 8. General damages for fraud and forgery against the Plaintiff. 9. An order of the court ejecting the 1st Defendant from stores 3 and 4 forthwith. 10. An order of recovery of possession of stores no.3 and 4 from 1st Defendant; 11. An order of recovery of possession from occupants of store one and two six months from the filing of the instant process. 12. An order of the court ejecting the occupants of stores one and two on the ground floor of the west wing of House No. 10 Newtown Road, Kokomlemle from said premises six months from the filing of the instant process. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER 13. An order of perpetual injunction restraining the Plaintiff, his workers, servants, agents, assigns, lessees, privies and all who claim by and through him from; i. Entering onto and remaining on any of the stores on the ground floor of House No. 10 Newtown Road, Kokomlemle, Accra. ii. holding himself out as owners of any of the stores on the ground floor of House No. 10 Newtown Road, Kokomlemle, Accra. iii. interfering with the 2nd Defendant’s dealings with, user and peaceable enjoyment of any of the stores on the ground floor of H/No.10 Newtown Road, Kokomlemle, Accra. Plaintiff in responding to 1st Defendant’s Statement of Defence and Counteclaim filed a Reply on 20th June, 2022 wherein he averred that it was incorrect for 1st Defendant to deny that he (Plaintiff) constructed the shopping complex. According to him, he is unaware of any contract in respect of rental of his shop entered into between the Defendants and that it was also not true that the Police permitted 1st Defendant to continue with the merging of the two shops. Plaintiff added that being the landlord of the property, the Defendants cannot purport to enter into any agreements without recourse to him and that the 1st Defendant’s conduct amounted to trespass and unlawful occupation of his property. Plaintiff also filed a Reply to 2nd Defendant’s Statement of Defence and Defence to Counterclaim on 16th June, 2022 wherein he denied forging any document and stated that the 2nd Defendant is a party to an agreement between him on one side and 2nd Defendant and her deceased sister on the other part. He averred that he had exercised rights of ownership over the property by renting the stores in the shopping complex out. It was his case that sometime ago when Nigerian retailers were barred from operating in the Tip Toe shopping area, he had to refund the monies paid by Nigerian shop owners BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER who had rented shops in the complex from him and this caused him to lose a lot of money since he had already paid the 2nd Defendant and her sister their fifty percent share of all rental proceeds. He stated that any authorization purported to have been granted by 2nd Defendant to 1st Defendant was wrongful in law. He averred that he was not privy to any agreement between the Defendants regarding the continued occupancy of the two shops despite the expiration of their agreement. In his Reply to the 2nd Defendant’s Statement of Defence filed on 6th September 2022, the 1st Defendant averred that the 2nd Defendant’s lawyer was the representative of 2nd Defendant in respect of the shops and he was the one who authorized him to deposit GH¢ 30,000.00 as part payment of rent. He stated that he also paid GH¢ 6,000.00 to 2nd Defendant’s Counsel as part payment of fees charged for preparation of tenancy agreement between him and the 2nd Defendant. He added that assurances he had from 2nd Defendant’s Counsel made him secure a loan from a colleague to remove the partitioning wall between the two shops and carry out renovation works. He counterclaimed against the 2nd Defendant as follows: a. That the 2nd Defendant should be compelled by an order by this Honourable Court to perform her obligations under the agreement of rental between the 1st Defendant and the 2nd Defendant should the 2nd Defendant be successful in the instant suit. b. An order directed at the 2nd Defendant to pay the full cost of the renovation works on the two shops, the advance rent paid to the 2nd Defendant, the GH¢ 6,000.00 part payment made to Counsel for the 2nd Defendant for the preparation of the tenancy agreement as well as interest on the sum of money in issue from the date of determination of the suit to the date of final payment in the event of the suit going in favour of the Plaintiff. c. Cost of litigation, including legal fees. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER Counsel for the Plaintiff and 1st Defendant filed their Written Addresses on 8th October 2024 and 22nd October 2024 respectively. ISSUES Counsel for the Plaintiff in his Written Address set out three issues whereas 1st Defendant’s Counsel also set out five issues which they held the view would be necessary to be determined. Having considered the written statements filed and the issues raised by both lawyers, I hold the respectful view that the following are the germane issues which lend themselves for resolution by the Court to address the contesting claims before this Court: 1. Whether or not the Plaintiff entered into any agreement with the 2nd Defendant and her now deceased sister, Susanna Frempong Manso in respect of the retail shopping complex at Tip-Toe lane, Kwame Nkrumah Circle. 2. Whether or not the Plaintiff has any interest in Shops Number 3 and 4 of the shopping complex. 3. Whether or not there is a valid contract between the Defendants in respect of Shop Numbers 3 and 4. EVALUATION OF EVIDENCE The law is settled that the general rule in civil cases is for a party who in his writ or pleadings raises issues critical to the success of his case to assume the onus of proof. See: Air Namibia v. Micon Travel [2015] 91 GMJ 173 @ 191 C. A per Kanyoke, J. A. Irrespective of whether one is a Plaintiff or Defendant, if such a party makes certain allegations, he assumes the initial burden of producing evidence and it is when that party BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER has been successful in producing evidence that the other party would be required to lead rebuttal evidence, if need be. In the case of T. Chandiram v. Tetteh [2018] 120 GMJ 112, her Ladyship Agnes M. A. Dordzie, J. A. (as she then was) held at page 147 as follows: “[T]he standard of proof in a civil suit is placed on the ‘balance of probabilities. Section 12 (2) of the Evidence Act defines it as follows: “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” His Lordship S. A. Brobbey JSC (Rtd.) noted as follows in the case of Agbosu v Kotey; In Re Ashalley Botwe Lands [2003 – 2004] SCGLR 420: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the defendant... At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” The Defendants filed counterclaims in this suit. A counterclaim is a separate and distinct action which must be proved. See: Nortey v. African Institute of Journalism & Communication [2014] 77 GMJ 1 at 40. It was held in the case of Jaas Co. Limited & Another v. Apau & Another [2009] SCGLR 269 at 271 that a defendant who files a counterclaim is subject to the same standard of proof as a Plaintiff on his Counterclaim. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER See also the case of City Investment Company Ltd v. Mrs. Juliana Adade and Others (2017) JELR 66131 (HC). All the parties therefore had a duty of proving their respective claims on a balance of probabilities. In respect of the 2nd Defendant who made certain allegations of fraud and forgery, he had to establish those claims beyond reasonable doubts as stipulated by Section 13(1) of Evidence Act 1975, NRCD 323. See also: Fenuku v John Teye [2001-2002] SCGLR 985, Afare Apeadu Donkor v EDC Stock Brokerage Ltd & Anor [2015] 91 G. M. J. 106 and Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891. Plaintiffs’ Case In his evidence-in-chief by way of Witness Statement filed on 2nd September, 2022 and same adopted by the Court, the Plaintiff testified that he is the landlord of a retail shopping complex at Tip-Toe lane, Kwame Nkrumah Circle pursuant to an agreement between him and 2nd Defendant and her deceased sister, Susanna Frempong as evidenced by Exhibit ‘B’ whereas the 1st Defendant was his tenant by virtue of a tenancy agreement entered between the two of them which terminated on 3rd May, 2022 as a result of a consent judgment of this Honourable Court dated 24th February, 2021 which he tendered in evidence as Exhibit ‘A’. According to Plaintiff, the agreement in Exhibit ‘B’ affects the shops on the ground floor of the now two-storey building and it was a build, operate and share agreement which required that after the cost of construction and other expenses have been deducted, the parties would share the remaining revenue from the rent equally. He testified that he contracted the services of an architect to design the ground floor and other floors of the retail/shopping complex. To prove his claims, he tendered in evidence copies of the said designs as Exhibits ‘C’ and ’D’. Plaintiff further testified that a bill of quantities was BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER prepared in respect of the said structure and same was tendered in evidence as Exhibits ‘E’ and ’F’. It was Plaintiff’s case that he completed the construction of the ground floor in 2014 and commenced the construction of the other floors which he completed in 2019. The Plaintiff testified that he sued some tenants in the shopping complex in 2019 in Suit No. A9/5/20 and obtained Consent judgments in respect of two of them including 1st Defendant and two other Defendants had their shops forcibly locked by a Committee of the Ministry of Trade and Industry for over a year so he had to refund monies paid by them and had the shops re-opened by the Committee since those Defendants ceased operation. Exhibit ‘H’ was tendered in that respect. He stated that the 2nd Defendant and her sister were informed of all these and the loss he had incurred from the refunds made. He said he had already paid the 2nd Defendant and her sister their share of the goodwill and rents received from those tenants but he did not demand any repayment from them. It was Plaintiff’s testimony that he made several payments to the 2nd Defendant and her sister. Copies of the said payments made were tendered in evidence as Exhibit ‘G’ series. He stated that his agreement with the 2nd Defendant and her sister was genuine, devoid of any duress or undue influence. He tendered in evidence documents to evidence cash withdrawals made for onward payment to 2nd Defendant and her sister as Exhibit ‘J’ series. According to him, he has since the completion of the various floors of the shopping complex exercised rights of ownership and acted as the landlord to several businesses without any hindrance and the 2nd Defendant and her sister consented to the exercise of these rights due to the agreement they have. He tendered in evidence Exhibit ‘L’ series to support this. Plaintiff testified that 1st Defendant originally occupied Shop No.4 but has since the expiration of his tenancy on 3rd May, 2022 unlawfully annexed Shop No.3 by destroying the partition separating the two shops and operating his business in both purporting that BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER same was rented to him by the 2nd Defendant. He stated that whatever agreement between the Defendants in respect of the two shops was void since the 2nd Defendant cannot forfeit the agreement she has with him. Defendants’ Case 1st Defendant testified by relying on his witness statement filed on 22nd August, 2022 and supplementary witness statement filed on 18th April 2023. His testimony was that he is a tenant of Shop Numbers 3 and 4 of a shopping facility at Kwame Nkrumah Circle. According to him, he rented Shop Number 4 from Plaintiff with his tenancy to end in May 2022 and that he is not privy to any agreement between the Plaintiff and 2nd Defendant. He testified that he recently entered into an agreement with 2nd Defendant through her lawyer for an agreed term of 5 years commencing May 2022 in respect of Shop No. 3 and extended the original tenancy of Shop No. 4 for a further five-year period from the date of termination of that tenancy, with the 2nd Defendant, after she declared openly in Plaintiff’s presence in a meeting in or around November 2021 that all issues relating to the shops were to be handled by her or her lawyer since the shopping complex was no longer under Plaintiff’s trust. He stated that he paid GH¢30,000.00 into the 2nd Defendant’s account on 2nd March 2022 as part payment of rent for Shop Numbers 3 and 4 pending the signing of a formal agreement after renovation since the costs had to be taken into account in the rent. He tendered in evidence as Exhibit ‘1’, a cash deposit slip to evidence the payment and receipts of the renovation expenditure as Exhibit ‘2’, ‘2A’ to ‘2F’. 1st Defendant further testified that he did not annex the two shops unlawfully as claimed by the Plaintiff. Rather, he had the consent and authority of 2nd Defendant through her lawyer to do so after entering into a verbal agreement with her. He testified that he had incurred huge BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER expenses in renovating and merging the two shops and the 2nd Defendant had agreed to pay the expenses incurred in her Statement of Defence. He stated that although he was reported to the police and invited by them upon the complaint made by Plaintiff, the latter failed to show up at the police station when 1st Defendant and 2nd Defendant honoured the invitation of the police. According to him, he has no intentions of disregarding the orders of the Court as per the consent judgment given by this Honourable Court as Plaintiff wants this Court to believe. However, he entered into a new tenancy agreement with 2nd Defendant after her declaration at the said meeting. He therefore acted under the authority of the 2nd Defendant who had admitted herself in her Statement of Defence. According to the 1st Defendant, the claim of Plaintiff that similar shops at the Tip-Toe lane enclave were going for GH¢250,000.00 was incorrect and same is unreasonable. To further establish his claims, 1st Defendant called Ibrahim Musa to testify for him in respect of this suit. DW1 filed his witness statement on 22nd August, 2022 and same was adopted by this Court as his evidence in chief. According to him, he is a colleague of the 1st Defendant and works in the same shop with him. His testimony was that sometime in 2022, 2nd Defendant called the 1st Defendant together with other tenants in the shopping facility and informed them in the presence of her lawyer that the Plaintiff is no longer in charge of the shops. According to him, the lawyer of 2nd Defendant called 1st Defendant to have a discussion with him in respect of the shop he occupied. After their conversation, the 1st Defendant gave him (DW1) an amount of GH¢30,000.00 to pay into the account of 2nd Defendant for Shop Numbers 3 and 4. He further testified that he went to the CalBank, Ring Road Branch in the company of another colleague to make the deposit. It was his testimony that he was present when 2nd Defendant’s lawyer took a fee of GH¢6,000.00 out of a fee BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER of GH¢20,000.00 he charged the 1st Defendant for the preparation of a rent agreement. He added that 2nd Defendant’s lawyer told 1st Defendant not to start the construction work in respect of the shops until the latter had paid the deposit in the account. It is important to state for the records that the 2nd Defendant failed to file any Witness Statement either for herself or for any witness and therefore there is no evidence before this Court from her side to prove her claims. Issue 1. Whether or not the Plaintiff entered into any agreement with the 2nd Defendant and her now deceased sister, Susanna Frempong Manso in respect of the retail shopping complex at Tip-Toe lane, Kwame Nkrumah Circle It is the Plaintiff’s evidence before this Court that he is the landlord of the retail shopping complex at Tip Toe Lane, Kwame Nkrumah Circle pursuant to an agreement he has with the 2nd Defendant and her sister and that he finished constructing the ground floor in 2014 and completed the other floors in 2019. This agreement he relied on is what he tendered in evidence as Exhibit ‘B’. He also tendered plans, bill of quantities and material schedule with labour cost. The 2nd Defendant in her Statement of Defence and Counterclaim had averred that she and her late sister had an oral build, operate and release agreement with Plaintiff for a ten-year period commencing March/April 2012 with Plaintiff to have control over constructed stores on the ground floor of the west wing of the house, which includes Store No. 3. She however disputed the existence of any written agreement, contending that the written document which Plaintiff produced was fraught with fraud and forgery. As earlier stated in this judgment, the 2nd Defendant bore the duty of establishing the allegations of fraud and forgery beyond reasonable doubt. Unfortunately, no evidence was led at all to establish these serious allegations made. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER Exhibit C which is an architectural design plan dated February 2014 is in respect of a proposed guest house and I do not find its relationship with the subject matter property. I accordingly attach no weight to it. In respect of Exhibit D which is also an architectural design of a Proposed three-storey shop at Circle, it is dated January 2021. Plaintiff’s own evidence was that he completed the ground floor in 2014 and the other floors in 2019 as such, this exhibit as well is found not to be worth considering in respect of the present suit in relation to the subject matter property. I find as a fact that the Plaintiff and the 2nd Defendant and her deceased sister had an oral agreement in respect of the ground floor stores of the shopping complex. It was later that their contract was reduced into writing by way of Exhibit ‘B’. The Plaintiff under cross examination by Counsel for the 2nd Defendant admitted to having entered into an oral contract when he responded thus: Q: The stores on the ground floor were governed by an oral agreement between you and 2nd Defendant, is that not so? A: That is so. Exhibit B which is the tenancy agreement between Plaintiff on the one side and 2nd Defendant and Mrs. Susanna Frimpong Manso on the other hand dated 24th May 2018 also was explicit that the parties agreed in 2014 for the lessee (Plaintiff herein) to build the ground floor of a shopping centre on H/No. C45/4, 13 Newtown Road Kokomlemle, Accra with the Plaintiff to pay to the lessors (2nd Defendant herein and her sister) 50% of all monies collected as rent from tenants. It was confirmed from Exhibit ‘B’ that the Plaintiff built eight stores on the ground floor although the rent sharing was in respect of six stores with the two stores being the subject matter of an agreement distinct from Exhibit ‘B’. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER This agreement was signed by Plaintiff and his witness, Esmond Brobbey Frimpong, both lessors (2nd Defendant and her sister) with witnesses Mrs. Portia Manu-Boafo and Mrs. Sally Archer, Samuel Bruce. The authenticity of this document could not be successfully challenged. Not only did the 2nd Defendant not lead any evidence to challenge this document, but she could not even call any of the named witnesses in Exhibit ‘B’ to put forward a challenge to this written agreement and the cross examination done by her Counsel could not also impugn the said exhibit. I therefore find as a fact that there is a 10-year agreement from 2014 between Plaintiff and 2nd Defendant for the building of the ground floor stores of the retail shopping complex by the Plaintiff and rents received to be shared on an equal basis. Issue 2. Whether or not the Plaintiff has any interest in Shops Number 3 and 4 of the shopping complex. From the foregoing, Plaintiff’s interest in the ground floor shops which include Shops Number 3 and 4 was to end in 2024 in the absence of any further or new agreement between himself and the 2nd Defendant to extend the ten-year agreement or bring the agreement to an end before the expiration date. The agreement was however silent on the exact month the agreement commenced or the month in 2024 when it was to end. As at the date of commencement of the suit in March 2022, the Plaintiff had interest in both shops. The Plaintiff as a result of the interest he holds in the premises has been exercising rights in that respect including renting out some of the stores and entering into tenancy agreements with his tenants, having correspondences with those he has rented out shops to either requesting them to pay their rent or to vacate the shop. Exhibit ‘L’ series attest to this. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER Quite apart, in pursuance of the agreement he has with the 2nd Defendant and her sister, he has made some payments to them. Exhibit G series for instance are three pay-in slips from first Atlantic Bank and Stanchart and Exhibit ‘J’ series are five bank slips of Fidelity Bank and Unicredit. Exhibit ‘J’ series are evidence of cash withdrawals made for onward payment to 2nd Defendant and her sister. When some of the shops in the shopping complex were also locked up and a public notice as per Exhibit ‘H’ was posted on the affected shops, it was the Plaintiff who saw to it that the shops are re-opened. This was in 2020. If the Plaintiff had no interest in the shops as the landlord and the 2nd Defendant was the one who was the landlady, she would have been the one to take up all these actions and exercise control. The Plaintiff therefore has interest in Shops Number 3 and 4 of the shopping complex. Issue 3. Whether or not there is a valid contract between the Defendants in respect of Shop Numbers 3 and 4 It is the case of the 1st Defendant that he is a tenant of both Shop Number 3 and Number 4. According to him, he originally rented Shop Number 4 from Plaintiff with that tenancy ending in May 2022. He testified that the 2nd Defendant had informed them in Plaintiff’s presence that the Plaintiff was no longer in charge of the shops and as such all matters related to the shops were to be discussed with her or her lawyer. He stated that he therefore subsequently entered into an agreement with 2nd Defendant for 5 years commencing May 2022 in respect of Shop No. 3 and extended the original tenancy of Shop No. 4 for a further five-year period from the date of termination of the tenancy with the Plaintiff. Aside the agreement for the partitioning wall between Shops 3 and 4 to be removed by the 1st Defendant for the shops to be merged into one, it is a fact that the Defendants do BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER not have a conclusive agreement between themselves setting out a defined rental period and final agreed amount to be paid as rent for there to be a valid tenancy agreement between them by law. Admittedly, monies were paid by 1st Defendant to the 2nd Defendant as part payment of rent for Shops Number 3 and 4 pending the execution of a formal agreement later after renovation for the costs had to be taken into account in the rent. From Exhibit 1 for instance an amount of GH¢ 30,000 was paid into a CalBank account on 2nd March 2022. The 2nd Defendant in her Statement of Defence and Counterclaim expressed her readiness to indemnify 1st Defendant for the expenses he incurred in removing the partition and all necessary incidental costs. Exhibit 2 series tendered by the 1st Defendant are official receipts in respect of building materials purchased by him for the renovation works done in respect of the two shops. These receipts alone amount to GH¢ 29,975.00. It is not disputed by any of the parties herein that it was the Plaintiff who rented Shop Number 4 to the 1st Defendant. There was therefore a landlord-tenant relationship between the two of them. Exhibit ‘A’ is a Consent judgment which was entered by this Court on 24th February 2021 between Plaintiff and 1st Defendant in Suit No. A9/5/20, Bismark Osei Afriyie v Mr. Tochukwa & 3 others. From the said Consent Judgment, after the expiration of the rent on May 3, 2022, the 1st Defendant was to give vacant possession of the shop described as Shop No. 4 of the Shopping Complex to Plaintiff. The 1st Defendant admitted renting Shop Number 4 from the Plaintiff which tenancy ended on 3rd May, 2022. This is what transpired when he was being cross examined by Plaintiff’s Counsel: Q: You rented shop No. 4 from the Plaintiff is that correct? BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER A: It is so. I initially took the shop from one Bassit. It was later that I got to know the shops were for Plaintiff. When my rent was almost due, a meeting was convened. Q: A: The tenancy was to end in May 2022. Is that correct? It is so. That was when the landlady called for a meeting and she said from that time I had to pay my rent to her, the 2nd Defendant. Having acknowledged Plaintiff as his landlord from whom he rented Shop No.4, 1st Defendant alleged that he entered into a new tenancy agreement with 2nd Defendant in respect of Shops No. 3 and 4 when 2nd Defendant intimated to him during a meeting in which Plaintiff himself was present that Plaintiff no longer had an interest in the property in dispute. Plaintiff however challenged these claims made by 1st Defendant. According to him, even though there was a meeting, no declaration was made to the effect that he no longer had an interest in the shops, the subject matter of the suit. Under cross examination, he maintained this stance as follows: Q: There was a meeting sometime in November 2021 at the premises of the shopping facility where you were part, not so? A: Yes, my Lady. Q: A: At the said meeting was the 2nd Defendant, not so? Yes please. Q: Is it a fact that 2nd Defendant informed all tenants in the facility especially the ground floor that you no longer had interest in the facility? A: That is not correct. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER Q: And that it was based on the pronouncement of 2nd Defendant at the said meeting that the 1st Defendant that the 1st Defendant did what he did in respect of the two shops. A: My Lady, I have not had a meeting with 2nd Defendant and tenant that I have no interest in the property. When she called me, she told me that she wanted to introduce me to her brother, who is her lawyer. It was there that we met and she introduced me. Within 5 minutes, we were done with the meeting. She wanted to put me in charge of the new building and that is why we met her brother at Ashalley Botwe and not the shop. We did not meet with any other person. Q: I put it to you that it was at the said meeting that the landlady, 2nd Defendant announced to the hearing of the tenants that your interest in the ground floor of the shopping facility had terminated. A: That is not true because in everything I sit with my lawyer to discuss so it cannot happen that they would hold a meeting with me to terminate my interest without my lawyer. We had no meeting where 1st Defendant came. It is worthy of notice that even though 1st Defendant claimed that Plaintiff was present at the said meeting when the declaration was made, his own witness DW1 testified that Plaintiff was not present at the said meeting when the 2nd Defendant allegedly made the declaration. This is what 1st Defendant had to say in respect of the said meeting: Q: In your paragraph 6 of your witness statement you stated that there was a meeting between you and Plaintiff and 2nd Defendant. Is that correct? A: It is so. Q: Where did this meeting take place? BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER A: The house where the shops are located at Kokomlemle. Q: You say that there are other occupants of the premises who were present at that meeting. Is that correct? A: Yes please. Q: What happened in this meeting? A: The meeting was held because some of the tenants’ rent were about to expire. I was told at the meeting that when my rent expires, I should not pay to Plaintiff but to 2nd Defendant from henceforth. Some of the shops are containers and others are blocks – mine This piece of evidence contradicts the testimony given by DW1. DW1 per paragraph 3 of his witness statement filed on 22nd August, 2022, suggested that he was present with 1st Defendant at the said meeting when 2nd Defendant allegedly made the declaration that Plaintiff’s interest in the property in dispute has been extinguished. In fact, during cross examination, he was asked whether Plaintiff was present at the meeting in question. In response, DW1 stated that the Plaintiff was not present. The following as happened under cross examination of DW1 by Counsel for Plaintiff is worth reproducing: Q: From paragraph 3 of your witness statement, you state there was a meeting between 1st Defendant and the other tenants in respect of the shop premises. Is that correct? A: Yes please. Q: A: The Plaintiff was not present at this meeting. Is that correct? Yes please. It is incomprehensible to believe that when the 1st Defendant and his witness, DW1 were both called to account for whether the Plaintiff was present at the meeting in question, BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER they provided conflicting testimonies despite being present at the meeting themselves. If the 1st Defendant and his witness were indeed both present at the meeting, it is logical to assume that they would have accurate knowledge of who was present, in particular the Plaintiff. Their incongruent testimonies cast doubt on the accuracy of their statements regarding the presence of the Plaintiff at the said meeting. The Plaintiff having strenuously denied that any declaration was made in his presence by the 2nd Defendant to the effect that he no longer had interest in or control over the shops, the onus was on the 1st Defendant to lead satisfactory evidence on the balance of probabilities to substantiate his claim but he failed to discharge this burden of proof and production of evidence. The agreement between the Plaintiff and 2nd Defendant as borne out by Exhibit ‘B’ had not been determined and as such, the Plaintiff was still the landlord of the ground floor shops as at the time the Defendants purportedly agreed for the 1st Defendant to merge the two shops. The Defendants could not therefore sidestep Plaintiff and enter into any agreement between themselves in respect of the two stores which are on the ground floor as doing so breaches the respective agreements they have with the Plaintiff. Any agreement or transaction between the Defendants in respect of Shops Number 3 and 4 to the exclusion of Plaintiff cannot hold. The Defendants having breached their contract with the Plaintiff, he is entitled to general damages for the breach. The law is settled that a breach of contract entitles the injured party to recover damages for the loss he or she has suffered. The general objective of the Courts in awarding damages is to place the injured party, as far as money can do it, in the position he would have been in if the breach had not occurred, that is, if the contract had been performed. See Royal Dutch Airlines (KLM) and Anor. v. Farmex Ltd [1989- 90] 2 G. L. R. 623 S. C. Nominal damages would suffice in this regard. I note that all these BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER issues are mainly the doing of the 2nd Defendant and had she not granted permission to the 1st Defendant, the shops would not have been merged. From Exhibit ‘A’, the tenancy of the 1st Defendant in respect of Shop Number 4 was to end on 3rd May 2022 and he was to give vacant possession upon its expiration. As at the date of commencement of this suit in March 2022, the 1st Defendant’s tenancy in respect of that shop had not ended. He had however gone ahead to have some sort of agreement with the 2nd Defendant who had a subsisting agreement with Plaintiff, which made 1st Defendant break the partitioning wall between the two stores. In respect of Shop Number 3, there was no agreement between Plaintiff and 1st Defendant. The Defendants are liable to the Plaintiff for breaching the agreements they have with him. The Plaintiff has been able to discharge the burden of proof on him. The 1st Defendant has stayed in the two shops (which have now been merged into one) from May 2022 to date and he is to pay mesne profit to Plaintiff for the period of occupation. Although the Plaintiff had averred that he rents a retail shop for commercial purposes at Tip-Toe enclave for GH¢250,000.00, he was unable to prove to the Court by adducing any evidence that this indeed was a reasonable rent charged there. As part of his reliefs as well, he prayed for payment by 1st Defendant of rent of GH¢200.00 per day for each of the two shops without giving the justification for using that amount. At least, the Plaintiff could have proved to the Court by way of for instance tenancy agreements, how much he has been charging the tenants in the other shops whose shops are the same as the 1st Defendant’s own within that period. The only guide the Court has now is the rent paid by the 1st Defendant to Plaintiff for the three year period (3rd May 2019 to 3rd May 2022) which is GH¢ 80,000.00. This means that the monthly rent for that period was approximately GH¢2,222.00. I am mindful of the fact that as the years go by, the rent increases and as such, the rent in 2022, 2023 and 2024 BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER would obviously not be the same as the rent in 2019. I believe that an approximately GH¢500.00 upwards adjustment making it GH¢2,700.00 monthly is a fair rent for the period from 4th May 2022 to date. Obviously, in consonance with Exhibit ‘B’, the 50-50 sharing agreement between the Plaintiff and the 2nd Defendant would still be in place. It is necessary to put on record again that the ten-year agreement between Plaintiff and the 2nd Defendant ends this year, 2024. It can be that it has already ended or that it has some days to end considering that we are at the tail end of the year. The property would therefore be under the control of 2nd Defendant unless there is a renewal between her and Plaintiff. I would therefore not make an order of ejectment of the 1st Defendant in favour of the Plaintiff since as it stands, his interest in the property has come to an end or is almost at an end. The receipted expenses incurred by the 1st Defendant on the renovation is GH¢ 29,975.00. He has also paid GH¢ 30,000.00 as part-payment towards rent and GH¢ 6,000.00 to 2nd Defendant’s lawyer who is her representative. These monies are to be refunded to the 1st Defendant with interest at the prevailing commercial bank rate from the date of institution of this suit being 24th March 2022 to date of final payment. The 1st Defendant is therefore to give vacant possession of the shops to the 2nd Defendant by 1st January 2025. The parties are at liberty to enter into a tenancy agreement if they so desire for the amount payable to be commuted to rent. This case has been pending since March 2022. Expenses have been incurred in its prosecution by the Plaintiff such as the engagement of a lawyer to handle the matter, transportation expenses, filing fees, time expended, amongst others. These BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER inconveniences should not be made to be a loss and should at least be compensated for by way of costs to the Plaintiff. CONCLUSION Having carefully analyzed the evidence adduced in its entirety and resolved the salient issues, this Court holds as follows: 1. The 1st Defendant is to give vacant possession of Shops Nos. 3 and 4 to 2nd Defendant by 1st January 2025. 2. The 1st Defendant is to pay to the Plaintiff mesne profit of GH¢2,700.00 per month for each shop from 4th May 2022 to date. 3. The 1st Defendant is to pay to Plaintiff general damages of GH¢3,000.00 for breach of contract. 4. The 2nd Defendant is to pay to Plaintiff general damages of GH¢5,000.00 for breach of contract. 5. The 2nd Defendant is to pay to the 1st Defendant the expenses incurred on the renovation being GH¢ 29,975.00 with interest on same at the prevailing commercial bank rate from the date of institution of this suit being 24th March 2022 to date of final payment. 6. The 2nd Defendant is to refund to the 1st Defendant the amount of GH¢ 36,000.00 paid by 2nd Defendant with interest on same at the prevailing commercial bank rate from the date of institution of this suit being 24th March 2022 to date of final payment. 7. Cost of GH¢10,000.00 is awarded for Plaintiff against the 2nd Defendant. BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER 8. Cost of GH¢10,000.00 is awarded for Plaintiff against the 1st Defendant. SGD. AMA ADOMAKO-KWAKYE (MS.) MAGISTRATE Counsel Akwasi Opoku Agyeman, Esq. for Plaintiff Divine Kweku Asigbetsey, Esq. for 1st Defendant Ebenezer Oppong, Esq. for 2nd Defendant BISMARK OSEI AFRIYIE V. MR. SAFIANU DJIBO & ANOTHER 28