KASSER vs. RAZIEL CONSTRUCTION LTD (NO 2) [1993]DLSC4329

Date	1993-07-28
Suit No.
Citation No.	[1993]DLSC4329

ARCHER CJ

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS JSC

AMPIAH JJSC

ANTHONY KWAKYE FOR THE APPLICANT.

OWUSU YEBOAH FOR THE RESPONDENT.

[1993]DLSC4329
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													<main id="main" class="content" style="min-height: 60rem" >KASSER<o:p></o:p>vs.<o:p></o:p>RAZIEL CONSTRUCTION LTD
(NO 2)<o:p></o:p>[SUPREME
COURT, 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 512 – 521&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28 JULY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANTHONY
KWAKYE FOR THE APPLICANT.<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">

OWUSU
YEBOAH 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 1.0pt 0in">

ARCHER
CJ, FRANCOIS JSC, AMUA-SEKYI JSC, AIKINS JSC, AMPIAH JJSC<o:p></o:p>

</div>ARCHER
CJ. I have had the opportunity beforehand of reading the opinion of my brother
Aikins JSC and I agree with him that the application for leave to appeal should
not be granted.<o:p></o:p>FRANCOIS
JSC: The plaintiffs-respondents, Raziel Construction Ltd, instituted an action
in the Circuit Court, Accra against the defendant-applicant for possession of
House No C260/3, Ring Road<o:p></o:p>Central,
Accra, being premises occupied by the defendant. They proceeded on the basis
that they had been granted a lease of the said premises by the legal
representatives of the deceased owner.<o:p></o:p>Judgment
was delivered in favour of the plaintiffs on 13 October 1992. Dissatisfied, the
defendant-applicant appealed to the Court of Appeal and sought additionally, a
stay of proceedings till the merits of his appeal had been considered.<o:p></o:p>In
a ruling delivered on 11 March 1993, the Court of Appeal refused the
application for stay. The substantive appeal has yet to be heard but the
defendant-applicant, anxious to preserve the status quo ante, has applied to
this court, for leave to appeal against the decision of the Court of Appeal.<o:p></o:p>The
issue as I see it, hinges fundamentally on the plaintiffs’ capacity as landlord
to eject the defendant. For in my view, if the relationship of landlord and
tenant does not exist, the plaintiffs cannot seek the remedy of ejection which
is based on this contractual relationship.<o:p></o:p>The
defendant-applicant maintains that he had been a tenant of the premises for
over 10 years and that he was put in possession not by the plaintiffs, but by
the real owner of the property, one Osei Antwi in 1974. Osei Antwi having died
in 1980, the defendant claims his lease was renewed for a further 10 years by
the customary successors of his deceased landlord.<o:p></o:p>If
these facts are true then the plaintiffs acquired their lease with full notice
of the presence of a sitting tenant.<o:p></o:p>Exhibited
with these proceedings is a copy of the plaintiffs’ statement of claim.
Paragraph 1 thereof admits that the defendant is “the proprietor of Safari
Motor Works at House No C260, Ring Road, Central Accra”.<o:p></o:p>In
paragraph 4 of the said statement of claim the plaintiffs pleaded:<o:p></o:p>“By a letter dated 16 December 1987,
the plaintiffs gave the defendant then in possession three months notice to
quit the premises with effect from 16 December 1987.”<o:p></o:p>And
in paragraphs 5 and 6, the plaintiffs pleaded that they granted extended
periods of notice, to oblige the defendant to quit the premises.<o:p></o:p>It
is obvious then, that when the plaintiffs secured their lease of House No C
260/3, Ring Road Central, Accra, on 1 March 1986, the defendant was already in
possession. It is also clear that he was not considered a trespasser, for
otherwise other steps would have been taken to eject him.<o:p></o:p>With
these incontrovertible facts, the issue is whether the plaintiffs could be said
to be clothed with any power derived from their lease to eject the defendant
applicant.<o:p></o:p>I
regret that I differ from my Lord the Chief Justice and my distinguished
colleagues on this matter. I see fundamental incapacity in the plaintiffs to
obtain the relief granted them by the circuit court and obliquely endorsed by
the Court of Appeal.<o:p></o:p>It
seems to me that whether parties are barking up the wrong legal tree or not in
their appreciation of the appropriate law that governs this matter, the basic
hurdle of capacity must first be surmounted before the plaintiffs can claim any
entitlement to relief.<o:p></o:p>Where
I part company with my distinguished colleagues is over the plaintiffs’
assumption of the role of landlord vis-à-vis the defendant. The administrators
of the estate of the late Osei Antwi, are the defendant’s landlord by virtue of
succession. That relationship is a contractual one and still exists. They can
mount this action and not the plaintiffs. The defendant cannot have foisted on
him an additional landlord, while his legal landlords are in existence.<o:p></o:p>Even
if there had been a sale of the property to the plaintiffs, they would have had
to arrange terms with the defendant as he was a sitting tenant enjoying certain
inalienable rights, before they acquired any rights by purchase.<o:p></o:p>It
seems to me that the Rent Act 1963 (Act 220) has no application in this case as
the plaintiffs are not the legal landlords of the defendant, nor have they been
substituted for the landlords as assignees. There is no contractual agreement
between the plaintiffs and the defendant that I can see on the face of the
record.<o:p></o:p>The
important issues in this case are covered by authority. In Boateng v Dw</main>