NATIONAL INVESTMENT BANK vs. ALHAJI SUMANI ZAKARI [2010]DLCA3199

Date	2010-03-26
Suit No.	CIVIL APPEAL NO. H1/234/2006
Citation No.	[2010]DLCA3199

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

AKU SIKA DADZIE ESQ. COUNSEL FOR PLAINTIFF/RESPONDENT

MR. E. K. MUSAH ESQ. COUNSEL FOR DEFENDANT/APPELLANT

[2010]DLCA3199
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													<main id="main" class="content" style="min-height: 60rem" >NATIONAL INVESTMENT BANK<o:p></o:p>vs.<o:p></o:p>ALHAJI SUMANI ZAKARI<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; &nbsp; &nbsp;[COURT OF
APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/234/2006&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: 26TH
MARCH, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AKU SIKA DADZIE ESQ.
COUNSEL FOR PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
E. K. MUSAH ESQ. COUNSEL FOR DEFENDANT/APPELLANT&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MARIAMA
OWUSU (MISS) J.A. (PRESIDING), F.G. KORBIEH J.A., IRENE C. DANQUAH (MS.)&nbsp; J.A.<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;
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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>IRENE C. DANQUAH (MS), J.A. <o:p></o:p>This
appeal is by National Investment Bank who will be referred to as “Appellants”
against the judgment dated 16th June, 2006 by the High Court,
Tamale, in a consolidated suit.<o:p></o:p>In
the said judgment, the trial court held that:<o:p></o:p>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Alhaji Sumani Zakaria (respondent herein) was in
breach of the covenant for quiet enjoyment and therefore awarded to the
Appellant ¢10,000,000.00 damages against the Respondent; and<o:p></o:p>2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Appellant was in breach for non payment of
rent for the year 2001 and awarded ¢4,000,000.00 as rent per month for that
year together with interest at the prevailing bank rate against it.<o:p></o:p>The
undisputed facts in the case were that the appellant had been a tenant of the
respondent for over twenty years by occupying part of the respondent’s property
known as No. 8 Daboya Road, Tamale.<o:p></o:p>On
29th June, 2005, the appellant issued a Writ of Summons at the High
Court, Tamale in Suit No. E 2/15/05 against the respondent for an order for
injunction to restrain the respondent and his servants from doing any acts
which may become a nuisance, damage, annoyance or inconvenience not only to the
appellant but its servants or customers and or in breach of the covenant for
quiet enjoyment contained in a lease dated 12 January, 2004 and made between
the parties. The appellant also claimed for damages. <o:p></o:p>In
its Statement of Claim in Suit No. E2/15/05, the appellant gave a list of the
breaches the respondent was alleged to have committed in respect of the
covenant for quiet enjoyment to include; breaking open part of the property
used by the appellant as a warehouse and giving same to yam sellers to store
their goods, inspection of the property by certain person led by the respondent
to take measurements with the aim of dividing the rooms, threat of the
respondents in the mornings to close down the Bank and attempts to prevent customers
and servants of the appellant from entering the bank. Included in the list was
also the allegation that the respondent had failed to repair a badly leaking
roof of the property irrespective of several requests on him to do so and
finally, the harassment of the appellant by the respondent for rent when to the
appellant no rent was due from them. <o:p></o:p>On
the same day that the appellant filed its Writ of Summons, the respondent also
caused a Writ of Summons to be issued out from the registry of the court in
Suit No. E 2/16/05. The claims of the respondent in that suit were for recovery
of rent of ¢ 48 million cedis for the period 01/01/2001 to 31/12/2001 or in the
alternative rectification of paragraph 2 of the Tenancy Agreement between him
and the appellant dated 12/01/2004 to be determined on 31st
December, 2005. The respondent also claimed interest at the prevailing bank
rate on the ¢48 million from 1st January, 2001 to the date of
judgment and finally for recovery of tax receipts covering ¢16.8 million which
the appellant deducted from monies due to the respondent to pay Internal
Revenue Services or in the alternative recovery of the said amount.<o:p></o:p>