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JUDGMENT
When this suit came before me
for trial, the Defendants and
their lawyer were absent.
From the record of service, the
Defendants’ lawyers Apaloo &
Associates of Kuku Hill Osu,
Accra were duly served with
notice of trial at 4.18pm on 18th
May 2010 per the affidavit of
Emmanuel W. Quargraine, a
bailiff of this court.
Pursuant to the provisions of
Order 36 Rule 2 (a) of CI 47, I
proceeded to hear the evidence
of the Plaintiff. Plaintiff’s
evidence is that she and the
Defendants entered into an
agreement for the sale and
purchase of an estate house at a
price of $130,000.00 for which
she paid a deposit of $42,000.00
as per the contract between her
and the Defendants. The balance
of $88,000.00 was to be paid
over a period of 5 years at an
interest rate of 1.5%.
Plaintiff’s testimony is that
Defendants per agreement were to
deliver the house by 1st
March 2008. The Agreement was
tendered in court and marked
Exhibit ‘A’. The Defendants
failed to deliver as agreed per
contract. According to the
Plaintiff, the 1st
Defendant kept on promising new
dates of delivery and unable to
discharge on their obligations,
the Defendants demanded the
payment of the outstanding
balance of $88,000.00 contrary
to the contract.
Plaintiff testified that she was
unable to pay for the balance as
demanded whereupon the 1st
Defendant called her and
informed her he needed to sell
the house earmarked for her per
Exhibit ‘A’ in order for him to
raise money and service his
debts.
Plaintiff testified that the 1st
Defendant then promised to
allocate another property to her
which was then coming up in
replacement. The Defendants once
again failed to deliver. In the
result, the parties entered into
another agreement titled
“Promissory Note” Exhibit ‘B’
which contained substantially
the same terms as the contract
per Exhibit ‘A’ except that the
penalty clause of $10,000.00
payable by the Vendor
(Defendants herein) to the
purchaser (Plaintiff herein) in
the event of default by either
party has been reviewed in
Exhibit ‘B’ to read “If the
vendor is in breach or
terminates the contract, the
purchaser shall be entitled to
immediate refund of all monies
paid by the purchaser to the
vendor plus 10% of all monies
collected from the purchaser”.
Having failed to deliver inspite
of the consideration paid by the
Plaintiff the Plaintiff has
commenced this action for:
“(1). A refund of the
U$42,000.00 with interest to
date being cash deposit paid to
the Defendants for the purchase
of an Estate House at East
Airport Accra.
(2). An amount of
U$10,000.00 being compensation
for the Defendants breaching the
contract between them and the
Plaintiff.
(3). Costs”.
Notwithstanding the absence of
the Defendants at the trial, I
have subjected the evidence of
the Plaintiff to the prescribed
standard of proof as provided
under sections 10 – 14 of the
Evidence Act 1975 (NRCD 323) I
find that the evidence adduced
by the Plaintiff is consistent
with her pleadings and that from
the evidence, there has been a
breach of the contract between
Plaintiff and the Defendants in
terms of the contract between
them for which the penalty
clause contained in the contract
could be invoked.
I have also examined the
Defendants’ statement of defence
with the view to establishing
whether or not even with their
absence at the trial, any
jurisdictional or other crucial
legal defence has been raised by
the Defendants’ pleading. I
found none.
I have examined the issues set
down at the pre trial conference
for determination at this trial,
and I find that the Plaintiff
has succeeded in adducing
sufficient evidence in resolving
those issues and I hereby find
that all but issue 5 be resolved
in favour of the Plaintiff.
With respect
to issue 5, I am of the view
that having voluntarily entered
into Exhibit ‘B’ the parties
thereby abandoned the contents
of Exhibit ‘A’ and to that
effect it is Exhibit ‘B’ which
collaterally regulated the
relationship between the
Plaintiff and the Defendants.
The Plaintiff cannot therefore
invoke the penalty clause
contained in Exhibit ‘A’ but
that contained in Exhibit ‘B’
which I have earlier reproduced
in this judgment which is
equivalent to a sum of 10% of
any sum paid by the Plaintiff
(purchaser) to the Defendants
(vendor).
From Plaintiff’s evidence, she
paid only $42,000.00 which the
Defendants have since refunded.
The Defendants liability under
Exhibit ‘B’ therefore is
$4,200.00 and not $10,000.00 as
earlier provided in Exhibit ‘A’.
I shall thereby find for the
Plaintiff and accordingly order
the recovery of the sum of
$4,200.00 or its cedi equivalent
from the Defendants jointly and
severally being penalty for
breach of contract between
Plaintiff and Defendants as per
the agreement between the
parties dated 10th
January 2009 as set out in
Exhibit ‘B’. The Plaintiff shall
recover interest on the
equivalent of U$42,000.00 in
cedis at the commercial bank
interest rate from date of
payment to the date same was
refunded by the Defendants.
I assess the costs of this
action at GH˘5,000.00 in favour
of the Plaintiff.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE
OF THE HIGH COUR
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