STEPHEN KUSI BAMFO v. NANA AMA ASARE

JUDGMENT

TWENEBOA-KODUA, J.A.:

In this appeal from the judgment of the High Court, Kumasi (coram,. Kusi Appiah, J.) the plaintiff is the appellant and the defendant is the respondent.

The facts of the case are set out herein below. The appellant's father took a tenancy of four store rooms in House No. OTB.287, Odum, Kumasi in 1971 from one Fahart, the original owner of the house. The appellant's father operated a trading business, Baffour Bamfo Enterprise, in all the four rooms. He did that with the appellant and others.

In 1974, the respondent's father purchased the house from Fahart, found appellant's father a sitting tenant in the store rooms and duly recognised him as such.

In 1989, the respondent's father passed away and the house devolves upon the deceased persons nuclear family to which the respondent belongs. Even before he died, the respondent's father had taken two of the four store rooms from the appellant's father and had made a bid to take a third room unsuccessfully because the move was resisted. It led to a misunderstanding and the rent paid for the two rooms was treated as rent meant for only a store room. In other words, the respondent or her brother refused to take rent for the room that they sought to re-enter.

Meanwhile the tenancy was due to expire on 28 February 2001 and a statutory notice of six months was given to terminate on that date.

After the tenancy had expired, the appellant's father was given a notice to quit the remaining two store rooms. The respondent's father then brought an action at the Circuit Court for recovery of possession on 25 April 2001.

The appellant's father also died on 18 January 2002. The Circuit Court suit had not been heard. All the same business at BBE did not abate; trading was brisk there.

The misunderstanding depeened. Some correspondence was exchanged between the parties. The appellant laid a firm claim of the BBE as beneficiary in his dead father's Will for which probate had already been granted.

The respondent disagreed that the tenancy that had in any case run out could be an integral part of the bequest to the appellant; the bequest consisted in the stock-in-trade of BBE and not the shop premises for its operation. The respondent's next line of action was the closure of BBE shop: the shop was sealed up. The appellant took out a writ of summons in the High Court, Kumasi for, among other things, a declaration that the closure of BBE was "totally unlawful.....trespassory and without justif