AMUNA VRS. REHOBOTH PROPERTIES LTD (GJ 0618/2020) [2024] GHAHC 122 (10 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION) ACCRA HELD ON WEDNESDAY, 10TH DAY OF JULY, 2024 BEFORE HIS LORDSHIP JUSTICE PATRICK BAAYEH (J) SUIT NO. GJ 0618/2020 WILLIAM AMUNA : PLAINTIFF 101 BAIDEN AVENUE WEST LEGON VRS: REHOBOTH PROPERTIES LTD : DEFENDANT ACHIMOTA, ACCRA JUDGMENT The Plaintiff mounted this action against the Defendant on 6th February, 2020 claiming the reliefs endorsed on the writ of summons as; i. Delivery of the three-bedroom house with all rooms ensuite with an outer house on plot No. 107 measuring seventy by seventy- five feet (70 x 75 ft) situate at Rehoboth Hills, Oyarifa, Accra. ii. In the alternative the prevailing market value of a comparable house at the same location. iii. Lost profits in the nature of accrued or lost rents from 1st January, 2018 to the final date of payment. iv. Damages for breach of contract v. Cost including legal fees The Defendant upon entering appearance also filed it Defence. 1 | P age The case of the Plaintiff is rather simple and does not admit of any complicities. The Plaintiff is a retired civil servant whiles the Defendant and an estate development company registered under the laws of Ghana and is engaged in the business of developing and selling of real estate properties. Plaintiff avers that sometime in 2015, he entered into a contract with the Defendant for the purchase of a three-bedroom basement house with all the rooms ensuite with an outer house on plot number 107 measuring 70 foot by 75 foot at Rehoboth Hills, Oyarifa, Accra. The parties agreed on a purchase price of USD 195,000.00. Plaintiff was required under the contract to make an initial deposit of USD 15,000.00 at the execution of the contract and to pay the difference ten tranches which Plaintiff duly paid and Defendant acknowledged receipts of all payments. It is Plaintiff’s case that he made the Defendant aware that he needed the house urgently because he due to retire and needed the house as his dwelling house. It is Plaintiff’s case that three years after he fully paid for the house, the Defendant has failed or refused to deliver the house to him. That several demands made on the Defendant to meet it obligation under the contract made yielded no results of the Defendants failure to deliver the house to him he has been compelled to find attractive accommodation upon his retirement from the Public Service since 2017 at a cost which could have been avoided if Defendant had delivered on its promise. That the failure of the Defendant to deliver that house to him has cost him a lot in terms of payments in the nature of accrued rent. In its Defence the Defendant admits virtually the entire case of the Plaintiff except to say that; “ though the construction of the house to delayed a little due to some unforeseen topographical and natural obstacles encountered during the construction, the house has finally been completed save that the access route to the house is not yet to be tarred as construction work at the site named Rehoboth Hills is still ongoing”. 2 | P age It is the Defendant case that through the initial timelines were not met as contained in the original sales and purchase agreement, new timelines were negotiated and agreed by the Plaintiff and in line with the new agreed timelines, the building has been completed. Defendant avers that while negotiating the new timelines with the Plaintiff, Defendant offered Plaintiff a similar fully completed building at a different but similar plush prime and secure location but Plaintiff refused to accept. It is Defendant case that Plaintiff’s house is complete and ready for delivery save minor rectification works due to the slow pace of work at the Rehoboth Hills site. That Plaintiff’s house is ready for delivery but Plaintiff has surprisingly declined several invitations from the Defendant to go and finally inspect the house before officially handing over. The Plaintiff did not file any reply but has been held in several cases that a reply is not necessary if the sole aim was to deny the fact alleged by in the Defence since in the absence of a reply, there is an implied joinder of issues on the Defence. See IN RE ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & ORS. VRS. KOTEY & ORS. (2003 - 2004) SCGLR 420 and IN RE PARAMOUNT STOOL OF BAMIANKOR; EFFIA IV & ORS. (2010) SCGLR 37 at page 50. At the close of pleadings, the issues adopted for trial are; i. Whether or not the original contract between was valid. ii. Whether or not Plaintiff is entitled to his claim. At the trial Plaintiff gave evidence by himself and called one witness (PW1) Anthony Amuna. The Defendant gave evidence by its representative John Cudjoe who described himself as court officer but late said he is the transport and equipment manager of the Defendant company. Before to analyze the evidence adduced by the Plaintiff in support of its case or statement of fact, I shall refer to the law and consider the burden of proof in Civil Cases. The general principle of law has been captured in the preposition “He who assets must proof”. This 3 | P age proposition of law was restated in the celebrated case ZABRAMA VRS. SEGBEDZIE (1991) 2GLR 221 at page 226 where Kpega JA ( as he then was) said; “ A person who makes an averment or assertion which is denied by the opponent has a burden to establish that assertion is true. and he does not discharge that burden unless he leads admissible and credible evidence from which the fact is facts he asserts can properly and safely be inferred. The nature of each averment or asserting determines the degree and nature of the burden”. To the same effect in section 11, 12 and 14 of the evidence Act, (1975) NRCD 323 and the case of ABABIO VRS AKWASI III (1994- 95) GBR 774 where the Supreme Court reiterated the position in ZABRAMA VRS SEGBEDZIE Supra and held that; “ A party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. The burden only shifts tot eh Defendant when the Plaintiff has adduced evidence to establish his claim”. See also ADWUBENG VRS DOMFOEH ( 1975) NRCD 323 puts the obligation in Civil proceedings on a party who asserts to produce “sufficient evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence”. The Defendant does not deny that it entered into an agreement with the Plaintiff to sell a three bed-room basement house with an outhouse to Plaintiff for the consideration of USD 195,000. The parties signed the “sale and purchase Agreement” (Exhibit A) on 24th November, 2015. According to Exhibit A, the Plaintiff was to pay initial deposit of USD15,000 upon execution of the agreement and thereafter pay off the balance of USD 180,000 in ten tranches. The Defendant was to deliver the house to Plaintiff within twelve (12) calendar months. The evidence on record show that Plaintiff duly paid the balance according to the terms of the agreement and made the last payment of USD 23,500 on 30th November, 4 | P age 2016. Thus, the Plaintiff paid the total contract sum or purchase price in twelve (12) calendar months but as at the date, Defendant filing the suit, Defendant has not even begun the construction of the building. Indeed, as at the date of filing this suit on 6th February, 2020, the Defendant had not delivered the house to Plaintiff. The Defendant has pleaded in paragraph 6 of its statement of Defence that; “6. The Defendant avers that though the initial timelines were not met as contained in the original sales and purchase agreement, new timelines were negotiated and agreed on by the Plaintiff and in line with the new agreed timelines the building has been completed” The Plaintiff has denied that any new timelines were agreed between the parties. The burden of proving that following the default new timelines were negotiated and agreed between falls squarely on the Defendant since it is the Defendant who is making this assertion. In the case of ABABIO VRS AKWASI (1994-95) GBR 774 the Supreme Court per Akikins JSC (as he then was) said; “ The general principle of law is that, it is the duty of the Plaintiff to prove his case i.e he must prove what he alleges. In other words, it is the party who raises in his pleadings and issue essential to the assumes the burden of proving it. The burden only shifts to the Defence to lead sufficient evidence to tip the scales in his favour when on a particular issue. Plaintiff leads some evidence to prove his claim. if the Plaintiff succeeds in doing this, he wins, if not he loses on that particular issue”. In proving that Defendant has failed to deliver his house in twelve months as agreed, Plaintiff tendered in evidence the correspondence between him and the Defendant. Exhibit B is the schedule of payment which show that the Plaintiff paid the last trench on 12th December, 2016. 5 | P age According to Plaintiff when after the 12 months, the Defendant had still not delivered his house to him and after several verbal assurances, the Defendant wrote to him a letter dated 28th March, 2017 which was tendered in evidence as Exhibit D headed construction update paragraphs 1 and 2 of Exhibit D states; “ I formally write to first express our unqualified apologies for the delay in completing and handing over your home the Rehoboth properties has had challenges with the Rocky suit type which has affected the wall and drainage works consequently causing delay to the timelines in completing the phase 1 and 2 projects. “ Nevertheless our project management team has advised that they now overcome the challenges, allowing the road and drains work activities to be completed alongside the phase 1 houses by the end of April, 2017. The phase 2 Rehoboth Houses will then be started and completed in November, 2017. Though this letter (Exhibit D) was addressed to the Plaintiff, it was not signed by anybody except that it was with the Defendant’s letter head. After this letter there was no further written communication between the parties until 16th October, 2018 when the Plaintiff wrote to the Defendant in a letter headed RE; PURCHASE OF PROPERTY AT REHOBOTH HILLS” EXHIBIT D1. In Exhibit D1 Plaintiff reminded the Defendant of its promise as contained in Exhibit D. Plaintiff further stated in Exhibit D1 thus; “ I write in reference to my purchase of one of your houses at Rehoboth Hills and wish to remind you that as per the agreement signed with you, I was excepted to take delivery of the property after full payment by December, 2016 since I signed the contract in November, 2015 and full payment was effected on 12th December, 2016. 6 | P age “ In a letter dated 28th March, 2017, you informed me that the completion will be delayed because of the rocky nature of the place making construction of roads difficult and your assertion that that completion will be by April, 2017. “ 22 months down the line, the property is not completed and there has not been any further communication at all from you on the subject. “ I bought this property so that I could occupy it after retirement and almost a year after retirement I do not have access to it.” The Defendant never responded to exhibit D1 as responded above until 2nd April, 2019 and this was tendered in evidence as Exhibit G. Exhibit G states in part that; “ First one wish to apologies sincerely for the delay in completing the project on time and the inconvenience that the delay has occasioned. Again we are …..another apology for the communication gaps to address these anomalies. We pledge these will not recur. “ Our project team has authorized that the new expected delivery time lines for your property will be as follows; Commencement - May, 2019 Completion - December, 2019” In response to this letter (Exhibit G) the Plaintiff wrote to Defendant the very next day 3rd April, 2019 (Exhibit G1) in which Plaintiff stated his rejection of the new timelines as follows; “ I write in respect to your letter to me on the above subject matter and wish to state that I was supposed to have taken delivery of the said building by 7 | P age December, 2016 and if the new timelines you have given is to go by, the house would have been delayed by three (3) whole years. “ In the light of this, I would like to inform you of my rejection of your proposal timelines and request that you take steps to get me the building in the shortest possible time.” In his evidence the Defendant simply repeated its ……as pleaded in paragraph 7 of Mr. Samuel Cudjoe” Witness Statement for Defendant he stated thus; “7. I wish to state that though the initial timelines for the completion of the Plaintiff’s house was not met as contained in the said sales and purchase agreement (Exhibit A) the Defendant negotiated new timelines with the Plaintiff and agreed on same and based on these new agreed timelines the Defendant finally completed the Plaintiff’s house for him.” Apart from making this bare assertion, the Defendant made no effort to corroborate this either by documentary or oral evidence. This Defendant simply mounted the witness box and repeated his pleadings. As approached from Exhibit G1 above, it is clear that even the timelines suggested by Defendant in Exhibit G was rejected by Plaintiff outright in his Exhibit D1. Even before the Plaintiff issued the writ on 6th February, 2020, he made his solicitors to write a demand letter to Plaintiff dated 14th January, 2020 (Exhibit C). There is no evidence that Defendant even responded to this demand letter and if indeed as stated by Defendant’s witness, Defendant had completed building the house as at 2019, what prevented Defendant from responding to Plaintiff’s solicitor’s letter and inferring them that by the new timelines agreed, they had completed Plaintiff’s house and it ready to deliver. Indeed, after narrating the history of Plaintiff’s relationship with Defendant, Plaintiff lawyers stated in the demand letter (Exhibit C) in the penultimate paragraph thus; 8 | P age “ We have the firm instructions of our client to demand, which we humbly do that the company takes all possible steps to deliver the three bedroom basement house with all rooms ensuite with an outer house on plot No. 107 measuring seventy feet by seventy five feet (70ft x 75ft) at Rehoboth Hills Oyarifa, Accra to him within 7 days of service of this letter on the company. Kindly take note that in default, we shall have no option but to institute legal action against the company for the recovery of the said specific property and cost without recourse to the company”. Exhibit C is dated 14th January, 2020 and the suit was filed on 6th February, 2020, that is three weeks after the issue of the Solicitor’s demand letter. Even if the house was completed at that stage, nothing prevented the Defendant from calling on Plaintiff to take possession. It is also noted that Exhibit D3 is an email communication from William Sasu (General Manager of Defendant Company) to the Plaintiff in response to Plaintiff’s email of Exhibit D2 dated 2nd April, 2019 on the subject DELAY IN CONSTRUCTION OF HOUSE NO. 107 REHOBOTH HILLS CITY. In Exhibit D3 dated 3rd April, 2019 Mr. William Sasu stated; “ Thank you for the speedy response to out mail. The content of your letter was very well noted. I want to revert back to the project team to discuss the timelines. I will surely come back to you” Clearly if Plaintiff had agreed with the Defendant on any new timelines, Mr. Sasu will not be telling Plaintiff on 3rd April, 2019 that he was going to discuss timeless with the project team and would revert to Plaintiff. Apart from stating that Defendant negotiated with and agreed on new timelines with Plaintiff, Defendant could not even tell the court when the negotiation and the new agreement took place and what the new timelines were. All the Defendant did was to give one promise after another without fulfilling any. Under cross examination, counsel for Defendant asked Plaintiff the following questions; 9 | P age Q: ……. Whilst the Defendant company was negotiating the new delivery timeline with you, they offered you an alternative completed property which was similar to yours and which was also located in similarly plush, luxurious, serene, secure and prime location. A: My lord, that is not true. first of all after the letter from Rehoboth, they never contacted me and anytime I visit the Rehoboth office, I was told the officer was not around so I was compelled to write again and that is Exhibit D1 that was October 2018. So, I had to write and remind them that they had not executed the project. My lord after that letter in 2018, I never had any response from Rehoboth until April, 2019 when I went to the office to meet the managing director Mr. Akrofi. That was the first time they said were going to give me some timeline. I received a letter from them and that is Exhibit G proposing restart of work in April, 2019. I responded the next day rejecting the offer …..”. Q: In your supplementary Witness Statement filed on 2nd June, 2023, in paragraph 4, you stated “ That the Defendant has failed to deliver the house I contracted for under the Sales and Purchase Agreement” . do you still stand by that statement. A: My lord I stand 100 percent by that statement. I have pictures that were taken on 2nd June, 2020 at 10:37am of the building not completed and indeed taken over by reptiles and that Exhibit E series. After submitting Exhibit E series to the court, the next time I went there, the security officers stopped me form entering the property. So as at now, I do not know what is there. The alternative, the company (Defendant) offered me was at Oyibi and it has no panoramic view of Accra. The price given to me by the Defendant company indicated that the house is cheaper than my house but that I should pay USD$57,000 more. In any case that offer came after we have brought the matter to court”. 10 | P age Clearly the Defendant’s claim of negotiation and agreement of new time line is a figment of Defendant’s imagination. Making promises upon promises cannot by stretch of imagination metamorphose into negotiations and agreement. The Defendant’s witness, nor John Cudjoe put the nail in the coffin when cross- examination he was asked; Q: So from these two exhibits it is evident that no new timelines were agreed between the Plaintiff and Defendant company for the delivery of the subject property to Plaintiff A: Plaintiff had been invited on a few occasions to come. So that we discuss this further as we have gone far in the property in question. We even at a point proposed giving him another property from one of our sites but he failed to turn up to honor the invitation. Q: In Exhibit A that your relying on, is there amu clause in it that gives the Defendant company a discretion to decide to fail to deliver on the contract that he has signed and elect to give an alternative offer to the Plaintiff and consider it binding on the Plaintiff. A: I am not sure we used the word binding but rather it was a discussion to agree on a common ground because ……we had a little challenge going forward with the completion of the property. From the totality of evidence on record therefore find and hold that the parties never negotiated and agreed on new timelines after the Defendant failed to deliver the house to Plaintiff in December, 2016 agreed per the sales and purchase agreement Exhibit A. 11 | P age I will no deal with the second issue, whether or not Plaintiff is entitled to his claim. The parties entered into a sales and purchase agreement in November, 2015. The terms of the contract provided that the cost of the building a three (3) bedroom basement house with all rooms ensuite and an outer house at a price of $195,000. The contract do provided that Plaintiff was to pay the $195,000 in twelve installments on trenches and the house was also to be deliver 12 months from the date of execution of the agreement Plaintiff completed payment of the $195,000 in December, 2016 and Defendant was to also deliver Plaintiff house in December, 2016 but up until the date Plaintiff instituted this action on 6th February, 2020 Defendant had not delivered the house to Plaintiff. Exhibit E series are pictures taken of the house in June, 2020, for months after filling the suit and these pictures show that the house is far from complete. Plaintiff described the state of the house under in his evidence chief (witness statement as in it paragraphs 26, 27 and 28 of his witness statement thus; “ 26 …..the Defendant’s resort to excurses such as some unforeseen to pographical and natural obstacles encountered during construction of the house are meet to deceive the court. “27 ………the Defendant knew the ground which Rehoboth Hills Estates were to be built or ought to have conducted proper to pographical and geotechnical studies before selecting the site for the housing project before starting the construction of the houses. Therefore, reliance on hardship and inconvenience for failing to deliver is not a Defence at all to proffer. “28 ……………… I testify that rather the Defendant failed its statement of Defence, I visited the site (in June, 2020) and the state of the house was the exact contradiction of the statements made by the Defendant in its statement of Defence. What I saw of the house is a mere structural shell. The compound had been taken our by weeds, occupied by rodents. There are o fittings of any kind fitted and not a single door had been fixed. 12 | P age “29 ……Photographs of the state of the house and its environs taken on the same day 1st July, 2020 (copies are attached and marked Exhibit E series) show the sorry state of the house which Defendant says in it statement of Defence that it is finally completed.” I must say that counsel for the Defendant could not contradict Plaintiff’s description of the house during cross-examination. Indeed, counsel did not even ask a single question on the Plaintiff’s description of house as contained in the photographs (Exhibit E series). The law is settled that when a party fails to cross examine the opponent on an issue he is deemed to have admitted same. See FORI VRS. AYIREBI (1996) GLR 627 (SC) and DANIELL, CONSTRUCTION LTD. VRS. MABEY OF JOHNSON LTD. (2007-2008) 1 SCGLR 60. The coup de grace on the nailing of the coffin took place when Counsel for the Plaintiff cross-examined Defendant’s witness. Q: You filed this witness statement on 13th December, 2020. We are in the middle of March, 2024, the access route that you claim was the only remaining works that was not tarred, is it tarred now four years down the line? A: No, My Lord. Q: I put it to you that the Defendant company has failed under the contract that it signed with the Plaintiff in 2015 to deliver the subject matter to the Plaintiff in 12 months. A: That is true My Lord. We could not deliver in 12 months. And I dare say, Defendant could not deliver in seven years. In the case of IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV (Substituted by TAFO AMON II) Vrs. AKOTIA OWORSIKA III (Substituted by LARYEA AYIKU III) 13 | P age [2005-2006] SCGLR 637. The Supreme Court speaking through Dr. Twum JSC (As he then was) held that; “ When an adversary has admitted as fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of same state of facts which he has formerly asserted. That type of proof is a seltany rule of evidence based on common sense and expediency”. The Defendant’s witness himself has openly admitted that Defendant failed to deliver Plaintiff’s house to him in accordance with the terms of the contract signed between the parties (Exhibit A). I hold therefore that the Defendant breached the contract it signed with the Plaintiff. The Plaintiff’s claim is for the delivery of the three-bedroom house with all rooms ensuite with an outer house on plot No. 107 measuring Seventy feet by Seventy-Five (70ft x 75ft) situate at Rehoboth Hills, Oyarifa Accra or in the alternative the prevailing open market value of a comparable house at the same location. As I have the indicated in this delivery this is an agreement signal in November, 2015 to deliver the house in 12 months. We are in July, 2024 almost eight years ago and Defendant has been unable to deliver. The Defendant has not convinced me in any way that it is capable of delivery 14 | P age the house to Plaintiff in the foreseeable future. The alternative of the prevailing market value of comparable house is move feasible. Sadly, more of the parties specifically the Plaintiff led any evidence to proof the value of a comparable house in the same location. In the circumstances I would order the recovery of the money paid by Plaintiff to Defendant with interest. I therefore order the recovery of the sum of USD$195,000 to the Plaintiff and interest on the USD$195,000 from December, 2016 to date of payment at Bank of Ghana dollars interest rate. The Plaintiff is also entitled to damages for breach of contract. In contract cases the measure of damages is where a party has sustained loss by reason of the breach of contract, he is as far as money can do to be placed. In the position with respect to damages as if the contract has been performed. Damages may also be consequential loss like physical inconvenience and discomfort. In the instant case apart from leading evidence to the effect that Plaintiff that Plaintiff was retiring from the Public Service and therefore needed the house for his residence, and the fact that he indeed retired in 2017, these was no sanitilla of evidence to from the Plaintiff to guide the court in assessing damages. There is no doubt however that from 2017 to date, Plaintiff must have struggled to find alternative accommodation, however inconvenient it may be. In the circumstances the Plaintiff will entitled to nominal damages only in the absence of particulars of special damages. General damages are such as the law will presume to be the nature and probable consequence of the Defendant’s act. They arise by inference of the law and need not be proved by evidence. See ATTORNEY -GENERAL VRS. FAROE ATLANTIC CO. LTD. (2005-2006) SCGLR 271. In the case of DELMAS AGENCY GHANA LTD. VRS. FOOD DISTRICBUTORS 15 | P age LTD. (2007 -2008) 2 SCGLR 748 at page 764, the Supreme Court speaking through Adinyira JSC ( as he then was) said; “ It is a well establish principle in law that in a claim for damages for breach of contract, the party to the contract he is not guilty of such breach is to be placed financially in the position he would have been if the contract had not been breached. He is therefore compensated for damages, loss or injury he has suffered through the breach”. In the instant case Plaintiff told the court that he was compelled to pay the princely sum of USD$195,000 in ten traches within one year. With the hope that he would retire to his dream house with a panoramic view of Accra only for the Defendant to place him on such an embarrassing situation such that he had to look for alternation accommodation. Taking all the above facts into account, I award Plaintiff damages of GH¢ 500,000. Plaintiff’s relief (iii) being loss of profit in the nature of accrued rent or lost of rent from January, 2018 to final date of payment cannot be granted. This is so because Plaintiff led no evidence to proof the loss of rent. Indeed, the house was for his personal occupation and not for rental. If by this relief Plaintiff is claiming how much he has to pay for alternative accommodation, then he has 16 | P age to pay or if his house had been delivered and he decided to rent it out, then he had to lead evidence to show how much the house of that nature is being rented for. Sadly, no such evidence was led before the court. I award Plaintiff cost of Ghc50,000.000. (SGD.) JUSTICE PATRICK BAAYEH (J) (JUSTICE OF THE HIGH COURT) COUNSEL ANABA ROY ATAFO HOLDING THE BRIEF OF DOMINIC AYINE FOR THE PLAINTIFF C.K KOKA FOR THE DEFENDANT 17 | P age