IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION 7)
ACCRA - A.D 2019
MOST REV. DR. ROBERT ABOAGYE MENSAH AND 3 OTHERS
YAW BOAKYE AND 3 OTHERS
DATE: 22 ND JULY, 2019
SUIT NO: CM/RPC/04362019
JUDGES: HIS LORDSHIP, ERIC KYEI BAFFOUR, ESQ., JUSTICE OF THE HIGH COURT
Plaintiffs/Applicants seeks by this application which is planked on Order 25 Rule 2 of the High Court (Civil Procedure) Rules, C. I. 47 an order of the court for the Registrar of the court to enter property No. 6 & 7 Independence Avenue, Accra, being the res litiga for which Applicants writ seeks a number of reliefs including recovery of possession, recovery of rent arrears, mesne profit, damages for breach of contract etc. Applicants pray for further orders for the inspection of the books of the tenants put in occupation by the 1st Defendant/Respondent and for an order for the preservation of rent payable by the tenants pending the final determination of the suit.
The basis for such prayers before the court is founded on the reasons distilled in a 26 paragraph affidavit and a supplementary affidavit deposed to by Frank Beechem, a member of the Board of
Trustees of the 4th Applicant and which can be summarized as follows:
That the 1st to 3rd Applicants, being Trustees of the 4th Applicant, who is the beneficial owner of Plot No 6 and 7, Independence Avenue as a result of the Will of Edward Osei Boakye (deceased) which devise was upheld in court decisions and a consent judgment of the Supreme Court. That flowing from the consent judgment, 1st Defendant/Respondent was granted a sublease of the property on the 29th of April, 2016 for a period of fifteen years with $35,000 as rent per month payable annually in advance. That subsequently 1st Respondent placed tenants in occupation including 3rd and 4th Respondents with 2nd Respondent being a company under the control and direction of 1st Respondent. Applicants further claim that with the exception of the initial rent which was paid in
2014, the 1st Respondent has refused to pay rent from 1st May, 2016 to 30th April, 2019 in the sum of $1,260,000 which keep rising and that the refusal of 1st Respondent to pay rent, which he has attributed to a spurious excuse of the non-securement of a written consent by the Applicants from the Lands Commission to sub-let the property. That 1st Respondent’s claim that due to the non-citing of the written consent by the tenants they have refused to pay rent does not hold water and amounts to a breach of the agreement between them.
It is further claimed that 1st Respondent having submitted to judgment and voluntarily executed the sublease requiring him to pay rent or face eviction, the refusal of 1st Respondent to pay rent is frivolous and intended to overreach the Applicants. That the Applicants intend to abate the continuous disregard of the authority of Applicants subject to the final determination of the suit and as 3rd and 4th Respondents are in occupation of the property as rent paying tenants, it contends that it is only just that the Registrar be appointed and ordered by the court to inspect and ascertain the number of tenants in occupation of the property, their receipt books and further order that the tenants pay future rent to the court pending the determination of the suit.
1st Respondent has opposed the application and called for its dismissal. First he contends that though ownership of the res litiga is vested in the Applicants, yet management is under his control by virtue of the judgment that was compromised on the 24th of April, 2016. That the Applicants breached the terms of the consent judgment when they failed to execute the sublease in his favour within 30 days but rather did so after the expiration of one and half years. That he has subsequently expended huge sums of money to transform the property from uncompleted structures to a world class standard edifice with a view to letting out parts of the property to prospective tenants to meet his huge obligations of investments he had made in the building. That further the failure by the Applicants to obtain the consent of Lands Commission has incapacitated him from letting out the property to prospective tenants, who have been asking to see the written consent as part of due diligence they undertake. This has been exacerbated by the conduct of Applicants placing advertisements in the dailies warning prospective tenants not to deal with him which has scared tenants away and this amount to a breach of the agreement.
1st Respondent further claim that part of the land has been sold by Lands Commission to other persons and thereby denying any tenants access to a car park and posit that the Applicants have not dealt with him well and have acted out of bad faith as they spoke to prospective tenants not to rent the shops and yet turn round to demand rent from the shops. That with Applicants having come to equity with soiled hands in their failure to obtain a written consent they are undeserving of any such relief that they seek before the court.
Thinking that the 3rd Defendant/Respondent, being a neutral person and stand not to lose anything in whatever side the fight in respect of this application turns out to be, has waded into the conflict and thrown its full support for 1st Respondent with its solidarity of an opposition to the application. To 3rd Defendant its presence in the property is due to an agreement between itself and 1st Defendant which spells out the mode of payment of rent and that the court must respect the validly concluded contract arrived at alms length between the parties by not interfering by an order redirecting it as to who should receive payments more so when the two parties that entered into the contract have not complained about any breach.
Moving the motion, Abdul Karim, Esq relied on sections 25 and 26 of the Conveyancing Act, NRCD 175 on the doctrine of privity of contracts as existing side by side with the doctrine of privity of estates. And that the 3rd and 4th Respondents are parties in possession of rent which Applicants have an interest as long as it relates to the property. And whatever claim as to the non-procurement of a written consent by Applicants was fully known to 1st Respondent at the time when the consent judgment was entered and he was aware of the encumbrance affecting the property and should not turn round to claim as if it is a new issue coming up. And having disclosed Applicants dispute with the Lands Commission before the signing of the consent judgment, makes it untenable for 1st Respondent to raise questions about the headlease which is now the subject matter of dispute.
Opoku Adjei, Esq., has also responded that once the 1st Respondent has paid a consideration, there was a presumption that the lease is valid and all conditions relating to conveyancing have been complied with but it has been proved that the lease is not valid due to non-procurement of the consent of Lands Commission and this is contrary to section 22 of NRCD 175. And having failed to secure the necessary consent Applicants should not come to the court to seek to profit from their failure as that will be inequitable. Besides, not having procured the consent, 1st Respondent should not be made to pay rent. There are two preliminary submissions made by the Respondents and it is necessary that I tackle them before I could proceed to the substance of the merits of the application.
THE IRREGULARITY OF THE APPLICATION
This claim was made by Opoku Adjei, Esq that the application is incompetent in so far as the application was not accompanied by a statement of case under Order 25 as that is mandatory requirement. The question I have been invited to answer is whether an application planked under Rule 2 of Order 25 requires a mandatory statement of case such that a failure by an applicant will render the application hopelessly irredeemable.
Order 25 Rule 1(2)(3) states as follows:
“A party to a cause or matter may apply for the grant of an injunction before, or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party's writ, counterclaim or third party notice.
(3) The applicant shall attach to the Motion paper and supporting affidavit, Statement of Case setting out fully arguments, including all relevant legal authorities, in support of the application.
(4) A respondent who desires to oppose the application shall file an affidavit in opposition as well as a Statement of Case containing full arguments and the legal authorities to be relied on”.
The Rule 2 under which the Applicants have come before me also states as follows:
“(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter or in respect of which any question may arise in the action, or may order the inspection of any such property in the possession of a party.
(2) To enable an order under sub rule (1) to be carried out the Court may by the order authorise any person to enter upon any land or building in the possession of any party to the cause or matter.
(3) Where the right of a party to a specific fund is disputed, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured.
(4) An order under this rule may be made on such terms as the Court considers just”.
From the above, one could clearly discern that Rule 1 pertains particularly to applications for injunctions and the specific requirements to be complied with whiles Rules 2 lay out applications for detentions, interim preservations or an order for inspection. There is nothing that could be interpreted or stretched to mean that the requirement for an application for injunction being accompanied by a statement of case is similarly applicable to application for detention, preservation and inspection. If that were to be the case, then there would also equally be a requirement in an application for detention, preservation and inspection for the applicant to also draw the order for the court as that is a requirement in an application for injunction. In fact there is no such requirement also under the English Rules, specifically Order 29 Rule 2 which is exactly the same as Ghana’s Order 25 Rule 2. The only exception being that whiles the English Rules require for such applications to be made by summons, which is unknown as a requirement under Order 25 Rule 2 of C. I. 47. I therefore do not share in the view of learned counsel for 1st Respondent that there is a mandatory requirement for an Applicant proceeding under Rule 2 to accompany the application with a statement of case. There being no such requirement the application cannot be deemed as incompetent and that ground is dismissed.
ENFORCEMENT OF A CONSENT JUDGMENT BY THE ISSUANCE OF A WRIT
A much more weightier argument has been canvassed before me by counsel for 3rd Respondent, that the writ itself that originate the process is bad in law and nothing can flow from the writ which ought not to have been issued. To counsel a judgment cannot be enforced by the issuance of a writ as a writ of summons by its nature is not one of the modes of execution of a judgment and rely on the decision of the Supreme Court in the case of THE REPUBLIC v HIGH COURT (FAST TRACK DIVISION), EX PARTE ANANE AGYEI FORSON (ATTORNEY-GENERAL INTERESTED PARTY) [2013-2014] 1 SCGLR 690. Sarfo Addeah, Esq concludes on this point by noting that enforcement of the judgment for the payment of rent can easily be executed without 3rd and 4th Respondents being dragged into the fray.
I must confess that this submission has a great deal of force but is not completely accurate given the facts and circumstances of this case as I demonstrate show infra. In the FORSON case, the Attorney-General following a judgment obtained in the case of MARTIN ALAMISI AMIDU v ATTORNEY-GENERAL & ISOFOTON in J1/23/2012 wherein the Supreme Court ordered the Attorney-General to recover monies paid to Isofoton, the Attorney-General subsequently caused the issuance of a writ at the Fast Track Division of the High Court seeking an order for the payment of the monies from Isofoton represented by Anane Agyei Forson in Ghana. Upon the invocation of the supervisory jurisdiction of the Supreme Court as to the propriety of another action to decree what the Supreme Court had already pronounced on, the court in a judgment read by Benin JSC was confronted with the issue as to whether a person in whose favour an order has been made by Supreme Court was justified in issuing a writ of summons at the High Court to enforce same?
As the Supreme Court had adequate provisions for the enforcement its judgments, it upheld the application and concluded that it was not open to the Attorney-General to commence fresh action for enforcement of its judgment. But is that the case here?
It appears from Ex ‘FB1’ being the Terms of Settlement which was adopted by the Supreme Court, Clause B set out the agreement and requirement for the payment of rent and other obligations. And in the event of default, Clause 6 states as follows:
“Where either party defaults in the performance of any of the terms aforementioned:
a. In respect of any/or all sums outstanding at the time of the default, Plaintiffs shall serve one month notice on the Defendant demanding payment failing which the Plaintiff shall be entitled to go into execution with leave of court
b. In respect of the execution of the sub-lease, the Defendant shall be entitled to specific performance of the execution of the sub-lease.
It seems that in respect of the non-payment of rent by 1st Respondent the consent judgement decreed that Applicants shall only be entitled to serve a month notice for payment and upon failure the Applicants are entitled to go into execution by seeking leave of the court. However, I have attended to the writ issued the Applicants and on the endorsement they seek a number of reliefs beyond just a recovery of rent. And these include recovery of possession, damages for breach of contract, an order to compel 3rd and 4th Defendants to attorn tenancy to Applicants. I do not think that those reliefs can be said to have been the subject of pronouncement in the consent judgment such that Applicants can straight away proceed to evict the Respondents from the property. If that can peaceably be done, well and good, but if not then a writ would have to be issued for pronouncements on those reliefs before Plaintiffs could go into execution.
I think this position is further reinforced by Clause 7 dealing with dispute resolution and states as follows:
“a. Any dispute, controversy or claim arising out of or relating to these terms of settlement or such interpretation, breach, termination or validity hereof, shall be resolved first by a peaceful and amicable settlement by the parties and in the event that the parties fail to reach a settlement either party may make recourse to the High Court, Commercial Division”.
From the above, I hold that notwithstanding the right afforded the Plaintiffs to go into execution under the consent judgment in respect of rent payment, the same consent judgment also provided a window for either of the parties to come to the Commercial Court in respect of any alleged breach, termination or validity of the consent judgment. Applicants having therefore invoked their rights under clause 7 of Ex ‘FB1’ cannot be shut out of the court on the ground that they must go straight into execution. Ex Parte Forson, therefore is completely distinguishable from the facts before me and I hold that the cause of action of the Plaintiffs cannot be impeached. This ground is also accordingly dismissed as unfounded.
THE SUBSTANCE OF THE APPLICATION
Having dismissed the preliminary legal objections, the path is now clear for me to determine the substance of the application. Applications for detention, custody and preservation of property or funds is anchored on the need for the court to exercise its powers for the purpose of promoting fair trial and to prepare the way by suitable orders or directions for a just and proper trial of the issues joined between the parties. The court must find it necessary to act to preserve the security of the property. Where funds are also in dispute, the rules allow a court in the exercise of its judicial discretion to order the payment of such funds into court. The gamut of factors worth considering have been set out by Benin JA (as he then was) in the case of GENERAL DEVELOPMENT COMPANY v RAD FOREST PRODUCTS LTD [1999-2000] 2 GLR 178 as follows:
“before granting an application for an order for the detention and/or preservation of property the court would consider, inter alia, the following factors:
(a) The order had to be made against the person in possession or custody of the property in dispute.
(b) The property had to be the subject-matter of the suit.
(c) There had to be some property in dispute to some interest in which the plaintiff had shown a prima facie title. The preservation was ensured until the rights of the parties were finally determined.
(d) There had to be something which ought to be done to ensure the security of the property
(e) The order would be made in order to preserve the subject-matter of the suit form destruction.
(g) The order would be made in order to preserve the subject-matter of the suit from depreciation, physically or in value.
However an order would not be made if it would cause undue hardship in carrying it out or would serve no useful purpose”.
Applicants seeks an order for recovery of rent arrears from 1st May, 2016 till date of recovery of possession. 1st Defendant has not denied the non-payment of the rent but contend that it needed the consent of Lands Commission which Plaintiffs ought to procure to enable him rent out the property to prospective tenants. And that besides, it had incurred great cost to put the property in the state that it finds itself now. I do not think that Applicants are asking that rent be paid to them but rather to the court until the final determination of the suit. As at now Applicants cannot verify even the number of tenants that 1st Respondent has placed in possession of the property as tenants but can only pinpoint 3rd and 4th Respondents who are there as rent paying tenants whose rent goes to 1st Respondent but for which Applicants claim they are not receiving the rent that 1st Respondent is also supposed to pay in compliance with the sublease that spells out the payment of rent.
I do not think that the claim of 1st Respondent of the failure on the part of Applicants to procure the consent should be a barrier for the payment of rent, at least to the court, until the final determination as to whether lack of consent makes Applicants forfeit rent.
Again the claim by 3rd Respondent that per its agreement with 1st Respondent, rent was to be paid to the latter and any order that change this arrangement is an invasion into the sanctity of contracts also deserves some attention. Is this a legitimate argument to make in resisting the order for preservation? It is true that Applicants are not privy to the contract between 1st and 3rd Respondents. And the rule as laid down in PRICE v EASTON  4 B & AD 433 was that no one may be bound by the terms of a contract to which he is not a party to. Though over the years the privity principle has been received with some reservations and viewed as being out of touch with modern realities of contract law, yet it still remains the determinative factor in contract law. Being a creature of the common law, equity has made a less rigid view of it and there is also an expansion of the scope to which a third party in whose benefit a contract is made can take advantage of it and enforce same under statutory provisions in our Ghanaian law.
One of the exceptions to privity principle is in leases between landlord and tenant where certain rights and benefits are conferred by such contract. And I think Abdul Karim, Esq. is right in his submission that sections 25 and 26 of the Conveyancing Act, NRCD 175 on the doctrine of privity of contracts exist side by side with the doctrine of privity of estates. Ghanaian law, besides sections 26 and 26 of NRCD 175 has made several variations to the doctrine of privity and the exceptions besides the common law are found in sections 5, 6 and 10 of the Contracts Act, Act 25. As long as the tenancy of 3rd and 4th Respondents flow from the agreement between Applicants and 1st Respondents, any order that rent payment in respect of the property be made not to 1st Respondent for now does not invade or breach any known sanctity of contract principles.
It would be unjust and inequitable for 1st Respondent to continue to receive from tenants he has put into possession of the property and collect rent or even claim that the tenants do not pay rent when that claim cannot be substantiated now. The only way to verify the truthfulness of that claim is also to order an inspection of the rent documents including receipt books to know how much is paid and is due. See RE SAXTON (DE’CD)  1 W.LR 859; HUDDLESTON v CONTROL RISKS INFORMATION SERVICES LTD  2 ALL E.R. 1035.
In weighing all the relevant factors and exercising my discretion according to reason and justice, not according to private opinion and in exercising my discretion according to law and the facts before me as set out supra but not an arbitrary, vague and fanciful one but legal and regular. And in exercising my discretion within the limit to which an honest man competent to the discharge of his office ought to confine himself, I think this is a legitimate case to grant the application.
The Registrar of the court is accordingly appointed to enter and inspect the property Nos 6 and 7, Independence Avenue, Airport for the purpose of one, identifying all the tenants in the said property. Two, to inspect tenancy documents and receipt books upon which the tenants have been placed in occupation. It is further ordered that future rent due 1st Respondent should not be paid to him by 3rd and 4th Respondents but be paid into court and the rent placed into an interest bearing account till the final determination of the suit or some such time as the court may direct