Watina Company Ltd Vrs Osei [2023] GHADC 490 (19 June 2023)

IN THE DISTRICT COURT SITTING AT ASAMANKESE ON THE 19TH DAY OF JUNE, 2023, BEFORE HIS WORSHIP GEORGE DAVIS KWASI OFORI – DISTRICT MAGISTRATE SUIT NO: A11/17/2020 WATINA COMPANY LTD PER THE DIRECTOR AUGUSTINA ADDAE ………. PLAINTIFF VRS. 1. GEORGE OSEI WHO REPLACED/SUCCEEDED OP. KWAKU OWARE (BOTH DECEASED) ……….. 2. OP. TWUM FRIMPONG 3. MADAM AFUA MANU 4. SAN VANKUVU GH. LTD PER JUSTICE AMOAKO 1ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT 4TH DEFENDANT J U D G M E N T Claim: In their claim filed on the 23rd day of September, 2021 after the matter had been transferred from the Kade District Court under the instructions of the Supervising High Court Judge, the plaintiff is sought the following reliefs from the defendants: a) A declaration that the memorandum of understanding between the late Madam Adwoa Obo and the plaintiff is valid and genuine and should be binding on the defendants. b) Recovery of Possession of House NO: B 126, Kade to enable the plaintiff’s company to restructure same in accordance with the Memorandum of Understanding (MOU) signed on the 15th day of May, 2013. SUMMARY OF PLAINTIFF’S EVIDENCE: It is the plaintiff’s case that on the 15th day of May, 2013. WATINA COMPANY LTD entered into a Memorandum of Understanding (MOU), Exhibit ‘A’ with the late Madam Adwoa Obo to build a storey building of stores in front of the house of Madam Adwoa Obo and occupy same for a period of 50 years ie from 1st January, 2014 to 31st December, 2065, after which the property shall be handed over to the land lady who shall be the absolute owner without any adverse claims from the plaintiff. That after executing the M. O. U, the landlady allowed the plaintiff to pay ground rent for 2 years until the death of the landlady Madam Adwoa Obo. That the plaintiff company was not able to execute the project per their M. O. U because there were kiosks on the land with occupants therein. That it was the land lady Madam Adwoa Obo who rented out the land to the occupants of the kiosks before their M,O. U, and so waited for her to eject the occupants before they begin, which she could not do before her demise. That they attempted to eject the tenants/occupants of the kiosks so that they could execute the project, but while at that they realized that the family of Madam Adwoa Obo(defendants herein) had given the land to the 4th defendant to develop in disregard to the Memorandum of Understanding, to which they were witnesses. The plaintiff therefore prayed the Court for the reliefs endorsed on their writ of summons. The plaintiff called one witness to support their claim, and tendered in documents, Exhibit ‘A’ and Exhibit ‘B’ series to support their case. SUMMARY OF DEFENDANT’S EVIDENCE: The 1st defendant died after filing his witness statement and therefore same could not be adopted as his evidence. a) EVIDENCE OF 2ND DEFENDANT, FOR AND ON BEHALF OF HIMSELF, 1ST DEFENDANT AND 3RD LDEFENDANT. ----------------------------------------------------------------------------------------------- It is their case that on the 15th day of May, 2015 the plaintiff’s Company executed an Memorandum of understanding with the land lady, Madam Adwoa Obo to build a storey building which was to be completed on the 1st day of January, 2015 and that they were witnesses to the Memorandum of Understanding. That the plaintiff was tasked to complete the project so that the landlady would enjoy some of the rooms before she dies. That the plaintiff paid a good will of Gh¢2,000.00 to the landlady. That after construction, the plaintiff was to occupy the stores for a period of 50 years i.e from 2015 to 2065. That after the execution of the Memorandum of Understanding, the site plan was given to the plaintiff. That they looked forward to the plaintiff to start the project but the plaintiff did not. That somewhere in 2016, the landlady Madam Adwoa Obo died. That when they realized that the plaintiff was not ready to construct the storey building per the terms in their Memorandum of Understanding, they gave the land to the 4th defendant. That the plaintiff breached the terms of their Memorandum of Understanding and so they are not entitled to their claim. They called one witness to support their case and also tendered Exhibit ‘1’. b) Since the interest of the 4th defendant is tied to that of the 1st, 2nd and 3rd defendants, I would not write the summary of their evidence. ISSUES FOR DETERMINATION: From all the evidence before me, the issues that came up for determination are: a) Whether or not there were occupants on the land which the plaintiff was to use to build the storey building in execution of the Memorandum of Understanding between them and the landlady Madam Adwoa Obo before the execution of the Memorandum of Understanding, b) Whether it was the plaintiff’s duty or the landlady’s duty to eject any occupants on the land before the construction of the storey building by the plaintiff; c) Whether it was the plaintiff who breached, the terms of the Memorandum of Understanding or it was 1st, 2nd and 3rd the defendants who breached same; and d) Whether or not the Memorandum of Understanding between the plaintiff and Madam Adwoa Obo is still binding on the defendants. To succeed, the onus lies on the plaintiff to lead sufficient evidence to convince the Court that, on a balance of probabilities, their case carries more weight or is more reasonably probable than the defendants’’ on material issues. The plaintiff ought to prove that on a balance of probabilities, the existence of a fact is more probable than its non-existence. This onus may shift on the defendants. See Sections 10, 11(3) and 12 of The Evidence Act 1975 (NRCD 323); Adwubeng Vrs. Domfeh [1996-1997] SC GLR 660; Fosua and Adu Poku vrs Adu-Poku Mensah [2009]SC GLR 310, JASS Co, Ltd vs. Appau[2009] SC GLR 265. In the case of Takoradi Flour Mills vs Samir Faris [2005-2006] SC GLR 882, the Supreme Court held that a plaintiff must succeed on the strength of his own case and not on the weakness of the defendant’s case. With respect to the 1st, 2nd and 3rd issues, it is not controverted that at the time that the plaintiff on one part and Madam Adwoa Obo on the other part executed their Memorandum of Understanding on the 15th day of May, 2013, there were occupants in kiosks on the land which the plaintiff was to use to put up the building described on their Memorandum of Understanding. It is also not controverted that the occupants of the kiosks were on the land after being granted same by the late Madam Adwoa Obo. Nowhere was it stated in the Memorandum of Understanding, ie exhibits ‘A’ and ‘1’ respectively that there were kiosk with tenants therein on the land and the party whose responsibility it was to eject them for construction to commence. Prior to the plaintiff entering into the Memorandum of understanding with the landlady, she had already leased out the land upon which the building was to be put up in honour of their part of the Memorandum of Understanding to other people who had erected kiosks and were in occupation. Reasonally, the plaintiff would not know the type of arrangements or covenants that the landlady had with those occupants before she executed the memorandum of understanding. The plaintiff would not know when their rents/leases would expire. Therefore, it is my candid opinion, and reasonably so that it was the duty of th landlady Madam Adwoa Obo to take steps to ask the tenants or occupants to vacate the land to pave way for the plaintiff company to construct the building per their Memorandum of Understanding, because the plaintiff is not the owner of the land and must not be burdened with that responsibility. I am not oblivious of the plaintiff’s statements at paragraphs 15 and 16 of the plaintiff’s statement of claim filed on the 18th day of December, 2020 when the suit was pending before the Kade District Court. In my opinion, desirous of seeing to the execution of the project, they took those steps to ensure that the occupants vacate the land after the landlady has failed to do so, which every reasonable investor would do. Again, if the plaintiff was not desirous of honouring the terms contained in their Memorandum of Understanding, they would not have paid a commitment fee or “Good Will” as the defendants put it of Gh¢2,000.00 to the landlady and also spend resources to draw a building plan to that effect ie exhibit ‘B’ series. When the plaintiff’s representative, Augustina Addae was cross-examining the 1st witness for 1st , 2nd and 3rd defendants, this is what transpired. Q: Were there containers on the land in 2012 when we acquired it? A: There were containers. Q: Whose responsibility was it to remove them before WATINA COMPANY could build? A: It was the responsibility of the family(I.e my family). Clearly, the view of the Court is supported by the evidence of DW1, Agyei Twum Solomon, who described himself as a son of Madam Adwoa Obo. Therefore with reference to the 3rd and 4th issues, it is my opinion that it was the landlady and by extension her successors (defendants especial 3rd defendant herein) who breached the terms of their Memorandum of Understanding and not the plaintiff, and therefore the defendants by their own conduct are estopped from preventing the plaintiff to execute the terms contained in their Memorandum of Understanding and therefore hold that the memorandum of understanding is still legally binding on them. It is my opinion therefore that the 50 years time would start running at the time when the customary successor/the family of the defendants would take steps to eject the tenants from the land to allow the plaintiff to start work. From all the evidence before me and my evaluation of same, I find as a fact that the plaintiff and Madam Adwoa executed an Memorandum of Understanding for the plaintiff to build stores which Memorandum of Understanding was witnessed by the defendants, especially 2nd defendant. I also find as a fact that there were kiosks or containers on the land to be used for the project, which land was rented/leased to the tenants by the landlady. I also find as a fact that it was the kiosks on the land that prevented the plaintiff from beginning construction after paying Gh¢2,000.00 “Good Will”/Commitment fee to the landlady and drew a building plan for that purpose. From all the evidence before me and my evaluation of same, I am of the opinion that the weight of evidence favours the plaintiff as they led sufficient evidence to prove a strong case. See Samir Farris vrs Samir (Supra). Therefore, for the reason that it was the landlady and her family (defendants) who made it impossible for the plaintiff to execute the project in accordance with their own Memorandum of Understanding, I enter judgment for the plaintiff against the defendants, and hereby declare that the Memorandum of Understanding between Madam Adwoa Obo and the plaintiff is still legally binding on them especially 3rd defendant, who is the customary successor. The 2nd defendant, and by extension the Head of family of the defendants are hereby ordered by the Court to eject all tenants on the land to pave way for plaintiff to start work within one month of this judgment. Alternatively, the plaintiff may apply for Writ of Possession to eject them. The Court again enjoins the plaintiff to apply for all necessary processes and documentation to recover possession from the defendants, especially the 4th defendant. All the defendants, their agents, labourers, assigns, privies and all who claim interest in the disputed land through them are restrained from making adverse claims until after the expiry of the 50 years period contained in their Memorandum of Understanding. Costs of Gh¢5,000.00 awarded against the defendants jointly and severally. (SGD) H/W GEORGE DAVIS KWASI OFORI (MAGISTRATE) 19/6/23 8