Sackey v Ansong (C2/269/2024) [2025] GHACC 108 (23 June 2025)

IN THE CIRCUIT COURT ‘1’ HELD IN ACCRA ON MONDAY THE 23RD DAY OF JUNE, 2025 BEFORE HER HONOUR CHRISTINA EYIAH-DONKOR CANN (MRS.) CIRCUIT COURT JUDGE SUIT NO: C2/269/2024 FREDERICK ASUMAH SACKEY 12 GARGANEY WALK LONDON, SE28 8HU SUING AS THE HEAD OF MAMA SACKEY FAMILY OF ABOSSEY OKAI AND PER HIS LAWFUL ATTORNEY PLAINTIFF EMMANUEL ARYEH MONCAR METHODIST CHURCH ROAD CX-064-7193 AKWELEY METHODIST CHURCH ROAD NEWTOWN-KASOA VRS KOFI ANSONG B302/6 APLAKU STREET DEFENDANT ABOSSEY OKAI, ACCRA JUDGMENT FACTS OF THE CASE By a Writ of Summons filed on the 25th June 2024, the plaintiff suing per his lawful attorney commenced this action and sought the following reliefs against the defendant: “i. An order for the immediate recovery of the family property at Abossey Okai known as No B302/6 Aplaku Street for the use of the plaintiffs family members. 1 ii. Recovery of rent for the 4 shops collected by the defendant from tenants from January 2022 at a monthly rate of GH¢100 per shop up to the date of yielding vacant possession. iii. Damages for breach of covenant and for trespass. iv. Mesne Profit iv. Cost.” The plaintiff’s writ was accompanied by a statement of claim. The plaintiff in his statement of claim described himself as the head of the Mama Sackey family of Abossey Okai. The defendant according to the plaintiff is a tenant of Mama Sackey by virtue of a deed of lease which demised to the defendant for twenty-five (25) years from 1997 all that piece and plot of land of Mama Sackey family situate at Aplaku Street, Abossey Okai, Accra and known as property No. B302/6 to erect two (2) storey building consisting of shops on the ground floor and offices and shops on the top of the floor to be completed within a year from the date of the execution of the lease but built only the ground floor which he subleted to tenants as shops and consequently denied the plaintiff’s family members of their share in the said building. In this case, the respondent though duly served with the plaintiff’s Writ of Summons, Statement of claim and several hearing notices of which notices of services and postings were duly proved, did not enter appearance or file his defence. Upon the filing of an application exparte to enter interlocutory and final judgment against the defendant in default of appearance by the plaintiff on the 11th November, 2024 and heard on the 25th November, 2024, the court presided over by Her Honour Basilia Adjei-Tawiah granted the said application and entered judgment in default of appearance against the defendant in respect of reliefs (i), (ii) and (v) 2 and ordered the plaintiff to file his witness statement in respect of reliefs (iii) and (iv) namely: damages for breach of covenant and trespass and mense profit. It is further instructive to note that the defendant although served with the plaintiff’s attorney’s witness statements, attached documents, pre-trial check list and hearing notices of which services were duly proved did not appear in court to either give evidence or cross-examine the plaintiff’s attorney. He is therefore deemed to have waived his right to be heard, although there is an authority to the effect that the right to be heard is an established common law principle, it is a right which should not be taken away unless the rules of court permit it to be so. See: Repubilc vrs High Court Exparte Salloum and Others (2012) 37 MLRG 34 SC. During the hearing, the plaintiff’s lawful attorney testified under oath. He did not call any witness. In several decided cases, the superior courts have held that there are situations where the testimony of a single witness will suffice to prove a case. In the case of Kru vrs Saoud Bros & Sons (1975) 1 GLR 46, the Court of Appeal held: “Judicial decisions depend on the intelligence and credit and not the multiplicity of witnesses produced at the trial.” Also, in the case of Takoradi Flour Mills vrs Samir Faris (2005-2006) SCGLR, the Supreme Court held affirming the position of the law that: “(a) A tribunal of facts can decide an issue on the evidence of one party. A bare assertion on oath by a single witness might in the proper circumstance of a case be enough to form the basis of a judicial interpretation. The essential 3 thing is that the witness is credible by the standard set in section 80 (2) of the Evidence Act, 1975.” Again, in the case of Ghana Ports and Harbours Authority vrs Captain Zavi & Nova Complex Ltd (2007-2008) SCGLR 806 the Supreme Court held thus: “It is true that witnesses are weighed but not counted and that a whole host of witnesses are not needed to prove a particular point.” THE PLAINTIFF’S LAWFUL ATTORNEY’S CASE It is the case of the plaintiff’s attorney that by a lease made in 1997, the plaintiff’s family let all that piece and parcel of land situate at Abossey Okai Accra and covering an area of 0.03 acres to the defendant for the purposes of construction of a two (2) storey building, the ground floor to be used as shops by the defendant and the top floor to consist of shops or offices to be used by the plaintiff’s family. According to the plaintiff’s attorney, the land was leased to the defendant for a term of twenty-five (25) years and he was supposed to complete the building within one year from the date of execution of the agreement. The plaintiff’s attorney continued that the ground floor and the top floor were to be used for commercial purposes and that indeed the defendant built the ground floor and let out same to tenants since he had a right to sublet. It is further the case of the plaintiff’s attorney that in consideration of the defendant’s promise to build the top floor for the benefit of the plaintiff, the plaintiff forwent the receipt of payment of the ground rent and yet the defendant willfully failed to build the top floor despite repeated demands though he was receiving rent for the over 25 years from tenants he let the ground floor to. According to the plaintiff’s attorney, the lease agreement which commenced in 1997 had expired in the year 2022 without the plaintiff gaining any benefit from the lease transaction. The plaintiff’s attorney testified that the defendant is in breach of the covenant which stipulates that he will build the top floor for the benefit of the plaintiff’s family. He testified further that the 4 defendant though he is very much aware that his lease agreement expired in the year 2022 and had failed to perform his part of the obligation under the lease agreement has still continued to let out the premises after the year 2022 and taken rents from tenants. In the plaintiff’s attorney’s view, the plaintiff’s family are in danger of losing the interest in the land since the defendant has been very defiant and will not respond to any invitation to resolve the breach amicably. That the plaintiff’s family pray the honourable court to award damages for the breach of the covenant when the defendant failed to build the top floor which could have earned the family about One Hundred Ghana Cedis (GH¢100.00) per store and therefore Four Hundred Ghana Cedis (GH¢400.0) per month hence Four Thousand Eight Hundred Ghana Cedis (GH¢4,800.00) per year for the 25 years bringing the total to One Hundred and Twenty Thousand Ghana Cedis (GH¢120,000.00). The plaintiff’s lawful attorney tendered in evidence the Power of Attorney given to him by the plaintiff to prosecute this action in his stead as Exhibit “A” and the lease agreement executed between the plaintiff’s family and the defendant in 1997 as Exhibit “B” and photograph of the four (4) shops on the ground floor without the shops or offices on the top floor as Exhibit “C”. ISSUES FOR DETERMINATION The issues for determination are as follows: 1. Whether or not the plaintiff is entitled to damages for breach of covenant from the defendant? 2. Whether or not the plaintiff is entitled to Mense Profit? BURDEN ON THE PLAINTIFF It is a general principle of law that he who asserts must prove. This general principle has been given both statutory expressions at section, 10 (1) and (4) of the Evidence Act, 1975 (NRCD 323), and judicial pronouncements. In the case of Sarkodie v. F.K.A Company Limited (2009) SCGLR 65, the Supreme Court held that, the burden of producing evidence requires a party to produce 5 sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. In the case of Ababio v. Akwasi 111 (1995) 2 GBR 774, the Court held that: “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 an issue essential to the success of the case who 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 the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins: if not he loses on that particular issue.” See also: Bisi v Tabiri [1987-1988] I GLR 360 Ackah v. Pergah Transport Limited & Others [2010] SCGLR 732. In this case, the burden that is cast on the plaintiff is to lead sufficient evidence to enable a finding of those facts in issue to be made in his favour as required by sections 10 and 14 of the Evidence Act, 1975 (NRCD 323). See: Dzaisu v Ghana Breweries Limited [2009] 6 GMJ 111 S.C Sections 11 (4) and 12 (1) of the Evidence Act, 1975 (NRCD 323) provides that the standard burden of proof in all civil matters is proof by the preponderance of probabilities and there is no exception to it except where the issue to be resolved in the civil suit borders on criminality such as fraud and forgery. The Supreme Court also in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 unambiguously resolved the question of standard burden of proof. In the case of African Mining Services v Larbi [2010-2012] GLR 579, the Court held that the burden of persuasion in civil matters requires the person who has the evidential burden to discharge, to produce sufficient evidence such that a reasonable mind, such as this Court, will come to the conclusion that the existence of the fact is more probable. 6 It is therefore the plaintiff’s duty as required by law to produce the evidence of the facts in issue such that a reasonable mind, such as this Court, will come to the conclusion that from the existence of the facts, his case is more probable that and that duty must be satisfactorily discharged. ANALYSIS OF THE EVIDENCE ON RECORD. ISSUE ONE Whether or not the plaintiff is entitled to damages for breach of covenant from the defendant? In resolving the first issue, I have examined Exhibit “B” very carefully. It is titled “This Indenture”. It is dated the 24th January, 1997. It is between F. K. Kwashie Sackey, Martin Sackey, Paulina Boye, Emelia Moncar and Catherine Mensah on one hand and Kofi Ashong on the other hand. From Exhibit “B”, indeed on the 24th January, 1997, the plaintiff’s family entered into a building contract with the defendant whereby the defendant agreed to construct a two storey-building, part of the top floor consisting of offices or shops and the ground floor also made up of shops within one (1) year from the date of execution of the said agreement on the 24th January, 1997 and for the defendant to use the shops on the ground floor and part of the offices or shops on the top floor for commercial purposes only and pay all charges for electricity consumed, taxes imposed on the ground floor and part of the top floor as well as telephone bills and keep the property in good condition with a right to sublet. The relevant portions from Exhibit B are as follows: “WITNESSETH AS FOLLOWS: 1. In consideration of chamber and hall self-contain as part of the top floor to be constructed by LESSEE at his own expense for the LESSORS and an amount of FOUR MILLION THOUSAND CEDIS (¢4,000.000.00) (which the LESSORS hereby acknowledge receipt) LESSORS hereby lease to the LESSEE the property describe in the schedule hereto for term of TWENTY-FIVE (25) YEARS. 7 2. THE LESSEE COVENANTS WITH THE LESSORS AS FOLLOWS: i) To erect a storey building, part of the top floor consisting of office or shops for the LESSEE and the ground floor also made of shops for the LESSEE. ii) To complete the said building within one year from the date of execution by the Lessors and Lessee. iii) To use the ground floor and part of the top floor for commercial purpose only. iv) To pay all charges for electricity consumed on the ground floor and part of the top floor as well as telephone bills. v) To pay all rates, taxes, impositions and out-goings whatsoever whether imposed by the Local Government Authorities or by Central Government in respect of the ground floor and part of the top floor vi) At all times during the period of Lease to keep the building and all windows, door locks, water closet cisterns, pipes, drains and any addition thereto on the ground floor and part of the top floor in good and substantial repair and condition and to do all repairs and work necessary to put and keep the same in such repair. vii) The LESSEE have the right to sub-let.” The plaintiff’s attorney in his evidence which is contained in his witness statement sought to create the impression that the ground floor was to be used as shops by the defendant and the top floor which consisted of shops, offices to be used by the plaintiff’s family. However, per Exhibit “B” which is the lease agreement the shops on the ground floor and part of the shops or offices on the top floor are also to be used by the defendant for commercial purposes only. From the totality of the evidence on record together with the exhibits, the court finds as a fact the following: i. That the plaintiff’s family entered into a building contract with the defendant whereby the defendant agreed to construct a two storey-building, part of the top floor consisting of offices or shops and the ground floor also 8 made up of shops within one (1) year from the date of execution of the said agreement on the 24th January, 1997. ii. That the defendant will use the shops on the ground floor and part of the offices or shops on the top floor for commercial purposes only and pay all charges for electricity consumed, taxes imposed on the ground floor and part of the top floor as well as telephone bills and keep the property in good condition with a right to sublet. iii. That the defendant built the shops on the ground floor but failed to build the shops or offices on the top floor. This court further finds as a fact that the defendant knew that the building will be let by the plaintiff’s family upon the expiration of his twenty-five (25) years lease on the 24th January, 2022. The damages therefore fell to be considered under two headings; the cost of completing the top floor and loss of rent. With regards to the cost of completing the top floor, the plaintiff did not engage any expert to give him an estimate on the estimated cost of completion of the top floor and so there is no evidence before the court on the estimated cost of completion of the top floor to enable the court award damages for the cost of completing the building. The proper thing for the plaintiff to have done on the determination of the contract was to complete the shops or offices on the top floor and then sue for the actual cost of completion. For the loss of rent, the plaintiff prayed the honourable court to award damages for the breach of the covenant when the defendant failed to build the shops or offices on the top floor which could have earned the family about One Hundred Ghana Cedis (GH¢100.00) per store and therefore Four Hundred Ghana Cedis (GH¢400.0) per month hence Four Thousand Eight Hundred Ghana Cedis (GH¢4,800.00) per year for the 25 years bringing the total to One Hundred and Twenty Thousand Ghana Cedis (GH¢120,000.00) Per Exhibit “B”, the defendant was to build the ground floor consisting of shops and top floor consisting of shops or offices within a period of one (1) year and with 9 a right to sublet the shops on the ground floor and part of the shops or offices on the top floor same for a period of twenty-five (25) years. It therefore means that only part of the shops, that is two (2) shops or offices on the top floor were to be used by the plaintiff’s family and not all the four (4) shops or offices on the top floor as the plaintiff would want this court to believe. Again, if the plaintiff was to complete the two (2) storey building within a year after the execution of the lease agreement on the 24th January, 1997, then it means that the loss of recoverable rent will start from the 24th January, 1998 and not from the 24th January, 1997. Having come to the conclusion that the plaintiff’s family are entitled to recover rent in respect of two (2) shops on the top floor from the 24th January,, 1998 to the 24th January, 2022, the loss of rent recoverable by the plaintiff for the two shops on the top floor are as follows: the plaintiff is therefore entitled to loss of rent on the two (2) shops on the top floor for twenty-four (24) years from the 24th January, 1998 to the date of the expiration of the lease in January, 2022 at One Hundred Ghana Cedis (GH¢100.00) per store and therefore Two Hundred Ghana Cedis (GH¢200.00) per month hence Two Thousand Four Hundred Ghana Cedis (GH¢2,400.00) per year for the twenty-four (24) years bringing the total to Fifty- Seven Thousand Six Hundred Ghana Cedis (GH¢57,600.00). ISSUE TWO (2) Whether or not the plaintiff is entitled to Mense Profit? The plaintiff’s attorney testified that the plaintiff has suffered much injustice and would have earned much money on the rent if the defendant had yielded possession upon the expiration of his lease in 2022 but he continued to earn monies which should have come to the plaintiff’s family. Hence the plaintiff prays for mense profit from 2022 at yearly rate of Two Thousand Ghana Cedis (GH¢2,000.00) for the two years amounting to Four Thousand Ghana Cedis (GH¢4,000.00). 10 Indeed, from the evidence on record, the defendant after the expiration of his lease on the 24th January, 2022 continued to wrongfully occupy the property and also continued to rent the four (4) shops on the ground floor out and earned monies which should have come to the plaintiff’s family. The plaintiff’s family have suffered much injustice by the above conduct of the defendant and he ought to be compensated for the loss of use and enjoyment of the shops during the period of the wrongful occupation by the defendant. Since the defendant’s lease expired on the 24th of January, 2022, accordingly, the plaintiff is entitled to mense profit for two (2) years from January, 2022 to January, 2024 amounting to Four Thousand Ghana Cedis (GH¢4,000.00). DECISION 1. The plaintiff is entitled to loss of rent on the two (2) shops on the top floor for twenty-four (24) years from the 24th January, 1998 to the date of the expiration of the lease in January, 2022 at One Hundred Ghana Cedis (GH¢100.00) per store and therefore Two Hundred Ghana Cedis (GH¢200.00) per month hence Two Thousand Four Hundred Ghana Cedis (GH¢2,400.00) per year for the twenty-four (24) years bringing the total to Fifty-Seven Thousand Six Hundred Ghana Cedis (GH¢57,600.00). 2. The plaintiff is entitled to mense profit for two (2) years from January, 2022 to January, 2024 amounting to Four Thousand Ghana Cedis (GH¢4,000.00). COUNSEL G.K. NTONY FOR THE PLAINTIFF ABSENT PLAINTIFF’S LAWFUL ATTORNEY PRESENT DEFENDANT ABSENT (SGD) 11 H/H CHRISTINA EYIAH-DONKOR CANN (MRS.) (CIRCUIT COURT JUDGE) 12