LAMPTEY VRS BOTCHWAY & ANOTHER (C1/07/2022) [2023] GHACC 677 (9 November 2023)

IN THE CIRCUIT COURT ’10 OF GHANA, ACCRA, HELD THIS THURSDAY THE 9TH DAY OF NOVEMBER, 2023 BEFORE HER HONOUR EVELYN E. ASAMOAH (MRS) SAMUEL LIONELLO LAMPTEY PLAINTIFF CASE NO. C1/07/2022 VRS 1. JOHN K. BOTCHWAY 2. PETER ADJIRI DEFENDANTS NANA KWAME OFORI AMANFO FOR THE PLAINTIFF NANA AMA AMOAH HOLDING MR. S. K. AMOAH’S BRIEF FOR THE DEFENDANTS ================================================================ JUDGMENT ● The parties entered into an agreement in 2008 for the sale of land. The Plaintiff paid an amount of GHC 6000 and handed over his Isuzu pickup vehicle to the Defendant to defray the remaining balance of GHC 14,000. It’s the case of the Plaintiff that the Defendant has breached the terms of the contract, having failed to convey the land to him. Counsel for the Plaintiff stated: “... the Plaintiff has gotten nothing in return”. The Defendant alleges that the action is statute-barred. In the case of Benjamin Oppong Vs. Pacific International Line and Others [2017] DLHC3287 –Justice Eric K. Baffour stated: In Public International law, civil law, and canon law one of the commonest concepts that looms large is ‘pact sunt servande’ that is agreements or contracts are meant to be kept and not broken. Merchants in private international law, in the middle ages took this concept and developed same making it a veritable pillar in the emergence of lex marcatoria of Europe. As to whether or not the sanctity of agreement has been kept in this case is an issue that confronts the court…. the law abhors unjust enrichment, and for Defendants to have flagrantly breached its agreement because it made no economic sense..." ●The Plaintiff in his statement of claim stated that in the year 2008, the 2nd Defendant informed him that the 1st Defendant had plots of land for sale and he expressed interest and was taken to the 1st Defendant who confirmed that he had several plots of land at Asabahan/Ngleshie Amanfrom for sale at the cost of GHC 2000 per plot. The 1st Defendant agreed to sell to him 10 plots at a cost of GHC 20,000. That payment comprised of the Plaintiff’s Isuzu Tropper 4*4 Pick–Up vehicle, which was bargained to cost GHC 14,000 plus cash of GHC 6000. Per the said agreement, he delivered the keys of the car to the 1st Defendant and paid GHC 6000 to him. A further amount of GHC 500 was paid to the 1st Defendant to cover the cost of transferring title of the land into his name. All payments were receipted in the name of the 1st Defendant. The 2nd Defendant also requested an amount of GHC 150 ostensibly to erect corner pillars on the land. On 12th May 2009, the 1st Defendant executed a deed of assignment, which was registered, and a site plan purporting to convey the 10 plots of land to him. According to the Plaintiff, he encountered a lot of bottlenecks when he attempted to register the land documents at the Lands Commission to facilitate the application for a land title certificate. A search conducted at the Lands Commission showed that the said parcel of land had been registered in another person’s name. Even though he made several oral and written demands on the Defendants to honor his side of the agreement, since 2008, the Defendant refused, neglected, and/ or failed to convey the said parcel of land to him. The 2nd Defendant has equally failed to erect the corner pillars for which he collected GHC 150. All attempts to get the Defendants to meet and settle the matter amicably have fallen on deaf ears. He finds the Defendants’ conduct unconscionable and atrocious which has caused him considerable damage. The Plaintiff seeks for the following reliefs: • A declaration that the Plaintiff is entitled to recover from the Defendants jointly and severally the current value of 10 plots of land at Asabahan/ Ngleshie- Amanfrom which the Defendants purported to lease to the Plaintiff (value per plot as at 2021 is estimated at forty thousand GHC- 40,000). • An order for recovery of an amount of GHC 400,000 being the current value of the ten plots of land from the Defendants jointly or severally • Interest on the said amount from the date of judgment at the prevailing commercial rate until final payment • Damages for breach of contract • Cost including legal expenses and lawyer’s fees ● The Defendants in the amended statement of defence admitted that the Plaintiff paid an amount of GHC 6,000 to the 1st Defendant and delivered the car as well. They also admitted that an amount of GHC 500 was paid to the 1st Defendant to register the land in the Plaintiff’s name. The 1st Defendant pointed out that the Plaintiff delivered the Isuzu Trooper vehicle without handing over the registration documents to him and that the vehicle has been parked since the delivery of same - thereby making it impossible for him to use it. According to the 1st Defendant, he got the indenture prepared and registered for the Plaintiff, and that registration of the title proceeded to the ‘yellow card’ stage. He added that the land is registered in the name of his company JB Information Technology. He further added that registration of the land in dispute for the Plaintiff was halted because the Plaintiff refused to deliver the registration documents of the ISUZU vehicle to him despite repeated demands. The Plaintiff was asked to take the vehicle, which has been parked since delivery but he has failed to go for the vehicle. On the few times that the parties met to try and resolve this matter, the Plaintiff was requested to deliver the registration documents of the vehicle to the 1st Defendant for the registration process to be completed but he has failed to do so. That the Plaintiff is not entitled to his claim and the Plaintiff’s claim is barred by the Limitation Act 1972 (NRCD 54). ● The issues for trial as set out in the application for direction are as follows: I. Whether or not the 1st Defendant agreed to sell 10 plots of land to the Plaintiff at a total cost of GHC 20,000 II. Whether or not the parties agreed that payment was to comprise the Plaintiff’s isuzu trooper 4*4 pick-up vehicle estimated at GHC 14,000 plus GHC 6000 III. Whether or not the Plaintiff delivered the key of the Isuzu trooper 4*4 pick-up vehicle and paid GHC 6000 to the 1st Defendant IV. Whether or not the Plaintiff made a further payment of GHC 500 to the 1st Defendant to cover the cost of transferring the title on the land to the Plaintiff V. Whether or not the 1st Defendant issued a receipt in his name for the amount VI. Whether or not the 1st Defendant has been using the vehicle since the keys to the vehicle were delivered to him VII. Whether or not the 1st Defendant is still in possession of the said vehicle VIII. Whether or not the 1st Defendant has been able to convey valid title of the land to the Plaintiff IX. Whether or not a search report from the Lands Commission indicated that the land in dispute was registered in another person’s name X. Whether or not the Plaintiff’s action is statute-barred These issues will be grouped into 3 broad issues: A. What were the terms of the agreement? B. Who breached the agreement? C. Whether the action is statute-barred? ● Issue A and B (i, ii, iii, iv,v, viii,x) - What were the terms of the agreement? Who breached the agreement? In the case of The Seed Funds Vs. Abass Haruna Appiah & Anor [2023] DLHC15120, the court ruled: “The law is settled, that parties to a contract would not be permitted to avoid the contract unless, there are valid lawful reasons to do so. It is not the duty of the court to make contract for parties. Therefore, where the terms of the contract have been reduced into writing, the court would interpret them to give effect to the intention of the parties. See: Poku V Ghana Commercial Bank [1989-90] 2 GLR 37 CA. Therefore, it is settled law, that a person of full age and of sound mind would be bound by the contents of a document he has signed, whether he read it or not. This is particularly in the absence of any requisite evidence that he was misled to sign it… Consequently, facts recited in a written document … are presumed to be true as between the parties to the documents and their successors, privies, assign, etc. See: ATIA v BOAKYEM [2006] 9 MLRG 1 SC…Again, it is the duty of the Courts to ensure that the doctrine of sanctity of contract is maintained. The Court therefore cannot intervene and substitute any other interpretation of the contractual intention for the parties but must give effect to what the parties themselves have agreed. See: SOFTSHEEN CARSON v WILLIAM – FUGAR [2014] 79 GMJ 162 CA. The exceptions to the above principles can arise where there has been established any of the factors which can vitiate a contract such as illegality, misrepresentation, duress, undue influence, fraud, etc. However, none of these factors is present in this case…” ● There is no dispute about the fact that the parties agreed to the sale of the 10 plots of land. Exhibit C is an indenture executed by the parties, in respect of the subject matter, on 12th May 2009. The 1st Defendant issued a receipt to the Plaintiff for the various sums of money paid to him- Exhibit B series. The Plaintiff's attorney, in his witness statement, asserted the parties agreed that the Plaintiff would hand over the vehicle and its keys to the Defendant. Pursuant to the agreement the 1st Defendant went to the Plaintiff’s house at Dansoman and the vehicle and its keys were delivered to him and he drove off the vehicle. The 1st Defendant in his witness statement contended that although the Plaintiff delivered the vehicle and paid GHC 6000, he failed to deliver the registration documents on the vehicle land, and without the said document the vehicle could not be used. That the vehicle has been parked since it was delivered to him. The crucial question is: whether it was an essential term of the contract that the Plaintiff was to hand over the car documents to the 1st Defendant at the time the Defendant took possession of the vehicle and failure to do so rendered the contract void. In the case of Social Security Bank Ltd vs. CBAM Services Inc. [2007-2008] SCGLR 894, the court held that: “A breach of fundamental or essential term is one of the grounds upon which a contract may be terminated. Where this is the stated ground, and the allegation that the term is essential or fundamental is disputed, a court is bound to determine the issue as a primary fact. But a contract may also be determined where, as in this instant case, the innocent party is empowered by the terms to terminate. A breach of an obligation in a contract that would, of necessity, call for an election on the part of the non-offending party to exercise his right of determination in the contract, must fit into any of the following situations: (i) that which goes to the whole root of the contract and not merely to part of it; or (ii) that which makes further performance impossible; or (iii) that which affects the very substance of the contract… In considering the effect of a breach, the court takes into cognizance the consequence of the breach….” The Plaintiff’s attorney during cross-examination stated that the parties orally agreed that ‘the Defendant was to deliver the documents before he gets the papers on the vehicle. That was their agreement. Because of that when the Defendant went for the vehicle, he never asked about any paper…It was part of the agreement to register the land in Mr. Lamptey’s name before handing over the documents on the vehicle. That is why when the 1st Defendant went for the vehicle, he never asked for the documents because he knew the terms of the agreement.” ● The evidence on record reveals that the Defendant has been in possession of the car since 2008 and there is no evidence on record that he ever attempted to return the car to the Plaintiff. This is an excerpt of the cross-examination of the Defendant: Q: Have you done any work on the vehicle – any repairs since it came into your possession? A: Yes. I have sprayed it into another colour. Q: Did you inform the Plaintiff before you changed the colour? A: I did not do that before changing the colour. I informed him when I had the opportunity to talk to him. Q: At four (4) years ago? A: Yes. … Q: At the time you prepared the deed of assignment in 2009, you had collected the vehicle from the Plaintiff even though he had not shown you the title document to the vehicle? A: Yes. … Q: The lawyers wrote to you – you are saying that you responded in writing in reply to the letter. You filed a witness statement as your evidence before this court. In your witness statement you never exhibited the so-called yellow card, the letter you claim to have responded to the Plaintiff’s concern. How would the court believe you? A: I did respond to this letter in writing to the lawyers. Q: From all what has taken place, I suggest to you that you have not been truthful to this court? A: I have been truthful to this court. Q: You agree with the Plaintiff to sell ten (10) plots of land, he paid you money GH¢6,000.00 and an amount of GH¢500.00 for transfer of title. You collected his vehicle which has been in your possession since 2008 and the Plaintiff has gotten nothing in return. Is that not the case? A: That is not true. I have told this court this morning that the land was duly demarcated, Plaintiff took possession of the by putting a forty (40) footer container on the land. Q: You failed to transfer title on the land to the Plaintiff as originally agreed and once again, the Plaintiff has nothing in respect of the transaction? A: That is not true. It was never agreed that I transfer title to the Plaintiff without documentation of the vehicle. This evidence shows that the Defendant changed the colour of the car without the Plaintiff’s authorization/consent, indicating that the Defendant took full control and ownership of the car- pursuant to the terms of the contract. Thus, his claim that he never used the car cannot be true. As agreed by the parties, the Plaintiff, complied with the agreement – paid the contract sum of GHC 6000 and delivered the vehicle to the Defendant. The Defendant averred that he started the registration process to the ‘Yellow stage’ level. However, no evidence was led to establish that assertion. The search report -Exhibit D shows that the land belongs to Mr. Abu Adams Dickson and not the Defendant. The Defendant failed to establish that the land he purportedly sold to the Plaintiff belonged to him. The Defendant breached the terms of the contract. Issue C -Whether the action is statute-barred? The Defendant contends that the action is statute-barred. Section 4 of the Limitation Act, 1972 N. R. C. D. 54 provides 4. Actions barred after six years (1) A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of (a) an action founded on tort other than an action to which sections 2 and 3 apply; (b) an action founded on simple contract; (c) an action founded on quasi-contract; In the case of Bogoso Gold Ltd vs. Ntrakwa & Another [2011] 1 SCGLR 415 the court ruled: On a plea of defence of statute of limitation, the burden of dislodging it would shift to the Plaintiffs. However, in appropriate cases, a statement of claim disclosing on its face that the period of limitation had expired might be struck out as disclosing no reasonable cause of action. Super Paper Products Co. Ltd vs. Kyomatsu Trading Co Ltd. And Others – Court of Appeal [2014] DLCA2963 the court ruled- By the Limitation Act, NRCD 54, section 4(1) (b) transaction being contractual any intended suit of contractual nature should be commenced within 6 years from the date of accrual of the cause of action. Where fraud is alleged, however, this limitation period is inoperative. In this case, the Plaintiff wrote letters (E series) to the Defendant in 2010 and 2015. In Exhibit E2, the Plaintiff invited the Defendant ‘for a short discussion on the …subject.’ The Defendant admitted that, about 3 or 4 years ago, they had discussions on the subject matter- apparently to resolve the issues amicably. The 1st Defendant during C-E stated: “…Before we came here, about three (3) or four (4) years ago, I had the opportunity to speak to a Lawyer he had engaged to bring this action. So myself, the 2nd Defendant, and the Lawyer met at the officer’s mess at GAF – Ghana Armed Forces. When I made it known to the lawyer that the only bone of contention between the two (2) of us is that the Plaintiff has refused to show me copies of the car documents. The Lawyer called the Plaintiff put the phone on speaker and told him we were sitting in front of him – and that our only issue was for him to show where the car documents were. So I had the opportunity to speak to him personally on the issue and he said he would soon come to Ghana and sought that one out. So that case never went to court..." The Plaintiff in this case has taken several proactive steps to resolve the matter amicably which failed, hence initiated the action. The Defendant breached the contract and also admitted that he could not convey title to the Plaintiff. The action is not statute-barred. The Plaintiff was not able to prove the current market value of the plots of the land. In the circumstance, the court enters judgment for the Plaintiff as follows: • Recovery of GHC 20,000 from the 1st Defendant • Interest on the amount of GHC 20,000 from 2009 to the date of final payment • Damages/cost of GHC 12,000. (SGD) H/H EVELYN E. ASAMOAH (MRS) CIRCUIT COURT JUDGE 11