QUARTEY vs. ENTERTAINMENT & TOURIST DEVELOPMENT CO. LTD. AND OTHERS [1989]DLHC2056

Date	1989-11-24
Suit No.
Citation No.	[1989]DLHC2056

BROBBEY J.

T. A. NELSON COFIE FOR THE PLAINTIFF.

AGYARE KOI LARBI FOR THE FIRST DEFENDANT.

S. TAY FOR THE SECOND DEFENDANT.

S. F. GOODHEAD FOR THE FOURTH DEFENDANT.

[1989]DLHC2056
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">QUARTEY<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ENTERTAINMENT &amp; TOURIST DEVELOPMENT CO. LTD. AND OTHERS<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 298<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 24
NOVEMBER 1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>T. A. NELSON COFIE FOR THE PLAINTIFF.<o:p></o:p>AGYARE KOI LARBI FOR THE FIRST DEFENDANT.<o:p></o:p>S. TAY FOR THE SECOND DEFENDANT.<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">

S. F. GOODHEAD FOR THE FOURTH DEFENDANT. <o:p></o:p>

</div>JUDGMENT OF BROBBEY J.<o:p></o:p>The plaintiff is the owner of a piece of land with completed
buildings thereon situated at Osu. In 1974 she leased it to Omar Badu Safadi
(hereinafter referred to as the fourth defendant). In 1983 the parties replaced
that lease with another one which was tendered as exhibit B. By the terms of
exhibit B the plaintiff in fact leased the land with completed buildings
thereon for fifteen years with an option of renewal. Exhibit B further
contained the following provision in clause 2 (e):<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">“Not to sublet, mortgage or assign his interest in the premises
without the written consent of the lessor (such consent not to be unreasonably
withheld) and any such sublesee, or mortgagee or assignee becoming responsible
for all the obligations of this lease jointly and severally with the lessor.”<o:p></o:p>In compliance with this provision, the plaintiff granted as per
exhibit C permission to the fourth defendant to sublet the premises to the
third defendant, S. K. Manu Akuamoah, the proprietor of the Pearl of the East
Restaurant.<o:p></o:p>The first defendant seems to base its case on the premises that
after the fourth defendant had had the consent of the plaintiff for the fourth
defendant to sublet the property to the proprietor of the Pearl of the East
Restaurant and the third defendant, the latter created two interests, i.e.
Moustache Disco Ltd. and Studio All That Jazz. In 1983 the third defendant
purported to transfer his interest in the Studio All That Jazz to the first
defendant as per exhibit D. That transfer was confirmed by exhibit G which was
dated 19 April 1984. By 25 April 1984 the third defendant wrote to the
plaintiff that he had sold his interest in the Moustache Disco Ltd. to the
first defendant as per exhibit H. Besides these letters showing that the third
defendant relinquished his interests in the two companies, there is nothing
also to show that the third defendant created the second defendant Studio All
That Jazz and the Moustache Disco. There is no direct evidence establishing any
nexus between the two and the third defendant. In my judgment, I find from the
facts that the first defendant which appeared per Agyare Koi Larbi failed to
establish that the second defendant and Moustache Disco represented the
interests created by the third defendant.<o:p></o:p>There is no doubt that the plaintiff gave her consent to the
fourth defendant to sublet the properties to the third defendant and the
proprietor of the Pearl of the East Restaurant. It is however not clear whether
the fourth defendant sublet the property to the third defendant. Neither the
third nor the fourth defendant testified in the case. Exhibit 2 which was
tendered in evidence said the sublease between the fourth and third defendants
was dated October 1982 while the original lease and the consent to sublet were
both dated 7 February 1983. On the face of exhibits 2, B and C, it is obvious
that by the time the consent was given for the fourth defendant to sublet to
the third defendant, the fourth defendant had already sublet the property and
if that was the case, it meant that even the sublease from the fourth defendant
to the third defendant was itself without the consent of the lessor.<o:p></o:p>It is arguable that even if the fourth defendant’s initial
sublease to the third defendant in 1982 was wrongful, the sublease was ratified
when the plaintiff issued exhibit C in 1983. Even if exhibit C regularised the
sublease in 1983, there is no evidence that the third defendant obtained any
consent from the plaintiff before subletting or transferring his interest to
the second and first defendants. Whatever interest the third defendant
purported to sell or transfer did not comply with the stipulations in clause
2(e) and was therefore invalid.<o:p></o:p>Mr. Koi Larbi who represented the second and first defendants
submitted in his written address that once the plaintiff had given her consent
to the fourth defendant to sublet to the third defendant, the third defendant
was not bound to seek the original lessor’s consent before assigning his
interest. He went on to say that if the landlord does not want any assignment
of his property without his consent after the first covenant, he should have
given his consent to </main>