DONKOR vs. DZOKOTO [1993]DLCA4326

Date	1993-11-04
Suit No.
Citation No.	[1993]DLCA4326

ESSIEM JA

BROBBEY JA

FORSTER JA

KOJO HACKMAN FOR AHENKORAH FOR THE DEFENDANT-APPELLANT.

S A X TSEGAH FOR THE PLAINTIFF-RESPONDENT.

[1993]DLCA4326
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													<main id="main" class="content" style="min-height: 60rem" >DONKOR<o:p></o:p>vs.<o:p></o:p>DZOKOTO<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 643 – 674&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 4 NOVEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KOJO
HACKMAN FOR AHENKORAH 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">

S
A X TSEGAH 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 1.0pt 0in">

ESSIEM
JA, BROBBEY JA, FORSTER JA<o:p></o:p>

</div>FORSTER
JA. The plaintiff-respondent, Margaret Abui Dzokoto, (hereinafter called “the
plaintiff”) is the owner of House No F353/4, Labadi. The defendant-appellant
(hereinafter called “the defendant”) is the tenant.<o:p></o:p>The
plaintiff issued against the defendant a writ endorsed claiming an order for
ejectment of the defendant from the said house and recovery of possession on
the ground that the plaintiff needed it for occupation as a dwelling house by
members of her family.<o:p></o:p>To
the writ was attached a statement of claim. In her statement of claim the
plaintiff averred, inter alia, that:<o:p></o:p>“(2) By a lease agreement dated 1st
July 1988 the plaintiff demised the said house to the defendant for a period of
2 years with no option to renew…<o:p></o:p>(5) Plaintiff says that after the
expiration of the said two years she gave the defendant three additional months
to quit the said premises but the defendant refused to quit after repeated
demands.”<o:p></o:p>The
defendant resisted the claims and counterclaimed for payment by the plaintiff
of the sum of ¢6 million being the cost of improvements he had made to the
premises.<o:p></o:p>On
25 February 1992 Her Lordship, Mrs Justice Vida Akoto-Bamfo, Justice of the
High Court, gave judgment for the plaintiff. It is from that judgment that the
defendant now appeals to the Court of Appeal.<o:p></o:p>The
evidence shows that the defendant has been a tenant of the plaintiff’s
premises, House No F353/4, Labadi, since 1972. The tenancy agreement was for
two years and was renewed successively until 1988. The last tenancy agreement,
exhibit A, was for a two-year period from 1988 and “on the expiration of the
two years the lessor does not intend to renew the said lease since she has
given the said premises to her son who wishes to occupy it himself as a
dwelling house”.<o:p></o:p>When
the lease expired, the plaintiff served notice on the defendant giving him
three months to quit the premises. The defendant failed or refused to quit.
Hence the present action by the plaintiff.<o:p></o:p>It
is contended that the defendant therefore became a statutory tenant, which is,
as defined by Jenkins LJ in American Economic Laundry Ltd v Little&nbsp; [1950] 2 All ER 1186 at page 1190:<o:p></o:p>“... a compendious expression to
describe the right of a tenant of protected premises to remain in possession of
those premises, notwithstanding the determination of his contractual interest,
until such time as he either voluntarily gives up possession or the court, on
cause shown, makes an order against him to deliver up possession.”<o:p></o:p>“A
protected tenant” under the corresponding English law, which was in issue
before that court includes a statutory tenant.<o:p></o:p>The
issues that were before the trial court in the instant case and which must be
resolved in this appeal are whether:<o:p></o:p>(a)
the premises were constructed as a dwelling house;<o:p></o:p>(b)
the premises were let out to the defendant as a dwelling house;<o:p></o:p>(c)
the defendant's user of the premises as a hotel, i.e. for business purposes,
was to the knowledge and with the consent of the plaintiff;<o:p></o:p>(d)
the premises were constructed and let out as a dwelling house and subsequently
used by the defendant for a business purpose and altered its character as a
dwelling house;<o:p></o:p>(e)
the user of the premises as a hotel denies the plaintiff the right to recover
possession of the premises for the use of her son as a dwelling house;<o:p></o:p>(f)
should recovery of possession be decreed by the court, the defendant would be
entitled to payment of ¢6 million for improvements to the said premises.<o:p></o:p>On
the evidence before the trial court, it is not controverted that House No F
353/4, Labadi was constructed to be used as a dwelling house. The tenancy
agreement between the parties, exhibit A, stipulated that the premises were let
out for dwelling purposes; that exhibit was signed by the defendant.<o:p></o:p>Even
though he said in his evidence-in-chief that he leased the house for commercial
purposes, when he was confronted with exhibit A, he had no answer. It is clear
therefore that the premises were constructed to be used as a dwelling house and
that the defendant entered into the tenancy agreement to use the property as
such.<o:p></o:p>