Magna Terris Ltd v. Berthold Paa Joe Gadagbui

AGYEMANG JA: In this appeal from the decision of the High Court dated 2nd December 2015, the defendant/appellant (hereafter referred to as the appellant) seeks an order reversing the ruling of the court below which held that the plaintiff/respondent (hereafter referred to as the respondent) had the right to levy charges on the appellant.

The matters that have given rise to the present appeal are as follows: The respondent in its suit at the court below described itself as a Ghanaian company engaged in the development and management of real estate.

The appellant while denying that the respondent was a manager of real estate, acknowledged that the respondent was a developer of estates and that in or about August 2008 he entered into a contract with the respondent for the construction and sale to him of two properties at Kingsville, Oshiokpo-Dawhenya.

In a twist that is difficult to apprehend, the appellant to whom the duly constructed buildings: (46Ca and 46Cb at Kingsville Oshiokpo-Dawhenya) were sold, and who paid for them fully, was in March 2009, granted a sublease of the properties.

The sublease was duly executed by the parties.

In the sublease, the appellant who was described as a sub-lessor of the property for a period of ninety years, was expressed to hold the property at a reserved annual rent of Fifty Ghana Cedis (GHC50). One of the clauses contained in the said sublease, more particularly clause 3: 10 which is a covenant by the sub-lessee (appellant)with the sub-lessor (respondent), reads as follows: “To pay in common with other SUB-LESSEES or other occupiers if so required, a proportionate part of the charges incurred in making up and maintaining the flat/area, roads, water, electricity, verges, footpath and public open spaces on the Housing Community known as Kingsville where the demised land is situate and forms part thereof”. The respondent apparently acting under the said Clause 3: 10 assessed the charges for the consumption of water, electricity and for infrastructure and sent the bill for each of the appellant’s houses (he had two of them) per an invoice to the appellant.

More particularly, the charges per property (as invoiced), are as follows: GHC 1480 per house for two units of electricity consumed from 6th June 2011 GHC 5, 000 per house as road infrastructure fee as at February 10, GHC 2, 450 per house being water connection fee as at February 10, GHC 980. 04 per house being water usage fee as at February 28, 2014. The appellant r