ASANTE AND ANOTHER vs. K COMPU SERVICES LTD [2001-2002] 1 GLR 562

CASES REFERRED TO

(1) Thatcher v C H Pearce & Sons (Contractors) Ltd [1968] 1WLR 748.

(2) Shiloh Spinners Ltd v Harding [1973] 1 All ER 90, HL.

(3) Canas Property Co Ltd v K L Television Services Ltd [1970] 2 All ER 795, CA.

APPLICATION by the defendant-applicant-lessee against the plaintiff-respondent-lessor praying the High Court, Accra for an order staying execution of the judgment of the trial court granting forfeiture of a lease agreement executed between the parties; an order setting aside a writ of possession; and an order granting them relief against forfeiture for non-payment of rent. The reasons are sufficiently set out in the ruling.

Ayikoi Otoo for the defendant-applicants.

Mrs Zwennes for the plaintiff-respondents.

Appau J. This is an application by the defendant-judgment-debtor (hereinafter referred to as the applicants) praying this court for three orders which I reproduce below:

“(a) An order staying execution of the order of this court dated 21 July 1997 forfeiting the lease agreement executed between the parties dated 9 January 1996.

(b) An order setting aside the writ of possession obtained by the plaintiff-judgment-creditors (hereinafter referred to as the respondents).

(c) An order granting the applicant-lessee relief against forfeiture of the said lease as per the grounds contained in the accompanying affidavit.”

The application was supported by an affidavit which counsel for the applicant relied on in his submissions.

The respondents strongly opposed the application and filed two affidavits to that effect on 28 May 2001 and 3 September 2001

[p.565] of [2001-2002] 1 GLR 562 respectively. The gravamen of the two affidavits in opposition is that the present application is an abuse of the court’s process since there is no suit pending before the courts to warrant it. They also stated that since the Court of Appeal had confirmed the judgment of the High Court and same had since gone to the registry section for execution, the court had no jurisdiction to entertain the application as there is no matter pending before it or any other court.

I will determine the three orders the applicant is asking for separately. But before I do so, I will briefly state the arguments advanced by both counsel for and against the application. Counsel for the applicants in his submissions contended that the action or writ instituted against the applicants by the respondent in this court was for forfeiture of lease for non-payment of rent and that by the time judgment was entered against the applicants they had paid a substantial part of the rent, leaving a balance which was paid later after the judgment. He went on to say that after judgment had been entered against them, they applied under Order 14, r 11 of the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129) to have same set aside but their application was refused by the court. They appealed against the judgment of the court to the Court of Appeal but their appeal was also dismissed by the Court of Appeal. Counsel’s contention was that their appeal was dismissed because the Court of Appeal said the applicants did not seek a relief against forfeiture before the High Court that tried the case and added that since it was a relief open to them, they could always apply for same. Counsel cited Order 14, r 9 of LI 1129 and section 30 of the Conveyancing Decree, 1973 (NRCD 175) and submitted that since the respondents did accept rents paid up in advance they had forfeited their rights to eject the applicants from the premises. Counsel referred the court to the English cases of Thatcher v C H Pearce & Sons (Contractors) Ltd [1968] 1 WLR 748; Shiloh Spinners Ltd v Harding [1973] 1 All ER 90, HL and Canas Property Co Ltd v K L Television Services Ltd [1970] 2 All ER 795, CA to support his arguments.

Counsel again made available to the court the full reasons of the Court of Appeal in its decision dismissing the applicants appeal against the judgment of the High Court presided over by Farkye J (as he then was) in which counsel said the Court of Appeal held that the relief against forfeiture was still open to them.

[p.566] of [2001-2002] 1 GLR 562

Counsel for the respondents vehemently opposed the application in her submission in reply. According to counsel for the respondents, that portion of the judgment of the Court of Appeal which applicant counsel was referring to was not the decision of the Court of Appeal as such but an obiter dicta after the actual appeal had been dismissed. Counsel contended that the applicants applied for a relief against forfeiture in the appeal but that was dismissed by the Court of Appeal with costs of ¢3 million against the applicants.

Counsel referred to the notice of appeal filed by the applicants and the grounds of appeal contained therein in support of her argument. Counsel then referred to Order 42, r 49 and Order 14, r 9 of LN 140A under which the applicants purported to bring this application, and submitted that the applicants’ application seeking the three orders has no basis as there is no action pending in either this court or in the Supreme Court after the dismissal of the appeal. In counsel’s view, the whole action is res judicata and cannot therefore be re-opened by this court. Counsel prayed for the dismissal of the applicant.

As indicated earlier on in this ruling, the applicants are seeking three orders from this court, viz: (a) an order for stay of execution; (b) an order setting aside, the writ of possession obtained by the respondents; and (c) an order granting the applicants relief against forfeiture of the lease. The application is therefore three-pronged and I shall deal with each of the three separately beginning from the first, ie the application for stay of execution.

An application for stay of execution as applicable in this court, is governed by Order 42, r 49 of LN 140A. This rule provides as follows:

“49. Whenever an action shall be pending in the Court against the holder of a previous judgment of the Court by the persons against whom the judgment was given, the Court may, if it appear just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just, until a judgment shall be given in the pending action.”

From a proper interpretation of this rule, a stay of execution of a judgment may only be granted against the holder of the judgment when there is an action pending in court against the holder of the said judgment by the person against whom the judgment was entered. In

[p.567] of [2001-2002] 1 GLR 562 my view, an action, in its legal sense as used under the rules, connotes a civil proceeding commenced by a writ or otherwise as prescribed by the rules, or say an appeal before a higher court against the judgment of the trial court. In the instant application before me, the applicants have not shown in any way that there is any pending action in this court either in the form of a fresh writ of summons or in the form of an appeal before either the Court of Appeal or the Supreme Court against the judgment of this court for which the execution of the judgment must be stayed, for any reason. So as counsel for the respondents rightly pointed out in her arguments, there is no basis for the application for stay of execution and on that score, I refuse to make any such order.

On the second leg of the application praying for the setting aside of the writ of possession too, the applicants have not advanced any sound reasons why same should be set aside. This court can only set aside its own previous order(s) when same is void ab initio. The applicants have not said anywhere that the said order was either obtained by fraud or without any notice of the proceedings for recovery of possession or was void in any way for which the only remedy is to set same aside. As counsel for the respondent correctly intimated in her arguments, just like in the application for stay of execution, there is no basis for the application to set aside the order granting leave to apply for a writ of possession and for that reason, I refuse to grant the applicants’ the prayer they are seeking.

On the third and last prayer of the applicants for the grant of a relief against forfeiture, this court cannot depart from the conclusion already arrived at in respect of the two orders above as this third one also fails under the same circumstances.

Contrary to the contention by the applicants under paragraph (9) of the affidavit in support of this application sworn to by one Richard Hlomador that the Court of Appeal held in the appeal against the judgment of this court that a tenant-lessee who tenders his rent so long as he remains in possession is entitled to apply for relief against forfeiture, the Court of Appeal never arrived at such decision as one of its holdings. Rather, the Court of Appeal in its judgment dated 3 May 2001 only made an observation with regard to the provisions under Order 14, rr 1 and 9 of LN 140A, as amended by LI 1129, during which the court tried to give some meanings to those rules. So as

[p.568] of [2001-2002] 1 GLR 562 counsel for the respondents rightly argued in her reply to the arguments by applicant counsel, what the Court of Appeal said with regard to relief against forfeiture in the said judgment was an obiter dicta but not one of the holdings of the court.

What Order 14, r 9 of LN 140A simply says is that a tenant against whom an order for recovery of possession has been made on the ground of forfeiture for non-payment of rent in an application for summary judgment has the same right to apply for relief against forfeiture as if the judgment had been given after a trial. The actual law that gives tenants the right to apply for relief against forfeiture whether the judgment against them was given either summarily or after a trial, is the Conveyancing Decree, 1973 (NRCD 175). The actual section where the provision can be found is section 30, and it provides as follows:

“30. (1) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any provision in a lease, or for non-payment of rent, the lessee of the property and also a sublessee of the property comprised in the lease or any part thereof may, either in the lessor’s action (if any) or in any action brought by such person for that purpose, apply to the court for relief.

(2) Subject to subsection (1) of section 29, where a lessee applies to the court for relief, the court may grant or refuse relief as it thinks fit having regard to the proceedings and conduct of the parties and to all the other circumstances; and relief when granted may be upon such terms, if any, as to costs, expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any similar breach in the future, as the court in the circumstances of each case thinks fit.”

Section 30(1) of NRCD 175 has to be complied with first before section 30(2) can be considered. The fact is that a landlord can enforce a right of re-entry peacefully without resort to a court action, that is why section 30(1) of NRCD 175 talks of a court action or otherwise. So clearly what section 30 of NRCD 175 is saying is that a tenant or a lessee who wants to avail himself of this right or opportunity can only do so or apply for such a relief in only two ways; (1) in the landlord or lessor’s action for forfeiture (if there is any pending); or (ii)

[p.569] of [2001-2002] 1 GLR 562 in an action initiated by the lessee himself for that purpose.

The question that therefore comes to mind is whether or not the lessor’s action for forfeiture of the lease for non-payment of rent is still pending or whether or not the lessee has initiated any action praying for a relief against forfeiture for non-payment of rent. The answer in both cases is in the negative as: (1) the landlord’s action for forfeiture of the lease has terminated with the applicant losing an appeal against the judgment in favour of the landlord, ie the respondent herein; and (2) the applicant, ie the lessee, has not initiated any action praying for any relief against forfeiture.

The applicants should not be deceived into thinking that this present application before the court is by itself an action, in the proper sense of the word, for relief against forfeiture. An action, in a proper legal sense, is a civil proceeding commenced by writ or in such other manner as may be prescribed by rules of court and in my view, a mere application as has been done by the lessee in this case cannot be termed as an action. In the English cases cited by counsel for the applicants, particularly in the case of Thatcher v C H Pearce & Sons (Contractors) Ltd (supra) which has some relevance in this case, the tenant in that action who was Thatcher (the plaintiff) commenced an action for relief against forfeiture by the institution of a writ of summons, six months after the forfeiture, against the landlord (the defendant) but not by a mere application as the applicants have done in this case, since a mere application is not an action as such. The court therefore agrees in toto with counsel for the respondents that there is no action pending before this court either by the landlord-lessor for forfeiture as that one has already terminated at the Court of Appeal, or one by the tenant-lessee, ie the applicants, for relief against forfeiture which this court has to consider.

The third leg of the application also fails as the others. The whole application of the applicants is accordingly dismissed as unmeritorious and a complete abuse of the court’s process.

I will award costs of ¢1 million against the applicants.

Application dismissed.

AD