CHAS-OCLOO vs. KYEI [1989]DLHC565

Date	1989-04-28
Suit No.
Citation No.	[1989]DLHC565

BROBBEY J.

E. A. OSEW FOR THE APPELLANT.

J. O. AMUI FOR THE RESPONDENT.

[1989]DLHC565
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													<main id="main" class="content" style="min-height: 60rem" >CHAS-OCLOO<o:p></o:p>&nbsp;vs. <o:p></o:p>KYEI <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90] 1 GLR 447<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:
28 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">

E. A. OSEW FOR THE APPELLANT.<o:p></o:p>

J. O. AMUI 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF BROBBEY J.<o:p></o:p>By his
writ, the plaintiff-respondent claimed recovery of a store and arrears of rent
from the defendant-appellant. The plaintiff based his claim on non-payment of
rent and recovery of possession for his own business. Judgment was eventually
entered for the plaintiff by the District Court Grade I, La which ordered the
defendant to quit the store and to pay up what the court considered to be the
arrears of rent. It is against that judgment that the defendant appealed to
this court.<o:p></o:p><o:p>&nbsp;</o:p>A
critical look at the record of proceedings in the trial court discloses that
the plaintiff led no evidence on the second basis of his claim, i.e. claim of
the store for his own business. It is in evidence that there were two stores
which were originally rented to the defendant. One of the stores described as
store No. 2 had been surrendered to the plaintiff and yet there was no evidence
as to whether or not he had even started any business in that one, let alone to
indicate whether or not that store was too small for his purpose for him to
claim store No. 1 as well. The important point is that the plaintiff, having
failed to testify on the ground that he required the defendant’s store for his
own business, could obviously not have pursued his case on that basis. The
trial magistrate did not in his judgment refer to that basis of the claim at
all. It is my view that in so far as the plaintiff failed to lead evidence to
establish that ground, the claim for ejectment on the basis that the plaintiff
required store No. 1 for his own business failed and ought to have been
dismissed.<o:p></o:p><o:p>&nbsp;</o:p>The
second basis of the plaintiff’s claim is that the defendant was in arrears of
rent. The defendant was paying various rents from the time she occupied the
stores. According to the plaintiff, he increased the rent to ¢4,000 but the
defendant insisted on paying ¢1,000. Since she failed or refused to pay the
¢4,000 demanded by him he asked her to pay whatever she wanted to pay and quit
the store.<o:p></o:p><o:p>&nbsp;</o:p>In the
first place, the record showed that the defendant was not given notice of the
demand for ¢4,000 to be paid until the present action was instituted in court.
Even the plaintiff’s own solicitor who was subpoenaed and testified as the
first defendant witness stated that he was instructed to write to the defendant
and he did write to the defendant about payment of ¢2,000 monthly rent but not
¢4,000 monthly rent as stated. He added that he was only told of the ¢4,000
just before the plaintiff took his brief from him and no notice or letter was
written or sent to the defendant. The defendant would obviously not have been expected
to pay rent of which she was ignorant. Indeed, the record again shows that the
defendant paid as much rent as the plaintiff would accept and when the
plaintiff refused to accept the rent the defendant attempted to pay it into
court but that too was rejected on the orders of the trial magistrate. The law
is that if a tenant is sued for ejectment on grounds of non-payment of rent and
the rent is offered, the tenant is entitled to relief against forfeiture: see
Ocansey v. Teiko [1973] 1 G.L.R. 203 and Chief Lands Officer v. Opoku [1962] 2
G.L.R. 58. The same principle was restated quite clearly by the Court of Appeal
in Interplast Ltd. v. Bonsu [1979] G.L.R. 285. In so far as the defendant
tendered the rent to the plaintiff and the court, the defendant could properly
not be said to be in arrears. Even if she were in arrears, on the authorities I
have cited, she would have been entitled to relief against forfeiture since the
arrears would have been cleared.<o:p></o:p><o:p>&nbsp;</o:p>It was
apparent during the trial that the precise rent payable was in dispute. While
the plaintiff insisted that it was ¢4,000 per month the defendant said that it
was ¢1,000 per month. In such cases the law places the onus of proof on the
landlord. The easiest mode of proving the rent payable is by the production of
some documentary evidence such as a stamped receipt under the Rent Act, 1963
(Act 220), s. 33 or a rent card as required by Act 220, s. 20 (1): see Mensah
v. Abbey Quaye [1975] 2 G.L.R. 463. The receipt tendered in the instant case
did not specify the monthly rent payable. No rent card was produced. In
Alameddine Brothers v. Paterson Zochonis &amp; Co. Ltd. [1971] 2 G.L.R. 403,
C.A. the Court of Appeal held that a person who alleges a variation in a
tenancy agreement assumes the onus of proving it. On all the known legal
authorities it is clear that the plaintiff who insisted that the rent payable
was ¢4,000 assumed the onus of proving it. Since he failed to lead ev</main>