JACOB ADJIN AYITEY vs. KASAPA TELECOM LTD. [2018]DLHC11577

Date	2018-07-27
Suit No.	SUIT NO. CM/0033/15
Citation No.	[2018]DLHC11577

HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)

[2018]DLHC11577
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													<main id="main" class="content" style="min-height: 60rem" >JACOB ADJIN AYITEY<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>KASAPA TELECOM LTD.<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM:<o:p></o:p>HER
LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;tab-stops:90.8pt;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>By a
writ dated the 30th day of October, 2015, Plaintiff prays this court to compel
Defendant to;<o:p></o:p>&nbsp;“i. Pay the cedi equivalent of outstanding
$16, 800 rent owing in respect of the lease agreement at current Dollar rate
plus interests accruing thereon at prevailing commercial rates with effect from
10th June, 2014 till date of final payment.<o:p></o:p>i. 1
Million GHC Damages for bleach [sic] of contract.<o:p></o:p>ii.
Costs including Plaintiff’s litigation expenses and Solicitor’s fees.<o:p></o:p>iii.
Any other reliefs the Court may deem fit. "<o:p></o:p>It
is the case of Plaintiff that he is the Lessor of a parcel of land situate
H/No. 13, Adedentan Street, Mamprobi, Accra. In or about the year 2012, he
entered into an agreement to lease the said portion of land to the Defendant
for a period of ten (10) years commencing the 10th day of June, 2012 and
expiring on the 9 th of June 2022. Plaintiff says that per the agreement, the
monthly rent for the first four years of the lease was Seven Hundred United
States Dollars (US$700.00) payable two (2) years in advance. The Defendant as
Lessee made an initial payment of Sixteen Thousand, Eight Hundred United States
Dollars (US$16, 800) in 2012 covering the first two (2) year period but failed
to make payment for the next two (2) years as agreed, even though the same fell
due on the&nbsp; day of June, 2014. The
several demands by Plaintiff on Defendant to make good the said amount have
yielded no results. It is for this reason that Plaintiff seeks the intervention
of this Court.<o:p></o:p>On the
12th day of November, 2015, the Defendant entered conditional appearance to the
suit and subsequently filed a defence to same on the 11th day of February,
2016.<o:p></o:p>Following
the Parties’ inability to settle the dispute at the pre-trial conference, the
matter was set down for trial. The issues set down for determination were;<o:p></o:p>1)
Whether or not the defendant having failed, refused or neglected to pay the
rent constitutes a breach of the lease agreement.<o:p></o:p>2)
Whether or not Plaintiff is entitled to his claim<o:p></o:p>3) Determination
of the cedi equivalent of $16,800 debt owed.<o:p></o:p>4)
Determination of interest to be paid thereon by Defendant if any.<o:p></o:p>5)
Determination of costs to be paid by Defendant if any.<o:p></o:p>This
Court accordingly, on the 6th day of February, 2018, gave directions for the
further conduct of the suit. The Defendant though absent on the said date was
duly notified of the Court’s orders regarding discoveries and the filing of
witness statements but failed to comply with same. Again, on the 10th day of
April 2018, when the matter came up for case management conference both
Defendant and its Counsel were absent from Court without explanation though
having been duly notified. Given the Defendant’s persistent default and
disregard for the orders of this Court, its statement of defence filed on the
11th day of February, 2016 was struck out on the said date in accordance with
Order 32 Rule 7A (3)(b) of the High Court (Civil Procedure) Rules (CI 47) as
amended by CI 87. The Plaintiff’s suit therefore stood uncontested at the
trial.<o:p></o:p>This
fact notwithstanding, the Plaintiff still bore the burden of proving his case
on a balance of probabilities. See Sections 10 and 11 of the Evidence Act (NRCD
323)<o:p></o:p>It
emerged at the trial that the Parties’ relationship commenced as far back 2002,
when the same portion of land was leased to the Defendant for a period of ten
(10) years. The said lease agreement subsisted for the agreed ten (10) year
period without incident and expired on the 9th day of June, 2012. Prior to the
expiry of the said term, Defendant notified Plaintiff by EXHIBIT A of its
desire to renew the lease for a further ten (10) years, pursuant to which the
Parties entered into the terms contained in EXHIBIT B. Unfortunately, it is the
failure of the Defendant to comply with EXHIBIT B that has provoked the instant
suit. EXHIBITS C, C1, D, E and F were tendered as proof of the several demand
notices and reminders sent to Defendant but which have been completely ignored
by Defendant till date. I find that the exhibits tendered amply support the
case of Plaintiff. It is also noted that the Defendant failed to take advantage
of the opportunity granted it to appear to cross-examine Plaintiff on his
testimony. Plaintiff’s testimony therefore stands unchallenged. I accordingly
find that Plaintiff has discharged the burden of proof and is entitled to the
reliefs he seeks. Plaintiff complains that the Defendant continues to occupy
his land in spite of its persistent failure to pay the rent reserved. He
however does not pray for recovery of possession of the land in question. I
will therefore confine myself to the reliefs sought per his writ of summons.<o:p></o:p>Based
on the foregoing I find that the Defendant is in breach of the lease agreement
for nonpayment of rent for the second (2nd) year term of the initial four (4)
years of the lease as contained in clause 3.2.2 of EXHIBIT B. In respect of
Plaintiff’s prayer for damages of One (1) million Ghana Cedis for breach of the
lease agreement, I find that there is simply no evidence to sustain the quantum
claimed. It is however clear that the Plaintiff is entitled to some measure of
damages. <o:p></o:p>Quite
obviously, Plaintiff ha</main>