S. A. TURQUI & BROS vs. DAHABIEH [1988]DLCA802

Date	1988-04-21
Suit No.
Citation No.	[1988]DLCA802

TAYLOR J.S.C

OSEI-HWERE JA

ESSIEM J.A.

NANA TABI-AMPONSAH FOR THE APPELLANTS.

EMMANUEL AMPADU (FOR DR. W. C. EKOW DANIELS) FOR THE RESPONDENT.

[1988]DLCA802
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													<main id="main" class="content" style="min-height: 60rem" >S. A. TURQUI &amp; BROS<o:p></o:p>&nbsp;vs. <o:p></o:p>DAHABIEH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 486<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 21
APRIL 1988<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">

NANA TABI-AMPONSAH FOR THE APPELLANTS. <o:p></o:p>

EMMANUEL AMPADU (FOR DR. W. C. EKOW DANIELS) FOR
THE RESPONDENT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>This
appeal has been brought to test the legality of one High Court judge’s order
setting aside an ex parte judgment in default of appearance given by another
High Court judge in a suit No 104/75 which was ostensibly instituted at the
High Court, Accra against the two plaintiffs-respondents herein for the
recovery of the possession of a store. The first plaintiff-respondent is one
Nasib Dahabieh, an alien trader normally resident in Ghana and carrying on
business alone within the jurisdiction under the name and style: “Technical
Trading Co.” The second plaintiff-respondent herein is the said Technical
Trading Co, the registered company name under which as I have already pointed
out, the plaintiff Nasib Dahabieh carried on his individual business. The
defendants-appellants herein who instituted the said suit No 104/75, S.A.
Turqui and Bros, are a partnership firm operating in Ghana and their members
are also aliens.<o:p></o:p><o:p>&nbsp;</o:p>The
undisputed facts which led up to the commencement of proceedings in suit No
104/75 are that some time in June 1966 Nasib Dahabieh trading under the name
and style of Technical Trading Co took possession from S.A. Turqui and Bros for
the purpose of his business their premises No. 61, Kojo Thompson Road, Accra at
a monthly rent of ¢240. There was no lease or any written agreement evidencing
the transaction. However on 29 June 1974 after Nasib Dahabieh had occupied the
premises for about eight years, S. A. Turqui and Bros wrote a letter addressed
to the General Manager of Technical Trading Co notifying him that they needed
the premises for their own business use and were by that letter giving the
Technical Trading Co six months’ notice allegedly under the Rent Act, 1963 (Act
220). Accordingly, in the letter they requested that the keys should be
surrendered to them “six months from the date of the notice, i.e. 31 December
1974 or any earlier date.” In evidence Nasib Dahabieh averred that he saw one
of the partners of S.A. Turqui and Bros in the early part of September 1974 and
informed him that it was not possible for him to give up possession, having
regard, inter alia, to his business prospects and the expenses he had incurred
in putting the premises in a fit condition for his business. He indicated to
the said partner that he would be travelling and would discuss the matter
further on his return. The partner in his evidence denied that Nasib Dahabieh told
him he would travel.<o:p></o:p><o:p>&nbsp;</o:p>Overwhelming
and indisputable evidence was led that Nasib Dahabieh travelled on 30 September
1974 to Lebanon and returned to Accra on 28 April 1976. He gave very cogent and
convincing reasons as to why he was obliged to stay in Lebanon for so long, but
that has no relevance to the issues involved in this appeal. There was however
unchallenged evidence that the businesses of both Nasib Dahabieh and S .A.
Turqui and Bros and of many aliens were adversely affected by the Ghanaian Business
(Promotions) Act, 1970 (Act 334) which came into force on 3 July 1970 and that
they both made frantic efforts to obtain exemption under the Act. Pending the
grant of the exemption, they stopped their trading activities proscribed under
the Act and shut their affected business premises. S.A. Turqui and Bros may
therefore be presumed as aliens to know the reasons why Nasib Dahabieh’s
business premises were inevitably shut. It was however while his business
premises were thus shut, that Nasib Dahabieh travelled to Lebanon; and it was
while he was thus outside the jurisdiction that S.A. Turqui and Bros commenced
a suit No 104/75 by issuing a writ at the High Court, Accra on 6 February 1975
not against their tenant Nasib Dahabieh but rather against Technical Trading
Co, the name under which he carried on his business before Act 334 put a stop
to his trading activities. On 27 March 1975 while Nasib Dahabieh was still in
Lebanon, S.A. Turqui and Bros as plaintiffs in the said suit No 104/75 filed a
motion ex parte for the substituted service of the writ on the trading name,
Technical Trading Co. In the writ S.A. Turqui and Bros claimed: “(a) An order
of possession of the store occupied by the defendants which the plaintiffs
require for personal occupation. (b) An order for mesne profit.” (The emphasis
is mine.)<o:p></o:p><o:p>&nbsp;</o:p>I can
quite understand why S.A. Turqui and Bros claimed possession for their personal
occupation although the premises were not a dwelling-house. S.A. Turqui and
Bros are a firm of petty traders and Act 334 banned them also from trading.
They dare not ask a court of law for possession to carry out business activities
which had been proscribed. I take it therefore that they were ostensibly
claiming possession of the premises for the personal occupation of the partners
themselves. I shall in the light of the decision of the English court in Smith
v Poulter [1947] KB 399 give consideration later on in this judgment to this
request for an order of possession of premises for personal occupation or other
purpose under Act 220. What is startling about suit No 104/75 is that the name
of Nasib D</main>