SYSBEN SHADRAWY vs. NANA BOATEMAA OWUSU & ANOR [2006]DLCA6592

Date	2006-06-23
Suit No.	CA/NO. H1/332/2005
Citation No.	[2006]DLCA6592

GBADEGBE JA (PRESIDING)

ADDO JA

QUAYE JA.

MR. ATTA AKYEA FOR THE PLAINTIFF/APPELLANT

MR. AHMED FOR THE DEFENDANT/RESPONDENT

[2006]DLCA6592
																																						<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" >SYSBEN
SHADRAWY<o:p></o:p>(PLAINTIFF/APPELLANT/RESPONDENT)<o:p></o:p>&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;vs.&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; <o:p></o:p>NANA
BOATEMAA OWUSU &amp; ANOR<o:p></o:p>(DEFENDANTS/RESPONDENT/APPELLANT)<o:p></o:p><o:p>&nbsp;</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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. AHMED FOR THE
DEFENDANT/RESPONDENT <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">GBADEGBE, JA (PRESIDING)
ADDO, JA AND QUAYE, JA.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

</div>GBADEGBE,
JA <o:p></o:p>A
prominent Ghanaian that is conveniently in this delivery referred to as O left
the shores of Ghana for England where he lived until his death. The facts
givingsic rise to the action herein that were tried by an Accra High Court
arise out of his occupation of a flat that from the admitted evidence was let
to him by the plaintiff in Putney, London. The relevant facts on which the
action turns may be stated as follows. Whiles in occupation of the premises, O
fell into arrears and when after several demands made on him by his landlady,
the plaintiff herein, he was unable to settle the rent arrears he is alleged to
have made a document, exhibit A by which he gave to the plaintiff his property
situate in a first class residential area in Accra commonly known as Rangoon
Close in satisfaction of the said arrears and future rents. That document was
immediately followed by exhibit B that was expressed in similar terms. The
total of the amount in respect of which financial provision was made in that
document was put at seventy thousand pounds and was plainly expressed to cover
arrears of rent then due from O to the plaintiff at the date of its making as
well as future rents that may be owing to the plaintiff as a result of the
tenancy. Unfortunately, the plaintiff could not act on the said agreement in
her favor before the demise of O. Following the death of O several attempts
were initiated by the parties to resolve the matter amicably but this did not
materialize and as a result the plaintiff caused the action herein to issue
against the personal representatives of O's estate. Since the efforts that were
made to resolve the matter without resort to an action failed nothing of
consequence results from those attempts and as such the evidence contained in
the record regarding those attempts ought not to have been admitted, their
purpose having come to an end. <o:p></o:p>In
his judgment, the learned trial judge allowed in favor of the plaintiff rent
arrears, damages that was described as consequential in the sum of ten thousand
pounds but declined to decree title in favor of the plaintiff in respect of the
Rangoon Close property. The plaintiff feeling aggrieved by the said judgment
caused an appeal to be lodged against same to this court. In the grounds filed,
she complained of the refusal by the court below to decree title in the Rangoon
Close property in her favor. She also attacked the award of damages, the gist
of her complaint being that the court ought to have awarded in her favor thirty
thousand pounds as claimed in the amended statement of claim. Central to her
onslaught on the refusal to decree title in her favor regarding the Rangoon
Close property is the decision of the learned trial judge that appears from the
judgment to be based on the fact that in the course of the trial, the plaintiff
had applied by motion for judgment on admissions. By that application she recovered
against the defendants a monetary award representing rent arrears, an act that
in the opinion of the learned trial judge was deemed to be the exercise by the
plaintiff of a right of election that was alternative to the claim for title to
be decreed in her favor in respect of the Rangoon Close property. Although the
defendants also filed a cross-appeal they took no steps to render same for
determination under the rules and consequently the cross appeal is dismissed. <o:p></o:p>An
examination of the arguments submitted to us in these proceedings raise for our
determination firstly the question whether or not the court below was properly
seizedsic with jurisdiction regarding the award of damages for the
deterioration in the demised premises occupied by O and later by his widow
after his death. The defendants in their statement of case at page 4 wherein it
was canvassed on their behalf by counsel raised this point: <o:p></o:p>"It
is also submitted that the decision of the trial judgment in granting 10,000.00
to the Appellant for an alleged breach of covenant to repair was without
jurisdiction…………" <o:p></o:p>