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JUDGMENT
1. The Plaintiff claims
against the Defendant the
following reliefs.
“(1). Declaration that the
Defendant’s conduct in failing
to hand over to the Plaintiff
title and possession of a 4
bedroom property with an
outhouse at House No. 6, Grant
Close Batsonaa – Spintex Road
inspite of Plaintiff having paid
for same is wrongful and amounts
to breach of contract.
(2). A declaration that the
Plaintiff having paid the
Defendant for the property
described as House No. 6 Grant
Close Batsonaa Spintex Road,
Accra is the lawful owner and
entitled to same.
(3). An order to compel the
Defendant to hand over to the
Plaintiff title and possession
of the disputed property
described as House No. 6 Grant
Close Batsonaa Spintex Road
Accra.
(4). General
Damages for breach of contract.
(5). Perpetual injunction
restraining the Defendant, its
agents and assigns from dealing
with the disputed property
described as House No. 6 Grant
Close Baatsonaa – Spintex Road
Accra”.
In the alternative
(6). An order that the
Defendant refunds to the
Plaintiff the sum of $120,000.00
on its cedi equivalent with
interest thereon from 29th
January 2009 to the date of
final payment.
2. The Plaintiff’s case
is that by an offer letter dated
12th December 2008
tendered in evidence by
Plaintiff as Exhibit ‘A’ the
Defendant offered to Plaintiff a
4 bedroom detached house with
deluxe features and a one
bedroom outhouse (Spintex) at a
price of U$120,000.00
3. Subsequently, by a
memorandum of understating dated
10th December 2008
the parties executed an
instrument wherein the Plaintiff
as purchaser and the Defendant
as developer committed
themselves to the provision by
the Defendant of the property
described in the offer letter
subject to the other operative
parts of the MOU as set out in
paragraph 4 of Exhibit ‘C’.
4. In pursuance of
Exhibits ‘A’ and ‘C’ the
Plaintiff paid to the Defendant
the sum of One Hundred and
Twenty Thousand Ghana Cedis
(GH¢120,000.00) on 27/1/2009
which payment was acknowledged
by the Defendant per receipt
tendered by the Plaintiff as
Exhibit ‘D’ on which it was
endorsed as payment for a Three
(3) Bedroom plus an outer house
at Spintex as well as the sum of
One Thousand Ghana Cedis
(GH¢1,000.00) paid for utilities
for what was described per
Exhibit ‘E’ as a 4 bedroom house
at Spintex.
5. Further to the
respective agreements and
payments made by the Plaintiff
to the Defendant, the Defendant
executed a lease dated 15th
December 2008 tendered as
Exhibit ‘H’ in which subject to
the consideration of
U$120,000.00 which the Defendant
acknowledged as having been
paid,
the Plaintiff thereby became the
lessee for a period of 97 years
of the property envisaged by the
offer letter Exhibit ‘A’ and the
MOU Exhibit ‘C’.
6. Plaintiff asserts
that the Defendant has not only
failed to deliver as per the
agreement between the parties
the said 4 bedroom house with an
outhouse, the Defendant now
claims that the property
envisaged by the agreement
between the parties is a 3
bedroom house with a 1 bedroom
out house.
7. The Plaintiff in
consequence brings this action
claiming the reliefs endorsed on
the writ of summons.
8. The Defendant denies
the allegations contained in the
statement of claim by way of
general traverse but in
particular denies the
allegations contained in
paragraphs 3 and 4 of the
Statement of Claim.
9. In specific response
thereof the Defendant avers in
paragraph 4 as follows:
“Defendant states in response to
paragraphs 3 and 4 of the
statement of claim that the
Agreement was between Barclays
Bank, the employers of the
Plaintiff and the Defendant”.
10. The Defendant asserts
however that by the terms of the
negotiations and at all times
the value of the property was
the cedi equivalent of
U$120,000.00 due to the
fluctuating rate of the cedi /
dollar index. It further denies
Plaintiff’s contention with
respect to payments he has made
asserting that, it is the
Barclays Bank Ltd. Plaintiff’s
former employers who paid the
sum of U$100.000.00 on
Plaintiff’s behalf leaving an
outstanding balance of
U$20,000.00 to be paid before
the property envisaged by the
agreement is released to the
Plaintiff.
11. The Plaintiff joined
issues generally with the
Defendant on the Defendant’s
pleading. In his reply, the
Plaintiff relies on the
description of the property in
the contract document and
further asserts that at the time
Plaintiff paid the sum of
GH¢120,000.00 the parties were
in agreement that the exchange
rate of the dollar to the cedi
at U$1.00 is equal to GH¢1.00
was the prevailing rate which is
the reason for which Defendant
issued Exhibit ‘D’ as final
receipt of payment.
12. The Plaintiff denied
the allegation that Defendant
contracted with the Barclays
Bank and not the Plaintiff
himself and consequently the
Defendant’s assertion that the
property ought to be handed over
to the Barclays Bank Ltd. before
the latter handed over same to
the Plaintiff is not borne out
by the documentary evidence
before the court.
13. ISSUES FOR
DETERMINATION
The following issues were set
down for determination by the
court.
(1). Whether or not the
Plaintiff contracted with
Defendant for a (4) bedroom
property
(2). Whether or not the
disputed property is a (4) four
bedroom house.
(3). Whether or not the
land on which the disputed
property is situated is partly
owned by Government.
(4). Whether or not the
Plaintiff agreed with the
Defendant that the exchange rate
for the cost of the property
shall be GH¢1.00 to U$1.00.
(5). Whether or not the
Plaintiff fully paid for the
said sum in compliance with the
agreed exchange rate.
(6). Whether or
not the Plaintiff is indebted to
the Defendant.
(7). Whether or
not the Plaintiff is entitled to
his relief.
(8). Whether or not there
was any contract between
Defendant and Barclays Bank of
Ghana in respect of the disputed
property.
14. DETERMINATION OF
ISSUES BY THE COURT
In the determination of this
suit, I donot think all the
issues set out above are
relevant. Indeed both parties
have by implication abandoned
some of the inconsequential
issues not having adduced any
evidence towards their
determination one way or the
other. There is however
sufficient evidence at the trial
for an effectual determination
of the dispute between the
parties.
15. The law is notoriously
trite that for a court to
determine a case one way or the
other, each party to the suit
must adduce evidence on the
facts and issues to be
determined to a standard
prescribed by the provisions of
the Evidence Act 1975 NRCD 323.
Section 14 provides:
“Except as otherwise provided by
law, unless and until it is
shifted, 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”
16. There being no
counterclaim, it is the
Plaintiff who carries the burden
of proving what he asserts
against the Defendant. The
nature and degree of the
Plaintiff’s burden is statutory
and has been defined by judicial
opinions: eg. IN ABABIO VRS.
AKWASI IV [1994 – 95] GBR 774
the Supreme Court per Aikins JSC
held that:
“The general principle of law is
that it is the duty of a
Plaintiff to prove his case and
he must prove what he alleges.
In other words it is the party
who raises in his pleadings an
issue essential to the success
of his case who assumes the
burden of proving same. The
burden only shifts to the
defence to lead sufficient
evidence to tip the scales in
his favour when on a particular
issue, the Plaintiff leads some
evidence to prove his claim. If
the Defendant succeeds in doing
this, he wins, if not he loses
on that particular issue”.
17. This position is no
doubt an affirmation of the
words of Kpegah J. A. (as he
then was) in ZABRAMA VRS.
SEGBEDZI [1991] 2GLR 221 at 224
where he said.
“a person who makes an averment
or assertion which is denied by
his opponent, has the burden to
establish that his averment or
assertion is true. And he does
not discharge this burden unless
he leads admissible and credible
evidence from which the fact or
facts he asserts can properly
and safely be inferred. The
nature of each averment or
assertion determines the nature
of the burden”.
18. PLAINTIFF’S
EVIDENCE
As I had earlier observed,
Plaintiff’s evidence is
essentially documentary which is
the best evidence. He has by his
evidence established a
contractual relationship with
the Defendant which the latter
has not denied. There is
sufficient documentary evidence
in support of the Plaintiff’s
assertion that by the offer made
by the Defendant as contained in
Exhibit ‘A’ which is further
supported by the description
contained in the MOU Exhibit ‘C’
and Exhibit ‘1’ tendered by the
Defendant which contains the
contract of sale executed by the
parties, the type of property
envisaged by the parties
themselves is a four bedroom
detached house and 1 bedroom
outhouse. Notwithstanding the
apparent misdescription
contained in Exhibits ‘B’ ‘D’
and ‘E’ which the Plaintiff in
his testimony stated he had
challenged, it cannot be
construed that the property
described in the contract
document and which the Defendant
is band by the terms thereof to
deliver, is a 3 bedroom detached
house with or without a one
bedroom outhouse.
19. On the strength of the
evidence therefore, I find that
the description of the property
to be delivered by the Defendant
to the Plaintiff is a 4 bedroom
detached house and a 1 bedroom
outhouse. The word ‘and’ as
provided in the description in
Exhibit ‘A’ is conjunctive and
that is the language of the
contract. The law as Francois J.
A. (as he then was) stated in
the case of ALLAN SUGAR PRODUCTS
LTD. VRS. GHANA EXPORT COMPANY
LTD. [1982 – 83] 2GLR 922 is
that:
“The argument that the matrix of
facts, events, surrounding
circumstances and nuances should
be taken into account in
ascertaining the real intentions
of parties to an agreement and
in constraining it, is sound as
far as it goes,……… but the
fuller statement of the law,
however is that, where parties
have reduced into writing their
intention, they are bound by
their written word and the use
of extraneous materials as aids
to interpretation can only be
resorted to in extreme cases of
genuine doubt……………….”.
It is not the function of the
court to rewrite an agreement
for the parties…………..”
20. Having so found, I
shall resolve issues 1 and 2 set
down for determination in favour
of the Plaintiff and I hold that
though the said issues have not
been properly formulated, the
parties contracted for the
delivery of a 4 bedroom detached
house and a 1 bedroom outhouse.
However, I find that the
property being sought to be
delivered by the Defendant as
described in the Home Loan
Valuation Report Exhibit ‘C’
dated December 2008 also
described as “No. 6 situated on
Grant Close Batsonaa Spintex
Road Tema” is not the same as
the one described in the
contract because it simply
refers to a “4 bedroom detached
house.” It seems to me that this
description in Exhibit ‘B’ which
is at variance with the
description in Exhibit ‘A’ and
the contract of sale contained
in Exhibit ‘1’ is consistent
with the evidence of the Chief
Executive Officer of the
Defendant Ato Orleans Lindsey
inspite of his company having
issued Exhibit A. That testimony
as well as Exhibit ‘B’ and
Exhibits ‘D’ & ‘E’ in my view
donot correspond with the
property envisaged by the
contract.
21. The next issue I shall
determine is issue 8 set down
for determination which is
whether or not there was any
contract between Defendant and
Barclays Bank of Ghana. The
Defendant from the evidence
before me, led no evidence to
substantiate the allegation that
the contract was between
Defendant and Plaintiff’s former
employers Barclays Bank of
Ghana. Firstly, that assertion
contained in the Statement of
Defence is not supported by
documents the Defendant itself
issued to the Plaintiff and
received in evidence during the
trial. These are Exhibits ‘A’,
‘D’, ‘E’ and the contract of
sale embodied in Exhibit ‘1’ the
Defendant tendered in evidence.
22. Granted that it was
Barclays Bank of Ghana the
Defendant contracted with for
the Plaintiff’s benefit, the
Plaintiff will nevertheless have
a right to sue based on a cause
of action supported by statute.
The Contracts Act 1960 (Act 25)
provides in section 5. as
follows:
“5.(1). A provision
in a contract made after the
commencement of this Act which
purports to confer a benefit on
a person who is not a party to
the contract, whether as a
designated person or as a member
of a class of persons, may,
subject to this section and
sections 6 and 7 be enforced or
relied on by that person as
though that person were a party
to the contract”.
22. In the context of the
peculiar facts and evidence
adduced in this suit the
Plaintiff has proved on the
strength of documentary evidence
that he is the contracting party
and while I consider issue 8 as
inconsequential to the dispute,
I hold that the contract for the
delivery of the property
described in Exhibit ‘A’ the
offer letter from Defendant to
Plaintiff is not between
Defendant and Barclays Bank
Ghana and even if it were, same
is not consequential to
Plaintiff’s cause of action at
law.
23. One crucial issue for
determination however is whether
at the time the parties entered
into the agreement it was for
the purchase price of
U$120,000.00 or GH¢120,000.00.
There is no doubt from the
documentary evidence before me
that the purchase price was
indexed in United States Dollars
and was for U$120,000.00. Ghana
is not a dollar currency legal
regime but the law generally
admits of parties indexing their
transactions in United States
Dollars/the cedi equivalent of
which is legal tender. The
Defendant knew this yet it
accepted the payment of
GH¢120,000.00 from the Plaintiff
and issued receipts in full
discharge of the Plaintiff’s
obligation under the contract. I
have been urged by the
Defendant’s counsel in his
written address to determine
whether or not at the time of
the sale of the property, the
cedi ranked in the same value as
the dollar? He has also stated
that the Plaintiff is not
entitled to his claim unless he
pays the outstanding balance of
U$20,000.00. The Defendant from
the pleadings has not
counterclaimed for such crucial
relief.
24. I will therefore
refuse the invitation. Firstly,
it is not an issue set down for
determination. What was set down
for determination is contained
in issue 4 which is “whether or
not the Plaintiff agreed with
the Defendant that the exchange
rate for the cost of the
property shall be GH¢1.00 to
U$1.00” and this can be
determined on the strength of
the evidence adduced and by
logical inference.
25. There being no
specific provision for this in
the entire agreement, the
determination of the issue can
be logically inferred. Firstly,
if the Defendant knew it was
intent on relying on the dollar
index in the offer letter
Exhibit ‘A’, it should not have
accepted the Plaintiff’s payment
in Ghana cedis in the first
place without stating the dollar
equivalent the payment
represented. But it did, and
without any reservation, it
entered into a lease as
contained in Exhibit ‘1’ it
tendered in evidence where in
paragraph 5 the consideration
clause which is the operative
part of the instrument it signed
on is as follows:
“In pursuant (sic) to the demise
the lessee has paid to the
lessor the sum of One Hundred
and Twenty United States Dollars
U$120,000.00 yielding and paying
therefore unto the lessee the
yearly rent of (GH¢1,000.00)”
The only logical inference this
court can draw from the receipt
clause contained in the lease is
that Defendant accepted the
payment of the GH¢120,000.00 at
the time it was paid as
equivalent to U$120,000.00.
26. One reason for such
inference is based on the
provision contained in section
177(1) of the Evidence Act which
provides
“Except as otherwise provided by
the rules of equity, terms set
forth in a writing intended by
the party or parties to the
writing as a final expression of
intention or agreement with
respect to such terms as are
included in the writing may not
be contradicted by evidence of
any prior declaration of
intention of any prior agreement
or of a contemporaneous oral
agreement or declaration of
intention, but may be explained
or supplemented”.
(a). by evidence of
consistent additional terms
unless the court finds the
writing to have been intended
also as a complete and exclusive
statement of the terms of the
intention or agreement, provided
that a will and a registered
writing conveying immovable
property shall be deemed to be a
complete and exclusive statement
of the terms of the intention or
agreement and
(b). by course of dealing
or usage of trade or course of
performance.
Sub section 2(a).
defines course of dealing as
follows:
“a sequence of previous conduct
between the parties to a
particular transaction which is
fairly to be regarded as
establishing a common basis of
understanding for interpreting
their expressions and other
conduct.”
27. It is for this reason
I find that when the Defendant
executed the deed of lease
jointly with the Plaintiff, the
parties notwithstanding the
indexed amount of U$120,000.00
as the price of the property
envisaged by the agreement have
in their course of dealing
accepted payment by the
Plaintiff of the sum of
GH¢120,000.00 as representing
the entire purchase price of
U$120,000.00. By this same
conclusion therefore, I shall
resolve issue 4 affirmatively in
favour of the Plaintiff.
28. From the evidence the
issue “whether or not the land
on which the disputed property
is situated on land partly owned
by Government” was not addressed
by either party during the trial
nor was it a matter raised and
addressed by the counsel for the
parties in their closing written
submissions. It is therefore
considered abandoned and the
court cannot make a
determination of the issue.
29. On the totality of the
evidence adduced I find that the
Plaintiff has on the balance of
all probabilities proved his
case against the Defendant and
in consequence, I shall enter
judgment for the Plaintiff for
the reliefs endorsed on the writ
and hereby grant the
declarations sought as per
reliefs 1 and 2 endorsed on the
writ of summons.
(2). I hereby direct the
Defendant to deliver to the
Plaintiff forthwith the property
situate at No. 6 Grant Close,
Batsonaa Spintex Road Accra
envisaged by the contract
between Plaintiff and Defendant
however described.
(3). There is an
endorsement of a relief for
General Damages for breach of
contract. The Plaintiff had
adduced evidence that he has
suffered damage by having to
rent an alternative
accommodation. The law expects
the Plaintiff even in the
failure of the Defendant to
discharge on its obligation to
mitigate the damage. There is no
doubt that the Plaintiff will
invariably have to live
somewhere irrespective of
whether or not the Defendant had
delivered.
In the case of DELMAS AGENCY
GHANA LTD. VRS. FOOD
DISTRIBUTORS INTERNATIONAL LTD.
[2007 – 2008] SCGLR 748 Dr. Seth
Twum JSC held that:
“General Damages is such as the
law will presume to be the
natural or probable consequence
of the Defendant’s act. It
arises by inference of law and
therefore need not be proved by
evidence. The law implies
general damage in every
infringement of an absolute
right. The catch is that only
nominal damages are awarded.
Where the Plaintiff has suffered
a properly quantifiable loss, he
must plead specifically his loss
and prove it strictly. If he
does not, he is not entitled to
anything unless general damages
as are also appropriate”.
30. I have examined the
Plaintiff’s statement of claim.
There is no claim for any such
quantifiable loss suffered by
the Plaintiff. He is
nevertheless entitled to some
damages by way of general
damages for the Defendant’s
wrongful conduct. I will award
to Plaintiff the sum of
GH¢2,000.00 as general damages
for the Defendant’s failure to
discharge on its obligation.
31. I shall grant the
relief sought by the Plaintiff
for perpetual injunction as
prayed with respect to the
Defendant’s continuous
withholding of the said House
No. 6 Grant Close Batsona
Spintex Road Accra from the
Plaintiff and it is hereby so
ordered that the Defendant by
its agents, workmen, assigns
however described are hereby
restrained from the use and/or
possession of the said property
and from preventing the
Plaintiff from the use and
possession of same.
33. Let there be costs of
GH¢1000.00 in favour of the
Plaintiff.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
```
Adjabeng Akrasi Esq.
(For Plaintiff)
George Amissah Esq.
(With him Nii Apatu-PlangeEsq.)
(For Defendant) |
