Narh Vrs Fenteng [2022] GHADC 108 (11 November 2022)

IN THE DISTRICT COURT HELD AT SOMANYA ON FRIDAY THE 11TH DAY OF NOVEMBER, 2022 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO SUIT NO. A9/05/2022 PLAINTIFF COMFORT NARH SUING ON HER OWN AND ON BEHALF OF HER OTHER SIBLINGS OF THE ESTATE OF THE LATE SARAH KORKOR VRS MATHIAS KWESI ASIEDU FENTENG - DEFENDANT PARTIES - PRESENT JUDGEMENT This case is referred from the Municipal Rent Officer, Gloria Adjei Kotei, Lower Manya- Krobo. The Plaintiff per a power of Attorney marked as Exhibit A donated by Madam Sarah Korkor instituted the instant action against the Defendant for the following reliefs: 1. An order of the court for the enforcement of the Rent Officers Report to eject the Defendant from the Plaintiff’s family property, H/No. B173/4. 2. Costs of litigation. The case of the Plaintiff per her witness statement is that she is a trader and one of the daughters of the late Sarah Korkor who is the owner of H/No. B173/4, Sra Somanya and that she took the instant action on her own behalf and on behalf of her siblings. She added that their late mother Sarah Korkor during her life time donated the Power of Attorney to her to persecute the case as her Attorney as evidenced in Exhibit A which she has tendered and admitted in evidence. She further stated that the Defendant is a tenant in occupation of a chamber and a Hall in the house in issue on account of a tenancy agreement between him (tenant) and their late mother Sarah Korkor about twenty-two years ago. According to the Plaintiff, after the demise of Sarah Korkor the family had a meeting at which it was decided that the Plaintiff should assume the role of the landlady of the house in issue as stated in Exhibi A (Power of Attorney). She was introduced to the entire tenants of the house in issue including the Defendant, as their landlady and to whom all rent must be paid. She added that all the tenants including the Defendant acknowledge her as their landlady and started paying rent to her and on the strength of that the Defendant entered into an agreement with the plaintiff for the Defendant to have a seperate water connection to his room as contained in Exhibit B. She added that the Defendant has failed to recognize her as the landlady and failed to pay rent to her since January 2021 and has caused nuisance in the house by way of constant quarrels with his co-tenants which had ended up at the Police station on two occasions and has consequently served notice on the Defendant to vacate the house in issue. Furthermore, the Defendant has altered the chamber and hall he is occupying by the construction of a toilet facility in same without the consent of the Plaintiff. The Plaintiff took the matter to the Rent officer at Odumase-Krobo where the Defendant stated that he has given a rent advance of GH₵5,350.00 to the Plaintiff’s sister (DW1) without the Plaintiff’s consent. DW1 is called Madam Juliana Adjakwah. The Plaintiff concluded that the Defendant failed to vacate the chamber and hall in the house in issue and the matter was referred to this court per a copy that she has attached to the writ of summons. The Plaintiff called 4 witnesses namely Vida Osei (sister), Theresa Ofori Atta (sister), Comfort Adotei (niece) and Doku Divine (tenant) who all confirmed the fact that the Plaintiff is the appointed landlady of the house in issue. In opening his defence, the Defendant per his witness statement, stated that he rented the chamber and Hall he is occupying in the house in issue from the Plaintiff’s mother about 20 years ago. He added that when the rent advance expired he renewed same with the Plaintiff’s elder sister Juliana Adjakwah by paying a rent advance of GH₵5,350.00 to her to cover 3 ½ years because Juliana Adjakwah is the one that he recognizes as his landlady. According to the Defendant it was Juliana Adjakwah (DW1) who instructed him to stop paying rent to the Plaintiff and rather pay same to her (DW1) which he did. He concluded that he stopped paying rent to the Plaintiff upon the instructions of Juliana Adjakwah (DW1). The Defendant called Juliana Adjakwah(DW1) who stated that she is the oldest daughter of Sarah Korkor and the Plaintiff is her younger sister. She added that after the death of their mother Sarah Korkor, she started taking care of the house in issue by virtue of the fact that she is the oldest daughter. She further stated that the Defendant’s rent advance agreement with their late mother, Sarah Korkor expired and she rented the rooms again to the Defendant on another agreement and permitted the Defendant to construct toilet and connect water to his room. She concluded that she decided to relocate to Accra so she handed over the care of the house in issue to the Plaintiff. The Defendant therefore closed his case. The legal issues for determination by the court are: 1. Whether or not the Plaintiff was appointed as the caretaker and landlady of the house in issue. 2. Whether or not DW1 Juliana Adjakwah was appointed as care taker or landlady of the house in issue. 3. Whether or not the Defendant paid rent of GH₵5,350.00 to DW1. 4. Whether or not the Defendant is in arrears of rent payment 5. Whether or not the Defendant is guilty of nuisance to the co-tenants in the house in issue. The burden of producing evidence as well as the burden of persuasion is on both the Plaintiff and the Defendant and the statutory standard is one on the “preponderance of the probabilities” by virtue of Section 12(1) of the Evidence Act, 1975 (NRCD 323) which requires evidence to “that degree of certainty and 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”. In the case of LAMPTEY ALIAS NKPA V. FANYIE & OTHERS [1989-90] I GLR 286, the Supreme court held that: “On general principles, it was the duty of a Plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the Defendant to lead sufficient evidence to tip the scale in his favour”. Evidence adduced during hearing is indicative of the fact that the Plaintiff and the Defendant as well as their witness are in agreement that H/No. B173/4 was put up by the late Sarah Korkor. By extension the parties and their witnesses have acknowledged the fact that the house in issue belongs to the late Sarah Korkor who was the mother of the Plaintiff. The Plaintiff stated that during the life time of Madam Sarah Korkor she appointed her as her lawful attorney per a Power of Attorney which is Exhibit “A”. It stipulated that the Plaintiff must be the caretaker of the house in issue and the position of a landlady and act accordingly in respect of renting and ejection of tenants, collection of rent due and taking court action against any defaulting tenant. The power of attorney which was signed on 2/1/2002 also stated that the donation so made shall continue even when the donor or grantor is no more alive. This last aspect of the power of attorney is however inappropriate because despite the fact that there is no evidence to the effect that the power has been revoked or withdrawn, it is trite and also enshrined in the Powers of Attorney Act, 1998 (Act 549) that the authority of the donee ended whenever the power of attorney terminates upon the death of the grantor. In the instant case the power of attorney was signed on 2/1/2002 during the life time of Sarah Korkor who is currently dead, however there is evidence on record particularly by the Plaintiff, PW1 Comfort Adotei (niece), PW2 Theresa Ofori Atta (sister), PW3 Doku Divine (Tenant) and PW4 Vida Osei (sister) to the effect that the Plaintiff and her siblings had a meeting in which the Plaintiff was appointed to be in-charge of the house in issue and at a general meeting with all the tenants of the house in issue, including the Defendant, the Plaintiff was introduced to the tenants as their landlady. This position of the Plaintiff was acknowledged by the Defendant when he entered into an agreement per Exhibit “B” in which the Plaintiff granted him (Defendant) the permission to connect water to his room. The second issue is about the determination as to whether or not Juliana Adjakwa (DW1) was appointed as a caretaker or landlady of the house in issue. DW1 stated in her witness statement that she started taking care of the house in issue after the death of their mother Sarah Korkor due to her position as the 1st and eldest daughter and on the strength of that she rented the room again to the Defendant after the Defendant’s rent advance agreement with the late Sarah Korkor has expired and that she handed over the said position of caretaker to the Plaintiff when she (DW1) decided to relocate to Accra. This means that the assumption of the caretaker position was embedded in the character of self-appointment. It is therefore inappropriate for DW1 to rent the room to the Defendant and to have gone ahead to collect rent from the Defendant. I will now consider the issue as to whether or not the Defendant paid rent to DW1, Juliana Adjekwah. The Defendant per his witness statement made the assertion that when his rent advance expired he renewed same with DW1 by the payment of GH₵5,350.00 as rent advance for 3 ½ years because DW1 is the only person he recognized as his landlady and consequently stopped the hitherto payment of rent to the Plaintiff upon the instructions of DW1. By his conduct of formerly paying rent to the Plaintiff and entering into agreement with the Plaintiff per Exhibit “B” for Plaintiff’s permission to connect water to his room the Defendant is deemed to have acknowledged the Plaintiff as his landlady therefore the Defendant is stopped from denying the title of the Plaintiff as provided in Section 27 of the evidence Act, 1975 (NRCD 323) as follows: Except as otherwise provided by law, including a rule of equity, against any claim by a tenant the title of his landlord at the time of the commencement of their relation is conclusively presumed to be valid. In the instant case the position of the Plaintiff as a landlady has been established therefore it is inappropriate for the Defendant to deny the validity of the Plaintiff’s title and acknowledge DW1 as his landlady or atone tenancy to DW1. Furthermore the Defendant stated that he paid GH₵5,350.00 as 3 ½ years rent advance to DW1. It is a fundamental principle of law of evidence that a party that makes an assertion has a duty imposed upon him by law to persuade the court that his assertion is true. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows: Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. The above provision was upheld in the case of BILSON V. RAWLINGS AND ANOTHER [1993-94] 2 GLR 422. Where it was held that: “……. The law has always been that he who alleges that certain state of facts exists, must prove it”. It was the Defendant who made the assertion that he paid GH₵5,350.00 to DW1 as 3 ½ rent advance. The burden was therefore upon the Defendant to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact that the Defendant paid GH₵5,350.00 to DW1 as 3 ½ years rent advance was more probable that its non-existence. Due to the fact that the instant action is civil in character, the standard of proof on the Defendant was on a balance of probabilities. In his attempt to satisfy this legal requirement, the Defendant called DW1. During cross examination of DW1 by the Plaintiff the following transpired: Q. I am putting it to you that the Defendant is in arrears of rent as follows” Years 2021 Rent GH₵ 640.00 GH₵1,440.00 GH₵ 960.00 A. The Defendant has paid only the 2020 and 2021 rent to me but has not paid the 2022 rent to me. Q. I am putting it to you that the Defendant alleged that he has paid 3 ½ years rent advance to you. A. That is not true. From the above it is clear that DW1 who is the Defendant’s own witness has denied the Defendant’s assertion that he paid 3 ½ years rent advance to her. This means that there is no truth in the Defendant’s assertion. The Defendant’s allegation that he paid GH₵5,350.00 rent advance and that the said rent advance will expire in July 2023 is therefore untenable and cannot be the truth. The Defendant is therefore owing rent of GH₵960.00 in respect of the year 2022 as well as the 2020 and 2021 rent arrears of GH₵640.00 and GH₵1,440.00 respectively which he wrongly paid to DW1 who has admitted collecting same. I now turn my attention to the issue of nuisance. The Plaintiff stated in her witness statement that the Defendant has been quarrelling with the cotenants in the said house in which two (2) of such quarrels ended up at the Police station. When the Defendant cross-examined the Plaintiff he failed to ask questions to ascertain the veracity or otherwise of the Plaintiff’s averment. In the case of QUAGRAINE V. ADAMS [1981] GLR 599 CA it was held that: “Where a party makes an averment and his opponent fails to cross-examin on it, the opponent will be deemed to have acknowledged sub silentio that averment by the failure to cross-examine. In the instant case, by his failure to cross-examine the Plaintiff on the said assertion, the Defendant is deemed to have acknowledge the said averments to the extent that he exhibits quarrelsome behavior towards the cotenants in the house in issue. In relying on the principle espoused in the above cited case it is prudent to state that the court is not oblivious of the exceptions to the rule on failure to cross-examine as the Defendant was given the opportunity to cross-examine the Plaintiff without any hindrance. Section 17(1) of the Rent Act, 1963 (Act 220) provides as follows: The general grounds by which a tenant can be ejected may be summed up as follows: (a) Where the rent due has not been paid within one month from the date it became due. (b) Where the tenant or anyone living with him has been guilty of nuisance to adjoining occupants. In the instant case the Defendant is in rent arrears in respect of the years 2020, 2021 and 2022 and is guilty of nuisance to the cotenants in the house in issue. These facts constitute grounds for ejection of the Defendant. It is my finding after considering all the evidence adduced that the Plaintiff was appointed as the caretaker and landlady of the house in issue but DW1 was not appointed as the caretaker and landlady of same. Also the Defendant did not lead enough evidence to establish the fact that he paid GHC5, 350.00 to DW1 as 3 ½ rent advance especially when DW1 denied same under cross examination. In addition the Defendant is in arrears of rent payment of GHC640.00, GHC1, 440.00 and GHC960.00 for the year 2020, 2021 and 2022 respectively. The Plaintiff led evidence to discharge the burden of proof but the Defendant was unable to lead sufficient evidence to tip the scale in his favour. In the circumstance and on the balance of probabilities I enter judgment in favour of the Plaintiff and order as follows: 1. That the Defendant shall vacate the chamber and Hall in issue and leave same in a tenantable manner on / before 11/1/2023 and hand over the keys of same to the Plaintiff. 2. That the Defendant shall pay the rent arrears of GHC960.00 in respect of the year 2022 to the Plaintiff. 3. That DW1 shall refund a total of GHC2, 080.00 being the rent arrears of the years 2020 (GHC640.00) and 2021 (GHC1, 440.00) to the Plaintiff for the purpose of renovation of the house in dispute. A costs of GHC2, 000.00 is awarded in favour of the Plaintiff. (SGD) ……..………………………….. MICHAEL DEREK OCLOO DISTRICT MAGISTRATE 31st OCTOBER, 2022