ALEX AGBEMEKOR (PLAINTIFF/RESPONDENT) vs. JOSEPH WAWAYI (DEFENDANT/APPELLANT) [2004]DLHC7514

Date	2004-10-28
Suit No.	SUIT NO: BL 526/2004
Citation No.	[2004]DLHC7514

MRS. CECILIA HANZZY SOWAH J

K. A. AWADZI FOR PLAINTIFF/RESPONDENT

ERIC ATIEKU FOR DEFENDANT/APPLICANT

[2004]DLHC7514
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ALEX AGBEMEKOR<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JOSEPH WAWAYI<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT
NO: BL 526/2004&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 28TH OCTOBER,
2004<o:p></o:p>

</div>COUNSEL:<o:p></o:p>K.
A. AWADZI FOR PLAINTIFF/RESPONDENT <o:p></o:p>ERIC
ATIEKU FOR DEFENDANT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0cm 1.0pt 0cm">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">CORAM:<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">MRS. CECILIA HANZZY SOWAH, J<o:p></o:p>

</div><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm;mso-border-between:1.5pt solid windowtext;
mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>This is an appeal from the
Judgment of the District Magistrate Court affirming the recommendation of the
Rent Officer for the recovery of possession of residential premises from the
defendant/appellant.<o:p></o:p>&nbsp;The defendant filed 3 grounds of appeal and
argued the 3rd ground which in substance covers all three grounds. The 3rd
ground is that the trial judge's decision is wrong both in law and in fact.<o:p></o:p>&nbsp;The submissions of Counsel for
defendant/appellant is summed up as follows:—<o:p></o:p>&nbsp;First, that from the evidence laid by the
plaintiff (complainant) at the Rent Office, it was clear that the complaint was
basically about the conduct of the defendant. The claim that the premises was
required for a daughter was therefore said to be false.<o:p></o:p>&nbsp;Secondly, that the magistrate erred in not
investigating the claim whether a daughter was really on transfer and required
the premises. <o:p></o:p>Third, that it was wrong in
law to order to recovery of possession under Section 17 (1) (g) of the Rent Act as the premises was constructed
by the defendant.<o:p></o:p>&nbsp;The proceedings before the Rent Officer which
is found at pages 4 and 5 of the record, shows that both plaintiff (as
represented) and defendant stated their cases on oath. From the evidence led,
the Rent Officer made a determination. He found that defendant did not deny any
of plaintiff's claims; namely that defendant was paying ¢20,000 monthly rent, that
his rent advance had expired, that ¢984,000 expenses incurred by defendant in
constructing a porch had been refunded to him, that the premises was required
for a daughter on transfer to Accra, and that a notice to quit had been served
on defendant. <o:p></o:p>Under Section 17(1) (g), the
important questions for a court to determine are whether the landlord's desire
for possession is reasonable and whether it is reasonable for the court to
grant it (Sfarijlani v. Bassil 1973 2
GLR 260 CA). The question whether there is a reasonable requirement is a
question of fact for the court below to determine.<o:p></o:p>&nbsp;It is argued for defendant that the trial
court did not make that determination i.e. that it erred in not investigating
plaintiff's claim of reasonable requirement which according to defendant was a
false claim. <o:p></o:p>Now, where the Rent Officer
did not conduct investigations or where in his view the investigation is
unsatisfactory, a magistrate to whom the case is referred is not precluded from
conducting investigations of his own (Sackey
v. Kuma 1978 GLR 361). However, in this instant case, the record which was
referred to the court by the Rent Officer contained the evidence of both
parties, the evidence of plaintiff unchallenged. Defendant had the opportunity
to cross-examine the plaintiff but did not do so. Both parties were
unrepresented by counsel and stated their cases on oath. I find that none of
the allegations now being argued on behalf of defendant were raised either
before the rent officer or the magistrate. Section
5(3) of the Evidence Decree 1975 NRCD 323 states that "(3) No finding,
verdict, judgment, or decision shall be set aside, altered or reversed on
appeal or review because of erroneous exclusion of evidence unless - (a) the
substance of the excluded evidence was made known to the court by the questions
asked, an offer of proof or by any other means." As noted, plaintiff made
claims during the hearing which were not disputed by defendant.<o:p></o:p>&nbsp;In the face of the uncontroverted evidence
before her, the Magistrate had reason to be satisfied with the investigation
conducted and to decide not to rehear the case de novo of parties who had been
heard on oath by the rent officer. I should observe here that defendant does
not challenge the record as being a true reflection of the proceedings before
the Rent Officer.<o:p></o:p>&nbsp;The third submission made by counsel for
defendant is that the premises in this case is not a "premises"
within the meaning of Section 17 (1) (g)
of the Rent Act as it was constructed by defendant, and that therefore it
was wrong to order defendant to be ejected under the said Section.<o:p></o:p>&nbsp;I note once again, that the allegation of fact
that the premises in issue was constructed by plaintiff was also first raised
at the hearing of this appeal. This was not an issue raised at the trial and it
cannot be raised on appeal. Moreso when plaintiff in his evidence had stated
that it was a porch defendant had constructed, and this had not been disputed.
I think it is too late in the day to raise this issue of fact as a ground for
setting aside the judgment.<o:p></o:p>&nbsp;In any case, when I consider the substance of
defendant's argument, it is my view that the ratio decidendi in Khartey v. Kasa Distilleries [1991] 2 GLR
73 cited in support of the contention is not applicable to this case. In
that c</main>