DHALOMAL vs. PUPLAMPU AND OTHERS [1985]DLCA905

Date	1985-07-15
Suit No.
Citation No.	[1985]DLCA905

APALOO CJ

EDWARD WIREDU JA

OSEI-HWERE JA

KWAKYE FOR THE APPELLANT.

E V A ADJETEY FOR THE RESPONDENT.

[1985]DLCA905
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DHALOMAL <o:p></o:p>

{COURT OF APPEAL} <o:p></o:p>

[1984-86] 1 GLR 341<o:p></o:p>

DATE:
15 JULY 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWAKYE 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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APALOO CJ, EDWARD WIREDU AND OSEI-HWERE JJA<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE JA.<o:p></o:p>The late Lawyer
Ate Puplampu held four rooms on the first floor of house No 513/4, Derby
Avenue, Accra as tenant of the plaintiff (hereinafter referred to as the
appellant) which he used for his law practice. The rooms were let out in 1969
on what appears to be an oral monthly tenancy. The rooms were described as Nos
2, 3, 4 and 5.<o:p></o:p><o:p>&nbsp;</o:p>On the
death of Lawyer Puplampu on 14 May 1979, the appellant requested the head of
his family to wind up his affairs and hand over the possession of the four
rooms to him as he believed the tenancy had come to an end with his death. He
discovered that the clerk to the late Lawyer Puplampu, the third and the fourth
defendants had occupied rooms 2, 3 and 4 and the second defendant had occupied
room 5. By 4 September 1980 (some fourteen months after the lawyer’s death) the
appellant had not recovered possession of the rooms and so he caused his
solicitor to write to the head of family (exhibit A). Exhibit A complained
about the change of user of the rooms and of the rent arrears and warned that
the appellant would exercise his common law rights to recover the rooms.
Following exhibit A, the head of family released two of the four rooms (Nos.2
and 3) and promised to release the other two rooms within a few months. It
would seem that the head of family could not take any positive steps to
surrender the other two rooms occupied by the third and second defendants
because he had not been clothed with any letters of administration to interfere
in the matter. Letters of administration were subsequently granted to him on 19
September 1980.<o:p></o:p>In the
meantime the appellant caused his solicitor to serve notice on the second
defendant to vacate the room he occupied within 30 days. Exhibit C is the
written notice dated 4 September 1980 which stated that the second defendant
had been occupying the room without leave and licence. The second defendant
failed to vacate the room on the expiry of the 30 days’ notice and so the head
of family, who was obviously in a position to act, wrote on 10 November 1980 to
the second defendant calling on him to quit after 30 days. When every effort to
get the second defendant, particularly, to give up possession had failed the
appellant slapped his writ on the defendants.<o:p></o:p><o:p>&nbsp;</o:p>When the
case came before the trial circuit judge only the second and third defendants
filed a defence. The defence of the third defendant disclosed no defence in law
as it failed to show in what capacity he occupied the room. At the trial, he
failed to give evidence although his counsel cross-examined the appellant. In
spite of this and also of the total failure of the first and fourth defendants
to enter any appearance the trial judge curiously dismissed the appellant’s
action against them and awarded costs even in favour of the third defendant.
The appellant was content to fling down the gauntlet at the second defendant
before us as the third defendant has surrendered his possession.<o:p></o:p><o:p>&nbsp;</o:p>The case
of the second defendant (hereinafter referred to as the respondent) was that in
1970 the late Puplampu sublet one of the rooms to him to use as his main
office. Before he accepted him as a sub-tenant he was introduced to the
plaintiff as a sub-tenant at a rent of ¢300 a month. The plaintiff raised no
objection and with this approval he took up occupation and paid his rents.
After the death of Puplampu he approached the appellant to pay rent to him but
he refused to accept it saying that he wanted the room for his restaurant and
he even offered him a room downstairs. He refused this room because the
appellant was using it as a dumping room. The appellant caused his solicitor to
write to him and as he had no place to move to he offered to pay a higher rent.
The appellant took him to the rent office and whilst the case was still pending
he received the appellant’s writ of summons.<o:p></o:p><o:p>&nbsp;</o:p>