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J U D G E M E N T
BY COURT:
This is an appeal by the
defendant/appellant against the
judgement of the district court,
Madina, dated 1st
April 2008 and presided over by
Her Honour Ananda J. Aikins
(Mrs) who sat as additional
magistrate.
In this case, the
plaintiff/respondent hereinafter
referred to as the plaintiff
claimed against the
defendant/appellant hereinafter
referred to as the defendant the
following
1.
An order of specific performance
to compel defendant to cause the
change of ownership of estate
type S.H. 3 No 2, Anumte Drive
(uncompleted) Adenta, Accra
without delay.
2.
An order of interim injunction
restraining defendant, her
agents, assigns, privies, and
workmen from interfering with
the said property until the
final determination of this suit
3.
Damages for trespass
4.
Cost
Even though the writ was on the
general list, it was accompanied
by an affidavit in support, and
a motion for an order of
interlocutory injunction, which
was granted on the first
appearance of the parties on 4th
July 2006.
On 12th July 2006 the
defendant denied the plaintiffs
claim and stated that she took a
loan of ¢4,000,000.00 from
plaintiff and agreed that she
will submit the title documents
to the plaintiff as guarantee of
the defendant’s payment of the
said loan.
According to the defendant, from
her affidavit in opposition, she
submitted the title documents to
the plaintiff, with the
understanding that same will be
returned after payment of the
loan, but the plaintiff refused
to return the title documents
giving the excuse that the said
title documents could not be
found after she had made the
plaintiff aware that his money
was ready.
The defendant then
counter-claimed as follows:
1.
An order restraining the
plaintiff from dealing in anyway
whatsoever with the defendants
property since she is the
rightful owner of the property.
2.
An order compelling the
plaintiff to produce the title
documents given by the defendant
to the plaintiff since the
defendant is ready to pay back
the loan she took from the
plaintiff with interest at the
prevailing bank rate.
On 25th July 2006 the
plaintiff swore to supplementary
affidavit, and joined issue with
the defendant and stated that
the transaction was oral
contract between the parties
based solely on trust because of
strong family relationship.
Even though the court below did
not order the parties to file
statement of claim and statement
of defence their affidavits in
support and that in opposition
indicated to the parties the
cases that each intended to put
up.
On 1st August 2006,
the plaintiff gave evidence but
his evidence was described as
P.W.I and completed on 26th
September 2006 without calling a
witness. The defendant opened
her defence on 3rd
October 2006, but was described
as D.W.I. On 23rd
April 2007 the defendant called
one Richard Harrison Arthur as a
witness but he was also
described as D.W.I
On 1st April 2008,
judgement was entered for the
plaintiff. It is this judgement
that the defendant appealed to
this court on the original
ground of appeal as follows
The judgement is against the
weight of evidence.
On 1st April 2009,
the defendant was granted leave
to file, additional Grounds of
Appeal within seven days. This
was complied with and on 2nd
April 2009 five additional
grounds of appeal were filed.
These additional grounds of
appeal are as follows
1.
That the learned trial judge
erred in holding that the
Defendant/Appellant was not the
owner of the disputed property.
2.
That the learned trial judge
erred in the holding that the
Plaintiff/Respondent refunded
the initial amount of GH¢400.00
(¢4,000,000.00) given to the
Defendant/Appellant by the
Plaintiff/Respondent was not a
loan.
3.
That the learned trial judge
erred in holding that the
Plaintiff/ Respondent refunded
the initial amount of GH¢145.00
(¢1,450,000) paid to the State
Housing Company Ltd (S.H.C) by
the Defendant/Appellant, to the
Defendant/Appellant.
4.
That the learned trial judge
erred in granting the order of
specific performance to the
Plaintiff/Respondent while there
was no valid enforceable
contract of sale of the dispute
property between the parties.
5.
That the learned trial judge
failed to consider the
unconscionable conduct of the
Plaintiff/Respondent especially
on such payment to the SHC as
constituting part-performance.
From the statement of case filed
additional grounds 1-4 may all
be said to be from the general
ground of the “Judgment being
against the weight of evidence”
As the supreme court had held in
Akuffo-Addo vs. Catherine (1992)
IGLR 377 in its holding 3 to the
effect that where the appellant
exercised the right vested in
him and appealed against the
judgement on the general ground
that the judgement was against
weight of evidence the appellate
court had jurisdiction to
examine the totality of the
evidence before it and come to
its own decision on the admitted
and undisputed facts.”
Considering the evidence which
was adduced by the plaintiff, I
am unable to find the contract
of sale on which he wanted an
order of specific performance
for which the court granted.
From the defendant’s affidavit
in opposition, she denied that
she made an offer of sale of her
house. The burden was therefore
on the plaintiff to establish
that contract.
The plaintiff did not make it
clear when he agreed with the
defendant to buy her house.
According to the plaintiff the
defendant was buying the house
for her daughter but the
daughter had rejected it. She
said it was in January 1995.
This is not clear whether it was
the date the defendant decided
to buy the house for her
daughter or the date that she
agreed to sell the house to the
plaintiff.
The plaintiff however said the
defendant started the purchasing
before he took over. Since the
defendant had started the
process of purchasing the house
before the plaintiff took over,
one would have expected that the
consideration to be paid by the
plaintiff would have been
mentioned but it was not.
Again the plaintiff said she
paid ¢7,845,000.00 in two
instalments in February 1996 and
tendered exhibit A. Exhibit A is
dated 29th April 1996
and it covers payment of
¢2,845,000.00. It was in the
name of Rev Paulina Kumadey.
The plaintiff also tendered
exhibit B which was dated 18th
January, 1995 and covers the sum
of ¢3,550,000.00 as further
deposit. These two exhibit
totals ¢6,395,000.00. but not
¢7,845,000.00. Exhibit B shows
that before 18th
January 1995, the defendant had
made certain payments towards
the purchase of a house. On
exibit B the plaintiff gave
evidence that he had all the
receipts in the name of the
defendant and exhibit B is an
example of such payments. Even
though the plaintiff did not
give evidence that he had paid
¢4,000,000.00 in the name of the
defendant, defence counsel asked
the following questions
Q. You said that you paid
¢4,000,000.00 in the name of the
defendant?
A. I paid ¢3,500,000.00 to SHC.
Counsel for the defendant and
the judge relied on the
¢4,000,000.00 which appeared in
a supplementary affidavit filed
on 25th July, 2006.
This affidavit was however not
made part of the evidence before
the court, as it was not
tendered by any of the parties
and therefore should not have
relied on.
If the plaintiff said he paid
¢3,500,000.00 to SHC, then he
was under an obligation to prove
this, but he failed to do that.
None of the receipts tendered
showed any payment of
¢3,500,000.00.
Defence counsel cross examined
the plaintiff on the receipts
tendered and he admitted that
the defendant handed over a file
containing some title documents
but not all.
Again when it was suggested to
him that the receipts he
tendered in evidence was that
given to him by the defendant he
said “not all”. This means some
of the receipts he tendered were
given to him by the defendants,
but he did not mention which
ones were given to him by the
defendant and which were
obtained by him. The trial judge
should have found against the
plaintiff since the burden of
proof was on him to establish
that he made those payments.
The defendant however said she
took a loan of ¢4,000,000.00
from the plaintiff for the
purchase of the house. The
plaintiff agreed with this, and
this can be seen from the
following cross examination of
the defendant
Q. How much money did you take
from plaintiff for the purchase
of the house?
A. I borrowed ¢4,000,000.00 to
complete the payment of the
house
Q. Out of the ¢4,000,000.00, how
much did you pay to State
Housing Corporation
A. I paid ¢4,000,000.00 to State
Housing Corporation and I was
given a balance of ¢450,000.00
Q. When you were going to pay
the ¢3,550,000.00 were you
accompanied by the plaintiff
A. I can’t remember.
From these questions and
answers, it can be seen that
exhibit B which was tendered by
the plaintiff was paid by the
defendant since it is for
¢3,550,000.00, which the
plaintiff conceded was paid by
the defendant but alleged the
plaintiff accompanied her when
she went to pay.
From the evidence on record, the
trial judge should have believed
the defendant’s evidence that
she took a loan of ¢4,000,000.00
from the plaintiff and gave him
her title document as security
for the payment of the debt. The
plaintiff also admitted under
cross examination that the
defendant demanded the return of
her title documents but he could
not give them to her because he
had misplaced them as a result
of relocation.
Since the plaintiff did not lead
any evidence on how much the
defendant had paid before the
loan of ¢4,000,000.00 had been
taken and no evidence of
repayment had been made to the
defendant, the trial judge as
additional magistrates finding
that the plaintiff refunded the
initial amount of GH¢145.00 paid
to the State Housing Company Ltd
by the defendant cannot be
supported.
From the judgement, the trial
judge seemed to be pushing the
burden of proof on the
defendant, when that should be
on the plaintiff. All the
receipts are in the name of the
defendants. Plaintiff had also
admitted that the defendant gave
her title documents to him.
Exhibit B tendered by the
plaintiff had been shown to have
been paid by the defendant from
a loan of ¢4,000,000.00. Exhibit
A which was in the name of
defendant was objected to when
it was being tendered. The
plaintiff called no witness to
corroborate his evidence yet the
trial judge believed him. Under
section 14 of the Evidence Act
1975 (N.R.C.D) 323 a party has
the burden of persuasion as to
each fact, the existence or
non-existence of which is
essential to the claim or
defence he is asserting. In Re
Ashalley Botwe lands, Adjetey
Agbosu and others vs. Kotey and
others (2003-04) SCGLR 420 Mr
Justice Brobbey J.SC in the 5th
holding held that “The effect of
sections 11(I) and 14 and
similar sections in the
Evidence Decree 1975 may be
described as follows
“A litigant who is a defendant
in a civil case does not need to
prove anything. The plaintiff
who took the defendant to court
has to prove what he claims he
is entitled to from the
defendant. At the same time, if
the court has to make a
determination of a fact or of an
issue and that determination
depends on evaluation of facts
and evidence the defendant must
realize that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to be
made in his favour”
In this case, the defendant
could not tender all the
receipts because she claimed
after she had made the payments
she gave her file containing her
receipts to the plaintiff as
security for the payment of the
loan. She made a demand far the
file/documents when she had the
money but plaintiff refused to
deliver the document. The
plaintiff admits that the
documents were given to him and
also admits that the defendant
demanded the return of the
documents but he could not find
them. It was therefore an error
on the part of the trial judge
to push the burden of proof on
the payments made on the
defendant as all the exhibits
tendered by the plaintiff were
in the name of the defendant.
The plaintiff himself showed
that exhibit B was paid by the
defendant, but not by him.
The evidence of the plaintiff
also shows that he did not
comply with section 2 of the
Conveyancing decree (N.R.C.D
175) of 1973, which says “No
contract for the transfer of an
interest in land shall be
enforceable unless
a)
It is evidence in writing signed
by the person against whom the
contract is to be proved or by a
person who was authorised to
sign on behalf of such person.
Since no contract of sale was
proved it is not strange that no
writing was made. Another reason
given for entering judgement for
the plaintiff was that the
defendant was aware of the
developments and improvements in
the house by the plaintiff but
the defendant chose not to
confront plaintiff because she
knows she had sold the house to
the plaintiff.
If plaintiff had led the
evidence that she developed the
house without any challenge from
the defendant, she would have
been estopped from claiming; but
this evidence is not disclosed
by the record.
What the plaintiff said in his
evidence in chief was that “I
have since done plastering,
painting and fixtures”
Whilst under cross examination
the plaintiff was asked the
following question
Q. In May this year, you started
developing the property
A. Yes (This evidence was given
on 26th September,
2006)
Q. You were confronted by the
defendant and she reported you
to SHC officials
A. No
Even though the plaintiff said
he had done the painting,
plaintiff’s counsel suggested to
the defendant under cross
examination that the plaintiff
has done all works on the house
since 1996 to date only thing
not done is the plastering.
A. I am not aware of it. I
wonder why he should be working
without my knowledge since I did
not sell the house to him.
Again when the defendant was
asked under cross examination
the state of the building
currently. She said “I visited
the site last year, March 2006.
When I got into the house I did
plastering and wiring. I tried
to make it habitable D.W.I
Richard Harrison Arthur gave
evidence on 23rd
April, 2007, that sometime in
May last year i.e. (2006)
defendant complained to him
about people living in the
house. He arranged with the
co-ordinator, who reported to
him that they had removed those
persons.
Since the plaintiff said he
started work on the house in
2006 and the defendant
complained in May 2006, it
cannot be said that the
defendant allowed the plaintiff
to work on the house without
complaint.
It is also on record from the
plaintiff himself that in
November 2005, the defendant
asked for the document but he
could not find readily. If the
trial judge had considered these
pieces of evidence on record,
she would have found that even
if the plaintiff undertook any
development in 2006, he knew the
defendant was demanding her
title documents from him.
From the above, I find as
follows
a.
The defendant Appellant is the
owner of the disputed house
b.
That there was no contract of
sale of the said house to the
plaintiff/respondent for an
order of specific performance to
be decreed
c.
That the sum of GH¢400.00 given
by the plaintiff/respondent to
the defendant/appellant was a
loan and ought to be refunded
with interest.
I therefore set aside the
judgement of the lower court and
enter judgment for the
defendant/appellant as follows
a.
The plaintiff/respondent is
restrained from having any
dealing with the house, the
subject matter of dispute.
b.
The plaintiff/respondent is to
surrender any document on the
house in dispute to the
defendant/appellant upon refund
of the sum of GH¢400.00 with
interest from the time that this
amount was given by the
plaintiff Respondent, to the
Defendant Appellant. The
Defendant Appellant is awarded
Cost of GH¢400.00
Counsel: Mr.
George Eshun holdes Rubby Sowa’s
brief for Plaintiff
Respondent
Mr A.D. Kpornyo for Defendant
Appellant
(S.G.D) MR. JUSTICE S.H.
OCRAN
Justice of the High Court
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