Musbawu Iddrisu Salam v. Mavis Holm
2019
COURT OF APPEAL
GHANA
CORAM
- HONYENUGA, J.A. (PRESIDING)
- SUURBAAREH, J.A.
- AGBEVOR, J.A.
Areas of Law
- Civil Procedure
- Contract Law
- Property and Real Estate Law
- Evidence Law
2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the High Court, the Court of Appeal, per Suurbaareh JA with Honyenuga JA (presiding) and Agbevor JA concurring, set aside the High Court’s judgment in a landlord–tenant dispute over shops constructed at Osu, Accra. Under a written agreement (exhibits A/1), the tenant built two stores on the appellant landlord’s building, but actually constructed two stores and an office, withheld the second store from the landlord, sublet without consent, and unilaterally inserted a revised monthly rent of GH¢70 on an unsigned second part of the agreement (exhibit A1). The Court first addressed procedural irregularities in the pleadings, treating a defence and counterclaim filed on 12 January 2015 as a nullity, while preserving earlier valid pleadings under the Civil Procedure Rules. It held the relationship was governed by the Rent Act, recognised the landlord’s ownership of the premises, found breaches by the tenant, rejected the claim that the landlord must sign the second agreement, ordered accounts and offsetting rents (from March 2009 and April 2013), declined to abrogate the agreement, and awarded GH¢10,000 exemplary damages.
SUURBAAREH, J. A. : On 4th April 2012, the plaintiff/respondent, hereafter called the respondent, issued out a writ of summons, accompanied by a statement of claim, seeking the following reliefs set out his writ at page 2 of the ROA: “1. A declaration that the plaintiff is or lessee of the defendant on the defendant’s land at Osu, Accra.
2. An order to go into account in respect of the sum of Gh¢19, 700. 00 invested by the plaintiff on the land and for same to be treated as payment of ground rent.
3. An order of perpetual injunction to restrain the defendant, her privies and all other persons from interfering with the plaintiff’s lawful possession of the shops built on the defendant’s land.
4. Any other orders. ”The defendant/appellant, called appellant, hereafter, entered appearance on 5th June, 2012, followed by a statement of defence and counterclaim filed on 8th June, 2012 at pages 8-13 of the ROA.
The counterclaim was for the following reliefs: “a. Declaration that the plaintiff by his conduct and breach of the Agreement has abrogated the Agreement executed between the parties or forfeited his rights under the 2nd agreement which has not been executed to date at his instance.
b. An order for accounts to establish how much the plaintiff spent on building one office and two shops to be offset by the new agreed rent on the office and one shop and rent and good wills collected from the rented shops for the balance out of same to be settled by any of the parties who is found to be so liable for same co-general damages.
d. Costs. ”The record shows that on 22nd February, 2013, the respondent applied for leave to file a reply and defence to counterclaim and the motion was scheduled to be heard on 5th March, 2013 (See page 19 of the ROA). Before the date on which the application was to be heard, the respondent, on 26th February, 2013, four days after filing the application, filed a reply and defence to counterclaim said to be with leave, without indicating when the leave sought was granted (See page 25 of the ROA for the reply and defence to counterclaim so filed). Before then, the appellant, on 13th August 2012 had filed applications for directions under Order 32 r. 3(1) of C. I. 47, most probably because the respondent failed, under Order 12 r. 2(3) of C. I. 47, to file a defence to her counterclaim within the time stipulated by the rules.
After filing the reply and defence to counterclaim in the circumstances referred to earlier, the respondent, o