MARY YARBOLEY OKAI & others vs. NICHOLAS TIMOTHY CLERK [2007]DLSC2444

Date	2007-03-23
Suit No.	CIVIL APPEAL NO.J4/`5/2007
Citation No.	[2007]DLSC2444

MISS AKUFFO J.S.C.(PRESIDING

BROBBEY J.S.C.

ANSAH J.S.C.

MRS. ADINYIRA J.S.C.

ASIAMAH J.S.C.

MR. ADUMUAH-BOSSMAN FOR APPELLANTS

MR. FRANK ADEEKU FOR RESPONDENTS.

[2007]DLSC2444
																																						<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" >MARY YARBOLEY OKAI &amp; others<o:p></o:p>vs.<o:p></o:p>NICHOLAS TIMOTHY CLERK<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO.J4/`5/2007<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: 23RD MARCH, 2007.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
ADUMUAH-BOSSMAN FOR APPELLANTS<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">

MR.
FRANK ADEEKU FOR RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

MISS
AKUFFO J.S.C.(PRESIDING, BROBBEY J.S.C., ANSAH J.S.C., MRS. ADINYIRA J.S.C.,
ASIAMAH J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>&nbsp;BROBBEY, J.S.C.:This is an appeal from the
judgment of the Court of Appeal which had&nbsp;
dismissed an earlier appeal from the High Court by the appellants before
this court.<o:p></o:p>&nbsp;The facts giving rise to the litigation are as
follows: The case concerns a house which was originally owned by one Mark
George Okai. He died intestate on 17th September 1939, leaving behind male and
female children. On his death, letters of administration were granted to
William George Okai, his eldest son, and Samuel Adotei Brown, his nephew. Both
died later. On 14th August 1945, two daughters of Mark G Okai entered into a
lease agreement with Nicholas Timothy Clerk in respect of that house. The house
was leased to the latter for sixty years at a yearly rental of sixty pounds
commencing from 1st August 1945. The lessee paid seven hundred and fifty pounds
on execution of the lease and another seven hundred and fifty pounds, the
latter being one-half of the children’s share. The children’s share was later
returned to the lessee and was never repaid by him. By calculation, the lessee
paid rent from 1st August 1945 to 30th April 1964 which amounted to eighteen
years and nine months.<o:p></o:p>&nbsp;In spite of the execution of the lease, some
of the children of Mark G. Okai remained in occupation of the house and even
collected rents from some tenants. The lessee took action against those
children, claiming two hundred pounds as damages for trespass, an order of
ejectment and refund of rents collected by them. He obtained judgment against
them. The co-defendants in that case appealed to the West African Court of
Appeal (WACA). The appeal failed. The WACA judgment ordered the lessee, at his
own expense, to obtain planning permit, pull down the existing structure and
construct an entirely new building in its place. <o:p></o:p>&nbsp;He failed to comply with that order. He also
failed to pay rent from May 1964.<o:p></o:p>&nbsp;In June 1983, the surviving children of the
late Mark Okai sued the lessee for one thousand one hundred and forty five
pounds being rent arrears for 229 months from 1st May 1964 to 1st May 1983,
mesne profits and forfeiture of the lease for breach of covenant to pay rent
and non compliance with the order of WACA already referred to. For convenience,
those children will be referred to as the plaintiffs and the original defendant
will be referred to as N. T. Clerk for short.<o:p></o:p>&nbsp;N. T. Clerk filed his defence to the action in
August 1983. He died in May 1985. Letters of administration were granted to the
substitute defendants in 1992. After pending in court for some time, the case
was finally determined in November 2002 in favour of the plaintiffs. An appeal
by the substitute defendants failed in the Court of Appeal. It was against the
judgment of the Court of Appeal that they have appealed to this court.<o:p></o:p>&nbsp;At the trial, the main defence put up by the
appellant was that after the court action which ended with the WACA judgment,
the house in question was ordered by court to be auctioned. The auction resulted
in the house being bought by Henry Quarcoo Mensah. After the purchase, it was
re-sold to N. T. Clerk by Henry Quarcoo Mensah and Samuel Adotei Brown, the
latter being the head of family and successor to the late Mark George Okai. The
re-sale was registered in 1953 as DR No. 679/1953. The appellants contended
that since the property had been bought by N. T. Clerk, he had no obligation to
comply with the WACA order or to continue to pay rent. In effect, it was their
case that the lease ceased to exist with the coming into being of the
registered conveyance on the sale of the property.<o:p></o:p>&nbsp;Both the High Court and the Court of Appeal
rejected the defence for reasons which were quite sound. In the first place,
the whole line of defence was a clear afterthought. The original defendant, N.
T. Clerk, filed his defence to the action of the plaintiffs. In that original
defence, he stated in paragraph 12 that he had complied with the WACA order to
pull down the house and rebuild it. There was no evidence that he had complied
with the court order. When he employed Mr. Johnny Hansen as his solicitor, he
filed an amended defence to the effect that the defendant attempted to comply
with the WACA order but was prevented from doing so by the children of the late
Okai, especially the fourth plaintiff who testified on behalf of the
plaintiffs. The defendant could not have complied with the order and at the
same time alleged that he attempted to comply with the same order. The
inconsistency in his stand only showed that there was no compliance by the
defendant of the order in question. <o:p></o:p>&nbsp;The evidence on record showed that the trial
judge and the Court of Appeal were right in not accepting the defence that the
WACA order was complied with. A building permit was necessary to be able to
pull down the existing structure and re-build it as ordered by the court. There
was no evidence of a building permit. The house to be rebuilt was the very
subject matter up till this present appeal. If indeed it had been rebuilt, the
parties would have been aware of it as a physical structure. No such evidence
was adduced because the appellants knew very well that no demolition and
re-construction had taken place. The relief of the plaintiff for forfeiture of
the lease based on non-compliance with the WACA order was well established.
Both the trial Court and the Court of Appeal were right in ruling in favour of
the plaintiffs on this issue. <o:p></o:p>The
stand of the defendants that N. T. Clerk did not have to pay rent since he had
bought the house at a public auction was contrary to the stand taken by N. T.
Clerk himself when he was alive. In his defence to the action, he stated that
he was willing to pay rent if the plaintiffs were willing to accept same. He
then proceeded to pay into court an amount in Cedis which by conversion covered
the arrears of rent that the plaintiffs claimed. N. T. Clerk himself never
referred to any auction sale when he first filed his defence. The ideas of
auction sale and purchase of the property were introduced into the case by the
defe</main>