AFRANIE vs. QUARCOO AND ANOTHER [1991]DLSC2060

Date	1991-12-23
Suit No.
Citation No.	[1991]DLSC2060

FRANCOIS JSC

WUAKU JSC

AMUA-SEKYI JSC

OSEI-HWERE JSC

AIKINS J.S.C.

J. K. AGYEMAN (WITH HIM MAJOR (RTD.) P. OSEI-BOATENG) FOR THE DEFENDANT-APPELLANT.

AFARI-YEBOAH FOR THE PLAINTIFF-RESPONDENTS.

[1991]DLSC2060
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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">AFRANIE<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">QUARCOO AND ANOTHER<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1991] 2 GLR 538<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: 23
DECEMBER 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J. K. AGYEMAN (WITH HIM MAJOR (RTD.) P. OSEI-BOATENG) FOR THE
DEFENDANT-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">

AFARI-YEBOAH FOR THE PLAINTIFF-RESPONDENTS. <o:p></o:p>

FRANCOIS, WUAKU, AMUA-SEKYI, OSEI-HWERE AND AIKINS JJ.S.C. <o:p></o:p>

</div>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>Mr A. A. Mensah died on 22 July 1985. His will admitted to probate
on 7 October 1985 amply testified to a lifetime of industry and the employment
of considerable commercial acumen. For he accumulated a large empire whose
extent he did not wish whittled down by sale or other alienation. There was a
further insight to his commercial philosophy with the charge to his personal
representatives to assist his widow and a son to manage his estate with
competence, and not to suffer any diminution of his estate.<o:p></o:p>Among the deceased’s properties was house No. C415/4 which was
rechristened by the appellant as “Hotel de France”, when he became a lessee of
it. It is this 30-roomed hotel that was the bane of Mr. Mensah’s life. After
letting it to the appellant for a term of five years, Mr. Mensah fought
unavailingly to recover possession at the end of the five-year term. When he
died, his personal representatives in obedience to their charge, stepped into
his shoes to continue the fight for repossession. After losing in the High
Court, the decision was reversed in the Court of Appeal. That judgment is
assailed in this court.<o:p></o:p>The reasons given by the Court of Appeal in reversing the High
Court, among others, appear to be the following: The defendant-appellant’s
lease had run out for over ten years. Yet he was sitting pretty enjoying a
gratuitous extension of the lease in defiance of the owner’s claim for recovery
- a claim he fought for with his very last breath. That was enough foundation
of the genuineness of the claim. Moreover, there was evidence of the critical
expansion needs of the landlord’s hotel business.<o:p></o:p>In effect, the appellate court was satisfied that the five years’
lease had expired, and six months’ notice had been duly given for repossession,
and further that the premises were genuinely required for the landlord’s use.
In other words, the plaintiffs had fully complied with section 17(1)(h) of the
Rent Act, 1963 (Act 220) which is 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">“(h) where the lease has expired and the premises are reasonably
required by the landlord to be used by him for his own business purposes, such
premises being constructed to be used as such, if the landlord has given not
less than six months’ written notice to the tenant of his intention to apply
for an order for the recovery of the possession of, or the ejectment from, the
premises.”<o:p></o:p>The appellate judgment must be presumed to be right until the
appellant demonstrates its deficiencies. The appellant does not seriously
attack issues of notice, or the expiry of the term, or even the reasonableness
of the demand for repossession. The attack is at an oblique tangent; on the
capacity of the personal representatives to recover possession, and the widow
and son as lacking any beneficial interest. Both capacities being essentially
struck down by the lack of a beneficial cloak of interest.<o:p></o:p>Were the appellant’s contentions to be credited with any validity,
it would mean that circumstances had conspired to transform a five-year lease
to one virtually in perpetuity. Such a stance can have no support in equity.
One is forcibly reminded of what Harman J. said in Re Shepherd, Public Trustee
v. Henderson [1948] 2 All E.R. 932 at 935 as resulting “.. in one of those absurdities
arising out of a subtlety of the law which makes it stink in the nostrils of
the public ...”<o:p></o:p>The appellant’s reasoning sometimes is very difficult to follow,
one example will suffice. He asserts that while the respondents:<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">“were the proper plaintiffs to bring proceedings for recovery of
possession of the subject property, they were however, precluded from
recovering possession for the reason that they could not avail themselves of
the provisions of section 17(1)(h) of the Rent Act, 1963 (Act 220) since they
had no beneficial interest in the property.”<o:p></o:p>