Quainoo Vrs Appiah & 3 Others [2023] GHADC 601 (3 May 2023)

IN THE DISTRICT COURT HELD AT TAKORADI (MARKET CIRCLE ON WEDNESDAY THE 3RD DAY OF MAY 2023 BEFORE HER WORSHIP CATHERINE OBIRI ADDO ESQ: SUIT NO. A11/ 30/2017 BEATRICE QUAINOO --- PLAINTIFF (DOING BUSINESS IN THE NAME AND STYLE AS NANA AHENKORA ENTERPRISE) H/NO. PT 15 NEW SITE TAKORADI VRS 1. KWAME APPIAH. --- DEFENDANTS 2. AUNTIE ABBA 3. NANA KWOFIE 4. AWORTWE JUDGMENT The Plaintiffs in this case initiated the actionagainst the defendants at the registry of this honourable court on the 16TH day of June 2017, and claim against the defendant the following: i. Recovery of possession, control and management as a franchise of a public toilet facility situated at Takoradi Harbour Taxi Rank, Takoradi being controlled, in possession and managed by the defendants herein ii. Perpetual injunction restraining the defendants, their agents, assigns, privies and all those who lay claims through them from controlling, in possession and managing the public toilet facility. Damages for loss of use of the facility from the 15th February 2017 till time of finally handing over same Damages for inconvenience and psychological tour occasioned as iii. iv. result of the conduct of the Defendants v. Any equitable reliefs vi. Cost. EVIDENCE OF THE PLAINTIFF The plaintiff avers, she operates public toilets as such she applied to the Sekondi Takoradi Metropolitan Assembly hereafter referred to as the STMA she tendered her application letter to STMA as Exhibit A. she avers, after the application, she was invited and interviewed by four managers and an engineer of the STMA she was therefore handed a bill of renovations she is required to do on the public toilet which she proceeded to renovate same and same was inspected upon completing the works. Subsequent upon that, she was given a Franchise agreement. She tendered the alleged Franchise agreement in evidence as Exhibit B. According to plaintiff the toilet facility is located at Harbour Taxi station. She contracted a loan from the bank, bought some materials on credit to complete the renovation works and she was supposedto operate the toilet facility for 10years. According to plaintiff, she just operated the facility for just ayear and seven months and afterwards the defendants prevented her from running the place. According to her she was getting GHC300.00 each day, her creditors are on her neck demanding for their money. She therefore complained to STMA about the situation who in turn warn the defendants to stay away from the facility but all proved futile. She caused her lawyers to write to the STMA, she therefore tendered the said letter in evidence as Exhibit ‘C’. She is therefore praying for her reliefs as endorsed on the writ of summons. It is worthy of note that pw1 to corroborate her case and pw1 who happens to be the waste manager at STMA gave evidence in court and the suit was adjourn for cross examination of pw1. However, On the 27th day of July 2021 counsel for the plaintiff prayed the court for the evidence of pw1 to be expunge from the records as they were finding it difficult to get pw1 to come to court to be cross examined and same granted by this honourable court. EVIDENCE OF DEFENDANT AT TRIAL The defendant speaking on behalf of himself and on the behalf of the other defendants aver, they got to know the plaintiff through this very case. According to defendants, the toilet facility the subject matter of the suit is a property of the government. According to him, in 2017 when the New Patriotic Party Thus N. P. P came to power, all toilets’ facilities were placed in the hands of N. P. P government as such they went to see one honourable K. K Sam who was then the chief executive of STMA, who gave them the chance to go and take over the toilet facility. According to defendants, at the time the plaintiffs exhibit A was executed, it should have been signed by the then chief executive by name Captain Cudjoe but the said chief is not part of the people who executed Exhibit A. according to defendants, the plaintiffs exhibit A is not correct. ISSUE FOR DETERMINATION WHETHER OR NOT THERE IS AN AGREEMENT BETWEEN THE PLAINTIFF AND STMA TO OPERERATE, MANAGE AND CONTROL THE TIOLET FACILITY. WHETHER OR NOT THE PLAINTIFF CAN RECOVER POSSESSION, CONTROL AND MANAGEMENT OF A TOILET FACILITY SITUATED AT HABOUR TAXI STATION. EVALUATION OF EVIDENCE AND APPLICATION OF THE LAW. The plaintiff bears the burden of proof in this case to establish his claims. The standard of proof required from the plaintiff is proof by the preponderance of probabilities. It is a basic principle of law of evidence that in a civil case, a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality or credibility short of which his claim may fail. See the case of ACKAH V PERGAH TRANSPORT LTD (2010) SCGLR 728 at P. 736. PER ADINYIRA JSC. The burden demands that a party produces sufficient evidence such as will lead a reasonable man on all the evidence to conclude that the existence of the fact in issue is more probable than its non-existence. See sections 11(4) and 12(1) of the evidence Act. It is only after the plaintiff has discharged his burden that the defendant is required to adduce evidence in rebuttal of the plaintiff’s evidence. It is trite law that he who alleges must prove. In the case of ABABIO V AKWASI III (1994-1995) 2GBR, 774, the court held that: “The general principle of law is that it is the duty of a plaintiff to prove his case, i.e., he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim. If the defendant succeeds in doing this he wins; if not his losses on that particular issue.” Similarly, in the case of BISI V TABIRI (1987-1988) 1GLR 360 the court stated thus: “the standard of proof required of a plaintiff in a civil action was to lead such evidence as should tilt in his favour the balance of probabilities on a particular issue”. I will proceed to determine the issues starting from the first issue. WHETHER OR NOT THERE IS AN AGREEMENT BETWEEN THE PLAIANTIFF AND STMA TO MANAGE, OPERATE AND CONTROL THE TOILET FACILITY. Plaintiff in his evidence to the court avers, she operates public toilet facilities as such she made an application to STMA to operate a toilet facility situated at Harbour Taxi rank the said application is in evidence as Exhibit A, she was given quantities of renovations she was to do on the said facility which she contracted loans from the bank and creditors to do same. Upon completion, same was inspected by STMA and a franchise agreement between the plaintiff and STMA was entered into. She tendered the said agreement in evidence as Exhibit B. A cursory look at Exhibit A, is an application by the plaintiff to STMA dated the 3rd day of December 2014 indicating she intends to change the toilet facility at Harbour Taxi station, Takoradi which according to the plaintiff was a pour flash toilet facility to water closet. According to the plaintiff Exhibit A was accepted by the STMA and subsequent upon that a franchise agreement thus exhibit B was entered into between the plaintiff and STMA. A cursory look of exhibit B is a franchise agreement between Nana Ahenkora Enterprise and STMA on the 15th day of July 2014. It is worthy of note that the plaintiff sued in her capacity however the agreement entered in to thus exhibit B is between Nana Ahenkora enterprise and STMA. It is worthy of note that a suit can be brought in the name of an enterprise or in the name of a person as in this instant suit. An enterprise is thus distinguished from a limited liability company which the law mandates a suit to be brought in the name of the company. As such the plaintiff suing in her personal name is in order. Clause 1.1 of the said agreement states “During the term of this agreement the Franchisee shall take possession of, demolish, and reconstruct the toilet subject to the Assembly’s design and specifications, as may be applicable, manage, operate and maintain and collect user fees in respect of the toilet as set out in Appendix A and transfer the property back to the Assembly after the stated period. The agreement is therefore Build, operate and transfer basis and is made for 10years subject to renewal after its expiration” In addition, the said exhibit B, was signed by the Metro co-ordinating director of the STMA in the presence of a witness thus STMA waste Management department. The franchisee also signed in the presence of a witness. Per Exhibit B, the plaintiff was to operate and manage the said facility for a period of 10years which was duly signed by both parties to the agreement. According to the plaintiff she operated the facility for just a year and a half where she was stopped by the defendants herein to stop operations. The learned author Goode in his book titled Commercial law, 4th edition at page 97 stated “where parties have consistently contracted on certain terms, so that it may reasonably be assumed that, the transaction under consideration was intended to be governed by the same terms, the court will usually be willing to find that the terms apply, even if not expressly adopted in relation to the transaction” From the provisions under clause 1.1 of the contracted as sated supra, it is clear that the parties understood and intended that plaintiff herein should take charge, maintain, control and operate the toiletfacility for 10years as they have indicated that the contract was Build, Operate and Transfer basis upon the renovations carried out by the plaintiff on the said facility and upon completion, the franchise agreement was entered into. In addition, both parties signed their signature on the said agreement. In the case of Plymouth corporation v Hurrell (1968) QB 455 CA, Aa statute required the signature of the town clerk in order to render a notice issued under the legislation the act of local authority. Salmon L. J commenting on the signature of the town clerk stated” Clearly the only purpose of having the town clerk signature upon the notice is to provide some evidence that it has been duly authorised by the local authority. The signature itself has no magic about it. It would be absurd for the legislature to provide for proof that the notice had been given or issued by the authority and yet leave a signature upon it still to be strictly proved” From the statement of Salmon LJ, the signature is just to provide evidence that the notice was issued by the appropriate officer. Similarly in this instant suit, the metro coordinating director of the STMA signature as well as his witness signature together with the signature of the plaintiff and his witness provides some form of evidence that the agreement has been made and the plaintiff put in charge of the facility per the agreement of the parties. The question is, was the said agreement thus exhibit B, effective and in force at the time that the plaintiff alleged she was stopped by the defendants to seize operation. Plaintiff averred in her evidence to the court that, after the agreement to operate the facility for 10years, she operated same for only a year and seven months when he was stopped by the defendants which said evidence was not challenged by the defendants either under cross examination, nor did the defendantled evidence to the contrary. In the circumstance the court accepts that the contract between the plaintiff and STMA was still in force at the time the facility was seize by the defendants herein. The defendant on the other hand alleged in their evidence to the court that when the New Patriotic Party came to power, they went to see the honourable K. K Sam who was then the chief executive of the STMA, who gave them the chance to go and take over the said facility. Defendants admits that the facility is for the government and belongs to the STMA. In the Opinion of the court, the fact that a party came to power does not mean that the defendants have the right to seize toilet facilities. As they alleged, they were given the chance to seize same by the chief executive of STMA at the time but they never provided any agreement to that effect. Upon what basis did the alleged chief asked them to seize the alleged facility. All that the defendants alleged are just mere assertions without any proof. The defendants’ assertion that the chief Executive at the time one Captain Cudjoe should have signed the franchise agreement is neither here nor there. Do the defendants want the court to believe that the Metro co-ordinating director and his witness has no authority to sign the said agreement? The court finds the arguments of the defendants as unsustainable. They have failed to proof to the court that they have an agreement with the STMA as a result they took over the said facility? All that they said are just bare assertions. Neither did he call any witness to corroborate his case that he was given the authority to manage the facility by the alleged honourable K. K Sam. The principle in Majolagbe v Larbi(1959) G. L. R 190 is applicable. Thus, there must be certainty for the taking over of the facility from the plaintiff. In the opinion of the court, STMA, should have been joined as a necessary party to the suit, since both parties claimed to have derived authority from them to manage the said facility although defendant failed to prove by proper legal means his source of authority. That notwithstanding, The case of Majolagbe supra, the court held: “…….. From the above analysis and evaluation made supra the court finds that the plaintiff has been able to proof her case on the balance of the probability that there was a valid agreement between her and STMA to operate, manage and control the facility per exhibit B for ten years. The defendant on the other hand failed to satisfy the court that they have any agreement with the STMA to take over the toilet facility and to manage same at the time that they did. Base on this the court finds the plaintiff as having a better interest in the facility than that of the defendants. This will lead me to my final issue. WHETHER OR NOT THE PLAINTIFF CAN RECOVER POSSESSION, CONTROL AND MANAGEMENT OF A TOILET FACILITY SITUATED AT HABOUR TAXI STATION. As has been found supra, per Exhibit B, the plaintiff was given the authority to manage, control, and operate the toilet facility for ten years. The agreement made between the plaintiff and the STMA, thus Exhibit B was made was made on the 15th day of July 2014 as such 15th day of July 2023 will be exactly 9years. As such the court finds that the contract is still valid. A contract is an agreement giving rise to obligations which are enforceable or recognized by law. The factor that distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties as defined by Trietel Abiola 2005 defined contract as an agreement made between two nor more competent parties which the law will enforce. Pollock also defines a contract as a promise or set of promise which the law will enforce. In the case of P. Y Atta &Sons Ltd v Kingsman Enterprise ltd (2007-2008) SCGLR 946, Brobbey JSC stated “Indeed, in construing every agreement, the paramount consideration is what the parties themselves intended or desired to be contained in the agreement. The intentions must prevail at all time ….” Base on the above position of the law, and per exhibit B, the court finds that, the agreement was a on Build, Operate and Transfer Basis as expressly stated by the said agreement. Plaintiff made it clear to the court that upon the said renovations done by her, she was given the right to manage, Operate and control the said facility for 10years. The plaintiff could therefore sue and enforce the agreement between her and the STMA and since the contract was not made for the benefits of the defendants as third parties and no agreement between the plaintiffs and the defendants, consequently there was no basis for the defendants to seize the said facility. The defendants’ action was thus not justified. During the cross examination of the plaintiff by counsel for the accused, he sought to put across that there was an agreement between the plaintiff and the defendants to share profits which said assertion was vehemently denied by the plaintiff. However, the defendant failed to proof to the satisfaction of the court that there was such an agreement to that effect. The relevant cross examination is as follows: Q; you entered into agreement with the defendants to share profit A: I don’t know them. I have nit discussed any such arrangement with them. The court therefore finds the evidence of the defendant in respect of same not cogent. Base on the above position of the law and the analysis made supra, the court finds that, the plaintiff has been able to proof his case on the balance of the probability that she is entitled to recover possession of the facility. The 1st defendant speaking on behalf of himself and the other defendants and alleging to be a business man taking over toilet facilities, upon his answer to a question asked by the counsel for the plaintiff, failed to proof to the satisfaction of the court that he is entitled to retain possession of the facility. In view of the foregoing, it is the determination of the court that the plaintiff is to recover possession, control and management as a Franchisee of the public toilet facility situated at Takoradi Harbour Taxi Rank which is in the control of the defendants. In the course of the proceedings, the court appointed a receiver to receive the proceeds realise from the facility, in the circumstance, the court hereby order the proceeds realised from the facility to be paid to the plaintiff herein. In addition, the court award General damages of GH¢5,000.00 against the defendants herein for the unlawful seizure of the facility in February 2017at the expense of the plaintiff. As part of the reliefs of the plaintiff, she is seeking to recover damages for inconvenience and psychological trauma occasioned as a result of the conduct of the parties. In the opinion of the court, this relief qualifies for specific damages which the plaintiff ought to proof that as a result of the actions of the defendants, he experienced psychological trauma which the plaintiff failed to proof. In the circumstance the court cannot grant same. The court hereby order the defendants, their agents, assigns, privies and all those claiming through them from having anything to do with the toilet facility situated at Harbour Taxi rank Takoradi. In the decision of KEN KWAME ASAMAOH V SIC SUIT NO. J4/55/2021, I hereby summarize my orders as follows: 1. Plaintiff is to recover possession, control, and management as a franchisee of the public toilet situated at Harbour Taxi rank from the defendants. 2. The defendants, their agents, assigns and privies as well as all those claiming through them are injuncted from having anything to do with the said facility 3. General damages of GH¢5,000.00 awarded in favour of the plaintiff. 4. Cost of GHC 2000.00 5. The proceeds of the monies paid into the court in the custody of the receiver appointed by the court should be released to the plaintiff herein. H/W CATHERINE ABIRI ASSO ESQ: (MAGISTRATE) 11