Low Price Master Limited Vrs. Akpitse (E12/06/2023) [2024] GHAHC 325 (22 July 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHE HIGH COURT OF JUSTICE(COURT 1) HOHELD THIS MONDAY 22NDDAY OF JULY, 2024,BEFORE JUSTICEJOHN EKOW MENSAH,J. SUIT NO. E12/06/2023 LOW PRICE MASTERLIMITED HEADOFFICE NO. GW-092-3266 : PLAINTIFF GA WEST, ACCRA. VERSUS EDWARDAKPITSE BAMBAYBASA : DEFENDANT NEAR THE HOCENTRAL MARKET JUDGEMENT Per his writ ofsummons and statementofclaim issued on25/8/2021. The plaintiff claims against the defendant forthe following:- 1. Anorderforthe defendant to paythe 2dayslossofprofits forthe plaintiff. 2. An order for a ten (10) year rental of the place to be granted to the plaintiff taking into considerationthe quantum ofinvestment made bythe plaintiff. 3. Generaldamages forembarrassment and damage caused to plaintiff’s reputation. 4. Cost. In his statement of defence filed on 7/9/2022, the defendant denied the claims of the plaintiff and counter-claimed as follows:- 1. Recovery of the two (2) stores given to the plaintiff when the 5 years 4 months is over. 2. General damages for breach of the memorandum of understanding (MOU) that is the plaintiff has violated paragraph 3 of the MOU thereby compelling the defendant to terminate the MOU. 3. Recovery of present cost of the two (2) toilet facility which the defendant constructed in the said building but the parties agreed that the plaintiff should convert it into store but after destroying the said (WC) plaintiff failed/refused to finishthe two remaining storesas agreed upon. 4. Costs. PLAINTIFF’S CASE Gleaning from the plaintiff’s statement of claim, the summary of plaintiff’s case is that on 24/10/2020, he and the defendant entered into a memorandum of understanding (MOU) for a lease that will compel the plaintiff to undertake renovation works on the property, the subject matterofthe lease for thebenefit ofbothparties. According to the plaintiff, it was agreed that the renovation works shall be financed by the plaintiff and that the total value of the project finance shall be re-imbursed by the 2 defendant. It is the case of the plaintiff, the agreement stipulated that the plaintiff shall be entitled tofifteenyearsentitlement inoccupancy ofthe said propertyafterthe renovation. Plaintiff says the defendant went to lock his shop after unilaterally terminating the MOU, that led him lose GH¢35,000.00 – GH¢40,000.00 profit per day. Plaintiff reduces the tenancy to5yearsinstead ofagreed 15years. DEFENDANT’SCASE Apart form denying the plaintiff’s claims, Defendant had counter claimed against the plaintiff for recovery of the two stores given to plaintiff when the 5 years 4 months is over, General Damages for Breach of the MOU; Recovery of present cost of the two toilet facility which defendant constructed in the said building but the parties agreed that plaintiffs converts same into store. An agreement which the plaintiff failed to complete as agreed upon. Defendant is also asking for costsimplicita. Atthe end ofthepleadings, thefollowing issues wereset down fortrial. 1. Whether or not the plaintiff consistently refused or failed to sit down with the defendant for the review ofthe agreement. 2. Whether or not the plaintiff breached paragraph 3 of the memorandum of understanding. 3. Whether or not the defendant is entitled to cover the cost of 2 toilet facilities fromthe plaintiff. 4. Whether or not the plaintiff failed or refused to finish 2 remaining stores as agreed. 5. Whether ornotplaintiff is entitled tohis claim. 3 6. Whether ornotdefendant is entitled to hiscounter claims. 7. Whether or not the plaintiff’s branch at Ho is its main branch in the Volta Region thatsupplies goodsto othershops within the VoltaRegion. EVIDENTIALBURDEN Section 14ofEvidence Act 1975NRCD 323stipulates:- “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 tothe claim ordefence he is asserting”. Section 12(1)ofthe same Evidence Decree provides:- “Except as provided by law, the burden of persuasion requires proof by a preponderance ofprobabilities. This view of the law on burden of proof was expanded in the famous case of Ackah vrs. PergahTransportLtd. (2010)SCGLR 728by the SCthus: “ It is the basic principle on the law of evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality credibility short of which his claim will fail. The method of producing evidence is varied and it includes the testimonies of parties and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite decree of credibility concerning a fact in the mind of the court or the tribunal of fact such as a jury. It is trite that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable thanitsnonexistence”. 4 It must be noted that the plaintiff testified through its representative and did not call any witness not relied onany documentaryevidence. Defendant however testified without calling any witness but exhibited and relied on extensive documentary evidence. ANALYSIS OF EVIDENCE ANDISSUES 1. Whether or not the plaintiff consistently refused or failed to sit down with the defendant for areview ofthe agreement. On this issue plaintiff said his evidence that defendant arbitrarily terminated the MOU with a letter Exh. 3, the agreement which the plaintiff had relied on to carry out the renovationworksonthepropertyin question/issue. Plaintiff asserted that with defendant’s letter Exh. 3, defendant never showed any intention toreview the agreement but ratherwent ahead toterminate same. Indeed, when plaintiff witness came under cross examination by defence Counsel, plaintiff witness provided answers that indicated that she knows next tonothing about the case between her company and the defendant, and engaged in hearsay statements, attributing every statementshe made toher CEOwho told herthis orthat. Anextract ofthecross examinationwent like this:- Q: I am putting it to you that you don’t have personal knowledge of the matter youaretaking about. A: Yes, these are what my CEO told me. 5 Q: I am putting it to you that you don’t, as it was Wilson Anumah who dealt withthe defendant onthe subjectmatter. A: That is so,he was ourcontractor who dealtmostly withthe defendant. A confirmation of plaintiff’s witness admission is found in paragraph 9 of the statement of claim thus:- “When the letter came to the notice of Plaintiff through its Chief Executive Officer, the Chief Executive Officer’s brother by name Wilson Anumah who mostly dealt with defendant on the project requested to have discussions with the defendant for amicable settlement ofthematterwhich he did”. It comes withoutsurprise thereforewhen defence Counsel relying onprovisionsofSection 60(1) of the evidence Decree to urge on the court to disregard plaintiff witness evidence in his address because there is no evidence to show that plaintiff witness had sufficient knowledge of the matter that qualified her under Section 60 of the evidence Decree to testify. Anotherextract ofthe cross examinationofthe plaintiff witness alsowent like this. Q: Lookat Exhibit 4(page 38). That is thesummons. A: That is so. Q: I am putting it to you that you never honoured the invitation by the Rent Control. A: Not correct, there were more than one invitation. We honoured some but notall. Q: I am putting it to you that you refused the invitation by Rent Control and that compelled defendant to lockup your place 6 A: I remember the CEO sent someone to represent him at the Rent Control but I can’t tellwhether ornotthat representative attended ornot. Again, these answers by plaintiff witness are indicative of the fact that plaintiff consistently failed to sit down with thedefendant for areview ofthe MOU. Plaintiff could notlead evidence toestablish the contrary. Whether ornotthe plaintiff breached paragraph3ofthe MOU. Paragraph3ofthe MOUsigned between plaintiffand defendant states:- Receipts of the purchases as well as labour fees shall be done in consultation with Mr.Edward K. Akpitse and Mr.StephenAyeme, P.O.Box650,Ho,0244808028. On this issue plaintiff’s Counsel has stated in paragraph 10 of his address that per defendant’s understanding of paragraph 3 of MOU, he must be presented with receipts of purchases of materials, failure of which means paragraph 3 of the MOU has been breached. Counsel says defendant had access to receipts, just that he was nothappy about thecost ofmaterials. Another extraction of the cross examination the plaintiff unravels the question as to whether plaintiff breached paragraph3ofthe MOU:- Q: Look at paragraph 2 of that letter dated 24th November 2020, defendant complained thatyouhave breached paragraph3oftheMOU. A: Yes, it is aletterdefendant wrote. Q: Subsequent to the letter you still did not involve Defendant in the purchases ofbuilding items, and their pricesand cost oflabour. 7 A: Chief Executive Officer told me that the nature and language of the letter was adversorial and that defendant sought to terminate the MOU all by himself. Q: Once again defendant wroteto plaintiff i.e. Ex2(page 32). A: That is so we gotthis letteraswell. Q: Once again defendant complained of your continued breaches of clause 3 of MOUEx 3A. A: That is so. The interpretation put on clause 3 of Ex 3A by plaintiff’s Counsel is misleading. Clause 3 unambiguously is asking that defendant be consulted even before purchases of the materials are made not after the purchases are made. The submission by the plaintiff counsel and the answers provided by the plaintiff witness under cross examination leave no doubt in the mind of this court that defendant was not consulted in the purchases of building items and cost of labour. This court can state with certainty that plaintiff breached clause 3ofEx3A. ISSUES 3AND4 Whether or not the defendant is entitled to recover the cost of 2 toilets facilities from the plaintiff and whether or not plaintiff failed or refused to finish 2 remaining stores as agreed. It must be stated without any doubt that the onus that fell on the plaintiff to lead evidence to justify his claims shifts under this issue to the defendant who is claiming cost of 2 toilet facilities that theplaintiff allegedly failed to converttoshops. 8 The records before this court shows that defendant has not led credible evidence to support this claim that plaintiff as part of the renovation works failed to convert the toilets to shops the court therefore finds that defendant is not entitled to the claim of two toilets converted toshops. Defendant fails onthis claim. ISSUES 5,6AND7 On these issues defence Counsel has submitted that lack of co-operation from the plaintiff in resolving their differences compelled the defendant to lodge complaint with the Rent Control Office but the plaintiff refused to co-operate with the Rent Control Office for the issues tobe resolved. According to Counsel it was out of that desperation the defendant locked up the plaintiff’s premises expecting that that illegitimate action could compel the plaintiff to meet the Rent ControlOffice toresolve the issues. The court is of the view that agreements entered into by the parties should always dictate their actions and nowhere in the agreement is the defendant empowered to lock out the premises ofthe otherpartyin thepursuit ofresolution ofbreachofthecontract. The plaintiff’s Counsel has submitted in his addresses that consequent upon that act plaintiff was unable to supply goods from the main branch of the shop at Ho to other branch atMawuli Gate andC. K. Road,Ketaand evenHohoe. Plaintiff’ Counsel has also submitted in his addresses that whatever affects the main branch inHo affects theotherbranches. In clear terms Counsel is claiming that defendant’s action in locking down the Ho branch occasioned profit loss of between GH¢35,000 to GH¢40,000 in addition to suffering plaintiff’sreputationas arespectable businessman inHo. 9 It is trite that he who asserts must prove and this maxim of law has guided this court’s judgment fromthe very onset. In evaluating this assertion, the court is faced with the task of determining the basis for plaintiff’s loss of amount quoted supra. In fact, when plaintiff has failed to provide evidence ofhow the lock downended up in the loss of the amount quoted supra, the court will haveto lookatthe period ofthe lockdown, resultingin thatloss. This extract of the cross examination is instructive on the quest for the period within whichthe defendnt’s lockdown lasted. Q: Soit was agreed thefollowing dayafter its lock. A: That is so. Q: Defendant locked upthe place around 4:00p.m. A: I cannot tell. So the place was opened the next day after same was locked up when the store was about to close or closed with no customers in there. Plaintiff wants this court to believe that within a day of the closure of the shop the loss of profit amounted to between GH¢35,000 to GH¢40,000. Indeed, there are specific damages that need to be pleaded or particularized and proved in material particular. See this case of Charles A. Nyarko vrs. BarclaysBank Gh Ltd., SCCivil AppealNo14/38/2020,10th Nov.2020. No where in plaintiff’s pleadings has this claim been particularized and proved during the trial. This court is quick to add that it is patently unreasonable to claim that the 24-hour lock down has occasioned the plaintiff a damaging loss to the plaintiff’s reputation as a successful businessman in Ho. That is why that claim also falls flat with the specific damages being claimed. No court of trial of fact will be induced by mere assertions of occurrences without prooftogrant such claims. 10 The plaintiff in the view of this court has not led sufficient evidence to support his claims before this court. In consequence the court will rule that plaintiff is not entitled to his claims. Having determined that the court is mindful of the fact hat the MOU is the agreement that is regulating the business relationship between the parties. For whatever reason that compelled defendant to arbitrarily terminate the MOU, the court finds the termination irregular. Having lodged complaint with the Rent Control Office to settle the issues between the parties, defendant should have allowed the Rent Control time to settle the 15 yearsreduced to5 years4 monthsconfusion. Defendant’saction is unlawful and the court will order parties to abide by the provisions of the MOU as the agreement was voluntarily enteredinto by them. The court does not exist to write any contract for any parties. The court only enforces the termsofthe contract partiesthemselves havefreely entered into. In conclusion the court is minded to award defendant damages for plaintiff’s breach of contract but this award is nullified by defendant’s arbitrary termination of the MOU whichcould also attract damagesforthe plaintiff. In the view of this court the terms of the MOU stand and until any other amendment or review is made, nothing must be doneby parties tobreachthe provisions thereof. Defendant’s counter-claim also fail. Parties may continue with the arbitration process commenced withthe Rent ControlOffice. 11 (SGD.) JOHN EKOW MENSAHJ. (JUSTICE OF THE HIGHCOURT) Lawyers: McDonald Nii AyerteyOkine Esq., Counselfor thePlaintiff. Godwin T. K. T. kpoble Esq. Counsel forDefendant. td* 12