MARK K. KYEREH vs. MARY AMMA ANIMAH [2011]DLCA3708

Date	2011-02-25
Suit No.	CIVIL APPEAL NO. H1/32/2010
Citation No.	[2011]DLCA3708

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

F.G. KORBIEH J.A

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

[2011]DLCA3708
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													<main id="main" class="content" style="min-height: 60rem" >MARK K. KYEREH<o:p></o:p>vs.<o:p></o:p>MARY AMMA ANIMAH<o:p></o:p>&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. H1/32/2010&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 25TH FEBRUARY, 2011<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. AND IRENE C. DANQUAH (MS.),
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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JUDGMENT<o:p></o:p>

</div>F.G.
KORBIEH, J.A. <o:p></o:p>The
facts of the case leading to this appeal may be summarized as follows. The
plaintiff/respondent (hereinafter only referred to as the appellant) was the
tenant of plaintiff/respondent (hereinafter only referred to as the
respondent).&nbsp; According to the respondent’s
statement of claim before the trial High Court, the appellant rented a big
store-room from her for a period of eleven years, 8 months at the total rent of
¢16,800,000.00 starting from 2002; that after using the room for the first four
years, the appellant vacated the premises and locked up the place; that after
one year and over, she realized that the place was deteriorating very fast and
so she reported the matter to the Commission for Human Rights and
Administrative Justice (CHRAJ) at Techiman; that at the CHRAJ office it was
agreed that the respondent would refund the appellant’s money to her in
exchange for the key to the store-room; that the respondent performed her part
of the agreement but the appellant failed to do his part for no just reason;
that the appellant was intentionally allowing the room to deteriorate as he had
stopped doing any business in the room; wherefore she prayed the court for an
order of ejectment against the appellant. The appellant denied most of the
material allegations of fact made by the respondent. According to him, the
tenancy relationship between him and the respondent started in the early 1990s;
that in 1998 the respondent took some rent advance from him while the previous
tenancy would still subsist until 2013 thus increasing the tenancy period to
April, 2018; that the new tenancy agreement was reduced into writing and
executed by the respondent; that thereafter the respondent took a further rent
advance of ¢16,800,000.00 in 2002 culminating in the tenancy agreement executed
that year; that this last tenancy agreement further increased the tenancy
duration by eleven years, four months and would thus expire in June, 2030; that
when the respondent asked for more rent advance, he refused to pay; that the
respondent took the matter to CHRAJ but no agreement was reached there as
claimed by the respondent as the relationship between him and the respondent
was one of contract and no human rights issue was involved; that he was still
using the room for the purpose for which he had acquired it; that the
respondent was not entitled to the reliefs sought. The respondent filed a reply
to the appellant’s statement of defence in which she started by maintaining
that all the averments she made in her statement of claim were true. She
however went on to concede that the appellant started occupying the store-room
in 1993. He also admitted paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 of the
statement of defence. She also averred that “the defendant locked up the room
but have (sic) currently subleted (sic) it to a third party who is conducting
trade in the premises.” At the close of proceedings the case was set down for
trial on the sole issue of whether or not the plaintiff was entitled to her
claim. During the trial the respondent testified herself and called one
witness. The appellant testified through his lawful attorney during which the
lawful attorney tendered in evidence (without any objection) the power of
attorney donated to him by the appellant. He called no witness and accordingly
closed his case. The case was adjourned to the 8/5/2009 for judgment but on the
return date instead delivering a judgment, the court decided on a visit to the
locus in quo. This was subsequently done by the trial judge, the registrar of
the court, the appellant and the respondent’s representative. The registrar
later tendered a report on the visit to the locus in court. Thereafter the
trial court delivered the judgment in favour of the respondent. In the said
judgment the trial court, after narrating the averments made by the respondent
in her statement of claim, went on to hold that the power of attorney tendered
by the appellant’s lawful attorney was invalid under the Power of Attorney Act,
1998 (Act 549) and consequently that the statement of defence filed by the
appellant’s lawful attorney, his evidence-in-chief at the trial and his
evidence during cross-examination were all invalid. The trial court therefore
considered only the evidence proffered by the respondent and delivered the
judgment without any consideration of the evidence of the appellant’s lawful
attorney. The trial court however took into account the evidence adduced at the
visit to the locus in quo. <o:p></o:p>It is this judgment that the appellant
has appealed against.&nbsp; Five original
grounds of appeal were filed. These were:<o:p></o:p>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment was against the weight of
the evidence.<o:p></o:p>2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment was not borne out by the
evidence on the record.<o:p></o:p>3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;