DAITEY VRS. COMET PROPERTIES LTD (GJ/1474/2019) [2024] GHAHC 154 (11 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COMMERCIAL DIVISION OF THE HIGH COURT OF JUSTICE ACCRA, (COURT 1) HELD ON THURSDAY THE 11TH DAY OF JULY, 2024 BEFORE HER LADYSHIP JUSTICE SHEILA MINTA SUIT NO. GJ/1474/2019 MERCY DAITEY - PLAINTIFF VRS. COMET PROPERTIES LTD. - DEFENDANT --------------------------------------------------------------------------------------------------- JUDGMENT INTRODUCTION The Plaintiff, a retired nurse ordinarily resident in the United Kingdom sought to purchase a three (3) bedroom house from the Defendant, a Real Estate Company at some agreed price and for which some initial deposit was made by her to the Defendant. The house was to be built in twelve (12) months from date of acceptance of the offer. Sometime after the required deposit of 25% was made, she fell ill and could not continue with the purchase so she requested for a refund of the said deposit in June 2013. Meanwhile the Defendant having accepted to refund has failed to refund anything at all. Being unwell and still in the United Kingdom, Plaintiff gave a Power of Attorney to one Ebenezer Tettey to pursue the matter on her behalf. The Defendant’s position is that it only received the sum of GHS30,000.00 which was the 25% of the agreed purchase price of GHS120,000.00 and therefore denied owing Plaintiff the sum endorsed on the Writ. SUMMARY OF PLAINTIFF’S CASE Page 1 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. The parties sometime in 2008 entered into an agreement for the purchase of a three (3) bedroom (CPL) House No. 5 Nana Osei Yentumi Street, Comet Gardens, Accra at an agreed sum of GHS120,000.00. Per the terms of the agreement the Plaintiff was required to make an initial down payment 25% and Plaintiff paid US$15,320 for that purpose. Plaintiff averred that shortly after this payment she fell in the United Kingdom so realizing the subsequent payments was going to be a problem, on 19th June, 2013 she wrote to the Defendant for a refund of the said payment made. But till date the Defendant has failed to do so hence the issuing of a Writ of Summons and Statement of Claim against the Defendant for the following reliefs:- a. An order for the recovery of the sum of Fifteen Thousand Three Hundred and Twenty United States Dollars (US$15,320.00). b. An order for the recovery of interest on the said sum from 19th June, 2013 till date of payment. c. Cost including Lawyers’ fees assessed at 15% of the aggregate sum due and payable under the claim. Plaintiff’s Exhibits In support of Plaintiff’s case the following documents were tendered in evidence: 1. Exhibit “A” - Power of Attorney dated 9th December, 2013. 2. Exhibit “B” - Offer Letter by the Defendant dated 16th July, 2008. 3. Exhibit “C” - Receipt issued by Defendant to Plaintiff dated 16th July, 2008 for US$8,000.00 payment received. 4. Exhibit “C1” – Receipt of Defendant dated 12th September, 2008 for GHS3,660.00 payment received. 5. Exhibit “C2” – Receipt of Plaintiff dated 14th August, 2008 for GHS3,660.00 received. 6. Exhibit “D” – Plaintiff’s letter dated 19th June, 2013 for the Recovery of Deposit to Defendant. 7. Exhibit “E” – Plaintiff’s Solicitor’s letter to Defendant dated 6th May, 2019 demanding the refund. Page 2 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. SUMMARY OF DEFENDANT’S CASE The Defendant’s case briefly is that it is a Real Estate Company and sometime in July 2008 it made an offer to the Plaintiff for the sale and purchase of one of its properties situate at Comet Estates, Brekuso. The Defendant averred that per the offer letter the Plaintiff was required to make an initial deposit of 25% being GHS30,000.00 of the purchase price of the property which was GHS120.000.00 then. In the Defendant’s averments it stated that there was no agreement for any payment to be made in dollars and that the Plaintiff by her own volition decided to pay in dollars and paid the equivalent of 25% of the contract price and not US$15,320.00. Having stated that, the Defendant agreed that it received some of the payments in foreign currency. That it had “always resisted attempts by the Plaintiff to exact a refund in dollars” and further posited that the said property had not been sold for a refund to be made to the Plaintiff. Defendant’s Exhibits 1. Exhibit “1” – offer letter for the sale of property dated 16th July, 2008. For clarity I will re-produce the offer letter of the Defendant as this suit hinges on same. “OFFER LETTER HOUSE TYPE: 3BDRMS (CPL 3G) HOUSE NO.5 NANA OSEI YENTUMI ST COMET GARDENS HILLCITY NEAR – ACCRA We are pleased to offer for the sale the above-mentioned property at Comet Gardens, Hill City near Accra under the following conditions: 1. The purchase price shall be an offer of GHS120,000.00 (One Hundred and Twenty Thousand Ghana cedis only). 2. You are required to pay 25th of the above stated price as down payment. 3. The period of completion shall be Twelve (12) months after the payment of the 25%. 4. You shall enjoy a 90 years leasehold interest from the company, which is subject to renewal. Page 3 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. 5. Upon payment of the cost of the house, the company shall execute a Deed of Lease with you subject to the payment of 5% of the purchase price as a fee for documentation of the Deed, legal representation, and the provision of utilities. 6. The Company shall be responsible for the provision of Security, Environmental and Physical Management, Garden and Street lights maintenance as well as other janitorial services at a cost to be borne by the purchaser. Presently, we charge GHS50.00 (Fifty Ghana Cedes) only per month payable in advance after the building is completed and handed over and subject to review every 2 (two) years. Yours faithfully, Signed: Marketing Manager.” ISSUES FOR TRIAL At the close of pleadings, the following issues were set down for trial:- 1. Whether or not the Plaintiff paid an amount of US$15,320.00 to the Defendant as part payment for the purchase of the three-bedroom house at Comet Garden Hill City near Accra. 2. Whether or not the Defendant’s acceptance of monies paid by the Plaintiff in United States Dollars indicates the Parties intention to contract in United States Dollars despite the terms of the contract. 3. Whether or not the Plaintiff is entitled to a refund of the monies paid to the Defendant Company in United States Dollars. 4. Whether or not the Plaintiff is entitled to the reliefs she is claiming. 5. Any other issues arising from the pleadings and evidence. Burden and Standard of Proof Before analyzing the issues before the Court, I will state the law on the burden of proof. The general rule of evidence is that a party has the burden Page 4 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. of persuasion as to each fact, the existence or non-existence of which is essential to the claim or defence that the party is asserting. Section 14 of the Evidence Act, 1975 NRCD 323 therefore provides thus:- “Except as otherwise provided by law, unless it is shifted, a party has the burden of persuasion to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. The Section 10(1) of the Act also provides; “For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal”. Sophia Adinyira JSC as she then was in the case of Ackah vrs. Pergah Transport & 2 Ors. [2010] SCGLR 729 at 736 defined evidence in the following words:- “It is a basic principle of the law on 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 of credibility without of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as jury. It is trite law 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 reasonable than its non-existence. This is a requirement of the law on evidence under Sections 10 and 11 of the Evidence Act”. In Takoradi Flour Mills vrs. Samir Faris [2005-2006] SCGLR 882, Ansah, JSC also stated:- “It is sufficient to state that this being a civil suit, the rules if evidence require that the Plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities as defined by Section 12(2) of the Evidence Decree NRCD 323. Our understanding of the rules in the Evidence Decree 1975 on the burden of proof is that in assessing the balance of probabilities all the evidence be it that of the Plaintiff or the Page 5 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. Defendant will be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival person and is deserving of a favourable verdict.” The Courts have been consistent in their reasoning that the facts that can be proved by documentary evidence ought to be proved as such and that the court will not rely on oral evidence to prove such facts, particularly when these facts have been denied by the opponent. The Plaintiff has the burden to discharge by leading evidence in proof of her claim that would lead to the issues being resolved in her favour and judgment on the reliefs endorsed on the Writ of Summons. ANALYSIS On the issues as stated above, I am minded to discuss only the issues relevant to the resolution of the dispute between the parties and not as set down. Being guided by the decision in Fidelity Investment Advisors vrs. Aboagye Atta [2003-2004] 2 GLR 188, where the Court held that what issues are relevant and essential was a matter of law entirely for the judge to determine the case. See also the case of Fatal vrs. Wolley [2013-14]2 SCGLR 1070, where Georgina Wood JSC (as she then was) stated thus; “Thus, if in the course of the hearing, an agreed issue is found to be irrelevant, or moot or even not germane to the action under trial, there is not duty cast upon the court to receive and adjudicate upon it.” This matter has a very narrow compass and all the issues as set down need not be discussed to enable the Court to resolve the matter. The issue that is germane in the resolution of this matter simply put is “Whether or not Plaintiff is entitled to her refund of payments made to Defendant in cedis or dollars.” The discussion of this issue would subsequently lead to the resolution of issue 4 which concludes the matter before this Court. It is quiet unfortunate that the parties failed to settle this otherwise simple matter which has had to drag on for close to five years. It is not in doubt that the Plaintiff paid money to the Defendant and have asked for a refund. The Defendant all along is not saying the Plaintiff is not entitled to her refund but that Plaintiff is not entitled to US$15,320.00 as Page 6 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. claimed and that the said property which was put up for sale in 2008 has still not been sold by the Defendant. ISSUE 1 Whether or not Plaintiff is entitled to a refund for payments she made to Defendant in respect of the agreement to purchase Defendant’s property in cedis or dollars. The evidence before the Court in respect of the transaction or arrangement between the parties was an Offer for the sale of House No. 5 Nana Osei Yentumi St Comet Gardens Hill City, Accra and payments made by the Plaintiff to the Defendant. Per the offer letter which is Exhibit “A”, same as Defendant’s Exhibit 1, it only stated that it was an offer for the sale of the said property for GHS120,000.00 and Plaintiff was only required to make a deposit of 25% of the purchase price. The period for the completion of the said property was to be twelve (12) months after the payment of the 25%. Both parties agreed that subsequent to the Offer Letter, the parties executed a Disclaimer Note which provided the break down for the instalment payments towards the required deposit and clearly quoted the amounts in United States Dollar. Various amounts were paid by the Plaintiff towards this deposit. From the evidence Exhibit “C” Series the following payments were made and receipts issued by Defendant to Plaintiff: Four Thousand Pounds Sterling (£4,000.00) which was receipted as equivalent to Eight Thousand US Dollars (US$8,000.00) dated 16th July, 2008, Three Thousand Six Hundred & Sixty Ghana Cedis (GHS3,660.000)” dated 12th September, 2008; and another Three Thousand Six Hundred & Sixty Ghana Cedis (GHS3,660.00) dated 14th August, 2008. Whether the Defendant completed the house within 12 months or whether it demanded further payment from the Plaintiff is a non-issue. Subsequent to these payments, on 19th June, 2013 per Exhibit “D” she wrote to the Defendant for a refund. The Defendant’s claim is that the contract price was Page 7 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. in cedis hence the Plaintiff’s refund ought to be in cedis and that Plaintiff herself elected to make payments in currency other than dollars, notwithstanding the fact that the parties executed a Disclaimer Note which provided the break down for the instalment payments towards the required deposit and clearly quoted the amounts in United States Dollars. The following were recorded under cross-examination of Defendant’s representative by Counsel for the Plaintiff on 20th March, 2024. Q: Could you indicate which of the two documents expressly stated that the Defendant has the right to sell the property upon default of payment. A: It was the disclaimer. Q: Does your Company have a refund policy? A: Yes, we do. Q: Can you briefly explain how this policy works? A: If a customer wants a refund and the property is unsold, we sell the property first before we pay the refund. Q: So, in your line of work, how long does it usually take to get a buyer for your properties? A: It depends, there are times we get buyers in some few months, but there are times it’s a lot of time. Q: In which year was the property in question, that is the 3-bedroom (CPL3G, House No. 5 Nana Osei Yentumi Street, Comet Gardens, Hill City completed? A: It was a 2-bedroom and not 3-bedroom. If my memory serves me right, it was completed about five years ago. The Defendant’s testimony shows that the property which was supposed to be built in twelve (12) months from 2008 (being 2009) was not completed ten (10) years later in 2019 and has in 2024 still not been sold. It is curious for Defendant to try to sell to this Court its inability to sell the property story. Be that as it may, what is not in doubt and Page 8 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. confirmed by the testimony of Defendant’s witness is that there is a refund policy which entitled Plaintiff to her refund. The Defendant’s witness also on 19th March, 2024 testified as follows: Q: In paragraph 9 of your witness statement you indicated that you executed a disclaimer note to the Plaintiff, do you have records if the disclaimer note? A: Yes, we have it. Q: Can you tell this Court the currency stated in the disclaimer note? A: It was in dollars but because our initial agreement was in cedis, we converted the dollars to cedis. Q: What was the agreed payment instalment in the disclaimer note? A: The disclaimer note was actually in regard to the payment of the deposit. The instalment was $3,660. Unfortunately, this disclaimer was not tendered in evidence by either of the parties but as a document subsequent to the Offer Letter, it is not hard to infer that United States dollar was the operative currency. I am fortified in this view by the fact that payment which was made in pound sterling was receipted in figure converted to US Dollars as reflected in Exhibit “C”. It is not in doubt that the Plaintiff satisfied the 25% down payment but what is in controversy is whether payments of refund ought to be cedis or dollars as alleged by the Plaintiff. Having analyzed the evidence and the testimony before the Court it is clear that the Plaintiff is entitled to the payment made by her towards the 25% deposit of contract sum made to the Defendant. And I agree with the decision of the Court in the case Gifty Avanzinu vrs. Theresa Njoona, [2010] MLRG page 105 cited by Counsel for the Plaintiff where it was held that: “… in assessing the balance of probabilities, all the evidence must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival claims and is deserving of a favourable verdict.” Page 9 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. Evidence exists from which it could be inferred that the purchase price could be in cedis or dollar. For that reason, even where payment was made in Pound Sterling, it was converted and receipted in Dollars as seen in Exhibit “C”. Consequently, the parties having agreed on abrogation of the contract and in view of the “Disclaimer Note” and Exhibit “C” it will be equitable for all moneys refunded in dollars or at least for those receipted in cedis to be refunded in cedis and those receipted in dollars refunded in Dollars. There is no proscription against refunding moneys in the currency that they were paid or in the currency stipulated in the contract. See Kama Health Limited. vrs. Unilever Limited [2013] DLSC 2751. The notice for refund was made in 2013, the Writ was also issued on June 2019 but the Defendant have always (in Defendant’s words) “resisted attempts by the Plaintiff to exact a refund in United States Dollars.” Even if Defendant genuinely wanted to refund the 25% deposit irrespective of the controversy on the currency in which refund was to be made, nothing stopped Defendant from making such payments into Court when the Writ was issued or before trial commenced. What began like a very simple agreement to purchase a house and an application made for a refund has taken Plaintiff some 11 years after a demand was made for a determination of this controversy to be made. It is rather disheartening that this otherwise very simple matter had to take this long for determination. INTEREST Interest of the Plaintiff’s deposit or damages for loss of use of her funds from 2013 will not be an unreasonable thing to do. Had the Defendant refunded the Plaintiff’s money within a reasonable time from 2013, she may not have been entitled to interest since she opted out of the purchase looking at her circumstances. The question is, is it fair and equitable for the Defendant to hold on to this retired old woman’s money from 2013 and not offer to pay interest? I don’t think so. The Defendant Company is a going concern and still in business and also failed to make any payment in whatever domination into Page 10 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. Court even when the case was pending. In the Kama Health Services Ltd case cited supra the Supreme Court stated:- “There was this question whether interest should be paid when the contract sum was denominated in US Dollars in order to preserve the value of the money against any depreciation in the cedi, see paragraph 18 of the statement of defence. Parties to a contract might choose a particular currency in order to guarantee to themselves the value of the contract sum; but liability to pay interest does not depend on what currency was used to denominate the contract sum. The type of currency used becomes relevant when the rate of interest is to be applied, for different rates of interest are applicable to transactions conducted in foreign as distinct from local currency. … So too is interest not payable on account of the fact that the value of the principal sum has diminished as a result of factors like inflation or devaluation of the currency; interest is payable because the vendor has kept the purchaser’s money under a contract which has failed as a result of the vendor’s default.” In the current case the contract failed as a result of notice for a refund due to the circumstance of the Plaintiff and even though the contract did not anticipate interest on the refund, interest payments follows failure of the refunding party to make the accepted payment. It was not made into Court that which the Defendant claims the Plaintiff was rejecting even though no evidence of tender was led by the Defendant. The facts of this case is quite different from the decision in the Akoto vrs. Gyamfi-Addo & Anor [2005- 2006] SCGLR 1018 case where Wood JSC, (as she then was) at page 1033 stated that in a straightforward case of a sale which did not materialize interest should not be paid. Plaintiff’s refund has been kept for 11 years after request for refund; 5 years after the filing or the issuance of the Writ with a scurrilous excuse that the property in issue had still not been sold. This is unacceptable and does not preclude the Defendant from paying interest on the said sum for the reason that the refund party has unnecessarily kept the Plaintiff’s money. I do not find any basis for the claim of the Plaintiff regarding her relief 3 and accordingly deny same. Page 11 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. CONCLUSIONS Given the fact that the payments made by the Plaintiff were receipted in dollars and cedis the Defendant must refund same in those denominations. As discussed above I am minded in the interest of equity and justice to award interest on those sums received. It is safe to award interest from July 2013 as Defendant could have refunded the said sum upon demand in June 2013. I therefore enter judgment in favour of the Plaintiff against the Defendant as follows:- 1. Recovery of the sum of US$8,000.00 and GHS7,320.00 being payments made to Defendant by Plaintiff. 2. Interest on the US$8,000.00 and GHS7,320.00 all at the prevailing commercial bank rate of interest from July 2013 till date of judgment. 3. Plaintiff’s relief for 15% of aggregated sum due and payable as legal fees is refused as Counsel is entitled to his legal fees from his client. 4. Cost being discretionary in nature, I am minded to award cost of GHS15,000.00 in favour of the Plaintiff against the Defendant. (SGD.) SHEILA MINTA, J. JUSTICE OF THE HIGH COURT REPRESENTATIONS PARTIES: ABSENT Page 12 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD. COUNSEL: THEOPHILUS OKYERE BOAPEA, ESQ., HOLDING BRIEF FOR EDDIE MACCARTHY, ESQ., FOR PLAINTIFF – PRESENT ABIGAIL KUMI GYAESAYOR, ESQ., HOLDING BRIEF FOR EDWARD DARLINGTON, ESQ., FOR DEFENDANT – PRESENT AUTHORITIES 1. ACKAH VRS. PERGAH TRANSPORT & 2 ORS. [2010] SCGLR 729 AT 736 2. TAKORADI FLOUR MILLS VRS. SAMIR FARIS [2005-2006] SCGLR 882 3. FIDELITY INVESTMENT ADVISORS VRS. ABOAGYE ATTA [2003-2004] 2 GLR 188 4. FATAL VRS. WOLLEY [2013-14] 2 SCGLR 1070 5. GIFTY AVANZINU VRS. THERESA NJOONA, [2010] MLRG 6. KAMA HEALTH LIMITED. VRS. UNILEVER LIMITED [2013] DLSC 2751 7. AKOTO VRS. GYAMFI-ADDO & ANOR [2005-2006] SCGLR 1018 Page 13 | 13 SUIT NO. GJ/1474/2019 - MERCY DAITEY VS. COMET PROPERTIES LTD.