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The Plaintiff
herein (Robert Bevan) sued the
1st Defendant (Medium Dwelling
Co. Ltd) for the following
reliefs: a. An order directed at
the 1st Defendant to reimburse
the Plaintiff in respect of all
expenses the Plaintiff has
incurred and would incur in
remedying the construction
defects discovered; b. An order
directed at the 1st Defendant to
pay the ground rent in respect
of the larger area to enable the
Plaintiff to register his
assignment; c. Damages for
breach of contract d. Costs.
From his pleadings, Plaintiff's
case is that by an agreement
with the 1st Defendant sometime
in 2007, 1st Defendant offered
to construct and sell to the
Plaintiff a house ("the
property") at an agreed purchase
price of £30,000.00. By a
subsequent agreement 1st
Defendant agreed and constructed
a two-bedroom boys quarters with
a garage on the same plot for
the Plaintiff at the price of
£10,000.00. Plaintiff says that
in a brochure attached to the
offer letter; there was a
warranty that the property would
be free from construction
defects and that 1st Defendant
would offer maintenance services
for construction defects for a
period of six (6) months after
the date of the handing over of
the property. It is Plaintiff's
further case that upon moving
into the house, contrary to the
warranty given and within the
warranty period, he discovered
several construction defects on
the house for which he made
several complaints to the 1st
Defendant but 1st Defendant
failed or refused to remedy the
defects or to do so
satisfactorily. Plaintiff was
therefore compelled to remedy
the said effects at his own
expense. This forms the basis of
the Plaintiff's claim for
reimbursement and damages.
Plaintiff is also seeking an
order directed at the 1st
Defendant to pay the ground rent
in respect of the larger area to
enable Plaintiff register his
Deed of Assignment of the
property in question. Plaintiff
says that the 1st Defendant gave
Plaintiff a Deed of Assignment
for registration but the
Plaintiff is unable to register
it because of the failure of the
1st Defendant to pay the ground
rent. The 2nd Defendant is
refusing to accept the ground
rent for the piece of land on
which the Plaintiff's property
is situated and insists that
payment of the ground rent for
the whole piece of land acquired
by the 1st Defendant should be
made. The 1st Defendant denies
Plaintiff's claims and says that
the house that Plaintiff bought
had been substantially completed
and Plaintiff purchased it after
inspecting it and being
satisfied with it. And that any
defects that the Plaintiff
brought to its notice were
remedied even thought it was
well after the 6-month
maintenance period indicated in
the brochure. There was seepage
of water to the Plaintiff's
compound from the adjacent land
and this had affected a portion
of the exterior painting. 1st
Defendant says it stopped the
seepage and repainted the
affected portion of the house.
1st Defendant says further that
there were no such defects as
indicated in the Surveyor's
report and that it was neither
aware nor involved in the
appointment of the Surveyor. In
response to Plaintiff's claim,
with respect to the non-payment
of ground rent, 1st Defendant
denied that it had not paid
ground rent for the land since
its acquisition. The problem, it
stated, is that the Lands
Commission is refusing to
register the Deed of Assignment
(Exhibit "E"). Indeed, the 1st
Defendant is contesting the
issue with the 2nd Defendant.
The 1st Defendant consequently
has counterclaimed as follows-
a. A declaration that the 1st
Defendant is not liable to pay
ground rent in respect of
portions of the land (described
in the Schedule hereunder)
contained in the indenture
between the Government and the
Medium Dwelling Company Ltd (1st
Defendant herein) dated 9th May
2001 and registered as Lands
Registry No. 2495/2002 assigned
to purchasers including the
plaintiff by the 1st Defendant.
b. A declaration that the
purchasers including the
plaintiff as assignees of the
1st defendant are liable to pay
ground rent in respect of the
portions of land they have
purchased from 1st Defendant
from the date of purchase. c. An
order that the 2nd and 3rd
defendants grant consent to the
assignments made by the 1st
defendant to the purchasers
including the plaintiff and
assess the ground rent in
respect of the portions of land
assigned to them from the date
of purchase. d. An order that
2nd and 3rd defendants recover
ground rent from the purchasers
including plaintiff from the
date of purchase. e. SCHEDULE -
ALL THAT PIECE OR PRACEL OF LAND
situate West of a canal at
Amanfro in the Ga District of
the Greater Accra Region of the
Republic of Ghana the boundary
whereof commences at a pillar
marked SGGA 248/2002/2 and is
654.5 feet on a bearing of 209
degrees 12’ which bearing
together with all further
bearings are referred to
Meridian 1 degree West Longitude
from a pillar marked SGGA
09/257/4 runs on a bearing of
202 degrees 40' for 556.6 feet
to a pillar marked SGGA
248/2000/3 and thence on a
bearing of 189 degrees 31' for
429.8 feet to a pillar marked
SGGA 248/2000/4 and thence on a
bearing 269 degrees 11 feet for
1239.8 feet to a pillar marked
SGGA 248/2000/5 and thence on a
bearing of 340 degrees 0. 1 feet
for 764.3 feet to a pillar
marked SGGA 238/2000/6 and
thence on a bearing of 69
degrees 53' for 1088.2 feet to a
pillar marked SGGA 248/2000/1
and thence on a bearing of 200
degrees 50' for 872.5 feet to
the point of commencement thus
enclosing an area of 47.309
acres or 19.146 hectares be the
same several dimensions little
more or less as the same
premises is more particularly
delineated and shewn edged pink
on the cadastral plan numbered
Y1124 hereto attached.' The
issues set down for
determination are as follows- 1.
Whether or not Defendants were
notified of the defects set out
in the Schedule attached to the
Plaintiff's Statement of Claim
or any other defects within the
six (6) month maintenance
period. 2. Whether or not
Defendants remedied the defects
of which they were given notice
within the 6 months maintenance
period. 3. Whether or not
Defendants are liable for any
expenses incurred by Plaintiff
in carrying out works on the
house the subject-matter of this
stilt. 4. Whether or not the
Lands Commission should not be
compelled to register the
interest of Defendant and
Plaintiff on the land in issue.
Is 5. Whether or not there was
an implied term of the agreement
of the parties or an implied
warranty that the building
materials used by the Defendant
will be reasonably fit for the
purpose. 6. Whether or not there
was an implied term of agreement
of the parties or an implied
warranty that the work to 5e
carried out by the Defendant
would be done to a high standard
of workmanship and on completion
be reasonably fit for its
particular purpose. 7. Whether
or not it is the responsibility
of the Defendant to pay the
ground rent for the piece or
parcel of land on which the
house the Plaintiff purchased
from the Defendant up to the
date of the deed of assignment
executed by the parties. 8.
Whether or not the Plaintiffs
inability to register the deed
of assignment given to him by
the Defendant is because the
Defendant has refused or failed
to pay the ground rent to the
Lands Commission in respect of
the larger piece or parcel of
land a part which the
Plaintiff's land form a part. 9.
Whether or not in all the
circumstances the Defendant
breached the contract between
the parties entitling the
Plaintiff to damages for breach
of contract. 10. Any other
issues arising from the
Pleadings." In my opinion the
main issues for determination of
this suit are: 1. Whether or not
1st Defendant had contractual
obligations with regard to the
quality of materials and
workmanship in the construction
of the house for Plaintiff 2.
Whether or not there were any
construction defects, notice of
which was given to 1st
Defendant. 3. Whether or not 1st
Defendant remedied defects
brought to its notice within the
6 months maintenance period. 4.
Whether or not the Lands
Commission should be compelled
to register the Deed of
Assignment which i Defendant
executed in favour of the
Plaintiff in respect of the land
the subject matter of this suit.
Plaintiff is asserting that the
brochure, tendered in evidence
as Exhibit "A", contained a
warranty that the property would
be free from construction
defects and 1st Defendant would
offer maintenance services for
construction defects for six
months. 1st Defendant denies
that there was any such
warranty. In my opinion, the
said exhibit "A" does not
constitute a contract. However,
even though a warranty may be a
term of a contract, albeit they
create minor obligations as
opposed to conditions, a
warranty may also be a
representation that induces the
contract or collateral term of
the contract (Dick Bentley
Productions Ltd v Harold Smith
(Motors) Ltd [1965] 2A11 ER, 65
at 67, CA per Lord Denning MR.)
In that sense, Exhibit "A' may
contain a warranty. A breach of
a warranty entitles the other
party to damages. I will find
that Exhibit "A" specifically
contains a warranty which reads
as follows: "MAINTENANCE
OBLIGATIONS MDCL will offer
maintenance services for only
construction defects for 6
months from date of handing
over, but would not
responsibility for misuse or
mishandling." There is however
no express warranty in Exhibit
"A" with regard to the quality
of materials and workmanship for
the construction of the
Plaintiff's property. In the
instant suit no formal
construction contract has been
produced; the parties signed an
Assignment (Exhibit "F"). It may
however be argued, as Counsel
for Plaintiff has done in his
written address, that there was
a construction contract between
the Parties for 1st Defendant to
complete an uncompleted house
and to build a two-bedroom
self-contained boys quarters for
Plaintiff. The law relating to
the formation of construction
contracts is no more than the
application of general
principles of contract in a
particular context. It is trite
learning that although it is
advisable that contracts are
written, they may be oral. In my
opinion, there was a
construction contract between
the Plaintiff and the 1st
Defendant. In construction
contracts, as with other kinds
of contract, the parties are
bound by what they have agreed
between them. So, did the 1st
Defendant have contractual
obligations with regard to the
quality of materials and the
standard of workmanship as is
being contended by Plaintiff?
Counsel for Plaintiff argues in
his written address that by the
lease agreement between the
Government of Ghana and the 1st
Defendant, 1st Defendant was
obliged to construct houses
using the best materials and to
a high standard of quality. By
delivering what it delivered to
the Plaintiff; a house with a
lot of defects, it was clearly
in breach of this covenant in
its lease. Exhibit "F" is a
lease agreement between the 1st
Defendant and the Government of
Ghana and the Plaintiff is not
privy to that agreement.
Therefore there cannot be any
obligation owed to Plaintiff by
1st Defendant by virtue of the
said Exhibit "F". And even
though the Deed of Assignment
executed between the Plaintiff
and 1st Defendant (Exhibit "E")
is subject to the terms and
conditions of the Lessees (1st
Defendant), in my opinion there
is no obligation whether express
or implied, on 1st Defendant
with regard to the quality of
materials and workmanship
Exhibit 'E" is not a
construction contract. I have
opined above that there was in
addition to the Assignment, a
construction contract between
Plaintiff and 1st Defendant. The
position of the law is that
whilst it is for the parties to
decide the terms of the contract
between them, the contract must
contain all the terms which are
essential to allow the contract
"to be workable as a matter of
commercial common sense."
(Trollope and Colls v. Atomic
Power Constructions [1963] 1
W.L.R. 333, 337). Although
typically in construction
contracts, matters such as scope
of works, time for completion
and contract price will need to
be finalised in order to make
the contract workable, there is
no prescriptive definition of
what will be an essential term
in every case. It is trite
learning that it is for the
parties to decide what is
essential in every case to their
reaching agreement, nonetheless
a term may be implied by custom.
In the case of Sowah v Bank for
Housing and Construction &
Another [1992-3] 2GLR 1324 at
1342, the Supreme Court noted
that in construction contracts
in Ghana, prices of material
were so unstable that the
building trade had adopted a
practice of varying the contract
price to reflect current market
prices. Consequently, such a
term would be implied in a
construction contract unless the
parties expressly excluded such
fluctuation payments. In decided
cases like L.B. Merton V. Leach
[1985] 32 B.L.R.51; Young &
Marten v. McManus Childs [1969]
1. A.C. 454, certain terms have
been implied in construction
contracts. These may act as
precedents for similar contracts
and therefore give rise to what
may called a common law
contractual duty, beyond the
express terms of the contract.
There are some important terms
which are usually to be implied
into construction contracts.
Such terms require that the
employer shall give possession
of the site within a reasonable
time; and give instructions and
information at reasonable times.
Similarly, the contractor must
carry out his work with proper
skill and care or, as sometimes
expressed, in a workmanlike
manner. Goods and materials must
normally be of good quality and
reasonable fit for their
purpose. I will therefore find
that there was an implied term
that the work to be carried out
by 1st Defendant would be done
to a high standard of
workmanship and with quality
materials. So, what evidence did
the Plaintiff adduce to prove
his assertion that 1st Defendant
did not use good quality
building materials and
workmanship resulting in defects
in the building? Plaintiff is
alleging that there were
construction defects. Plaintiff
tendered in evidence the report
of a Surveyor as Exhibit "B" and
photographs as Exhibit "G"
series in support of his
assertion and evidence.
Plaintiff's further evidence was
that he discovered these defects
when he went into occupation of
the house and he brought them to
the notice of the 1st Defendant.
By his own evidence, Plaintiff
said that initially 1st
Defendant was notified of the
defects verbally. This continued
over a long period. He
subsequently engaged a Surveyor
who prepared a report on the
defects. He submitted a copy of
the report to 1st Defendant's
office. Later, his lawyer wrote
to the 1st Defendant about the
defects. Plaintiff also called
as witnesses; Bismarck Nii
Nartey who is a mason who said
he did some work on the
property; William Befi, a
painter who said he painted
Plaintiff's property: and Mercy
Serwah Gyamera, a sister to the
lady Plaintiff referred to as
his "Ghanaian sister". Her
evidence was that she saw the
defects Plaintiff is complaining
about when she visited the
Plaintiff in his house. The
Managing Director of the 1st
Defendant Company Josiah
Arko-Korsah (D.W.1), the
Accountant, John Kingsley Acquah
(D.W.2) and the foreman of the
1st Defendant's painters,
Anthony Spio Bosu (D.W.3) gave
evidence on behalf of the 1st
Defendant. D.W1's evidence was
that the house that Plaintiff
purchased was 90% completed. On
the day Plaintiff moved into the
house, the final painting of the
main house had not been done,
the wardrobes and kitchen
cabinets had not been sprayed;
and the outhouse had been roofed
and plastered but not yet
painted. The house was completed
for the Plaintiff after he had
moved in. The Plaintiff however
did not allow 1st Defendant to
do the painting of the wardrobe
and the kitchen cabinet. He said
he had a special paint which he
wanted to use to suit his taste.
D.W.1's further evidence was
that many of the alleged defects
were not brought to its notice
and 1st Defendant denied that
any such defects existed. He
said that the normal practice
was that before a purchaser
occupied a house constructed by
1st Defendant, the purchaser
signed a checklist of everything
done on the house to signify
that they had accepted
everything as is. However in the
case of the Plaintiff, he moved
into the house before the house
was completed and would not
allow anyone into the bedroom to
do the checklist. There was
therefore no formal handing
over. He said also that
Plaintiff was in occupation of
the house during construction
especially with regard to the
boys quarters and he specified
a. few things he wanted changed,
which were done. It is therefore
D.W.1's contention that some of
the problems were due to the
fact that Plaintiff occupied the
house before it was finally
completed. Thus the facilities
installed in the house were not
tested before Plaintiff took
occupation. Nonetheless when
Plaintiff moved into the house
and the items were tested, any
faults which were discovered
were repaired to the
satisfaction of the Plaintiff.
D.W.1's further evidence was
that the only problems which
Plaintiff complained of well
over six months after he moved
into the house were roof
leakages, seepage of wage into
the compound and fungal growth
beneath the concrete on which
the water tank had been placed.
With regard to the said
complaints, D.W.1 testified that
it turned out that there was no
roof leakage but rather water
had gone into Plaintiff's living
room as a result of rain water
entering the living room through
a window which was left open
while it was raining. The
seepage of water according to
D.W.1 was the result of water
collecting on the land adjacent
to Plaintiff's house. The water
was cleared and the seepage
stopped. D.W.1's evidence was
that the damage caused to
Plaintiff's house was also
repaired. It was D.W.1's further
evidence that the fungal growth
was caused by the blockage of
the outlet through which water
on the concrete drained from.
The water was cleared and the
fungal growth was scraped and
painted. D.W.1 says they did
this for Plaintiff even though
it was not their responsibility
to do so. D.W.3 corroborated all
these pieces of evidence given
by D.W.1. D.W.3's further
evidence was that he was aware
of problems with door locks,
light switches, wash basins, and
wardrobes, but all these
problems were resolved by 1st
Defendant. He said that the
problem with the wardrobes was
from the fact that they had been
closed for sometime and
therefore there was no air going
in, resulting in some mildew
forming in the wardrobes. So
they cleaned the wardrobes and
applied chemical on the mildew.
D.W.1 challenged the Plaintiff
on his list of defects and
testified that Plaintiff had
himself done some works on the
house resulting in cracks which
could not be blamed on the 1st
Defendant. Furthermore, some of
the photographs tendered in
evidence did not relate to the
house because the colour of the
paint on them was not that used
by the 1st Defendant on houses
within the estate. In the
opinion of the Court, all these
pieces of evidence were not
sufficiently controverted by the
Plaintiff. It is trite learning
that it is the party who raises
in his pleadings an issue
essential to the success of his
case who assumes the burden of
proving it. The burden only
shifts to the defence only to
lead sufficient evidence to tip
the scale in his favour when on
a particular issue the Plaintiff
leads some evidence to prove his
case. If the Defendant succeeds
in doing this, he wins, if not
he loses on that particular
issue. (per Aikins JSC in Abablo
v. Akwasi III [1994 -95] Ghana
Bar Report Part 2, 77)
Plaintiff's evidence was that,
the alleged defects were brought
to the notice of D.W.2, Mr.
Acquah by Plaintiff personally.
There were however some other
defects which Plaintiff says he
noticed. Plaintiff then engaged
a Surveyor to do a report on the
defects. The Surveyor's report
(Exhibit B") covered a number of
things which were not physically
brought to the notice of 1st
Defendant. The evidence placed
before the Court is that D.W.1
called the Surveyor for
discussions and to verify the
contents of the report but the
Surveyor did not make himself
available. The further evidence
was that on the occasion that
Mr. Ray Quarcoo, a friend to the
Plaintiff visited 1st
Defendant's office, the
Surveyor's report was not
discussed, the issue discussed
was the seepage of water into
Plaintiff's compound. They all
moved to the house to go and
verify the problem and the cause
of the seepage was traced and
the problem subsequently solved.
At the said meeting, Mr. Quarcoo
also mentioned the Plaintiff's
desire to offer to sell back the
house to 1st Defendant. In my
opinion, the evidence of the
Plaintiff's witnesses was not
convincing enough to support the
Plaintiff's case, especially
that of P.W.3. It is also my
opinion that it would have
helped the Plaintiff's case at
least if he had called the
Surveyor and/or Mr. Ray Quarcoo
to come to court to testify, but
he did not. In my opinion these
are material witnesses to
Plaintiff's case. On the other
hand, I find D.W.2 to be a
credible witness and he
corroborated D,W.1's evidence.
It was very obvious that he and
Plaintiff had a good
relationship, and as Plaintiff
himself indicated, he is a good
person. He had become a personaI
friend of Plaintiff and paid
particular attention to
Plaintiff's problems.
Plaintiff's own evidence
indicated that there was regular
cordial interaction between
Plaintiff and D.W.2, and
Plaintiff made some complaints
to Mr. Acquah (D.W.2) and this
took place around the time that
the Surveyor is said to have
done his work. Plaintiff could
at least have brought the
alleged defects covered in the
Surveyor's report to the notice
of D.W.2. I will accept the
evidence of D.W.1 that some of
the complaints made by
Plaintiff, for instance the
water seepage, were not
construction defects. I will
find that Plaintiff has not
established that there were
construction defects, and also
that 1st Defendant was not
notified by Plaintiff of the
alleged defects. The evidence
adduced on behalf of 1st
Defendant was that they promptly
remedied the problems reported
by the Plaintiff. From the
evidence placed before the
Court, Plaintiff does not appear
to be denying that the remedial
works done by 1st Defendant, he
is saying that they were
unsatisfactory. As to what is
satisfactory, there is no
evidence placed before the Court
to enable it determine this. I
will find that 1st Defendant
remedied the problems PIair.iff
brought to its notice within and
beyond the six (6) months
maintenance period. It appears
to me that Plaintiff carried out
improvements in the house to
suit his own taste, and bring it
to the comfort level he enjoyed
in his house in the United
Kingdom. I will now discuss the
issue as to whether or not the
Lands Commission should not be
compelled to register the Deed
of Assignment 1st Defendant
executed in favour of the
Plaintiff in respect of the land
the subject-matter of this suit.
The Plaintiff averred that it is
unable to register the
Assignment from 1st Defendant
because the 1st Defendant has
refused or failed to pay the
requisite ground rent to the
Lands Commission in respect of
the larger tract or parcel of
land, a piece on which the
Plaintiff's house was
constructed. And it is the case
of the 1st Defendant that it is
the obligation of the Plaintiff
to pay the ground rent for his
piece of land as a purchaser of
a house. Nonetheless, Plaintiff
is not able to do so because the
Lands Commission (2nd Defendant
herein) which alone is empowered
to assess ground rent has
refused to do so and continues
to levy 1st Defendant with
ground rent for the whole land.
The Lands Commission has stated
in its Statement of Defence that
1st Defendant has an outstanding
rent arrears of GH¢28,068.00 for
the period 1st January, 2002 to
31st December 2009 It states
further that it will abide by
whatever order the court makes
and therefore did not contest
the suit. Indeed 1st Defendant,
as per the evidence of both
D.W.1 and D.W.2, concedes that
it owes arrears on the ground
rent. It is clearly stated in
the Deed of Assignment (Exhibit
"E") between the 1st Defendant
and Plaintiff in section 3 (ii)
that "The Assignee shall pay a
yearly ground rent". The amount
to be paid has to be assessed by
the 2nd Defendant. However, the
fact of the matter is that 1st
Defendant has arrears to clear
with the 2nd Defendant and must
clear the outstanding arrears.
It is also the opinion of the
Court that as much as purchasers
have an obligation to pay ground
rent this obligation becomes
operational only after a
purchase is completed and
therefore Plaintiff's obligation
would take effect from the date
the purchase was completed.
Obviously, the houses on the
larger parcel of land were not
all completed at the same time
and therefore it would be the
responsibility of the Plaintiff
to reconcile with the 2nd
Defendant what amount it is
liable to pay and when the
responsibility shifts to the
purchasers. I will consequently
find that it is the
responsibility of the 1st
Defendant to pay the ground rent
for the piece of land on which
the Plaintiff's house was
constructed up to the date of
the Deed of Assignment. In
conclusion, I will dismiss
Plaintiff's claim for
reimbursement of expenses
incurred as not having been
proved on the balance of
probabilities from the totality
of the evidence adduced. I will
grant Plaintiff's claim that the
1st Defendant pay the ground
rent in respect of the larger
area to enable the Plaintiff
register the Deed of Assignment
and so order. There shall be no
award of damages since no breach
of contract has been
established. I will grant the
1st Defendant's items (2), (3)
and (4) of its Counterclaim and
order as follows. 1. A
declaration that the purchasers
including the Plaintiff as
assignees of the 1st Defendant
are liable to pay ground rent in
respect of the portions of land
they have purchased from 1st
Defendant from the date of
purchase. 2. An order that the
2nd and 3rd Defendants grant
consent to the assignments made
by the 1st Defendant to the
purchasers including the
Plaintiff and assess the ground
rent in respect of the portions
of land assigned to them from
the date of purchase. 3. An
order that 2nd and 3rd
Defendants recover ground rent
from the purchasers including
Plaintiff from the date of
purchase For the reasons that
the Court has not granted all of
the Plaintiff's reliefs and has
also found the 1st Defendant to
be liable for part payment of
the ground rent. And further
that it is the responsibility of
2nd Defendant to assess the
ground rent payable by Plaintiff
and accept payment from
Plaintiff, I will not make any
cider as to costs. Each party
shall bear its own costs.
COUNSEL: KWAME AGATI - PLAINTIFF
KWAMINA BAIDEN – 1ST DEFENDANT
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