INNOVA HOLDINGS LIMITED vs. MRS. AGNES GERTRUDE OSEI [2018]DLCA5596

Date	2018-06-21
Suit No.	SUIT NO. H1/137/2017
Citation No.	[2018]DLCA5596

F. KUSI-APPIAH JA (PRESIDING)

G. TORKORNOO (MRS.) JA

M. M. AGYEMANG (MRS.) JA

MR. EDEM NUHOHO FOR PLAINTIFF/RESPONDENT

MR. THADDEUS SORY FOR DEFENDANT / APPELLANTS

[2018]DLCA5596
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													<main id="main" class="content" style="min-height: 60rem" >INNOVA
HOLDINGS LIMITED<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MRS.
AGNES GERTRUDE OSEI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT OF
APPEAL (CIVIL DIVISION), 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">

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>MR. EDEM NUHOHO
FOR PLAINTIFF/RESPONDENT<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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR.
THADDEUS SORY FOR DEFENDANT / APPELLANTS<o:p></o:p>

</div>CORAM: <o:p></o:p>F. KUSI-APPIAH JA (PRESIDING), G. TORKORNOO (MRS.) JA, M. M. AGYEMANG
(MRS.) JA<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="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0in;margin-bottom:
.0001pt;mso-add-space:auto;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>AGYEMANG JA:<o:p></o:p>This
is an appeal against the judgment of the High Court, Land Division, Accra,
delivered on the 21st day of March 2016. The defendant/appellant herein,
(referred to hereafter alternately as the defendant, or the appellant), seeks a
reversal of the said judgment which was entered for the plaintiff/respondent
(referred to alternately as the plaintiff, or the respondent).<o:p></o:p>The following antecedent matters have
given rise to the instant appeal.<o:p></o:p>The appellant is a real estate company,
and the respondent, the owner of premises described as No. 70, Volta Street,
Airport Residential Area, Accra. It is common ground that at the time of the
transaction the subject of the instant suit, there were two building structures
on the land. The first was a five-bedroom one-storey building with inter alia, two garages, and a
two-bedroom outhouse (Building No. 1). The second was a partly-constructed
six-bedroom structure (Building No. 2). <o:p></o:p>On the 18th of September
2008, the parties herein executed a lease by which the respondent let, and the
appellant took, the premises described as No. 70 Volta Street, Airport
Residential Area, Accra, comprising the two properties aforesaid, for a period
of twenty-five years, at a rent of US$2000 per month. An advance payment of the
first seven years: US$168,000 payable by the appellant, was agreed upon, and thereafter,
the monthly rent was to be paid every two years. <o:p></o:p>It was a term of the Tenancy Agreement –
Exhibit A, that the property was being let on an “as is” basis, and that the
tenant (appellant) was to renovate and remodel at its own expense for the
purpose of subletting. This agreement for renovation and remodeling was made the
tenant’s covenant, and together with the stated purpose: being the subletting
of the premises, it was transformed from a simple tenancy agreement, to a
hybrid tenancy/construction/investment contract.<o:p></o:p>In all the references to “Premises” -
which was the description of the property let by the respondent to the
appellant, it referred to the two buildings described as Property No. 1 and 2
by the court below. In this judgment, they are described as Building No.1 and
Building No. 2, on No. 70 Volta Street, Airport Residential Area, Accra. <o:p></o:p>Building No. 2 referred to a yet to be
completed structure, and Building No 1, was as aforesaid, a five-bedroom house
with a two-bedroom outhouse. <o:p></o:p>In accordance with the agreement, the
appellant commenced work on Building No. 2. The said structure was at some
level of development. The defendant’s representative: its Board Chairman described
it as forty percent (40%) complete at time of contract, although DW1 placed the
completion level at a much higher level: eighty-five percent (85%) to ninety-five
percent (95%) completed. The discrepancy is no moment however, as the level of
completion was not made an issue. The parties agreed that work was to be done
on it.<o:p></o:p>It is unclear at what point the
respondent who lived on the premises: No. 70 Volta Street, Airport Residential
Area, moved out of Building No. 1 which she occupied at the time of contract.
This is because the evidence adduced in that regard was conflicting, for while
the plaintiff maintained that she left the premises two years before work
started, the defendant’s representative and its witness DW1 stated that the
plaintiff in fact remained thereat while Building No. 1 was undergoing its construction
and left just before work</main>