YAKUBU VRS ADAMU (C11/149/2021) [2023] GHACC 715 (15 December 2023)

IN THE CIRCUIT COURT OF GHANA HELD AT CIRCUIT COURT ‘2’, ACCRA ON FRIDAY, 15TH DECEMBER, 2023 BEFORE HIS HONOUR ISAAC ADDO, THE CIRCUIT JUDGE SUIT NO. C11/149/2021 MUSTAPHA AHMED YAKUBU H/No. 124/1, Darkuman VRS PLAINTIFF ABU ADAMU (SUBSTITUTED BY RAMATU ABU ADAMU) DEFENDANT H/No. 124/1, Darkuman DEFENDANT PRESENT PLAINTIFF ABSENT BENEDICT ASHIDAM, ESQ. WITH MUNKAILA ASUMAILA, ESQ. LED BY ATINGA AYAMGA, ESQ. FOR PLAINTIFF PRESENT ELLIS KWAME QUARSHIGAH, ESQ. FOR THE DEFENDANT PRESENT JUDGEMENT Without prejudice to the Defendant and her lawyer, let me commend the Plaintiff’s counsel for filing his Written Address to reach this Court before the deadline set by the Court. On the 11th March, 2021, the Plaintiff issued this Writ of Summons for the Registry of this Court seeking for the recovery of possession of House Number 124/1, Darkuman, Accra from the Defendant. The Defendant filed a Statement of Defence on the 30th March, 2021 and denied liability of the claim of the Plaintiff. On the 9th August, 2022, the Plaintiff filed a Motion on Notice to substitute the deceased Defendant. This application was granted on the 25th August, 2022. The wife of the Deceased Defendant (Ramatu Abu Adamu) duly substituted her late husband. THE CASE OF THE PLAINTIFF The Plaintiff is the landlord of H/No. 124/1, Darkuman, Accra. The Defendant was in possession of the said property and all efforts by the Plaintiff to recover possession of the house has proved futile. The Defendant has refused to comply with the notices to quit served on him on several occasions. In his Reply to the Statement of Defence, the Plaintiff stated that the Defendant paid the initial deposit of GH¢47,000.00 in February, 2017, and the Plaintiff handed over the keys to the house to the Defendant on the 28th April, 2017. In 2018, the Defendant deposited GH¢2,000.00 into the Plaintiff’s bank account and refused to pay the outstanding balance. THE CASE OF THE DEFENDANT The Defendant’s case was that he indeed bought the said property from the Plaintiff at an agreed price of GH¢150,000.00. The parties agreed that the Defendant shall make payments for the cost of the property in instalments and out of this amount, Defendant paid GH¢47,150.00 to the Plaintiff. The Plaintiff proceeded to make the property a habitable residence with the money paid by the Defendant. The Defendant subsequently moved into the property and has since been in continuous occupation. The Defendant has been unable to complete full payments because he became terribly sick and need medical care as a matter of emergency. The Defendant was served with notice to vacate the premises but he refused to vacate pursuant to the parties’ agreement. ISSUES FOR TRIAL At the close of pleadings, the Plaintiff applied for Directions on the 13th April, 2021 setting down the following issues: i. Whether or not the parties negotiated for the outright sale of the Plaintiff’s apartment i.e. 2-bedroom self-contained house situated at House No. 124/1, Darkuman, Accra for a consideration of GH¢150,000.00. ii. Whether or not the Defendant made a part payment of GH¢47,000.00. iii. Whether or not the Defendant was to pay the balance of GH¢103,000.00 in full after taking occupation. iv. Whether or not the Defendant has breached the sale agreement entered into between the parties. This Court differently constituted adopted all the issues filed by the Plaintiff and ordered the parties to file their Witness Statements and Pre-Trial Check Lists for Case Management Conference. BURDEN OF PROOF The general rule in civil cases is that all facts in issue or relevant to the issue in a given case must be proved, in other words, he who avers must prove. The party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof. The standard of proof in a civil case is proof by a preponderance of probabilities. This standard of proof has been reiterated by the Supreme Court in the case of Adwubeng vrs Domfeh [1997-98] 1 GLR 282 where it was held that: “sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities, no exceptions are made.” For ease of reference, I will reproduce the aforementioned sections of the Evidence Act, 1975 (NRCD 323) below: Section 11 – Burden of Producing Evidence Defined 4. In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non-existence. Section 12 – Proof by a Preponderance of the Probabilities 1. Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. 2. ‘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. The above principle was succinctly stated by the Supreme Court in Ebusuapanyin Yaa Kwesi v. Arhin Davis & Anor, CIVIL APPEAL NO J4/10/2004, where it was held that a plaintiff making a claim assumed that onerous burden of proof by the preponderance of the probabilities as required under sections 11 and 12 of the Evidence Decree, 1975 (N. R. C. D. 323), or else risked the prospect of losing his case. See also Ababio vrs Akwasi IV [1994-95] GBR 774, Zabrama vrs Segbedzi [1991] 2 GLR 222 @ 224. EVALUATION AND ANALYSIS OF THE EVIDENCE I shall proceed to address the issues in this order: First, I shall consider Issue, then consider Issues 2 and 3 together, and conclude with issue 4. Whether or not the parties negotiated for the outright sale of the Plaintiff’s apartment i.e. 2- bedroom self-contained house situated at House No. 124/1, Darkuman, Accra for a consideration of GH¢150,000.00 In the often-quoted words of Sir George Jessel MR in the case of Printing and Numerical Registering Company v. Sampson (1875) 19 Eq 462: "If there is one thing which more than another public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting and that their contracts, entered into freely and voluntarily, shall be upheld as sacred and shall be enforced by the courts of Justice". In the Statement of Defence filed by the Defendant on the 30th March, 2021, the Defendant did not deny the fact that he entered into an agreement with the Plaintiff to buy the Plaintiff’s property at GH¢150,000.00 and that payment was to be done by instalments. That the Plaintiff proceeded to make the property habitable before the Defendant moved into occupation of same. The Evidence-In-Chief of the Defendant per her Witness Statement filed on the 12th July, 2023 is a departure from the nature of pleadings filed. For the avoidance of doubt, I reproduce same the said paragraphs as follows: “5. The Plaintiff agreed with my late husband that the said property in dispute will be sold for ¢150,000 but if my late husband could pay 1/3 of same, he (the Plaintiff) will hand over the keys to the property to my husband and allow him to use part of the outstanding balance to renovate the entire property to make it habitable after which the expenses on same will be added to our advance of commitment purchase price. 8. The Plaintiff consented that the Defendant could renovate the entire property commencing from the construction of a porch, tiling, Plaster of Paris (P. O. P), washroom and paintings. 9. That shortly after the renovations, the Defendant demanded a quantification of monies expended on the renovation so that same could be deducted from the outstanding ¢103,000 to pay but the Plaintiff swiftly made a U-turn. 10. That the Plaintiff refused to acknowledge the fact that the renovation was not sanctioned by him and that the Defendant unilaterally did the renovation to suit himself and his wife.” Also, when the Defendant was cross examined by the Plaintiff’s counsel on the 10th August, 2023, she told the Court that her late husband (deceased Defendant) bought a bare land from the Plaintiff and wanted to build a house on it but the Plaintiff told him that he had a contractor who could construct the house for Defendant. See below: Q. It is your case before this court that you and the defendant agreed to buy the disputed house. A. Yes, My Lord. The land was a bare land. So, my husband negotiated with the plaintiff that he will buy the land. So, the plaintiff sold the land to my late husband. My late husband decided to put up a building on the land. The plaintiff jumped in and said he had a contractor who can construct the house. After the completion of the house, the plaintiff asked for the remaining balance to be paid to him. My late husband told plaintiff that because of COVID 19 the one to pay him money could not come to Ghana so plaintiff travelled to where he works. Q. Your late husband before he passed, are you aware he filed a Statement of Defence? A. Yes, My Lord. The nature of the evidence of the Defendant is a departure from the pleadings filed. In the Statement of Defence which was filed, there was no inkling as to what the Defendant told the Court by her Evidence-In-Chief (supra). The court finds this piece of evidence to be an afterthought and an attempt to throw dust into the eyes of the Court. In determining whether there is a contract, the courts usually look out for a promise by one party, which usually takes the form of an offer which is duly accepted by another promise or an act. This exchange of promise for promise or an act, is what constitutes the bargain or agreement. In this instant case, the pleadings filed by the parties undoubtedly suggest that there was a valid contract between the Plaintiff and Defendant. In the circumstances, I hold that the parties negotiated for the outright sale of the Plaintiff’s two-bedroom self- contained apartment. Whether or not the Defendant made a part payment of GH¢47,000.00. AND Whether or not the Defendant was to pay the balance of GH¢103,000.00 in full after taking occupation From the entirety of the evidence adduced at the trial, it is not in doubt that the Defendant paid an amount of GH¢47,000.00 to the Plaintiff and the agreed purchase price of the property was GH¢150,000.00. This was paid in two (2) instalments, i.e. the first payment of GH¢45,150.00 by Exhibit ‘A’ and further GH¢2,000.00 per Exhibit ‘1’ making a total of GH¢47,150.00. It therefore means that the outstanding amount of money that should have been paid is GH¢102,850.00. Whether or not the Defendant has breached the sale agreement entered into between the parties Apart from the last payment made by the Defendant in the year, 2018, no further payments have been made to date. Having so held that there was a valid contract between the parties for the purchase of a house by the Defendant from the Plaintiff at GH¢150,000.00, it is the humble view of this Court that the Defendant breached the agreement he entered into with the Plaintiff. Upon a careful evaluation of the evidence adduced at the trial, I enter judgement in favour of the Plaintiff for the following reliefs: a. Recovery of possession of House Number 124/1, Darkuman, Accra from the Defendant by the 31st January, 2024. b. In the interest of justice, I hereby order and direct the Rent Control Officer, Accra to assess rent payable from 1st May, 2017 to 31st January, 2024 biennially as follows: biennial i. ii. iii. iv. v. 1st May, 2017 to 30th April, 2019; 1st May, 2019 to 30th April, 2021; 1st May, 2021 to 30th April, 2023; 1st May, 2023 to 30th 31st January, 2024. The cost of this exercise is to be borne by the Plaintiff. c. Flowing from (b) above, the parties must be able to balance each other. d. I award cost of GH¢5,000.00 against the Defendant. ……………………...... ISAAC ADDO CIRCUIT JUDGE 15TH DECEMBER, 2023 9