CLARA MODU GRANT vs. MAIDEN PHARMACY LIMITED [2009]DLCA6690

Date	2009-04-23
Suit No.	CIVIL APPEAL NO. H1/196/07
Citation No.	[2009]DLCA6690

ASARE-KORANG J.A. [PRESIDING]

AYEBI J.A.

ADUAMA OSEI J.A.

[2009]DLCA6690
																																						<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" >CLARA MODU GRANT<o:p></o:p>vs.<o:p></o:p>MAIDEN PHARMACY LIMITED<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. H1/196/07&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: 23RD APRIL 2009<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ASARE-KORANG
J.A. [PRESIDING], AYEBI J.A., ADUAMA OSEI J.A. <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 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ADUAMA OSEI J.A <o:p></o:p>The
Plaintiffs/Appellants are the owners of premises at Okaishie known as House No.
877/4, Station Street, Okaishie, Accra. <o:p></o:p>Sometime
in 1980, the Plaintiffs/Appellants let out a one-door store-room on the said premises
to the Defendant/Respondent for use as a pharmacy shop.&nbsp; No document was executed in respect of the
said transaction, but on 1st June, 1991, a tenancy agreement was executed
between the parties which set out their respective rights and obligations.&nbsp; The agreement gave the Defendant/Respondent a
10-year term with an option to renew it for a further 10 years.&nbsp; Under paragraph 5(3) of the agreement, if the
Defendant/Respondent was desirious of having the lease renewed, it was obliged
to give written notice of its desire for renewal to the Plaintiffs/Appellants
three months before the expiry of the 10-year term. <o:p></o:p>The
Plaintiffs/Appellants say in their Statement of Claim that the
Defendant/Respondent did not give any written notice of its desire to have the
tenancy renewed within the stipulated period, and that by a letter dated 16th
March, 2001, they (Plaintiffs/Appellants) informed the Defendant/Respondent
that they required the store for their personal use. <o:p></o:p>The
Defendant/Appellant responded by saying that it did not write in accordance
with Clause 5(3) of the agreement because the Plaintiffs/Appellants did not
disclose their postal address in the agreement.&nbsp;
The Plaintiffs/Appellants however did not consider the explanation of
the Defendant/Respondent as reasonable and regarded the Defendant/Respondent’s
continued occupation of the store room as constituting a trespass.&nbsp; They accordingly instituted an action in the
High Court, Accra, claiming recovery of possession of the said store room,
¢1,200,000.00 as arrears of rent, mesne profits and costs. <o:p></o:p>In
its Statement of Defence, the Defendant/Respondent contended that even though
the tenancy agreement provided for the notice of intention to renew to be
delivered by hand or registered post, no postal address whatsoever was given in
the agreement and there was therefore no means by which the
Defendant/Respondent could serve the said notice on the
Plaintiffs/Appellants.&nbsp; The
Defendant/Respondent contended that it was the failure of the
Plaintiffs/Appellants to provide their address in the agreement that made it
impossible for it to comply with Clause 5(3).&nbsp;
It considered therefore that the Plaintiffs/Appellants were not entitled
to their claim.&nbsp; The Defendant/Respondent
subsequently amended its Statement of Defence to include a counterclaim by
which it sought an order compelling the Plaintiffs/Appellants to renew the
tenancy on the basis that having accepted rent from the Defendant/Respondent,
the Plaintiffs/Appellants had “acquiesced to Defendant’s request to renew the
agreement.”&nbsp; The Defendant/Respondent
also sought an order of perpetual injunction to restrain the
Plaintiffs/Appellants, their servants agents or assigns from ejecting it from
the store room. <o:p></o:p>At
the close of pleadings, the issues that were set down for determination by the
trial Court were: <o:p></o:p>i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the Managing Director picked
up one of the Plainitiffs in his car to Lawyer Okai Anderson’s house for the
signing of the lease and could therefore not deny knowing of Plainitiffs’
residence. <o:p></o:p>ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not Plaintiffs’ attorney was
unavailable. <o:p></o:p>iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the Defendants are in breach
of clause 5(3) of the lease. <o:p></o:p>In
its judgment delivered on the 28th of June, 2005, the trial Court considered
that the Plainitiffs/Appellants had failed to show that they reasonably
required the premises for their own business purposes and accordingly dismissed
the Plaintiffs/Appellants’ claim.&nbsp; The
trial Court also ordered the Plaintiffs/Appellants to renew the tenancy agreement
for the Defendant/Respondent for another 10 years on terms to be agreed between
the parties. <o:p></o:p>Aggrieved
by the judgment of the trial Court, the Plaintiffs/Appellants have appealed to
this Court against the same.&nbsp; The
judgment appealed against is at pages79 to 85 of the Record of Appeal and the
Notice of Appeal appears at pages 86 and 87 of the Record.&nbsp; The Notice of Appeal discloses one ground of
appeal which is that “The judgment is against the weight of evidence.”&nbsp; Since the Notice was filed, however, the
Plaintiffs/Appellants have obtained leave of the Court to argue additional
grounds and the appeal is now being prosecuted on four grounds, which are
formulated as follows: <o:p></o:p>