BAAH & 31 OTHERS VRS INTEGRAL ASSOCIATION LTD & 2 OTHERS (H1/145/2023) [2023] GHACA 166 (14 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE COURT OF APPEAL ACCRA: AD 2023 P. BRIGHT MENSAH JA (PRESIDING) CORAM: JEROME NOBLE NKRUMAH JA AFIA SERWAH ASARE-BOTWE (MRS.) JA SUIT NO. H1/145/2023 DATE: 14TH DECEMBER, 2023 SETH JOJO BAAH JNR & 31 ORS …… PLAINTIFFS/APPELLANTS VRS. 1. INTEGRAL ASSOCIATION LTD 2. KWABENA ATAKORA NSIAH …. DEFENDANTS/RESPONDENTS 3. AMMA ATTAKORA NSIAH JUDGMENT AFIA SERWAH ASARE-BOTWE (MRS.) JA This is an appeal from the Judgment of the High Court, Accra, delivered on the 29th of April 2022. In this Judgment, the parties may, where the context so admits, be referred to as the “Plaintiffs/Appellants” or simply “Plaintiffs” and the “Defendants/Respondents” or simply “Defendants” with the necessary qualifications or modifications. The Notice of Appeal was filed on the 22nd of June, 2022 on the following grounds; GROUNDS OF APPEAL 1. That the Judgment is against the weight of evidence before the Court 2. That the trial judge did not fully appreciate the link of the issues set down for trial by the Plaintiffs/Appellants. 1 THE BACKGROUND OF THE CASE/THE PLAINTIFF’S CLAIM: Before proceeding to deal with the necessary procedural and substantive issues in this matter, it would be prudent to set out the background of the action before the Court. This suit commenced with the issuance of a writ of summons and statement of claim on the 27th of October, 2020. Eventually an amended writ and statement of claim filed on the 24th of December, 2020 endorsed with the following reliefs became the subject of the case; a. An order of the Court directed at the Defendants to assign all its unexpired interest in the portions of the land it has sold to the Plaintiffs. b. An order of the court directed at the Defendants to review the ground rent to reflect the actual ground rent figures per the rates of the Office of the Administrator of Stool lands. c. An order of the court directed at the Defendants to refund all the excess ground rent payment made by the plaintiffs to those who have made the said payments. d. Legal Costs. e. Any other order(s) or reliefs that the Court may deem fit. 1 Please see pages 140-141 (Vol. 4) of the ROA. The uncontroverted facts of the case are that the Plaintiffs at various times acquired homes within a gated community put up by the Defendants upon terms including varied costs. By their Amended Statement of Claim and evidence of Fred Tettey Djabanor who testified on behalf of the Plaintiffs, exhibiting their respective documents, the Plaintiffs put forward their case to the effect that by offer letters and sale and purchase agreements they acquired their respective homes at the Integral Estate. That in the said offer letters and sale and purchase agreements, the 1st Defendant describes itself as the Developer, who is selling and the plaintiffs as Purchasers who have purchased their respective homes. The Plaintiffs/ Appellants further aver that following the offer by way of offer letters, and the sale and purchase agreements, the Defendants through its officers, the 2nd and 3rd Defendants, showed them the head lease of the land which is between the 1st Defendant company and one Nana Oteng Korankye Il, ostensibly to convince them of the unexpired period on the lease, which will be assigned to them. It is the case of the Plaintiffs/ Appellants that they made outright purchases of their respective homes either by themselves directly or through mortgage facilities and are therefore entitled to the unexpired interest of the 1st Defendant/Respondent on their respective lands with their property. The Plaintiffs/Appellants also state that if the 1st Defendant/Respondent intended to sublease their properties to them, it should not have described and referred to them as purchasers and also describe themselves as sellers in both the offer letters and sale & purchase agreements documents issued to them. The Plaintiffs/ Appellants further aver that following the issuance and signing of the offer letters and sale and purchase agreements, the Defendants/Respondents then issued them with a sublease agreement and in clause C portrayed them as tenants. According to the Plaintiffs/Appellants, following complaints by some of them, the 1st Defendant/ Respondent issued another set of sublease agreements which was more like an Assignment and deleted some portions of clause C, especially paragraph 8. It is the plaintiffs' case that 1st Defendant’s correction of the document and issuance of another set of sublease agreements is an admission that the document required to be issued is a document assigning all the unexpired interest to Plaintiffs/Appellants. The Plaintiffs/Appellants also contend that the 1st Defendant/Respondent and its officers perpetuated fraud against them by inserting an annual rent of One Thousand Ghana Cedis (GH$1,000.00) in their respective sublease agreements, while the ground rent on the entire land acquired by it was only between thirty-seven (GH¢37.00) and forty-eight(GH ¢48) Ghana Cedis on the individual lots of land. A look at the head lease showed that the ground rent on the entire land covered in the head lease is one thousand Ghana cedis (GH¢1,000.00). The Plaintiffs/ Appellants argue that some colleagues, friends and relatives who are homeowners at the " Defendant/Respondent's project at Ashongman have all the unexpired period on their land assigned to them, and that it will be fair, equitable and just for them to be treated same. It is the Plaintiff/ Appellant case that if an agreement between parties are unconscionable, unfair, unjust and fraudulent, the Court has power to set aside or order for its rectification. On the record, though, the 12th, 13th, 19th, 20th, 28th and 29th Plaintiffs have refused to execute the document although they are in occupation of the properties and have paid for same. THE CASE OF THE DEFENDANTS/APPELLANTS: The Defendants/Respondents' case is that, the Plaintiffs/Appellants purchased distinct homes, and that the 1st Defendant/ Respondent entered into separate contracts of sale with each Plaintiff/Appellant who purchased the properties. The Defendants /Respondents posit that the Plaintiffs/Appellants who purchased their respective properties are adults of full age and understanding, well educated, gainfully employed and literate in the English language and having properly understood the terms of the Agreement before executing same and having purchased and moved into the properties they cannot unilaterally seek to reopen an already completed bargain. The Defendants/Respondents also state that it has no entity by name Integral Homes & Residents Association which members are required to join. It is also the case of the Defendants/Respondents that the Plaintiffs/Appellants have no legal basis to question the ground rent of One Thousand Ghana Cedis (GH¢1,000.00) in their respective lease agreements. The matter of the propriety of the suit against the 2nd and 3rd Defendants is also raised. They argue that the transactions culminating in this dispute was between the 1st Defendant as a corporate and legal entity and as such, the 2nd and 3rd Defendants ought not to be involved in this litigation. ON APPEALS GENERALLY AND THE DUTY OF THIS COURT: I. THE REHEARING MANDATE OF THE APPELLATE COURT With the Appellants contending that the judgment was against the weight of evidence, he has basically invited us in this court to evaluate the totality of the evidence on record by putting ourselves as Appellate judges in the shoes of the trial court to see if we would come to the same conclusion as the trial court. In other words, an appeal against a judgment on the ground that it was against the weight of evidence is an invitation to the court to take a second look at the evidence on record by means of an examination of the record to find out if the findings and conclusions of the trial Judge are supported by the evidence proffered at trial or the conclusions are perverse. The duty of this court with regard to the instant appeal was clearly stated in the case of BAKANA LTD. v. OSEI [2014] 77 G. M. J 76 (CA). The court held that since an appeal is by way of rehearing, it is for the Appellate court to comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all documentary evidence adduced at the trial, as are relevant, before arriving at a decision, so as to satisfy itself that on a preponderance of probabilities, the judgment of the trial judge is reasonably or amply supported by the evidence on record or was not erroneous. As stated above, as the Appellate Court, we are entitled to make up our own mind on the facts and to draw inferences from them to the same extent as the trial Court. See PRAKA v. KETEWA (1964) GLR 423 at 426, SC. In BONNEY v. BONNEY (1992-1993) GBR 779, Aikins JSC however cautioned that, despite an appeal being a rehearing, entitling the Appellate Court to make up its own mind on the facts and draw inferences from them, under no circumstances should an Appellate Court interfere with the findings of facts made by the trial Court except where they are clearly shown to be wrong, or that the Court did not take all the circumstances and evidence into account, or had misapprehended certain pieces of evidence or drawn wrong inferences without any evidence to support them, or has not taken proper advantage of having seen and heard the witnesses. In OTOO AND ANOTHER v. DWAMENA [2018-2019] 1 GLR 23 Pwamang JSC noted at page 28 as follows: “In this final appeal by the first Defendant, the sole ground of appeal is that the judgment is against the weight of the evidence. This ground of appeal is an invitation to the Court to comb through the record that was placed before the lower Court and decide for ourselves whether, having regard to the evidence and the law relevant for a determination of the case, the lower Court was right in its findings and conclusions.” See also OLIVIA ANIM v. WILLIAM DZANDZI (Unreported) Civil Appeal No. J4/10/2018 dated 6th June 2019, in which the Supreme Court held that: “Where an appeal is based on the ground that the judgment is against the weight of evidence, the Appellant implies that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or pieces of evidence were wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate Court the lapses in the judgment being appealed against.” II. STANDARD OF REVIEW AMOAH v. LOKKO & ALFRED QUARTEY, 32 GMJ 27 SC (2011) provides four particular instances which allow an appellate court to reach a contrary conclusion from that of a trial court: 1. “When the trial court had taken into account matters which were irrelevant in law; 2. When the trial court had excluded matters which were critically necessary for consideration; 3. When the trial court had come to a conclusion which no court properly instructing itself would have reached; and 4. When the trial court’s findings were not proper inferences drawn from the facts.” Thus, there is a high standard of review needed to disrupt the High Court’s findings. A careful look at the grounds of appeal would reveal that the sole relevant ground would be whether or not the Judgment of the Court below was justified given the evidence adduced before it. In other words, was the Judgment against the weight of the evidence or not? This is because the second ground on whether or not the trial judge fully appreciated the link of the issues set down for trial will still be resolved by whether or not, given the pleadings and the evidence before it, the Judgment of the Court below was justified. An aside on the matter of whether or not the Judge was within his mandate to consider what he thought were relevant issues will be made here. We are in agreement with the Judge in his assessment of the decision in FATAL v. WOLLEY [2013-2014] 2 SCGLR 1070 @ 1076 per Wood CJ; “…Admittedly, it is indeed sound basic learning that courts are not tied down to only the issues agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an issue is found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues. Furthermore, on the authority of the court to set down what issues are relevant in a case, reference is made to the case of FIDELITY INVESTMENT ADVISORS v. ABOAGYE ATTA (2003-2005) 2 GLR 188, CA, in which it was held that what issues were relevant and essential was a matter of law entirely for the judge to determine. See also DOMFE v. ADU (1986) 1 GLR 653, CA per Abban JA as he then was in which he stated that although several issues were set down in the Summons for Directions (as Application for Directions was known under the old rules of court) for trial, most of them could hardly be described as relevant. To his mind, which issues were relevant were those that could dispose of the case one way or the other. In the circumstances, we hold that the second ground of appeal on whether the Judge in the Court below properly exercised his discretion in dealing with what issue he held relevant is misconceived. Having regard to the pleadings and the evidence before the Court, we agree with the Judge that the most fundamental issue set down and discussed was sufficient to deal with the matter at hand. The second ground of appeal is accordingly dismissed. That leads to a discussion on the omnibus ground of appeal as set out in Ground one of the Notice of Appeal. ON GROUND ONE: THAT THE JUDGMENT WAS AGAINST THE WEIGHT OF EVIDENCE: Both parties acknowledge in their respective submissions that prior to executing their respective agreements, there were negotiations. After the negotiations came the execution of the document. The law on written contracts is quite settled. It is trite learning that where parties have formally recorded the whole of their agreement in writing, the written document, prima facie, is taken to be the whole contract or arrangement between them. The terms of such an understanding, are, therefore, said to be limited to the contents of the written agreement and nothing more. As a general rule, therefore, where the agreement is wholly reduced into writing, extrinsic evidence will not be admitted to add to, vary or contradict the terms of the written agreement. Further to this rule is the other well-known one that when a document containing contractual terms was signed, in the absence of fraud or misrepresentation, a party of full age and understanding was bound by the agreement to which he appended his signature. See: MOTOR PARTS TRADING CO. v. NUNOO [1962] 2 GLR 195 (See also BADU-ANUM v. BADU ANUM [1998-99] SCGLR 851 (PER HAYFRON- BENJAMIN JSC) and WILSON v. BROBBEY [1974] 1 GLR 250 @ 253 as quoted in the Judgment of the Court below. The Plaintiffs allege fraud against the Defendants and say that their signatures were obtained by fraud. The fraud is particularised viz; PARTICULARS OF FRAUD: A. In the Head Lease of the 1" Defendant with its grantor, dated January 2016, for 99 years, the exigible ground rent for the 7.60 acres is One Thousand Ghana Cedis (GH¢1,000). B. The 1st Defendant is also collecting One Thousand Ghana Cedis (GH¢1,000) yearly from each of the Plaintiffs as ground rent irrespective of the sizes of their lands. C. The Plaintiffs’ checks at the Office of the Administrator of Stool Lands indicates that their ground rents ranges from GH¢ 37.00 to GH¢48,00 yearly. D. That the presentation of Head Lease and also signature columns of a document for which some of the plaintiffs signed with the view that 1st Defendant was to assign its unexpired interest to the plaintiffs, but later to present them with a Sublease Agreement with only 74 to 75 years is fraudulent. E. The Plaintiffs on the 17th of June 2020 wrote to the 1st Defendant and itemizing some of their concerns, the 1st Defendant responded by saying that the Plaintiffs satisfied themselves with documents it presented to them and so it will not accede to their request. F. The Plaintiffs through their lawyer wrote to the 1st Defendant on 20th July 2020 essentially requesting the Defendant to right the wrongs and also inviting it to discuss the issues but the 1st Defendant did not avail itself. It must be noted that the evidential standard where fraud or some other criminal conduct is alleged in a civil matter is above that of proof on a balance of probabilities. It is trite learning that a higher standard of proof is required where criminal conduct, such as fraud is alleged in a civil matter. Where a party alleges any such criminal conduct, the standard of proof of such conduct is beyond a reasonable doubt, whilst in the case of the civil aspect, he shall prove same by a preponderance of the probabilities. (Please see: • FENEKU AND ANOTHER v. JOHN-TEYE AND ANOTHER [2001-2002] SCGLR 985 • SUSU BAMFO V. SINTIM [2012] 1 SCGLR 136, • LAND LAW, PRACTICE AND CONVEYANCING IN GHANA, (Adwinsa Publications, 2015) by Dennis Dominic Adjei at page 129). In their evidence, the 21st Plaintiff, Fred Tettey Djabanor who testified on behalf of the Plaintiffs per his Witness Statement,2 made the case that they made an outright purchase of the properties as the Plaintiffs were in their respective Sale Agreements 2 At pages 3 to 7 of the ROA described as “the Purchaser”. However, the Plaintiffs say, when the detailed document was eventually presented to them, it turned out not to be an assignment of the unexpired term of the head lease, but a sublease of 74/75 years. The conduct alleged against the Defendants at paragraphs 10, 11, 12 and 13 of the statement of claim was that; “10. That the 2nd and 3rd Defendants approached the Plaintiffs with a signature column of the document which according to them was being prepared and so in order to expedite the process at their end and the Lands Commission they could sign the document. 11. Some of the plaintiffs having sighted the above document, that is, the Head lease and its terms and also considering the terms of the sale agreement understood that the 1st Defendant will assign its unexpired interest in the land to them. 12. In view of the above, some of the plaintiffs signed the signature column of the documented [sic] yet to be presented to them, to expedite the process of them acquiring their dream homes. 13. The 2nd Defendant later presented a Sublease Agreement to them, with the signature column, to their bewilderment and amazement, already signed”. These allegations were denied by the Defendants who stated that all the persons who purchased the properties were given the Contracts of Sale as well as Subleases which reflected the intentions of the parties to the contract for their review and that they only appended their signatures after they had read and reviewed the documents in question and were satisfied that the various clauses reflected the intention of the parties.3 In the circumstances of having denied the allegations of the unsavory conduct, the Plaintiffs had the duty of proving same. 3 Please see paragraphs 13 and 14 of the amended statement of Defence at pages 48 to 49 of Vol. 1 of the ROA In the Witness Statement of Fred Djabanor, the 21st Plaintiff who was mandated to testify for himself and all the other Plaintiffs, however, no allegation of a lone signature page of a yet-to-be-presented Sublease document was made. What was said, at paragraph 12 of the witness statement, however, was; “Some of us Plaintiffs [sic] were convinced by the 2nd and 3rd Defendants to sign the signature portion of the Agreement with the excuse that it will expedite the Registration process at the Lands Commission and some of my colleagues had no cause to doubt the integrity at the time and more especially, since at the time, some of us had executed our Sale and Purchase Agreements, which to us was clear that we have made an outright purchase of our properties.4 What transpired in cross-examination of the 21st Plaintiff is also relevant to the determination of whether or not the Judge’s conclusion in the Court below was justified;5 Q: You have testify [sic] in this court that all the Plaintiffs are literate and education up the tertiary level [sic], and they were given a sublease with the following clause B which runs through all document were dully executed subleases, (same read out) and you have come to this court after 27 of you plaintiffs have appended your signatures to this document crying fraud A: the fact that we appended our signatures does not cancel fraud when it is committed Q: and the subleases executed all 27 Plaintiffs [sic] you will find the 1st Defendant being described as a sub-lessor and the Plaintiffs were at all material times refers to as the sub-lessee, you saw these clauses and still appended your signatures to the subleases 4 Please see page 4 of Vol. 3 of the ROA 5 Please see pages 6 to 12 of Vol. 4 of the ROA A: in the same clause B which has been read, there is a portion which says the building has been purchased with a certain amount and as I said earlier from the time of negotiation we have been told the properties were being sold to us. Q: since you have admitted to this court that the relationship between 1st Defendant and Plaintiffs were reduced into writing the testimony you are giving now is nothing but an afterthought. A: upon bringing this case to this court, the Defendants have admitted that they mistakenly described us as renting the property. Q: Nowhere in the evidence before this court can you find the admission just testified about? A: I strongly believe that in the course of the case, the admission would be demonstrated Q: most of the Plaintiffs purchased their properties through financial institution which as part of their due diligence requested for the head lease from the 1st Defendant as part of the due diligence process not so? A: Yes-but these financial institution were only looking out for their interest. Their interest being the period in which the loans taken would be paid and these interest between 15 and 20 years Q: I am putting it to you that all Plaintiffs were furnished with the head lease of the 1st Defendant for them to conduct their due diligence before they purchases? A: It cannot be so because in my case, the head lease was given directly to the bank without my notice. In other cases, the head lease was given to some Plaintiffs and based on this head lease when the document was brought for them to sign they trusted the Defendants and signed knowing what head lease had in it. Q: the 1st Defendant furnished you with a copy of the head lease to conduct due diligence and also gave you a sublease which you pended your signatures to, you cannot turn around after several years and say you do not want to be bound by the contents in it? A: as I said the Defendants had gotten us to trust it but we only realized we were deceived later CONTINUATION OF-CROSS-EXAMINATION OF PLAINTIFFS' REPRESENTATIVE BY COUNSEL FOR DEFENDANTS WITNESS REMINDED OF HIS FORMER OATH Q: In the cases of all the Plaintiffs before this court at time they executed their sale and purchase agreement as well as offer letters with the 1st Defendant, they had not all paid a dime towards the purchase price of the properties not so? A: I want to refresh my memory-that is so. Q: At the time sale and purchase agreement offer letter were executed none of the Plaintiffs owns [sic] the properties which they currently reside A: That is so but in the sale and purchase agreement whatever we were told and we believe was going to be given to us, as what was stated in the agreement "Clause 2 read out". So we were told in this particular document that the property was been [sic] sold to us. Q: The sale and purchase agreement and offer letters contains the modalities for payment of the buildings, the respective purchase prices, description of the property and the time frames for payment. A: That is so but it also include what kind of transaction would be taking place, which is selling and the buying of the property. The transaction to be taken place is actually given priority before the others Counsel had permission. That is why it was put in Clause '2'. Q: It was the intention of the Plaintiffs and 1st Defendant that all matters regarding the interest be conveyed to the Plaintiffs, the covenants is restricted to the sub-leases, that is why you find paragraph 2 of the Offer Letters (same read out) of the various Subleases. Not so? A: It still does not negate the fact that the document which discuss the first intent of the transaction the sales and purchase transaction talked about selling and buying. The offer letter was just to inform us about the cost involved and other cost which are included. I have insisted that there was trust built between the two parties in that most of us who went to purchase these properties were referred to the Defendants by colleagues, friends and family members who had bought similar properties in an estate owned by the Defendants. In our deliberation with the Defendants, before the documents which included the offer letters sale and purchase agreement and the sublease were brought to us, the Defendants had caused our friends, family and colleagues to show us documents which include an assignment, subleases all with the unexpired interest of the Defendants given out in order to convince us to indeed buy the property, and with the promise that the same thing would be given out to us Q: Your testimony have just given to this court is not only false, is not supported by any evidence placed before this court which mostly are documentary A: That cannot be true we have exhibited two of these documents which were used to convince us during the negotiation stages. At time the Defendants did not bring any written document from their side. The conversations were all verbal. Q: The mere fact that you signed sub leases with the 1st Defendant which contains covenants stated in paragraph 9 of your Witness Statement leans favourable toward the 1st Defendant's case that what it intended to convey to the Plaintiff was nothing but the sub-leases A: We have continually maintained that we were deceived. In my testimony I made it known that some of us were brought the signature part of this document to sign without the entirety of the document because the Defendants had told us that he needed to get the Land Title registered quickly so money could be released in order for us to get our homes and have place to lay our heads. We signed the signature part of the document brought because we had built a certain kind of trust between us and the Defendants. Also the Defendants had showed us the head lease which had the number of years which were to be given to us and as I said earlier, because he had also showed us two documents belonging to friends, family members and colleagues of ours in an estate at Ashongman. We had no cause to doubt him Q: Your testimony you just gave to this court is so incredible because by time 1st Defendant entered contract with all the Plaintiffs, it had already registered it head lease as far as 28th November 2016 and it did not require any registration at the Lands Commission as you want this court to believe and make you sign blank documents A: If what Counsel is saying is anything to be taken as the truth, then it buttresses our point that we have been deceived, because if this head lease had been registered and there was no need for registration then we were shocked and surprise by this revelation given by Counsel Q: There is no evidence before this court that it is as a result of a complaint by some Plaintiffs that the 1s Defendant deleted Clause '8' in subsequent subleases? A: That cannot be true, when you look at the subleases, we have exhibited subleases which were executed in 2017 did not have Clause '8'. From 2018 onwards, the subleases have that clause. We wrote a letter after seeing it to the developer. This letter has been exhibited. After writing this letter, the developer responded and told us he was willing to sit and talk but we needed to withdraw our accusation of fraud against him, which we declined. Soon after, some of us again wrote to the Defendants and raising the same concerns, the Defendants deleted Clause '7' and '8' in the sublease, that particular sub lease has also been exhibited Q: Not only your testimony is false but in your Exhibit D which you seek to buttress the point you just made, in those set of subleases, the parties rather agreed on more clauses, that support a sublease agreement and not as assignment as you want this court to believe A: In that testimony we never say the sublease was an assignment, we said it look and had similarities of an assignment we never said out rightly that it was an assignment Q: In your Exhibit 'D' the newly inserted paragraphs 8, 9, 10, and 11 refers to all Plaintiffs as sub-lessors? A: As I said, previously we never said that those Exhibits were assignments Q: The additional Clause in Exhibit D makes your testimony in paragraph 11 of Witness Statement false because the purported correction by the 1st Defendant rather added more clauses that support the sublease? A: That clause in Exhibit D and what it seeks to portray and say is seen in all the other documents including the sublease at Ashongman Estate which gave the unexpired interest to the buyer That particular of sub lease document at Ashongman Estate which gave unexpired interest was prepared and signed by Counsel for Defendant Q: I am putting it to you that you are not privy to any of the terms and conditions between 1st Defendant and the person it sold properties to in respect of it Ashongman Estate? A: No but in a bid to convince us to buy properties from them, the Defendants showed us these document and gave our assurance that ours would similar or the same. Q: Tell this court the exact date 1st Defendant showed these assignment to each of the Plaintiffs in this case A: That will be impossible because negotiation and talks in the bid to convince us to buy those properties had taken place long time ago and I cannot remember the date for those conversation even though it happened. Q: Your failure to give us the date for even one of the Plaintiffs or you yourself shows that no showing of the assignment to Plaintiffs ever happened A: That is not true. Q: I am putting it to you that despite the fact the Plaintiff agreed with the first Defendant that they would pay yearly ground rent of a GHȼ1000, till date the 1st Defendant had not made any demand from any Plaintiffs for ground rent? A: Yes it has made the demand to the extent that one of us paid a GHȼ1000 to him and he was given a receipt of GHȼ1000 in the name of the 1st Defendant Q: Your purported Exhibit G (mobile money statement) does not show that the said GH¢1000 is a payment towards ground rent A: The only amount made clear in the agreement outside the purchase price is the ground rent amount of GHc1000 which was sent to him and we have exhibited it as part of our Exhibits Clearly, there was no evidence to back the allegation of fraud that had been made in the pleadings. The documentation, from the evidence before the court was concluded and executed before the payments were made. A further step was made by the Judge assessing whether there was any fraud or misrepresentation made to the Plaintiffs even though the allegation of fraud as particularised only related to the issue of the ground rent. We find that the Judge in the Court below was right in investigating and making a pronouncement on the allegation of fraud outside of that which was specifically particularised as same is in consonance with the law. In the case of JOANA NYARKO v. MAXWELL TETTEH & 2 ORS (SC) (Suit No. J4/27/2019 dated 11th December, 2019 (Available on www.ghalii.org as [2019] 19 GHASC 87)6, the learned Prof. Kotey JSC stated on the matter of a failure to particularise fraud; Failure to Plead or Particularise Fraud Dealing first with the issue of the Plaintiff neither pleading nor particularizing fraud, we agree with the decision of the trial High Court, that this is not fatal. This Court has held in a number of cases such as Amuzu v Oklikah [1998-99] SCGLR 141 and Ecobank Nigeria Plc v Hiss Hands Housing Agency [2017-2018] 1 SCGLR 355 that though it is preferable to plead and particularise fraud, failure to do so is not fatal in all circumstances. In the Oklikah case, Atuguba JSC stated at page 183 as follows: “In this case fraud has not been distinctly pleaded. But in view, especially of the provisions of sections 5,6 and 11 of the Evidence Decree, 1975 (NRCD 323) regarding reception of evidence not objected to, it can be said, that where there is clear but unpleaded evidence not objected to, the court cannot ignore the same, the myth surrounding the pleading of fraud notwithstanding” And in the Ecobank Nigeria Plc case (supra), Gbadegbe JSC, after referring to the requirement of order 11 rule 12 (1) (a) of the High Court (Civil Procedure) Rules, 2004 (C. I.41) that particulars of fraud shall be specifically pleaded, continued at page 367; “Although the rule is expressed in mandatory language, our courts have held that where a party fails to comply with the requirement of order 11 rule 12 (1) (a) but his opponent fails to object to evidence in support of the allegation of fraud, a court of law cannot shut its eyes to the evidence so led but must take it into account in deciding the dispute before the court.” 6 Available online at https://ghalii.org/akn/gh/judgment/ghasc/2019/87/eng@2019-12-11 So, in the Ecobank Nigeria Plc case, (supra) where the court found that funds have been transferred into the accounts of the first defendant improperly and with a view to depriving the plaintiff of the benefit of his money, this court found that fraud had been established. This court held that the dishonourable and unconscionable conduct of the first defendant amounted to fraud. In this case, though, the Judge rightly assessed the evidence and came to the right conclusion that there was no justification for the allegation of fraud. There was, as discussed, no evidence before the court of a sole signature page having been given to the Plaintiffs. The matters alluded to in the cross-examination of the 2nd Defendant, of the sublease expiring after seventy-five (75) years being a source of confusion between the descendants of the parties after their demise is merely emotive, speculative and above all, irrelevant. After all, at whatever time the period would lapse (be it an assignment or a sublease), the parties would likely not be alive, except for their successors in title. In the same way, the allusion to the terms of the contract at the Ashongman project of the 1st Defendant/Respondent is irrelevant to what terms the plaintiffs may have entered into. It must also not be lost on us that each party who sought to acquire a home, negotiated at various times and on different terms. In fact, one would notice that the consideration paid for the homes were even different. A great deal of capital is made of the fact that the head lease was given to the plaintiffs, this misleading them into thinking that they would have an assignment of the unexpired term on that lease. In cross-examination, however, the 2nd Defendant gave an explanation which we find reasonable for that viz;.7 Q: Can you tell the court why you gave the Plaintiffs copies of the head lease prior to the acquisition of the various properties? 7 Page 41 of Volume 4 of the ROA A: Each individual was dealt with according to their processes of purchase. Most of them, their requirement to do a search on the property you need a copy of the head lease, site plan, that shows the property which is been acquired. You need a copy of those documents for a search at the Lands Commission. The cross-examination continued;8 Q: I suggest to you that if the Plaintiffs had agreed wholeheartedly to what you presented to them in the light of the documentations you submitted to them, they would not have brought you to court. A: If these individuals were not happy with the documentation, they could have walked out of the offer and like I have explained earlier on, none of them did payment before the sublease document was presented to them. They had the sublease document, read it, signed it, and went ahead to do payment. From the above then, it is also clear that, not only did the Plaintiffs get the document before they signed them, but they also went ahead to make payments. Even the ones who refused to sign the documents went ahead to make payments and then moved into the homes. In those circumstances, being of full age and understanding, and not being qualified to be protected under the Illiterates Protection Ordinance9 , each of them would be bound by the terms of the documents. Further, there can be no justifiable allegation of fraud on the quantum of ground rent being paid when the amount of ground rent payable under the head lease was already clear in the head lease on which they seek to rely in respect of the current claim for its unexpired term. We have closely assessed this case, and find that there is no evidence of fraud to merit the setting aside of the written terms between the parties. 8 Page 42 of Vol. 4 of the ROA 9 (Cap 262)(1912 Rev) CONCLUSION: We shall conclude this decision by a reference to the concluding remarks of the Supreme Court in the case of MIREKU & TETTEH (DECD.); IN RE MIREKU v. TETTEH [2011]1 SCGLR 520; “We further agree with the learned justices that the order by the trial judge to the Defendants to renew the lease for the Plaintiffs was an imposition. It is not the duty of the Courts to make a new contract for parties on terms they have not mutually agreed upon. Addison v. A/S Norway Cement Export Ltd. [1973] 2 GLR 151; City and Country Waste Ltd. vs. Accra Metropolitan Assembly 2207-2008] SCGLR 409.” In the same vein, we find that the holding, at the conclusion of the Judgment of the Court below, to the effect that the transaction be abrogated and rent assessed is erroneous. At the end of the day, the 12th, 13th, 19th, 20th, 28th and 29th Plaintiffs had, whether or not they had signed the document, paid for the properties and are in occupation of same. Making any further orders would amount to the court attempting to make a new contract for the parties. That order was therefore made per incuriam and same is set aside. The appeal is accordingly dismissed in its entirety. Cost of GHȼ5000 for all the defendants. SGD A. S. ASARE-BOTWE (MRS.) (JUSTICE OF APPEAL) SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD J. NOBLE-NKRUMAH (JUSTICE OF APPEAL) COUNSEL: • MICHAEL AKANBEK FOR PLAINTIFF/RESPONDENT • HANS AWUDE FOR DEFENDANT/RESPONDER 24