INTERPLAST LTD. vs. BONSU [1978]DLCA1146

Date	1978-07-10
Suit No.
Citation No.	[1978]DLCA1146

APALOO C.J.

KINGSLEY-NYINAH JA

FRANCOIS J.A.

[1978]DLCA1146
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													<main id="main" class="content" style="min-height: 60rem" >INTERPLAST LTD. <o:p></o:p>vs. <o:p></o:p>BONSU<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 285<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:
10 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">

<o:p>&nbsp;</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., KINGSLEY-NYINAH AND
FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>The
respondent is the owner of business premises situate in Accra. On 1 July 1975,
he, by deed, demised part of the premises to the appellant-company (which I
will hereafter call the company) for a term of five years certain with an
option for renewal. The subject of the demise was described as a “four door
store” in house No. C.89/2, Liberty Avenue, Adabraka. The lease reserved a
“yearly rent of ¢1,440” payable quarterly in advance in the sum of ¢360.<o:p></o:p>The lease
then contained the usual covenants which it is not necessary to quote except
clause 4 (a), that being the clause which was admittedly breached to give rise
to this action. That clause is couched in familiar language and is as follows:<o:p></o:p>“Provided
always and it is hereby agreed and declared: (a) That if the rent hereby
reserved or any part thereof shall remain unpaid for 30 days after becoming due
for payment and shall have been demanded by the landlord in writing or if the
tenant shall fail to comply with any of the convenants herein contained on its
part, the landlord will only in such a case have the right to re-enter the
demised premises in the name of the whole and thereupon determine the tenancy
hereby created but without prejudice to any right of action or remedy of the
landlord in respect of any antecedent breach of any of the covenants by the
tenant herein contained.”<o:p></o:p><o:p>&nbsp;</o:p>The
company failed or neglected to pay rent for six quarters ending 31 December
1976. According to the respondent, although he made a written demand for this,
the company made default. Accordingly, on 23 February 1977, the respondent
issued a writ in the circuit court claiming “possession of all that four door
store on the ground floor of the premises known as house No.134 (formerly C.
89/2), Liberty Avenue, Accra.”<o:p></o:p><o:p>&nbsp;</o:p>The
evidence shows that the letter by which the respondent demanded the payment of
rent was dated 7 February 1977. When this was brought to the notice of one of
the directors of the company, he sought to verify the claim. He was satisfied
that owing to oversight, payment of the rent was not made. Accordingly, a
cheque dated 23 February 1977, was issued in favour of the respondent for the
sum of ¢3,240 (three thousand two hundred and forty cedis). The rent then due
and unpaid covered the period October 1975 to December 1976. The payment
offered by the company to the respondent extended up to December 1977. The
respondent declined to receive payment and relied on his right to re-enter the
demised premises in accordance with clause 4 (a) of the agreement.<o:p></o:p><o:p>&nbsp;</o:p>As the
defence was in the nature of a confession and avoidance, the respondent took
out a summons under Order 14, rr. 1 and 2 of the High Court (Civil Procedure)
Rules, 1954 (L.N.140A), and sought liberty to sign judgment against the company
on the ground that the defence filed discloses no defence to the action.
Although the writ claimed both possession for non-payment of rent and arrears
of rent, the judgment summons merely sought liberty to sign judgment in this
action against the defendant “for the sum claimed on the writ of summons” On 26
May 1977, legal argument was addressed to the court on the summons. The
respondent took the position that as the rent was in arrears for a year and a
half, he was entitled to exercise his right of re-entry and that on the
company’s own admission, it had failed to pay the rent at the stipulated time
and its excuse of oversight was no defence in law. The company for its part,
argued that it had tendered the rent in full to the respondent when it realised
that due to an “administrative oversight” it had not made payment but that when
the respondent refused to accept this, it paid it in full into court.<o:p></o:p>The
learned circuit judge found for the respondent and decreed possession of the
premises and delivered himself 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">“The
defendants, however, contended that the non-payment of rent for eighteen months
was due to an administrative oversight; this is no defence to this action. It
is quite clear from their defence and the affidavit asking for leave to defen</main>