COFIE vs. SHAHIN AND OTHERS [1993]DLCA4325

Date	1993-01-21
Suit No.
Citation No.	[1993]DLCA4325

ESSIEM JA

ADJABENG JA

LUTTERODT JA

ALLOTEI MINGLE FOR THE APPELLANT.

WONTUMI FOR THE 3RD RESPONDENT.

[1993]DLCA4325
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													<main id="main" class="content" style="min-height: 60rem" >COFIE<o:p></o:p>vs.<o:p></o:p>SHAHIN AND OTHERS<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

[1992-93] 2 G B R 675 – 682&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 21 JANUARY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ALLOTEI
MINGLE 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">

WONTUMI
FOR THE 3RD 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 1.0pt 0in">

ESSIEM
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>ESSIEM
JA. This is an appeal from the judgment of Dove J, delivered on 23 January
1991. The facts are sufficiently set out in the judgment of the court below and
I reproduce the same.<o:p></o:p>The
plaintiff, by her amended writ of summons claims under the Conveyancing Decree
1973 (NRCD 175):<o:p></o:p>“(1) An order to set aside or in the
alternative to modify the lease agreement registered as No 2354/73 dated 28
August 1972 and executed between the plaintiff and the 1st defendant on the ground
of unconscionability.<o:p></o:p>(2) Alternatively the lease agreement
dated 28 August 1972 between plaintiff and the 1st defendant was for ten years
certain upon a true construction of the document.”<o:p></o:p>The
plaintiff is the owner of the disputed land at Osu. She claims to have put up a
building on it up to roofing level and had fenced it; she granted a lease of
the land with the uncompleted building to the 1st defendant.<o:p></o:p>The
1st defendant completed the building commenced by the plaintiff and
subsequently assigned his interest in it to the 2nd defendant who in turn
assigned his interest to the third defendant. It seems to me that the duration
of the lease registered as No 2354/73 is the main bone of contention between
the parties. In other words what were the terms of the lease agreement between
the parties to that agreement?<o:p></o:p>I
shall deal with the state of the land which formed the subject of the lease.
The trial court rejected the plaintiff’s claim that she had a building on the
land. After examining the evidence, the trial judge expressed the opinion that:<o:p></o:p>“I would say from the foregoing that
there was only a temporary structure on the land when it was leased to the 1st
defendant and he constructed a building on it in accordance with the provisions
of exhibit C.”<o:p></o:p>Exhibit
C is the lease made on 28 August 1972 between the plaintiff and Shahin Elias
Shahin. It is the term granted by this exhibit which is in dispute in this
case.<o:p></o:p>The
trial judge’s finding that there was only a temporary building on the land is
clearly supported by the evidence on record.<o:p></o:p>It
thus seems to me that the building on the land was not put up by the appellant
neither did she even have any uncompleted building on the land. I agree
therefore with the trial judge that the building on the land was put up by the
3rd respondent.<o:p></o:p>The
crucial issue is, on what terms did he put up that building? The answer is
contained in exhibit C, the lease made on 28 August between the parties herein,
which provides inter alia:<o:p></o:p>“In consideration of the rents and
covenants hereinafter reserved and contained the Lessor doth hereby demise unto
the Lessee all that piece and parcel of land situate lying and being at
Cantonments Road, Christianborg, Accra aforesaid and bounded on the north by
Government land measuring sixty feet (60’) more or less on the south by a road
measuring sixty feet (60’) more or less on the east by the vendor’s property
measuring one hundred and fifty feet (150’) more or less and on the west by
Mabel Dove’s property measuring one hundred and fifty feet (150’) more or less
and covering an approximate area of .223 of an acre more or less TO HOLD the
premises unto the Lessee from the date of executing the agreement herein
yielding and paying therefor yearly during the said term hereby granted the
rent of ¢100 (one hundred cedis) per annum the rent in respect of first ten
(10) years amounting to ¢1,000 (one thousand cedis) having been paid on or
before the execution of these presents (the receipts whereof the Lessor doth
hereby acknowledge) and thereafter by annual payments in advance. And it is
further agreed between the parties that the lessee of the said plot of land
shall at his own cost within reasonable time pull down and remove any temporary
structure which may be on the said land and erect and build thereon.”<o:p></o:p>It
is on the basis of this agreement that the respondent built on the land. There
is evidence on record that the appellant subsequently took further rent advance
of ¢10,000 in 1981. The plaintiff issued a receipt exhibit 1 for this and, as
was held by the court below, this amount was to cover ground rents up to the
year 2002. The plaintiff’s case before the court was to challenge the lease on
grounds of unconscionability. This was fully appreciated by the court below but
that court rejected the plaintiff’s claim. In the words of the trial judge:<o:p></o:p>“It appears from the evidence that the
plaintiff had all along accepted the position and her complaint about
unconscionability and suppression have come rather late in the day.”<o:p></o:p>The
learned trial judge then held that “the value of money has gone down over the
years so that ¢100 which was quite a substantial amount in 1972 is no longer
so”. The learned trial judge then concluded his judgment as follows:<o:p></o:p>“I shall therefore interfere with the
lease exhibit C to the extent that I hereby order the recoverable rent to be
assessed by the Rent Assessment Committee and that shall become the rent
payable as from 1 January 1991.”<o:p></o:p>