BEKOE AND OTHERS VRS. WAMP INVESTMENT LIMITED (C12/01/2014) [2023] GHAHC 679 (15 December 2023)

IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON FRIDAY THE 15TH DAY OF DECEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE SENYO AMEDAHE SUIT NO:C12/01/2014 1. NANA OKATAKYIE BEKOE 2. NANA OSOFO KYENKU OPARE II 3. RICHARD KWADWO DARTEY : PLAINTIFFS VRS: WAMP INVESTMENT LIMITED : DEFENDANT _______________________________________________________________________ JUDGMENT _______________________________________________________________________ On 2nd August, 2013, the plaintiffs in this case, Okatakyi Bekoe Il, Nana Osofo Kyenku Opare Il and Richard Kwadwo Dartey commenced this action against the defendant- company claiming the following reliefs endorsed on the writ of summons, An Order for the lease dated the 4th day of March, 2010 to be terminated. In the alternative, ii. An Order for the defendant-company to surrender the lease dated the 4th day of March, 2010 to the plaintiffs, iii. An Order that the leasehold agreement dated the 4th day of March, 2010 be repudiated iv. A consequential Order for the plaintiffs to go into account with defendant on all monies purported to have been paid to the plaintiffs by the defendant-company and for same to be refunded to the defendant-company. The Writ of Summons was amended on 17th of March 2022. On the 9th day of August, 2013, K, AMOAKO-ADJEI ESQ who was at the time of entering appearance with YAW BARIMAH & CO of AFISEM CHAMBERS, entered an appearance for and on behalf of the defendant-company. On 28th March, 2017, STEPHEN ASANTE BEKOE ESQ. of YAW BARIMAH & CO. filed a NOTICE OF CHANGE OF LAWYER and indicated his address of service as follows: - YAW BARIMAH & Co. SCIENCE MUSEUM CHALLETS NO. 8 NEAR WORKERS COLLEGE BANES ROAD, ACCRA It is instructive to mention that STEPHEN ASANTE BEKOE ESQ. on that very day, he also filed a Statement of Defence and a Counterclaim for the Defendant. The plaintiff, with the leave of the Court filed an AMENDED WRIT OF SUMMONS AND STATEMENT OF CLAIM on 17th March 2022 and served same on counsel for defendant-company. Though the Amended Writ of Summons and amended Statement of Claim were served on counsel for defendant-company, counsel for defendant- company refused, failed or neglected to file an amended Statement of Defence & Counterclaim, Consequently, on 12th May, 2022, the Plaintiffs filed a Reply and a Statement of Defence to defendant-company's counterclaim mounted against the plaintiff. The Plaintiff also filed on the same day, an APPLICATION FOR DIRECTIONS. Here again, defendant- company did not file any additional issues for determination by this Honourable Court. At the close of pleadings, the following were set down by this Honourable Court as triable issues for determination, these are: i. Whether or not there was a contract for lease made between the plaintiffs and the defendant-company, Whether or not the plaintiffs and defendant-company settled on the purchase price for the land which is the subject matter of this dispute. iii. Whether or not defendant-company paid the purchase price (if any) of the land in dispute to the land owners and if so how much was paid to the families. iv. Whether or not the lease signed by the plaintiff on the 4th day of March, 2010 to the defendant-company was fraudulently obtained. v. Whether or not the lease signed on the 4th day of March, 2010 for the defendant-company was intended to be plotted or intended to be used to raise funds to pay for that purchase price of the land. vii. Whether or not the defendant-company incurred sum of US$465, OOO for survey and mapping out and demarcations of family lands. viii. Whether or not the principals of the defendant-company remitted monies in US Dollars to the defendant-company for purposes of this land transaction at Obosomase Akuapem. Pursuant to this, this Honourable Court made an Order for the parties herein to file their respective Witness Statements and Check List in accordance with the Rules and Practices of this Honourable Court. On the 4th July, 2022, the Plaintiffs dutifully filed their Witness Statements and Check List as directed by this Honourable Court and caused same to be served. Surprisingly, the defendant-company again refused, failed or neglected to file its Witness Statement and Check List as directed by this Honourable Court. After a number of Hearing Notices had been issued and served on the defendant- company, and after the defendant-company by itself or counsel had declined to attend court, this Honourable Court commenced trial on the 7th day of June, 2020 BURDEN OF PROOF IN A CIVIL ACTION Being a civil case, the law requires that proof ought to be by preponderance of probabilities; Section 11(1) and (4) the Evidence Act, 1974, NRCD 323, states thus. (1) "For the proposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party" 11(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence leads a reasonable mind to conclude that the existence of the fact was more probable than its non— existence. Section 10 of the Evidence Act provides as follows: "For the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court." From the foregoing it is clear that whatever fact a party alleges, he must provide sufficient evidence to prove same. These provisions in the Evidence Act, 1975 (NRCD 323) have received definite judicial pronouncement in the following cases. SSNIT V ABOTARE YE CHOP BAR [2018] 120 GMJ 190 where the Court of Appeal speaking through Aduama Osei JA stated that "The principle is well settled that in law, the burden of proof always lies upon the party who would lose if no evidence is led in the case and that where some evidence has been led, it lies upon the party who would lose if no further evidence was led." See Also: 1. DON ACKAH V PERGA TRANSPORT [2011] 31 GMJ 2. DZAIZU V GHANA BREWERIES LTD [2007-2008] SCGLR 545 3. BARKERS- WOODE V NANA FITZ [2007-2008] 2 SCGLR In providing evidence it is not only required that the party on whom the burden of persuasion lies, must call witnesses to testify to the assertion or tender in, documents in direct support or reference to the issue, but most importantly, the Court would have to consider the totality of the evidence, as given by the parties and witnesses to conclude by preponderance of probabilities the existence or non— existence of the asserted fact. The Defendant equally bore the same burden to prove their counterclaim. See: SASU BAMFO V SINTIM (2012) 1 SCGLR 136. In YAW ABOAH DJIN V MADAM RANDI LARTEY & 2 ORS (2019) 141 G. M. J 73, The Court of Appeal per Kusi-Appiah JA held as follows: "A counter claimant before the trial court assumes the same burden that a Plaintiff in the substantive writ had if he is to succeed". In Civil suits, a party who makes an averment which is denied bears the burden of proof except where provided by law and that the degree of proof is by the preponderance of probabilities”. Likewise, the law imposes an equal burden of proof on a counterclaimant whose counterclaim stands as a separate action see NANA BAFFOUR GYAWU VRS YAW ADU GYAMFI (2019 129) GMJ at p. 131, CA. It will not be enough for the Plaintiff to mount the witness box and later line up witnesses repeat what she has said from the witness box. To obtain judgement in her favour she is expected to meet a legal requirement which is to prove the truth or the existence of the truth of her case on a preponderance of probabilities. That is to make her story more probable than it being false. EVIDENCE OF THE PLAINTIFF It must be noted that the defendant who did not participate in the entire hearing of this case was given the opportunity to do so but she refused to participate. Though an appearance was entered on behalf of the Defendant and a defence and counterclaim filed for the defendant company, it did not contest the suit in open Court. The common law is clear that a party must not receive adverse ruling by a court of competent jurisdiction unless he or she is heard. This is popularly referred to in Latin as the audi alteram partem rule. Commenting on the said rule, His Lordship Kpegah JSC (as he then was), in the case of AWUNI VRS. WAEC (2003-2004) SCGLR 471, indicated that. . .“the phrase,…” to act fairly and reasonably”, in my opinion necessarily import a duty to observe the common law maxim of audi alteram partem and the principles of natural justice which is very much part of our jurisprudence….”. This Court after it had satisfied itself that the Defendant Company was served with its processes together with the required hearing notices the Plaintiff was asked to prove his case against the Defendant Company BISMARK JOE ODOI, the lawful attorney of plaintiff herein mounted the witness box on the 7th of June, 2023. He was led in evidence by Counsel for plaintiffs and he tendered in his Witness Statement as well as the Exhibits "A" – J” under oath and same were admitted into evidence by this Honourable Court. A. EVIDENCE-IN-CHIEF OF PW1—BISMARK JOE ODOI The evidence of PW is found in the Witness Statement of Bismark Joe Odoi, same of which was filed on the 4th of July, 2022. He introduced himself as the appointed Attorney of the Plaintiffs who gave him the authority to prosecute this matter for and on their behalf. He tendered the Power of Attorney donated to him as Exhibit ‘A’. He told the Court that he knew the Defendant Company as a limited liability Company. He mentioned Mr. Mordecai Quarshie as the Chief Executive Offer of the Defendant Company whom he has dealt with at material times for and on behalf of defendant Company, that is, WAMP INVESTMENTS and has represented WAMP Investment at all meetings he had with the Company. He mentioned that he knows as a fact that the plaintiffs are the Heads and Lawful representatives of the Asona-Aduana-Abrade and Asona Family of Obosomase- Akuwapem in the Eastern Region who own tracts of land at Obosomase-Akuapem. He mentioned the total acreage of land owned by the families who constitute the Asona-Aduana-Abrade and Asona Families of ObosomaseAkuapem as approximately 586.84 Acres. He also identified the land of the Asona-Aduana-Abrade and Asona Family lands situate and lying at Obosomase-Akuwapem in the Eastern Region of the Republic of Ghana. This is found in paragraph 4 of his Amended Statement of Claim filed on the 17th day of March, 2022. He told the Court that on or about March, 2010, the defendant/company, acting through Mr. Mordecai Quarshie approached the Plaintiffs and expressed his desire to acquire portions of Plaintiffs' land for residential development pursuant to an agreement reached between the Plaintiffs and the defendant-company acting through Mr. Mordecai Quarshie, the Plaintiffs agreed to lease to the defendant-company 586 acres of land situate and lying at Obosomase-Akuapem in the Eastern Region for valuable consideration. According to him at the time of negotiations with the defendant-company through Mr. Mordeccai Quarshie in March, 2010, Plaintiffs offered to convey their interest in the land to the defendant-company at a total purchase price of Seven Hundred and three thousand and two hundred Ghana Cedis (GH¢703,200) As part of the terms of the agreement a consideration of Seven Hundred and three thousand and two hundred Ghana Cedis (GH¢ 703,200) was to be paid over a period of three (3) years commencing March, 2010. The parties also greed that transfer of the proprietary interest in the land for the Plaintiffs to the Defendant Company was subject to the Payment of the purchase price/contract price of the Seven Hundred and three thousand, two Hundred Ghana Cedis (GH¢703, 200) After they had settled on the purchase price which also happens to be the contract price of Seven Hundred and three thousand, two hundred Ghana Cedis (GH¢703,200) with the defendant/company, Mr. Mordecai Quarshie who was at all material times acting for and on behalf of the defendant-company intimated to the plaintiffs that the company lacked the capacity to pay Seven Hundred and three thousand, two hundred Ghana Cedis (GH¢703,200) as agreed. As a result, Mr. Mordecai Quarshie requested the plaintiffs to give him time to source for funding from friends, family relations and or financial institutions to pay off the contract price of Seven Hundred and three thousand and two hundred Ghana Cedis (CH¢ 703,200). After a while, Mr. Mordecai Quarshie approached the Plaintiffs and informed the Plaintiffs that he (Mr. Mordeccai Quarshie) had secured investors who were willing and prepared to fund the land acquisition of the defendant-company. Mr. Mordeccai Quarshie indicated to the Plaintiffs that all that his investors required was a signed leasehold agreement evidencing the land transaction between the Plaintiffs of the one part and the defendant company of the other part, Mr. Mordeccai Quarshie thereafter requested the Plaintiffs to sign off a leasehold agreement for the defendant-company to support the defendant-company's application to financial institutions who were willing and prepared to fund the defendant-company's purchase of the land at Obosomase-Akuapem for residential purpose. Pursuant to this agreement, the Plaintiff on the 4th day of March, 2010 signed off a leasehold agreement for the defendant-company for the limited purpose of raising funds to pay off the purchase price/contract price of the land owned by the plaintiffs. A copy of the signed Leasehold Agreement was tendered marked as Exhibit "B" The Plaintiff’s Attorney in his evidence emphasized that both parties being the Plaintiffs and defendant company agreed that the signed leasehold agreement was to be used for the limited purpose of securing funds for the defendant-company and not intended to be plotted or registered at the Deeds Registry, Koforidua. According to him it was not meant transfer, convey or alienate proprietary interest in the land to the Defendant-Company. However, to their utmost surprise of the Plaintiffs, the defendant-company acting per its true and lawful attorney, Mr. Mordecai Quarshie has plotted or caused his purported interest in the leasehold agreement made the 4th day of March, 2010 to be plotted at the Deeds Registry, Koforidua in the name of the defendant-company without paying any monetary consideration to the plaintiffs. Sometime in 2011, after the defendant-company had defaulted and completely reneged on its payments and was in absolute breach of the terms, conditions and stipulations of the leasehold agreement dated 4th March, 2010, the defendant- company unilaterally proposed to increase the purchase price/contract sum of the land from Seven Hundred and three thousand and two hundred Ghana Cedis GH¢703,200 to Eight Hundred and Twenty thousand and four hundred Ghana Cedis (GH¢820, 400). His offer of GHC820, 400 was not acceptable by the Plaintiffs. Consequently, on the 4th day of April, 2011 Plaintiffs made a counteroffer to the defendant-company and offered to sell 586.84 acres of land at a price of GH¢2,500 per acre, thereby bringing the total purchase price to GH¢1,467,100. The Defendant failed to respond to the letter dated 4th day of April, 2011 which informed him of his default in paying the price of the land and the new offer made to him. This was Exhibited and marked as Exhibit "C". The letter dated 4th April, 2011 informed him of their displeasure of his delayed pay. That he had defaulted for three years and made him a new offer of GH¢2, 500 acres and gave him one week to effect payment at the new price of loose the deal. Pursuant to the Plaintiffs letter dated the 4th day of April, 2011, plaintiffs on the 30th day of May 2011 wrote to the defendant-company through Mordecai Quarshie, informing the defendant-company among other things as follows: a. that we are giving you two (2) days to show your commitment by honoring your part of the arrangement. b. That failure to do so would mean that you are no more interested in the land. A copy of Plaintiffs' letter dated the 30th day of May, 2011 is herein attached and marked Exhibit "D". In response to Plaintiffs' letter dated 30th May, 2011, Defendant- Company in a letter dated 2nd June, 2011 assured Plaintiffs among other things that the defendant-company remained committed to paying in full for the land. Defendant-Company's letter dated 2nd June, 2011 also indicated assured plaintiffs of payments by the 30th day of June, 2011. On the 17th day of September, 2011, Defendant-Company wrote to plaintiffs informing plaintiffs that the Defendant-Company would pay interest of 5% per annum on all outstanding payments due to the land owners. A copy of the defendant-company letter dated 17th September, 2011 is herein attached and marked Exhibit "F". It is instructive to mention that to date, the defendant-company has not lived to his promises and or assurances to pay interest on the purchase price of the land. In another letter dated the 8th day of March, 2012, the defendant company, acting per its true and lawful attorney, Mr. Mordecai Quarshie, unilaterally proposed to increase the contract sum or purchase price from Eight Hundred and Twenty-Four Thousand, four Hundred Ghana Cedis (GH¢824,400) to One Million, one hundred and seventy-two thousand Ghana Cedis (GH¢1,172, 0000). A copy of the defendant- company letter proposing to increase the contract sum or purchase price to One Million, one hundred and seventy-two Ghana Cedis (GH¢1,172,000) was tendered as Exhibit ‘G’. In Defendant-Company's letter dated 8th March, 2012 (Exhibit "G"), the defendant- company undertook to make payments on or before the 30th day of April, 2012 and further gave plaintiffs the assurances that the final payment with respect to the purchase price of the land based upon defendant-company's offer would be made by the 30th of June, 2012, In spite of all the assurances made by the Defendant-Company in Exhibit "G", the Defendant-Company never paid any money to the plaintiffs, having failed, refused or neglected to fulfill his terms of payment, the Defendant-Company in another letter, dated the 14th day of March, 2012, wrote to plaintiffs requesting plaintiffs to give an undertaking that the Defendant-Company had fully paid for the land in issue. A copy of defendant-company letter dated the 14th day of March, 2012 is herein attached and marked Exhibit "H". This is what the defendant-company said in the letter dated 14th March, 2012 (Exhibit “H”). "We hereby humbly request a full payment undertaking from you. This is to facilitate the raising of investor funds to complete the payment of debt owed you as a result of outstanding payments for land purchased from you" It is surprise, the defendant-company in a letter dated 28th June, 2012 wrote to inform the plaintiffs that he (defendant company) had reviewed the purchase price for the second time upwards from GH¢820, 000 to GH¢1,172, 000. A copy of the defendant- company letter dated 28th June, 2012 exhibited as and marked Exhibit J. The defendant-company in the same letter dated 28th June, 2012 informed the plaintiffs that he had made payments of GH¢430.000 to the plaintiffs. Plaintiffs vehemently deny being paid GH¢430.000 by the Defendant -Company and challenge the Defendant to produce cogent evidence in support of this purported payments made by the Defendant-Company to the plaintiffs. It is the prayer of the Plaintiffs that the Court should declare that the defendant- company has no title in the land purportedly supported by a leasehold agreement dated the 4th day of May, 2010 from the plaintiffs and urged the Court to grant all of their reliefs endorsed on the writ of summons. The Plaintiffs Attorney’s evidence with the support of the documents tendered were very crucial but it was unfortunately not challenged in cross examination, though the Defendant-Company was given all the opportunities to do so. WAS THERE A CONTRACT AT ALL BETWEEN THE PARTIES It is trite mentioning that the ingredients of a valid contract are Offer, Acceptance and Consideration. The question that confronts this Honourable Court is whether or not there was an offer, acceptance and consideration. From the evidence adduced by witness, the Plaintiff initially agreed to offer the land for sale at a Purchase price of GH¢703,200 (See paragraph 11 of PW Witness Statement). The Plaintiff’s Attorney in paragraph 24 of his Witness Statement led evidence to proof that the defendant company sometime in 2011, after it had defaulted and completely reneged on its payment was in absolute breach of the terms, conditions and stipulation of the leasehold agreement dated 4th March, 2010 made a counter offer to increase the Purchase Price from GH¢703,200 to GH¢820,400. The witness in paragraph 25 of his Witness Statement said that "the Defendant- Company offer of GH¢820,400 was not accepted by the Plaintiffs", In paragraph 26 of Attorney’s Witness Statement, the witness tendered in a letter dated the 4th day of April, 2011, which letter makes a counter offer to Defendant- Company offer of thereby increasing the Purchase Price to GH¢1,467,100 (See Exhibit C). It is instructive that instead of accepting Plaintiffs' offer of (GH¢1,467,100) as indicated in Exhibit "C", the Defendant-Company made another counter offer and offered to pay an amount of GH¢1,172, 000 (See Exhibit "H” dated 12th June 2012). From the foregoing, there was no offer as the defendant-company declined the Plaintiffs offer and made counter-offers which in law negates or vitiates the offers made by the plaintiffs, DID THE PLAINTIFFS' DEMONSTRATE AN INTENTION TO TERMINATE AND OR REPUDIATE THE LEASEHOLD AGREEMENT? The intention of the Plaintiff to terminate or repudiate the Leasehold made on the 10th day of March, 2010 between the Plaintiffs and the Defendant-Company was communicated by the Plaintiffs to the Defendant Company. This is found in the letter written to the Defendant Company dated 30th May 2011 as follows: That we are giving you two (2) days to show your commitment by honoring your part of the arrangement, a. That failure to do so would mean that you are no more interested in the land. This Letter was tendered as Exhibit "D" The Defendant at this stage did not accept the offer made by the Plaintiff; hence there was no contract. If even there had been a contract between the parties the Defendant-Company was in breach of the terms, conditions and stipulations of the leasehold agreement for which reason, it leads to a termination of the leasehold agreement made the 4th day of March, 2010. LEGAL EFFECT OF AN UNCHALLENGED PIECE OF EVIDENCE The court takes note of the fact that the evidence of the Plaintiffs remains challenged after cross-examination. Legal giants such as Adumuah-Bossman, and Taylor JJSC (as they then were) had adjudged in AYIWAH VRS. BADU (1963) IGLR 86 @ 95; FORI VRS AYEREBI (1966) GLR 627 AT 645; BILA VRS SALIFU (1971) 2 GLR 87, that the legal effect of a counsel failing to challenge a witness by way of cross examination on the issue vital to the success of his client's case is that his client admits the fact asserted by the witness. Justice Taylor (as he then was) sums it up in BILA VRS. SALIFU (Supra) as follows: - "the Failure of the appellant to challenge this evidence was in effect an admission of the allegation." In the recent case of KWADWO APPIAH VRS KWABENA ANANE (2020) UNREPORTED SC, (CIVIL APPEAL) SUIT NO. J4/42/2019 (22 ND JANUARY, 2020), AMEGATCHER JSC speaking through the Supreme Court had this to say: - "It is a basic legal proposition in admissibility of evidence, though, subject to some exceptions which do not apply in this case that where evidence is tendered and not objected to, the party who should have objected would be deemed to have admitted it. Again, if evidence is tendered and a party fails to cross-examine so as to challenge its veracity, the party, subject to some exceptions which are inapplicable here would be deemed to have admitted the contents of the evidence". From the foregoing, once the Plaintiff Witness and PWI had tendered their evidence-in-chief the Defendant-Company was Statute bound to cross-examine the Witnesses but, it squandered the opportunity as neither Defendant-Company nor counsel for Defendant-Company came to attend court to do the needful. That being so, the defendant-company would be deemed to have admitted the evidence of the Plaintiffs. CONCLUSION In conclusion, I hold that Plaintiffs have discharged their burden of proof in this civil matter on a preponderance of probabilities as provided under Section 12 (2) of the Evidence Decree, 1975 (NRCD) 323. Particularly the Plaintiffs have proved that the Defendant Company reneged on the agreement it had with the Plaintiffs on the 4th of March 2010 to pay a valuable consideration of SEVEN HUNDRED AND THREE THOUSAND, TWO HUNDRED CEDIS (GH¢703,200) for the lease of 586.84 acres of the Plaintiff’s land. Without the express consent of the Plaintiffs the Defendant Company through its Chief Executive registered the entire 586 acres of land in the name of the Defendant Company known as WAMP INVESTMENT LTD which this court considers to be illegal when the Company had failed to discharged its obligation to seal the contract proposed in 2010. I by this judgment enter judgment in favour of the Plaintiffs and declare that there was no legal binding contract between the two parties in respect of the disputed land, consequently I order the Lands Commission of the Eastern Region to expunge the said lease registered by the Defendant Company as the lease between NANA OKATAKYIE BEKOE II, NANA OSOFO KYENKU OPARE II, RICHARD KWADWO DARTER and WAMP INVESTMENT LTD, ACTING PER ITS MANAGING DIRECTOR, MORDECAI QUARSHIE with registration number RE 530/2010 and 896/ 2010 in the records of the Lands Commission, Koforidua. By Counsel for the Plaintiff: Considering the fact that this case has travelled for ten years we ask for cost of GH¢70, 000. By Court: I have listened to the request from Counsel for the Plaintiff and have also taken into consideration the industry that has gone into this case by the Plaintiffs and their lawyers as well as the number of trip they have made to this court for all these years and grant the plea of Counsel for the Plaintiff to award cost of GH¢70 ,000 to his clients. Costs of GH¢70, 000 is awarded in favour of the Plaintiffs against the Defendant SGD: JUSTICE SENYO AMEDAHE JUSTICE OF THE HIGH COURT Counsel: Godfred Agyapong Opoku holding the brief of George Addo Yobo for the Plaintiff/Respondent. Stephen Asante Bekoe for the Applicant. Parties: Plaintiff present. Defendant absent. 17