JOSEPH vs. FARISCO (GHANA) LTD. [1990]DLCA2258

Date	1990-07-20
Suit No.
Citation No.	[1990]DLCA2258

AMPIAH JA

ESSIEM JA

AMUAH JJ.A.

NANA AKUFO-ADDO (WITH HIM LUTTERODT) FOR THE APPELLANT.

JOHNNY HANSON FOR THE RESPONDENT.

[1990]DLCA2258
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH<o:p></o:p>vs.<o:p></o:p>FARISCO
(GHANA) LTD.<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 151<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">

</div>COUNSEL:<o:p></o:p>NANA
AKUFO-ADDO (WITH HIM LUTTERODT) FOR THE APPELLANT.<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">

JOHNNY
HANSON FOR THE RESPONDENT. <o:p></o:p>

AMPIAH,
ESSIEM AND AMUAH JJ.A. <o:p></o:p>

</div>JUDGMENT
OF AMPIAH J.A.<o:p></o:p>This is
an appeal from the decision of the High Court, Accra dismissing the plaintiff’s
claim for recovery of possession of some shop rooms and offices in house No D.
546/4, popularly known as Pasico House at Liberty Avenue, Accra against the
first defendant, the respondent in this appeal. The plaintiff’s claims for
damages for loss of use and general damages were also dismissed. The plaintiff
however obtained judgment against the second and the third defendants in that
same case for recovery of possession. These defendants have not appealed.<o:p></o:p>By an
agreement dated 31 May 1973 and registered as No. 1216/73, the first defendant
(hereinafter referred to as the respondent) entered into a tenancy arrangement
with Paterson Simons (Ghana) Ltd. in respect of the house the subject matter of
the plaintiff’s claim. By a resolution of the company dated 11 June 1976,
Paterson Simons (Ghana) Ltd. changed its name to Pasico (Ghana) Ltd. It then
sold its interest in the house to the plaintiff (also referred to hereinafter
as the appellant) by a deed of assignment dated 8 May 1984 and registered as
No. 3558/85 with the Deeds Registry. Pasico (Ghana) Ltd. then terminated its
tenancy agreement with the respondent by a letter dated 23 March 1984 and
requested the respondent to give up possession of the rooms it occupied in that
house by 31 January 1985. By a similar letter of the same date however, the
respondent was required to give up possession of the premises by 31 August
1985. The respondent, who then recognised the appellant as its new landlord,
received a letter dated 23 March 1984 from the appellant asking it to quit the
premises by 31 December 1984. On 23 August 1985 the appellant wrote again to
the respondent requesting it to give up possession of the premises within “six
months from 26 August 1985” so that he could remodel or use the premises or
both for his own business. On 26 August 1985, the appellant wrote again to the
respondent requesting the respondent to quit within six months from that date
so that he could carry out the purpose stated in his letter of 23 August 1985.
Since the respondent’s tenancy had expired then, it became recognised as a
statutory tenant. There is no dispute on this. As at 10 April 1986 when the
appellant issued his writ of summons against the respondent, the respondent had
not vacated the premises; hence the reliefs claimed in the action.<o:p></o:p>The
appellant’s original grounds of appeal contained in the notice of appeal were
that:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a).&nbsp; “the judgment was against the weight of
evidence; and <o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b).&nbsp; the trial judge misinterpreted section
17(1)(h) of the Rent Act, 1963 (Act 220).”<o:p></o:p>Further
grounds were however filed on 8 January 1990 and these, with the leave of the
court, were admitted for argument.<o:p></o:p>On 19
January 1990 the respondent filed a notice for the amendment of its statement
of defence. By this notice the respondent sought to deny the appellant’s
averments in his statement of claim generally, and, in particular, the
appellant’s averments in his statement of claim that he required the premises
for his own business. The application for amendment by the respondent was
argued as a preliminary issue at the hearing of the appeal. We were of the
opinion that the amendment was not necessary. In his judgment, the trial judge
had held that the appellant had not led cogent evidence to satisfy him that
“... he reasonably required the premises from the first defendant for his
business.” Since in his statement of defence there had not been any denial by
the respondent of the appellant’s claim that he required the premises for his
own business, counsel for the appellant had argued that the trial judge had
erred in law in permitting the respondent to put up a case substantially
different from and inconsistent with his pleadings and further aggravated that
error by proceeding to give judgment on that basis. In the view of counsel,
this error has vitiated the judgment of the trial court, and has thereby
occasioned the appellant a substantial miscarriage of justice. It was the
desire to counteract this ground of appeal that had apparently prompted the
respondent to file this notice of amendment. This was not necessary. I do not
think f</main>