KASSER vs. RAZIEL CONSTRUCTION LTD [1993]DLSC755

Date	1993-07-28
Suit No.
Citation No.	[1993]DLSC755

ARCHER CJ JSC

FRANCOIS JSC

AMUA-SEKYI JSC

AIKINS JSC

AMPIAH JSC.

KWAKYE FOR THE APPLICANT.

OWUSU YEBOAH FOR THE RESPONDENTS.

[1993]DLSC755
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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">KASSER<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">RAZIEL CONSTRUCTION LTD<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 1 GLR 332<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>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 RESPONDENTS. <o:p></o:p>

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

</div>JUDGMENT OF ARCHER CJ.<o:p></o:p>I have had the opportunity before hand of reading the opinion of
my brother Aikins JSC and I agree with him that the application for leave to
appeal should not granted.<o:p></o:p><o:p>&nbsp;</o:p>JUDGMENT OF
FRANCOIS JSC.<o:p></o:p>The plaintiff-respondents, Raziel Construction Ltd (hereinafter
referred to as the plaintiffs) instituted an action in the Circuit Court, Accra
against the defendant applicant (hereinafter referred to as the defendant) for
possession of house No C 260/3, Ring Road 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 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: see Kasser v Raziel Construction Ltd [1993-94] GLR
241, CA ante. The substantive appeal has yet to be heard, but the defendant,
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 plaintiff’s
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 maintains that he had been a tenant of the premises
for over ten 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 ten
years by the customary successors of his deceased landlord. 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 C 260/3, Ring Road Central,
Accra.” In paragraph (4) of the said statement of claim the plaintiffs pleaded:
“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.” 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. 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.<o:p></o:p>I regret that I differ from my Lord the Chief Justice and my
distinguished colleagues on this matter. I see a fundamental incapacity in the
plaintiffs to obtain the relief granted them by the circuit court and obliquely
indorsed by the Court of Appeal. It seems to me that whether the 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>