Duah v Top Kings Enterprise (CM/BDC/0220/2023) [2025] GHAHC 92 (20 May 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION 6) HELD IN ACCRA ON TUESDAY THE 20TH DAY OF MAY, 2025 BEFORE HER LADYSHIP JUSTICE SEDINA AGBEMAVA SUITNO.: CM/BDC/0220/2023 JOHNY NANA KWAKU DUAH … PLAINTIFF (SUINGPERHIS LAWFULATTORNEY) VRS. TOP KINGS ENTERPRISE … DEFENDANT JUDGMENT The present suit admits of no complexities whatsoever. The Plaintiff in its amended writ ofsummons asksfor theunderlisted reliefs: a. Declaration that the Defendant has breached the terms of the Agreement betweenthe Plaintiff and the Defendant. b. Anorderfor the paymentofthe Fifty Thousand United States Dollars (US$50,000.00)orin thealternative, anorderforspecificperformance. c. Interest on the Fifty Thousand Dollars from June 2015 till date of final payment. Page1of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise d. Costsincluding legalfees. e. Anyotherorderasthe Courtdeemsfit. The Plaintiff’s claim is a simple one. It entered into an Agreement with the Defendant for the purchase of a four bedroom House at a place known as Kingsville, Oyarifa in Accra. This house was priced at Fifty Thousand Dollars and Plaintiff says he paid the full purchase price as requested. The Defendant however failed to deliver up the property as promised in November of2016. Following this failure, the Defendant promised a new delivery date in 2017 and again in2018but failed todeliveronthe respective dates. Plaintiff’s case is that he followed up on the progress of his purchase in 2019 and 2022 but to no avail. He was therefore compelled to instruct his solicitors to write to the Defendant, demanding for the delivery of the property at Oyarifa or a refund of the Fifty Thousand United States Dollars (US$50,000.00) but the Defendant has failed tohand overthe propertyorrefund themoney paid toit. The Defendant also filed a seven paragraph Statement of Defence in which it denied the claims of the Plaintiff outright. It pleaded that it did not owe the Plaintiff any monies, hence the Plaintiff was not entitled to its reliefs. The Defendant further pleaded the defence of limitation and stated that the Plaintiff’s action was statute barred. In his reply to the Statement of Defence, the Plaintiff denied that the action was statute barred. He pleaded that the Defendant, upon failure to deliver the property Page2of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise renegotiated with him to deliver a four bedroom house at Kings City, Fetteh by January 31st,2018.Forthis reason,his action could not be statutebarred. The Law is settled that in civil trials, the burden of proof lay on the one who must succeed inthe action. SeeAckah vPergah TransportLtd &Ors [2010]SCGLR 728, Under Section 11 (1) and (4) of the Evidence Act, 1975 NRCD 323 the duty or obligation or the burden of producing evidence was on the Party against whom a Ruling onthatissue would be givenif he failed tolead sufficient evidence. The Plaintiff had testified that the Defendant renegotiated with it to give it another property after it failed to deliver on the initial one. This was to be delivered in the year 2018. This would mean that having renegotiated the contract and fixed a new date for performance, the cause of action accrued when the Defendant failed to deliver on the new date. This averment was not denied by the Defendant, either in itspleadingsor in its testimony. The Plaintiff further supported its averment with its Exhibit ‘D’, which is a document given it by the Defendant. It has the stamp of the Defendant and was signed by a Director of the Defendant. I believe that the Plaintiff has discharged the burden placed on him that the Defendant renegotiated the delivery of another propertytoit onanew date. The action cannot therefore be statute barred as under the Limitations Act, 1972 NRCD 54, actions founded on simple contract cannot be brought after the expiration ofSix (6)yearsfromwhenthe cause ofactionaccrued. Ifind that thePlaintiff was well withinthe limitation period and I so hold. Page3of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise The Defendant in its address to the Court strenuously urged on me to reject Plaintiff’s Exhibit ‘B’ and exclude it from the evidence for the reason that it is an instrument chargeable with duty but was rendered inadmissible because it had not been stamped before being admitted in evidence by the Court, differently constituted. The Defendant, relying on the case of Tormekpe v Ahiable [1975] 2 GLR 432 stated that it was the duty of the Court to reject such evidence when delivering Judgment, because it was a fundamental principle that a Court arrives at its decision by relying onlegaland admissible evidence and nothing else. That, ofcourse is anunexceptionable principle and I fully align withit. Exhibit ‘B’, which the Defence is so strongly urging on the court to reject as inadmissible is a receipt evidencing payment for the purchase of a one unit Four (4) bedroomhouse atKigsville Oyarifa. I think it will be useful to fully describe and reproduce the contents of Exhibit ‘B’ for abetterappreciation. The document hasthe Company’s name and address atthe topofthe page as TopKings Enterprise Limited. P.O.BoxGP 17775,Accra Tel021-786266, Fax021-786266 00129 Receipt 17-06-15 Receivedfrom: JOHNY NANA KWAKU DUAH The sum of FIFTYTHOUSANDU.S DOLLARSONLY Being FULL AND FINAL PAYMENT TOWARDS THE PURCHASE OF ONE (1)UNIT4-BEDROOM HSEAT KINGS VILLE-OYARIFA Page4of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise Cash/cheque No CASH Balance due: -NIL- Exhibit Bwas stamped and signed byone Gibson, designated asDirector, Admin. This is the document Defence Counsel is clawing and scratching to have excluded. His vigorous contest of the exhibit would have been warranted had Exhibit B qualified asaninstrument chargeable by duty. Exhibit ‘B’ as a mere receipt does not qualify as an instrument chargeable by duty. This is because under Section 13 of the Stamp Duty Act, 2005 Act 689, an instrument relating to the creation or transfer of an estate or interest in land … shall be accompanied withastatement in the formset out in the SecondSchedule. It is further provided that the statement shall be signed by the grantee, transferee or by a person authorised in writing to do so by the grantee or the transferee. A combined effect of the Section 13 and the Second Schedule under the Act shows that Exhibit ‘B’does notmeet thecriteria to attractany stampduty. I hereby find that Exhibit ‘B’ was therefore properly admitted by the Court, differentlyconstituted and remains admissible as evidence ofpayment. Plaintiff Counsel referred the Court to the case of Twene v Fara, digested in 1970 C.C 120 (HC) which held that “a receipt for a sum of money is merely prima facie evidence of payment, and it can be contradicted by proof that the money was not in fact paid, or thatthe termsofthe receipt do not accuratelystate the transaction. In this instance, the Plaintiff has shown prima facie evidence of payment with the terms of the receipt stating the purpose of the transaction. The onus therefore shifted tothe Defendant to contradict the claimthat the Plaintiff had paid it money. Page5of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise The Defendant in its testimony has been unable to offer any legitimate proof to contradict the evidence proffered by the Plaintiff that it paid Fifty Thousand United States Dollars (US$50,000.00) in cash in exchange for a Four (4) bedroom unit. This is the reason for the spirited fight to have the document excluded by all means from the evidence by the Defendant. The Defendant admitted in evidence that the person who signed the receipt, GibsonOwusu was one ofits Directors. It can therefore be safely inferred that Exhibit ‘B’ emanated from the Defendant and Defendant is being disingenuous when it states that it does not owe any monies to thePlaintiff. Again, as relied on by Plaintiff Counsel in the case of Nyame v Tarzan Transport [1973] 1 GLR 8, where the Court of Appeal, speaking through Azu- Crabbe JSC (as he then was) quoted with approval Lord Macmillan in Jones v. Great Western Railway Co. (1930) 144 L.T. 194, and Lord Wright in Caswell v. Powell DuffrynAssociated Collieries, Ltd. [1940]A.C.152 as follows: “The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legalproof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Asstated byLord Wright: Page6of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise “Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is leftis mere speculation orconjecture.” The proven fact as I have found in the instant case is that the Plaintiff made a payment in cash for a house. Even though no Agreement or Contract of Sale was tendered in evidence, it can easily be inferred that an Agreement was entered into, pursuant to which the Plaintiff made the full cash payment to the Defendant as evidenced by Exhibit ‘B’. The Plaintiff has been able to make out his case with a reasonable degree of probability. He succeeds in the action and I declare that the Defendant breached the Agreement between the Parties by failing to deliver up the Four (4) bedroom house whichthe Plaintiff had made full payment for. Plaintiff is entitled to recover from the Defendant the repayment of the sum of Fifty Thousand United States Dollars (US$50,000.00) with interest on the sum from June, 2015 till final day of payment. In the alternative, the Defendant is to deliver up to the Plaintiff the oneunit Four (4)bedroomhouse atKingsville, Oyarifa. Costs of One Hundred Thousand Ghana Cedis (GH¢100,000.00) is awarded against theDefendant tothe Plaintiff. (SGD) SEDINA AGBEMAVA J JUSTICEOF THE HIGH COURT Page7of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise COUNSEL 1. EMMANUEL KWASIKUMAHFOR THE PLAINTIFFPRESENT 2. ANNA RHODA AMOAKO DOKU WITH KRISTABEL KLENAM ADJOE HOLDING BRIEF FOR RALPH POKU ADUSEI FOR THE DEFENDANT PRESENT LISTOF CASES 1. ACKAHVRS. PERGAHTRANSPORTLIMITED& ORS. [2010] SCGLR728. 2. TORMEKPE VRS.AHIABLE[1975] 2GLR 432. 3. TWENE VRS.FARA, DIGESTED IN1970C.C 120(HC). 4. NYAMEVRS. TARZANTRANSPORT[1973]1GLR 8. 5. JONESVRS. GREATWESTERNRAILWAYCO.(1930) 144L.T. 194. 6. CASWELL VRS. POWELL DUFFRYN ASSOCIATED COLLIERIES, LIMITED. [1940]A.C.152. STATEDLAW 1. SECTION11(1)AND (4)OF THE EVIDENCE ACT, 1975NRCD323. 2. LIMITATIONSACT, 1972NRCD54. 3. SECTION13OFTHE STAMPDUTY ACT, 2005ACT689. Page8of8SuitNo.CM/BDC/0220/23JohnyNanaKwakuDuah(SuingperhisLawfulAttorney)Vrs.TopKingsEnterprise