ADJEI VRS NANA YAW (A2/19/2022) [2024] GHADC 249 (3 June 2024)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ONMONDAY THE 3RD DAY OF JUNE,2024,BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB (DISTRICT MAGISTRATE) BETWEEN KWAKU ADJEI OF WENCHI - - - PLAINTIFF SUIT NO. A2/19/202 VRS: NANA YAW OF WENCHI - - -DEFENDANT J U D G E M E N T The plaintiff herein commenced this action against the defendant seeking an order of the court for; (a) The recovery of cash the sum of GH₵8,000.00 from the defendant the said amount being the cost of one building plot. (b) General damages for a breach of their agreement. (c) Cost, and interest from 2015 till date of final payment. The defendant pleaded not liable to the claims after same were read and explained to him in twi. After a careful examination of the pleadings and the plaintiff’s particulars of claim the following issues were set down for trial; (1) Whether or not the defendant herein sold any building plot to the plaintiff. (2) Whether or not the said building plot has not been delivered to the plaintiff. (3) Whether or not the plaintiff is entitled to a recovery of the GH₵8,000.00. 1 (4) Whether or not the plaintiff is entitle to any general damages. In his evidence in chief, the plaintiff told the court he is Kwaku Adjei and that he is a business. Plaintiff said in the year 2015 he decided to buy a building plot in Wenchi for the construction of a building and needed a plot along a major road within the Wenchi township. That the defendant herein offered to sell a plot to him (plaintiff) around the former Pioneer Tobacco Company (P.T.C) in Wenchi. That the defendant told him (plaintiff) he was a public servant with the Town and Country Planning office in Wenchi and was the one in charge of the alienation of all Government land situate close to major roads within the Wenchi Municipality. That based on the above represented he asked defendant to take him (plaintiff) to inspect the said plot. That the inspection they negotiated the price and agreed on an amount of GH₵5,500.00 as the purchase price. They also agreed on amountof GH₵3,500.00 as the cost of the preparation of the documents on the plot. This brought the total amount of GH₵8,500.00. Plaintiff said the plot number was stated as Number 27 Block ‘G’ Sector 3 situate at P.T.C. That the defendant demanded payment of the amount and he (plaintiff) paid same in two instalments of GH₵2,500.00 each. That he (plaintiff) also paid another GH₵3,000.00 out of the GH₵3,500.00 for the preparation of the lease. Leaving a balance of GH₵500.00. That he paid the money defendant reneged on his promise to prepare the lease and started giving excuses. That he (plaintiff) waited for months and the defendant never delivered the lease documents. Plaintiff said he caused his lawyer to write a demand notice to the defendant but defendant still failed to deliver the documents. Plaintiff tendered a copy of the said demand notice which was marked as Exhibit ‘A’. plaintiff said he later saw someone clearing the plot with a bulldozer. When he confronted the men, one of them laid adverse claim to the same plot. That the man said he acquired the same plot from the Town Planning office and paid for same. That when he went with the man to the Town Planning Department it was revealed that the man acquired the plot and that the supposed plot defendant sold to him 2 (defendant) was a buffer zone. Plaintiff said he confronted the defendant and he could not give any tangible reason to rebut the information given him (plaintiff) by the Town Planning Office. Plaintiff said he requested that the defendant refund his (plaintiff) money but defendant refused to do so. That the defendant through made false representation he (defendant) also failed or refused to refund the money. That is the GH₵5,000.00 for the plot and the GH₵3,000.00 for the preparation of the documents. That all efforts made to retrieve the money from the defendant failed. Plaintiff said eh therefore decided to come to court. The sole witness for the plaintiff was one Emmanuel Takyi. He said he is a business partner to the plaintiff. That he (P.W.1) was with the plaintiff when defendant came and offered the said plot for sale to the plaintiff. That he (P.W.1) accompanied plaintiff to inspect the supposed plot and to see fi the plaintiff could buy the plot. That plaintiff later told him (P.W.1) he paid for the plot to the defendant. That plaintiff later told him (P.W.1) the said plot defendant sold to him (plaintiff) is a buffer zone and he requested for a refund of his (plaintiff) money but the defendant refused to pay him (plaintiff). P.W.1 said that is what he (P.W.1) knows. In his evidence in chief the defendant said he is Robert Adu Gyamfi @ Nana Yaw. That he is a public servant and lives in Wenchi. That he knows the plaintiff. That he knows the disputed plot. That in the year 2015 plaintiff came to him (defendant) and said he wanted to acquire a plot at P.T.C. That he (defendant) told plaintiff the plots in that P.T.C area is the property of the Government and that he (defendant) will contact the Town and Country Planning Department and that he will contact the Department and see if it is not acquired already by anyone he will give the plot to the plaintiff. Defendant said he enquired and was told the plots in the area are not part of government lands and same were vacant. So he then informed the plaintiff. Defendant said the plaintiff paid GH₵8,000.00 to him (defendant) and the necessary documents were prepared for the plaintiff by the Town and Country Planning Department. Then 3 3years later plaintiff complained to him (defendant) that one Mr. Edimore had trespassed onto the plot. He (defendant) then told plaintiff the plot he (defendant) him (plaintiff) had a different number from the one Mr. Edimore went onto. Then weeks later plaintiff told him (defendant) there was a contractor on the same land/plot. That plaintiff said the contractor diverted a gutter to the plot he (defendant) sold to him. Defendant said he told plaintiff to solve that problem with the said contractor as the plot was his (plaintiff) property. That plaintiff later told him (defendant) the said Mr. Edimore had constructed a fence around his (plaintiff) plot and he (defendant) told there are pillars there indicating the plots are different. Defendant said that is what he know. Defendant did not call any witness. Having carefully evaluated the evidence, it must be noted that the plaintiff said the defendant offered a certain plot number 27, Block ‘G’ Sector 3 for sale to plaintiff at a place commonly known and called P.T.C, in Wenchi. And that defendant represented to him (plaintiff) the said plot was vacant and available for sale by the Department of Town and Country Planning in Wenchi. Plaintiff said he agreed to purchase same upon the said representation made by the defendant. This was corroborated by the defendant himself as well as the witness of the plaintiff Emmanuel Takyi (P.W.1) who said he went with the plaintiff to inspect the suppose plot upon the said representation made by the defendant. The defendant said he contacted the Town Planning department and was told the said land was not government land and same was vacant and available for sale and that he sold same to the plaintiff and consequently took an amount of GH₵8,000.00 personally for the plot and for the processing of the documentation for the plot. Again, it must be stated that the plaintiff said after he paid the money to the defendant he never got the documents for the said plot and same was later been 4 developed by another person (one Mr. Edimore) who said the plot belonged to him thereby laying adverse claim to the same plot. This was again corroborated by P.W.1 and indeed the defendant himself, when he (defendant) said the plaintiff complained to him (defendant) that someone was erecting a fence around the plot. The defendant however said he told the plaintiff he should resolve the issue with the said Mr. Edimore as the plot he (defendant) sold to plaintiff was district from the plot of the said MrEdimore. This clearly was strange and irrational as the defendant was the vendor and so had a duty to not only take the purchase price but was also to put the plaintiff in possession of the plot. If the defendant took the GH₵8,000.00 for both the price of the plot and then the preparation of the documents, that could not be the end until the defendant put plaintiff in vacant possession of the plot. The money that the plaintiff paid to the defendant was obviously for a plot and not any litigation. No rational being will buy litigation instead of a plot. And here it must be noted that the plot that the defendant purportedly sold to the plaintiff was already encumbered and was no longer vacant. This was revealed from the contact made by the plaintiff, herein and when they went to the Town Planning Office after the plaintiff saw them clearing the land. It is again instructive to note that the defendant claims he went to the Town Planning Office and they said the plot was available for sale and therefore un- encumbered. However the defendant never called anyone from the Town Planning Office to substantial his claim and also never tendered any documents even in photocopies to back his claim that it was the Town Planning Office that sold the land to the plaintiff and not him (defendant). Granted even that the Town Planning Office sold the land as the defendant wants this court to believe, the question is why did the defendant not allow the plaintiff to go and pay for the plot at the Department and be receipted for the payment? 5 Clearly the transaction that the defendant engaged the plaintiff in had absolutely nothing to do with the Town Planning Office and the evidence before this court supports this position taken by this court. Also, it must be observed that if the supposed plot the defendant claiming he sold to the plaintiff existed and therefore not part of the buffer zone or the plot of Mr. Edimore then the duty was that of the defendant to face Mr. Edimore and then resolve the issue and thereafter put the plaintiff in possession of the plot. If the defendant failed to do that then very clearly, it means that he (defendant) sold a non-existing plot to the plaintiff and only sought to set the plaintiff against Mr. Edimore in a litigation that the plaintiff will loose in the end. Finally, it must be noted that the plaintiff contended that the defendant even after taking the purchase price of GH₵5,000.00 also took cash of GH₵3,000.00 for the preparation of the documents and which documents defendant never gave to him (plaintiff). The defendant disputed this and said he gave the documents to the plaintiff. The plaintiff disputed the claim also and yet defendant failed to provided copies of the said documents in court. This was even after the plaintiff’s counsel demanded same during cross-examination. It is trite learning that land title documents such as a lease are official documents, and so if it is true, that the defendant property or truly prepared the lease and delivered same to the plaintiff, there should be copies of same on the file created at the land commission for the plot and from which the defendant could have obtained copies for evidential purposes. This is especially that the defendant claims he is in the land commission office in Wenchi. His inability to provide the said evidence means his claims leaves more questions than answers. So from the evidence I found the following as facts; 6 (1) That the plaintiff expressed interest in buying a plot of land for a project and said he needed a plot along a road. (2) That the defendant having learnt of that took GH₵5,000.00 to sell a certain plot at a place called P.T.C in Wenchi which location is along a road. (3) That the defendant also took an additional GH₵3,000.00 to prepare the documents on the supposed plot. (4) That the defendant though took a total of GH₵8,000.00 never delivered the plot and the documents as promised. In a civil trial, the party who in his/her pleadings or writ of summons raise issues that are essential to the success of his/her claim assume the onus of proving same. This position of the law is enclored by the principle of law that says that “he who avers must prove”. See Faibi Vs State Hostel Corp {1968} GLR, 176. In the Evidence Act of 1975 (NRCD 323) the expression used with regards to the said burden on the averring party is the “ burden of persuasion” and in Section 11 (1) that has been defined as relating to each fact the existence or existence of which is essential to the claims or defence asserted”. The Act 323 has provided further that the burden of persuasion requires a prove by the preponderance of the probabilities which is the standard burden in civil trials and that also has been explained in Section 12 (2) to mean the degree of certainty of belief in the mind of the tribunal of fact or the court, by which the court is convinced that the existence of the fact was more probable than its non-existence”. In relating the evidence as adduced herein to the law on the burden as stated above, it is abundantly clear that the defendant herein took the stated sum of money from the 7 plaintiff but has failed to deliver the plot for which he took the money. It is therefore only fair that he refunds same to the plaintiff. It is there the valued conclusion of this court that the plaintiff has proved his claims against the defendant and judgment is entered for the plaintiff. The reasons for the above conclusion include; (1) That defendant took the plaintiff said sum of money to for a plot of land at a location that the plaintiff was interested in building a house. (2) That the defendant never deliver the plot to the plaintiff despite taking the stated amount of money. (3) That all efforts made by the plaintiff to get his money back failed and he also does not have the plot. (4) That the plaintiff proved his claims against the defendant as required by law. The following orders are accordingly made; (1) The defendant is hereby ordered to refund the total amount of GH₵8,000.00 to the plaintiff. (2) Interest shall be calculated on the said amount of GH₵8,000.00 at the current commercial bank rate from January,2015 up till the date of final payment. (3) Am amount of GH₵3,000.00 is also awarded as general damages against the defendant for the plaintiff. (4) Cost of GH₵2,000.00 is awarded against the defendant and for the plaintiff. COUNSEL MR. SIMON ABLEDU FOR PLAINTIFF 8 …………SGD…………. ISSAH ABDUL-WAHAB (MAGISTRATE) 9