MONTA vs. PATERSON SIMONS (GHANA) LIMITED [1981]DLHC2157

Date	1981-11-13
Suit No.
Citation No.	[1981]DLHC2157

AMUA-SEKYI J.

BROBBEY FOR THE PLAINTIFF.

MENSAH-BONSU FOR THE DEFENDANTS.

NO APPEARANCE BY OR ON BEHALF OF THE THIRD PARTY.

[1981]DLHC2157
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													<main id="main" class="content" style="min-height: 60rem" >MONTA <o:p></o:p>vs. <o:p></o:p>PATERSON SIMONS (GHANA) LIMITED <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1982-83] GLR 195<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:
13 NOVEMBER
1981<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">

BROBBEY FOR THE PLAINTIFF. <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 1.0pt 0in">

AMUA-SEKYI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.<o:p></o:p>The
original plaintiff, Joseph Monta, was the sub-lessee of plot Nos. 3, 4, 24 and
25, Amakom Abrotia New Layout, Kumasi, for a term of 45 years commencing from 1
January, 1940. Having developed the plots, he in turn, on 14 December 1960,
granted a sub-lease to the defendants, Paterson Simons (West Africa) Ltd., a
company incorporated in the United Kingdom and now Paterson Simons (Ghana)
Ltd., for a term of fifteen years from 1 December 1960, at a rent of 5,100
pounds per annum. A proviso gave the defendants the right to determine the
sub-lease at the end of the first ten years of the term upon giving not less
than six months’ written notice. On 14 May, 1970 the defendants informed the
plaintiff by letter that they intended to determine the sub-lease from 1
December 1970 and gave notice to other firms to which they had sub-let parts of
the premises. All the sub-tenants, except one J. K. Agbemabiase, gave up
possession to the plaintiff. The cost of effecting repairs to the premises, except
the portion in the occupation of Agbemabiase, was agreed upon and settled by
the defendants. The defendants also paid all rents up to 30 November 1970.<o:p></o:p><o:p>&nbsp;</o:p>It was
the case for the plaintiff that because the defendants failed to give him
complete possession they remained his tenants after 30 November 1970 and he
brought this action claiming an order for possession, rent or, in the
alternative, mesne profits, up to the date of issue of writ, mesne profits from
the date of issue of writ up to such time as they should deliver up complete
possession, and damages for breaches of covenants. The present plaintiff was by
an order of this court substituted for the original plaintiff who died on 3
June 1977.<o:p></o:p><o:p>&nbsp;</o:p>It is the
case for the defendants that they ceased to be sub-lessees from 1 December 1970
and are therefore not liable to pay rent. Any rent due must be paid by their
sub-lessees who became statutory tenants of the plaintiff on holding over after
the determination of the defendants’ sub-lease. As to the claim for damages,
the defendants deny the alleged breaches and, in the alternative, say that such
breaches were waived by the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The
general rule of law is that a tenant is required to deliver up possession to
his landlord at the end of the term. If he fails to do so he will be liable for
the continued use and occupation, and may also be required to pay damages if
any has resulted from his failure to give up possession. In this regard, it is
immaterial that the failure arises, not from his own act, but from the act of a
third person whom he has put in a part or the whole of the premises, and who
wrongfully refuses to give up possession. In Harding v. Crethorn (1793) 1 Esp.
57 Lord Kenyon put it thus:<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">“When a
lease is expired the tenant’s responsibility is not at an end; for if the
premises are in possession of an under-tenant, the landlord may refuse to
accept the possession, and hold the original lessee liable; for the lessor is
entitled to receive the absolute possession at the end of the term.”<o:p></o:p><o:p>&nbsp;</o:p>In Ibbs v.
Richardson (1839) 112 E.R. 1436 it was held that the landlord was entitled to
recover from the tenant rent for the period he was kept out of possession by an
under-tenant wrongfully holding over at the expiration of the lease and against
the wishes of the tenant. Said Littledale J. at p. 1437.<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">“No doubt
the ordinary course under these circumstances would be to bring ejectment; but
the plaintiff may waive the tort, and sue for use and occupation; or he might
have m</main>