IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT

OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA

ON FRIDAY THE 4TH DAY OF NOVEMBER, 2022 BEFORE HIS

LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE

SUIT NO: GJ/1217/2017

1. EUGENE ASIAMAH BOADI

NO. 1 DECORBUILD

OPPOSITE MELCOM

EAST LEGON, ACCRA

2. MET CAPITAL COMPANY LIMITED PLAINTIFFS

3. ASI-B PENSIONS TRUST LIMITED

4. ASI-B SAVINGS AND LOANS LIMITED

VS

ERNEST OPOKU AGYEMANG RESPONDENT

NO. 3 & 5, CSIR, OTINSHIE ROAD

EAST LEGON, ACCRA

JUDGMENT

Plaintiffs issued out their Writ of Summons claiming against the Defendant

as follows:-

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 a. Special Damages for the sum of One Million, Two Hundred Thousand
Ghana Cedis (GH¢1,200,000.00) for destroyed and missing office

wares.

b. General Damages for the sum of One Million Ghana Cedis

c. Cost including legal fees.

The Defendant also counter-claimed against the Plaintiffs as follows:-

a) A declaration that the 1st Plaintiff breached the Tenancy Agreement

executed by the parties on the 29th December, 2015 on the grounds of;

i. Failure to pay rent on due date

ii. Sub-letting the property to 3rd Parties i.e. 2nd, 3rd and 4th Plaintiffs

without the knowledge, consent and authorization of the

Defendant.

iii. Damages for breach of contract.

iv. Order for specific performance of the handwritten agreement

prepared by the 1st Plaintiff and executed by the Parties on 2nd

June, 2017.

v. Cost.

PLAINTIFFS’ CASE:

The 1st Plaintiff filed a Witness Statement on behalf of the Plaintiffs.

In their Witness Statement, the 1st Plaintiff stated that he (1st Plaintiff)

executed a Tenancy Agreement with the Defendant on 29th December 2015.

According to the 1st Plaintiff in the said Tenancy Agreement, he was to take

up for rent three separate storey buildings for the purpose of using same for
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his financial business. The monthly rent was US$4,500.00 for all the three

separate storey building blocks.

The 1st Plaintiff paid the annual rent of Fifty Four Thousand US Dollars

(US$54,000.00) covering 1st January 2016 – 31st December, 2016. This was

renewable for the next 2 years i.e. the year 2017 and 2018.

After the expiration of the year 2016, the 1st Plaintiff opted to pay rent for the

year 2017 per a post-dated cheque, payable on 31st March, 2017 (instead of

the 1st January, 2017). This offer was rejected by the Defendant. The

Defendant therefore served a Notice of Eviction on the 1st Plaintiff on the 17th

March, 2017.

On the 4th day of May 2017, the Defendant entered the premises with thugs

(which he claimed are his workmen) and forcibly evicted the 1st Plaintiff and

other Plaintiffs, throwing out all of Plaintiffs office-wares and belongings

outside the office premises. These office-wares were left at the mercy of the

weather and it rained on them on that fateful day.

According to the 1st Plaintiff, upon these acts of the Defendant, the Plaintiffs

were compelled to move their wares from the Defendant’s premises.

1st Plaintiff states that before Plaintiffs were allowed to collect the remaining

office wares including a B.M.W Vehicle parked on the premises belonging to

a Third Party, the Defendant demanded One Hundred Thousand Ghana

Cedis (GH¢100,000.00) from the Plaintiffs to cater for the cost of renovating

the properties as well as the 3 months’ rent owed. To that effect, the 1st

Plaintiff wrote an undertaking to pay the said sum of One Hundred

Thousand Ghana Cedis (GH¢100,000.00) to the Defendant per Exhibit ‘5’.

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The 1st Plaintiff contends that the unlawful eviction has caused them huge

losses with some of their office wares unseen and stolen.

DEFENDANT’S CASE:

The Defendant do not dispute the Tenancy Agreement he entered into

between himself and the 1st Plaintiff. He does not also dispute the annual

payment of the rent to cover the year 2016.

It is not also disputed that the 1st Plaintiff was not able to pay the rent for the

year 2017 on the due date (i.e. 1st January, 2017) instead the 1st Plaintiff gave

to the Defendant a post-dated cheque payable at 31st March, 2017 as rent.

The Defendant therefore rejected this offer and served the 1st Plaintiff with a

Notice of Eviction of the 17th March 2017.

On the 4th day of May 2017, the Defendant proceeded on the rented premises

with his workmen and evicted the Plaintiffs. The execution of Exhibit ‘5’

regarding the payment of One Hundred Thousand Ghana Cedis

(GH¢100,000.00) by the 1st Plaintiff to the Defendant is not also disputed by

the Parties.

ISSUES:

At the close of the pleadings, the following issues were set down for trial.

1. Whether or not 1st Plaintiff disclosed to the Defendant the nature of the three

(3) businesses he was engaged in, the purpose for which he rented the 3

properties belonging to the Defendant.

2. Whether or not the Defendant sometime in May 2017 unlawfully entered

into the 3 properties in the absence of 1st Plaintiff and ordered thugs whom

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 he had brought to the premises to pack out Plaintiffs’ office wares and all of

its belonging (s).

3. Whether or not the Plaintiffs suffered any damage or losses as a result of the

actions of the Defendant (and therefore are entitled to their reliefs.

4. Whether or not Defendant ordered 1st Plaintiff to undertake to pay the sum

of One Hundred Thousand Ghana Cedis (GH¢100,000.00) before he

would be allowed to take out a BMW Vehicle belonging to a client of 2nd

Plaintiff (Siaw Nartey) and which the said vehicle was packed in the premises

of the Defendant.

Additional issues:

1. Whether the 1st Plaintiff breached the terms of the Tenancy Agreement with

Defendant.

2. Whether the 1st Plaintiff issued cheques to the Defendant for payment of rent.

3. Whether the 1st Plaintiff caused extensive damage to the Defendant’s

premises.

4. Whether the 1st Plaintiff owns the Defendant in respect of rent payable.

5. Whether the 1st Plaintiff left behind huge utility bills unpaid.

Determination of Issues:

The issue as why the 1st Plaintiff rented the Defendant’s premises is not far-

fetched.

I refer to clause 1 (J) of the Tenancy Agreement as follows:-

“Tenant agrees to use the set of properties for his financial business and shall

maintain the properties to the high standard as when he took them”.

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The following questions were also put to the Defendant under cross-

examination by Counsel for the Plaintiffs.

“Q. So you knew that the property was being rented for the 1st Plaintiff’s financial

business?

A. Yes.”

Q. At paragraph 23 of your Witness Statement, this is what you said (Counsel

reads) you have told this Court that the 1st Plaintiff needed a place for his

financial business.

A. Yes My Lord”.

Indeed the Defendant himself admits that the 1st Plaintiff rented the property

for his financial business and this is also clearly indicated in the Tenancy

Agreement.

Both parties also agreed on the records that when the rent for the year 2017

was due to be paid on 1st January 2017, the 1st Plaintiff was not able to pay.

The 1st Plaintiff instead issued a cheque for the said payment. The cheque

was a post-dated cheque dated 31st March, 2017. The Defendant however

did not present the said cheque to the Bank to cash same.

To the Defendant, the non-payment of the said rent amounted to default on

the part of the 1st Plaintiff to have paid the rent after 3 months.

Pursuant to the default of the 1st Plaintiff to pay the said rent for the year

2017, the Defendant caused his lawyer to serve the 1st Plaintiff Notice to quit

per Exhibit ‘4’ dated 17th March, 2017. The Defendant was also told by the

Bank that the 1st Plaintiff had even stopped payment of the money upon

presentation of the cheque.

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See Exhibits ‘6’ and ‘6A’ as the Bank advise and Exhibits ‘7’, ‘7A’, ‘7B’ and

‘7C’ as the post-dated cheques.

For the 1st Plaintiff‘s default to pay rent for 3 months, the Defendant in May

2017 entered the premise to eject the 1st Plaintiff and the other Plaintiffs.

According to the Defendant he removed the office furniture and other hard

ware and placed them on the Courtyard, while keeping the electronic

gadgets and other sensitive materials in a locked room.

The version of the 1st Plaintiff is however that the Defendant removed the

Plaintiffs’ office wares and threw same onto the floor of the office premise

per Exhibit ‘M’.

The Plaintiffs also exhibited Exhibit ‘L’ to indicate how the Defendant

removed the main corporate business signage that was mounted in front of

the office premises.

Counsel for the Plaintiffs submits that even if the 1st Plaintiff failed to renew

his annual rent upon the expiration of the 2016 annual rent, then the tenants

(Plaintiffs) would become statutory tenants. He refers to Section 36 of the

Rent Act on the concept of a statutory tenant which is defined to mean “a

tenant who remains in possession of premises after the determination by any

means of his tenancy who cannot by reason of the provision of the Rent Act

be deprived of such possession by his landlord.”

Counsel for Plaintiffs submits that even if the 1st Plaintiff defaulted in the

payment of rent for 3 months, the Defendant cannot rightfully enter the

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premise to eject the Plaintiffs except by an order of a Court of competent

jurisdiction.

It is not doubted on the records that irrespective of the hardships that

occurred to the 1st Plaintiff in his financial business at that given time he

could not pay the rent in 2017 annual year. The rent was to be due for

payment on 1st January 2017 but nothing was paid in the first 3 months in

2017.

Generally due to default to pay rent and per the terms of the Tenancy

Agreement, the 1st Plaintiff could have become a statutory tenant and the

provision for ejecting a statutory tenant could have applied.

However the provision as contained in clause 4 of the Tenancy Agreement

would avail the Defendant in his act of entering the rented property and

ejecting the Plaintiffs.

Clause 4 of the Tenancy Agreement is as follows:-

“4 PROVIDED ALWAYS THAT:

If the rent or any part thereof shall be in arrears for Ninety (90) days after the same

shall have become due whether legally demanded or not if there shall be a breach of

any of the obligations on the part of the tenants the landlord may re-enter the

premises or any part thereof in the name of the whole and immediately thereupon the

tenancy shall absolutely determine without prejudice to any other right and remedies

of the landlord”

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Under cross-examination, the 1st Plaintiff admitted owning rent for the

period of January to April 2017. He also admits that the rent was payable by

31st December 2016.

1st Plaintiff further admits that due demand notice was served on him by the

Defendant’s lawyer per Exhibit ‘4’.

I therefore hold that the Defendant was within his right to enter into the

premises to evict the Plaintiffs for non-payments of rent by virtue of the

provisions in clause 4 of the Tenancy Agreement.

In the Witness Statement of the Plaintiffs, the 1st Plaintiff averred that the

Defendant caused damage to his property when he removed them from the

premises. The Plaintiffs could not however lead evidence on what damage

was caused to the individual items and their cost.

The Plaintiffs just tendered photographs of the items packed into the Court

yard. It can be seen from those photographs tendered by the Plaintiffs that

the items packed into the Court yard are covered with a trampoline while

some of the items are packed in a room.

Defendant’s claim that the items were moved and packed into the Courtyard

and covered by a trampoline while some of the items like electrical gadgets

were parked in a room is well corroborated by the Plaintiffs in their Exhibit

‘9’.

By the strength of cases like:

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 1. Manu v Nsiah [2004 – 2005] SCGLR 25

2. Anderson v Tetteh [2013] 59GMJ 62 (C.A)

3. Osei Yaw v Adumfeh (1965) GLR 418 S.C

I am inclined to accept the version of the Defendant that no damage was

caused to the Plaintiff’s property since same is corroborated by the Plaintiff’s

own Exhibit ‘9’.

One other crucial issue to be determine in this suit is:-

Whether the 1st Plaintiff gave an undertaking to the Defendant to pay a sum

of One Hundred Thousand Ghana Cedis (GH¢100,000.00) before he could be

allowed to take out the BMW Vehicle belonging to a client of 2nd Plaintiff

(Mr. Siaw Nartey) packed in Defendant’s premises.

In this regard, the 1st Plaintiff averred in paragraphs 39 and 40 of the

Plaintiff’s Witness Statement as follows:-

“39. The Defendant insisted on payment of 3 months’ rent of Thirteen Thousand,

Five Hundred US Dollars (US$13,500.00) owned him before the taking of

the said BMW belonging to our client. I was forced by the Defendant to make

an undertaking under duress to pay an amount of One Hundred Thousand

Ghana Cedis (GH¢100,000.00) with post-dated cheques supporting it before

the client and owner of the BMW Vehicle could take the vehicle away together

with other belongings of the Plaintiffs.

40. The said amount of One Hundred Thousand Ghana Cedis

(GH¢100,000.00)as per the undertaking was to cater for rent due for 4

months, Eighteen Thousand US Dollars (US$18,000.00) accrued electricity

bill and maintenance cost that the Defendant expected to incur in restoring

the property to its original state”.

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It would be observed that the 1st Plaintiff made this undertaking per Exhibit

‘5’ on the 7th June 2017. This is about a month after the Defendant had re-

entered the rented premises and ejected the Plaintiffs and removed their

items from the premises. There is nothing on the records to show that after

the ejectment of the Plaintiffs, the Plaintiffs made any complaint against the

Defendant.

The 1st Plaintiff also admits that, prior to the said undertaking, he had

already admitted that he was in default of rent. This default payment of rent

by the 1st Plaintiff was even factored into the payment in the said

undertaking. If the 1st Plaintiff claims that the Defendant also owned him for

causing damage to his properties why was same not also factored into the

undertaking in terms of a “set off”.

This undertaking was made in the 1st Plaintiff’s own handwriting and the 1st

Plaintiff duly signed the undertaking. If the 1st Plaintiff thought that the

Defendant was forcing him to make the said undertaking why did he not

take step to institute a writ action against the Defendant as he has done this

time?

Indeed, from all these considerations, I am inclined to believe that the 1 st

Plaintiff wrote Exhibit ‘5’ i.e. the undertaking voluntarily and from his own

will. I see his later defence that he wrote Exhibit ‘5’ (the undertaking) under

duress as only an afterthought. The 1st Plaintiff must live up to his

undertaking. The undertaking is his deed and he must pay the sum

endorsed thereon to the Defendant.

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I will now determine as to whether or not the 1st Plaintiff breached the

Tenancy Agreement.

1. The Tenancy Agreement states clearly that the agreement was

between the Defendant and the 1st Plaintiff in their personal capacities

as Landlord and Tenant respectfully simplicitor yet the 1st Defendant

subletted part or a portion of the premises to the 2nd, 3rd and 4th

Plaintiffs to operate their business.

The introductory part of the Tenancy Agreement read:-

“The TENANCY AGREEMENT is made this 29th Day of December 2015

BETWEEN Mr. Ernest Opoku Agyemang of P.O. Box 8412, Adum-Kumasi,

in the Asante Region of the Republic of Ghana which expression shall where

the context so admits or require includes his executor administrators

successors and assigns) hereinafter called THE LANDLORD of the part

AND Mr. Eugene Asiama-Boadi of P.O. Box AN 100910, Accra North, Accra

which expression shall where context so admits or require include his

personal representatives and assigns (hereinafter called the TENANT”).

Indeed the Tenancy agreement was made between Mr. Ernest Opoku

Agyeman (Defendant) and Eugene Asiama-Boadi (1st Plaintiff) as Landlord

and Tenant without more.

Clause 2(h) of the Tenancy Agreement also reads:

“The tenant shall not assign or sublet or part with possession of the whole or any

part of the premises”

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Despite clause 2(h) of the Tenancy Agreement, the 1st Plaintiff admits that he

subletted part of the premises to the 2nd, 3rd and 4th Plaintiffs.

This act of the 1st Plaintiff by subletting part or portions of the rented

premises to the 2nd, 3rd and 4th Plaintiffs to operate their business is a clear

breach of clause 2(h) of the Tenancy Agreement.

2. The 1st Plaintiff

3. also admitted that he failed to pay the rent due from the period of

January 2017 to April 2017.

See Clause 4 of the Tenancy Agreement

“provided always that:

if the rent or any part thereof shall be in arrears for Ninety 90 days after the

same shall have become due whether legally demanded or not if there shall

be a breach of any of the obligations on the part of the tenant the landlord

may re-enter the premises or part thereof in the name of the whole and

immediately thereupon the tenancy shall absolutely determine without

prejudice to any other rights and remedies to the landlord”

The 1st Plaintiff’s own admission that he defaulted in payment of rent from

January 2017 – April 2017 was in total breach of clause 4 of the Tenancy

Agreement.

Now, having established that fact that the Defendant did not cause any

damage or destroy any office wares and belongings of the 1st Plaintiff during

the eviction of the Plaintiffs from the rented premises, for if the Plaintiffs had

lost anything from the said eviction same would have been factored in when

the 1st Plaintiff was writing Exhibit ‘5’ (the undertaking) coupled with the

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fact that the Defendant re-entered the rented premises due to the breach of

the Tenancy Agreement and per clause 4 of the Tenancy Agreement the

Plaintiffs lose their case against Defendant.

Also since it is further established that the 1st Plaintiff failed to pay rent due

from 1st January 2017 – April 2017, and 1st Plaintiff did sub-let the rented

premises to the 2nd – 4th Plaintiffs, the Defendant is entitled to his counter-

claim.

It is further established that the 1st Plaintiff wrote Exhibit ‘5’ (the

undertaking) to pay One Hundred Thousand Ghana Cedis (GH¢100,000.00)

to the Plaintiff), Exhibit ‘5’ should be held against the 1st Plaintiff.

Accordingly, the reliefs as endorsed in the Plaintiffs’ Writ of Summons are

dismissed.

I grant the reliefs as endorsed on the Defendant’s Counter-Claim against the

1st Plaintiff. I award GH¢30,000.00 General Damages in favour of Defendant

against 1st Plaintiff.

The 2nd, 3rd and 4th Plaintiffs also have no claim against the Defendant.

Cost:

Cost in this suit is assessed at GH¢40,000.00 in favour of the Defendant

against 1st Plaintiff.

(SGD)

WILLIAM BOAMPONG

(JUSTICE OF THE HIGH COURT)

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COUNSEL:

EDWARD SAM CRABBE ESQ, FOR THE PLAINTIFFS

KOFI ADDO ESQ, FOR THE DEFENDANT

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