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JUDGMENT
ESSILFIE-BONDZIE, J.A.:
The plaintiff/Respondent
(hereinafter referred to as the
Plaintiff) instituted an action
against the Defendant/Appellant
(hereinafter referred to as the
Defendant) on 20th February 1998
for the reliefs endorsed on the
plaintiff’s Writ of Summons and
the statement of claim namely
“(a) A declaration that the
defendant is in breach of a
contract made between his Stool
Elders on one side and the
Defendant on the other side and
this contract was in respect of
Plots, Numbers 5 and 6 Block 11
AOJB Kumasi.
(b) Damages for breach of the
said contract.
(c) Perpetual Injunction”
The plaintiff’s case is that in
1995 Anamanko Stool, acting per
its occupant Nana Asumadu Bonene
(who is the defendant’s maternal
uncle) and his sub chiefs
decided to build its building on
plots at Adum Kumasi into a 4
story house. The plaintiff then
entered into AN AGREEMENT with
the defendant and by which
agreement the defendant was to
provide money to the plaintiff
for the plaintiff to build after
which she would have been given
all the rooms on the ground and
first floors.
In paragraphs 4, 5, 6, 7, 8, 9,
10, 11 and 12 of the STATEMENT
OF CLAIM the plaintiff pleaded
as follows:—
“(4) About 4 years ago the
defendant orally represented to
the plaintiff that she the
defendant could finance the
plaintiff to build a stool house
to specification as already
drawn up by competent
architects.
(5) The plaintiff summoned his
stool elders and informed them
of the defendant proposal.
(6) The plaintiff and his elders
orally agreed with the defendant
that the defendant was to
finance the plaintiff
Anamankohene to build a (4) four
floor Anamanko house as per on
approved plan.
(7) The terms of the agreement
was endorsed in writing signed
and or marked by the plaintiff
and his elders of the one part
and the defendant of the other
part.
(8) It was a cardinal term of
the oral agreement which was
evidenced in writing that if the
defendant could give the
plaintiff cash or money as and
when requested by the plaintiff
for the completion of the
building of the Anamanko stool
house, Anamanko stool will
convey all its interest.
(9) The defendant initially
gave the plaintiff the sum of ¢
10,000,000 in cash and in kind
by way of building materials.
(10) The plaintiff started the
construction of the said house
by laying the foundation up to
the ground floor and setting up
the pillars for the 1st floor
(11) About a year ago the
defendant took over the building
of Anamanko house.
(12) The plaintiff called the
defendant’s attention to the
cardinal term of the oral
agreement which is evidenced in
writing that she the defendant
was to give the plaintiff such
sum of money as the plaintiff
shall request to enable the
plaintiff to build the Anamanko
house”
In her statement of defence, the
defendant explained in detail
how she came to be involved with
the project.
In paragraphs 2, 3, 4, 5, 6 and
7 of the statement of defence,
the defendant averred as
follows:-
“(2) The defendant denies
paragraph 4, 5, 6, 7, 8, 9, 10,
11 and 12 of the statement of
claim as being truly
representative of what took
place between her and the
plaintiff.
(3) The defendant states that
sometime in 1994 she pleaded
with the plaintiff to help her
secure a store for her own
Trading activities.
(4) The defendant states that
the plaintiff told her that the
going rates then for store
within the Adum area was ¢
10,000,000 and that he thought
this was rather expensive.
(5) The defendant states that
when she assured the plaintiff
that she was prepared to pay the
said rate to secure a store of
her own, the plaintiff suggested
to her that if she had that
money available, then it would
be better for her to take up on
terms, the development of the
commercial Building on the
ANAMANKO Stool land over which
he had allegedly litigated and
same was lying vacant.
(6) Defendant states that being
apprehensive about raising the
capital needed for such a huge
project at a go, she expressed
her fears to the plaintiff.
(7) Defendant emphatically
states that the plaintiff
himself assured her that the
Project being at the commercial
Area of Adum once it properly
got underway, there would be no
shortage of prospective bidders
who would want to deposit money
with her for stores and which
monies would go a long way in
completing the Project as is the
normal practice in the
construction of such commercial
projects.
The defendant’s statement
contains other important
averments the cumulative effect
of which is a total denial of
the plaintiff’s claim. She also
filed a counter-claim.
The record of proceedings
disclose that on the 9/6/98 the
plaintiff applied to the Court
for a summary judgment under
Order 14 of LI.1197 and on
admission under Order 32 rules
6. The application was called
before the Court on the 21st day
of July 1998 for hearing. It is
on record that at that time the
defendant had on the 15/6/98
filed a statement of defence,
and a counter-claim.
The application was argued by
counsel of both parties on the
21/7/98 and judgment was
delivered on the 31/7/98.
Judgment was entered for the
plaintiff and the defendant’s
counter-claim dismissed. The
defendant has appealed against
this judgment on the two grounds
namely
“1) The trial judge was wrong in
holding that the defendant had
breached the Agreement when he
had not taken any evidence.
2) The trial judge was wrong in
dismissing the Defendant’s
counter-claim when he had not
taken evidence on the matter.
In arguing Ground 1, learned
counsel for the defendant
submitted that the defendant
made it plain in her statement
of defence that she commenced
construction of the building all
by herself before the plaintiff
asked lawyer BOAITEY to draft up
an Agreement, allegedly to
govern the transaction. And that
it was when the plaintiff called
her to sign the Agreement that
she noticed upon reading that it
had been drawn up to look as if
she was only lending money to
the plaintiff’s stool. He said
that when the defendant
discovered this error, she
queried the plaintiff.
According to learned counsel,
the plaintiff assured the
defendant that he had asked
lawyer BOAITEY to draft the
Agreement in that manner “so as
to protect her interest.” After
this assurance she signed.
Learned counsel contended that
the defendant never admitted
that she took over the
construction of the building
from the plaintiff.
In his judgment the learned
judge stated “Now, a point to
note is that the property; (the
subject-matter) is not the
private property of the
defendant’s uncle Nana Asumadu
Bonene. And that was why as he
admitted she appeared before the
Stool’s elders for the signing
of the document. At that stage
when she saw that the terms did
not favour her, she should have
protested to the elders there
assembled.
Instead, she called her uncle
aside and whispered a protest to
him whereupon her uncle cooled
her down with some assurance,
not voiced to the elders. If the
defendant’s said uncle thus
misled her and she being
literate, and being aware of the
terms, neatly signed the
document, it is the defendant’s
uncle she should blame.
She has no cause of action
against the stool. She entered
into the Written Agreement with
full knowledge of its terms”(The
emphasis is mine.)
The learned judge concluded his
judgment by declaring that
“She (defendant) was therefore
in breach of the Agreement by
taking possession of the
property without the consent and
Authority of the Stool; by
collecting good-wills and rent
advances and by exercising acts
of ownership over that property,
as she admitted.
Judgment was accordingly
properly entered against the
defendant. The counter-claim was
not competent; for it did not
disclose any cause of action
against the stool.
She should direct her attention
to her uncle personally.”
In his written statement of case
in reply to the written
submission filed on behalf of
the defendant, learned counsel
contended that the plaintiff
based his application for
judgment under Order 14 of LI.
1129 and not on judgment on
admission under order 32 Rules
6. He submitted as follows:
“I would beg to state that the
authority quoted by my friend is
on judgment on admission which
is under Order 32 Rule 6 and
that same is not applicable to
the instant case which is under
Order 14 of LI. 1129".
It is evident from the judgment
of the High Court that learned
trial judge based his judgment
on admission and therefore under
Order 32 Rule 6 and Order 14. In
his judgment the trial judge
made the bases of the judgment
clear. He stated
“A court can properly enter
judgment upon admission on the
pleadings where there is no
controversy and the matter is
clear and unequivocal”.
It is true that the defendant
signed the document but she
explained the circumstances in
which she signed the document.
It must be noted that no REPLY
was filed to challenge the
averments in the defendant’s
statement of defence. No defence
was filed in answer to the
defendant’s counter-claim and
therefore issue was joined on
the defence. The necessary
implication is that the
plaintiff was not controverting
new facts by the defence if they
were not already in issue.
In her defence the defendant
stated in paragraph 10 that she
commenced the actual
construction on 9/5/95, which
was the day she put up profiles
for the digging of the
foundation for the building.
This was before the Agreement
was signed. In paragraph 12 of
the statement of defence the
defendant emphasised that she
was given 5 years to complete
the building. And in paragraph
15 of the statement of defence,
the defendant further emphasised
that it was when the building
started taking shape and she was
having inquiries from
prospective tenants that the
plaintiff engaged LAWYER BOAITEY
to prepare an Agreement
purportedly to govern the
transaction.
The defendant contended that she
started the construction of the
building upon an oral agreement
with plaintiff long before the
Written document was made and
continued thereafter without
objection from plaintiff.
It is my judgment that the
statement of Defence as a whole
joined issue with the plaintiff
on his statement of claim on all
material points. Having
challenged the statement of
claim in this manner what was
actually agreed upon becomes an
issue for trial. This is so
especially as the so-called
Agreement relied upon by the
learned judge is not dated and
not stamped.
The law is that a party to a
suit is mandatorily prohibited
from pleading or giving in
evidence a written agreement or
a document without their being
stamped. In this case the
learned trial judge was
mandatorily prohibited from
receiving the written agreement
– Exhibit 1 – in evidence as it
was not stamped. I hold that the
judgment of the trial judge
founded on the Agreement –
Exhibit 1 – cannot be supported.
See Solomon Vrs ACKON (1964)
G.L.R page 2 (Holding 2).
Be that as it may, as conceded a
“Court can properly enter
judgment upon admission on the
pleadings where there is no
controversy and the matter is
clear and unequivocal.” But this
was not the case in this case. I
hold that in this case the Court
ought to have heard evidence and
evaluate the facts before coming
to the conclusion whether or not
the agreement had been breached.
In ADJAVON and Others Vrs GHANA
INDUSTRIAL HOLDING CORPORATION
((1980) G.L.R. CA 135. It was
held that “the rule enabling
judgment to be obtained on the
pleadings under Order 32 rule 6
of L.N. 140A. applied where
there was no controversy, and
the matter was clear and
unequivocal. Again where there
was a serious question of law to
be argued the rule would not be
applied. Thus where the whole
subject-matter of the dispute
was in issue the procedure under
Order 36 rule 6 would be most
inapposite. In the instant case
the real legal kernel appeared
to be whether the collective
agreement had been breached and
since the facts were also in
dispute that could only be
resolved by the application of
the relevant Law to the
ascertained evidence on oath.”
It is my view that the above
decision is on all fours with
the defendant’s case. In the
instant case the learned trial
judge was in grave error in
failing to hear evidence on oath
before coming to the conclusion
that the Agreement which is
invalid had been breached and I
so hold.
The next issue is whether or not
the plaintiff was entitled to a
judgment under Order 14 of L.N
140A. The principles which the
court had for years applied in
dealing with summons under Order
14 are well known. The defence
to be set up need only show that
there was a triable issue and
leave to defend ought then to be
given unless there was clearly
no defence in law and there was
no possibility of a real defence
on the question of fact. Again
the court would be entitled to
look at a statement filed
without leave. The fact that a
bona fide defence had been
delivered might well be
sufficient to enable a defendant
to get leave to defend. See
DUNCAN Vrs KAWOACO LTD (1981) G.
L. R. page 476.
In this case it is my judge
that, the statement of defence
and the counter-claim filed
raised important triable issues
and the application for summary
judgment ought to have been
refused. And the defendant
allowed not only to defend the
action but to prosecute her
counter-claim. For the above
reasons the appeal is allowed
and the whole judgment is set
aside.
The case is remitted to the High
Court Kumasi, for evidence to be
taken and the case heard on its
merit.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
ANSAH, J.A:
I agree.
J. ANSAH
JUSTICE OF APPEAL
OWUSU, J.A:
I also agree.
R. C. OWUSU
JUSTICE OF APPEAL |
