Sarkwa v Darko (A9/16/2024) [2025] GHADC 150 (21 May 2025)

IN THE DISTRICT COURT A HELD AT KOFORIDUA THIS WEDNESDAY THE 21ST OF MAY 2025 BEFORE HER WORSHIP NANA AMA DABBAH FYNN SUIT NO A9/16/2024 NKANSAH (MRS) DAVID LARBI SARKWA PER HIA LAWFUL ATTORNEY EMMANUEL AMANOR VRS GEORGE DARKO OLD ESTATE-KOFORIDUA JUDGMENT This suit commenced with the issuance of a writ of summons and statement of claim on 4/9/23 in which was endorsed the following reliefs against the Defendant for: 1. Recovery of an amount of GHS12,000 paid Defendant since March 2023 which was meant for him to rent out his structure and land to the plaintiff to be used as an eatery which the defendant could not rent since the land on which the structure was located never belonged to the Defendant. 2. Interest on the said GHS 12,000.00 from March 2023 till date of final payment. 3. Cost of litigation The Defendant upon being served filed his Statement of Defence on 7/11/23 and counterclaimed for the following: 1. Specific performance of the leasehold agreement entered into between the parties on 15/5/2023 ALTERNATIVELY, Defendant applies for General Damages for breach of contract. The parties were referred to CCADR and upon parties inability to reach settlement, the court had to go into the merits of the case. Trial commenced on 29/07/24. PLAINTIFF’S CASE The Plaintiff avers that sometime between February and March 2023, in his quest to secure a location for an eatery business, he came across a structure at Tinkong. Upon making enquiries, he was informed that the said property belonged to the Defendant. The Plaintiff states that the Defendant represented to him that both the land and the structure thereon were his, and in furtherance of this representation, the Defendant presented a site plan purporting to cover the said property. Relying on these representations, the Plaintiff entered into an agreement with the Defendant for a four-year term at a total rent of GHS 32,400. The Plaintiff avers that he made an initial payment of GHS 12,000 on 15th May 2023, with a commitment to pay the outstanding balance by 31st May 2023. However, according to the Plaintiff, he conducted further investigations and discovered that the land did not, in fact, belong to the Defendant. Rather, the land had only been leased to the Defendant for a period of ten years for the erection of the structure. The Plaintiff further claims that the site plan shown to him was fictitious. Upon this realization, he demanded a refund of the amount paid, which demand was not met, leading to the initiation of the present action. DEFENDANT’S CASE The Defendant avers that the subject parcel of land was leased to him in the year 2018 for a fixed term of ten (10) years, set to expire in 2028. He maintains that, from the outset, the agreement between himself and the Plaintiff was strictly in respect of the eatery structure situated on the said land, to be rented for a period of three (3) years, which duration falls well within the subsistence of his leasehold interest. According to the Defendant, this understanding is duly captured in the written agreement executed by the parties. The Defendant further explains that the site plan in question was obtained solely for the purpose of securing the requisite building permit for the construction of the eatery structure. He denies ever representing to the Plaintiff that he held absolute or freehold ownership of the land and the structure thereon. BURDEN OF PROOF It is without question and quite trite law that the Plaintiff has a burden to prove his case to the standard required in civil actions; that is, on a balance of probabilities. Section 11 of the Evidence Act, 1975 (NRCD 323) states in part; Section 11—Burden of Producing Evidence Defined. (1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue. (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 the fact was more probable than its non-existence. Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, is relevant here. In that case, it was held that; “Where a party makes as averment at capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true.” (See also OKUDZETO ABLAKWA (NO.2) v. ATTORNEY-GENERAL &ANOR [2012] 2 SCGLR 845 @847 regarding what is expected of a person who goes to court and makes an allegation). (See also: ACKAH v. PERGAH TRANSPORT LIMITED &ORS (2010) SCGLR 736) By the same measure, the Plaintiff is required to prove his claims against the Defendant on a balance of probabilities. In FRABINA LTD v. SHELL GHANA LTD. [2011] 33 GMJ 1SC, (@pages 27-28), the Court per Brobbey JSC stated; “What must be noted is that, in evaluating evidence in judicial proceedings, a court has several sources to draw material evidence from: 1. First are the pleadings. Where the pleadings are not in contention, it is safe for the trial judge to draw from it and make his conclusions…. 2. The second is the oral evidence that has been led in court. The credibility of oral evidence is normally tested through cross-examination …... 4. . The third is the documentary evidence. This normally takes the form of documents that are tendered during the course of trial and upon which questions are asked during examination in chief and cross-examination. It can also take the form of reports submitted by court appointed expert witnesses such as Surveyors, Accountants, Medical Doctors, etc who testify and tender in reports prepared by them to help the judge in determining the case one way or the other. 4. The fourth are judicial decisions and authorities touching and dealing with principles of law in the subject matter of the case on trial. This is normally done during the closing addresses by Counsel of the parties to the court. Since Defendant has a counterclaim, he also bears the burden of proving same as a counterclaim is an action on its own. Upon a critical evaluation of the evidence led by both parties, the determination of the case herein shall turn on whether or not the either party is entitled to their reliefs. The Plaintiff’s claim for a refund of the entire sum of GHS 12,000 is based on the assertion that he did not receive the keys to the premises after the part payment and also notified Defendant of his decision to resile from the contract, 2 weeks after the expiry of the stipulated time for full payment which the Defendant agreed to do so upon further renting the premises out to another person. An exchange of what ensued during the cross-examination of Defendant on 4/11/24 is as follows: ‘Q: After the 2 weeks when you asked for the arrears we told you to wait’ ‘A: It is not true. Your uncle kept making excuses until August to September 2023 that he told me he will not take the place again.’ Q: After the two weeks we approached you and told you that the land does not belong to you so it will create a problem for us and you had not given us the keys too. A: It is not true that after the 2 weeks you met me and told me all this. Your uncle told me to wait until he finishes paying before I give out the keys to him. Q: Do you recall that after we asked for the money you brought an agreement for us to sign but we said it was not valid so we did not sign A: I remember. It was not an agreement but a receipt. Q: I put it to you that after that incident you promised us that if someone comes to rent the place you will give us back our money. A: Yes. Q: Now you have rented the place out for GHS30,000.00. A: Not true. The tenant is my friend so he just paid the expenses for putting the place back in shape and utilities. Q: I put it to you that it is not true. I have the document that shows that you rented the place out to someone for GHS30,000.00. A: It is not true. I gave the place out about four months ago for the person to stay there for me. The Plaintiff proceeded to have the new tenancy agreement tendered through Defendant as Exhibit 5 in court pursuant to Defendant’s admission of his signature thereon. Now, this Exhibit 5 indicates that the tenancy agreement commenced from 1/4/24 on which date the landlord had received GHS 30,000.00 rent. In light of the foregoing, and particularly the Defendant’s own admission under cross-examination that he undertook to refund the Plaintiff’s money upon successfully renting the premises to another party, the time has indeed come for him to make good on that promise. The Court finds that this was not a mere casual assurance but a binding commitment, reinforced by Exhibit 5, which clearly bears his signature and terms to that effect. Accordingly, and in the interest of fairness and justice, the Court hereby orders the Defendant to refund the full amount of GHS 12,000.00 to the Plaintiff. The Defendant can no longer hide behind technicalities; having re-let the premises as of 1st April 2024, he must now honour his obligation without delay as Plaintiff never occupied the premises. With respect to the Defendant’s claim for general damages for breach of contract, the Court finds merit in the assertion. It is evident that a formal agreement was duly entered into by the parties, only for the Plaintiff to unilaterally withdraw based on purported “investigations” that, in any prudent course of dealings, ought to have been conducted prior to executing the contract. The Defendant, whose leasehold interest spans only ten (10) years, was clearly disadvantaged by the Plaintiff’s abrupt retreat, thereby derailing his business arrangements and causing avoidable disruption. In light of these circumstances, the Court finds it just to award general damages, assessed at GHS 2,000.00, in favour of the Defendant to compensate for the inconvenience and commercial setback suffered. With regard to the Plaintiff’s claim for interest on the sum of GHS 12,000.00, the Court is of the considered view that interest shall accrue from 1st April 2024—the date on which the Defendant is found to have re-let the premises to a third party. The Court deems it just and equitable that interest be calculated from that point in time, as it best serves to restore the Plaintiff to the position, he would have occupied but for the Defendant’s actions. The Defendant’s claim for specific performance is rendered moot and unsustainable in law, having voluntarily re-let the subject premises to a third party. By his own conduct, the Defendant has made performance of the agreement with the Plaintiff impossible. Accordingly, the claim for specific performance is dismissed. There shall be no order as to cost.