Expiration of lease,

Whether or not holding onto keys meant Defendant was still in actual possession of premises,

Mesne Profits and how calculated

The Plaintiff’s claim in his Amended Writ and Statement of Claim was for an amount of $644,000.00 or its cedi equivalent being the economic rent for his property together with interest from November 2010 until date of final payment. The Plaintiff also sued for damages and costs but later abandoned its claim for damages. It was the Plaintiff’s case that the land in question was devised to one Frank Narteh Tawiah Otoo and his brothers in joint tenancy. On the demise of the last beneficiary under the will i.e. Frank Otoo, the property vested in him i.e. the Plaintiff. He stated further that his predecessors in title granted an assignment on 7^th June 1960 to one Mr. Nakib who in turn assigned the unexpired residue of his term to the Defendant. The Plaintiff stated further, that in early 2010, he informed the Defendant that the lease was about to expire. The Defendant in turn expressed the intention of either extending the lease or purchasing the property outright. However negotiations broke down. According to the Plaintiff, the Defendant remained in possession of the property from November 2010 to August 2014 without paying any rent. The Defendant is also said to have left the premises in a state of disrepair. The Plaintiff contended that a valuation of the property pegged the rent for the premises at $14,000.00 a month. The Defendant in its defence stated that it began to negotiate with the Plaintiff but negotiations broke down due to intra family feuds and protracted litigation over title to the property. They therefore questioned Plaintiff’s capacity to mount the instant suit. It was their case that once their initial term expired in 2010 they vacated the property and handed over same to the Plaintiff. They therefore denied being liable for the instant claim.

The following issues were set for trial:

1. Whether or not Defendants were in possession of the property from November 2010 to August 2014 without paying rent?

2. Whether or not the Defendant owes the Plaintiff rent from November 2010 to August 2014?

3. Whether or not the Plaintiff is entitled to levy any rent at all from Defendant from the time the Defendant vacated the premises after its tenure?

4. Whether or not there was a pending suit between the Plaintiff and other parties for the determination of the rightful owner at the time the Defendant vacated the premises?

5. Whether or not the Defendant was in possession during the negotiations between the parties for the sale of the property?

6. Whether or not the Plaintiff is entitled to his claim

The court notes that issues (1), (2), (3) and (5) deal with whether the Defendants were in possession of the property from November 2010 to August 2014 and whether or not rent was paid for that period. The court notes from the evidence on record that there was a series of litigation over the property, subject matter of this dispute. The High Court which was the court of first instance delivered its judgment in the case of Norah Otoo and 2 others v. Reubin Otoo and 4 others on 26^th October 2009. The 3^rd Plaintiff (who is the Plaintiff herein) prosecuted the suit on behalf of the 3 Plaintiffs and judgment was given in their favour. (See exhibit C) This judgment was set aside by the Court of Appeal on 23^rd May 2013. On 17^th July 2014, the Supreme Court allowed the 3^rd Plaintiff’s appeal and entered judgment for him describing him as one “who has the right of survivorship under the will”. So between 26^th October 2009 and 17^th July 2014 while the matter was in court, who was in possession of the premises? Exhibit B is an Assignment made between Dalal Nakib and Sief Arab and the Defendant. This assignment was dated September 1973. Exhibit E is a letter from Plaintiff’s Solicitors dated 20^th May 2010 and addressed to the Defendant. It informed the Defendant that the Plaintiff had been declared the owner of the former American Embassy Annex and requested the Defendant to deal only with him in respect of their lease.

On 7^th June 2010, the Defendant through its Legal Service Manager wrote to the Plaintiff’s Solicitor asking that the lease be extended or alternatively, the land be sold to the Defendant. (See Exhibit F). On 5^th August 2010, the Plaintiff’s Solicitor proposed that the lease be renewed with effect from November 2010 pending the negotiations on the sale of the property to the Defendant. (See Exhibit G). Thereafter, the Plaintiff caused his Solicitors to write to the Defendant on 13^th June 2011 giving it 3 months from 1^st July 2011 to give up vacant possession of the premises. (See Exhibit J). On 7^th July 2011, the Defendant responded to this saying a valuation had been commissioned on the property and that the Land Valuation Board was yet to come up with the said valuation. The Defendant also informed the Plaintiff’s Solicitor that other claimants were also making claims with respect to arrears of rent. (See Exhibit K). Other letters were written between parties from 4^th August 2011, 15^th August 2011, January 2012, February 2012, December 2012,  March 2013 until 7^th August 2014 when the Plaintiff formally  requested the Defendant to hand over the keys to the property on 30^th August 2014. (See Exhibits L-S). On 1^st September 2014, the Defendant caused a letter to be written to the Plaintiff’s Counsel. This was Exhibit V. The contents were as follows:

Dear Sir,

HANDING OVER OF KEYS TO FORMER AMERICAN EMBASSY ANNEX BUILDING –OSU

We would be grateful if you could join a team from SSNIT at your earliest convenience to hand over the keys to the above mentioned building to you at the site. Kindly contact the undersigned on (02022011743) to schedule a date for the said handing over.

We await your response for our further action please.

The Plaintiff in response on 3^rd September 2014 stated as follows in Exhibit W:

Reference your letter PD/015/6 dated 1^st September 2014 on the above subject.

We propose a hand over of the keys and property to our client on Thursday at 10:00 am at the site of the property.

In cross-examination of the Plaintiff on 2^nd November 2017 the following answers were elicited:

Q: On the security men that were kept at the property, they were kept there to secure the property. Not so?

A: Yes My Lord.

Q: And the security were kept there at the cost of the Defendant.

A: Yes. My Lord.

Q: And this was because the factions in your family were feuding over the ownership of the property.

A: My Lord, it was because they were in possession of the property that is why they had their security men there.

Q: It was established yesterday that the security men were kept there because the Defendant did not know which of the feuding parties in your family to hand over the property to.

A: I disagree. Judgment was ruled in my favour in the year 2009. The Appeal Court set aside the ruling in 2013 and the Supreme Court reaffirmed the judgment of the High Court in 2014, so they could have handed over the property if they had really wanted to hand over.

The following was elicited from the Defendant’s representative in cross-examination on 14^th

December 2017:

Q: In your witness statement you have stated that the Defendant Company had a 50 year lease from the Plaintiff’s predecessors in title. Is that correct?

A: My Lord that is so.

Q: You have also stated that this lease was due to expire in November 2010. Not so?

A: My Lord, that is so.

Q: Before the expiry of this lease, the Defendant Company requested an extension of the lease or an outright sale. Is that correct?

A: That is correct.

Q: The Plaintiff then informed the Trust that pending negotiations for the sale, it would rent the property to the Trust subject to the commercial value. Is that not correct?

A: My Lord, that is not correct.

Q: Take a look at Exhibit G and read paragraph 3 of Exhibit G to the court.

A: Our client is in principle interested in selling the property to the Trust. However pending negotiations on the eventual sale of the property, our client is prepared to renew the lease for an agreed period with effect from November 2010 subject to a valuation of the property’s current commercial value.

Q: So you would agree with me then that the Plaintiff informed the Trust that pending negotiations for the eventual sale, it would rent the property to the Trust from the expiry date of November 2010 subject to the valuation of the current commercial value.

A: My Lord, the information was conditional as I read here because it stated that it is subject to the renewal of an agreed period. I believe by this the parties were to negotiate and to come to an agreement.

Q: These negotiations commenced in 2010. Are you aware of that?

A: My Lord, I am aware that SSNIT in response to this expressed its interest to purchase the property subject to valuation to be undertaken by the Lands Commission.

Q: I suggest to you that negotiations for the purchase of this property commenced sometime in October 2010.

A: My Lord, as I indicated earlier, I know SSNIT officially wrote to express interest in purchasing the property but the purchase was subject to valuation to be undertaken by the Lands Commission to assist in negotiations.

Q: During these negotiations, SSNIT had the keys to the property. Is that not so?

A: Yes My Lord. But SSNIT held on to the keys because at the expiration of the lease there were other contesting claimants. We had letters from other contesting claimants claiming ownership of the property. SSNIT packed off from the property and held on to the keys and kept security in place because there were contesting claimants and we had letters from there claiming ownership of the property.

Q: In your witness statement you had stated that the Trust handed over the property to the Plaintiff in 2010 when the lease expired. Is that not so?

A: My Lord that is so.

Q: You have stated here today that your security guards were still on the property even after expiry of the lease. Not so?

A: My Lord, it is so because that was the period where we had other people contesting ownership of the property.

Q: Is it not true that in September 2014, the Trust wrote to the Plaintiff’s Solicitor to hand over possession of this property?

A: My Lord, I am aware of this letter.

Q: So you would agree with me that you were still on the property as at September 2014.

A: My Lord, the letter dated August 2014 indicated that we have left the property as at November 2010.

Q: Take a look at Exhibit V and read the whole letter to the court.

A: Witness reads same to the Court.

Q: So you would agree with me then that as at 1^st September 2014, the Trust hadn’t handed over to the Plaintiff.

A: My Lord, I agree that the keys to the property hadn’t been handed over as at 2014 but we had before this period vacated the building.

Q: In fact the keys were handed over on 3^rd September 2014. Not so?

A: My Lord it is so.

On 26^th August 2014, the Defendant caused Exhibit 11 to be written to the Plaintiff. Though it is headed Without Prejudice, the Defendant sought to rely on it at the trial. It states as follows:

Dear Sir,

RE: FORMER AMERICAN EMBASSY ANNEX- OSU

Your letter referenced NAOA/EM/MA/07/08/14 and the annexures thereof, all dealing with the above quoted subject-matter, have reference.

As both parties are aware, SSNIT took an assignment in the property subject matter of your letter, over a considerable time during which extensive improvements were effected on same. It is also a notorious fact

SSNIT said assignment in the property expired on November 1^st, 2010.

After expiry of the Trust’s term SSNIT attempted to negotiate the purchase of the property with its owners but attempt failed due to the bitter family feud over title to the property and non-agreement on the sale price.

In fact since expiry of the assignment, SSNIT has taken no further term in the property and has informed the disputing parties of her lack of interest in the property.

As at now, the suit has travelled from the High Court, Accra where your clients won but the Court of Appeal overturned the ruling. The Supreme Court only recently affirmed the High Court Judgment but the Judgment is now set for a review according to the losing party.

Notwithstanding this your clients and their rival parties have been inundating the Trust with various demands for the payment of rent whilst the parties individually continue to warn the Trust not to pay any rent to rival claimants.

Indeed as recent as 24^th July 2014, a rival party wrote to inform the Trust not to pay any rent to any other party in respect of the property even though SSNIT has nothing to do with the property anymore after giving up possession.

We have the instructions of the Trust to respectfully inform all rival claimants to the above-stated property that:

i. SSNIT has since November 2010 vacated the subject property after the expiry of its assignment and handed over same to the claimants to contest ownership.

ii. SSNIT owes no rent on this property to any of the claimants after giving up the said property at the end of her term.

The Defendant did not adduce evidence in support of its contention that it had vacated the premises in November 2010 when its lease expired. The Plaintiff had stated in paragraphs 11, 12 and 13 of its Amended Statement of Claim as follows:

11. The Plaintiff says that the Defendant’s assignment in respect of the property has expired.

12. The Plaintiff says that throughout negotiations, the Defendants were in possession of the property without paying rent.

13. The Plaintiff says that the Defendant has not paid rent for the property from November 2010 to August 2014 after which period the Defendant handed over the property to the Plaintiff.

In its response, the Defendant stated at paragraph 9 of its Amended Statement of Defence thus:

9. The Defendant in answer to paragraphs 11, 12 and 13 further states that it was agreed that since there was an on-going negotiations Defendant should hold onto the premises till the end of negotiations and the sale and purchase agreement executed but the negotiation period was frustrated by the bitter and protracted intra-family feud and litigations over ownership of the property by the Plaintiff and his family.

In the case of Zabrama v. Segbedzi (1991) 2 GLR 221, the court held that it was trite learning that where a party’s evidence was inconsistent with his pleadings whilst that of his opponent’s is consistent with his pleadings, the opponent’s case is preferable to the one who departs from his own pleadings. See also the case of Appiah v. Takyi (1982/83) GLR 1 where it was held that if there was a departure from pleadings at a trial by one party, whereas the other’s evidence accorded with his pleadings, the latter’s case was as a rule preferable. In Zabrama v. Segbedzi (1991) 2 GLR 221, the court held that the correct proposition of the law was that a person who makes an assertion or averment which is denied by his opponent has the burden to establish that his averment or assertion is true. He does not discharge this burden unless he leads admissible and credible evidence from which the fact(s) he asserts can properly and safely be inferred. This position was re-affirmed in the case of Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307. The onus was on the Plaintiff to establish his case on a preponderance of probabilities. The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact (See Section 17(2) of the Evidence Act).

This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. The Plaintiff has proven with his evidence both oral and documentary that he had caused letters to be written to the Defendant making demands for rent from the date the lease expired and while negotiations were ongoing for the eventual sale of the property. The burden then shifted to the Defendant to lead evidence in proof of its contention that it vacated the property when its lease expired. The Defendant in its pleadings has alluded to the fact that the parties agreed that it should hold onto the premises until the negotiations between the parties for the sale of the property had been concluded. It did not adduce evidence to show the agreement to hold onto the premises until the end of negotiations. The Plaintiff on the other hand has tendered evidence to show that he wanted to negotiate a new lease while negotiations were in progress.

Indeed, Exhibit G, a letter from the Plaintiff’s Solicitors to the Director-General of the Defendant dated 5^th August 2010 stated as follows:

Dear Sir,

RE: TENANCY OF FORMER AMERICAN EMBASSY ANNEX- OSU

We refer to the above subject matter and the subsequent discussions between our Nene Amegatcher and Mr. Peter Hayibor.

We wish to bring to your notice that the original lease granted by the predecessors in title of our client to the Trust’s assignors would expire in November 2010. That lease is evidenced by a deed dated 7^th June 1960 and registered at the Deeds Registry as No. 877/1961. By paragraph 2 (e) and (f) of the lease the whole property including the buildings would revert to our client and not only the land as you purported to state in your letter. (Find attached a copy of the said lease).

Our client is in principle interested in selling the property to the Trust. However pending negotiations on the eventual sale of the property, our client is prepared to renew the lease for an agreed period with effect from November 2010 subject to a valuation of the property’s current commercial value.

We would be grateful if you could schedule a meeting at your earliest convenience to negotiate the terms of a new lease.

Yours faithfully,

In Duah v. Yorkwa (1993/94) 1 GLR 217 the court held at p. 225 thus:

NRCD 323 makes provision for the duty or obligation to adduce evidence to shift from one party to the other. In a situation like the instant case, the duty or obligation could shift from the plaintiffs to the defendant. … When the duty or obligation so shifts, and the defendant fails to adduce sufficient or any evidence … the ruling of the court on the issue … will be against the defendant.

On 7^th June 2013, the Defendant caused a letter to be written to Plaintiff’s Solicitors. It is captioned RE: SETTING ASIDE JUDGMENT OF THE HIGH COURT AND CONSEQUENTIAL DIRECTIVES (FORMER AMERICAN EMBASSY ANNEX, OSU). (See Exhibit 10). The contents are:

We have been served with a copy of the Judgment of the Court of Appeal on 23^rd May, 2013 setting aside the Judgment of the High Court dated 29^th October 2009 which judgment was entered in favour of the Respondents.

In view of the new development, we should be grateful if you could advise us on the way forward in this matter.

Thereafter on 12 August, 2013, the Defendant wrote yet another letter to the Plaintiff in which it stated as follows:

We refer to the Trust’s assignment in respect of the above subject which expired and we indicated our intention to commence discussion to acquire the property.

The Trust has reviewed the position and has decided not to proceed with the process.

Your clients are therefore entitled to deal with any other interested party.

From the foregoing, and from the evidence both oral and documentary the Defendant did not hand over the premises to the Plaintiff when its assigned term expired in November 2010. It never indicated by word or deed that it had vacated the premises. It continued to hold onto the keys and continued to write letters negotiating in regards to the proposed sale of the property at Osu. It was only on 12^th August 2013 that the Defendant wrote to the Plaintiff with its decision not to proceed with its intention to acquire the property. (See Exhibit T). It continued to maintain a presence on the property by virtue of keeping its security men there. It also continued to hold onto the keys of the said property until the same were handed over to the Plaintiff on 4^th September 2014 (See Exhibits V and W). What was the significance of continuing to maintain a presence on the premises even at the expiration of its lease and of continuing to hold onto the keys? In Twifo Oil Plantation Project Ltd v. Ayisi and Others (1982-83) GLR 881 the court quoting from

Jowitt's Dictionary of English Law (1959) at p. 1367 defined "possession" as follows:

"Possession, the visible possibility of exercising physical control over a thing, coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed..."

At the time judgment was given in the High Court suit, the Defendant whose term had not expired still remained in possession of the premises. At the expiry of the term and at the time the Court of Appeal and Supreme Court had delivered their judgments, the Defendant had not delivered up the premises to the Plaintiff or to any of the other feuding factions.

The Defendant was in physical possession of the property as it still had the keys which it failed to hand over to the Plaintiff until September 2014 after the Supreme Court had delivered its judgment on 17^th July 2014. It also had its security men on the premises for the period it retained the keys to the premises. The court is mindful of the fact that there was litigation over the premises. The Defendant however could have handed over the keys to the Registrar of any of the courts where the dispute was raging or alternatively to the Rent Office with notice to all rival claimants. It still continued to hold onto same and it was only in 2014 whilst the litigation was still ongoing i.e. awaiting a Review Decision of the Supreme Court (which was delivered on 5^th May 2015) when it proceeded to hand over the keys to the Plaintiff. It therefore cannot be true when Defendant said in Exhibit 11 that it never was in possession of the property from November 2010 when its lease had expired. It was in effective possession and could not be said to have vacated the premises at the end of its tenure. It never handed over the property to the Plaintiff or to anybody else. The Plaintiff who has been adjudged owner of the property was therefore entitled to remuneration for the period under review. The issues of whether or not the Defendants were in possession of the property from November 2010 to August 2014 and whether or not the Defendant owes rent from November 2010 to August 2014 are therefore answered in the affirmative.

At the time the Defendant vacated the premises in September 2014, there had been a determination by the Supreme Court that the Plaintiff was the rightful owner of the premises. The Plaintiff has sued for an amount of $644,000.00 being $14,000.00 a month from November 2010 to August 2014. He has tendered in evidence Exhibit H which is a Capital and Rental Valuation on Property (Old American House Building) located on 3^rd Street Ninth Lane, Osu RE. This is a valuation report from a private valuer. It however just states the values without any explanation as to how the figures were arrived at. The court has found that he is entitled to reasonable remuneration from November 2010 to August 2014. Counsel for the Plaintiff has referred the court to the cases of Monta v. Paterson Simons (Ghana) Ltd (1982-83) GLR 195, Acquah v. Oman Ghana Trust Holding Ltd (1984-86) 1 GLR 157 and CFAO v. Thome (1966) GLR 107 in support of their case.

In Monta v. Paterson Simons (Ghana) Ltd, the court held as follows:

The general rule of law was that a tenant was required to deliver up possession to his landlord at the end of the term. If he failed to do so he would be liable for the continued use and occupation and might also be required to pay damages if any had resulted from his failure to give up possession.

In Acquah v. Oman Ghana Trust Holdings Ltd (1984-86) GLR 157, the court held that as the contractual tenancy had been determined, Plaintiff could not properly claim rent which was a matter of agreement. The Defendant was however obliged to pay reasonable periodic sums for their use and occupation of the premises. The court called that a claim in mesne profits which was normally the rent reserved in the lease. Mesne Profits have been defined by Daniel Kofi Opoku-Akyeampong Esq. in his book, The Sale, Acquisition and Rental of Property in Ghana at p. 101 thus:

Mesne Profits are a form of damages for loss of the use of land which the landlord has suffered by reason of the tenant’s failure to vacate the premises. The manner of calculation is to take into account the open market rental value of the property, which is the profit of which the landlord has lost as a result of the tenant’s recalcitrance.

In the instant case, the Plaintiff has sued for the economic rent for the property currently in issue. There was no agreement involving rent. Therefore the rent cannot be determined from a non-existent lease. The Defendant must however pay a reasonable sum for holding onto the property from November 2010 till August 2014. But what would be a reasonable sum under the circumstances of this case, more especially since there was no agreement on the quantum of rent to be paid on expiry of the lease? The court would refer the matter to the Chief Rent Officer who is to conduct an assessment of the subject property so a determination of mesne profits between the period November 2010 to August 2014 could be made. He is to give the court his findings within 60 days.

The Registrar is to write to the Chief Rent Officer informing him of his appointment as an expert in this matter.

The Plaintiff is to bear the cost of this venture (if any) and provide evidence of same to the court.

The Plaintiff has abandoned his claim for damages.

The court will defer the award of costs pending the Chief Rent Officer’s findings.

(SGD)

JENNIFER A. DODOO

JUSTICE OF THE HIGH COURT