MOST REV. DR. ROBERT ABOAGYE MENSAH AND 3 OTHERS vs. YAW BOAKYE AND 3 OTHERS [2019]DLHC6905

Date	2019-07-22
Suit No.	SUIT NO: CM/RPC/04362019
Citation No.	[2019]DLHC6905

HIS LORDSHIP ERIC KYEI BAFFOUR ESQ. JUSTICE OF THE HIGH COURT

[2019]DLHC6905
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													<main id="main" class="content" style="min-height: 60rem" >MOST
REV. DR. ROBERT ABOAGYE MENSAH AND 3 OTHERS<o:p></o:p>vs.<o:p></o:p>YAW
BOAKYE AND 3 OTHERS<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL DIVISION 7), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: CM/RPC/04362019&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: 22ND JULY, 2019<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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HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE
HIGH COURT<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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</div>Plaintiffs/Applicants seeks by this application which
is planked on Order 25 Rule 2 of the High Court (Civil Procedure) Rules, C. I.
47 an order of the court for the Registrar of the court to enter property No. 6
&amp; 7 Independence Avenue, Accra, being the res litiga for which Applicants writ seeks a number of reliefs
including recovery of possession, recovery of rent arrears, mesne profit, damages for breach of contract
etc. Applicants pray for further orders for the inspection of the books of the
tenants put in occupation by the 1st Defendant/Respondent and for an
order for the preservation of rent payable by the tenants pending the final
determination of the suit.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The basis for such prayers before the court is founded
on the reasons distilled in a 26 paragraph affidavit and a supplementary
affidavit deposed to by Frank Beechem, a member of the Board of Trustees of the
4th Applicant and which can be summarized as follows:<o:p></o:p><o:p>&nbsp;</o:p>That the 1st to 3rd Applicants,
being Trustees of the 4th Applicant, who is the beneficial owner of
Plot No 6 and 7, Independence Avenue as a result of the Will of Edward Osei
Boakye (deceased) which devise was upheld in court decisions and a consent
judgment of the Supreme Court. That flowing from the consent judgment, 1st
Defendant/Respondent was granted a sublease of the property on the 29th
of April, 2016 for a period of fifteen years with $35,000 as rent per month
payable annually in advance. That subsequently 1st Respondent placed
tenants in occupation including 3rd and 4th Respondents
with 2nd Respondent being a company under the control and direction
of 1st Respondent. Applicants further claim that with the exception
of the initial rent which was paid in 2014, the 1st Respondent has
refused to pay rent from 1st May, 2016 to 30th April,
2019 in the sum of $1,260,000 which keep rising and that the refusal of 1st
Respondent to pay rent, which he has attributed to a spurious excuse of the non-securement
of a written consent by the Applicants from the Lands Commission to sub-let the
property. That 1st Respondent’s claim that due to the non-citing of
the written consent by the tenants they have refused to pay rent does not hold
water and amounts to a breach of the agreement between them. <o:p></o:p><o:p>&nbsp;</o:p>It is further claimed that 1st Respondent
having submitted to judgment and voluntarily executed the sublease requiring
him to pay rent or face eviction, the refusal of 1st Respondent to
pay rent is frivolous and intended to overreach the Applicants. That the Applicants
intend to abate the continuous disregard of the authority of Applicants subject
to the final determination of the suit and as 3rd and 4th
Respondents are in occupation of the property as rent paying tenants, it
contends that it is only just that the Registrar be appointed and ordered by
the court to inspect and ascertain the number of tenants in occupation of the
property, their receipt books and further order that the tenants pay future
rent to the court pending the determination of the suit. <o:p></o:p><o:p>&nbsp;</o:p>1st Respondent has opposed the application
and called for its dismissal. First he contends that though ownership of the res litiga is vested in the Applicants,
yet management is under his control by virtue of the judgment that was
compromised on the 24th of April, 2016. That the Applicants breached
the terms of the consent judgment when they failed to execute the sublease in
his favour within 30 days but rather did so after the expiration of one and
half years. That he has subsequently expended huge sums of money to transform
the property from uncompleted structures to a world class standard edifice with
a view to letting out parts of the property to prospective tenants to meet his
huge obligations of investments he had made in the building. That further the
failure by the Applicants to obtain the consent of Lands Commission has
incapacitated him from letting out the property to prospective tenants, who
have been asking to see the written consent as part of due diligence they
undertake. This has been exacerbated by the conduct of Applicants placing
advertisements in the dailies warning prospective tenants not to deal with him
which has scared tenants away and this amount to a breach of the
agreement.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>1st Resp</main>