PUNJABI BROTHERS vs. NAMIH [1962]DLSC1686

Date	1962-07-13
Suit No.
Citation No.	[1962]DLSC1686

KORSAH JSC

C.J. JSC

VAN LARE JSC

ADUMUA-BOSSMANJ.S.C.

J. REINDORF FOR THE PLAINTIFFS-APPELLANTS.

N.Y. B. ADADE FOR THE DEFENDANTS-RESPONDENTS.

[1962]DLSC1686
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">PUNJABI BROTHERS<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NAMIH <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1962] 2 GLR 46<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 13TH JULY, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

J.
REINDORF FOR THE PLAINTIFFS-APPELLANTS.<o:p></o:p>

N.Y.
B. ADADE FOR THE DEFENDANTS-RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

KORSAH, C.J., VAN LARE AND
ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
ADUMUA-BOSSMAN J.S.C.<o:p></o:p>This appeal is against a judgment dated the 2nd November, 1960, of
the High Court, Kumasi (Simpson, J.) whereby the court dismissed claims for
four separate reliefs under four different grounds or causes of action made by
the plaintiffs-appellants before this court (who henceforth will be referred to
by their firm name “Punjabi Brothers”) against the defendants-respondents (who
will similarly be referred to by their name “Namih Brothers”). For reasons
which will hereafter become apparent, it seems desirable to set out the claim
fully as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(a) A declaration by the court that the judgment recovered by
defendants herein against plaintiffs herein on or about the 5th day of
November, 1957, in suit No. D.C. 68/57 entitled Elias and John Namih versus
Punjabi Brothers is null and void and cannot stand as res judicata against
plaintiffs so as to defeat plaintiffs’ claim in the present suit, on the
grounds of fraud, misrepresentation and mistake. (b) A declaration that as from
the 1st day of April, 1957, plaintiffs became statutory tenants of the premises
comprised of one four door-store in house No. O.T.B. 143/145 Bogyawi Street,
Kumasi. (c) Possession of the said premises. (d) Damages, assessed at £G33,500,
whereof<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(i) £G3,500 is special damages for deceit; or, in the alternative,
money that plaintiffs are entitled to recover from defendants under the Rent
Control Ordinance, 1952; or, in the alternative, damages for total failure of
consideration on the agreement between plaintiffs and defendants dated 14th
November, 1957. (ii) £G15,000 is general damages for deceit, and (iii) £G15,000
is damages for trespass to the said premises.”<o:p></o:p><o:p>&nbsp;</o:p>The events or occurrences which led to the institution of the
action are in the main undisputed and they are these: The father of the
defendants-respondents, called Moses Namih, was the party who sub-let and gave
possession of one store having four doors in what was then his leasehold
premises No. 143/145 O.T.B., Kumasi, to Punjabi Brothers. The sub-lease was for
a period of ten years as from the date of the instrument, the 27th March, 1947.
After making this sub-lease, however, the father or by deed of gift dated the
13th August, 1956, assigned all his right, title and interest in the premises
to his two sons, the defendants-respondents. They accordingly notified Punjabi
Brothers of the transfer of their father’s interest in the premises to them and
requested payment of future rents to them, and Punjabi Brothers thereupon
commenced and continued paying rent to them till the end of the period of the
sub-lease, the 27th March, 1957. A few days after the expiration of the
sub-lease, namely on the 4th April, 1957, a writ of summons was issued by
counsel on behalf of the Namih Brothers whereby claim was made against Punjabi
Brothers for: (a) ejectment order and recovery of possession of the store the
subject-matter of the expired sub-lease, and (b) mesne profits from the 27th
March, 1957, till possession be delivered up to them (Namih Brothers). By
judgment delivered on the 5th November, 1957, the court gave judgment in favour
of the plaintiffs in the action (Namih Brothers) and ordered delivery up of
possession of the store to them. Two days after, on the 17th November, 1957,
notice of appeal against the judgment was filed on behalf of Punjabi Brothers,
together with a motion praying for stay of execution pending hearing of the
appeal. The motion came to be heard on the 11th November, 1957, and was
refused. The record of the proceedings resulting in the ejectment order against
Punjabi Brothers is exhibit A in this action. After the dismissal of the motion
the parties appear to have approached each other and ultimately came to an
agreement which was reduced into writing and signed on the 14th November, 1957,
the terms of which will be considered later in this judgment. For the time
being it will be sufficient to state that the substance of it was that Punjabi
Brothers agreed to withdraw the appeal which they had caused to be filed for
them, and Namih Brothers agreed to allow them to continue in occupation of the
store for three months, “rent-free,” at the end of which period they (Namih
Brothers) undertook to grant to Punjabi Brothers a new lease of the store,
“provided that terms and conditions are mutually satisfactory to the parties.”
Before the signing of this agreement, Namih Brothers insisted that Punjabi
Brothers should pay the sum of £G3,500 and it was not till the amount had been
paid that they signed the agreement, whereby Punjabi Brothers were left
unejected from the store for a period of three months. Thereafter no new lease
was granted, with the result that as soon as the period of three months
stipulated in the agreement (exhibit G) came to an end, Namih Brothers by
letter dated the 25th February, 1958, demanded surrender of possession, and on
the 28th March, 1958, Punjabi Brothers were evicted by officers of the court
and they (Namih Brothers) put in possession. This led to the institution of the
action resulting in this appeal.<o:p></o:p>