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JUDGMENT
BY COURT:
By the Plaintiff’s Writ issued
on 27th April, 2009,
she claimed the following:
I.
A declaration that the tenancy
agreement between the parties
herein entered on the 24th
day of November, 2003 expired on
the 23rd day of
November, 2008.
II.
An Order against the Defendant
to give vacant possession of the
land to the Plaintiff.
III.
An Order against the Defendant
to pay Mesne profit from the 24th
day of November, 2008 till the
date that Defendant will give
vacant possession of the land.
IV.
Damages for breach of Contract.
V.
Cost.
The facts as agreed to by the
parties are that on the 24th
day of November, 2003, the
parties entered into a contract
for the use of the Plaintiff’s
land for 5 years to operate a
Mechanic Workshop. That the
rent for the 5 years was paid.
During the term of the 5years
agreement, the Plaintiff decided
to sell or assign the said land
and the Defendant agreed to take
the assignment of the plot. The
Plaintiff claimed that the
contract price was $25,000.00 or
its cedi equivalent but the
defendant said it was
$19,000.00. That the parties
also agreed that a commitment
fee of GH¢3,000.00 was to be
paid before the last day of
March, 2006, but the Defendant
could not pay this amount by the
agreed date. As a result of the
Defendant’s inability to pay the
commitment fee by the last day
of March, 2006, the Plaintiff
caused a letter to be written to
the Defendant cancelling the
proposal to sell or assign the
land to the Defendant. The
Defendant also field a defence
and explained that he could not
pay the commitment fee at the
time because the Plaintiff
failed and or refused to supply
him with a site plan to enable
him conduct a search at Lands
Commission to ascertain the
ownership of the land. He
Counter-Claimed as follows:
1.
Refund of all monies spent on
the development of the land made
up as follows:
a)
Filling of the land -
GH¢1,500.00
b)
Construction of a 3 bedroom
house on the land GH¢500.00
2.
Interest on the commitment fee
of GH¢3,400.00 from May 2006, to
May 2008.
3.
Damages for breach of Contract
4.
Cost.
The issues that were set down
for determination at the close
of pleadings are as follows:
a)
Whether or not the tenancy
agreement between Defendant and
Plaintiff has expired.
b)
Whether or not there was a
notice to renew the tenancy.
c)
Whether or not there was a
notice to Defendant to give
vacant possession.
d)
Whether or not the tenancy
agreement between Plaintiff and
Defendant was renewed.
e)
Whether or not Plaintiff gave
Defendant the first option to
purchase the land in dispute at
a consideration of $25,000.00.
f)
Whether or not Defendant paid
the commitment fee of $3,000.00
by the date agreed upon by the
parties.
g)
Whether or not Defendant is in
breach of the contract for sale.
h)
Any other issues arising from
the pleadings.
From the pleadings of the
parties some of the issues set
down for hearing should not have
been set down at all as they
were not in dispute. Issues a,
b, and d, should not have been
set down at all.
Paragraph 3 of the Plaintiff’s
Statement of Claim is as
follows:
3. Plaintiff avers that on the
24th day of November,
2003 as the beneficial owner of
a parcel of land at La, near the
Trade Fair Site, she entered
into a five (5) years
non-renewable tenancy agreement
with the Defendant to use same
for a Mechanic’s Workshop and
for purposes incidental thereof.
The Defendant admitted
Plaintiff’s paragraph 3 in his
Statement of Defence. Having
admitted that there was a five
years non-renewable tenancy, the
Plaintiff was not under any
obligation to proof that there
was a five years non-renewable
tenancy.
In the case of Western Hardwood
Enterprises Ltd and Anr. Vrs.
West African Enterprises Ltd.
(1998-99) SC GLR 105, Holding 3
held that where the pleadings of
the parties were ad idem “that
there was a valid lease between
the Apowa Stool and TBL, the
Plaintiff was not bound to lead
evidence to emphasize the
validity of such lease.”
In this case the Plaintiff
pleaded that there was a “five
years non-renewable tenancy.”
Since the Defendant admitted
that in his defence, that issue
ends there without any further
proof. The Defendant did not
also plead or even give evidence
that the parties renewed the
agreement. I therefore hold
that the tenancy agreement
between the parties, per exhibit
‘A’ was for five years,
effective from 1st
January, 2004 to 31st
December, 2008, and that the
agreement was not renewed.
Apart from the fact that exhibit
‘A’ shows that the agreement was
non-renewable, the evidence of
the Plaintiff shows that she was
not going to renew the tenancy
as she decided to sell.
Paragraph 5 & 6 of the
Plaintiff’s Statement of Claim
stated that the Defendant was
given up to the last day of
March, 2006 to pay a commitment
fee of $3000.00 and this was in
the presence of her husband who
gave evidence as P. W. I. The
Defendant admitted paragraphs 5
and 6 of the statement of
claim. The Plaintiff’s pleading
stated further that it was on 9th
May, 2006 that Plaintiff paid
GH¢2,000.00. Exhibit ‘B’ which
is dated 21st
September, 2006 stated that the
Defendant had as at that time
paid only GH¢2,400.00 and that
if by 30th September,
2006, the Defendant had not paid
the balance of GH¢600.00, she
will sell the land to a more
reliable person.
The import of exhibit ‘B’ is
that even though the Defendant
had not paid the commitment fee
by the end of March, 2006, the
Plaintiff extended the period
for the payment to 30th
September, 2006. Exhibit ‘B1’
which is dated 25th
January, 2008, also informed the
Defendant that in furtherance of
exhibit ‘B’, the land had been
sold and conveyed to a third
party. The Defendant should
therefore vacate the land by 31st
December, 2008. Defendant
replied to exhibit ‘B1’ with his
exhibit 2 which is dated 27th
October, 2008. I therefore find
that the Defendant was given
notice to vacate the land by 31st
December, 2008.
On issue ‘e’ the parties agree
that the Defendant was given the
option to buy. What the parties
disagree is the contract price.
The determination of the
contract price does not however,
arise in the determination of
this suit, since the commitment
fee had to be paid first. What
is important is issues ‘f’ and
‘g’, being when was the
commitment fee paid. The
Defendant admits that he was to
pay the commitment fee by 31st
March, 2006. With respect to
the Plaintiff’s paragraph 7 of
the Statement of Claim to the
effect that it was on 9th
May, 2006 when the Defendant
paid GH¢2,00.00, the Defendant
did not deny but rather stated
that he paid GH¢2,000.00 and
later paid GH¢1,000.00, without
mentioning when he actually paid
these monies.
The Defendant, through his
Counsel’s Cross Examination of
the Plaintiff, suggested that
the Defendant stopped paying the
commitment fee because he was
not given a site plan. The
Defendant himself also gave
evidence that he paid GH¢2,000
and did not pay again because he
was not given Site Plan. The
Plaintiff however said there was
a Site Plan attached to exhibit
‘A’.
I accept the evidence of the
Plaintiff that a Site Plan was
attached to exhibit ‘A’ which
was signed by the Defendant. It
was stated in exhibit ‘A’ that
“All that piece or parcel of
land near the Trade Fair Site,
La Accra comprising an
approximate area of nought
decimal one one eight (0.118) of
an acre shown edged pink on the
site Plan annexed hereto
(hereinafter referred to as the
premises). If there was no plan
attached to exhibit ‘A’ the
Defendant would not have signed
it. Even though a plan is
attached to exhibit ‘A’ the
Defendant tendered his copy of
exhibit ‘A’ as his exhibit ‘I’.
No plan was attached to exhibit
‘I’. Upon examining exhibit ‘I’
one can see that a site plan was
attached to it, but same had
been removed. The positioning
of the Site Plan in exhibit ‘I’
is clearly identifiable by the
marks left by the Staple
machine, when it was fixed. I
therefore find that a plan was
attached to exhibit ‘I’ but had
been removed.
Since the Defendant did not lead
any evidence on when he paid the
commitment fee, but the
Plaintiff had led evidence that
the Defendant did not pay the
agreed commitment fee within the
agreed, and the extended period,
I hold that it was the Defendant
who breached the Contract of
Sale by not paying the committal
fee within the agree period.
Since the Defendant
counter-claimed for some
reliefs, but no issue or issues
were raised with respect to the
counter-claim, except the claim
for breach of contract, which
claim has been considered under
the issue of which of the
parties breached the contract, I
will resolve the claim for the
refund of all monies spent on
the development of the land
under any other issue.
The Defendant gave evidence that
the plot in dispute was beside
his Workshop. He agreed to take
a lease for 5 years. This
evidence suggests that he knew
the state of the land before he
took a five year lease. The
Defendant cannot therefore
complain that it was
water-logged so he must be
compensated.
On the 3 bedroom house that the
Defendant built, he gave
evidence that he did that
because the Plaintiff had agreed
to sell the land to him.
However in explaining why he did
not pay the commitment fee
within the stipulated time, the
Defendant said it was because he
had not been given a copy of the
Site Plan to conduct a search at
Lands Commission, to know the
true owner.
If the Defendant built a 3
bedroom house on a plot of land
that is to be used as a Mechanic
Workshop, and for which the
Plaintiff had refused to pay the
commitment fee because he was
not sure of the owner, then the
Defendant took a risk in putting
up the building when he had not
even paid the commitment fee,
because he was not sure of the
owner of the plot.
The Defendant also gave evidence
under cross examination that the
Plaintiff was not to refund the
cost of fencing the land and
constructing a gutter on the
land, as he never discussed with
the Plaintiff when he found out
that part of the land was
water-logged. I therefore hold
that the claim by the Defendant
for the refund of all monies
spent on the development of the
land cannot be sustained and is
dismissed.
On the claim for interest on the
sum of GH¢3,400.00 the Defendant
failed to lead sufficient
evidence on it. The Defendant’s
pleading is that he initially
paid GH¢2,000.00 and later paid
GH¢1,000.00. The dates that
these were paid were not given
in the pleading and in the
evidence. The Plaintiff’s
exhibit ‘B’ shows that as at 21st
September, 2006, the Defendant
had not paid the entire
commitment fee, so time was
extended further to 30th
September, 2006. Exhibit ‘B1’
also suggest that the commitment
fee was not paid by 30th
September, 2006. Since the
Defendant has not been able to
lead evidence on when he paid
the commitment fee, the claim
for interest also fails.
As I had already held that the
parties agreed that the 5 years
tenancy expired on 31st
December, 2008, the Defendant
should have given vacant
possession of the land by
1st January, 2009. In
this case the Defendant had
occupied the land till today
without paying rent. Since the
Plaintiff claimed Mesne profit,
and by the authority of Acquah
vrs. Oman Ghana Trust Holding
Ltd, (1984-86) 1 GLR 157, the
quantum of Mesne profits was
normally the rent reserved in
the lease, the Defendant is
ordered to pay Mesne profit of
GH¢20.00 per month as is
contained in exhibit ‘A’ from 1st
January, 2009 to 31st
March, 2010 when the Defendant
is to vacate from the land.
In conclusion I order the
Defendant to give vacant
possession of the plot the
subject matter of dispute to the
Plaintiff on or before 30th
March, 2010, since the tenancy
agreement expired on 31st
December, 2008.
(b) The Defendant is to pay
Mesne profit of GH¢20.00 a month
from 1st January 2009
to 31st March,
2010.
The Plaintiff’s claim for
damages for breach of contract,
and the Defendant counter-claim
are dismissed.
The Plaintiff is awarded cost of
GH¢1,500.00.
Counsel: Mr.
C.T. Azzu for Plaintiff
Applicant.
Mr. W. K. Owusu for
Defendant.
(SGD.)MR. JUSTICE S.H.
OCRAN
Justice of
the High Court |
