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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE HELD IN ACCRA ON THURSDAY

 15^TH JULY, 2010 BEFORE HIS LORDSHIP MR. JUSTICE S. H. OCRAN

                                                                                            SUIT NO. L 337/97

CHEAP HOUSE  STORE LIMITED

                                                                VRS.

MODERN FURNITURE LIMITED

________________________________________________________

JUDGMENT:

In this consolidated suit, the Plaintiff issued his first Writ on 18^th June, 1997 against Modern Furniture, the Defendant in Suit No. L 337/97 and claimed the following:

a)     An Order of this Honourble Court compelling Defendant to accept the ¢5 Million Cedis and to specifically perform his parts of the contract dated 14^th June, 1996 by letting Plaintiff into possession of the premises and assigning same to him.

b)    Perpetual injunction restraining Defendant, his agents, servants and assigns from in any way interfering with this property and from assigning this property to any other person other than the Plaintiff

The endorsement on the writ is slightly different from what is in the statement of claim, but since a statement of claim with an endorsement which differs from the endorsement on the writ is taken as an amendment, what is stated in paragraph 13 of the Plaintiff’s statement of claim filed on 18^th June, 1997 is taken as the Plaintiff’s claim in suit No. L 337/97.  Refer to order 11 Rule 15 (2) of C.I. 47.

In Suit No. L 630 issued on 18^th November, 1998, the Plaintiff claimed against Interplast Limited, the Defendant in that suit the following:

         I.            Declaration of title to the piece or parcel of land known as “The Foam section of Modern Furniture Limited”.

      II.            Perpetual injunction and

    III.            Damages for trespass.

The Defendants in both suits entered appearance and filed defence to the claims, but none of them appeared in court to give evidence to disprove the case made against them by the Plaintiff.  There is proof of service on the docket to the effect that on 21^st October, 2009 Notice of Intention to proceed was served on Akufo Addo, Prempeh and Co, and a hearing notice for hearing on 14^th December, 2009 also served on Akufo Addo Prempeh and Co., who are the counsel for Modern Furniture Limited, on 9^th December, 2009.

As the Defendants failed and or refused to appear in Court, the Plaintiff was granted leave on 8^th February, 2010 to serve hearing notice on the Defendants by substitution, by publishing same once in the Ghanaian Times, for hearing on 25^th February, 2010.  The publication of the order for substituted service and a hearing notice was published on Thursday, 18^th February, 2010 issue of the Ghanaian Times.

The Defendants refused to appear in court despite the publication.  The plaintiff therefore led evidence in proof of his case put up in its pleading.  The Plaintiff pleaded that on or about June, 1995, an agreement was reached between the Plaintiff and the Defendant in suit No. L 337/95 for the sale of the Defendants property known as the Foam Section of the Defendants property for ¢40,000,000.00 now GH¢4,000.00.   That half of this amount was to be paid immediately, and the remaining half to be paid on Defendants demand.  The Defendant admitted these in its Statement of Defence   and also admitted that GH¢2,000.00 was paid.  That the contract price was later revised to GH¢5,000.00 after they had paid half of the contract price and entered the land. 

Since these were admitted, the Plaintiff was not under any obligation to lead evidence to prove.  The Plaintiff however led evidence by its Managing Director and explained that they paid GH¢2,000.00 and entered the land, as the Defendant said they could enter once the deposit had been paid.  They then entered the land, dug a foundation for the fencewall, and deposited sand and stone on the land. 

The Defendants paragraph 8 of its statement of defence suggests that the plaintiff entered the land but the entry was objected to.  Since there is no evidence in proof of this objection I accept the plaintiffs evidence that they entered the land sold to them, and take it that there was no objection to it.

Since the Plaintiff entered the land, after a sale had been agreed between the Plaintiff and the Defendant; could the Defendant sell the same land to the Defendant in suit Number L 630/98 without first setting aside the contract of sale between the Plaintiff and the Defendant in suit Number L337/97.  I think the Defendant cannot.  If other purchasers were not prepared to buy the other part without the portion sold to the Plaintiff, and the Plaintiff was also not ready to buy the other portion of the Defendants land, these will not be enough reason for the Defendant to sell the land that had already been sold to the Plaintiff.  This is so because the portion sold to the Plaintiff no longer belonged to the Defendant for that to be resold. In  Sasu vrs. Amua-Sekyi (2003-04) SC GLR 742  it was held in Holding 4, that “By the principle of “Nemo dat quod non habet” the same stool had no land to sell to the appellant.  Therefore the appellant acquired no valid title to the land when he bought it in 1973 …..” See again Brown vrs. Quarshigah (2003-04) SC GLR 930, Dovie & Dovie vrs. Adabunu (2006-08) SC GLR 905.

The Defendant in suit number L 630/98 pleaded that they are bonafide purchasers for value without notice of any encumbrance.  This pleading of the Defendant in suit Number L 630/98 has been denied.  The Plaintiff led evidence of their entry unto the land and the foundation and the fence wall trench they made on the land and also deposited sand and stone on it.  Since the land in issue in this consolidated suit is the same, and the Defendant in suit No. L630/98 traces its root of title from the Defendant in suit Number L 337/97 the defence of the Defendant in suit number L 337/97 will have to be considered. 

Since Modern Furniture admits that the Plaintiff purchased the land and entered, and there is evidence that a foundation for a fence wall and the main work was dug, and sand and stone were deposited on the land, Interplast Company Limited the Defendant in Suit No. L630/98 was put on its guard to investigate who made the foundation trench and deposited the sand and stone on the land. 

The assertion by Modern Furniture that all subsequent purchasers were not prepared to purchase the land without the portion already sold to the plaintiff also suggests that Modern Furniture made the purchasers aware that the Foam Section of its property was not included in the sale as it had been sold.   However since other purchasers were not prepared to buy the remaining land without what they had already sold to the plaintiff, they added that section before the Defendant in suit Number L 630/98 agreed to buy.

There is no evidence from the Defendant in Suit Number L 630/98 that it had no notice of the presence of the Plaintiff on the land.  I therefore accept the case of the Plaintiff that it entered the land and started development so the Defendant should have known of their presence on the land.    I also hold that if the Defendant in suit Number L 630/98 had conducted searches on who was developing a portion of the land being sold to them at the initial stage, it would have been revealed to them that plaintiff was on the land. 

Even though the Plaintiffs document exhibit ‘C’ is unregistered; I accept the case of the Plaintiff, under the authority of Amuzu vrs. Oklikah (1998-99) SC GLR 141 and Koglex Ltd No.2 vrs. Field (2000) SC GLR 175, and enter Judgment for the Plaintiff as follows in Suit Number L 337/97.

a)     An Order for Specific Performance of the contract of sale with respect to the “Foam Section” of Modern furniture Company premises as contained in exhibit ‘C’.

b)    An Order that the Plaintiff be put in possession of the portion above mentioned.

c)     An Order of Perpetual Injunction restraining the Defendant his agents, servants, privies etc from in any way interfering with the property above referred to.

d)    That the Defendant is at liberty to go for the GH¢500.00 without interest since the said money was paid to the Defendant but was returned.

With regard to Suit Number L 630/98, it must be noted that even though the Defendant pleaded in its defence filed on 18^th December, 1998, that it had bought the land and that Lands Commission had given concurrence to the transaction between them and Modern Furniture Company, the Plaintiff took no steps to amend the endorsement on its writ.  It is not the duty of the Court to grant to parties what they have not applied for.  I cannot therefore make an order for recovery of possession against the Defendant in suit number 630/98.

I however enter Judgment in favour of the Plaintiff as follows:

       I.            Title to the parcel of land known as “The Foam Section of Modern Furniture Limited” is declared in the Plaintiff.

     II.            An Order of perpetual Injunction against the Defendant.

  III.            With regard to Damages the Defendant admitted in their Statement of Defence that they have acquired the land from Modern Furniture who was the legal owners.  The Plaintiffs complaint  is that the Defendant is aware or ought to be aware that they the Plaintiffs have bought the land and entered it, but the Defendant nevertheless also bought the same land and went ahead to go for the consent from Lands Commission.  By this act the plaintiff could not continue with their work.  I therefore award damages of GH¢10,000.00 in favour of the Plaintiff against the Defendant in suit Number L 630/98.

Counsel:                    Naa Odofoley Narty for Plaintiff

                                                                                                                                          (SGD.)MR. JUSTICE S.H. OCRAN 

               (Justice of the High Court)