DARKO vs. BAISIE AND ANOTHER [1964]DLSC1892

Date	1964-05-04
Suit No.
Citation No.	[1964]DLSC1892

SARKODEE-ADOO C.J

ACOLATSE JSC

APALOO J.S.C.

ANNAN FOR THE APPELLANT.

AMOO-LAMPTEY (WITH HIM OKINE) FOR THE RESPONDENTS.

[1964]DLSC1892
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													<main id="main" class="content" style="min-height: 60rem" >DARKO<o:p></o:p>&nbsp;vs. <o:p></o:p>BAISIE AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 271<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
4 MAY 1964.<o:p></o:p>

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

ANNAN FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SARKODEE-ADOO C.J., ACOLATSE AND APALOO
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>Apaloo
J.S.C. delivered the judgment of the court. In order to appreciate the legal
argument which was addressed to us on this appeal, it is necessary to state the
facts which were found by the learned trial judge and which, as I understand
it, are not in issue on this appeal.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff is the owner of house No. 152/7, Kokomlemle, Accra. The evidence
shows that the house is a storey building containing two self-contained flats
and an outhouse. The plaintiff let the whole of the premises to a Mr. Quaidoo
prior to October 1959. In October 1959, Mr. Quaidoo sublet the ground floor
flat to the second defendant. It would seem that about that time, he also
sublet the outhouse to one Adjei; accordingly, Mr. Quaidoo himself occupied the
top floor. The evidence shows that this subletting was known to the plaintiff
or at least her husband Mr. B. A. Darko who acted at all times as her agent.
The plaintiff at no time made any issue of that and it is reasonable to
conclude that there was no agreement by Quaidoo not to sublet.<o:p></o:p><o:p>&nbsp;</o:p>It
appears that Mr. Quaidoo in the meantime erected a house of his own and moved
into it at the end of December 1959. Accordingly, the top floor became vacant.
The first defendant was desirous of becoming a tenant of the vacant flat. The
plaintiff for her part, was willing to accept him as a monthly tenant on
condition that he became head tenant and paid by banker’s order direct to her
account, the monthly rent of £G60. The first defendant said, that as he was
hard pressed for accommodation, he had no alternative but to agree. He thus
became the head tenant of the whole premises from March 1960. The second
defendant and Mr. Adjei became his sub-tenants and paid rents to him. This
state of affairs continued until the end of March 1961. In February 1961, the
first defendant was allocated a government bungalow. He therefore gave the
plaintiff notice of his intention to quit at the end of March. He did so on
that day, and the court accepted his evidence that he duly delivered the keys
to the plaintiff’s husband and agent at the determination of the tenancy.
Accordingly, the learned trial judge held that the first defendant effectively
gave up possession of his portion of the premises at the close of March and was
not liable for rent accruing thereafter. She also found that the second
defendant paid his rent regularly to the plaintiff’s account and was not in
arrears at the date of the issue of the writ. She therefore concluded that the
case failed against both defendants and proceeded to dismiss it.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the plaintiff relying on the cases of Henderson v. Squire1 and Guthrie v.
McCrindle,2 submitted in the court below, that as the first defendant was the
head tenant of the whole of the premises, he was under an implied contractual
obligation to restore possession of the whole of the premises to the plaintiff
at the determination of the tenancy. It was said he failed to do so as the
sub-tenants still remained in possession. Accordingly, it was submitted, that
the first defendant was liable to pay rent for the period in which the
sub-tenants remained in the premises. It is that sum that the plaintiff sought
by this action to recover.<o:p></o:p><o:p>&nbsp;</o:p>Whether
or not this contention commended itself to the learned trial judge, it is
difficult to say. She did not pronounce on the validity or otherwise of this
argument and made no reference to either of the cases cited to her in her
judgment. That seems to be the basis of the plaintiff’s grievance and the
gravamen of her complaint to this court.<o:p></o:p>No less
than six grounds of appeal were filed but the same complaint is made in all
these grounds in varying language. In the main, the legal argument addressed to
the court below was reiterated before us and the same cases were cited before
us as in the court below. The ground of appeal which seems to me to embody the
sum total of the legal argument advanced to us is ground (1). It reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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