Boham and Others v Akorli (A11/16/2022) [2025] GHADC 207 (6 May 2025)

IN THE DISTRICT MAGISTRATE COURT HELD AT GBESE, ACCRA BEFORE HER WORSHIP ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS.) ON TUESDAY THE 6TH DAY OF MAY, 2025. ------------------------------------------------------------------------------------------------------------ SUIT NO: A11/16/2022 1. NANA ESI BOHAM ::: PLAINTIFFS 2. RITA BOHAM 3. EBO ASIEDU VRS. PHILIP AKORLI ::: DEFENDANT ------------------------------------------------------------------------------------------------------------ Time: 8:30 am. Parties: 2nd and 3rd Plaintiffs present. Defendant present. No Legal Representation. ------------------------------------------------------------------------------------------------------------ JUDGMENT ------------------------------------------------------------------------------------------------------------ By a Writ of Summons dated 16th December, 2021 the Plaintiffs herein invoked the jurisdiction of this Court for the following reliefs: 1 a. Declaration that the Defendant has breached the contract by dishonestly accepting the contract knowing he was incapable of completing the work due to his disability and using inferior materials and wrong measurements agreed in the initial agreement. b. That the Defendant be ordered for a specific performance according to the agreement made between himself and the Plaintiffs. c. Costs d. Any other reliefs that this Honourable Court may deem fit. The Defendant herein filed a Statement of Defence on 20th January, 2022, but was ordered by the Court to amend same on 28th April, 2022. The Defendant subsequently filed his Amended Pleadings on 11th August, 2022. THE CASE OF THE PLAINTIFFS The Plaintiffs are Ghanaians living at West Legon and the Defendant is a carpenter. On 15th January, 2019 the 1st Plaintiff contracted the Defendant to make kitchen cabinets and the parties upon the conclusion of negotiations agreed that the price will be GH¢18,000.00. The parties further agreed that the wood to be used will be “sh3dua”. The Defendant demanded and Plaintiffs paid GH¢9,000.00 as down payment with the remainder to be paid upon completion of the job. Within August 2019, the 2nd Plaintiff made two separate payments of GH¢5,000.00 and GH¢4,000.00 to the Defendant. 1st Plaintiff travelled outside the country for three months but was reassured by Defendant that the cabinets will be completed by December 2019. On 1st Plaintiff’s return, she called for the delivery of the cabinets but Defendant claimed to have completed the wood work and needed to purchase the marble top therefore an additional GH¢5,000.00 was needed. 2nd Plaintiff obliged in an attempt to facilitate the work easily, made additional payment of GH¢4,000.00 for the purchase of the marble top. Defendant bolted after receipt of the GH¢4,000.00. All attempts to reach the Defendant proved futile as he would not answer phone calls from the Plaintiffs. Plaintiffs went to the shop only to discover that Defendant does not own the said shop neither does he work there and that he is only known as a 2 carpenter who visits the shop periodically. 1st Plaintiff left Ghana for DR Congo after several failed attempts to reach the Defendant. Upon reaching DR Congo, the 1st Plaintiff called the Defendant which he answered because it was a foreign number. The Defendant then assured 1st Plaintiff that he was only left with some finishing touches to complete the job. Within the month of May 2021, the Plaintiffs went to the workshop where they met the Defendant and the Defendant showed them the work done so far. Plaintiffs realized that the Defendant had used inferior plywood contrary to the "Sh3dwa" wood which was agreed. Defendant agreed to change the wood upon complains from the 1st Plaintiff. The Defendant together with one Steven delivered the cabinets which were still not complete and still with the plywood. Defendant also demanded that the Plaintiffs pay the cost of transporting the unfinished cabinet. Plaintiffs being unhappy with the work demanded that the Defendant return the unfinished cabinets and use the right wood which was agreed upon. Defendant refused to return the goods and left. Three days later, the Plaintiffs returned the cabinets to the workshop of the Defendant at a cost of GH¢200.00 which was paid by the 1st Plaintiff. The Plaintiffs met Steven who helped the Defendant to deliver the good at the shop who revealed to the Plaintiffs that he was the one who made the cabinets and that the Defendant was disabled and could not have possibly worked on the cabinets. Defendant dishonestly presented himself as a carpenter who could make cabinets when he knew he was disabled and could not handle tools. Steven informed the Plaintiffs that he worked with the measurements which was given to him by the Defendant. The measurement used by Steven were not the same as the area of the kitchen as given to the Defendant however, the right measurements were given to the Defendant. Plaintiffs then asked Steven to do a proper estimate for the cabinets as specified in the earlier agreement with the Defendant which Steven agreed to do. Hearing that the Plaintiffs had spoken to Steven, the Defendant threatened Steven and asked him never to speak to the Plaintiffs again because the contract belongs to him. In April, 2021, the Plaintiffs reported the matter to the Adabraka Police Station as the Defendant had neither completed the work nor refunded monies paid to him by the Plaintiffs. The Defendant was arrested by the Police after which the Police together with the Plaintiffs tried to resolve the matter by giving the Defendant an option to either complete the work as specified in the initial agreement or refund all monies paid him. He was also given the 3 option of allowing Steven to complete the job. Defendant refused to accept all options given him and demanded that the remaining balance of the initial contract be given to him. The Plaintiffs say that they only awarded the contract for the manufacture, supply and installation of the kitchen cabinets and marble top based on representations made to them by the Defendant that he was a practising carpenter who owned Phidacom Furniture/Construction. The Plaintiffs say that subsequent to this, when the Defendant breached the terms of the contract executed between the parties, they found out, when they visited his supposed work premises, that it was not Phidacom Furniture/Construction, but rather Ganyo Furniture; and also, that the Defendant does not work there; neither does he have an interest in the business. The Plaintiffs say that the Defendant represented to them that he owned and operated Phidacom Furniture/Construction, but unbeknownst to them Phidacom has been defunct for a very long time. The Plaintiffs say that the Defendant's modus operandi was to take jobs under the guise of and in the name of Phidacom Furniture/Construction and take the job to Ganyo Furniture for the actual work to be done. The Plaintiffs say that is why the Defendant issued a receipt in the name of Phidacom, but actually got Steven, who works at/for Ganyo Funiture, to do the work necessary. The Plaintiffs say that the Defendant, before the Commencement of the manufacture and Installation, was given access to their residential property to take all measurements in pursuance of the performance of the contract. The Plaintiffs say that the Defendant took his first measurements in January, 2019 and another one in July, 2020. The Plaintiffs say that the first measurements came with a proforma invoice of GH¢15,557.00 whereas the second one was GH¢18,020.00. The Plaintiffs say that they insisted on a second proforma invoice being prepared as a result of their understanding and knowledge that prices may have increased as a result of the general inflationary pressures on prices of goods and services. The Plaintiffs say that indeed, the increase from GH¢15,557.00 to GH¢18,020.00 vindicates their insistence. The Plaintiffs say that the parties agreed that an initial payment of GH¢9,000.00 be advanced to the Defendant, with the remainder of GH¢9,000.00 to be paid upon his completion and installation of the kitchen cabinets and marble top. The Plaintiffs say that they complied 4 with the terms of the contract and went further to pay an extra GH¢4,000.00, bringing the total payment to GH¢13,000.00. The Plaintiffs say that this extra payment was made in order to facilitate the expeditious performance of the contract and forestall any excuses that may delay the manufacturing and installation of the kitchen cabinets. Despite all these, the Defendant, when he supplied the kitchen cabinets, he failed to do so according to the specifications agreed upon in the contract. The Defendant was obligated and contracted to use the wood Species known as "hyedua" in the manufacture of the cabinets, however when he Supplied them, Plaintiffs noticed he had used ordinary plywood for most of the job instead. Contrary to the reason why he demanded and was paid the extra GH¢4,000.00, the Defendant failed to supply the marble top together with the cabinets. Defendant was not the person who manufactured the cabinets but rather sublet the contract to Stephen known as an employee of Ganyo. At no time during the negotiations and discussions leading to the award of the contract did Defendant disclose that he was going to sublet or sub-contract the works to a third party because of his disability which he hid at the initial stage of the contract. Defendant as such misrepresented the following: The Defendant created the impression that he owned and worked at Ganyo Furniture/Construction, when indeed, according to Mr. Ganyo, the owner, Defendant neither owns nor works there. The Defendant represents to persons that he operates under Phidacom Furniture/Construction when in fact, it is defunct and then proceeds to use the tools, equipment and human resource of Ganyo Furniture to complete jobs he secures. The Defendant failed to disclose, before the award of the contract to him, that he was under a disability and incapacity, making it impossible for him to personally undertake or perform his side of the contract. After receiving the GH¢13,000.00, the Defendant refused to answer the calls of the Plaintiffs and delayed the manufacture, supply and installation of the cabinets and marble tops until Plaintiffs had to visit the premises of Ganyo Furniture and enquire of him, whereupon they were told he does not work or own the business. The Defendant sublet/subcontracted the agreement to a certain Stephen who works at Ganyo Furniture. The Defendant falsely persuaded the Plaintiffs to provide an additional GH¢4000.00 so he could supply the marble top together with the cabinets, but upon delivery declined to provide the marble top. Defendant has failed, neglected and refused to manufacture and install the full complement of the kitchen 5 cabinets and has since failed to install the remainder. Upon the original terms of the contract, all the Defendant needed to manufacture and install the full and complete set of the kitchen cabinets, including the marble top, was GH¢9,000.00, however, despite the extra effort the Plaintiffs have made by providing GH¢13,200.00, he has not met or performed his side of the contract. The Plaintiffs say that when it came to their knowledge that it was indeed a certain Stephen who is employed at Ganyo Furniture who manufactured the cabinets, they entreated the Defendant to allow him (Stephen) to perform the uncompleted part of the contract and that they will pay Stephen to do so, but he the Defendant declined and refused to allow this, threatening him in the process. When Plaintiffs realized the Defendant was unwilling to allow Stephen complete the work, they insisted on the Defendant doing so, but he has also declined and refused to do so rather demanding more money before he completes the work. The police complaints were not dismissed but transferred to the appropriate police stations within the jurisdiction where the Defendant was to perform the contract i.e West Legon. Stephen manufactured the incomplete set only because the specifications and measurements provided to him by the Defendant were incorrect and erroneous. Considering the initial delay on the part of the Defendant in manufacturing, supplying and installing the cabinets, any extra delay will cause, and indeed has already caused them immense inconvenience and hardship. Plaintiffs have been denied the use and benefit of the kitchen cabinet and marble top since the year 2020, rather having resorted to cooking in the backyard of their residence at West Legon. The present cost of completing the kitchen cabinets has increased above and beyond the remaining GH¢4,800.00 due under the initial contract. Defendant's actions amount to a breach of the material terms of the contract executed by the parties prior to the award of the contract. Defendants prayer the Writ be dismissed is without merit and same is baseless and ought to be disregarded. THE CASE OF THE DEFENDANT It is Defendant’s case that the Plaintiffs made some payments as follows: 31st October, 2020 -GH¢5,000.00, 4th November, 2020 - GH¢4,000.00 and 24th November, 2020 - GH¢4,000.00 totalling GH¢13,000.00. The Plaintiffs chose the design and wood on 19th October, 2020. The invoice for the work was dated 15th January, 2019 but Plaintiffs did 6 not make the financial commitment necessary for the commencement of the job until 31st October, 2020; thus, there was a renegotiation of the Contract sum which worked up to GH¢18,000.00. The agreed "shedua" was used as well as the measurements as agreed which were stated in feet on the invoice dated 15th January, 2019 for the job. It was after 1 year and 9 months after the invoice was issued to Plaintiffs that they came for the work to commence, hence the renegotiation of the Contract sum. Upon completion of the job on 12th December, 2020 and delivery to Plaintiffs' house for installation and 2 days later, Defendant together with several workers went to the house to install them. At this stage the 1st and 2nd Plaintiffs rejected the whole job saying that Defendant had used plywood for the work which was unacceptable. Defendant insists that it was "shedua" which had been sliced into plywood size that had been used for the job. After the rejection Defendant brought the cabinets back to the workshop where they were kept. On 25th January, 2021, 1st Plaintiff went to Defendant’s shop to complain and so a meeting was arranged for 26th January, 2021 to thrash out the matter. It was agreed that Plaintiffs should conduct their own investigation from other shops to find out what goes into making kitchen cabinet as far as materials are concerned. On 17th March 2021, the Plaintiffs came to the shop and said they had accepted the product and asked that Defendant re-spray the cabinets which he did and Plaintiffs thereafter were called to inspect the said cabinets which they did. After this they asked Defendant to install them which l conveyed to the house for installation. Before the said installation, Plaintiffs engaged another carpenter to install them, who could not do it properly. Defendant was then called back by the Plaintiffs to install them which was done with the help of Defendant’s workers. Plaintiffs, after the installation caused the Defendant’s arrest by the Adabraka Police alleging that they had given him money to buy kitchen workshop but had disappeared with their money. The Police, after their investigation dismissed the case and they went to Kwabenya Police to make the same complaint which was also dismissed. Dissatisfied, Plaintiffs reported the matter to Taifa Police Station and the complaint was dismissed. Plaintiffs went to the Police Headquarters Accra to make the same complaint whereby they were advised to file a civil suit if they felt they had a case against Defendant. 7 Defendant states that he went to take measurements and prepared an estimate on 15th January, 2019. The cost was put at GH¢15,156.00. Plaintiffs travelled without making payment for the work to commence and came back on 15th October, 2020. At that time, prices for materials had changed and so parties had to negotiate for a new price for the cabinet which was agreed at GH¢18,000.00. They requested that he use Hyedua Wood and the design of the kitchen cabinet was chosen by Plaintiffs communicated via WhatsApp on 19th October 2020. Defendant demanded an advance payment of GH¢10,000.00 to enable me start the job with the understanding that anytime additional money was needed he could ask them. They first paid GH¢5,000.00 on 31st October, 2020 and GH¢4,000.00 on 4th November, 2020 and another GH¢4,000.00 on 24th November, 2020. The kitchen cabinet was supplied to them on 12th December, 2020 and on the 14th December, Defendant went to Plaintiffs' house with his workers to do the installation. While installing the cabinet, 2nd Plaintiff suddenly came with her daughter to challenge us that plywood is never used to construct kitchen cabinets and she quickly called 1st Plaintiff, who was then not in the country on phone and they rejected the job based on their claim. No explanation could convince them and so the cabinets were returned to the workshop. On 25th January, 2021, 1st Plaintiff came to the workshop to complain that Defendant had defrauded her for having taken money from her without doing the job. After some discussion and their investigation, Plaintiffs accepted the materials used for the job and accepted the job on 17th March, 2021. Defendant re-sprayed the cabinet and Plaintiffs inspected them and he was asked to install them. The cabinets were conveyed to the house for installation. Before Defendant could install them, Plaintiffs engaged another carpenter to install them, who could not do it properly. Plaintiffs then resorted to Defendant to install them which together with Defendant’s workers was done. After the installation, Plaintiffs caused Defendant’s arrest by the Adabraka Police alleging that they had given him money to buy kitchen work top but had disappeared with their money. The Police after their investigation dismissed the case and Plaintiffs went to Kwabenya Police to make the same complaint which was also dismissed. Not satisfied, Plaintiffs reported the matter to Taifa Police Station and the complaint was dismissed. Plaintiffs went to the Police Headquarters, Accra to make the same but were advised to file a civil suit if they felt they have a case against Defendant. 8 ISSUES 1. Whether or not the 2nd Plaintiff has capacity to institute this action. 2. Whether or not there the Defendant has breached the contract by: a. dishonestly accepting the contract knowing he was incapable of completing the work due to his disability and; b. using inferior materials and wrong measurements agreed in the initial agreement. 3. Whether or not an order for specific performance according to the agreement made between himself and the Plaintiffs will lie. THE LAW The Burden and Persuasion of Proof Evidence Act 1975 (N.R.C.D. 323) In examining the case put forward by the parties, the court must be circumspect and deal with facts as well as the evidence adduced and most importantly the law. The law that this court will be instructed by are as follows: Section 10 (1) 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 of fact or the Court. (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Section 11 (1) For the purposes 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. 9 (4) In other circumstances the burden of producing evidence requires a party to produce 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. Section 12 1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) "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. Section 15 Unless it is shifted, (a) the party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue; Section 17 Except as otherwise provided by law, (a) 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; (b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact. In the case of Mojolagbe v. Larbi and Ors (1959) GLR 190, which found favour in the case of Ackah v Pergah Transport Ltd supra the court held as follows: “Proof, in law, is the establishment of fact by proper legal means; in other words, the establishment of an averment by admissible evidence. Where a party makes an averment, and his averment is denied, he is unlikely to be held by the Court to have sufficiently proved that averment by his merely going into the witness-box, and repeating the averment on oath, if he does not adduce that corroborative evidence which (if his averment be true) is certain to exist. … “Proof in law is the establishment of facts by 10 proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.” …Therefore, the role of a trial judge “in a civil matter is to determine from the evidence available which of the parties adduced credible and sufficient evidence to tilt in his favour the balance of probabilities on an issue.” (my emphasis) In applying the above statute and case, in Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held: “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 short of which his claim may fail. The method of producing evidence is varied and 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 a 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.” The Contracts Act 1960 (Act 25) outlines the principles of contract law in Ghana, including provisions on breach of contract and remedies. Section 5(1) of the Act 25 provides as follows: Provision in Contract for Benefit of Third Party. (1) Any provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to the provisions of this Part, be enforced or relied upon by that person as though he were a party to the contract. 11 ANALYSIS Issue 1 Before delving into the issues arising from the suit itself, a preliminary issue was raised by the Defendant during cross examination of the 2nd Plaintiff on her capacity. The law is that the issue of capacity can be raised at any time. See Standard Bank Offshore Trust Company Limited v. National Investment Bank Limited, Eland International Ghana Limited and Daniel Charles Gyimah (2017) JELR 66934 (SC). A "contract" may be defined as an agreement between two or more parties creating obligations that are enforceable by law. The basic elements of a contract thus include offer, acceptance, consideration, intention to create legal relations, legality, capacity and certainty (see Yaa Antwi v. N.T.H.C. (2009) JELR 65085 (Sc)). Should any of these elements be found wanting in an agreement, the likelihood of a contract not being enforceable is high. The Defendant states that at all material times, the only person he had a contract with was with the 1st Plaintiff. As such the 2nd Plaintiff did not and does not have capacity to institute or maintain this suit. Under cross examination the following ensued: Q: It is your case that you are prosecuting on behalf of 1st and 3rd Plaintiffs not so? A: Yes I am. Q: Do you have any authority from them to act on their behalf? A: Yes I do. Q: Do you have a power of attorney in favour of 1st and 3rd Plaintiff? A: Yes I do. Q: Where is 1st Plaintiff? A: She’s travelled. Q: I put it to you that, so far as this case is concerned, you have no capacity to prosecute on behalf of 1st and 3rd Plaintiffs? A: I do have a Power of Attorney. 12 Q: I am putting it to you that, you have no capacity to mount the instant suit against me either because I have no contract with you. A: I do have. Q: You see I only have a contract with 1st Plaintiff and not you and 3rd Plaintiff not so? A: You have contract with me because I gave you the money. The contract in question per the pleadings of the parties was for the manufacture of cabinets to be installed in the kitchen. Ordinarily, a person who is not a party to a contract cannot sue or be sued under the said contract, see Price v. Easton [1883] 4 B and AD 433 which states that no one may be bound by the terms of a contract to which he is not a party to. In the case of Most Rev. Dr. Robert Aboagye Mensah and 3 Ors v. Yaw Boakye and 3 Ors (2019) JELR 69536 (HC) the High Court held as follows: “Though over the years the privity principle has been received with some reservations and viewed as being out of touch with modern realities of contract law, yet it still remains the determinative factor in contract law. Being a creature of the common law, equity has made a less rigid view of it and there is also an expansion of the scope to which a third party in whose benefit a contract is made can take advantage of it and enforce same under statutory provisions in our Ghanaian law. One of the exceptions to privity principle is in leases between landlord and tenant where certain rights and benefits are conferred by such contract... the exceptions besides the common law are found in sections 5, 6 and 10 of the Contracts Act, Act 25…” Section 5 of the Act 25 supra, is an exception to the general rule especially where the contract made purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons. In this instance from the address alone, the plaintiffs all live at H/No. 9 Kwame Asante Avenue West Legon, Accra. The said cabinets are to be installed in the kitchen in the named address. It therefore stands to reason that the Plaintiffs stand to benefit from the said kitchen cabinets and in my opinion can sue and be sued accordingly. It is my view therefore in this case that though the agreement was concluded between 1st Plaintiff and Defendant, the other members of the household of the 1st Plaintiff stood to benefit from the said contract and 13 therefore the 2nd Plaintiff in particular could institute and maintain this action. That being said there is also evidence that at some point the 2nd Plaintiff directly renegotiated the whole contract with the Defendant and this came up under cross examination as follows: Q: I am putting it to you that, you came in October, 2020 before you invited me to renegotiate the price and choose the design you wanted. I have the Exhibit. A: That is not true. Q: It was in 19th October, 2020 that you confirmed the style in the wood. A: Yes. Considering this therefore, it seems to me that even though at the beginning the contract was between the 1st Plaintiff and Defendant, at some point 2nd Defendant was roped in to determine the style and price which is also material to the contract. There is thus little doubt that the 2nd Plaintiff has capacity. Issue 2 This issue has been broken down into parts for ease of analysis. Now the question is if the contract between the parties has been breached. For a contract to be deemed breached, one party should have failed to perform their contractual obligations, or performed them inadequately, or refused to perform at all. In line with this, many types of breach can occur. In this case the Plaintiffs insist that the Defendant has breached the contract first by misrepresenting facts by way of non-disclosure of his inability to fulfil his part of the contract due to his disability which and secondly by using inferior products for the work. The Defendant on the other hand insists that he was able to fulfil his side of the contract but the Plaintiffs prevented him from completing the work. What then amounts to misrepresentation? In the case of Paul Jacquaye v. Ideal Financial Holdings Ltd (2016) JELR 68253 (HC) a similar situation came up for discussion in which the court discussed the issue of misrepresentation as follows: 14 “Representation according to the Law of Contract by Chesire and Fifoot, 15th Ed at page 332, the learned authors states that: “is a statement of fact by one party to the contract (the representor) to the other (the representee) which while not forming a term of the contract is yet one of the reasons that induces the representee to enter into the contract. So a misrepresentation is simply a representation that is untrue”. The court further cited Dowuona Hammond’s work Contract Law in Ghana as follows: “such a misrepresentation could be a fraudulent, negligent or innocent misrepresentation. And to constitute a misrepresentation it has been noted that the statement must be in relations to existing facts or state of affairs or past state of affairs as mere state of intention or opinion is not enough to establish misrepresentation. See BISSET v. WILKINSON [1927] A.C. 177.” As the Plaintiffs are the one alleging misrepresentation, clearly then, the onus probandi falls on them. A look at the evidence presented by both parties per their evidence in chief and under cross examination is thus critical to determine if indeed there was a breach and who caused the said breach. In the Plaintiffs’ evidence-in-chief speaking through the 2nd plaintiff on behalf of the other Plaintiffs, the Plaintiff stated that the Defendant used Phidacom Furniture/Construction to secure the job which business was defunct however someone from a different company was the one to execute the contract. In addition, Plaintiffs claimed the Defendant created the impression that he owned and worked at Ganyo Furniture/Construction, when indeed, according to Mr. Ganyo, the owner, Defendant neither owns nor works there under cross examination the following ensued: Q: I am putting it to you that, per paragraph 20 of your reply the company is my company? A: You gave the invoice in that name but the one who did the job was a different company. The Defendant in his Evidence in Chief also stated that he did do the work and that during the installation the Plaintiffs stopped him claiming the materials used were inferior. Though he did not directly state that it was his company and his company alone 15 that carried out the work from start to finish, that can be inferred from his averments. Under cross examination the following ensued: Q: You admit that the work in manufacturing and installing the kitchen cabinets was done by you but by Stephen who works at Ganyo Carpentry Services? A: What you are saying is not true. Stephen has his own company and Ganyo too has his own company. We have about 5 companies working there. Q: But on the day of the installation in December, 2020, you came with Stephen to install the cabinet, is that correct? A: Yes, I employed him to work and install the kitchen cabinets. It is not in issue that the Defendant’s business Phidacom Furniture/Construction exists and even if it were, the Defendant presented a copy of his registration details which went unchallenged under cross examination. Following the evidence on record and the various testimonies, I do not think the Plaintiffs have been able to prove that the Defendant’s business was defunct nor have they proved that he operated under Ganyo Furniture. On the issue of the disability, the Plaintiffs also claim that the Defendant failed to disclose that he was under disability and incapacity and therefore, making it impossible for him to personally undertake or perform his side of the contract. This was interrogated under cross examination by Counsel for Plaintiff as follows: Q: You admit that you have a physical deformity that makes it impossible for you to have done the work yourself? A: That is not true because I always work and feed myself and my family. Q: At the time when you came to the house to undertake the measurement did you disclose this physical impairment to the Plaintiffs? A: I did not see the need to tell them anything because I was not wearing a long sleeves it was a T-shirt I was wearing. 16 I find that a bit odd considering that the Defendant’s disability was rather obvious and yet the Plaintiffs still gave him the job. The record shows that the Defendant with Stephen went to the Plaintiffs’ home to complete the installation. Considering that installation cannot be done without manufacture, then logically it can be concluded that some if not all the cabinets had been manufactured. Apart from that, the Defendant himself was present during the attempted installation. The onus was on the Plaintiffs to prove that the said contract was subject to Defendant enforcing his part by himself. The Plaintiffs were also to prove that the Defendant sublet/subcontracted the manufacture of the cabinets to Ganyo furniture. The Plaintiffs, in my opinion did not discharge this burden. On the balance of probabilities, I think Defendant has been able to show that his disability was not only obvious but he was also capable of manufacturing the cabinets. There is, however, a second leg to this breach of contract debacle which is on the use of inferior products and that the cabinets were incomplete. The record shows and all the parties agree that the “hyedua” wood was to be used for the said cabinets. Thus, not using this very specific wood would amount to a breach. The question is would the said breach be of a material nature or a minor breach. In my opinion, this will be a material breach because this formed part of the terms of the contract and an essential one at that. Under cross examination of the 2nd Plaintiff the following ensued: Q: I am putting it to you that, after I supplied the furniture in 2020 you rejected it that I used plywood in the furniture. After we took the furniture back to workshop you inspected everything again and I supplied it to you. A: It wasn’t completed. Q I am putting it to you that per the invoices exhibit that is the total furniture in the invoice supplied to you? A: It was not completed when you supplied uncompleted furniture. Q: Did I force you to take the uncompleted furniture? A: You delivered it, I did not come for it. The Defendant was also cross examined on this issue as follows: 17 Q: In paragraph 11 of your witness statement, you state that the items that you delivered were made up of only plywood is that correct? A: It is not correct. Q: In your statement of defence and witness statement, nowhere did you state that there is anything like Hyedua plywood and other plywood? A: I agree I did not state that. It seems to me that on the whole, the Plaintiffs rejected the Defendant’s work not because he did not use the specified wood as they were willing to have the Defendant install what was crafted anyway regardless of the non-use of the hyedua wood but that the measurements were incorrect. Thus, though there was quite a bit of cross examination of the use or none use of the particular wood agreed upon, it appears to me the Plaintiffs were willing to proceed with the installation of the cabinets regardless of whether or not hyedua was used. The issue now is whether or not the cabinet itself was completed. There is clear evidence that it was not completed as there was supposed to be the addition of the marble top. Under cross examination 2nd Plaintiff stated; Q: I am putting it to you that, after I supplied the furniture in 2020 you rejected it that I used plywood in the furniture. After we took the furniture back to workshop you inspected everything again and I supplied it to you. A: It wasn’t completed. Q I am putting it to you that per the invoices exhibit that is the total furniture in the invoice supplied to you? A: It was not completed when you supplied uncompleted furniture. Q: Did I force you to take the uncompleted furniture? A: You delivered it, I did not come for it. It is also the case of the Plaintiffs that the Defendant took extra money for the marble tops. The Defendant did not deny this assertion neither did he cross examine the Plaintiffs on 18 this. The inclusion of the marble tops is thus deemed admitted to have formed part of the cabinets to be supplied and therefore part of the contract. The Plaintiffs also claim that the Defendant wrongly measured the space for the said cabinets. Under cross examination the following ensued: Q: You were aware that by the time you went to Plaintiffs house to take measurements for the installation and supply of kitchen cabinets you had a professional duty to take the measurements in accordance with normal standards? A: I disagree. The customer determines what he or she wants and that’s what you do. Q: How many years have you been practicing as a carpenter? A: Since 1979. Q: When you went to the kitchen to take the measurement you saw that there had been spaces clearly marked out by previous cabinets that was installed? A: When I went there I took the measurement in front of them they did not tell me anything about a previous installation. Moreover, everybody that orders something you can see that the whole place is there but you may be restricted so there is no standard to determine the measurement. Q: I put it to you that, by your over 40 years practice as a carpenter the spaces you left out as shown in exhibit C series amount to a failure of your professional duty towards the Plaintiffs? A: It is not any failure. I have worked all over, banks institutions etc. and no one has complained. Q: I put it to you that, failure to supply and install the kitchen cabinets to specification caused the Plaintiffs to put their kitchen wares in their garage? A: It is not true. It is the kitchen cabinets that was not installed but the other shelves were there, the kitchen worktop was absent. There is space to pack anything. Q: You will agree with me you took the kitchen cabinets away at the cost of GH¢200.00 because they asked you to go and do the right thing? 19 A: It is true. Q: Because you took the cabinets away, the Plaintiffs obviously did not have the benefit of using them? A: It is true. Q: And it is true that you have not supplied the kitchen cabinets to their specification up to this day? A: I returned them and it is in their house. The Defendant asserts that he did the measurements according to their specifications. The Plaintiffs in support of their position exhibited pictures of spaces that were missing cabinets. The question now is who has the burden to prove that the cabinets were to be measured one way or the other. In my opinion, the Plaintiffs’ pictures which is marked as exhibit c series show that the cabinets in question were to fill a certain area of the kitchen. The Defendant’s denial that the cabinets are done according to the customer’s preference while may be true, in this instance is not quite a true reflection of what the outcome ended up being. It seems to me that the Defendant did not accurately measure the portions in which the cabinets were to be placed and therefore ended up producing an incomplete cabinet set. Defendant is thus liable in this regard. Issue 3 For the award of specific performance, this relief being an equitable one is at the discretion of the court and one which will only be granted if damages will not suffice. In the cases of ERIC ANSONG V. MR. ALBERT GORMAN & ANOR (2010) JELR 68932 (CA) and ERIC ANSONG V. MR. ALBERT GORMAN AND MRS. GORMAN (2011) JELR 68551 (SC) the Court of Appeal and Supreme Court affirmed the decision of the High Court as follows respectively: “For me, the seminal case on the point as regards oral and written contracts is FOFIE v. ZANYO (1992) 2 GLR 475 where the Supreme Court held as follows: "Specific performance was a discretionary and supplementary equitable remedy available to either party to a contract. However, the court would refuse to grant the remedy in circumstances where 20 it would be unjust to grant it. One of the conditions for the grant of specific performance in land cases, as required under Section 4 of the Statute of Frauds, 1677 (29 Cha 2, C.3) as saved by Section 19 of the Contracts Act 1960 (Act 25) and replaced by Section 2(a) of the Conveyancing Decree, 1975 (NRCD 175) was that there had to be a valid contract in writing. However, the court was entitled in certain cases to permit a contract to be proved by oral evidence even though of a kind required to be proved in writing, when the party seeking to enforce the contract had done acts in performance of his obligations under it. The court would exercise its discretion where a. "the act of part performance was referable to only the contract alleged; b. they were such as would render it a fraud in the Defendant to take advantage of the contract not being in writing c. the contract by its own nature was enforceable by the court; and d. there had to be proper parole evidence of the contact let in by the act of part performance." In the same case, the court further held that: "no proceedings in specific performance can be had unless a contract has actually been concluded.” Supreme Court: “It must be noted at this point, that specific performance is an equitable remedy and it is granted at the discretion of the Court. It may be granted especially with regard to sale of landed property, as in the case, because there is no other remedy which puts the Plaintiff in the same position as thought eh contract was performed. However, its trite law that specific performance will not be granted in certain situation: if damages will be an adequate remedy, where there is want of mutuality, where performance requires the Court’s supervision, if it will be pointless to grant it, if the contract cannot be enforced in its entirety, if the order will cause severe hardship to the Defendant and if the Defendant’s personal freedom will be restrained by it. In essence, the Court will only exercise its discretion in grant of specific performance only if it is appropriate in the circumstances of the case to do so.” In this situation, the Plaintiffs were interested from the record in getting someone else to complete the contract. Considering that the Defendant started the work, it will be in order for him to finish it at his cost as well as the installation of same. 21 FINAL ORDERS 1. The Defendant is hereby declared to have breached the contract between himself and the Plaintiffs by not completing and installing the cabinets. 2. The Defendant is ordered to complete and install the cabinets. 3. Costs of GH¢10,000 awarded in favour of Plaintiffs. (SGD) H/W. ANNA AKOSUA APPIAAH GOTTFRIED ANAAFI GYASI (MRS) (DISTRICT MAGISTRATE) 22