BOATENG vs. DWINFUOR [1978]DLCA1135

Date	1978-07-27
Suit No.
Citation No.	[1978]DLCA1135

APALOO C.J.

ANIN JA

FRANCOIS J.A.

APPELLANT IN PERSON.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1978]DLCA1135
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													<main id="main" class="content" style="min-height: 60rem" >BOATENG <o:p></o:p>vs. <o:p></o:p>DWINFUOR<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 360<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:
27 JULY 1978<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">

APPELLANT IN PERSON.<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;
padding:0in 0in 0in 0in">

APALOO C.J., ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>The
plaintiff’s case was simple and straightforward. She claimed to have bought
house No. ZR 75, Bekwai, from its owner, Mr. George Kwasi Awuah of Essumangya
for the sum of ¢1,660 for her personal occupation; and that she was accordingly
entitled to an order of possession and ejectment against the defendant whom she
described in her specially endorsed writ of summons as a statutory tenant.
There was no accompanying statement of claim: but in her evidence-in-chief she
made the important revelation that “the defendant was living in the house as a
tenant at the time I bought the house. The defendant, I know was paying ¢14 to
Awuah as rent for his occupation of the house.”<o:p></o:p>After
purchasing the house, the plaintiff invited the defendant as sitting tenant to
see her to discuss arrangements for his vacation of the premises; but he
declined her invitation. She therefore had to resort to this action to recover
possession, arrears of rent and mesne profits.<o:p></o:p><o:p>&nbsp;</o:p>Under
cross-examination, the plaintiff admitted knowledge that the defendant runs a
clinic in the disputed house; but she disclosed that it was after purchasing
the house that the owner told her the amount of monthly rent being paid by the
tenant. She herself never interviewed him about his tenancy; neither did the
sitting tenant present her with any bill for structural repairs allegedly
carried out by him on the house at his own expense. To her knowledge, the 40
year-old house had been always habitable; as matter of fact, there were
previous tenants living there before the defendant moved in.<o:p></o:p><o:p>&nbsp;</o:p>In
support of her case, the plaintiff tendered in evidence, firstly, a stamped
receipt for ¢1,660 dated 9 February 1974 issued to her by the vendor (exhibit
A); secondly, a deed of sale (No. 2561/75) executed on 8 January 1974 but
registered on 9 December 1975 (exhibit B); and thirdly, a six-months’ notice to
quite dated 22 July 1974 issued upon her instructions by her solicitor and
addressed to the defendant at “Zongo Hill Clinic, Bekwai.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant resisted the action on the ground that in 1970, that is, four years
before the plaintiff’s alleged purchase, he concluded a verbal tenancy
agreement with the owner (Mr. G. K. Awuah) through his agent in Bekwai, Mr.
Agyepong. Under this agreement, he was obliged to repair, at his own initial
expense, the then delapidated house and to convert it into a good tenantable
house suitable for use as a clinic. The monthly rent payable was fixed at ¢14;
and the tenancy was of an indefinite duration, terminable at his option. It was
further agreed that the owner and the tenant should later go into accounts to
ascertain the tenant’s expenditure on repairs; and that upon the taking of
accounts, the defendant was to recoup himself for his initial outlay on repairs
from accruing rent. The defendant revealed in evidence that the verbal tenancy
agreement was sealed with a bottle of schnapps presented to the landlord; and
that Mr. Awuah used it in pouring libation for the success of the business
venture in the house. The defendant alleged having completed his part of the
contract and carried out extensive repairs costing him ¢1,474.20. He had
entered into possession of the demised premises on 5 May 1970, after they had
been certified fit and suitable for a clinic by the health authorities. At the
time of the action he had been in continuous possession for 60 months; and Mr.
Awuah, his landlord, owed him a net balance of ¢662.29, after taking into
account his said repair bill and allowing for accrued rent of ¢840, and water
rate of ¢28. He had not paid any rent to the plaintiff simply because he did
not recognise her as his landlord.<o:p></o:p><o:p>&nbsp;</o:p>The pith
and substance of the statement of defence was contained in paragraph (6) which
reads:<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">“The
defendant says that the plaintiff has express imp</main>