TRAORE VRS. FRIMPONG COMPANY LTD (OCC/6/2022) [2025] GHAHC 61 (27 February 2025)

IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION HELD AT KUMASI ON THURSDAY 27TH DAY OF FEBRUARY 2025 BEFORE HIS LORDSHIP JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE -------------------------------------------------------------------------------------------------------- SUIT NO. OCC/6/2022 SALIM TRAORE - PLAINTIFF Immeuble Sanke Avenue De L’oua Faladje Bamako Bp – 7008 Acting Per His Lawful Attorney Adama Traore H/No. 251 Monte Cito Drive Airport Hills - Accra VRS FRIMPONG COMPANY LTD - DEFENDANT Plot 22 Block A Atonsu – Kumasi TIME: 12:50PM. JUDGMENT: On 24th September, 2020, the parties in this suit, intended an execution of a Contract of Sale of a property. This said Contract of Sale, is the reason for this litigation between the parties herein. The parties are contesting the validity of the Contract of Sale. 1 Notwithstanding, the contestation concerning the validity of the Contract of Sale, the parties further disagree on whether that same Contract of Sale was breached. It is obvious that, whilst the Plaintiff asserts against the Defendant, a breach of the Contract of Sale, the Defendant on the other hand, asserts against the Plaintiff, the invalidity of the Contract of Sale. The parties have therefore invited the Court to determine for them the following Issues: 1. Whether or not there was a valid agreement of sale of the Land, the subject matter of dispute. 2. Whether or not the terms/conditions of the Contract of Sale was breached. 3. Whether or not the Defendant’s alienation/sale of the Land, subject matter of dispute to a third-party was valid. The Plaintiff’s Case. This suit was commenced on 7th September, 2021. In the Statement of Claim, the Plaintiff describes himself as a Malian National. He brings the action through his Lawful Attorney, one Mr. Adama Traore and whom, he says, was at all material times, his contact person concerning the transaction, the subject matter of this action. He stated of the Defendant, as a Company incorporated under the laws of Ghana and who at all material times to the transaction, also acted through its Managing Director, one Mr. Eric Frimpong. The Plaintiff says that, on 24th September, 2020, he entered into a Contract of Sale, to purchase a Filling Station, located at Boankra in the Ashanti Region, with the Defendant Company. 2 According to him, he agreed with the Defendant on the Purchase Price of GH₡2,400,000.00 and per the terms of the said Contract of Sale, he was to pay 70% of this purchase price, when the Contract is executed and the remaining 30% to be paid upon successful completion of the registration of Defendant’s statutory declaration and deed of assignment relating to the Filling Station. It is Plaintiff’s case also that, the parties agreed in the Contract of Sale that, upon the payment of the 70% of the purchase price, Defendant shall grant him full possession of the Filling Station. According to him, as of 18th November, 2020, he had paid the required 70% of the purchase price but Defendant refused to grant him possession and quite enjoyment of the property and has subsequently evinced an intention to abrogate the said Contract of Sale by returning an amount of GH₡650,000.00 which Defendant paid into he, Plaintiff’s Solicitor’s Bank Account. According to him further, some twelve weeks ago, then, the Defendant again paid an amount of GH₡50,000.00 into he, Plaintiff’s Lawful Attorney’s Bank Account which he caused to be returned to him and on 1st September, 2021, he tried to pay GH₡980,000.00 into his Lawful Attorney’s Bank Account which the Bank refused to accept and Defendant called to come for his money. On these allegations of fact, the Plaintiff asserts that, the Defendant’s conduct constitutes a breach of Contract. By reason of the foregoing, the Plaintiff claims against the Defendant, an Order of specific performance, for him to transfer the property in issue to him and also an Order for him to execute a deed of assignment in respect of the property in his favour. 3 The Plaintiff again wants the Court to declare that, by the execution of the Contract of Sale of 24th September, 2020, a lawful and valid agreement had been consummated and a further declaration that, the attempt by the Defendant to return part of the purchase price constitute breach of contract for which the Defendant should perpetually be restrained together with his agents, assigns, workmen etc from interfering with his quite enjoyment of the property in dispute. He also seeks recovery of possession and damages for trespass. Defendant’s Case. The Defendant admits paragraph 4 of the Statement of Claim that, he agreed with the Plaintiff on a purchase price of GH₡2,400,000.00. It however, contends at paragraph 8 of the Amended Statement of Defence that, the Plaintiff caused his Lawyer to prepare the Contract of Sale, made him to sign it under the guise that, same shall be read to him afterwards but immediately after he signed it, Plaintiff’s Lawyer refused to read it to him and was also denied a copy. According to Defendant, it was deceived severally by Plaintiff in his attempt to purchase the Land, the subject matter in dispute and caused Defendant to move to and from Kumasi to Accra on so many occasions under the pretext on each occasion that, the sum total of the purchase price was ready and yet same was far from the truth. The Defendant averred that, as far as it is concerned, all the amounts paid by Plaintiff to it, have been refunded to him in full and that, it has long abrogated the Contract and transferred its interest out to Wynca Sunshine Agric Products and Trading for value and that, this third-party has since acquired a Lease on the subject matter of this suit. 4 In the events that happened, definite hearing commenced on 12th December, 2024. The Plaintiff per his Lawful Attorney testified in-chief and Cross-Examination commenced on that self-same day. He was discharged for that day and further Cross-Examination adjourned to 19th December, 2024. The matter was adjourned from 19th December, 2024, to 15th January, 2025 and a further adjournment from 15th January, 2025, to 6th and 13th February, 2025, for continuation of hearing. On 6th February, 2025, the Defendant and its Lawyer were absent from Court. There was no reason on record justifying their absence. The Court discharged the Plaintiff’s Lawful Attorney under Cross-Examination previously. The Plaintiff in the result, announced the closure of his case. The suit was adjourned to the agreed date of 13th February, 2025, for Defendant to open its case and be cross-examined on that self-same day. On 13th February, 2025, the Defendant and its Lawyer were in Court. Defendant failed to open its Defence and be cross-examined. The suit in the circumstance, was brought to a close and the parties ordered to file their Written Address on/or before 20th February, 2025 and for Judgment on 27th February, 2025. Evaluation of the Evidence visa vis the Issues for Trial. 1. Whether or not there was a valid agreement for Sale of the Land, the subject matter of the dispute. The Plaintiff asserts the positive that, there was a valid Contract of Sale. Sections 10 and 11 of the Evidence Act, NRCD 323, statutorily obligated him to introduce sufficient evidence on the Issue as well as the burden of persuasion. 5 The Plaintiff testified through a Lawful Attorney. He gave his name as Adama Traore. He tendered a Power of Attorney as Exhibit “A”. According to him, on 24th September, 2020, he entered into a Contract of Sale for the purchase of a Filling Station located at Boankra in the Ashanti Region with the Defendant. He tended Exhibit “B”, a Contract of Sale in proof of his testimony. This is what he said at paragraphs 5 of his Witness Statement: “On 24th September, 2020, I entered into a Contract of Sale for the purchase of a Filling Station located at Boankra in the Ashanti Region of the Republic of Ghana for the Defendant as per Exhibit “B”.” At paragraph 6 of his Witness Statement, he further testified: “That I agreed with the Defendant on a purchase price of Two Million, Four Hundred Thousand Ghana Cedis (GH₡2,400,000.00).” He further testified: “That after agreeing with the Defendant on the purchase price of GH₡2,400,000.00, the Defendant subsequently submitted an invoice covering the said GH₡2,400,000.00 and his account details for which payments should be made into by the Plaintiff.” He tended Exhibit “C” in proof of same. The Lawful Attorney stated further: “That per the terms of the Contract of Sale, I was to pay seventy percent (70%) of the purchase price on the execution of the Contract of Sale and the remaining thirty percent (30%) to be paid upon the successful completion of 6 the registration of Defendant's statutory declaration and deed of assignment relating to the Filling Station.” According to the Lawful Attorney, subsequent to the execution of the Contract of Sale by both parties, the Defendant executed a statutory declaration in respect of the disputed property in Plaintiff’s favour and tended Exhibit “D” in support of this testimony. That, it was agreed among the parties that, Defendant, after execution of the statutory declaration, will prepare a deed of assignment in respect of the property in favour of the Plaintiff. That further, the Contract of Sale provided for the Defendant to grant full possession of the Filling Station to the Plaintiff. He testified further: “As of the 18th of November, 2020, I had paid the required seventy percent (70%) of the purchase price to the Defendant but the Defendant has since refused to grant possession and quite enjoyment of the property to the Plaintiff.” He tended Exhibits “E”, “E(1)” and “E(2)”. The Witness also tendered Exhibits “F”, “F(1)”, “F(2), “G”, “I”, “J” and “K”. It is evident from the evidence before the Court that, Plaintiff’s Lawful Attorney testified as if he is the Plaintiff, Salim Traore, the contractual party to Exhibit “B”, the Contract of Sale. This cannot be lost sight of when one looks at paragraphs 5, 6, 7, 8, 12, 13, 14, 21, 22, 23 and 24. 7 In the case of Donkoh v Nkrumah [1964] GLR 739, one Kwame Mosi, was allowed by the Court to testify for a party in the suit who is Ama Donkoh. He testified in the first person as if he was the Plaintiff speaking. It was held that, he could not have spoken on matters within his own knowledge since he lived in a place different from where the events directly occurred. The law is that, where such evidence is given in the first person, the whole of the oral evidence is inadmissible and should be completely disregarded as if the evidence had not been given. See also, the case of Nii Boi v Adu [1964] GLR 410, SC in which the defendant, a blind man, took the oath but did not give evidence by himself. Instead, someone testified on his behalf as if he were the defendant. See also Practice & Procedure in the Trial Courts and Tribunal of Ghana, Second Edition, by S. A. Brobbey, page 307 to 308. The Court have already discredited some of the oral testimony of the Witness. However, that is not the case with the documentary evidence. The documentary evidence were all admitted without objection. The Court therefore proceeds to make findings of fact from them. From Exhibits “C”, “D”, “E Series”, “F Series”, “G Series”, “H”, “I”, “J” and “K” all read together, the Court finds that, it is the Plaintiff, Salim Traore, who entered into the Contract of Sale with the Defendant Company. The 70% of the purchase price paid as at 18th November, 2020, was not paid by the Lawful Attorney, a non-structural party but by the Plaintiff. This is clear from Exhibit “B” in particular. 8 In evaluating the evidence, on whether or not, there is a valid Contract of Sale between the parties, the Court finds that, this issue arose from the pleadings. The Defendant raised issue with the validity of the Contract by pleading at paragraph 8 of the Amended Statement of Defence as follows: “Defendant avers in denial of paragraph 6 of the Statement of Claim in that, he caused his lawyer to prepare a Contract of Sale, made me to sign under the guise that, same shall be read to me afterwards but immediately after signing same, his lawyer refused to read same to me and also, I was denied a copy.” As far as the pleadings are concerned, the defence raised in the said paragraph 8 supra, goes to the validity of the Contract. The Defendant is heard to say that, he was made to sign, Exhibit “B”, the Contract of Sale, based on a promise that, same shall be read to him by Plaintiff’s Lawyer but this, did not materialise. The Court reminds itself, that, Defendant is a Company and as such, an artificial legal person. It acts through human beings. Its directors are those through whom it enters into Contract. It is therefore settled that, an act is considered that of the Company, if it is done by either its members in general meeting or board of directors or the managing director as a fully authorised officer of the Company. The Defendant, known as, Eric Frimpong Company Ltd, per the evidence before the Court, acted at all material time, though Mr. Eric Frimpong, who authored an invoice, Exhibit “C”, Exhibit “E”, a receipt for the receipt of GH₡650,000.00 and Exhibit “E(2)”, a receipt for GH₡50,000,00 as defendant’s representative in the transaction that has birthed this litigation. 9 It is Eric Frimpong acting as the alter ago or agent of the Defendant Company who executed Exhibit “B”, Contract of Sale on behalf of the Defendant. The Court came to this conclusion comparing his signature on Exhibits “C”, “E” and “E(2)” with the signature on Exhibit “B” in respect of the assignor therein. He is the one who attributes the incapacity to read the Contract of Sale to himself on behalf of the Defendant. The Law is that, if an illiterate in English executes a document, any other party to the document who relies on it must prove that, it was read over and if necessary, interpreted to the illiterate. In B P (West Africa) Ltd v Boateng [1963] 1 GLR 232, it was held that, to bind an illiterate to a document, it must be established that, the illiterate understood and appreciated its full meaning and import. In Amankwano v Asare [1966] GLR, 598 SC, the Supreme Court held that, the onus of proving that the illiterate has appreciated the meaning and effect of the document is on the party seeking to bind the illiterate to the document. It is the person who seeks to bind the illiterate to a document who must establish that, the illiterate understood and appreciated the full meaning and import of the document, in this case, the Contract of Sale. However, in the circumstance of this case, the question that, arises is: whether Eric Frimpong by merely stating that, the Contract of Sale was not read to him after he signed it, means that, he has established as a fact that, he is illiterate in the English Language, in which the terms of the Contract was expressed? 10 A pleading such as a Statement of Defence is not evidence. This Court cannot establish on the basis of an averment in the Amended Statement of Defence that, Eric Frimpong of Frimpong Company Ltd is illiterate in the English Language. Eric Frimpong was obliged to have establish by evidence that, he cannot read and understand the import of Exhibit “B” so that, the Court will impose the statutory dictates of the Illiterate Protection Act, 1912 (Cap 262) on the Plaintiff to proof same as held in Amankwano v Asare, supra. The Court shall not impose such burden of proof on the Plaintiff since there is no evidence before the Court, in the first place, that Eric Frimpong is illiterate in English and was unable to appreciate the meaning and import of the Contract of Sale, Exhibit “B”. This Court also finds that, Exhibits “C”, “E” and “E(2)” were all written by Mr. Eric Frimpong in the English Language without any person interpretating the document to him in a Language that he understands. Clearly from the evidence, Mr. Eric Frimpong who authored Exhibits “C”, “E” and "E(2)" is held to understand the meaning and import of Exhibit “B” which he appended his signature to. The Court on the basis of this evaluation of the evidence and the law finds that, Eric Frimpong acting for and on behalf of Eric Frimpong Company Ltd executed Exhibit “B” with full appreciation of the meaning and effect of the document or its provisions. The Court holds that, on Issue One, there was a valid Agreement for the sale of the Land, the subject matter of this suit. The Defendant as a corollary to the validity challenge also averred at paragraph 3 of the Amended Statement of Defence as follows: 11 “Defendant avers in response to paragraph 3 of the Statement of Claim that, for all purposes and intent, the Defendant did not enter into a Contract to sell a filling (fueling) station, an averment which is denied, the rest of the averments are admitted.” This averment supra was in response to paragraph 3 of the Statement of Claim thus: “The Plaintiff avers that, on 24th September, 2020, he entered into a Contract of Sale for the purchase of a Filling Station located at Boankra in the Ashanti Region of the Republic of Ghana with the Defendant.” The question therefore is: What is the subject matter of the Contract of Sale? The answer is derived from the Contract of Sale itself, Exhibit “B”. It provides as follows: “WHEREAS 1. The Assignor is a beneficial owner of a leasehold interest in a piece or parcel of land with a filling station thereon situate at Boankra in the Ashanti Region of the Republic of Ghana and more particularly described in the Site Plan attached hereto (hereinafter referred to as “the property”). 2. The Assignor is willing to assign, convey and or sell his beneficial interest in the property and the Assignee has offered to acquire and purchase same. B. NOW IT IS HEREBY AGREED AS FOLLOWS: 12 1. The consideration for the proposed assignment by the Assignor to the Assignee is Two Million, Four Hundred Thousand Ghana Cedis (GH₡2,400,000.00) as (The Purchase Price)” The Assignor in Exhibit “B” is Eric Frimpong Company Ltd and the Assignee is Salim Traore. The property stated in Exhibit “B” is the leasehold interest in a piece or parcel of land with a filling station thereon situate at Boankra in the Ashanti Region. The Court finds that, the Defendant entered into a Contract of Sale to sell its leasehold interest in the land with a Filling Station situate at Boankra in the Ashanti Region. That is why the Defendant is the Assignor. The Contract was not entered into, to sell a piece or parcel of land only but also with the Filling Station. The piece of Land with the Filling Station thereon is owned according to Exhibit "B" by the Assignor, Eric Frimpong Company Ltd and not Eric Frimpong. This is the property for which the parties executed Exhibit "B". Did the Defendant breach the terms of the Contract of Sale? Exhibit "B" provides as follows: “The Assignee shall pay Seventy (70%) per cent of the purchase price upon the execution of this Contract of Sale. The second payment of Thirty per cent (30%) shall be made upon the successful completion of the registration of the Statutory Declaration and the Deed of 13 Assignment relating to the property made between the Assignor and Assignee.” At paragraph 2 (iii) the parties agreed as follows: “Upon the execution of this Contract of Sale, the Assignor shall deliver unto the Assignee the following documents … upon the payment of Seventy Percent (70) of the Purchase Price, the Assignor shall grant the Assignee full possession to the property.” Did the Assignor keep to his side of the bargain? Per the Defendant’s own showing, the Plaintiff performed his side of the bargain by paying the 70% of the Purchase Price. It admitted at paragraph 10 of the Amended Statement of Defence as follows: “Defendant avers that, except for the payment of 70% of the amount being the total value, the rest of the averment is denied.” The Defendant instead of fulfilling his side of the bargain spoke in these terms at paragraphs 11 and 12 of the Amended Statement of Defence thus: “11. The Defendant denies paragraph 8 of the Statement of Claim and contend that, Defendant has not expressed an intention to abrogate rather Defendant has long abrogated the said contract and shall exhibit the written evidence thereto. 14 12. Defendant adds to the paragraphs supra that, as far as he is concerned, all the amounts paid to Defendant has been refunded to the Plaintiff in full.” Indeed, Exhibit “C” is evidence that, Eric Frimpong under the Contract of Sale and or its benefit to the Defendant received consideration for the property, the subject matter of Exhibit "B", of GH₡50,000.00. Exhibit “E” is evidence that, Eric Frimpong in furtherance of the Contract of Sale received on behalf of the Defendant GH₡650,000.00. Exhibit “E(2)” also shows that, Eric Frimpong received GH₡50,000.00 under the Contract of Sale. He however, did not execute an assignment of the residue of the leasehold interest of Eric Frimpong Company Ltd in the land with a Filling Station thereon to the Plaintiff but rather claimed to have abrogated the Contract and sought to refund the 70% of the purchase price paid by Plaintiff to the Defendant through him. These refunds were rejected by Plaintiff. The Court on the basis of these evaluation of the evidence before the Court, finds as a fact that, the Defendant breached the terms of the Contract of Sale by failing to yield full possession of the property to the Plaintiff when, it received through, Mr. Eric Frimpong, 70% of the Purchase Price in accordance with the terms of the Contract. The last Issue is, whether Defendant’s alienation/sale of the Land, the subject matter of the dispute to a third-party was valid. 15 It is the Defendant who alleged at paragraph 17 of the Amended Statement of Defence that, a third-party (Wynca Sunshine Agric Properties and Trading) has acquired the said Land. Beyond saying so, the Defendant did not provide any evidence to proof such acquisition. The Court finds in the absence of evidence of the alleged acquisition that, there has been no such acquisition. Further, such alleged alienation by Defendant, after executing the Contract of Sale, will be contrary to the said Contract. This is because, per the second recital in Exhibit "B", it is this same Defendant who stated that, it is willing to assign, convey and/or sell its beneficial interest in the property to the Plaintiff and that, the Plaintiff, Assignee therein, has offered to acquire and purchase same. The Defendant as the Assignee therein, even warranted as follows: “The Assignor warrants and undertakes that, it has valid title to the property to assign same to the Assignee and that, it has not created any encumbrance over the property.” The Defendant cannot therefore be heard to say that, it has alienated the property to third-party or that said third-party has acquired the said property. This Court binds the Defendant to the terms of the Contract of Sale that, it signed by itself through Mr. Eric Frimpong. 16 The Plaintiff seeks an Order of specific performance against the Defendant to transfer the said property to him. The Court agrees completely with Learned Counsel for the Plaintiff in his Written Address that, specific performance is a remedy available to a party, if the other party refuses to complete the sale. This is very much so when the other party, as in this case, the Plaintiff, has provided part performance of the Contract. A party to a Contract for Sale of Land therefore, who attempts to repudiate the Contract, in such circumstance, will be compelled to carry out his obligations under the Contract. In this instance, of the breach of contract by the Defendant, when the Plaintiff has performed his side of the bargain and paid 70% of the Purchase Price of the property under the said Contract, this Court grants an Order of Specific Performance of the Contract of Sale against the Defendant. In conclusion and on the totality of the evidence before the Court, it finds as follows: 1. That, there is a valid agreement for the sale of the Defendant's property as described in the Contract of Sale. 2. The Defendant breached the terms of the Contract of Sale. 3. The Court found no evidence of alienation/sale of the property described in the Contract of Sale to a third-party and were that to be so, after the Defendant executed the Contract and received consideration from the Plaintiff, as his part performance of the Contract, such alienation thereafter will be null and void. The Court grants the reliefs of the Plaintiff as follows: 17 1. The Court grants an Order of Specific Performance directed against the Defendant for it, to transfer the property described in Exhibit “B” as the Leasehold Interest in a piece or parcel of land with a Filling Station thereon situate at Boankra in the Ashanti Region in the Republic of Ghana to the Plaintiff. 2. A further Order of Specific Performance directed against the Defendant to execute a Deed of Assignment of the residue of the Leasehold Interest of the Defendant in the subject matter property, through its alter ago, Mr. Eric Frimpong, in favour of the Plaintiff within fourteen (14) days from the date of this Judgment and file same in the Registry of this Court for the benefit of the Plaintiff. 3. The Court declares that, the Contract of Sale executed by the parties on 24th September, 2020, is lawful and valid. 4. The Court declares that, the attempt made by the Defendant to return part of the Purchase Price of the property in the Contract of Sale is a breach of Contract. 5. The Court perpetually restrains the Defendant, its agents, assigns, workmen, whomsoever and otherwise howsoever from in anyway interfering with the Plaintiff’s quite enjoyment of the property described in the Contract of Sale. 18 6. The Plaintiff is to recover possession of the property, the subject matter of the Contract of Sale, that is the piece of land with a Filling Station thereon situate at Boankra in the Ashanti Region. 7. The Court awards GH₡20,000.00 against the Defendant and in favour of the Plaintiff as General Damages for Breach of Contract and costs in favour of the Plaintiff against the Defendant of GH₡20,000.00. (SGD.) H/L JUSTICE CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Isaac Aggrey-Fynn for the Plaintiff. Bennette Nakaar with Edith Adjei-Asare holding the brief of Rev. Samuel Gabora for the Defendant. 19