JOHN COATES VRS SILAS BERVEL (C2/05/2022) [2022] GHACC 362 (30 August 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 30TH DAY OF AUGUST 2022 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. C2/05/2022 JOHN COATES VRS SILAS BERVEL JUDGEMENT The Plaintiff per a Writ of Summons and Statement of Claim issued from the registry of this Court against the defendant, dated 12/08/21, claiming the following: a. An order compelling the Defendant to pay the sum of Eight Thousand United States Dollars (US$8,000.00) being the outstanding balance of rent owed the Plaintiff by the Defendant as at 7th October, 2020 on the Tenancy; b. Interest on the above sum of Eight Thousand United States Dollars (US$8,000.00) at the prevailing interest rate from the 8th of October 2020 till date of final payment; c. An order compelling the Defendant to pay the sum of Eighteen Thousand United States Dollars (US$18,000.00) being the outstanding rent payable for the year beginning 8th October 2020 to 7th October, 2021 owed the plaintiff by the defendant in respect of the Tenancy; Interest on the above sum. An order compelling the Defendant to vacate the property and for the Plaintiff d. e. to re-enter the property. f. g. Cost including Solicitor’s professional fees. Any other remedy as the Court may consider fit to order. The Defendant filed an appearance on 31/08/2021 and a Statement of Defence on 12/11/2021 denying the claims made by the Plaintiff. On the 28/02/22 the Plaintiff filed a reply joining issues with the defendant. At the application for directions stage, the following issues were set down for trial: a. Whether or not the Defendant owes the Plaintiff the sum of Eight Thousand United States Dollars (US$8,000.00), being the outstanding rent for the use of the Plaintiff’s House from October 2019 to October 2020. b. Whether or not the Defendant has defaulted in the payment of rent to the Plaintiff from 8th October 2020 to date, despite occupying the Plaintiff’s property. c. Whether or not the Plaintiff is entitled to re-enter the property for his personal use. d. Whether or not the failure of the defendant to pay the rent due can be attributed to an event of force majeure. e. Whether or not the Plaintiff is entitled to his reliefs. Afterwards the court ordered parties to file their witness statement and pretrial check list and on the 24/06/22, Case Management Conference (CMC) for the suit was organized. On the said day the defendant was absent and had not filed his witness statement and pretrial check list. On that basis, and as required by the rules of court, CI 87 rule 7A 3(b), the statement of defence of the defendant will be struck out accordingly. At the hearing of the case, the plaintiff testified for himself. The evidence of the plaintiff was that, on the 8th of October 2013 he entered into a tenancy agreement with the defendant for his house situate at West Legon, Accra for two years, renewable at the option of the parties. The plaintiff testified that there was renewal of the rent agreement as well as increases over the years and the last renewal was in October 2019. The Plaintiff testified that the successive increments led to an annual rental of USD 1500 per month payable yearly in advance in October 2019 and the defendant made a part payment of the total rent for the year, leaving an outstanding rent of (US$8,000.00) to be paid. The defendant again failed to make a full payment for the rent for the year beginning 8th October 2020 to the year ending 7th October 2021 in the amount USD 18000.00 despite having full access to the property and occupying same at the expense of the plaintiff. The plaintiff said further that following the failure of the defendant to pay the outstanding rent, he made various demands on him and even indicated to him that he was renting a house in UK which he needed to pay. He said all these demands were met with assurances from the defendant. On one occasion the defendant furnished him with a letter, he had written to his bankers, to transfer the funds to his account but as the plaintiff testified, the said transfer was never done. He said the defendant kept postponing the payment until it became apparent that the defendant had no intention of paying for the massive house he was occupying. The plaintiff gave further evidence of his instruction to his lawyers, who wrote to the defendant and the various interaction that ensued, before he finally decided to take a legal action which culminated in the action which is before the court. The plaintiff also said if the defendant is not compelled by the court, he will continue in his default, as well as his deceit to deprive him of his money. The plaintiff said the failure of the defendant to pay him is a breach of the tenancy agreement and he also need the money which he requires for his personal use including settling his own obligation in the United Kingdom. The plaintiff then prayed the court to grant him his reliefs endorsed on his writ of summons and statement of claim against the defendant to enable him to have his property back for his personal use. The plaintiff tendered various exhibits before the court including exhibit A-Tenancy agreement between the plaintiff and the defendant, exhibit B and C - email correspondence between the parties. Exhibit D – Demand notice dated 16/04/2021 and exhibit E – a letter in response dated 12/05/2021. After which the plaintiff’s case was closed and the suit was adjourned for judgment. In all these, the plaintiff was not cross examined by the defendant or his Counsel as they were not present. The defendant has never appeared in this court since the case was first called before the court. On the day that the plaintiff announced the end of their case which was the 02/08/2022, the defendant had been served with a hearing notice prior to that but he was again absent from the court. There is an authority to the effect that, the right to be heard is an established common law principle. It is also an inalienable right which should not be taken away unless the rules of court permit it to be so. See Republic v High Court, Accra Ex-parte Salloum & Others. (2012) 37 MLRG 34 SC. In the case of Ankumah vrs City Investment Co. Ltd (2007-2008) 2 SCGLR 1064 the Supreme Court held per Adinyira JSC at page 1076 as follows: “The trial Court therefore rightly adjourned the case for judgment. A Court is entitled to give a judgment in default as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For then, it would be justifiable to assume that he does not want to be heard”. See the Rep v Court of Appeal Ex Parte Eastern Alloy Co. Ltd 2007-08 SCGLR 371 It is my humble view that since the defendants failed to comply with the orders of the court to file their witness statements and pretrial check list, failing to appear to cross examine the plaintiff, as they were served, with hearing notice on 18th of July, 2022 and they failed to appear, they waived their right to be heard. In this case the plaintiff will have to proof his case before the court. The position of the law is settled by a legion of authorities that, when a party makes an averment and the averment was not denied, no issue is joined, and no further evidence need to be led on that averment. Also, when a party had given evidence of a material fact and was not cross-examined upon it, he even need not call further evidence to establish that fact. Fori v Ayerebi (1966) GLR 622 SC Bonsu v Kusi (2010) 26 GMJ 20 SC In the case of Danielli Construction Limited v Mabey & Johnson (2007-08) SCGLR 60 the Supreme Court said at page 65 of the report that, “The plaintiff company did not cross examined the witness of the defendant company in the witness box when he gave the evidence; the plaintiff company did not also tender any evidence to challenge the veracity of the evidence in exhibit 2 and the inference was that it admitted the import of the evidence: See Fori v Ayerebi (1966) GLR 627, SC and Browne v Dunn (1894) 6 R 67” With respect to case before the Court the plaintiff was not cross examined, his evidence before the court were not denied. And a plaintiff is to win his or her case on the preponderance of probabilities as provided under sections 11 (4) and 12 (1) of the Evidence Act, Act 232. See: Takoradi Floor Mills V Samira Faris (2005-06) SCGLR 985, Ackah v Pergah Transport Limited & Ors (2011) 31 GMJ 174 In this case, looking at the issues together, as the plaintiff gave evidence, he tendered various exhibits which were all admitted without objection. The evidence given that is the Tenancy Agreement (exhibit A) indicates the relationship of the parties and the parties have consistently renewed the tenancy and there have been upward reviews. It is obvious from the evidence before the court that there is outstanding balance of US$8,000, and beginning from October 2020 to October 2021, the rent is in the amount of US$ 26,000 and the defendant since then has rent not paid and still in occupation of the house of the plaintiff. The plaintiff is entitled to the rent since then as the defendant is still in occupation until he vacates the premises. There is evidence before the court of the challenges of the plaintiff in paying his rent in the United Kingdom as the defendant is not paying him for him to use same for his liability in the United Kingdom. The plaintiff had to travel back to Ghana to testify in this case, even delaying the case before the court. From the evidence the plaintiff now wants the defendant to vacate the premises for him to use the place for himself. The Rent Act, 1963 (Act 220) provides for various instances in which a landlord may be entitled to re-enter or recover possession of his property and eject the tenant from the property. See section 17 of the Rent Act. From the evidence before the court, the premises is reasonably required by the landlord for his personal use and from all indications before the court, greater hardship will be suffered by the plaintiff in the circumstance if an order is not granted for the plaintiff to re-enter or repossess the rented premises, especially as the tenant the defendant has failed to pay due rent to the landlord, the plaintiff. See Boateng v Dwinfuor (1979) GLR 360, Mensah v Addisson (1981) GLR 784, Donkor v Dzokoto (1993’94) 1GLR 193, Nimako v Archibald (1966) GLR 612, Adu and Others v Clegg (1981) GLR 173. Again, from the records there is evidence that the defendant started failing in his obligations in 2019, long before the COVID-19 pandemic escalated. From the totality of the unchallenged evidence, it is clear that the plaintiff is entitled to his claims before the court from the analysis of the issues that were set down. The plaintiff is therefore entitled to all his reliefs per his writ of summons before the court. The plaintiff is also entitled to the rent from the October 2021 till defendant finally vacates the premises and same should be calculated and claim in addition by the plaintiff against the defendant. Cost of GHC 25,000 will be awarded in favour of the plaintiff against the defendant. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 7