BANNERMAN AND OTHERS vs. FRETETE ODOMANKOMA JEWELLERY LTD. [1985]DLCA552

Date	1985-12-07
Suit No.
Citation No.	[1985]DLCA552

OSEI-HWERE J.S.C.

LAMPTEY J.A

ESSIEM J.A.

KWAKU BAAH FOR THE DEFENDANTS-APPELLANTS.

OWUSU YEBOAH (WITH HIM BLAY) FOR THE PLAINTIFFS-RESPONDENTS.

[1985]DLCA552
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													<main id="main" class="content" style="min-height: 60rem" >BANNERMAN AND OTHERS <o:p></o:p>vs. <o:p></o:p>FRETETE ODOMANKOMA JEWELLERY LTD. <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90] 1 GLR 534<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:
7 DECEMBER
1989<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">

KWAKU BAAH FOR THE DEFENDANTS-APPELLANTS.<o:p></o:p>

OWUSU YEBOAH (WITH HIM BLAY) FOR THE
PLAINTIFFS-RESPONDENTS.<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">

OSEI-HWERE J.S.C., LAMPTEY AND ESSIEM
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.S.C.<o:p></o:p>Olinto
Magrini is a two-faced clock or, simply put, a double-dealer. By “an agreement
of co-operation” (exhibit 3) entered into on 8 December 1981, he and one Renato
Gentillezza, a fellow Italian, agreed to establish a jewellery shop in
co-operation with and under the registered name of a company called Fretete
Odomankoma Jewellery Ltd. in house No. F 739/3, Cantonments Road, Osu (R.E.),
Accra. That same day the said company took a sublease of the said premises for
a period of ten years certain from Renato Gentillezza and one Dr. Alfred Tawiah
Darko, the head lessees. Olinto Magrini was a signing witness to this sublease,
exhibit A. A huge investment had been sunk into the building by way of
renovations to fit it for a jewellery shop.<o:p></o:p><o:p>&nbsp;</o:p>The
company started their business in style but the 31 December 1981 coup
immediately smothered their aspirations. The company themselves euphemistically
described the complete halt to their operations as “temporary slow down of
activities” and ascribed the reason as “temporary financial squeeze experienced
by the shareholders.” Be that as it may, during this period of inactivity
Olinto Magrini was permitted complete control of the premises whilst the company
kept on discharging their rent obligations. Now, unknown to the company, the
self same Olinto Magrini set up a rival jewellery company called Sital Bijoux
which he installed in the same premises despite the subsistence of the sublease
in exhibit A. This galvanised the company who, by their amended writ, sued
claiming against the defendants jointly and severally the following reliefs:<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) ¢8
million damages against the defendants jointly and severally for their undue
interference in the plaintiffs’ use of house No. F 739/2, Osu (R.E.) and
unlawful conversion of the plaintiffs’ assets and resources in the said house.
(b) A declaration that the plaintiffs cannot be ejected from house No. F 739/2,
Osu (R.E.) without the due process of law until the expiry of the sublease the
plaintiffs hold over the said house. (c) An injunction against the defendants
from interfering in whatsoever manner with the plaintiffs’ use and peaceful
enjoyment of house No. F 739/2, Osu (R.E.), Accra until the expiry of the
sublease. OR IN THE ALTERNATIVE (a) ¢100 million representing the current value
of the plaintiffs’ investment in house No. F 739/2, Osu (R.E.) made in
consideration of the plaintiffs’ ten-year sublease of the said premises dating
from 1981. (b) ¢8 million damages for loss of business suffered by the
plaintiffs as a result of the unlawful interference by the defendants with the
plaintiffs’ interest in and peaceful possession and enjoyment of the said
premises. (c) Any further reliefs.”<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant is the widow and sole administratrix of the estate of the late Mr.
Justice Edmund Bannerman who died on 27 June 1983. House No. F 739/2 is one of
the properties in his estate. This house, as the evidence went, had behind it a
history of neglect and disrepair until Dr. Alfred Tawiah Darko, the third
plaintiff witness, who seemed to have a penchant for promoting Italo-Afro
connections became associated with it in about 1969. It was then used as a
hairdressing saloon which he took over from the proprietor. Later he decided to
convert it into a clinic but as the repairs involved were beyond his financial
means he took on one Mutti Guiliano as a partner and secured a second lease,
exhibit F, for five years from the landlord. Mutti Guiliano died shortly after
the lease had been obtained without assisting much in the development and so he
sought another partnership with Renato Gentillezza, the second plaintiff
witness. Both of them were granted by the landlord a lease of four years (being
the unexpired term in exhibit F). This four year lease was tendered as exhibit
1A, and it was to run from 1 May 1981 and to expire (by computation) on 30
April 1985. Like the lease in exhibit F, exhibit 1A provided an option clause
for renewal of the lease for a further term of five years.<o:p></o:p><o:p>&nbsp;</o:p>The third
plaintiff witness had agreed with the second plaintiff witness (upon the
consent of the landlord) to convert the premises into a jewellery shop. It was
pursuant to this that the landlord agreed to convey a joint lease to the third
and second plaintiff witness. They embarked on the restructuring of the house.
Owing to the magnitude of the work and the rising cost involved they negotiated
with the landlord for a ten-year lease to replace the four years with the
option. The landlord agreed and the ten-year lease agreement was executed. They
now decided that for the jewellery business to be run on a more sound and
financial basis, there should be </main>