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JUDGEMENT
BY COURT:
Plaintiffs by their Writ issued
on 16th October, 2006
claimed the following:
-
An Order for specific
performance i.e. an Order
for defendant to complete
the sale of the land.
-
An Order for defendant to
accept
¢150,000,000.00 (One Hundred
and Fifty Million Cedis) as
the equitable value of the
land and for which
¢48,000,000.000 (Forty-eight
Million Cedis) had already
been paid in view of the 11/2
plots instead of two
(2) plots with the agreed
value being ¢200,000,000.00
(Two Hundred Million Cedis).
-
A further Order restraining
defendant from including the
0.25 acre land plaintiffs
are occupying in any future
sale of her property.
-
A refund of the
¢45,000,000.000 (Forty-five
Million Cedis) 1st
Plaintiff paid into
defendants account at
Agricultural Development
Bank (ADB) Nungua branch.
-
Perpetual Injunction
restraining the defendant,
her agents, assigns etc.
from having anything to do
with the 0.25 acre land
purchased by plaintiffs.
The Statement of Claim that
accompanied the Writ stated that
the plaintiffs agreed to buy the
defendant’s plot of land, on
which the 1st
Plaintiff had then rented for
two years and had put up a house
on.
According to the Plaintiffs the
defendant said the land was two
plots and they agreed on
GH¢20,000.00.An amount of
GH¢4,800.00 was paid out of the
agreed sum. According to the
plaintiff, after they had paid
GH¢4,800.00, they requested for
the Site Plan and the conveyance
witnessing the transaction
before final payment is effected
and they said the defendant
agreed to.
It was later discovered that the
land consisted of one and a half
plots but not two plots so they
offered to pay GH¢15,000.00
instead of the agreed
GH¢20,000.00. The Plaintiffs
also said the 1st
Plaintiff paid into the
defendant’s account at ADB
Nungua branch, the sum of
GH¢4,500.00. The defendant
later issued 3 (three) undated
cheques of GH¢1,500.00 each, but
1st Plaintiff had not
cashed same.
The Defendant filed an amended
Statement of Defense and
Counter-Claim on 19th
March, 2009 with leave of the
Court. The Defendant denied
that she made an offer for the
sale of her land that the 1st
Plaintiff was then renting,
rather the 1st Plaintiffs
offered to buy the land and she
agreed. The Defendant said the
agreed price was €20,000 but was
not plot to plot as alleged.
This was to be paid before
indenture is prepared to cover
the transaction.
According to the defendant’s
pleadings €4,000.00 was paid to
her. On the pleaded
GH¢4,500.00, the Defendant
pleaded that it was part of the
Sum of GH¢20,000.00 which the 1st
Plaintiff paid to her to use
same for the construction of his
building. As she was about to
leave for Switzerland, she
issued three cheques to 1st
Plaintiff to use same on the
building. The 1st
Plaintiff failed to cash these
cheques and asked her to use
same to continue with the
construction of the house. The
1st Plaintiff asked
her to use GH¢2,000.00 of this
GH¢4,500.00 as rent for the land
for the period 2003.
The issues which were set down
for determination are as
follows:
a)
Whether or not the common
purchase price agreed on by the
parties was GH¢20,000.00
b)
Whether or not the GH¢20,000 was
for 2 (two) plots.
c)
Whether or not the size of the
land is less than 2 (two)
building plots.
d)
Whether or not the GH¢4,500.00
lodged in Defendant’s bank
account at ADB is still for 1st
Plaintiff.
e)
Whether or not the Plaintiffs
are entitled to the reliefs they
are claiming.
f)
Whether or not Defendant is
entitled to her counter-claim.
From the evidence adduced I have
no doubt in my mind that the 1st
Plaintiff and the Defendant,
from the onset, knew the
particular land that they were
dealing with. This is so
because the 1st
Plaintiff was then renting it,
and even lived on it. He then
built a house on it, and paid
rent for the use of the land
before the sale agreement was
concluded. Having used the land
for sometime before buying, it
is my view that the expression
“You have two plots exactly”
used in Exhibit 1A, will not
entitle the Plaintiff to reduce
the price.
The defendant did not give the
dimensions of what she meant by
two plots. She decided to call
what she had already rented to
the 1st plaintiff two
plots, and without giving
dimensions she is perfectly
entitled to call it so. If
plaintiffs wanted land with
particular dimensions, they
should have measured before
accepting to buy at the agreed
price.
Exhibit A1 is dated 1st
November, 2004 and may be said
to be the offer letter. There
is no indication as to the exact
time this offer was accepted.
Even though Exhibit B2 suggests
that as at 1st
October, 2006, an amount of
€4,000.00 had been paid, there
is no indication as to when this
amount was paid.
The evidence of the Plaintiffs
suggest that as at 1st
October, 2006, when Exhibit B1
was written the contract for the
sale of the land in issue had
not been reduced into writing as
envisaged by section 2 of the
Conveyancing Decree (N.R. C. D
175) of 1973.
The Plaintiff gave evidence that
they refused to sign Exhibit B2.
The Defendant could have
withdrawn from the contract of
sale when they refused to sign
but she did not because
according to the 2nd
Plaintiff, at that time, the
house had been completed.
Having made part payment and
built on the land at a time that
the price of GH¢20,000.00 had
been agreed upon, the plaintiffs
are estopped from resiling from
the contract as was held in the
case of Koglex Ltd (No 2) vs.
Field ( 2000) SCRGLR 175 in its
holding four which said “The
relief of specific performance
would lie whenever as in the
instant case agreement between
parties had got to such a stage
that it would amount to fraud on
the part of the other party to
refuse to perform his side of
the bargain.
Having completed building on the
land it meant the plaintiffs
accepted the land. It also
meant the plaintiffs accepted
the original price of
GH¢20,000.00. The plaintiffs are
therefore estopped from saying
they will not pay the
GH¢20,000.00 even though there
is no writing with regard to the
contract of sale, since equity
will not permit the defendant
from setting aside the contract
on grounds of absence of writing
as contained in section 2 of
N.R.C.D 175. In the same vein
the plaintiffs will also not be
permitted to refuse to pay the
agreed price.
From the above analysis, I hold
that the agreed contract price
was GH¢20,000.00 but not
€20,000.00 and that this price
was for the plots that the
defendant described as two plots
as the defendant did not give
dimensions of what she called a
complete plot. The plaintiffs
have also not led evidence on
what they understood by the
phrase complete plot before they
made part payment of GH¢4,800.00
and built on the land.
From the above analysis, I hold
that issue ‘C’ whether or not
the size of he land is less than
two building plots is not
relevant to the resolution of
this dispute.
On issue ‘d’ with, regard to the
GH¢4,500, the plaintiffs
pleaded that sometime in 2003
the defendant caused the 1st
plaintiff to pay an amount of
¢45 million into her account at
Agric Development Bank (A.D.B),
Nungua branch and defendant
issued 3 undated cheques of ¢15
million each and which the 1st
plaintiff had not cashed. The
plaintiffs pleaded further that
the defendant says the 1st
plaintiff had not paid any money
into her account.
The defendant on the other hand
denied this by pleading that the
GH¢ 4,500.00 was what was left
of the GH¢20,000.00 which was
given to her to build the house
at the time she was leaving for
Switzerland and for which she
issued the 3 cheques to the 1st
plaintiff for him to continue
with the construction of the
house at his request. The 2nd
plaintiff led evidence that 1st
plaintiff gave GH¢4,500.00 to
the defendant to pay into her
account at A.D.B, Nungua branch.
Whilst she was under cross
examination, it was suggested to
her that “at no point in time
did the 1st plaintiff
pay any money into the
defendants account”.
The answer was “the money that
was given to her was
US$6,800.00, and she said it was
equivalent to GH¢4,500.00 and
she issued cheques for it. Since
the defendant denies that this
GH¢4,500.00 was paid to her, but
that it was part of the money
given to her for the
construction of the house, the
burden is on the plaintiffs to
proof, but this they failed to
do. The 2nd plaintiff
who was not a party to the
transaction led evidence and
contradicted herself in her
evidence in chief and under
cross examination and also
contradicted her pleading.
In Barkers-Woode vs. Nana Fitz
(2007-08) SCGLR 879, the Supreme
Court considered section 10 (1)
of the Evidence Act, 1975 (NRCD
323) and held that “since the
defendant (in that case) claimed
that the admitted oral contract
between himself and the
plaintiff had been rescinded by
mutual agreement the persuasive
burden clearly was on him to
prove that assertion, “ei
incumbit probatio qui dicit, non
qui negat.”
This burden of persuasion,
defined under section 10 (1) of
the Evidence Act, 1975 (NCRD
323) as meaning “the obligation
of a party to establish a
requisite degree of belief
concerning a fact in the mind of
the tribunal of fact or the
court remains on the defendant,
even if the evidential burden
shifts as a result of, any
assertion made by the plaintiff
in response to his claim. The
Common law has always followed
the common sense approach that
the burden of persuasion on
proving all facts essential to
any claim lies on whoever is
making the claim”.
In this case, it is the
plaintiffs who made a claim that
they paid GH¢4,500.00 into the
defendant’s account at the
A.D.B, Nungua branch. It is
therefore the plaintiffs who
should prove this.
Having failed to do so, but
rather given conflicting
evidence “that her husband gave
the defendant GH¢4,500.00 and
she in turn deposited the money
in her account at the A.D.B,
Nungua branch for safe-keeping”,
and whilst the 2nd
plaintiff was under cross
examination, concerning the
payment of this GH¢4,500.00 into
the defendant’s account, she
said $6,800.00 was given to
defendant but not deposited into
her account, I reject the
plaintiffs version of the
GH¢4,500.00 and accept the
defendant’s version.
The defendant gave evidence to
support her claim that the
GH¢4,500.00. was the balance of
the GH¢20,000.00 given to her to
build the 1st
plaintiff’s house. She issued
three (3) cheques to the 1st
plaintiff in 2003 in order for
him to continue with the
construction when she was
leaving Ghana for Switzerland.
Since the first plaintiff could
not finish the building because
he fell sick the defendant had
to continue the construction of
the building.
The plaintiff denied this. It is
however on record that the
cheques were issued on 13th
June, 2003 and presented to the
bank for payment on the 1st
November, 2006. This writ was
issued on 16th
October 2006, at a time that the
1st plaintiff had not
presented the cheques to the
bank for payment. If these
cheques were actually a refund
of the alleged GH¢4,500.00 paid
into the defendant’s account,
the 1st plaintiff
would have presented same to the
bank for collection long before
he and the wife issued this
writ.
I therefore accept the
defendant’s claim that the
cheques were to be used by the 1st
plaintiff’s on the building, but
since he did not use same and
asked the defendant to continue
with the building project, the 1st
plaintiff did not have the moral
courage to present same to the
bank to withdraw when he knew
the defendant had used it on the
house.
The presentation of the cheques
on the 1st November,
2006 after the writ had been
issued must therefore be
condemned and as having been
presented in bad faith.
The 1st plaintiff is
therefore not entitled to any
GH¢4,500.00.
The defendant also made a
counter-claim for the following
a)
¢55 million as the cost the
defendant incurred when she
built the fence wall surrounding
the land in question.
b)
€16,000.00 or its cedi
equivalent being balance of the
land sold to 1st
plaintiff
c)
Interest on the purchase price
due to the defendant from 3rd
May 2005 till date of final
payment.
d)
Damages for breach of contract.
The defendant however did not
lead any evidence on the value
of the fence wall and under what
circumstances she built it.
Counter-claim ‘a’ is therefore
refused.
On counter-claim ‘b’ the
defendant pleaded and gave
evidence that the price was
agreed to be GH¢ 20,000.00. The
claim for €16,000.00 is
therefore dismissed and I rather
hold that the contract price was
GH¢20,000.00. Since the
plaintiff paid GH¢4,800.00, the
balance to paid as at the time
the writ was issued was
GH¢15,200.00.
From the docket the plaintiffs
paid the sum of GH¢10,200.00
into court on 2nd
June 2008. The defendant gave
evidence that the 1st
plaintiff made part payment in
May 2005 and she agreed to the 1st
plaintiff’s suggestion to pay
the balance by September 2005.
The defendant was not cross
examined on this and so I accept
her case that the full payment
should have been made by 30th
September 2005. The defendant is
therefore entitled to interest
on the unpaid balance of
GH¢15,200.00 from 1st
October 2005 to 2nd
June 2008 when GH¢10,200.00 was
paid and on GH5, 000.00 from 3rd
June 2008 to 28th
May, 2009.
I have come to this conclusion
because in the cases of Butt vs.
Chapel Hill Properties Ltd
(2003-04) SCGLR 636 and Smith
and others vs. Blankson (sub.
by) Baffour and Another
(2007-08) SCGLR 374 it was held
that even where a party has not
claimed interest on a sum to be
paid, interest can be awarded
and such interest should be
commercial bank rate.
In this case the defendant is
claiming interest and I award
her commercial interest rate as
at 28th May 2009.
In totality I dismiss the
plaintiffs claim as the
defendant has no intension of
setting aside the contract of
sale and enter judgment for the
defendant as follows
a)
Payment of the sum of GH¢5,000.00
being the unpaid balance of the
contract price of GH¢20,000.00
b)
Interest at commercial bank rate
as at 2nd June 2008
on the sum of GH¢15,200.00 from
1st October 2005 to 2nd
June 2008.
c)
Current commercial interest on
the sum of GH¢5,000.00 from 3rd
June 2008 to 28th May
2009.
The defendant is awarded cost of
GH¢1,500.00.
Counsel:
Mr. Frank Yankey for
Plaintiff
Mrs. Vivian Tetteh for
Defendant
(SGD) MR. JUSTICE S.H. OCRAN
Justice of the High
Court
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