Thomas Ahenkorah v. Yaw Assoku Akuoko
2022
COURT OF APPEAL
GHANA
CORAM
- Sowah, J.A. (PRESIDING)
- Oppong, J.A.
- Mensah-Homiah, J.A.
Areas of Law
- Civil Procedure
- Contract Law
- Property and Real Estate Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal reviewed a dispute arising from a tenancy arrangement for two newly built commercial stores in Akim Swedru. A would‑be tenant paid ¢32,400.00 for a ten‑year rent advance, later occupied the shops for six months, returned the keys, and sought a refund that the property owner did not honour. The claimant amended his writ to challenge the legality of demanding a ten‑year rent advance under the Rent Act. The owner pursued judgment on admissions or dismissal under Order 33. The appellate court held that Order 23 permits judgment only on admissions of fact or document, not admissions of law, rejected claims of improper case substitution, and found serious procedural impropriety in the trial court’s use of Order 33 without stating and trying issues or hearing parties, breaching audi alteram partem. The Court of Appeal dismissed the motion, set aside the ruling, and remitted the suit for a de novo trial.
SOWAH, (J.A):
This appeal is in respect of the Ruling of the Circuit court, Akim Swedru dated 12th November 2019.
In this appeal the plaintiff/respondent and the defendant/appellant will retain their designations at the trial court.
Background Facts:
The plaintiff advanced ¢32,400.00 representing 10 years rent for two commercial stores that were in the process of being built. Upon completion in 2017, the plaintiff went into occupation for about 6 months and then decided that he was no longer interested in leasing the shops. He returned the keys to the defendant in July 2017 and the defendant promised to refund plaintiff’s money by the end of September 2017. When defendant failed to honour his promise, the plaintiff issued a writ on 29th December 2017 seeking the substantive reliefs of an Order for recovery of the amount, interest thereon and payment of his lawyers’ fees.
In his defence, the defendant averred that the action was uncalled for as the parties had agreed that a new tenant was to be found to enable a refund of plaintiff’s money. After pleadings, witness statements and pre-trial requirements had been completed, the plaintiff on 8th August 2018 amended his writ of summons to add the following as the first relief:
“A declaration that the agreement between the defendant and the plaintiff is illegal and therefore null and void”
It was contended in the amended statement of claim that it was illegal for the defendant to have demanded 10 years rent advance hence the tenancy agreement based on that request was also illegal, null and void.
The Defendant did not file an amended statement of defence. His response to the amended writ of summons and statement of claim was to move the Court for entry of judgment on admissions or to dismiss the action under Order 33. His motion paper was titled: “Motion on Notice for judgment on admissions or in the alternative under Order 33 rules 3 & 5.
Decision of the trial court
In the Ruling which is the subject of this appeal, the trial judge did not think that it would be appropriate to enter Judgment on Admissions, but he purported to proceed under Order 33 rules 3 and 5 of the High Court (Civil Procedure) Rules 2004, C.I. 47. He was of the view that even though a contract may be in violation of the provision of a statute, yet it could be enforceable. However without calling for legal arguments or trying any issue, the learned judge proceeded to pronounce his decision that the plaintiff had paid ¢32,400.00 and