KHOURY vs. MITCHUAL AND ANOTHER [1999]DLSC617

Date	1999-02-13
Suit No.
Citation No.	[1999]DLSC617

ADADE J.S.C

TAYLOR J.S.C

FRANCOIS J.S.C

AMUA-SEKYI J.S.C.

AND OSEI-HWERE J.A.

JOE REINDORF FOR THE APPLICANTS.

E. D. KOM S.A.G. (WITH HIM MILLS OWUSU) FOR THE RESPONDENTS.

[1999]DLSC617
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													<main id="main" class="content" style="min-height: 60rem" >KHOURY <o:p></o:p>vs. <o:p></o:p>MITCHUAL AND ANOTHER<o:p></o:p>SUPREME COURT, ACCRA <o:p></o:p>[1989-90] 2 GLR 256<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">

DATE:
13
FEBRUARY 1990<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

JOE REINDORF FOR THE APPLICANTS.<o:p></o:p>

E. D. KOM S.A.G. (WITH HIM MILLS OWUSU) FOR THE
RESPONDENTS.<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 0in 0in">

ADADE, TAYLOR, FRANCOIS, AMUA-SEKYI
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WUAKU J.S.C.<o:p></o:p>On 25
February 1982 the plaintiff-respondents issued a writ against the
defendant-appellants claiming possession of certain premises of which the
defendant-appellants were lessees of the plaintiffs. The plaintiffs are the
surviving beneficiaries of the estate of the late Araba Nkestsiaba of Sekondi.
The plaintiffs were minors in 1941. On 19 December 1941 one Robert Mensah
acting for and representing the plaintiffs together with two other adult
beneficiaries, namely Adjuah Inframa and Effua Kobinaba, as lessors, executed a
document leasing house No. 4/12 also known as house No. 1, Lagoon Road, Sekondi
to the defendants as lessees at an annual rent of £25 for a term of 40 years.
The lease was to take effect from 1 December 1941. The defendants-lessees paid
to the lessor by way of an advance covering the whole period of the term of 40
years the total sum of £1,000. Because of the subsequent events, I reproduce
clause 5 of the lessors’ covenant with the lessees.<o:p></o:p>“(5) That
the lessees may should it become necessary, have the power to break down and
rebuild the said premises hereby granted or expressed so to be, according to
any plan which may be approved by the Sekondi Town Council. Provided that the
cost of such building shall not exceed the sum of two thousand pounds
(£2,000).”<o:p></o:p><o:p>&nbsp;</o:p>A proviso
to the preceding clause 3 of the lessors covenant provided as follows;<o:p></o:p>“Provided
that the lessees will have the right to make any repairs and necessary
alterations at the expense and costs of the lessors or same chargeable to the
lessors’ rent account.”<o:p></o:p><o:p>&nbsp;</o:p>At the
same time the lease agreement was executed, a collateral agreement was entered
into by the parties whereby the said house was mortgaged to the lessees for the
sum of £1,000 which mortgage deed was to all intent and purpose to assure the
defendants an uninterrupted possession and control of the premises demised for
the period of 40 years.<o:p></o:p>In 1943,
one Chief Awortwi who had a life interest as to one-sixth share in the rents accruing
from the said property sued the defendants before the Divisional Court,
Sekondi. The action was settled as per exhibit 1 dated 3 August 1943. In 1945
Chief Kofi Awortwi brought an application for a variation of the 1943
settlement. This was done as per the consent order of the court dated 20 April
1945. An attempt to tender this order was objected to by counsel for the
plaintiff in the court below, the objection was sustained, and was marked as
rejected 1. During the hearing of the appeal it was admitted in evidence and
marked as exhibit 2. More will be said about its admission later. Exhibit 2 is
as follows:<o:p></o:p>“20.4.45
Divisional Court, Sekondi, Friday 20 April 1945: coram M’carthy J. Chief Kofi
Awortwi and Others v F. and M. Khoury and Another Application for variation for
consent order of 3 August 1943. Gwira for applicant Chief Kofi Awortwi. Fred
Khoury in person It is by consent agreed that the consent judgment made herein
on 3 August 1943, be varied by substituting for the terms of settlement therein
embodied the following terms: 1. Mr. Khoury has agreed to pay five hundred
pounds (£500) to Chief Kofi Awortwi and Jemima Mitchual as advance against
rent.<o:p></o:p>2. Mr.
Khoury has agreed to make any external repairs and necessary alterations at the
expense and cost of the lessors’ on Assuafua’s house, No 1 situate at Lagoon
Road, Sekondi but Mr Khoury agrees to pay town council rates and water rates.
3. Rent in original lease to stand as it is. 4. Lease for 40 years. 5. These
terms of settlement to be embodied in a new supplementary lease between Chief
Kofi Awortwi and elders of Nimfa Baidoo Anona family including Jemima Mitchual
and F &amp; M Khoury. 6. Each party to pay his own costs of the proceedings in
court. 7. Mr. Khoury should have the right to break down the existing buildings
and rebuild at a cost not exceeding £2,000 and charge same to lessors, rent
account and to continue at the same rate of rent of £25 per annum as stated in
the original lease. Chief Kofi Awortwi his x mark for and on behalf of himself
and the Nimfa Baidoo Anona family. (Sgd.) Jemima Mitchual</main>