BARNOR vs. APPA [1989]DLHC554

Date	1989-02-08
Suit No.
Citation No.	[1989]DLHC554

DOVE J.

S. KWAME TETTEH FOR THE DEFENDANT-APPELLANT.

BAGBIN FOR THE PLAINTIFF-RESPONDENT.

[1989]DLHC554
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													<main id="main" class="content" style="min-height: 60rem" >BARNOR <o:p></o:p>vs. <o:p></o:p>APPA <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90] 1 GLR 379<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:
8 FEBRUARY
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">

S. KWAME TETTEH FOR THE DEFENDANT-APPELLANT.<o:p></o:p>

BAGBIN FOR THE PLAINTIFF-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">

DOVE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF DOVE J.<o:p></o:p>In
December 1986 the respondents (hereafter referred to as the plaintiff)
commenced an action in the District Court Grade I, Accra against the appellant,
hereinafter referred to as the defendant, for reliefs indorsed on his writ of
summons as follows:<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. the
plaintiff’s claim against the defendant is for an order that the defendant
should desist from harassing the plaintiff and inducing a tenant to quit from a
store premises; and b. an injunction restraining the defendant, her agents or
assigns and privies from further harassing the plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant filed a counterclaim asking for possession of a store in house No. D
940/3, Derby Avenue, Accra on the ground that she requires it for her own
business. By an order of the court, pleadings were filed and issues for trial
were settled.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff
had occupied the premises for more than ten years when in 1983 the tenancy was
renewed. The plaintiff maintained that the tenancy was renewed for a further
term of five years but according to the defendant it was renewed for a term of
two years. The learned trial magistrate found that there was only a periodic tenancy
in the nature of a monthly tenancy in existence. At the time when the action
was commenced the plaintiff was a statutory tenant.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>After
reviewing the evidence the learned district magistrate came to the conclusion
that the defendant “did acts which were intended to induce the plaintiff to
give up possession of the store premises.” The learned magistrate then
considered the defendant’s counterclaim and then said:<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">“What is
contentious in this case, however, is the statutory six months’ written notice
requirement. Learned counsel for the defendant in his address urge upon me to
incorporate exhibit A into exhibit C, and says that the six months’ notice is
met when exhibits A and C are incorporated into each other. Exhibit A gives
three months’ written notice but does not express any intention to apply for an
order in respect of ejectment. Exhibit C on the other hand, does not specify
any time at all. The defendant in that letter writes: ‘I am asking you to
quickly deliver up the premises to me.’ But it expresses the intention to apply
for a court order. However, exhibit C by itself does not give any notice, such
a written notice should be clear and certain, neither ambiguous nor optional:
see Phipps (P) and Co. (Northampton and Towcester Breweries) Ltd. v. Rogers
(1924) 40 T.L.R. 845. Therefore, exhibit A cannot be incorporated into exhibit
C. The two documents cannot be married to produce a six months’ written notice
by the defendant of her intention to apply for a court order in respect of
recovery of possession of the premises.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned district magistrate then ruled that the requirement of six months’
written notice was not met by the defendant and her counterclaim was therefore
dismissed.<o:p></o:p>The
defendant has appealed from the judgment of the district court and the sole
ground argued was that the judgment was against the weight of evidence. Mr. S.
Kwame Tetteh, counsel for the defendant, submitted that from the facts on
record the defendant had given sufficient notice to comply with section 17 (1)
(h) of the Rent Act, 1963 (Act 220). He referred to exhibit C which is a letter
from the defendant to the plaintiff and it is dated 18 June</main>