AGYEI - DARKO VRS. REDROW DEVELOPMENT LTD. (E2/63/2018) [2023] GHAHC 598 (8 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ – TEMA IN THE GREATER ACCRA REGION, HELD BEFORE HER LADYSHIP JUSTICE PATRICIA TH OF DECEMBER QUANSAH (JUSTICE OF THE HIGH COURT) ON FRIDAY THE 8 2023. FELIX AGYEI - DARKO SUING PER HIS LAWFUL ATTORNEY EMMANUEL TOKUNBO DARKO VRS SUIT NO. E2/63/2018 PLAINTIFF REDROW DEVELOPMENT LTD. 1ST FLOOR, A & C SQUARE EAST LEGON ACCRA ________________________________________________________________ DEFENDANT PARTIES ABSENT ________________________________________________________________ JUDGMENT I. INTRODUCTION Real estate cannot be lost or stolen, nor can it be carried away. Purchased with common sense, paid in full and managed with reasonable care, it is about the safest investment in the world. Franklin D. Roosevelt I wonder if the Plaintiff herein will agree with the above quote because it is his need to secure a safe investment in real estate that has culminated in this suit before this Court, and which has spanned a period of over four to five years. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT II. FACTS OF THE PLAINTIFF’S CASE [1] The case of the Plaintiff is that in or about 2014, he was desirous of acquiring an estate property for himself, specifically, a dwelling house and so he engaged the services of a company known as Green Company Limited to assist him in identifying a real estate company from whom he could acquire a dwelling house. That was how the Plaintiff stated he was introduced to the Defendant, said to be a real estate company engaged in the construction of homes, among others. On or about the 28th day of October 2014 therefore and after a number of discussions, the Plaintiff stated that he entered into an agreement with the Defendant to purchase two (2) separate units of a three bedroom detached standard house in a gated community and said by the Defendant to have some shared amenities like a club house, a swimming pool, manned security gate, a gymnasium, landscaped relaxation lounges fitted with chairs, basketball court, Wi-Fi services, a shopping centre, children’s playground, among others. [2] Per the Plaintiff, the two properties were to be constructed at Afienya near Tema in the Greater Accra Region at a cost of US$65,000 each. Further, based on the agreement between the Plaintiff and the Defendant, the purchase price was to be paid in installments within a period of eight months, after which the construction of the two houses would begin; to be completed in six months after the commencement. The Plaintiff continued to state that being desirous of having the said project completed within the stipulated time, he decided to pay a substantial part of the purchase price to the Defendant Company within a period of two months, instead of the period of eight months as agreed upon, and so by the 20th day of November 2014, the Plaintiff stated he had paid a total of US$110,000 to the Defendant, leaving an outstanding balance of US$20,000 to be paid to the Defendant. [3] True to their word, the Defendant was said to have begun the construction of the two properties in or about November 2014 to be completed by May 2015 as per the terms of agreement. Nonetheless, the Defendant was not able to complete the construction in May 2015; and so the Plaintiff stated that he held off the payment of the final sum of US$20,000.00 to the Defendant. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT [4] Also, having regard to the delay in the project, the Plaintiff stated that he requested that Green Estate Ltd discusses with the Defendant the possible proposals available to the Defendant, in order to remedy the situation, and the Defendant was said to have agreed to replace the two properties with houses either at East Legon Hills or Abelenkpe, in order to compensate the Plaintiff for the delay in the completion of the project. The Plaintiff stated that he opted for the Abelenkpe town houses as the proposed replacement. The replacements however also never took place; and by a letter dated the 14th day of July 2015 the Defendants were said to have undertaken to complete the two houses by Monday the 31st day of August 2015. That assurance also never materialized. Till date, the Defendant has failed and/or refused to complete the construction of the two houses for the Plaintiff, despite persistent demands made on it to do so. As of the time of instituting this action, the two houses were in the same uncompleted state and lacked numerous amenities which the Plaintiff exhaustively listed at paragraph 19 of his statement of claim. [5] The Plaintiff therefore had to rent alternative accommodation for all the period the Defendant has been unable to deliver the two houses to him and as a result, the Plaintiff stated he has suffered severe hardship and incurred considerable financial cost and suffering. The Plaintiff thus prayed the Court for the following reliefs: III. RELIEFS SOUGHT BY THE PLAINTIFF a) An order by the Court to the Defendant to complete the construction of the said houses and hand over the same to the Plaintiff. Or in the alternative Payment of the sum to be assessed by the Court as able to fully complete the said houses and make them comply with the contract to the Plaintiff. b) An order to the Defendants to comply and perform its contract as between the Plaintiff and the Defendant. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT c) Damages for breach of contract. d) Costs. IV. STATEMENT OF DEFENCE AND COUNTERCLAIM [6] In its defence, the Defendant denied the allegations against it, contending instead that even though it entered into an agreement with the Plaintiff for the construction of two houses, the Defendant was only developing reasonable and affordable houses in a gated community, but it never included all the amenities the Plaintiff listed. The Defendant however admitted that he had received a total of US$110,000.00 from the Plaintiff and that the construction was to have been completed within the time stated by the Plaintiff; but there was indeed a delay in the completion plan. The Defendant proceeded to attribute this delay in the construction to some litigation with a company known as Zoomlion Ghana Ltd, whom the Defendant stated laid adverse claim to a portion of the Defendant’s land. According to the Defendant, the Plaintiff was aware of this litigation, which occasioned the delay in the completion of the project. As a result, the Defendant compensated the Plaintiff with an amount of GH ¢12,000.00, representing a year’s rent for the Plaintiff. [7] The Defendant further denied that there had been any agreement between the parties to replace the houses for the Plaintiff at Abelenkpe, averring that it was only an advice that the Defendant sought to give to the Plaintiff but never part of any agreement made with the Plaintiff. The Defendant further denied that they had written to the Plaintiff to assure him that the houses would be completed on the 31st of August 2015 and neither had the Defendant deliberately failed to deliver to the Plaintiff the subject matter of the contract between the parties. Indeed, the amenities sought by the Plaintiff were never offered by the Defendant. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT [18] The Defendant has since completed both houses but the Plaintiff still owes the Defendant an amount of US$20,000.00. The Defendant thus concluded that the Plaintiff had no cause of action against the Defendant, was not entitled to any more compensation and counterclaimed for the following: V. DEFENDANT’S COUNTER-CLAIMS i. ii. Recovery of an amount of US$20,000 or its cedis equivalent being outstanding balance on the two detached three-bedroom house which was due for payment in March, 2017 which the Plaintiff has failed to pay; Interest on the said amount at the prevailing rate of commercial interest from 1st April 2017 till date of final payment. iii. Cost including Solicitors fees. VI. PLAINTIFF’S REPLY & DEFENCE TO COUNTERCLAIM [19] The Plaintiff joined issues generally with the Defendant on its statement of defense. The Plaintiff however sought to refute the averments of the Defendants in their defence and conterclaim, reiterating that all the amenities sought by the Plaintiff were provided for in the contract of sale executed between the parties. Further, in view of the overwhelming delay and the Defendant’s inability to complete the project, both parties agreed that the Plaintiff could rent out one of the properties for one year, from July 2016 in order to make some gains from the property, and it was on that account that the Defendant to complete the project by December 2016; but that promise also did not materialize. The Defendant can therefore not be entitled to the outstanding amount of US$20,000.00 since it had failed and/or refused to complete the project for the Plaintiff; and further that the Defendant is not entitled to its counterclaims. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT VII. APPLICATION FOR DIRECTIONS [20] Pleadings came to a close and at the Application for Directions stage, the following issues were set down for trial: a. Whether or not the provision of social amenities was within the contemplation of both parties at the time of the sale of the said properties. b. Whether or not the Defendant agreed to replace the two properties, purchased by the Plaintiff, the subject matter of this suit, with properties either at East Legon Hills or Abelenkpe, in view of the delay in completion the said project. c. Whether or not the construction of the said houses purchased by the Plaintiff, as the said amenities have been completed by the Defendant. d. Whether or not the Defendant breached the contract between the parties for the construction of the two (2) houses. e. Whether or not the Plaintiff is entitled to compensation in view of the Defendant’s delay in the completion the said properties. ADDITIONAL ISSUES The Following additional issues were also filed by the Defendant: f. Whether or not the construction of the Plaintiff’s two houses have (sic) been completed. g. Whether or not the Plaintiff was compensated for the delay in completing the houses following the adverse claim by Zoomlion Ghana Ltd. h. Whether or not the Defendant is entitled to its counter-claim. The parties were then ordered to file their respective witness statements and they did. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT VIII. WITNESS STATEMENT OF THE PLAINTIFF’S LAWFUL ATTORNEY [21] The Plaintiff testified per a Lawful attorney, who filed a witness statement and a supplementary witness statement, exhibiting the power of attorney granted to him. In the witness statement, the Attorney stated that he is the Managing Director of Green Estates Co. Ltd; and it was his company, Green Estates, that identified and introduced the Defendant to the Plaintiff herein. The Attorney added that Green Estates concluded all negotiations with the Defendant before the Plaintiff executed the contract; and thus was exhibited a copy of the sales agreement executed between the parties. Same was admitted in evidence and marked Exhibit A. The Attorney further confirmed that each house was to cost US$65,000.00 and the Plaintiff US$110,000.00 leaving an outstanding balance of US$20,000.00; and Exhibits B and B1, the receipts said to evidence the payments made by the Plaintiff were also admitted in evidence. [22] Further, a copy of the letter said to have been written by the Defendant and assuring the Plaintiff that the works on the house would be completed by the 31st of August 2015 was also tendered and admitted in evidence as Exhibit C as well as pictures of the present state of the uncompleted houses. The Attorney concluded that till date, the two properties have not been delivered to the Plaintiff herein and the property has devalued and there are squatters therein. The Attorney thus tendered in evidence pictures showing the occupation of squatters without any objection from the Defendant. The Plaintiff’s Attorney thus prayed the Court to enter judgment in favour of the Plaintiff. The Plaintiff closed its case and called no other witness. IX. WITNESS STATEMENT OF THE DEFENDANT [23] The Defendant also testified per its Managing Director, who confirmed the cost of the two houses as US$130,000.00 and further confirmed that the Plaintiff paid a substantial part of the amount, leaving a balance of US$20,000.00. DW1 further confirmed that the house was to have been completed in six months; but he stated that in the course of JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT construction, Zoomlion laid adverse claims to the land and so the progress of the work stalled. It was as a result of the delay that the Defendant paid compensation of Gh¢12,000.00 to the Plaintiff to indemnify the Plaintiff as to his losses. [22] Contrary to what the Plaintiff averred, DW1 stated that there never was any agreement to replace the houses for the Plaintiff. DW1 concluded by stating that the houses were ready and furnished to be handed over and tendered in evidence some pictures, Exhibit 1 series; in its bid to state that the Defendant was entitled to its counterclaims. The Defendant also called no other witness(es) and the trial came to a close. X. THE BURDEN OF PROOF IN CIVIL CASES [23] This being a civil case, the burden of proof on a party in a civil suit is on a balance of probabilities, as was held in the case of Serwah v Kesse [1960] GLR 227 – 228 and also in sections 11(4) and 12 of the Evidence Decree, 1975, NRCD 323. Section 12 of NRCD 323 provides: (1) (2) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence. In the case of Ackah v Pergah Transport Limited [2010] SCGLR 728, the Supreme Court espoused section 10 of NRCD 323 and held thus: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree.” [24] Again, in the case of Yorkwa v Duah [1992 - 93] GBR 278, Brobbey JA (as he then was) stated that in civil cases, the obligation to adduce evidence should first be placed on the plaintiff. The onus of adducing evidence thus first lies on the plaintiff to adduce sufficient evidence to prove the fact that indeed, he is the legal and rightful owner of the property in question over the defendant. Viscount Dunedin in Robins v. National Trust Co [1927] AC 505 at 510 (PC) held: “Onus is always on a person who asserts a preposition or a fact which is not self-evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion because it is self-evident that he had been born. But to assert that he was born on a certain date, if the date is material requires proof: the onus is on the person making the assertion. Now in conducting any enquiry, the determining tribunal will often find that onus is sometimes on the side of one contending party, sometimes on the other side, or, as it is often expressed, that in certain circumstances onus shifts”. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT This was reiterated in the Ghanaian case of Bank of West Africa Ltd. v Ackun [1963] 1 GLR 176 – 182, S. C., where Sarkodee – Addo JSC stated: … But the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption of law has arisen. . . The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form." XI. EFFECT OF A COUNTERCLAIM [25] In the case of SASU BAMFO V SINTIM (Civil Appeal J4/26/2011) of 30thNovember 2011, the Supreme Court per Rose Owusu JSC (as she then was) held at page 155 as follows: "A counterclaim is a different action in which the defendant as a counter claimant is the plaintiff and the plaintiff in the action becomes a defendant. … Each of them bore the burden of proof and persuasion to prove conclusively, on the balance of probabilities that he was entitled to the reliefs claimed. Section 11(1) of the Evidence Act, 1975 (NRCD 323), enjoined the defendant in his capacity as a plaintiff in the counterclaim to introduce sufficient evidence to avoid a ruling on the issue against him." (Emphasis is mine) Likewise, the case of Aryeh & [2010] SCGLR 891 at 901, in which the Supreme Court again reiterated the burden of proof on a counterclaimant as follows: Akakpo Iddrisu v. Aya "A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent's case. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 0 In all this, the Court ought not to lose sight of the incidence of the burden of proof on a party and the need to adduce satisfactory evidence as laid down in the case of D zaisu v Ghana Breweries Limited [2007- 2008] SCGLR 539 , where the Supreme Court per Adinyira JSC (as she then was) held, in expounding on section 14 of NRCD 323, as follows: “It is a basic principle in the law of evidence that the burden of persuasion on proving all facts essential to any claim lies on whosoever is making the claim.” The Learned Justice of the Supreme Court went on to state: It is trite law that a bare assertion by a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. XII. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL VIS-A-VIS THE LAW [26] From the entirety of the trial, it is not in doubt that the Plaintiff entered into a sales agreement with the Defendant for the purchase of two completed houses at Afienya. Exhibit A was tendered in evidence by the Plaintiff’s Attorney; but it really did not include the details of exactly what was to go into the furnishing and finishing of the houses; and did not also include the amenities that the Plaintiff was to be entitled to in Exhibit A, under the said community. At INTERPRETATIONS, it was provided: clause 1 (1) of 1. 1.4 House: shall mean the dwelling place and structure that shall be construed in accordance with agreed specifications by the Developer for sale to the Purchaser. “Estate” – shall be the residential estate comprising the dwelling houses and social amenities as constructed on the developed land by the Developer. (Emphasis is mine) Even though social amenities were included in the above, I find the above are generally so vague that the exception to the extrinsic JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 1 evidence rule would have to be relied upon to determine the true intentions of the parties and the details thereof of the contract they executed. [27] This was the holding of the Court in the case of Adae vrs Eyiah [1972] 2 GLR 358-371, where Abban J (as he then was) held: In such cases, it was better to get to the true intention of the parties, not by following strictly the language used in the document, but by looking at the evidence as a whole, the situation of the parties and also the surrounding circumstances. Thus considering the oral evidence side by side with the agreement, the intention was that the defendant should construct a two storey building of ten rooms plus an outhouse and not twenty rooms. The Court further held: Although the written agreement did not contain any stipulation as to the party who was to bear the extra costs, the oral evidence of the defendant that the plaintiff was intended to be responsible for the payment of any extra cost of building materials was admissible as an exception to the extrinsic evidence rule. This was one of the cases where extrinsic evidence should be accepted in order to get to the true intentions of the parties, and the real terms of the agreement. (Emphasis is mine) [28] I thus find the same in these circumstances, especially when the entirety of Exhibit A also did not appear to have taken into consideration this present situation that has arisen between the parties. Indeed, there was no mention of the consequences of a default on the part of the Defendant, the vendor and so I would proceed to deal with the legal issues set down for the trial as follows: XIII. LEGAL ISSUES 1. ISSUES (A), (C) AND ADDITIONAL ISSUE 1 - Whether or not the provision of social amenities was within the contemplation of both parties at the time of the sale of the said properties. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 2 - Whether or not the construction of the said houses purchased by the Plaintiff, and the said amenities have been completed by the Defendant. - Whether or not the construction of the Plaintiff’s two houses have (sic) been completed. [29] From the trial and the evidence adduced by the parties, it is not in doubt that the Plaintiff was not purchasing the two houses in isolation but was purchasing them in a gated community of some sort to be established or already established by the Defendant herein. Even from the pictures tendered in evidence by the Defendant’s witness, DW1, Exhibit 1 series, it could clearly be seen that there were numerous structures close to each other and all built in accordance with one style or model. I take judicial notice of the fact that there are several, in fact, many other real estate development gated communities here in Ghana, and most of them have the communal amenities that the Plaintiff was talking about, and sometimes even more. Indeed, under cross-examination, the Plaintiff’s lawful attorney gave the answers below: Q: A: So you would agree with me that per the agreement it was not mentioned anywhere, that there will be a club house, swimming pool and most of the items you mentioned in paragraph 8 of your witness statement. Per the agreement that is so, but prior to approaching Redrow for the property, we saw materials advertising the features of the property that they had on sale off plan. Off plan sales means that the real estate company markets a portrait with prospective features of the building to prospective clients. As such Redrow marketed a full functional gated community to us and that is what peaked our interest in the first place. Q: I am putting it to you that the defendant never represented to you that they were going to provide all the JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 3 amenities that you mentioned because per Article 20 of the agreement, exhibit A A: According to the agreement, it is not in there, but as I mentioned earlier that was what was advertised. [30] With all due respect to the Defendant and its Counsel, it is the case of the Defendant that it is permitted to advertise one thing and present yet another to its paying customers? I find it more probable than not, that the Defendant represented to the Plaintiff that all those amenities would be in place in the community, though it is a fact that those amenities were not what the Defendant sold to the Plaintiff in the sales agreement, Exhibit A. It is again obvious and clear that the amenities said to be present were what attracted the Plaintiff to the Defendant’s project; and the amenities listed at paragraph 7 of the Plaintiff’s statement of claim are not so out of place or so outrageous that they cannot be provided by any real estate developer. I therefore find it reasonably probable, that the social and communal amenities listed by the Plaintiff and said to be provided by the Defendant were very well within the contemplation of both parties at the time of the execution of the contract, but the Defendant now seeks to deny same simply because he has been unable to fulfil its part of the contract. [31] With respect to the second issue and additional issue 1, I find from the pictures tendered in evidence by DW1, the Exhibit 1 series that the houses in the pictures are not what a paying customer would want to be presented with after paying for the purchase of a brand-new house. The houses, appear to be completed, on the face of the pictures exhibited; but they did not appear neat to me, and Exhibit 1, specifically, showing the outside of the house was weedy with no definite landscaping. Exhibit 1A also, for instance had slabs or concrete strewn over the front, Exhibit 1B showed pictures of an untidy and moldy compound and the kitchen, though it appeared finished, had items lying atop the cabinets and lying around. In Exhibit 1C, some of the glass windowpanes were lying on the counter, unfixed. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 4 [32] The Defendant was unable to satisfactorily establish to this Court, in my candid opinion, that the houses were completely finished and were ready to be handed over to a paid up. Indeed, the Defendant knew these pictures were to be tendered in evidence in Court and yet it is obvious that the Defendant did not take any pains to clean and beautify the premises a bit before the pictures were taken. Indeed, the valuation and assessment report ordered by the Court, Court Exhibit 1 (CE "1"), clearly supports the findings of this Court, that the house were uncompleted, and the finishing very poorly done. Furthermore, I find that the pictures tendered in evidence by the Plaintiff rather speak to the actual state of the houses; and I find satisfactory evidence adduced by the Plaintiff to confirm that there were even squatters in one of the houses. [33] More likely than not, these squatters may be workers of the Defendant because I again take judicial notice of the fact that in such constructions, if care is not taken, the workers and artisans and security men of the owners sometimes take over the premises and use same before the handing over to the purchasers. From the above, I cannot, with all due respect, come to the honest conclusion that the houses in question have been completed, save that the Plaintiff’s attorney admitted under cross-examination that they have the keys to one of the houses. The communal amenities have also clearly not been finished and so the above issues cannot be resolved in favour of the Defendant herein. I proceed to deal with the following issues: 2. ISSUE (B) & ADDITIONAL ISSUE 2 - Whether or not the Defendant agreed to replace the two properties, purchased by the Plaintiff, the subject matter of this suit, with properties either at East Legon Hills or Abelenkpe, in view of the delay in completion the said project. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 5 - Whether or not the Plaintiff was compensated for the delay in completing the houses following the adverse claim by Zoomlion Ghana Ltd. [34] I find at this stage that whether or not the Defendant agreed to replace the properties for the Plaintiff is of no import because the parties are now before the Court. There is also no written document to that effect, and I find it is the word of the Plaintiff against that of the Defendant. In law it is called oath against oath. It has therefore been held that when the oral evidence before the court consisted of the oath of one witness against that of another it was essential to take into consideration other circumstances or matters that might have been brought to the knowledge of the court. The law did not preclude a judicial decision based on the evidence of a single witness if the evidence was found to be true. See: Republic vrs Asafu-Adjaye (No. 2) [1968] GLR 567-594 Ayiwah v Badu [1963] 1 GLR 86 The evidence adduced does not establish any proof that the Defendant agreed to replace the houses and there is no documentary evidence to that effect. I thus hold that the Plaintiff was unable to substantially establish that the Defendant agreed to replace the houses, especially in this instant case where the Defendant denies and dispute every assertion made against it. [35] With respect to the payment of Gh¢12,000.00 said to have been paid by the Defendant to the Plaintiff, it is obvious that the Defendant made that payment on account of the Defendant’s inability to complete the two houses at the specified time. The parties are ad idem on the fact that there were talks about renting out at least one of the properties; and so the Defendant paid Gh¢12,000.00 as probable rent of Gh¢1,000.00 a month for 12 months. The Gh¢12,000.00 could be said to be compensation; and the question to ask is: “Is that amount of Gh ¢12,000.00 adequate compensation for the Plaintiff?” Bearing in mind the fact that the Plaintiff made payment by November 2014 of a substantial part of the purchase price and ought to have received the houses by May 2015 but the Plaintiff has till date not received the houses? I find that the so-called compensation of GH¢12,000.00 is JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 6 woefully inadequate; and the issue of compensation will thus be determined in the subsequent issues set down as follows: 3. ISSUES (D), (E) & ADDITIONAL ISSUE 3 - Whether or not the Defendant breached the contract between the parties for the construction of the two (2) houses. - Whether or not the Plaintiff is entitled to compensation in view of the Defendant’s delay in the completion the said properties. - Whether or not the Defendant is entitled to its counterclaim. [36] In the case of Deshina Building Works Ltd. V. Buah [1980] GLR 390-403, the Court held: “In a building contract, even where time for completion was agreed upon and there could therefore be no doubt that time was of the essence of the contract, the contractor was relieved of his obligation to complete the works within the stipulated time if, as happened in the instant case, completion was made impossible by delay caused by the employer…” In this present case before this Court, the Plaintiff herein had nothing to do with the construction. He had paid a substantial amount of the purchase price of US$110,000 left with US$20,000.00 but it is clear that from 2015 till the Defendant’s pictures were taken in 2018, the Defendant had still not handed over the houses to the Plaintiff. [37] The Defendant’s defence was that it had litigation with Zoomlion, a company which purported to lay adverse claims to the Defendant’s land; and yet, the Defendant did not adduce even one iota of evidence to establish that the litigation indeed affected specifically the land that the Plaintiff’s houses were to be built upon. In Majolagbe v Larbi & 2 Ors [1959] GLR 190, the Court held: JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 7 “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, by producing documents, description of things, reference to other facts, instances, or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances for which the court can be satisfied that what he avers is true” Further, in AG &10 Ors v Anthony & 2 Ors [2015] 86 GMJ at 218, the Court again held: “Where the evidence led by the witness was just a repetition of the averments in the pleadings, that is not proof in law as enunciated in Majolagbe v Larbi [1959] GLR 190 and explained in Zabrama v Segbedzi [1991]2 GLR 221” [38] The Defendant added that the houses were now complete, but there is again no evidence to establish that the so-called litigation is over. As a result, I find that the Defendant did breach the terms of the contract with the Plaintiff when it failed to deliver within the requisite period and I am fortified in my decision by the case of Arthur v Ahey Ltd [1984-86] 1 GLR 220-236, where Ansah – Twum J. held: It is my view that time being of the essence of the contract in this case, there is a breach of the contract when the contractor failed again to complete the works within the agreed extended period which expired on 30 June 1980. [39] The Court further held: It is my view that the defendants failed to discharge the burden to prove that the plaintiff was responsible for any delay or default which prevented them from completing the works within the contract time… JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 8 It is trite law that any person who is capable of entering into a bargain is bound by the terms of his bargain if he does enter into it. So as stated in Cheshire and Fifoot, The Law of Contract (5th ed.) 21: "A contracting party, unlike a tortfeasor, is bound because he has agreed to be bound." (Emphasis is mine) In the present case, I hold that the Defendant failed to discharge that burden to prove that it was some litigation which prevented it from completing the houses within the time specified in the agreement between the parties; and in the absence of evidence to so establish. The Plaintiff was also able to tender in evidence a correspondence from the Defendant and which categorically assured the Plaintiff that the property would be completed in August 2015, as Exhibit C, and having failed to complete the houses within the extended period, I hold that the Defendant breached the contract between the parties as was held in the Arthur v Ahey case supra. [40] Indeed, once I have found that the Defendant breached the contract between the parties, the Plaintiff is entitled to recover the losses incurred. As a result, the Court commissioned AESL to prepare a report and which was duly tendered and admitted in evidence without any objection. Counsel for the Plaintiff, in her written address cited portions of the report and I reproduce the portions below: “The said report was tendered and marked as Court Exhibit 1 (CE "1"). My lord on page 1 of the said report (C. E. 1), Clause 2.0 headed Site Measurement states that on the 8th of August, 2018, the officials of A. E. S. L visited the site to assess the works. On page 2, Clause 5.0, headed Observations, the report stated that during the visit, some observations were made which include: 1. Ceiling showing some sign of leakage in roof. JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 9 2. Cracks in columns. 3. Cracks in fence wall. 4. Damaged Fence Gate. 5. Weeds on site. 6. Uncompleted paving. The report therefore concluded that there were outstanding works to be carried out on the said properties and also indicated that, the estimated cost for the outstanding works is eighty-five thousand nine hundred and ninety-five Ghana Cedis thirty-six pesewas (GH¢85,995.36)” [41] None of the above was disputed by the Defendant; and the Valuer from AESL, who was before the Court to tender in evidence the said report was never contracted. The Defendant and his Counsel did not adduce any evidence to contradict the above, and so the findings made on the houses in contention by the Valuer thus remain undisputed. In his article, “Assessment of Damages” by His Lordship Yaw Appau JA (as he then was), he wrote thus: “One of the remedies that flow from a breach of contract is DAMAGES. … Damages are the normal remedy for a contracting party who suffers as a result of a breach of contract by the other party. In a claim for damages, the court considers two main factors or matters; (a) remoteness of damages (i.e. the proximate cause of the breach) and (b) the measure of damages (i.e. the quantum or amount to be awarded). Measure of Damages – The arithmetic calculation or computation of how much money must be paid by the party in breach to the party suffering from the breach of the contract. This is backed by commonsense.” JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 0 XIV. CONCLUSION [42] The Plaintiff is therefore entitled to damages for breach of contract and further, for the above reasons, I do hereby enter judgment in favour of the Plaintiff herein for the following reliefs: a) An order by the Court to the Defendant to complete the construction of the said houses and hand over the same to the Plaintiff, based on all the outstanding works indicated in the valuation report from AESL, “Court’s Exhibit 1.” This Court intended to grant the alternative relief of the Plaintiff as follows: Payment of the sum to be assessed by the Court as able to fully complete the said houses and make them comply with the contract to the Plaintiff. But I find that the valuation report which I ought to rely on is dated 2018; and due to the current economic situation, inflation and the efflux of time, it will be unfair to rely on the 2018 report to make the assessment for the monies to be paid at the date of judgment. It is in that regard that I grant the above relief (a). The following reliefs sought by the Plaintiff shall also be granted: b) An order to the Defendants to comply and perform its contract as between the Plaintiff and the Defendant. c) Damages for breach of contract and this Court shall award general damages in the sum of Gh¢200,000.00 in the Plaintiff’s favour. d) With costs of Gh¢100,000.00 also in favour of the Plaintiff herein and against the Defendants. [43] The Defendant counterclaimed for the following: JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 1 i. ii. Recovery of an amount of US$20,000 or its cedis equivalent being outstanding balance on the two detached three-bedroom house which was due for payment in March, 2017 which the Plaintiff has failed to pay; Interest on the said amount at the prevailing rate of commercial interest from 1st April 2017 till date of final payment. iii. Cost including Solicitors fees. I however hold that the default and the breach of the contract is on account of the Defendant’s non – performance, and the Defendant ought not to be allowed to benefit from its breach. The counterclaims of the Defendant shall thus be dismissed in their entirety, save that the Plaintiff is entitled to pay the balance of US$20,000.00 after the houses have been handed over to the Plaintiff herein. I further agree with the submissions of the Plaintiff’s Counsel, that the rate applicable to the payment of the US$20,000.00 shall be the rate as at 2015, when the breach occurred; and not the present rate in order that the Defendant will not be unjustly enriched, seeing that the Defendant occasioned the breach. [44] Judgment thus entered in the Plaintiff’s favour for the reliefs as enunciated above. The Defendant is only entitled to recover the US$20,000.00 at the rate prevailing in 2015 from the Plaintiff herein; and so the Plaintiff shall pay that amount to the Defendant after the houses have been handed over to the Plaintiff in full compliance with all works indicated in Court’s Exhibit 1. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 2 TEMA. GREATER ACCRA REGION 8TH DECEMBER 2023. COUNSEL: DELPHINA OKUTU FOR D. K. AMELEY FOR THE PLAINTIFFS ISSAH MAHAMADU IMORO HOLDING ANTHONY NAAMO’S BRIEF FOR THE DEFENDANT JUDGMENT – FELIX AGYEI-DARKO vrs REDROW DEVELOPMENT 3