BOULLION INDUSTRIES LTD vs. DIZENGOFF GH. LTD. [2004]DLCA6667

Date	2004-04-30
Suit No.	CIVIL APPEAL NO. H1/85/2004
Citation No.	[2004]DLCA6667

JULIUS ANSAH J.A. PRESIDING

. J.B. AKAMBA JUSTICE OF APPEAL

. HENRIETA ABBAN (MRS) JUSTICE OF APPEAL

OWUSU ADJAPONG—FOR DEFENDANT/APPELLANT.

[2004]DLCA6667
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													<main id="main" class="content" style="min-height: 60rem" >BOULLION INDUSTRIES LTD<o:p></o:p>vs.<o:p></o:p>DIZENGOFF GH. LTD.<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">

CIVIL APPEAL NO. H1/85/2004&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; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 30TH APRIL 2004<o:p></o:p>

</div>COUNSEL:<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
ADJAPONG—FOR DEFENDANT/APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>J. B. AKAMBA, J.A. <o:p></o:p>This
appeal lies against the judgment of Mrs. Inkumsah-Abban, J. sitting at the
Accra High Court on 24th January 2001. <o:p></o:p>The
facts of the case as gleaned from the record of appeal are that both the
Defendant/Appellant (hereinafter simply referred as the Defendant) and the
Plaintiff/Respondent (hereinafter simply referred as the Plaintiff) are
companies incorporated in Ghana with their respective principal places of
business in Accra. The defendant owns an industrial premise at North Kaneshie
Industrial Area known as Dizengoff Warehouse No 1, Accra. The plaintiff who is
a manufacturer and importer of coumba spices occupies part of the defendant's
aforesaid Dizengoff Warehouse No. 1 Accra, as a tenant of another company by
the name Ovum Service Ltd. (hereinafter simply referred as Ovum Services). <o:p></o:p>It
is apparent that in 1989 there was an agreement between the defendant and the
aforementioned Ovum Services for the former to sell the premise to the latter
subject to certain conditions. The agreement could however not be
finalised/concretised. As a result of this, the sale agreement between the
defendant and said Ovum Services was cancelled. Following this event, an
agreement was made dated 29th June 1990 between defendant, as landlord, and
Ovum Services as tenant, by which a portion of the former's said industrial
area property situate at Foe Oyeo Road, North Industrial area, Accra was leased
to the latter for two years commencing 2nd April 1990, with an option to renew
for a further term of one year. (See Exhibits 3 and H - Memorandum of Agreement
between Dizengoff Ghana Limited and Ovum Services Ltd). It is important to
underscore the fact that the defendant had at the request of Ovum Services,
allowed the latter to enter into occupation of a portion of the premises which
it had then agreed to sell to them whilst the negotiations for the purchase was
still on-going. (See paragraph 3 of Exhibit G1). In the mean time and in
apparent belief that the sale between it and the defendant would materialise,
Ovum Services had on 2nd March 1990 purportedly let out the said premises to
the plaintiff FOR FIVE YEARS with an option of renewal, at a rent of 250, 000
cedis per month. It might be premature to judge this grant as hasty but suffice
it to state that with the inconclusiveness of the sale agreement at this stage,
it was ill advised and a sure sign of immaturity to enter into such seemingly
conclusive and binding leasehold agreement of five years. The plaintiff
occupied the defendant's premise as a result of the sub lease granted them by
Ovum Services referred to supra. According to the plaintiff's case, it was
whilst plaintiff was thus in occupation carrying out his business that sometime
in January 1995, the defendant unlawfully entered the said premise with some
policemen and forcibly evicted plaintiff there from. The plaintiff therefore
issued a writ of summons on 31/3/98 against the defendant in the High Court
Accra claiming the following reliefs namely: <o:p></o:p>(a)
Recovery of premises known as Dizengoff warehouse No. 1 Accra wrongfully closed
by the defendant. <o:p></o:p>(b)
Damages for wrongfully (sic) closure of the premises and detention of
plaintiffs goods and interest. <o:p></o:p>(c)
Perpetual Injunction. <o:p></o:p>By
a subsequent amendment to the statement of claim, the plaintiff also claimed
interest for loss of earning at the prevailing bank rate from the date of the
said closure to date of possession. The trial High Court at the close of
hearing entered judgment for the plaintiff on the reliefs. Dissatisfied with
this judgment, the defendant appeals to this Court on the following grounds: <o:p></o:p>(a)
That the decision is against the weight of evidence. <o:p></o:p>(b)
The learned trial-judge erred in law when she awarded damages for loss of
earning when same was not endorsed by the plaintiff on its writ of summons or
statement of claim. <o:p></o:p>(c)
The learned trial judge erred when she held that plaintiff was a statutory
tenant. <o:p></o:p>(d)
The cost of 20 million cedis awarded against the defendant was manifestly
excessive. <o:p></o:p>(e)
That additional ground/s will be filed on receipt of the record of proceedings.
<o:p></o:p>The
defendant filed the written statement of its case on 29th December 2003. On 9th
January 2004 a copy of the defendant's written statement was duly served on the
solicitor to the plaintiff through his clerk at his chambers. There was no
response from the plaintiff within the three weeks allowed by rule 20 (4) of CI
19, a gesture I take to mean that the plaintiff does not wish to contest the appeal.
<o:p></o:p>In
resolving this appeal, I will determine the grounds of appeal together under
the omnibus ground, to wit, that the decision is against the weight of
evidence. In determining this omnibus ground, it is proper for this court to
examine the totality of the evidence in the record of appeal and all
attachments before it and come to its own decision as the admitted and
undisputed facts-See Akufo Addo v. Catheline (1992) 1 GLR 377. <o:p></o:p>The
plain</main>