Nyantei v Sumaila and Another (A1/55/22) [2025] GHADC 145 (26 May 2025)

CORAM: IN THE DISTRICT COURT ‘B’ HELD AT AMASAMAN ON MONDAY 26th MAY, 2025 BEFORE HER WORSHIP ANNETTE SOPHIA ESSEL (MRS.) SITTING AS MAGISTRATE SUIT NO. A1/55/22 WILLIAM NYANTEI PLAINTIFF VRS 1. SUMAILA MOHAMMED DEFENDANTS KOTOKU 2. RUKAYA SUMAILA KOTOKU JUDGMENT In the case of Middlestone v Brown [1878] 38 L.T 334 at 335 JESSEL MR. stated that: “It appears to me a matter of the utmost importance that the court should keep ... to their bargains when fairly entered into” INTRODUCTION: On 26th January, 2023 the plaintiff hauled the defendants before this court seeking the following reliefs: 1. Declaration of title to all that piece of land situate, lying and being at Abensu – Accra with a four (4) bedroom uncompleted building thereon. 2. An order for possession. 3. Perpetual injunction restraining Defendants, their assigns, workmen, agents, successors, from interfering with Plaintiff’s use and possession of the land and the building thereon. 1 4. Payment of GH¢ 3,500.00 being cost of 700 pieces of 5 inches blocks. 5. Payment of GH¢ 990.00 being cost of 180 pieces of 6 inches blocks. 6. Payment of GH¢ 2,500.00 being cost of a trip of quarry dust. 7. Payment of GH¢ 3,400.00 being cost of the block factory shed. 8. Payment of Gh¢ 13,000.00 being cost of the block making machine. 9. Payment of damages for demolishing of Plaintiff’s properties on the land. 10. Payment for loss of income from the block factory operation from time of encroachment by Defendant to date of judgement. 11. Damages for breach of contract. 12. Damages for trespass. 13. Cost. Plaintiff is a resident of Ga- Odumase and a pastor by occupation. The defendants are man and wife resident at Kotoku. The subject matter in this suit is an uncompleted four- bedroom house situate and lying at Abensu –Pokuase in the Ga West District of the Greater -Accra Region of the Republic of Ghana. CASE OF THE PLAINTIFF: It is the case of the plaintiff that he is the owner of a four (4) bedroom house at Abensu- Pokuase. He claims that whilst prospecting for buyers for the above-mentioned property, in the year February, 2022 he negotiated and entered into a contract with the defendants for the sale of same. This property was under construction and had reached the gable stage. Parties agreed that the selling price of the subject matter was Eighty Thousand Cedis (GH¢ 80,000.00) only out of which Defendants made an initial deposit of Twenty Thousand Cedis (GH¢ 20,000.00) only with an outstanding balance of Sixty Thousand Cedis (GH¢ 60,000.00) only to be paid at a date agreed mutually between parties. A contract of sale was duly executed between parties on 18th February, 2022 in this regard. It was further agreed that the outstanding amount be paid with three (3) months that is May, 2022. 2 Plaintiff avers that Defendants failed to pay the outstanding amount at the stipulated period. He claims that despite repeated demands the defendants failed to honour their part of the contract. Plaintiff says that for this reason he made effort to refund to the defendants their initial deposit money of Twenty Thousand Cedis (GH¢ 20,000.00) only but met their fierce resistance on this part also as Defendants refused to collect same. Much to the plaintiff’s chagrin, in July, 2022 in the company of armed land guards, the defendants entered upon the plaintiff property and started demolishing parts of same without his consent. Plaintiff avers that as that time, he actively operated a block factory on which he has deposited cement blocks of various sizes and quantities, with quarry sand which same were not spared by the defendants as he appropriated all for his sole benefit. The plaintiff concluded that the defendants have not only breached their obligations under the agreement but also taken possession of his property and changing the nature of same at a fast rate for their benefits hence the commencement of this action and the reliefs aforementioned. In support of his averments Plaintiff tendered the following exhibits without objection during trial: i. Exhibit ‘A’: Indenture with site plan covering the subject matter of this suit. ii. Exhibit ‘B’: Copy of the photograph of the subject matter of this suit. iii. Exhibit ‘C’: Copy of contract of sale between parties of this suit. iv. Exhibit ‘D’: Copies of images of demolished parts of the property in dispute. CASE OF THE DEFENDANTS: The 1st defendant testified for Defendants. He did not deny the cost of the property and the contract of sale in existence between parties. He however contended that in March, 2022; one clear month after paying the initial deposit sum for the property in dispute, he called Plaintiff to inform him of his intention of clearing his outstanding indebtedness by paying off in full the outstanding balance of Sixty Thousand Cedis (GH¢ 60,000.00) only to be informed by Plaintiff that the property was no longer up for sale. Defendants state that all attempts to compel the plaintiff to collect his money proved futile. 1st defendant added that he went as far as pleading 3 with the Chief of Abensu to compel the plaintiff to allow him to settle his indebtedness to him for the property in dispute. 1st Defendant claimed that on several occasions, the chief called for the plaintiff and yet the Plaintiff failed to honour the invitation of the Chief of Abensu. 1st defendant testified under oath that on a later date, Plaintiff proposed and offered to swap the property in dispute with another property for Defendants which same he refused. Defendants concluded that he subsequently demanded a refund of his initial deposit sum for the property in dispute and yet after a month of waiting for Plaintiff to refund same fee of Twenty Thousand Cedis (GH¢20,000.00) only he failed to honour same. The 1st Defendant stated that he consequently moved into the property and commenced development of same as he was ever ready to pay the outstanding money to the plaintiff whenever he showed up and was willing to receive same. Defendant maintained that he was not oblivious of his indebtedness to the plaintiff, yet the plaintiff was adamant in allowing him to settle same. ISSUES FOR DETERMINATION BY THE COURT: At the close of Hearing the court has been called upon to resolve the following issues: a. Whether or not the defendants breached the contract with the plaintiff. b. Whether or not the plaintiff is entitled to the reliefs he is praying for. BURDEN OF PROOF: The rules of evidence regarding the burden of proof in civil cases are set out by the Evidence Act, 1975 (NRCD 323) to establish who bears the burden of proof of the issues in this case. In the case of Majolagbe v Larbi [1959] GLR 190, Ollennu J (as he then was) noted that: “Proof in law is the establishment of a fact by proper legal means, in other words, the establishment of an averment by admissible evidence.” 4 The law is that a person who institutes an action against another bears the burden of proving his case. The burden of proof as known in the law of evidence is stated in terms of the burden of persuasion and the evidential burden. This was reiterated by Dr. Date Bah JSC. in the case of Sumaila Bielbiel v. Adamu Dramani & AG (NO.3), [2012] 1 SCGLR 370 in the following words; “.... There are two kinds of burden of proof recognized by the common law and which are preserved in Ghanaian law by the Evidence Act. In common law, some cases and text writers have made the distinction between the “legal burden of proof” and “evidential burden of proof”. This distinction is mirrored in the Evidence Act as the ‘burden of persuasion” and “burden of producing evidence....” The burden of producing evidence, also known as the evidential burden is defined in Section 11(1) of the Evidence Act, 1975 (NRCD 323) as follows: 1. For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. In addition, Section 17(1) of the Evidence Act, NRCD 323 provides that: “The burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof, except otherwise provided by law.” The persuasive burden/burden of persuasion on the other hand, is defined in Section 10(1) of the Evidence Act, 1975 (NRCD 323) as: “the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court.” The burden of persuasion is the obligation imposed on a party by a rule of law to prove (or disprove) a fact in issue to the requisite standard of proof. Thus, a party who fails to discharge a persuasion burden placed on him to the requisite standard of proof will lose on the issue in question. In the case of Adwubeng v Domefeh [1997-98] 1 GLR 282 the court held that that the standard of proof amounting to discharge of the burden of persuasion in civil cases is on the 5 preponderance of probabilities. This is the essence of Section 10(2) of the Evidence Act,1975 (NRCD 323), which is to the effect that; “the burden of persuasion may require a party to establish the existence or non-existence of a fact by preponderance of the probabilities. As a general rule a party who asserts a claim or defence bears the burden of persuasion on its existence or non-existence as stated in Section 14 of the Evidence Act, 1975 (NRCD 323). This section supra also re-states the general rule that the degree of proof normally required to satisfy the burden of persuasion in civil actions is proof by a preponderance of the probabilities. Section 11(4) of the Evidence Act, 1975 (NRCD 323) then provides that the burden of producing evidence, also known as the “the evidentiary burden”, demands of a party the production of adequate evidence that would convince a reasonable mind that “the existence of the fact was more probable than its non-existence.” Section 12 of the Evidence Act, 1975 (NRCD 323) then goes on to provide as follows; (1). “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. Thus, in the case of GIHOC Refrigeration & Household v. Jean Hanna Assi [2005-2006] SCGLR 458, the Supreme Court held at page 485 as follows: “Since the enactment of NRCD 323, therefore, except otherwise specified by statue, the standard of proof (the burden of persuasion) in all civil matters is by a preponderance of the probabilities based on a determination of whether or not the party with the burden of producing evidence on the issue has, on all the evidence, satisfied the judge of the probable existence of the fact in issue......” In both civil and criminal proceedings, the general rule is that the party bearing the persuasive burden will also bear evidential burden. Thus, where a party has an evidential burden, it may be satisfied either by adducing himself or by eliciting evidence from the witnesses of his 6 adversary. In his book, Essential of the Ghana Law of Evidence, the learned jurist S.A Brobbey says of the burden of proof that: “It is the burden on a party to establish from evidence led the requisite degree of belief in the mind of the trier of fact. In other words, a party will not succeed on his claim unless he has led evidence to establish the claim or its basis.” THE COURT’S EVALUATION OF THE EVIDENCE: The main legislation governing the law of contract in this jurisdiction is the Contract Act, 1960 (Act 25). It is trite learning that breach of contract is a civil wrong and a cause of action arises when it occurs, thus an aggrieved party may commence legal proceedings. It occurs when a binding contract is not honoured by one or more of the parties to the contract by non- performance or interference with the other party’s performance. Basically, it occurs when a party to a contract fails to fulfil its obligations. Under the law of Contract, a cause of action for breach of contract or for one to establish that a breach has occurred firstly there must be an existing contract between parties, there must be a performance by the Plaintiff, there must be an unjustified non-performance or failure to perform on the part of the Defendant, resulting damages must have occurred to affect the Plaintiff in a negative way. The Plaintiff attached Exhibits A to D series in support of his averments which showed that the defendant owed him Sixty Thousand Cedis (GH¢ 60, 000.00) only. The Plaintiff led evidence in support of same. He testified under oath that the defendant refused to bring the money despite his several demands. In the wise words of Wuaku JSC. in the case of In Re Krah (Decd); Yankyeraah and Others v Osei Tutu and Another [1989-90] 1 GLR 638 he stated that: “there is no principle of law that the plaintiff in a civil suit to succeed must make a cast iron case, and the defendant can say anything and get away with it whether true or false.” In the case of Lamptey alias Nkpa v Fanyie [1989-90] 1 GLR 286 the Supreme Court spoke through Adade JSC. and he had this to say about the burden of proof shifting: 7 “first on general principles it the duty of a plaintiff to prove his case; he must prove what he alleges. However, when on a particular issue he leads evidence, then the burden shifts to the defendant to lead sufficient evidence to tip the scales in his favour. If he is able to do this he wins; if not he loses on that issue.” The defendant has not denied owing the plaintiff the outstanding balance. He contends vehemently however that he informed the plaintiff in March, 2022 that the money in full satisfaction of his indebtedness was ready for payment, but the plaintiff refused to collect same because his wife had advised him to renege on his part of the contract. Evidence led in this court indicates that the default continued for four (4) months, during which period the defendant tried to compel the plaintiff to take his balance or refund his initial deposit. The court enquired that if indeed the plaintiff refused to collect the money, what efforts did the Defendant make to send the money to him through other means? In the decided case of Essoun v Boham, Civil Appeal No.54/1/2014 [2014] GHASC 156 dated 21st May 2014, the Supreme Court, speaking through Anin Yeboah (as he then was) stated as follows: "It is a cardinal rule of evidence that he who bears the burden of proof must prove his case by producing the required evidence of the facts in issue.” The Defendant testified that in March, 2022 he reached out the plaintiff to make good his obligation under the contract and it was then that the plaintiff told him of his “new decision”. Not satisfied with that update, he approached the Chief of Abensu to intervene on his behalf for which reason the chief invited the plaintiff on several occasions for discussions on this issue which same the plaintiff never honoured. Defendant added that he subsequently also gave the plaintiff sufficient time of one month to refund his money which same the plaintiff failed to do. It is trite learning that a valid contract creates obligations which same are enforceable. The position of the law is that a breach of fundamental terms of a contract is a ground upon which a contract may be terminated. The injured party is entitled to rescind the contract and sue for damages. Sections 1(1) (2), 8 and 16(3) of the Sale of Goods Act, 1967 (Act 137) provides that: 8 1. “Contract of Sale: 1. A contract of sale of goods is a contract by which the seller agrees to transfer the property in the goods to the buyer for a consideration called the price, consisting wholly or partly of money. 2. Contract of sale, how made Subject to this Act and subject to any other enactment, a contract of sale of goods (a) may be made in writing or by word of mouth, or partly in writing and partly by word of mouth, or (b) may be implied from the conduct of the parties. 8. Fundamental obligation of the seller (1) In a sale of specific goods, the fundamental obligation of the seller is to deliver those goods to the buyer. 16(3) The parties to a contract of sale may, whether with or without consideration, agree that delivery of the goods shall be made at a date or time other than that stipulated for in the contract, and in this event, the seller is bound to deliver and the buyer is bound to accept delivery of the goods, at that date or time unless the parties agree to a further change.” On the totality of evidence before the court, it is manifestly evident on the record that the defendant has not failed to comply with the terms of the contract. The court consequently holds that the defendant did not breach the contract between parties. The court finds fortitude in its position in the case of Combe v Combe [1951] 2 KB 215 Denning L.J. held that: “Where one party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the one who gave the promise or assurance cannot afterwards be allowed to revert to the previous legal relations as if no such promise or assurance had been made by him. ..” Having established that there was no breach of the contract by the defendants, the court would now determine whether the Plaintiff is entitled to the reliefs he seeks. It is provided in Sections 53 and 58 (1) (2) of the Sale of Goods Act, 1967 (Act 137) that: 9 “53. Damages for non-delivery The buyer may maintain an action against the seller for damages for non-delivery, (a) where the seller wrongfully neglects or refuses to deliver the goods to the buyer, in accordance with the term of the contract, or 58. Specific performance (1) In an action for breach of contract to deliver specific or ascertained goods, the Court may by its judgment direct that the contract should be specifically performed without giving the seller the option of retaining the goods on payment of damages. (2) The judgment may be unconditional or on the terms as to damages, costs and otherwise that the Court thinks fit.” Evidence led in this court indicates that the Defendant was supposed to pay Sixty Thousand Cedis (GHC 60,000) only to the Plaintiff. I would therefore order that the Plaintiff is therefore entitled to the Sixty Thousand Cedis (GHC 60,000) the Defendant owes him. The defendants are ordered to pay this amount forthwith to the plaintiff. Upon payment Plaintiff is ordered to transfer legal title in same to the defendants. Cost of this transfer of title documentation is to be borne by the defendants. With respect to the damage caused to the chattel of the plaintiff on the property in dispute, I can safely land that the plaintiff failed to lead cogent and credible evidence in support of same. Section 1 (3) of the Evidence Act, 1975 (N.R.C.D 323) stipulates that: “The determination of whether a party has met the burden of producing evidence on a particular issue is a question of law to be determined by the court. In the case of Zabrama v Segbedzi [1991] 2 GLR 221 @ 224 the apex court speaking through Adinyira JSC (Mrs.) stated that: “a person who makes an averment or assertion which is denied by his opponent, has the burden to establish that his averment is true. And he does not discharge this burden unless 10 he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred.” The plaintiff’s claim consequently must fail and same is accordingly refused by the court. The plaintiff is therefore not entitled to any of his reliefs. DISPOSITION: For all the reasons I have set out in this judgment the plaintiff’s action fails, in its entirety and I accordingly DISMISS same. Judgement is entered in favour of the Defendants against the Plaintiff. The defendants are hereby ordered to pay into court the sum of Sixty Thousand Cedis (GHC 60,000.00) only forthwith for collection by the plaintiff within fourteen (14) days of this order. Upon payment, Plaintiff is ordered to transfer legal title in same to the defendants. Cost of this transfer of the property in dispute title documentation is to be borne by the defendants In terms of Cost, I hereby order the plaintiff to pay the defendants Five Hundred Cedis (GH¢ 500.00) only. (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE 11