Purple Homes Company Limited v Mensah and Another (A2/78/21) [2025] GHADC 167 (16 January 2025)

CORAM: IN THE DISTRICT COURT, ACHIMOTA – ACCRA HELD BEFORE HIS WORSHIP PRINCE OSEI OWUSU SITTING AS DISTRICT MAGISTRATE ON 16TH JANUARY 2025 SUIT NUMBER: A2/78/21 PURPLE HOMES COMPANY LIMITED - PLAINTIFF OF N1 HIGHWAY ACHIMOTA – ACCRA VRS. KWAME MENSAH - DEFENDANT PATIENCE ADETI DZIFA ……………………………………………………………………………………………………… TIME: 9:11AM PLAINTIFF ABSENT REPRESENTED BY KINGSLEY OSEI BOATENG DEFENDANT PRESENT DORIS BANFUL ESQ WITH ROLANDA YANNAH ESQ FOR PLAINTIFF GEORGE AMOAH ESQ FOR DEFENDANT ………………………………………………………………………………………………. JUDGMENT P age 1 | 10 The Plaintiff sued the Defendant per writ of summons and Statement of Claim dated 22/10/2021 for the following reliefs; a. Recovery of cash sum of GHȻ 24,705.00 being balance of some building materials supplied to the Defendants at Achimota office. The items included blocks, 14mm iron rods (2 tonnes), 12mm iron rods (4 tonnes), 3/8 iron rods (100 pcs) coils of binding wire, cements, payment of Labour, sand and stones 4 (trips), woods, plywood and plumbing materials and some boxes of nails etc. b. Cost of interest since January 2017 till date of final payment Case for Plaintiff It is Plaintiff’s case that it is a registered company under the Laws of Ghana and is engaged in hire purchase at Achimota. Plaintiff stated that the Defendants approached it to assist in the purchase and supply of some building items on a hire purchase and also to construct one storey building for 1st Defendant. The Plaintiff further stated that 1st Defendant further requested the Plaintiff to supply him some building materials including sand, stone, plumbing material, payment of workmen on site, electrical materials. Plaintiff averred that prior to the supply of the materials, the 1st defendant asked the plaintiff to carry out the foundation work to the lintel level of the building. Plaintiff further averred that the cost of materials used was to the tune of GH 21,526.00 and the total cost of material supplied amounted to GHȻ 35, 379.00 and Labour cost to the tune of GHȻ 13,520.00. The plaintiff went ahead to state that the 1st Defendant made a deposit of GHȻ 15,000.00 with a promise to settle the difference within 12 months. Plaintiff stated that the Defendant had paid an amount of GHȻ 39,800.00 leaving a balance of GHȻ 30,625 to be paid to it since January 2017. P age 2 | 10 Case for Defendants The Defendant in his amended statement of defence filed on 14/1/22 denied all the averments in the plaintiff’s amended statement of claim. It is the case of 1st Defendant that he was introduced to the manager of the Plaintiff by the 2nd Defendant as an estate developer and not a supplier of building material of which he expressed interest in engaging the Plaintiff to construct one storey three-bedroom house for him. 1st Defendant stated that after showing the Plaintiff’s manager the drawing of his building, the plaintiff’s through its manager agreed to construct two storey three bedroom on the parcel of land at cost of GHȻ 230,681.00 to complete within two years. 1st Defendant averred that he paid an initial deposit of GHȻ 15,000.00 to the Plaintiff to undertake the project from the foundation up to the lintel level. Defendant stated that after Plaintiff dug the trench for the foundation, he realized the blocks bought by Plaintiff were of inferior quality and so he stopped its workmen from using same and went ahead to buy 1000 pieces of sandcrete blocks from Trassaco and engaged different mason to undertake the construction of the building from the foundation to lintel level of the1st floor without the assistance of plaintiff. Defendant stated that after reaching the lintel level that he gave an additional amount of GHȻ 18,000.00 to undertake the decking of the first floor. Defendant further stated that after decking the plaintiff through its manager submitted a bill of GH52,000.00. The Defendant stated with the view of making further payments to the Plaintiff issued three (3) National Investment Bank cheques with the face value of GH2,000.00 but plaintiff was able to cash only two of the cheques. Defendant stated that he later paid GH 2,800. 00 to the plaintiff’s manager through mobile money thus bringing the total payment to the plaintiff to GH 39,800. 00. P age 3 | 10 1st defendant says the above payment notwithstanding, the decking of the 1st floor of the building was poorly executed and shoddy, such that he had to pull down a section of it and contracted another mason to undertake the reconstruction of same up to the level of the second floor. Issues for determination. The following issues are to be determined, a. Whether or not the plaintiff lacks the capacity to mount the instant suit against the defendants b. Whether or not the there was a valid contract between the plaintiff and the 1st defendant for the construction of the 1st defendant’s building. c. Whether or not the defendants are liable to pay the plaintiff the outstanding balance of GHȻ 30,625.00 d. Whether or not plaintiff is entitled to interest on GH30,625.00 being balance for the building material supplied and labour cost of construction work due. Evaluation of Evidence on The Resolution of Issues It is trite that in civil cases, the general rule is that the party who in his/her pleading or writ raises issues essential to the success of his/her case assumes the onus of proof. The one who alleges, be he the Plaintiff or Defendant assumes the initial burden of producing evidence. It is only when he has succeeded in producing evidence that the other party will be asked to lead rebuttal evidence, if need be. Proof lies upon him who denies since, by the nature of things, he who denies a fact cannot produce any proof. See the following; P age 4 | 10 SC II (1) & (2), 12 (2) AND 14 OF THE EVIDENCE ACT 1975 [NRCD 323] AS WELL AS THE CASE OF TAKORADI FLOUR MILLS V SAMIR FARIS [2005 – 2006] SCGLR at 900. GIHOC REFEGERATION HOUSEHOLD v JEAN HANNA ASSI [2005 – 2006] SCGLR 458, T. CHANDRIAM v TETTEH [2018] 120 GMJ 112 at 147 CA per AGNES M.A DORDZIE, JA and AIR NAMIBIA v MICRON TRAVEL [2015] 91 GMJ 173 at 191 CA per Kanyoke JA. Issue 1 Whether or not the plaintiff lacks capacity to mount the instant suit against the defendant The crux of Plaintiff’s claim boarders on the existence of being a company to enter into a contract with the 1st Defendant. The plaintiff’s during the trial under cross examination admitted not to have renewed its license to operate as a company. The following ensued under cross examination between counsel for Defendant and PW1. Q. Purple Homes, is it a registered company? A. Yes Q. Do you have the certificate of registration before this Court? A. No my lord Q. Has the license of the company been renewed? A. For this year No. Capacity is a fundamental legal issue which can be raised by the Court on its own motion. The Defendant has kept mute over the plaintiff’s lack of capacity. Nonetheless, P age 5 | 10 the Court still raised it suo moto. However, the Defendants failed to raise it in the trial but has decided to make it an issue for determination. Per Section 5A, Act 151(1962) states as follows; 1. Once in every year an individual or company registered under this Act shall deliver to the Registrar for registration a renewal notice in the prescribed form renewing the registration. 2. Without prejudice to any other liability prescribed by this Act, any registration which is not renewed in accordance with this section shall be deemed to have lapsed and the Registrar may remove from the register the business name of any person whose registration has so lapsed after the expiration of the period prescribed for such renewal. 3. In the case of every person registered between the 1st day of January and the 30th day of June in any year the renewal notice shall be delivered for registration within 28days after the 1st day of January each year; and in the case of every person registered between the 1st day of July and the 31st day of December in any year the renewal notice shall be delivered for registration within 28days after the 1st day of July each year. 4. The provisions of section 5 of this Act shall apply to a renewal of registration as it applies to a first registration. 5. There shall be paid for each renewal of registration such fee as may be prescribed. [As inserted by Registration of Business Names (Amendment) Decree, 1974 (NRCD 293) s. 1]. The Plaintiff sued as a corporate entity however, the license to operate at the time of filing the same had not expired. The Court on the strength of the license not expired at P age 6 | 10 the time that the Plaintiff company entered into a contract with 1st Defendant gives the Plaintiffs the right to have capacity to enter into a contract. Issue 2 Whether or not there was a valid contract between the parties. The Plaintiff is a company into the business of supply of building materials and the undertaking of building construction works. Sometime in 2017, 2nd Defendant introduced 1st Defendant to Plaintiff as her Pastor who wanted to construct a one storey building on his land at Trassaco. Plaintiff stated 1st Defendant came with some architectural drawings marked ‘Exhibit A’ and requested the Plaintiff to undertake the construction based on the drawing presented. 1st Defendant presented Exhibit ‘B’ being the estimated cost of construction to the tune of GHȻ 230,681.00 which consist of cost of building materials and labour. From the evidence adduced, I found as a fact the Plaintiff entered into agreement with 1st Defendant to construct one storey building at a cost of GHȻ 230,681.00 which is not disputed by the Defendant. The Plaintiff during the trial testified that he incurred a cost of GHȻ 70,425.00 and not GHȻ 52,500.00 as the 1st Defendants is alledging. The Plaintiff broke down the expenses incurred as follows; GHȻ 21,526.00 for materials used in the foundation, GH 35,379.00 for material used in footing and GH 13,520.00 for labour, which brought the total cost to GH 70,425.00. Plaintiff tendered in Exhibit “D” series to support evidence of materials used and labour cost. However, Plaintiff tendered in Exhibit “B”, as the total cost of the envisaged project of the 1st Defendant. Plaintiff testified the 1st Defendant was supposed to pay GHȻ 100,000.00 deposit out of the GHȻ 230,631.00 as initial deposit before the construction works commence. However, 1st Defendant asked Plaintiff to P age 7 | 10 start the work using its own building materials and workmen while he gets a loan facility from his bankers. The Managing Director of Plaintiff admitted under cross examination, the plaintiff had previously given 1st Defendants a bill of GHȻ 52,500.00. She explained that it was just cost of initial construction stage from footings to floor level and not the entire cost of all work done. The following ensued between Plaintiff witness and counsel for 1st Defendant under cross examination Q. After casting the 1st floor of the 1st Defendant building you issued him with a bill of GHȻ 52,000.00 is that so? A. That is so Q. And the GHȻ 52,000.00 was based on the work that you had done till after the casting. A. That is not so. What was presented was the total work done from the footings to the floor level, so with GHȻ 52,500.00, the work was still ongoing so after the work, we presented him with the total bill. The contention between the parties has to do with the difference of figure between GHȻ 70,425.00 and GHȻ 52,500.00 being alleged cost of materials supplied and cost of labour. Though 1st Defendant admitted that some materials were sent to site for the construction of footings to lintel. The Plaintiff failed to support the cost of materials with receipt. However, 1st Defendant stated that his workmen on site confirmed every item that was delivered. Below are questions and answers that ensued between 1st Defendant and Counsel for Plaintiff. Q. You stated in paragraph 13 of your witness statement that you demanded receipt of work done from the Plaintiff but none was presented to you P age 8 | 10 A. That is so Q. You recall that all delivered materials to the site were accompanied by delivery note A. Yes Q. So it is not true that you were not aware of the cost of the work done and materials supplied by the Plaintiff as you alledge in your witness statement. A. I am aware of the items sent to the site because the workers are my workers so they informed me of whatever comes to the site. It is clear from the above that 1st Defendant admitted some materials were sent to site with the delivery note. However, the challenge of 1st Defendant was to the effect that the some of the items delivered did not correspond with the price. The following ensued under cross examination between 1st Defendant and Counsel for plaintiff. Q. I am suggesting to you that the total cost incurred by the Plaintiff in the project is as contained in Exhibit ‘D’ series. A. I disagree and I have something to say. The reason why I disagree is that some of the items listed do not correspond with the price. Q. But you have already told the Court that you are aware of all the materials that were sent to the site and that is what is contained in exhibit “D” series A. Some of the items, I disagree with. Per section 17 of Act 323, the burden of producing evidence of a particular fact is on the party against whom a finding on the party against whom a finding on that would be required in absence of further proof. In this case, the 1st Defendant failed to adduce evidence to the allegation of some of the items not corresponding with the price. I have P age 9 | 10 no hesitation in concluding on the issue that Plaintiff supplied items to the 1st Defendant’s site to the tune of GHȻ 21,526.00 and labour cost of GH 13,520.00 which makes 1st Defendant indebted to the Plaintiff. Conclusion Having regard to the totality of the evidence adduced by Plaintiff and Defendant this Court holds as follows; a. That there was a contract between the Plaintiff and 1st Defendant for the construction of one story building at the cost of GHȻ 230, b. The plaintiff is entitled to recover an amount of GH 24,705.00 being the outstanding balance of debt of cost of material supplied to 1st Defendant. c. The Plaintiff is entitled to interest on the amount in supra(b) at the prevailing bank rate from January 2017 till date of final project. d. Cost of GHȻ 5,000.00 is awarded against the Defendant in favour of Plaintiff. SGD HIS WORSHIP PRINCE OSEI OWUSU DISTRICT MAGISTRATE P age 10 | 10