ANDREWS KATTAH VS. SHARDRACK LOMOKWEI [2012]DLCA4561

Date	2012-05-03
Suit No.	H1/86/2012
Citation No.	[2012]DLCA4561

AKAMBA J.A. PRESIDING

MARIAMA OWUSU J.A

GYAESAYOR P.J.A

MR. ANTHONY DESEWU FOR DEFENDANT/APPELLANT

MR. WILLIAM ADDO FOR PLAINTIFF/RESPONDENT

[2012]DLCA4561
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													<main id="main" class="content" style="min-height: 60rem" >ANDREWS KATTAH<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>VS.<o:p></o:p>SHARDRACK LOMOKWEI<o:p></o:p>(PLAINTIFF/RESPONDENT)<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;
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H1/86/2012&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: 3RD May, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. ANTHONY DESEWU FOR
DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
WILLIAM ADDO FOR PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p>AKAMBA J.A. PRESIDING,
MARIAMA OWUSU J.A, GYAESAYOR P.J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>AKAMBA, J.A: <o:p></o:p>This is an appeal from the
judgment of the High Court, Land Division Accra of 31st July 2009 entered
against the defendant/appellant. The defendant/appellant (herein after simply
appellant) who is aggrieved by the decision filed an appeal to this court.&nbsp; <o:p></o:p>The brief facts giving
rise to this appeal are that the plaintiff/respondent (hereinafter simply
respondent) by a writ of summons issued in the High Court on the 10th February
2007 claimed against the appellant for an order appointing a valuer to assess the
economic rent payable for the use of the land from the 1st of June 1979 to
date; an order for the 1st (defendant) appellant to pay to the respondent the
assessed rent; recovery of possession of the said demised land from the
appellant; mesne profits and damages for breach of the terms of the said lease.<o:p></o:p>The appellants denied that
the respondents are entitled to their claim and counter-claimed for an order
for specific performance of the agreement to pay the Lessors twenty five
million old Ghana Cedis.<o:p></o:p>The back ground to the
claim is that the respondent is the son of the late Humphrey Djan Tetteh
Lomotey while the 1st appellant is the son of the late George Kofi Kattah. The
late Humphrey Djan Tetteh Lomotey and brothers had on 5th September 1969
entered into a leasehold agreement, exhibit A, with the late George Kofi
Kattah. Clause 2 of exhibit A states that the ‘Lessors in consideration of the
expense incurred and to be incurred by the Lessee in erecting a building upon
the plot of land thereby demised unto the Lessee all that piece or parcel of
land with the building thereon which land was more particularly described in
the schedule hereto together with all rights easements appurtenances thereto
belonging…..’ for a term of 10 years from the 1st day of June 1969 to 31st May
1979 which was renewable and determinable in a manner contained therein. The
monthly rent payable was NC 30.00. The Lessee on or before the execution of the
agreement paid NC 360.00 being one year rent in advance out of the total rent
of NC 3,600.00 for the ten years.&nbsp; <o:p></o:p>Clause 4 (a) of the
exhibit A provides an undertaking by the Lessor to grant the Lessee a further
ten years upon the expiration of the term thereby created based upon a request
from the Lessee either in writing or oral. The Lessee was also given an option
to purchase the property after the second ten year period. Against this
background the appellants contend that not only did they renew the agreement
after the first ten year period but also that after the second ten year period
they took steps to exercise their option to purchase the property but were
frustrated by the respondents leading to a re-negotiation of the severance fee
through their solicitors Kudjawu and Co. The re-negotiated fee agreed was
25,000 (old) cedis out of which the appellants made a part payment of 11,000
(old) cedis through their counsel to be paid to the respondents. The
respondents upon receipt of the 11,000 (old) cedis considered it not as part
payment of the purchase price but as part payment of rent arrears.<o:p></o:p>The appellants filed the
following grounds of appeal:<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Learned trial judge failed to give
any or any adequate consideration to the case of the defendant.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred by holding
that the lessee could exercise the right to purchase the demised property only
before 31st May, 1979.<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred in law by
holding that the Plaintiff is entitled to recover rent from the 1st day of
June, 1989 to 31st day of July, 2009.<o:p></o:p>(iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Contrary to the evidence on the record the
learned trial judge erred by holding that there is evidence on the record that
the Plaintiff had been making demand for the payment of rent.<o:p></o:p>(v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Learned trial judge erred by holding
that the right of action accrued to the plaintiff after the 27th day of April
2006 and consequently his action was not statute barred.<o:p></o:p>(vi)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Contrary to the evidence on the record the
learned trial judge erred in holding that the 11,000.000.00 (old) cedis the
defendant paid to the plaintiff is not part-payment of the agreed purchase
price but same be converted to rent .<o:p></o:p>(vii)&nbsp;&nbsp;&nbsp;&nbsp; The cost of GHC 5,000.00 awarded by the
Court was manifestly excessive in all the circumstances of the case.&nbsp; <o:p></o:p>I will determine the
grounds listed above together as they are closely related all under the first
ground that the trial judge failed to give any or any adequate c</main>