KOOSONO VRS GYAASE (C11/4/2017) [2023] GHACC 1093 (24 November 2023)

IN THE CIRCUIT COURT HELD AT BEREKUM ON FRIDAY, THE 24TH DAY OF NOVEMBER, 2023 BEFORE HIS HONOUR OSEI KOFI AMOAKO ESQ. CIRCUIT COURT JUDGE Suit No. C11/4/2017 JAMES KOOSONO VRS JOSEPH GYAASE PER HIS LAWFUL ATTORNEY, BRIGHT BAE JUDGMENT In his Writ of Summons filed on 20/01/2017, the plaintiff sued the defendant claiming for an order of the Court to compel the defendant to collect his money amounting to GH¢30,000.00 being an outstanding balance of a five- bedroom house with toilet and bath which the defendant sold to the plaintiff on 8th February 2016 at the cost of GH¢34,000.00 of which part payment of GH¢4,000.00 was made by the plaintiff as agreed upon by the parties herein. The plaintiff who described himself as a farmer pleaded in his statement of claim that on 08/02/2016, the defendant offered to sell his five-bedroom house with a toilet and a bath at the cost of GH¢34,000.00 and he expressed interest to purchase it. He said that an agreement was reached that he paid GH¢4,000.00 to the defendant and pay the remaining GH¢30,000.00 when the defendant returned from abroad in July 2016, but surprisingly, the defendant refused to collect the money (GH¢30,000.00) when he returned from abroad to Ghana in January 2017 with the flimsy excuse that he had sold the house to someone in the United States of America. The plaintiff proceeded to file a motion on notice for judgment in default of defence on 13/02/2017 when the defendant failed to file his statement of defence after he entered appearance on 24/01/2017. In his statement of defence filed on 14/02/2017, the defendant averred and admitted that he and the plaintiff agreed on GH¢34,000.00 as the price for the house he had offered for sale and with the intervention of his agent (Kankam) who introduced the plaintiff to him, it was agreed that the plaintiff paid GH¢4,000.00 as commitment fee and pay the remaining balance to Kankam in his absence to enable Kankam attend to some urgent needs. According to the defendant, he instructed Kankam to sell the house to another buyer when the plaintiff failed/refused to pay the outstanding balance (GH¢30,000.00) to him. The defendant stated that upon the sale of the house to the new buyer, his agent, Kankam returned the commitment fee (GH¢4,000.00) to the plaintiff but he rejected it. The plaintiff who is a resident of Sameraboi but a native of Drobo and a farmer averred in his evidence that, around February 2016, he received a phone call from his tenant, Samuel Kwasi Kwarfo that the defendant was offering to sell his five-bedroom house to any prospective purchaser and he expressed interest in acquiring same. He continued that Samuel Kwasi Kwarfo told him that the defendant was living outside the country but one King was the caretaker of the disputed house. Samuel Kwasi Kwarf thereafter took the plaintiff and Charles Twumasi Ankrah to the disputed house which had been roofed but was without doors and windows. It had also not been plastered and the ceiling had not been done. In the company of Charles Twumasi Ankrah, the plaintiff was led to the residence of King who disclosed to them that the defendant had returned to Ghana and was at his residence at Drobo so the plaintiff should meet the defendant himself to discuss the sale of the disputed house with him if he was interested to buy same. The plaintiff disclosed that he was accompanied by Samuel Kwasi Kwarf and Charles Twumasi Ankrah to meet the defendant who told them that he bought the house for his late sister and that he was selling it to use the proceeds to complete his building project in Accra. According to the plaintiff, the defendant told them that he was selling the house for GH¢35,000.00 but he pleaded with him and they finally settled on GH¢34,000.00. The next day, the plaintiff in the company of Samuel Kwasi Kwarfo and Twumasi Ankrah went to the defendant with GH¢24,000.00 that he had raised but the defendant took out GH¢4,000.00 of the money as initial deposit for the disputed house and advised the plaintiff to keep the remaining GH¢30,000.00 until he returned to Ghana in July 2016 for it. The defendant added that, he would return the GH¢4,000.00 to the plaintiff without any interest if the plaintiff failed to pay the remaining GH¢30,000.00 to him on his return to Ghana in July 2016. According to the plaintiff, the defendant disclosed that he had sold the house to him and that he would not accept any excuses from him. The plaintiff further disclosed that after the payment of GH¢4,000.00 to the defendant, he requested for a receipt or the documents covering the transaction and the defendant mentioned that one Kankam as the one who would see to the documentations for him. It is the case of the plaintiff that, at the time the defendant sold the disputed house to him, it was uncompleted and so a lot of work had to be done on it to make it habitable so when he took possession of it, he made some structural developments on same. The plaintiff said he engaged one Takyi Yaw Peter to plaster the inside of the house and to also fix the doors and windows. One of the rooms in the disputed house was completed for Samuel Kwasi Kwarfo to stay in same as a caretaker whiles the other rooms were being worked on. In or around September 2016, the plaintiff said he called Samuel Kwasi Kwarfo on phone to enquire whether the defendant had returned to Ghana from the United Kingdom for his money (GH¢30,000.00) to be paid to him and the response he got from him was shocking. Samuel Kwasi Kwarf told the plaintiff that Kankam had come to inform him that the plaintiff had failed to pay the outstanding balance of GH¢30,000.00 to the defendant within the time agreed upon so he was returning the GH¢4,000.00 paid as initial deposit to him. The plaintiff said he had not breached the terms of their contract or agreement so he was waiting for the defendant to return to Ghana. It is again the case of the plaintiff that, around October 2016, he received a phone call from Samuel Kwasi Kwarf that Kankam had sent some people to do some estimates on the disputed house and when he confronted him, Kankam told him the defendant had sold the house to someone in the United States of America. The plaintiff stated that in January 2017, he was informed by Samuel Kwasi Kwarf that the defendant had returned to Ghana and had told him to inform the plaintiff to come for his money (GH¢4,000.00), being the initial deposit of the purchase of the disputed house. So together with Samuel Kwasi Kwarf and Charles Twumasi Ankrah, the plaintiff went to the defendant to pay the outstanding balance (GH¢30,000.00) which he was owing but the defendant rejected it and explained that the plaintiff defaulted in paying the balance within a specific period to Kankam as instructed and as a result he had sold the house to someone in the United States of America. Dissatisfied with the turn of events, the plaintiff informed some elders of Drobo about the case and when all of them once again went to the defendant to see how the matter could be resolved, the defendant there again insisted that he had resold the house to somebody in the United States of America, but the elders disagreed with him. The plaintiff asserted that it was the defendant who said he only needed GH¢4,000.00 as initial deposit for the purchase of the disputed house when he was leaving for the United Kingdom and said that he would need the remaining balance of GH¢30,000.00 when he returned to Ghana in July 2016 to use same for the completion of his house in Accra. He further asserted that Kankam never intervened and pleaded with the defendant on his behalf to pay a commitment fee of GH¢4,000.00 since Kankam was not even present when he and the defendant negotiated for the purchase of the house. The plaintiff also disputed the claim of the defendant that he refused/failed to pay the balance to Kankam as directed. In denying this claim, the plaintiff explained that the defendant never instructed him to pay any money to Kankam and again stated that he had started some structural works on the house before he was informed about the sale of the house to a new buyer. The plaintiff contended that the defendant had repudiated the terms of their contract and prayed to the Honourable Court for the enforcement of the contract. Samuel Kwasi Kwarfo (PW1), Charles Twumasi Ankrah (PW2) and Takyi Yaw Peter (PW3) were the witnesses who testified during the trial in support of the plaintiff’s case. It is worthy of note to state that the evidence led by PW1 and PW2 were quite similar in substance. They averred that they accompanied the plaintiff to the defendant to negotiate for the sale of the disputed house, paid the initial deposit of GH¢4,000.00 and were again with the plaintiff to pay the outstanding balance of GH¢30,000.00 which the defendant outrightly rejected. The witnesses (PW1 and PW2) also confirmed that two rooms in the disputed house were completed and one of them was given to PW1 to occupy as a caretaker. Takyi Yaw Peter (PW3) also led evidence to substantiate the assertion of the plaintiff. He contended that he was the mason and the carpenter who was contracted by the plaintiff in March 2016 to plaster, fix the doors and windows and do the ceiling of the two rooms for a fee of GH¢1,000.00. The defendant vehemently denied the claim of the plaintiff. He described himself as a businessman ordinarily resident in the United Kingdom but periodically visited Ghana. The defendant averred that he decided to sell the house in issue which he had purchased for his sister, the late Abena Nyame because his objective for purchasing the house was defeated by the demise of his sister. So, in or around February 2016, the defendant came from the United Kingdom to Drobo to celebrate his late sister’s funeral and also urgently needed money to work on his project in Accra. The defendant disclosed in his evidence that, the plaintiff expressed his interest to purchase the uncompleted house through his friend Ransford Boachie Boadu @ Kankam who intervened and pleaded with the defendant to allow the plaintiff pay a commitment fee of GH¢4,000.00 and pay the outstanding balance of GH¢30,000.00 at the end of May 2016. In all, the parties agreed on GH¢34,000.00 as the purchase price of the disputed house and since the defendant was preparing to leave for the United Kingdom, it was further agreed between the parties that the plaintiff should pay the money (GH¢30,000.00) to Ransford Boachie-Boadu @ Kankam to enable him attend to some urgent matters for the defendant. The defendant further disclosed that, at the end of May 2016, he called Ransford Boachie Boadu @ Kankam on phone from the United Kingdom to find out whether the plaintiff had paid the money as agreed upon but he was told the plaintiff had failed to do so. According to the defendant, it came to his notice that the plaintiff had failed/refused to honour all the promises he made to pay the money to his friend, Ransford Boachie-Boadu @ Kankam, including the directive made by the plaintiff to his friend (Kankam) to collect the money from Samuel Kwasi Kwarf (PW1) which also failed woefully. In or around July 2017, the situation according to the defendant, compelled him to instruct his friend (Kankam) to sell the house and refund the GH¢4,000.00 to Samuel Kwasi Kwarf to be given to the plaintiff as earlier agreed upon but he was informed that the money had been rejected by the instructions of the plaintiff. It is also the case of the defendant that before the presentation of the GH¢4,000.00 to Kwarfo (PW1), his friend (Kankam) told him that he saw that Kwarfo (PW1) was renovating a portion of the house and he stopped him. The defendant said he advised Kankam to report the case to the police for Kwarfo to be arrested. On his return to Ghana, the defendant contented that he informed the plaintiff that the house had been sold long ago so he should go to Kankam for his money since he had instructed Kankam to give the money to him and the plaintiff accepted his explanation and agreed to meet Kankam for his money. The defendant reiterated that, the house in question had been sold long ago after the plaintiff failed to honour his part of the agreement and that he has not breached any contract as alleged by the plaintiff because, the house was sold in July 2017, about a year and six months after the contract had been made. He stated that the plaintiff should not be entitled to the reliefs he is seeking and so the Honourable Court should dismiss the action. The defendant called Ransford Berchie-Boadu @ Kankam as his only witness. The witness led evidence to corroborate and support the case of the defendant. According to him, the defendant decided to sell the disputed house which he had earlier bought for his sister who later died. The witness continued that, the plaintiff expressed his interest to purchase the uncompleted house, so he accompanied him to meet the defendant. Upon negotiations, it was finally agreed that the house should be bought at thirty- four thousand Ghana Cedis (GH¢34,000.00). Since the plaintiff could not pay the money outright, DW1 stated that he intervened and pleaded with the defendant to allow the plaintiff pay a commitment fee of GH¢4,000.00 and be given three (3) months to pay the balance of GH¢30,000.00 to complete the transaction. That is, the agreement was made in February 2016 and the plaintiff was to complete payment by the end of May, 2016. Again, the witness asserted that it was further agreed that the outstanding balance (GH¢30,000.00) be paid to him on behalf of the defendant. DW1 further asserted that when the defendant left for the United Kingdom, the plaintiff came to him with PW1 and informed him that he was leaving for Sefwi and will send the remaining amount of money to PW1 to be given to him at the end of May, 2016 as agreed upon. DW1 averred that he went to PW1 at the end of May 2016 and June 2016 for the money but he did not get it and on the third occasion that he went to demand for the money, PW1 told him that the plaintiff was no longer interested in purchasing the house so they could do whatever they wanted with the disputed house. The witness further averred that he discussed the situation with the defendant who then instructed him to sell the house to any prospective buyer and refund the plaintiff’s money (GH¢4,000.00) to him so he complied with the instructions and did sell the house to somebody. Consequently, DW1 said he stopped PW1 from fixing a door to one of the rooms in the house and informed him that he should tell the plaintiff that the house had been sold to somebody else. DW1 said he gave the commitment fee of GH¢4,000.00 the plaintiff paid to be given back to him but PW1 rejected same and the plaintiff has since refused to collect same. It is the contention of DW1 that, the plaintiff failed to perform his side of the contract because, the defendant waited until July 2016 that he sold the house. The plaintiff should have completed the payment of the house by the end of May 2016 but he woefully failed, so the plaintiff should not be entitled to his claim. The salient issues raised and identified for determination in this suit are/were: i. Whether or not the plaintiff is entitled to the reliefs he is seeking from the Honourable Court. ii. Whether or not the defendant agreed to sell the disputed house to the plaintiff at the cost of GH¢34,000.00. iii. Whether or not the plaintiff paid GH¢4,000.00 to the defendant as initial deposit for the purchase of the disputed house. iv. Whether or not it was agreed between the parties that the plaintiff was to pay the remaining balance of GH¢30,000.00 to the defendant personally upon his return to Ghana in July, 2016. v. Whether or not the plaintiff sent the GH¢30,000.00 to the defendant upon his return to Ghana in July 2016. vi. Whether or not the defendant asked the plaintiff to pay the remaining balance of GH¢30,000.00 to Kankam. vii. Whether or not the defendant gave notice to the plaintiff before allegedly selling the disputed house to a third party. viii. Whether or not the plaintiff carried out some constructional works on the disputed house before same was allegedly sold to a third party. It is trite to state that, it is the duty of the plaintiff in this case to adduce evidence to prove its allegations in accordance with the provisions of Sections 14 and 17 of the Evidence Act, 1975 NRCD 323. This position of the law had been affirmed in the case of BANK OF WEST AFRICA LTD V ACKUN (1963) 1 GLR 176 where it was stated that, the onus of proof of civil cases depends upon the pleadings. In essence, the party who in his pleadings, raises an issue essential to the success of his case assumes the burden of proof. Permit me at this juncture to deal with the other issues and complete the discussion with the issue as to whether the plaintiff is entitled to the reliefs he is seeking from the Honourable Court. It is to be noted that when a contract is not required to be in writing then the existence and contents of such contract must be proved. The Court must look at all material facts upon which the contract is based in order to ascertain what was really decided by the parties. An oral contract not reduced into writing is binding nevertheless so long as there is clear evidence as to essential terms and the actual intentions of the parties. See KOBAKU ASSOCIATE V OWUSU [2006] 2 MLRG 228 CA. There is no doubt about the fact that, the defendant offered and agreed to sell his uncompleted house to the plaintiff at the cost of GH¢34,000.00 in the presence of witnesses. According to the plaintiff, negotiations about the sale of the house were made in the presence of PW1 and PW2 but without DW1, but the defendant established in his evidence that DW1 was part of the negotiations. Whatever the case, an agreement was reached between the parties in or around February 2016 for the sale of the house. An initial deposit or a commitment fee of GH¢4,000.00 was paid by the plaintiff to the defendant and it was also agreed that the remaining sum of GH¢30,000.00 be paid by the plaintiff in either May 2016 or whenever the defendant returned to Ghana in July 2016 as the parties contended. It is to be explained that, whatever the case, the money (GH¢4,000.00) paid by the plaintiff to the defendant formed part of the purchase price of the house. This is the reason why the plaintiff was to pay the remaining amount of money to complete the transaction. Having dealt with issues B and C, I now proceed to discuss issue D, which is, whether or not it was agreed between the parties that the plaintiff was to pay the remaining balance of GH¢30,000.00 to the defendant personally upon his return to Ghana in July 2016. On the instant issue, the defendant denied the assertion of the plaintiff. According to him, he asked the plaintiff to pay the money to his agent, Kankam which he failed. It is indeed trite that the standard required in proof of belief of a fact is the preponderance of the evidence adduced by the proponent of the issue over that adduced by its opponent. See Section 12(2) of the Evidence Act 1975 NRCD 323. Now granted without admitting that the plaintiff was to pay the outstanding balance (GH¢30,000.00) personally to the defendant in July 2016, and the defendant failed to return to Ghana, during the period, what efforts or steps did the plaintiff take to pay the money to the defendant. It needs to be noted that in a contract of sale of land, i.e. house, there may be pre-contractual statements which may influence the purchaser in the contract. These may however not be reduced to terms of the contract though they may influence the parties. Clearly, the evidence on record will reveal that PW1 and DW1 performed their duties as agents for the respective parties under the contract. This is so because, at all material times, the plaintiff lived at Sameraboi and dealt with the issue regarding the disputed house whiles, Kankam acted as the defendant’s agent in the transaction. The record revealed that the defendant instructed Kankam (DW1) to prepare a document on his behalf for the plaintiff to indicate that he had indeed sold the house to him but, according to the plaintiff, DW1 failed to execute this said document. The position of the law is that whenever the evidence led on an issue is conflicting, the Honourable Court trying the matter should consider to accept a version or the other depending upon reasons assigned for the preference. See ARYEETEY (DECD); ARYEETEY V OKWABI [1987-88] 2 GLR 444 CA. From the facts of the instant case, it was around September 2016 that the plaintiff called his agent (PW1) on phone to ask whether the defendant had returned to Ghana for his money to be paid to him when per the agreement, he was supposed to pay the money in July 2016 to the defendant. The plaintiff stated as follows in paragraph 15 of his witness statement. “Around September, 2016, I called Samuel Kwasi Kwarfo on phone and inquired from him whether the defendant had still not returned to Ghana from the United Kingdom and he answered in the affirmative. It was then he told me that Kankam came to tell him that I failed to pay the outstanding amount of GH¢30,000.00 within the time agreed upon between me and the defendant and that he was returning the GH¢4,000.00 I paid as initial deposit to me” Equity, they say does not aid the indolent so the defendant waited until January 2017 when his agent PW1 called to inform him that the defendant was in Ghana and had asked them to come for the GH¢4,000.00 the plaintiff paid as initial deposit for the purchase of the disputed house because he had resold the house to a third party. It is quite obvious from the adduced facts to state that, the plaintiff was not serious in paying the money to complete the transaction as agreed upon. According to Kankam (DW1), he contacted PW1 on some occasions in May 2016 and June 2016 for the outstanding balance but same was not paid so after discussing the issue with the defendant, he was instructed to sell the house and he did. Now the pivotal question, I want to ask is that, did the plaintiff pay the outstanding balance (GH¢30,000.00) to the defendant to complete the transaction? The answer is simply no. I think the plaintiff could have easily done that in July 2016 he alleged was the period to complete the sale of the disputed house. The plaintiff could have paid the money to Kankam (DW1) whether he was asked to do so by the defendant under the agreement or not hence the defendant rejected the outstanding balance because he had resold the house already. The next issue to deal with has to do with whether the defendant gave notice to the plaintiff before selling the disputed house to a third party. According to the plaintiff, he was to complete payment of the disputed house in July 2016 which he failed because, the defendant was not in Ghana to receive the money personally, as earlier indicated. However, it must be pointed out that, PW1 and DW1 who were agents for the parties met several times before the sale of the house took place within the period, and that, through DW1, the plaintiff was alerted about the sale of the house as a result of his inability to pay off the outstanding balance. It cannot therefore be said that the plaintiff through his agent (PW1) was completely unaware of the notice to sell the house to a third party who is now a bonafide purchaser for value without notice. It is significant to indicate that, the plaintiff being the purchaser ought to have demonstrated some seriousness in the transaction since he had expressed interest in the house by paying the meager sum (GH¢4,000.00) out of GH¢34,000.00 as part payment of the house. In VICTORIA TAMAKLOE V RABIU BABALOLA & ONE ANOTHER (2006) 2 MLRG pg 218 – 219, the Court held: “… certainly between the plaintiff and the defendant, there is an enforceable contract which cannot be side-stepped and on should no account be ignored. Indeed the defendant ought to have taken the incidence of the contractual relationship between him and the plaintiff into account when he entered into the subsequent sale agreement with the co-defendant. However, in the instant appeal the defendant kept the amount of GH¢15,000.00 which he received from the plaintiff and went ahead and sold the same piece of land to the co-defendant” Contrary, in the instant suit, the notice of sale of the house was given to PW1 (Samuel Kwarfo), the agent of the plaintiff with the GH¢4,000.00 being part payment of the agreed price of the house but PW1 rejected the money and told DW1 (Kankam) that the plaintiff had instructed him not to collect same. This was when DW1 had contacted PW1 several times for the outstanding balance of GH¢30,000.00 to complete the transaction but it failed. Notably, the accepted fact throughout the trial on record is that, as a result of the agreement entered into by the parties, the plaintiff upon the payment of GH¢4,000.00 carried out some constructional works on the house as he was asked to stop after the said contract was purportedly repudiated. In fact, DW1 who at all material times acted as an agent for the defendant confirmed this assertion of the plaintiff. Furthermore, the fact that the plaintiff carried out some structural works on the disputed house cannot be doubted; and that was not made after the sale of the house had been communicated to the plaintiff. DW1 confirmed this fact when he stated at paragraph 20 of his witness statement. “That about one year six months later, I went to the premises to see Kwarfo placing a door on one of the rooms of the house and I stopped him and told him that the house has been sold to a new buyer and that he cannot do anything on the house.” I will therefore hold that some developmental works were done on the disputed building by the plaintiff. The last issue to be dealt with in this case is, whether the plaintiff is entitled to the reliefs sought from the Honourable Court. From the record, the defendant demonstrated to justify his conduct in disposing of the disputed house to a third party when the plaintiff failed to settle the remainder of the purchase price (GH¢30,000.00) of the house. A careful perusal of the adduced facts will reveal that, DW1, the agent of the defendant did communicate to PW1, the plaintiff’s agent that the existing contract between the parties had been repudiated as a result of the plaintiff’s failure to pay the outstanding balance to the defendant at the end of July, 2016. In my respective view, the plaintiff could have paid the balance to the agent of the defendant (DW1) to complete the transaction in July 2016 but chose to wait until the defendant returned to Ghana in January 2017. See VICTORIA TAMAKLOE V RABIU BABALOLA & MARIAM AHMED [2006] 2 MLRG 218. From the foregoing, it is clear that as between the parties, it was the defendant who proved his case on the balance of probabilities. The plaintiff failed to discharge the burden placed on him. In sum, he failed to complete the payment of the purchase price under the contract at the end of July, 2016. See AGNES POKUA V MRS. CUDJOE & ANOR [2019] 145 GMJ 217. Upon considering the cases for both the plaintiff and defendant, I order as follows: i. I dismiss the plaintiff’s action as same has failed. ii. The defendant is ordered to pay a compensation of GH¢10,000.00 to the plaintiff for the constructional works he made on the disputed building. iii. Cost of GH¢5,000.00 is awarded against the plaintiff. (SGD) H/H OSEI KOFI AMOAKO 24 – 11 – 2023 16