ANDOH VRS. DEY (GR/KB/CCT/A11/29/2023) [2024] GHACC 362 (24 April 2024)

IN THE CIRCUIT COURT HELD AT KWABENYA ON WEDNESDAY THE 24TH DAY OF APRIL, 2024 BEFORE HER HONOUR MAWUSI BEDJRAH, CIRCUIT JUDGE CASE NO. GR/KB/CCT/A11/29/2023 FRANCIS ANDOH PLAINTIFF VRS SAMUEL DEY DEFENDANT PLAINTIFF’S LAWFUL ATTORNEY PRESENT DEFENDANT ABSENT ABIGAIL AMPOFO HOLDING THE BRIEF OF JAMES MENSAH KULLEY FOR PLAINTIFF PRESENT PRISCILLA ACHEAMPONG HOLDING THE BRIEF OF PRINCE ASARE FOR DEFENDANT PRESENT JUDGMENT Plaintiff, per the writ of summons and statement of claim filed on 20th December 2022, claims against defendant the following; i. An order for specific performance of the contract for sale of property situate at Ashongman Estates, Accra in the Greater Accra Region ii. An order directed at the defendant for the preparation and due execution of the transfer document in favour of the plaintiff iii. General Damages iv. Costs v. Any other relief(s) the Honourable Court may deem fit Defendant entered appearance through his lawyer, Joshua Amidu Kanton, per the Notice of Entry of Appearance dated 25th January, 2023 and filed his statement of defence on 3rd February, 2023, with a counterclaim as follows; i. A declaration that the plaintiff is in breach of the agreement he entered into with defendant ii. An order of the court for the defendant to refund plaintiff’s money or in the alternative, the property be revalued for the plaintiff to pay the difference to the defendant iii. Any other relief that the court may consider appropriate in favour of the defendant 1 As a result, Plaintiff filed his reply to the counterclaim on 13th February, 2023. Plaintiff in his reply to the statement of defence and counterclaim, filed on 13th February, 2023, denies defendant’s allegations and states that defendant is not entitled to his counterclaim. Defendant subsequently changed his solicitor to Prince Asare, per the Notice of Change of Solicitors filed on 29th June, 2023. PLAINTIFF’S CASE Plaintiff is a Ghanaian citizen and resident in the United States of America. Defendant is a Ghanaian citizen and owner of all that piece or parcel of land and building thereon situate at Ashongman-Estates, Accra and known as house number EB 210 Social Street-GE-061-2163. Plaintiff avers that sometime in 2022, his cousin by name Daniel Kwesi Mensah informed him of the defendant’s desire to sell his property (4-bedroom house apartment) situate at Ashongman- Estates, Accra in the Greater Accra Region of the Republic of Ghana. Plaintiff expressed interest and negotiated with defendant over the purchase price and defendant agreed to sell his property at Four Hundred and Ninety Thousand Ghana Cedis (GH¢490,000.00). Plaintiff avers that it was further agreed between himself and defendant that the purchase price of GH¢490,000.00 shall be paid on or before August 2022 and that defendant shall prepare and execute transfer documents in favour of plaintiff upon final payment of the purchase price. Plaintiff further avers that on the basis of the agreement, he proceeded to make payments for the property, on specific dates as provided in the statement of claim and for which defendant duly acknowledged receipt. Plaintiff states that upon payment of the total sum of GH¢490,000.00, defendant failed to give him vacant possession of the property and execute the necessary transfer documents, although defendant duly acknowledged all the monies paid and issued receipts accordingly. According to plaintiff, it was at this point that defendant informed him that he had rented out the property to third parties and that the expiration of the tenancy was on 30th November, 2022. Thus, they agreed that defendant would give him vacant possession of the property on 30th November, 2022, which he failed to do and came up with stories and at a point, refused to answer his calls. Plaintiff states that he caused his lawyers to serve a demand notice on defendant, who despite the demand notice, has failed to honour his part of the agreement. Defendant continues to be in possession of the property and has proceeded to rent out same to the detriment of plaintiff and his family. 2 DEFENDANT’S CASE Defendant on the other hand denies the allegations and states that sometime in 2021, he entered into an oral agreement with plaintiff for the sale and purchase of his four (4) bedroom house situate at Ashongman at a price of GH¢520,000.00. By their agreement, plaintiff was to pay the purchase price within three (3) months effective August, 2021 and he defendant, upon final payment within the agreed period, was required to prepare and execute the transfer documents in favour of plaintiff. According to defendant, plaintiff breached the terms of agreement by making payment after the expiration of the agreed time with an outstanding balance and thus, defendant could not have given him vacant possession of the property. Defendant says that he informed plaintiff that he was in breach of the agreement and as a result he rented out the property and the tenant is in occupation of same. Defendant also says that as a result of the breach, he cancelled the agreement and informed plaintiff and told him to stop making payments but he refused. Defendant further says that the agreement was long terminated before the purported demand notice was served on him since plaintiff failed to make full payment within the agreed time. ISSUES FOR DETERMINATION The issues for determination as adopted by the court, based on the issues filed by plaintiff and additional issues filed by defendant are as follows: i. Whether or not a valid contract exists between the plaintiff and the defendant for the sale of the property, the subject matter of dispute situate at Ashongman Estates, Accra? ii. Whether or not the plaintiff has performed his part of the contract? iii. Whether or not the defendant has failed to perform his part of the contract? iv. Whether or not the plaintiff is entitled to an order for specific performance of the contract for the sale of the property, the subject matter of this suit situate at Ashongman-Estates, Accra? v. Whether or not the plaintiff breached the sales and purchase agreement? vi. Whether or not the defendant communicated the breach to plaintiff and to await a refund of monies paid? vii. Whether or not the defendant informed the plaintiff of someone coming to occupy the property, the subject matter of dispute, due to plaintiff’s breach in the agreed instalment payment plan? viii. Any other issue arising from the pleadings 3 BURDEN OF PROOF The general position of the law is that the party who asserts must prove. Sections 11, 12 and 14 of the Evidence Act, 1975 (NRCD 323) are clear on the respective burdens assumed by the parties in a civil suit. The Supreme Court in ACKAH V PERGAH TRANSPORT LIMITED [2010] SCGLR 729 stated the law as follows; “It is a basic principle of 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 short of which his claim may fail.” In this regard, per the claim of plaintiff and counterclaim of defendant, the parties have their respective burdens to discharge as they have to adduce sufficient evidence on the issues raised to avoid a ruling against them. The standard of the burden is one of preponderance of probabilities. (ADWUBENG V DOMFEH [1996-97] SCGLR 660). EVIDENCE ADDUCED EVIDENCE OF PLAINTIFF Plaintiff called two witnesses to testify in the matter. Plaintiff’s first witness, Daniel Kwasi Mensah (PW1), testified as plaintiff’s lawful attorney. His testimony was an elaboration of plaintiff’s pleadings. He tendered the following documents in evidence; i. A copy of the Power of Attorney – Exhibit ‘A’ ii. A copy of the agreement between plaintiff and defendant in respect of the sale of the property - Exhibit ‘B’ iii. A copy of the receipt in respect of payment for the property – Exhibit ‘C’ iv. Copies of payment receipts – Exhibits ‘D’ and ‘E’ v. Copies of receipts- Exhibit ‘F’ series vi. Total payments made to the defendant by plaintiff – Exhibit ‘G’ series vii. A copy of the demand notice served on defendant by plaintiff’s lawyers – Exhibit ‘H’ viii. Text messages in respect of admissions made by defendant that he had taken sums of money from plaintiff -Exhibit ‘J1’ ix. Exhibit ‘J2’, being audio recordings, also in respect of the said admissions was rejected by the court and marked as ‘R’. Plaintiff’s second witness, Agnes Amoah (PW2), is the mother of plaintiff. Her evidence is to the effect that her son told her that he had purchased the property, 4 the subject matter of dispute from defendant for her accommodation and that of the family. According to PW2, plaintiff later informed her that defendant would give up vacant possession of the property to her and the family in August 2022 after he had made full payment for the property, which was also confirmed by defendant. PW2 further testified that in August 2022, plaintiff informed her that he had completely paid for the property and that she should take steps to move into the property. Thus, she made arrangements with plaintiff’s attorney to meet defendant for the purposes of moving into the property. However, all efforts to get defendant to honour his part of the agreement with plaintiff have proved futile. She tendered a picture of her current place of abode in a dilapidated state and not fit for human habitation as Exhibit ‘K’ series. EVIDENCE OF DEFENDANT Defendant testified by himself and did not call any additional witness, which evidence is an elaboration of his pleadings. He stated, among others, that it was orally agreed between plaintiff and him that plaintiff was to pay the purchase price of GH¢520,000.00 in four (4) instalment payments within three (3) months, starting from August 2021. According to defendant, this is a condition which goes to the root of the agreement and breach of which automatically terminates the agreement. Consequently, plaintiff made the first instalment payment of GH¢85, 024.12 on 1st September, 2021 and the second instalment payment of GH¢68,852.40 on 13th October, 2021. Plaintiff failed to make any further payments as previously agreed and started making payments in bits and pieces including GH¢104.30 at a certain point. He therefore communicated the bizarre payment to plaintiff. He also informed plaintiff about the termination of the contract and that he was going to rent out the property and asked him to stop any further payments. Defendant tendered the following documents in evidence; i. A copy of mobile money transactions from plaintiff to defendant-Exhibit ‘SD 1’ ii. A copy of the send wave transactional statement from plaintiff to defendant-Exhibit ‘SD 2’ iii. A copy of bank statement from Fidelity Bank-Exhibit ‘SD 3’ iv. A copy of writ of summons at the Madina District Court- Exhibit ‘SD 4’ Upon completion of hearing, Counsel for plaintiff filed his written address on 19th February 2024, whilst Counsel for defendant filed his on 28th February, 2024. Both written addresses have been considered in this judgment. 5 ASSESSMENT OF THE EVIDENCE AND THE LAW i. Whether or not a valid contract exists between the plaintiff and the defendant for the sale of the property, the subject matter of dispute situate at Ashongman Estates, Accra? “A contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognisable at law.”1 In this matter, the contract was in respect of the sale of the property in dispute. The conditions for a valid contract were in existence, in that there was offer and acceptance, intention to create legal relations, consideration and the parties had the capacity to enter into the contract. This is confirmed by Exhibits ‘B’ and ‘C’ as tendered by plaintiff and there would be no need to elaborate on same. ii. Whether or not the plaintiff has performed his part of the contract or whether or not the plaintiff breached the sales and purchase agreement? I have decided to discuss issues (ii) and (v) together, since I find them as the same questions put differently. It would be helpful to consider the terms of the contract to be able to address these issues. According to defendant, the parties had orally agreed that plaintiff was to pay the purchase price of GH¢520,000.00 in four (4) instalment payments within three (3) months, starting from August 2021. However, this has been disputed by plaintiff who states that the agreed price was GH¢490,000.00 and that there was no agreement that it should be paid within 3 months. This thus places the burden on defendant to prove that the purchase price was agreed at GH¢520,000.00, to be paid in 3 months, particularly when defendant considers this as a condition which goes to the root of the agreement. Apart from informing the court that this was the agreement reached, defendant did not provide any evidence or document to this effect. The principle of law as affirmed by Dr Date-Bah JSC (as he then was) in the case of T.K. SERBEH & CO LTD V MENSAH (2005-2006) SCGLR 341 at 360-361 is that “For, however credible a witness may be, his bare affirmation on oath or the repetition of his averments in the witness box cannot constitute proof.” I have noted however, that Exhibit ‘B’, dated 21st October, 2021 provides for a purchase price of GH¢430,000.00 whilst Exhibit ‘C’, dated 14th June, 2022, provides for a purchase price of GH¢490,000.00. These are the only documents that provide purchase prices and thus support the evidence that the purchase price was revised from GH¢430,000.00 to GH¢490,000.00. I have also noted that there 1 Black’s Law Dictionary, 9th Edition 6 is no time frame for payment provided in the exhibits, contrary to the assertion of defendant. It is also worthy to note defendant only informed the Court under cross-examination that he remembers that he cancelled the contract in November, 2021, three months after the negotiations. This notwithstanding, he received payment on 14th June, 2022 because, according to him, those who came to make payment came with a police. The principle is that whenever there was a written document and oral evidence in respect of a transaction, the court would consider both the oral and the documentary evidence and often lean favourably towards the documentary evidence, especially where the documentary evidence was found to be authentic and the oral evidence conflicting. DUAH V YORKWA [1993-94] 1GLR 217. The evidence further establishes that plaintiff has paid the total amount of GH¢490,000.00 to defendant, which defendant himself has acknowledged receipt of. Accordingly, I find that plaintiff has performed his part of the contract. In that case, which sales and purchase agreement did plaintiff breach? Defendant has severally told the court that it was an oral agreement, for the payment of the purchase price in three (3) months. Meanwhile, he accepted sums of money paid to him by plaintiff beyond the three month period, the last being received on 3rd August, 2022. Defendant is thus estopped by his own conduct from alleging that the purchase price was to have been paid by November, 2021. In effect, I find that plaintiff has not breached any sales and purchase agreement. iii. Whether or not the defendant has failed to perform his part of the contract? The evidence before the court is to the effect that defendant was to transfer ownership of the property upon final payment. Whilst plaintiff indicated the final payment to be made as GH¢490,000.00, defendant indicated that it was GH¢520,000.00. Defendant was therefore required to prove same, which he failed to do. Having acknowledged receipt of the GH¢490,000.00 which the court finds as the final payment based on the evidence led, defendant was to transfer ownership of the property to plaintiff, which he failed to do. Thus, defendant has failed to perform his part of the contract. 7 iv. Whether or not the plaintiff is entitled to an order for specific performance of the contract for the sale of the property, the subject matter of this suit situate at Ashongman-Estates, Accra? “Specific performance is a remedy available to a party if the other party refuses to complete the sale. It is a remedy available to both the vendor and the purchaser. By an order of specific performance, a party to a contract of sale of land, who attempts to repudiate it, is compelled to carry out his obligations under the contract.”2 The order of specific performance is applicable to the sale of houses as well, depending of the circumstances of each case. What principles should be considered then? As provided in the Court of Appeal case of NDOLEY v. IDDRISU [1979] GLR 559-565, “(1) The courts would not decree specific performance of a contract of sale in the absence of matters on which certainty was vital, namely, (i) the subject- matter, (ii) the price, (iii) the parties to the contract and (iv) the other material terms. What other terms were essential must depend on the facts of each particular contract. On the facts of the instant case, the first three requirements had been met. “The only other material terms lacking were the dates of completion and delivery of possession. In such circumstances, the ordinary principle of construction was where no date was fixed for completion, completion was to take place in a reasonable time and vacant possession was to take place on completion.” Consequently, the contract was adjudged certain and enforceable. In the same vein, the subject-matter of this dispute, the price and the parties to the contract have been determined. Further, the only other material terms not determined are the date of completion and delivery of possession. However, plaintiff has paid the full price for the house, as evidenced by exhibits ‘B’ and ‘C’, which documents were signed by defendant himself. Since there has been full payment for an identifiable house and all that is left to be done is the execution of an instrument of transfer to the plaintiff, provided there has been no fraud, duress or unconscionability, the court can enforce the contract. (See DONKOR V ALHASSAN [1987-88] 2 GLR 253-259). 2 BJ da Rocha and CHK Lodoh, Ghana Land Law and Conveyancing, Second Edition, (Dr & L Printing and Publishing Services, 1999 at page 375) 8 On the evidence, there has been no fraud perpetrated on the defendant; the parties entered into the contract freely. It is, therefore, fair to decree specific performance of the contract in favour of plaintiff for the sale of the property, the subject matter of this suit, which is situate at Ashongman-Estates. vi. Whether or not the defendant communicated the breach to plaintiff and to await a refund of monies paid? Defendant’s evidence is that the breach by plaintiff was communicated to him, thus Exhibit SD 4. Exhibit SD 4 is a writ of summons issued in the District Magistrate Court, Madina. The writ was instituted by Sammy Dey of Madina and Francis Andoh, whose residential address is 410 Clarkesvilei Road Princeton Junc. JN 08550-1504 New Jersey USA. The particulars of claim, amongst others is for an order to refund defendant’s money to him for breach of contract or in the alternative the property be revalued for the defendant to pay the difference. This writ was issued on 21st October, 2022 but no evidence was provided to indicate that the defendant, being the plaintiff herein, had been served with the writ or had knowledge of the writ in any way, not even through his attorney. The cross- examination of plaintiff’s attorney in this regard confirmed same as follows; “Q: You agree with me that there is no document before this Court evidencing the cancellation of the contract for the sale of the property. Not so? A: Yes my Lady. I took the matter to the Madina Court and the summons has been filed in this Court. Q: I am putting it to you that the writ of summons was never served on Defendant therein. A: My Lady, I sent money for service and I was informed that Defendant had been served. Q: You agree with me that there is no evidence before this Court that Defendant had been served. A: Yes my Lady, but I was informed by the Court that he had been served.” Defendant, thus, cannot rely on this writ as having communicated any breach to plaintiff. 9 vii. Whether or not the defendant informed the plaintiff of someone coming to occupy the property, the subject matter of dispute, due to plaintiff’s breach in the agreed instalment payment plan? As previously determined, defendant has not been able to prove to the court that there was an agreement that plaintiff should pay for the property within a three- month period, which plaintiff had breached. Defendant’s evidence is that plaintiff breached the terms of payment and he informed him about the termination of the contract. In addition, he informed him that he was going to rent out the property and asked him to stop any further payments. However, his evidence does not portray when the communication to rent out the property was given to plaintiff. I therefore find that the defendant did not inform the plaintiff of someone coming to occupy the property and that the plaintiff only got this information from the defendant when he demanded vacant possession of the property. DECISION On the totality of the evidence, I hold that there was a contract between the plaintiff and defendant in respect of the sale of defendant’s 4-bedroom apartment, being property situate at Ashongman Estates, Accra in the Greater Accra Region, known as house number EB 210 Social Street-GE-061-2163, in respect of which defendant defaulted. Plaintiff having fulfilled his part of the contract, he is entitled to the reliefs being sought as follows; i. An order for specific performance of the contract for sale of property as described above and I hereby order same. Consequently, defendant is to give vacant possession of the property to plaintiff not later than 8th May, 2024. ii. An order is also directed at defendant to prepare and execute the transfer document(s) in favour of the plaintiff not later than 8th May, 2024. iii. General Damages of Twenty Thousand Cedis (GH¢20,000.00) is awarded in favour of plaintiff. iv. Cost of Ten Thousand Ghana Cedis (GH¢10,000.00) is also awarded in favour of plaintiff. Defendant’s counterclaim thus fails. Her Honour Mawusi Bedjrah Circuit Court Judge 10