NKANSAH VRS. SAFIANA (GJ/0135/2024) [2024] GHAHC 119 (23 July 2024)

THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION) ACCRA HELD ON TUESDAY, THE 23RD OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE PATRICK BAAYEH (J) SUIT NO. GJ/0135/2024 PROPHET DANIEL NKANSAH - PLAINTIFF VRS. MR. ADAM SAFIANA - DEFENDANT PARTIES: PLAINTIFF REPRESENTED BY DANIEL NKANSAH JNR. DEFENDANT ABSENT JUDGMENT Plaintiff/Respondent sued the defendant/Applicant (now referred to as defendants on 13th November, 2023 claiming the underlisted reliefs; a. An order of the court compelling the defendant to honour and comply with the terms of the agreement dated 22nd September,2023 by rendering payment of the outstanding balance of initial deposit to plaintiff b. An order of the court restraining the defendant, his representatives and assigns from entering or interfering with any of the said landed properties/buildings captured in the agreement until the terms of the agreements are complied with, and subsequently pending the final determination of the suit. 1 The defendant duly entered appearance and also filed his statement of defence. Defendant also counterclaimed for; i. An order directed at the plaintiff to pay defendant the total amount of two million and thirty thousand Ghana Cedis (Ghc2,030,000.00) ii. Interest on the said amount from the date payment to the date of judgment. iii. Cost including legal fees. iv. Any other or further orders as the court may deem fit. In the instant application filed on the 18th March, 2024, defendant is seeking an order of this court to enter summary judgment against the Plaintiff in respect of his counterclaim. The basis of defendant’s application is contained in his supporting affidavit and supplementary affidavits. It is the case of the defendant that the Plaintiff has failed to file a defence to his counterclaim which was served on the plaintiff on 15th January, 2024. That he entered into an agreement with the plaintiff to buy some landed properties that Plaintiff offered to him (See Exhibit AS2 series). That on 22nd September, 2023 the parties reduced their agreement into writing and duly executed it (See Exhibit AS3). It is defendant’s case that at various times he made payments totaling Ghc 2,030,000 to the Plaintiff which were receipted by issuing receipts to defendant (Exhibit AS4 series) which payments the Plaintiff admitted in paragraph 7 of his statement of claim. It is defendant’s case that he refused to pay the remaining amount stipulated in the agreement when he found out that the plaintiff had misrepresented himself as the owner of the properties in the agreement when in fact he was not (See search reports Exhibit AS5 series). That in addition the Plaintiff refused him access to any of the properties. That in the agreement executed by the parties Plaintiff represented himself as the owner of the properties. It is the believe of the defendant that the Plaintiff has no reasonable claim or defence to his counterclaim and therefore no triable issues raised. 2 The Plaintiff is no doubt opposed to the application and in his opposition, he has filed an affidavit in opposition. It is plaintiff’s case that he has filed a defence to defendant’s counterclaim and has joined issues with the defendant on his counterclaim. That it is rather the defendant who is in breach of the agreement executed between the parties for the purchase of the landed properties (Exhibit AS3) It is plaintiff’s case that by virtue of his reply to defendant’s counterclaim there are triable issues to be determine by the court. That the defendant having made allegation of misrepresentation against plaintiff the defendant ought to proof it by leading evidence at the trial. In moving the application counsel for the defendant submitted that misrepresentation is not synoicous with fraud so that fact that defendant has pleaded misrepresentation then he has to by means lead evidence to proof it. That in the agreement executed by the parties, plaintiff misrepresented that he is the owner of the landed properties and through his pleadings and even in his affidavit in opposition, he has not stated anywhere that he is the owner of the properties he sought to sell to the defendant. Besides the plaintiff has unequivocally admitted receiving part payment from the defendant and has not been able to put defendant in possession of any of the properties. On his part counsel for the plaintiff submitted that plaintiff’s ownership can be beneficial or legal and for that matter, the fact that defendant is alleging that his search did not disclose that plaintiff is the owner of the properties is not conclusive of a breach of contract and for that matter evidence ought to be led. That nowwhere in Exhibit AS3 did the plaintiff indicate that he is the owner of the properties, the subject matter of his application. It is the contention of the counsel for the plaintiff that since the defendant has accused the plaintiff of misrepresentation, then evidence must be led to proof it and that the contract can only be vitiated if the misrepresentation was fraudulent. It is the contention of counsel for the plaintiff that since the plaintiff has filed a reply to the defendant’s counterclaim, issues have been joined and for that matter there are triable issues to be determined. 3 Before I go to the substance of the application, I wish to resolve the issue of the plaintiff’s reply and defence to the defendant’s counterclaim. Defendant filed his statement of defence and counterclaim on 10th January, 2024 and same was served on the defendant on 15th January, 2024. As at the date defendant filed the instant application for summary judgment on 15th March, 2024 the plaintiff had not filed his reply and defence to defendant’s counterclaim. The plaintiff filed his reply and defence to defendant’s counterclaim on 26th March, 2024 a period of ten weeks from the service of the defendant’s statement of defence and counterclaim on the plaintiff. Order 11 Rule 3(1) & (2) of CI 47 provides that; “1. A Plaintiff on whom a defence is served shall file a reply if that is necessary for compliance with Rule 8, and if no reply s filed, Rule 14 (1) shall apply “ 2. A reply to any defence shall be filed by the plaintiff before the expiration of seven days after the service on the plaintiff of that defence. Order 11 Rule 14 (1) and (3) of CI 47 also provides; “ (14) (1) If there is no reply to a defence, there shall be a joinder of issue on that defence. “(14) (3) There shall be no joinder of issue on a statement of claim or counterclaim. Thus, the Plaintiff’s failure to file a reply within 7 days after the service of defendant’s statement of defence meant that there was a joinder of issues with respect to the defendant’s defence but the position in respect of the counterclaim is different. A counterclaim is by all intent and purposes a claim by itself even though for expediency sake is included in one suit. In a counterclaim, the defendant or counterclaimant is treated as a plaintiff and the original plaintiff is treated as a defendant. What this means is that plaintiff’s failure to file a defence 4 to the defendant’s counterclaim meant that he had failed to file a defence to the defendant’s claim. The plaintiff filling his reply and defence to defendant’s defence counterclaim out of time without leave of the court means that that process is void as having been filed without authority. So, as far as the defendant’s counterclaim is concerned, the plaintiff has not filed any valid defence. However, the defendant has not applied for judgment in default of defence but how come under order 14 of CI 47 for summary judgment. The rules on summary judgment will therefore apply and not the rules on judgment in default of defence “Order 14 (1) of CI 47 provides; “ Where in an action defendant has been served with a statement of claim and has filed appearance, the plaintiff may on notice apply to the court or judgment against the defendant on the ground that the defendant has no defence to a claim included in the writ or to a particular part of such a claim, or that the defendant has no defence to such a claim or part of a claim, except as to the amount of any damages claimed” In summary judgment, the respondent need not even file a defence but mere entry of appearance would suffice. Thus, the essence of applying for summary judgment against a defendant on the ground that the defendant has no defence to a claim included in the writ or part of a claim, is to facilitate the early conclusion of actions where it is clear that from the pleadings of the defendant, he has no serious defence to plaintiff’s action. It is intended to prevent the plaintiff being delayed where there is no arguable defence. See the case of SAM JONAH VRS. DUODU KUMI (2003-2004) SCGLR 50. In the instant case it is the counterclaimant (defendant) who is applying for the summary judgment and in a counterclaim the roles are reserved. So that the defendant becomes the plaintiff and vice versa as far as the counterclaim is concerned. 5 To that extent whatever is provided in order 14 as reproduced above is equally applicable and where the order says “defendant” should be seen as referring to the counterclaimant not the Plaintiff. In the instant case counsel for the Plaintiff has argued that there are triable issues because the defendant has pleaded that the plaintiff misrepresented certain facts to him and for that matter defendant is saying that plaintiff fraudulently misrepresented those facts, and fraud cannot be determined by summary evidence. With due respect to counsel for the Plaintiff, it must be understood that misrepresentation is completely different from fraud. If the defendant pleaded fraud, then it would have meant that the transaction was vitiated or nullified by the fraud (if it is so found) but in the instant case the defendant pleaded that the plaintiff misrepresented to him that the properties, subject matter of the suit, were his properties but after making part payment his search at the Lands Commission shows that the properties do not belong to the plaintiff and to date, the plaintiff has not indicated (not even in his affidavit in opposition to this application) the capacity in which he purports to sell the properties to the defendant. Counsel for the Plaintiff argued that plaintiff need not be the owner to sell the properties but at the same time counsel fell short of telling the court eh capacity Plaintiff had to purport to sell them. Even if Plaintiff is not the legal owner, he ought to disclose his capacity to deal in those properties, whether as an agent, equitable owner etc but he is completely silent in both is pleadings or affidavit. Exhibit AS3 is the agreement entered into between the parties. Exhibit AS3 is headed “MEMORANDUM OF UNDERSTANDING (AGREEMENT) SALE OF LANDED PROEPRTIES”. The first and second paragraph of Exhibit AS3 states; “ That it is agreed between the parties herein that Mr. Adam Safiana has expressed interested in purchasing Prophet Daniel Nkansah’s landed 6 properties with buildings thereon at various destinations, and properly described and delineated on site plans attached hereto. “ That Prophet Daniel Nkansah has agreed and offered to sell the said properties described below to Mr. Adam Safiana at various amounts as stated herein”. The wording of the first paragraph of Exhibit AS3 shows that the properties are for Prophet Daniel Nkansah hence the phrase “expressed interest in purchasing Prophet Daniel Nkansah’s landed properties….” This phrase does not show that Plaintiff was selling the properties in any other capacity than in his personal capacity and when a search shows that the properties are not in his name it makes that statement a misrepresentation. If Plaintiff was selling the properties as an agent or in any other capacity he ought to have been disclosed in the agreement (Exhibit AS3). Plaintiff has pleaded in paragraphs 8 and 9 of his statement of claim thus; “ 8. The Plaintiff avers that he has given some copies of the documents of these properties to the Defendant for his perusal. “ 9. Plaintiff avers that some of the properties with its documentation included in the agreement are also going through some processes before the law courts, state housing and custodial chiefs”. Plaintiff has failed to disclose what “processes” these properties are going through in the courts, State Housing and the “custodial chiefs” but it is not far-fetched to conclude that the ownership of these properties are being disputed in courts, state housing and with the chiefs. Exhibit AS5 series are the results of the searches made by the Defendant at the Lands Commission. These results show that none of the nine properties are registered in 7 Plaintiff’s name clearly if Plaintiff’s representation in Exhibit AS3 that he is the owner of these properties is not a misrepresentation, then I do not know what else it is. Plaintiff has therefore not demonstrated that he has capacity to dispose of these landed properties. It is on this basis that Defendant has counterclaimed for the refund of the money has had paid to the Plaintiff as part payment for the properties and Plaintiff has admitted receiving the sum of GH¢2,030,000 from the Defendant. Indeed, Plaintiff’s admission that some of the properties are subject maters of dispute in the courts, state Housing corporation and even with the chiefs show that Plaintiff (even if he was selling as an agent of the owners) is not in the position to deliver the properties to Defendant in the foreseeable future or anytime so on until the legal disputes are settled. A summary judgment is a judgment on the merits even through it is obtained by a formal motion without a plenary trial. It is a judgment granted on the simple grounds that the respondent to the application has no Defence to the action or part or any reasonable defence to be allowed to contest the case on the merits to waste time and expense. See THE REPUBLIC VRS HIGH COURT COMMERCIAL DIVISION ACCRA EX-PARTE PORT HANDLING. Civil motion No. J5/23/2013 Supreme Court. In the case of SADHWANI VRS AL-HASSAN (1999-2000) 1GLR 191, the Court of Appeal stated what was required in applications to sign summary judgment. The court said; “ ……………… In an application to sign summary judgment, what is required of the said judge is that he or she examines the pleadings and determine whether there does exist a bona fide or a good Defence i.e. Defence known in law”. In my view any such bonafide or good Defence or a Defence known in law when raised would constitute a triable issue fit to be tried. It could be an issue of fact or law” 8 Further in the case of ABIVAMS LTD VRS PLATUM GAS GH. LTD, Civil Appeal J/4/29/2016, dated 31st may, 2017, the Supreme Court Speaking through BENIN JSC ( as he then was) said; “ The Defendant may show cause against the Plaintiff’s application (for summary judgment) on merit e.g that he has a good Defence to the claim on merit or that a difficult point of law is involved or a dispute as to the facts which ought to be tried or a dispute as to the amount which required the taking of an account to determine or any other circumstance showing reasonable grounds of a beneficial defence. There are numerous cases which need not be cited for the principles have became well known and accepted and are briefly condensed in Rule (1) (a) of Order 14 of C.I 47. “ In summary, the court must be satisfied that on the facts and law that the Defendant ought to be given the opportunity to be heard on merit, where his defence raises reasonable and arguable points and is not intended to merely cause a delay and is not a sham. A complete Defence is not required at this stage but mere denial Is not sufficient. The Defendant must give sufficient facts and particulars to show that there is a bonafide defence” See also BALLAST NEDAM GH BV VRS HORIZON & MARINE COAST (2010) SCGLR 435. In the instant case, I have carefully read the pleadings and even Plaintiff’s Defence to the Defendant’s counterclaim. (which I have hold to be nullity), He does not deny that pursuant to the agreement (Exhibit AS3), the defendant has paid a total of GH¢ 2,030,000.00 for the purchase of 9 properties located at different locations within Accra. Plaintiff does not also deny that these properties are not his personal properties and there is no evidence that plaintiff has the authority of the owners to sell them to the defendant. Above all Plaintiff himself has admitted that some of these properties are subject matters of dispute pending before the courts, State Housing Corporation and chiefs to the extent that even if 9 defendant goes ahead to make full payments, the plaintiff will not be in position to deliver these properties to defendant. Clearly, equity demands that defendant demands for the refund of the money he has paid to plaintiff. In my view therefore there are no triable issues in this matter to warrant the drudgery of a lengthy trial which will only work to waste time and expense of all parties involved. It is my view that this is a proper case that defendant ought to be allowed to sign final judgment. The application for summary judgment is therefore granted. Consequently, defendant is to recover the sum of GH¢ 2,030,000.00 with interest from 3rd November, 2023 to date of final payment at the Commercial Bank lending rate. I award cost of GH¢ 50,000.00 to defendant. (SGD.) JUSTICE PATRICK BAAYEH (J) (JUSTICE OF THE HIGH COURT) COUNSEL CHRISTIAN AKWESI BUAME FOR THE PLAINTIFF/RESPONDENT LORD DELVIN ESSANDOH FOR DEFENDANT/APPLICANT 10