SBAITI v. SAMARASINGHE

JUDGMENT OF LAMPTEY AG.J.

In this action the plaintiff claims by the endorsement on his writ of summons as follows: "Specific performance of leasehold agreement between the parties dated 21 November 1974 in respect of new premises adjacent to house No. 45, Seventh Avenue Extension, Accra." The case of the plaintiff was set out in the statement of claim annexed to the said writ of summons at paragraphs (2), (3), (5) and (7). These are:

"(2) The defendant is the owner of the new premises adjacent to house No. 45, Seventh Avenue Extension, Accra.

(3) On or about 21 November 1974 the defendant agreed to let and the plaintiff to hire the said premises at a rental of ¢5,000. 00 per annum for use as a school . . .

(5) In pursuance of the said agreement the plaintiff on periods dated [p.363] between 22 November 1974 and 28 August 1975 supplied the defendant building materials and cash for the completion of the demised premises to the tune of ¢8,201.24 . . .

(7) The said building is now ready for occupation but the defendant through her husband and by herself has refused to let the plaintiff go into possession."

The defendant resisted the plaintiff’s claim and denied that there was any agreement to let the premises to the plaintiff. The case of the defendant was set out in the statement of defence as follows:

"(2) As to paragraphs (3) and (4) of the statement of claim the defendant says that . . . the arrangement was temporary. There was therefore no agreement for a lease.

(4) The defendant admits that building materials were supplied to her . . ."

Then the defendant counterclaimed as follows:

"(12) The plaintiff has paid no rent for the buildings occupied by the school since the school went into occupation.

(13) The defendant claims rent at the rate of ¢150.00 per month from 28 December 1974.

(14) The defendant claims damages for waste. The defendant claims recovery of possession."

The following issues were set down for trial and determination by this court:

"(1) Whether or not there was an agreement to lease the premises for use as a school.

(2) Whether or not in pursuance of the said agreement the plaintiff advanced building materials and cash to the defendant for the completion of the building.

(3) Whether or not the plaintiff is entitled to specific performance of the said agreement."

After the plaintiff and the defendant had each closed their case but before counsel for each party made his final address, Mr. Tawiah Adamafio, counsel for the