CONSTRUCTION WAREHOUSE (GH) LTD VRS GHANA INSTITUTE OF PUBLIC (H1/172/2021) [2021] GHACA 47 (25 November 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL APPEAL) ACCRA – GHANA CORAM: SENYO DZAMEFE JA PRESIDING P. BRIGHT MENSAH JA JENNIFER DODOO JA SUIT NO. H1/172/2021 25TH NOVEMBER 2021 BETWEEN: CONSTRUCTION WAREHOUSE (GH) LTD … PLAINTIFF/APPELLANT vs GHANA INSTITUTE OF PUBLIC ADMINISTRATION, ACHIMOTA … DEFENDANT/ RESPONDENT ========================================================= JUDGMENT ========================================================= BRIGHT MENSAH JA: The plaintiff/appellant in the instant appeal caused a writ of summons to be issued in the registry of the lower court, the High Court, Accra [General Jurisdiction] on 16/06/2016 against the defendant/respondent herein for the following judicial reliefs: a) An order for recovery of possession of House No. B871/3, Asafoa- tse Nettey Road, Accra, and also known as Akosa Plaza, from the defendant in a good tenantable condition. b) An order directed at the defendant to pay the water and electricity bills consumed by the defendant to date of handing over the pre- mises to plaintiff. c) An order of ejectment. d) An order for the payment of mesne profits from the month of September 2015 to date of judgment. e) Damages for breach of contract. f) Costs including cost of Counsel. On record, the parties filed their respective processes and the claim hotly contested by the defendant/respondent. At the close of the trial, the lower court entered judgment in part for the plaintiff/appellant on its claim but being dissatisfied with the whole judgment, it has appealed to this court on grounds contained in a notice of appeal filed 11/10/2018, as follows: 1. That the judgment is against the weight of the evidence. 2. That the learned judge’s decision that the defendant was not in possession of Akosa Plaza following the termination of the tenancy agreement till the date the defendant handed over the keys to Akosa Plaza to the plaintiff is not supported by the law and the evidence on record. 3. That the award of Ghc17,000.00 as damages against the defend- ant for breach of the tenancy agreement is not commensurate given the circumstances of the case. 4. That further ground(s) will be filed upon receipt of the record of appeal. No further grounds of appeal were filed. In this appeal, we shall simply refer to the plaintiff/appellant as the appellant and the defendant/respondent as the respondent. Facts of case: It is convenient, before outlining the real issues raised in this appeal to state in brevity, the facts of the case. They are simply that in the year, 2013 the appellant leased its property described House No. B871/3, Asafoatse Nettey Road, Accra popularly known as Akoza Plaza, to the respondent for 2 years at a monthly rent of US19,079.50 renewable at the option of the respondent. The tenancy came into force on 1st August 2013. It was a term of the tenancy agreement that the respondent was to give a 6 months’ notice if it did not intend to exercise the option of renewal. The respondent was also to deliver up the leased premises in good and tenantable condition. It is undisputed that instead of the respondent giving the 6 months’ notice, it rather gave a 3 months’ notice to quit. The notice was per a letter the respondent wrote on 05/05/2015. Pursuant to that the appellant requested for a meeting for the parties on the repairs the respondent was to undertake on the premises before handing it over. The parties mutually agreed on the repairs to be done. In furtherance of the meeting the appellant wrote in July 2015 drawing the respondent’s attention to the agreed works it has to carry out on the premises to ensure that the property was handed over in a tenantable condition. It is the case of the appellant that contrary to the agreement of the works to be carried out, as at August 2015 the respondent has been unable to complete the agreed works. The appellant claims that till the time it issued the writ of summons in this case, the respondent has been unable to complete the works though still in occupation, an assertion the respondent disputes. It is the case of the respondent that by August 2015 it had fully vacated the premises and in September 2015 the appellant had unilaterally re-entered the premises. It contended that the work it was expected to carry out encountered a delay due to the presence of the appellant’s workmen on the premises as well as new tenants the appellant put on the premises. It contends further that it sent its representatives to the appellant’s premises to hand over the keys to the place but it refused to accept them. However, upon persistent refusal to accept the keys the appellant eventually agreed to take them on 27/09/2016. It contended again that since it vacated the premises in August 2015 the appellant has had full access to, and taken possession of the premises and has been exercising its ownership and proprietary rights thereof. In consequence, the claim of the appellant ought to be dismissed by the trial court. In its reply filed on 02/11/2016, the appellant joined issue generally with the respondent’s defence and insisted that it was entitled to its claim. As recounted supra, at the end of the trial the lower court gave judgment for the plaintiff in part of its claim. Submissions of Counsel for the appellant: Learned Counsel in combining the 1st and 2nd grounds of appeal and in defining what constituted possession in law, referred this court to the oft-quoted Twifo Oil Plantations Project Ltd v Ayisi & ors (1982-83) 2 GLR 883 and submitted that there were 2 main types of possession, namely: a) de facto possession; and b) de jure possession. He argued that whether or not a person was in possession was determined from the facts of each case as the concept was not of universal application. Counsel next drew the court’s attention to the Tenancy Agreement [Exhibit A] and submitted that the tenancy commenced on 01/08/2018 and was to end by the end of July 2015. However, as found by the trial court as at 27/10/2015 the respondent per their letter [Exhibit J] acknowledged that it has still not handed over the premises to the appellant, implying that it still remained in possession. Counsel also referred to respondent’s letter [Exhibit N] by which they claimed they have done substantial work except replacement of louvres and submitted that by that admission the respondent had not handed over the premises in a tenantable condition. In support, he relied on Thome v Barclays Bank (DCO) [1976] 2 GLR 126. It was equally argued on behalf of the appellant that per their letter [Exhibit KP9] as appearing on p.106 of the record of appeal [roa] the respondent had assumed and maintained possession of the premises till the end of May 2016. In the premise, Counsel argues, the appellant was entitled to mesne profits if the tenancy agreement had come to an end in July 2015. In support, he referred this court to Acquah v Oman Ghana Trust Holdings Ltd [1984-86] 1 GLR `51. Counsel submits again that it took about 10 months before the respondent properly handed over the keys to the appellant. Thus, the appellant was entitled to mesne profits, he insisted. Although the appellant rented out 2 rooms out of the whole 5-floor building, Counsel argues further, the appellant did that to mitigate its losses. In support, he referred to Societe General de Compensation v Ackerman [1972] 1 GLR 413 @ 432, wherein Anin JA had stated the law as that: “……………….what steps a plaintiff in an action for breach of contract should take towards mitigating the damage is a question of fact and not of law and the burden of proof is on the defendant.” Emphasizing that what the appellant did in renting out 2 rooms was a mere act of mitigation of losses, Counsel submitted then that the respondent was not absolved from its burden of proof on him to show otherwise. On the 3rd ground of appeal, it was submitted on behalf of the appellant that since the trial court found that the appellant was entitled to damages, the damages awarded ie Ghc17,000.00 was far from compensatory. Counsel has contended that the agreed rent per month for the premises was US$19,079.50 and the appellant lost that amount when the respondent has not delivered it in a tenantable condition. In support, he relied on Royal Dutch Airlines & anr v Farmex Ltd [1989-90] 2 GLR 623 in which case the Supreme Court has extensively considered the principle of restituitio in integrum in assessing quantum of damages awarded in the event of a breach of contract. Finally, he invited this court to allow the appeal. Submissions of Counsel for the respondent: Counsel first, submitted that the appellant has been unable to demonstrate any circumstance why the judgment of the trial court ought to interfered with or set aside on appeal. To Counsel, it was a question of fact and law as to whether the respondent was in possession of the disputed premises at the time. He claimed that the respondent notified the appellant of their intention not to renew the tenancy after its expiration and removed themselves therefrom to its main campus. The trial court was therefore right in holding that the respondent sufficiently notified the appellant and followed it with removing themselves from the premises. He argued further that the appellant went into possession and undertook renovation works and granted accommodation to its workers without notice to the respondent and that amounted to exercise of its right of possession and control of the premises. In support, he referred us to the dictum of Atuguba JSC in Akoto v Gyamfi Addo & anr [2005-06] 1018 and Twifo Oil Plantation Project Ltd v Ayisi [1982-83] 2 GLR 883. Counsel on page 13 of his written submissions had agreed with the lower court that although the respondent delayed in carrying out the agreed renovation it ought to have carried out on the disputed premises that nevertheless did not preclude the appellant from taking possession and benefiting from its use. In his view, the appellant carried the burden to establish that the respondent was in possession but which the appellant failed to do. Counsel next argued that the appellant was never entitled to mesne profits because the respondent was never in possession. Mesne profits refer to rents or profits accrued during the rightful owner’s exclusion from his land as a result of a tenant’s wrongful possession, he stated. A claim for mesne profit can only be joined with an action for recovery of land. However, the respondent was not in possession, Counsel insisted. Counsel further agreed with the trial court that the appellant having exercised overt acts of possession by renting out parts of the disputed premises it was only entitled to mitigate its loss by carrying out the respondent’s outstanding repairs and surcharging the respondent with the cost. To mitigate the losses, Counsel relied on the dictum of Twum JSC in Delmas Agencies [Gh[ Ltd v Food Distributors International Ltd [2007-08] 2 SCGLR 748 wherein the law has been stated: “…………. [T]he law does not allow a plaintiff to recover damages to compensate him for a loss which he would not have been suffered if he had taken reasonable steps to mitigate his loss. The law is that where the plaintiff has failed to mitigate his loss where there were reasonable opportunities for doing so, he is only entitled to nominal damages.” To Counsel, the appellant did not take reasonable steps to mitigate its losses when it refused to accept keys to the disputed premises after the expiry of the tenancy. In response to Ground C of appeal, learned Counsel observed that the tenancy agreement [Exhibit A] provided that where a party desired to terminate the agreement he was to give 6 months’. However, the respondent on 05/05/2015 that is, 3 months to the determination of the tenancy agreement, gave that notice not to renew it. According to him, Exhibit A never expressly provided remedy or damages payable for a breach of the obligation to serve 6 months’ notice of non-renewal. Thus, when the lower court properly considered the evidence on record it was right in awarding Ghc17,000.00 damages. Nevertheless, Counsel argues that the respondent never breached any term in the contract to warrant the award of any damages or mesne profit. Yet, in another breadth Counsel agreed with the trial court contending that it correctly applied the principle in British Westinghouse Electric Co. Ltd v Underground Electric Railways Co. of London [1912] AC 673 to find with regard to mitigating of losses for undue delay on the part of the respondent in completing the works. He submitted further that being aware of the delay on the part of the respondent, the appellant could have undertaken to do the renovation and upgrading of the property and to later surcharge the respondent for the cost. But it is of interest that Counsel then proceeded to argue that the appellant’s claim for damages with respect of undue delay of renovating the property should not be granted by reason that the delay did not deny the appellant of admitting new tenants. So, Counsel supported the trial court when it held at p.228 [roa] as follows: “I will say that failure to rent the place cannot be attributed to the defendant, in that, the plaintiff themselves said they were working on the house. They did not say when they themselves completed the work. The plaintiff has not satisfied me that the failure to get tenants, if such was the case, is attributed to the defendant. In any case the plaintiff did secure some tenants as aforesaid during the period that works were being done on the property.” In conclusion, Counsel opined that the judgment of the court below was supportable and rightly given thus, the appeal ought to be dismissed. The appeal: My Lords, the fundamental issues this appeal raises are: a) whether the respondent was in possession after the determination of the tenancy; b) whether the appellant took steps to mitigate its losses; c) and whether the appellant was entitled to some damages and/or mesne profits, as the case may be. The law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C. I 19 per rule 8(1) provides that any appeal to the court shall be by way of re- hearing. The rule has received ample judicial interpretation in many cases to mean that the appellate court is enjoined by law to review the whole evidence on record and come to its own conclusion as to whether the findings of the lower court both on the law and facts, were properly made and supportable. In R v High Court (General Jurisdiction 6); Exparte Attorney-General (Exton Cubic – Interested Party) (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle as follows: “Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.’’ This court in Kofi v Kumansah (1984-86) 1 GLR 116 @ 121 having considered and adopted the principle as espoused by Webber CJ in Codjoe v Kwatchey (1935) 2 W. A. C. A 371, stated the law as follows: “The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over- ruling it if on full consideration it comes to the conclusion that the judgment is wrong…………………………………..” The settled rule, therefore, is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case and the evidence led on record just like a trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. The opposite is equally true and the judgment is upset on appeal where it is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. The rule is also that where the appellate court was obliged to set aside a judgment of a lower court, it must clearly show it in its judgment where the lower court went wrong. Reiterating the principle, Ollenu JSC delivered himself, an opinion in Prakwa v Ketewa (1964) GLR 423 as follows: ‘’……………….[a]n appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could …………………………………… Therefore, if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong.” It is idle to stress the rule that it is not the function of an appellate court to disturb a finding of fact except in the circumstances so stated supra. Now, to the merits of the instant appeal. Admittedly, per Exhibit A, the parties entered into a tenancy agreement whereby the appellant rented out its premises, the lis House No. B871/3, Asafoatse Nettey Road, Accra popularly known and called Akoza Plaza, to the respondent for 2 years at a monthly rent of US19,079.50, renewable at the option of the respondent. The respondent used the property as its city campus to house its students for educational purposes. The tenancy came into force on 1st August 2013 and was to end at the end of July, 2015. As recounted supra, it was a term of the tenancy agreement that the respondent was to give a 6 months’ notice if it did not intend to exercise the option of renewal. Additionally, the parties covenanted that the respondent was to deliver up the leased premises in good tenantable condition. The evidence however established that instead of the respondent giving the 6 months’ notice, it rather gave a 3 months’ notice to quit. Now, the respondent has stoutly argued that upon the expiry of the tenancy, it removed itself from the premises whereupon it made several attempts to hand over the keys to the premises to the appellant but in each case the appellant either refused to take them or it thwarted its efforts. It cannot be put to any serious doubt that handing over keys to demised property is symbolic and an indication that the premises has been restored to its owner. In the instant case the evidence is that it took 10 months for the respondent to hand over the disputed property to the appellant. Although the respondent had made some attempts to hand over the keys to the place to the appellant they admitted that they had not finished with the renovations when they attempted to hand over the keys. They acknowledged that they had to replace some broken louvres and do the tiling of external window. Indeed, the learned trial judge made a finding of fact that at the time the respondent claims it has removed itself from the premises it had defaulted in putting the premises in a tenantable condition it met at the beginning of the tenancy. The learned trial judge had found that some painting was to be done; removal of labels on doors had to be fixed; tiling of external window remained undone; some work has to be done on the washrooms on the 1st to the 5th floors, etc etc. It is worth reproducing some portions of the judgment and the findings of the lower court. The learned trial judge having referred to Clause 3(c) of Exhibit A [the covenant clause to repair] held: “By this, the tenant covenanted to deliver up to the landlord the premises in tenantable repair…………………………………........ ……………………………………………………………………........ From Exhibit U1, the estimate for the 1st floor wash rooms was assessed at Ghc4,360. The cost of renovating the 2nd floor washroom which is made up of the boys washroom and ladies washroom would total Ghc5,625. The cost of repairs under ‘whole building’ made of removal of bolts and screws embedded into wall, which had be plugged and repainted, removal of labels on doors and spraying same; paint touch-ups and tiling of external window has been summed up as Ghc7,440. I will say that though the defendant has not stated that they fixed and replaced the defects in the wash rooms on the 3rd, 4th and 5th floors as per Exhibit U1. Looking at the nature of defects set out in the said exhibit, they are the kind of damage expected and usual when premises have been used and in particular, a property used for a school campus the defendant had covenanted in Clause 3[c] that they will ‘keep the interior of the premises in as good and tenantable condition as existing at the commencement of the tenancy.” [emphasis ours] See: pp 231-232 of the record of appeal [roa] As a matter of fact, the lower court found that the whole building has to be worked on. The court stated again that the defendant has not satisfied it that those repairs had been done. The court therefore held that the appellant was entitled to, by way of damages, the cost of repair works in the sum stated in Exhibit U1 as Ghc26,990.00. The issue as to whether or not the respondent was still in possession was question of both of fact and law to be decided by the lower court. It was a question of law because on the authorities, possession in law meant 2 things: (a) effective physical control or occupation evidenced by some outward act sometimes called de facto possession or detention and was always a question of fact; (b) legal possession ie possession recognized and protected by law and which was characterized by animus possidendi together with that amount of occupation or control of the entire subject matter of which it was practically capable and which was ordinarily sufficient for practical purposes to exclude strangers from interference. See: Twifo Oil Plantation Project Ltd v Ayisi (1982-83) GLR 881. Legal possession was not the same as occupation which in ordinary language meant that the owner was in actual physical enjoyment of the house, property or estate by himself, his agents, or servants. Thus, occupation was a matter of fact and only existed where there was sufficient measure of control to prevent strangers from interfering. There should be something actually done on the land, not necessarily on the whole but a part in respect of the whole. See: Agyiman IV v Asamany (1984-86) 2 GLR 24. Possession in land law was used not in the popular sense of physical occupation of the land, but it included receipts of rents and profits or the right to receive same. See: Akoto v Gyamfi-Addo (2005-06) SCGLR 1018. It is also a question of fact because there ought to be evidence on record to show that the appellant completely took over the lis immediately the tenancy came to an end. There is overwhelming evidence in the instant appeal and as the lower court found, most parts of the disputed premises were in a state of disrepair at the end of the tenancy. Insofar as the respondent covenanted to deliver the property in tenantable condition but were in breach and had not taken proper steps to hand it over to the appellant, we are of the considered opinion that regardless that the tenancy came to an end in July 2015 technically speaking, the respondent continued in possession. As a general rule, a tenant was required to deliver up possession to his landlord at the end of the term. If he failed to do so, he would be liable for the continued use and occupation and might also be required to pay damages if any that had resulted from his failure to give up possession. See: Monta v Paterson Simons (Gh) Ltd [1982-83] 1 GLR 195. It bears emphasis that being a question of fact, the trial court had to determine whether the appellant took physical possession of the whole premises as soon as the tenancy was determined. There is no evidence on record in our present case to show that the appellant changed all the locks or keys to the premises as soon as the tenancy came to an end or that the respondent was prevented from carrying out any repairs thereon. It is, therefore, idle for the respondent to contend that their efforts to deliver the keys to the appellant was thwarted. We think the learned trial judge in our present appeal was very much obsessed with the technical terminologies of, and the differences in meaning in law as between possession and occupation. However, having regard to the state of disrepair on most portions of the premises and the findings the lower court itself made, we think the learned trial judge was clearly in error to have held, as appearing on p. 227 [roa], that the respondent was not in possession of the disputed premises when the evidence established that it took about 10 months after the determination of the tenancy for the keys to be properly handed over to the appellant. It needs reiterating that so long as all the repairs works and/or renovations the respondent was supposed to have carried out remained outstanding and equally important, the keys have not been properly handed over, technically speaking, the tenancy continued to run regardless that it came to an end at the end of July 2015. Suffice is to emphasize the law that the covenant to surrender the property in a tenantable condition was a separate covenant such that the grantor was entitled up to the time of re-entry to demand for rent whether or not the tenant has removed himself from the lis at the end of the tenancy. See: Mensah v Cofie (1991) 1 GLR 254. In Mensah v Cofie (supra) the lessee had covenanted to develop the demised land within 2 years of the grant. The court held that the covenant to develop the land was a separate condition such that the grantor was entitled up to the time of re-entry to demand for rent whether or not the lessee has developed the land. Consequently, we allow the appeal on grounds (a) and (b). The award of damages: We now proceed to consider ground [c] of the appeal. It is peculiarly important to re-emphasize that per Clause 3[c] of the tenancy agreement, Exhibit A the respondent covenanted that it shall deliver the disputed property in a tenantable condition as it was at the commencement of the tenancy. There is overwhelming evidence on record to support the findings of the lower court that the respondent breached the condition. Indeed, it also breached the term of the contract where it was supposed to have given 6 months’ notice if it did not intend to renew the tenancy upon its determination. Instead, the respondent gave 3 months’ notice. We do therefore agree with the trial court rightly held that the delay caused by the respondent in putting the premises in tenantable repair entitled the appellant to some measure of damages. The lower court then held: “Accordingly, the measure of damages for breach of covenant to repair the premises by a tenant should be the cost of putting the premises into the state of repair required by the covenant. Reference the case of Latimer and anor v Carney and others [2006] EWCA Civ. 147.” The trial court then proceeded to, and did award Ghc17,000.00 damages it described as reasonable compensation to the appellant. See: p. 230 [roa]. Before awarding damages, however, the learned trial judge had reasoned that the appellant carried the burden to mitigate its losses, yet the appellant rather looked on when the respondent had delayed to put the place in order and resorted to delay tactics by refusing to accept the keys to the premises until they agreed to do so in September 2016. The effect to the learned trial judge, was that the appellant never took action within a reasonable time to mitigate his losses. Now, learned Counsel for the appellant contends that damages awarded was far from compensatory because the agreed rent per month for the premises was US$19,079.50 and the appellant lost that quantum of amount when the respondent has not delivered it in a tenantable condition. In consequence, he calls for upward review of the award. Learned Counsel for the respondent, on the other hand, ironically argues that the respondent never breached any covenant to warrant the award of damages and or mesne profit. However, in another breadth Counsel supports the award of Ghc17000.00 general damages by the lower court. Counsel, with due respect, cannot approbate and reprobate at the same time. Osborn’s Concise Law Dictionary 8th ed p. 105 has described damages as compensation or indemnity for a loss suffered by a person following a tort or a breach of contract or breach of some statutory duty. Additionally, the award given for a loss that is incapable of precise estimation. See: Osborn’s Concise Law Dictionary supra, p. 136. Undoubtedly, the damages the lower court awarded in the instant appeal was that kind of damage which the law presumes to follow from the wrong complained of, and which therefore need not be set out in the plaintiff’s pleadings except if it was special damages. Now, having regard to the finding of the lower court that there was a breach of covenant by the respondent in giving notice of non-renewal of 3 months instead of 6 months’ notice as stipulated in the tenancy agreement, we do agree with the lower court that given the circumstances, the appellant was entitled to some damages. The evidence established that the appellant did some work on a portion of the property and rented out 2 rooms to some tenant. This clearly shows that the appellant did mitigate its losses. We do not intend to disturb the award of damages by the lower court given that the award was an exercise of judicial discretion and more particularly, when the appellant had also sued for mesne profits, which claim we shall discuss in a moment. Mesne profit: We notice on record that the appellant herein [plaintiff] sued for mesne profit in addition to an order for recovery of possession of the disputed property. The lis, Akosa Plaza is located at Asafoatse Nettey Road in the center of Accra that attracted as agreed rent per month, an amount of US$19,079.50 which respondent contract to pay to the appellant. As a matter of law, a plaintiff was not bound to claim mesne profit in an action which he sought to recover possession of land. If he sued first for possession alone, and recovered judgment, and issued execution thereon, such judgment and execution were no bar to, and subsequent action for mesne profits. See: Badu v Adampa (1976) 2 GLR 450 C/A By this legal authority, therefore, it was right for the the appellant to sue both for recovery of possession and mesne profit. Mesne profit is loosely defined to mean compensation for the use of the land from the date from which the possession has been demanded until it is given. It is said mesne profits is generally at the same rate as the pre-existing rent or at a fair rent. In a classic article, MAKING SENSE OF MESNE PROFITS: CAUSES OF ACTION published online by Cambridge University Press: 30/03/2021, source: https://www.cambridge.org, the learned authors, Charles Mitchell, Professor of Law of London University College, and Luke Rostill, Associate Professor of Property Law, Oxford University respectively, articulate the view that the cause of action of mesne profit is based on the assumption that the landlord would have made those profits himself if he had been in possession. It is a loss of the profits that the land would have made if he had leased the property. The cause of action is not only brought against some person that has trespassed unto the disputed land but that claims for mesne profits are now available where a person has occupied land even with the owner’s permission. See: Dean & Chapter of Canterbury Cathedral v Whilbread plc [1996] P. & C. R 9, 13 (Ch.). So, in an action for mesne profit the court is normally called upon to order the defendant to do the following: a. give the plaintiff possession of the premises/property; b. pay the unpaid rent and charge for use and occupation up to the date an order is made; c. pay rent and charge for use and occupation from the date of the order until the plaintiff recovers possession of the property; and d. pay the plaintiff’s costs of making the claim. See: Cambridge University Press: 30/03/2021, https://www.cambridge. org. As a matter of fact, the courts have made awards for “compensation for use and occupation” in contractual relationship where express or implied terms of contracts provided either the defendant paid a reasonable sum or a specified fixed amount. In Attorney-General v De Keyser’s Royal Hotel [1920] AC 508 @ 533 HL Lord Atkinson is credited with that acknowledgement that an award of damages for “use or occupation” may be made in a genuine contractual relationship between parties. It needs reiterating, the point therefore that mesne profit has been variously defined to mean rents or profit accruing to the landlord but which has been denied him by reason of some other person in possession of his land. In Bramwell v Bramwell [1942] 1 All ER 137 Goddard LJ, for eg., observed as follows: “………….. a claim for mesne profits can be joined with an action for the recovery of the land, and mesne profits is only another term for damages for trespass, damages which arise from the particular relationship of landlord and tenant.” The Nigerian Supreme Court speaking through Tobi, JSC in a lead judgment, in Odutola & anr v Papersack [Nig] Ltd (2006) 2 All N. L. R. 248 which decision the other justices concurred, propounded the law as follows: “The expression "mesne profits" is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession. (See Debs v Cenico Nigeria Ltd (1986) 3 NWLR (Part 32) 846). Mesne profits are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises, and which therefore he must pay over to the true owner as compensation for the tort which he has committed. (See African Petroleum Ltd v Owoduni (1991) 8 NWLR (Part 210) 391.) Mesne profits mean intermediate profits, id est profits, accruing between two points of time, that is between the date when the tenant ceases to hold the premises as a tenant and the date he gives up possession. (See Ayinke v Lawal (1994) 7 NWLR (Part 356) 263.)” [emphasis added] In our present case, the learned trial judge rightly referred to the Australian case of William & Bradley v Tobiasen [1955] SA SR 50 @ 52 which is a pointer to mesne profits as the pecuniary benefits deemed to be lost to the person entitled to possession of land, or rents and profits, by reason of his being wrongly excluded therefrom. But having stated correctly the principle of mesne profits, the lower court in the final analysis refused to apply it to the instant case. It reasoned that although the appellant complained of the delay the respondent caused in carrying out the repairs that per se did not prevent the appellant from completing the works and to rent it out to new tenants. In the premise, the court held that the appellant’s failure to rent the place cannot be attributable to the respondent. Was the lower court justified in disallowing the claim for mesne profit in the circumstances of the case? The evidence established that it took the respondent about 10 months to have properly handed over the keys to the disputed premises to the appellant. As we have held in this judgment, although the tenancy came to an end in July 2015, insofar as the respondent had not taken proper steps to hand over the keys to the demised property they were deemed to be still in possession. That being the case, we think that the appellant was prevented from receiving full rents or profits that would accrue for the use of the premises, as the case may be if the keys were properly handed over to the appellant. The lower court therefore erred when it held that the appellant was not entitled to the claim of mesne profits. In assessing mesne profits in the instant appeal, the decision of the Supreme Court in CFAO v Thome [1966] GLR 107 was a good and proper guide to us. In CFAO v Thome (supra), the parties had entered into a tenancy agreement whereby the plaintiff let a store and flats in his building to the defendant at an agreed rent. The agreement provided that the defendants were to surrender possession of the premises in good and tenantable condition at the determination of the tenancy. At the end of the tenancy, the defendants renewed the tenancy of the store only but could not surrender the flats apparently because they were not in good and tenantable condition so they sought to negotiate the rents. The negotiations however, failed. The parties then obtained expert advice as to how much it would cost to repair. The defendants having failed to effect the repairs, the plaintiff sued for: a) an order for possession of the flats in a state of repair and b) mesne profits till the date possession was given. The trial judge gave judgment for the plaintiff and ordered the defendants to surrender the flats in a state of repair and also pay mesne profits until such time possession was delivered but the defendants appealed. The Supreme Court held, dismissing the appeal: “Where the rent was not agreed, mesne profits ought to be based on the former rent if it represented a fair value of the premises; but if the real value was higher than the rent, then mesne profits ought to be assessed on the higher value.” At the risk of sounding repetitive, having regard to the finding in the instant case that the respondent continued in possession for 10 months before properly handing over the leased premises, it is obvious that the appellant would have made some profits in the nature of rent that could have accrued to it if had hired that huge property consisting of 5 floors to new tenants for the period. We are of the opinion, therefore, that the learned trial judge fell in error when she refused to uphold the appellant’s claim for mesne profits. In assessing mesne profits against the backdrop that the appellant was earning US$19079.50 a month from the demised property, we shall multiply the rent previously earned by the 10 month period. This sums up to US$190,795.00 which we convert into Ghana cedis. The rent/profits became due in 2016. So, it is reasonable to use the forex exchange rate at the time which to be conservative, was about Ghc5.00 to a dollar and that equals to Ghc953,975.00. [$190795.00 x Ghc5.00 x 10 months]. We shall scale the figure down by 1/3 to allow for contingencies such as non-likelihood of the appellant securing new tenants for the whole 5 floor premises the very time the tenancy came to an end. This comes to a total of Ghc635,963.00. Being rent of commercial value, it is subject to rent tax. Per S. 115 of the Income Tax Act, 2015 [Act 896] withholding tax on commercial rent attracts 15% and this sums up to Ghc95,394.45. When the withholding tax of Ghc95394.45 is subtracted from Gh635,963.00 that sums up to Ghc540,568.00. This figure, Ghc540,568.00 is further scaled down to Ghc500,000.00 this court having taken into further account other statutory obligations a land owner has to comply with, for e.g., property rate levied by Accra Metropolitan Assembly [where the lis is situate and operate therefrom]. There are other statutory fees to be paid, for eg., on filing annual returns at the Office of the Registrar’s Companies [Registrar-General’s]. In consequence, we allow this other ground of appeal and enter judgment for the appellant in the sum of Ghc500,000.00 on mesne profits. The appeal succeeds and it is hereby allowed but in part, in that the claim for recovery of possession is disallowed as is now moot. The evidence is that the appellant is now in legal possession. We do not disturb the award of general damages by the lower court, taking account the award of mesne profits. Agreed costs of Gh¢10,000 to the plaintiff/appellant. SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD JENNIFER DODOO (MRS) (JUSTICE OF APPEAL) I agree I also agree Counsel Baffour Asare-Korang for Plaintiff/Appellant Benedicta Akita with Maame Dufie Adu Gyamfi for Respondent 25