Bonney Vrs Owusu [2022] GHAHC 48 (23 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE WINNEBA, HELD ON WEDNESDAY THE 23RD DAY OF NOVEMBER, 2022, BEFORE HIS LORDSHIP, JUSTICE ABOAGYE TANDOH, HIGH COURT JUDGE. PAUL KWAME NKWANTTA BONNEY …. PLAINTIFF SUIT NO. E2/024/2020 DATE:23RD NOVEMBER H/NO CP TH/66/1 KASOA VS YAW OWUSU …. DEFENDANT BRIGADE - KASOA JUDGMENT The Plaintiff on the 12th day of February, 2020, caused a writ of summons to be issued against the Defendant and claimed for the following reliefs: a) Specific performance of the contract so executed by the parties herein. b) Damages for breach of contract c) Recovery of the sum of Ninety-Two Thousand Eight Hundred and Forty Two Ghana Cedis (GHȼ92,842.00) being moneys owed plaintiff. d) Interest on the amount of Ninety-Two Thousand Eight Hundred and Forty Two Ghana Cedis (GHȼ92, 842.00) at the Commercial Bank rate from the 1st day of July till the date of last payment. e) Recovery of the following items, 3 number wheel barrows, 1 coil of watering hose, 4 heads pans, 4 shovels, one polytank, 50 pieces of 6 inches sandcrete blocks and 150 pieces of 5 inches sandcrete blocks from the Defendant. f) Cost occasioned by this suit. It is the case of the Plaintiff that he is the landowner of the land on which the stores in dispute are located at the Kasoa market and he is resident in Kasoa in the central Region of the Republic Ghana. Whilst the Defendant is a building contractor and he is resident in Kasoa in the central Region of the Republic Ghana. According to the Plaintiff, he owns all that piece or parcel of land known as plot. NO. 269 C situated at Oduponkpehe-Kasoa Sector “10” Block in the Awutu Effutu Senya District in the Central Region of the Republic Ghana boundaries where of commencing from a survey, pillar marked SGC/KCE/2/01/1A to pillar SGC/ M454/ 15/ 4/ on a breaking 335 48’ 15” at a distance measuring 25. 52 feet more or less thence from pillar SGC/ M454/ 15/ 4 to pillar SGC/ M454/ 15/ 11 on a breaking 64 33’16 at a distance measuring 25. 52 feet more or less from pillar SGC/ M454/ 15/ 1 on a bearing 160 19’ 19” at a distance measuring 77. 76 feet more or less at a distance measuring 150.81 feet more or less from pillar SGC/ M454/ 15/ 11 to survey pillar marked SGC/ KCE/ 2/ 01/ 2/ on a bearing 182 22’ 45” at a distance measuring 7921.77 feet more or less thus enclosing an area of 0. 256 or acre (0. 104 hectare). The Plaintiff avers that on the 1st day of July, 2015, he and the Defendant executed a contract agreement for the building of 36 stores on plot number 269 C at the Kasoa Market known as Odupongkpehe-Kasoa. The Plaintiff further avers that it was a term of the agreement that the Defendant builds the stores and uses his allocated stores for a period of twenty years. The Plaintiff contends that the Defendants were to develop the whole structure within two (2) years from 2015 to July, 2017 and the Defendants within two years was to put up a two storey building comprising of a ground floor, first floor and a second having a total of 36 stories. The Plaintiff avers that after the completion of the 36 stores, the contract states that 9 stores including the cubicles under the stairs were going to be for the Plaintiff and the remaining 27 stores were to be for the Defendant for a period of twenty years. According to the Plaintiff, it was agreed that before the Defendant starts the construction, Defendants was to pay to Plaintiff an amount of Eighty Thousand Ghana Cedis (GHȼ80,000.00) but he paid only Thirty Thousand Ghana Cedis (GHȼ30,000.00) and the Defendant has refused to pay the balance of Fifty Thousand Ghana Cedis (GHȼ50,000.00) to the Plaintiff. The Plaintiff avers that in all, the Defendant owes Plaintiff a total amount of Ninety- Two Thousand Eight Hundred and Forty Two Ghana Cedis (GHȼ92,842.00) and particularized the extend of the Defendant thus: PARTICULARS OF THE AMOUNT OWED PLAINTIFF a) Balance of inducement fee.................... GHȼ 50,000.00 b) Supervision of works fee....................... GHȼ 20,000.00 c) Rental of stores for 2 years ................... GHȼ 14,000.00 d) Construction works expenses............... GHȼ 5,842.00 e) 20 % on 3 years rent of the CU office - GHȼ 3,000.00 TOTAL ……... GHȼ92,842.00 The Plaintiff avers that instead of the Defendant constructing the two storey building as stipulated in the contract agreement, Defendant constructed a single storey building in blatant disregard to the agreement entered into by the parties. The Plaintiff contends that the Defendant has shared the available stores in a manner which is inconsistent with the dictates of the agreement entered into by the parties. According to the Plaintiff, the Defendant has allocated 9 stores to himself on the ground floor and the 3 uncompleted ones to the Plaintiff. The Plaintiff avers that the Defendant has completely ignored the contract agreement entered with the Plaintiff and Defendant is now purporting to be the owner of the property described above. The Plaintiff avers that during the construction of the stores the Defendant used some materials that plaintiff had on site and these are 3 number wheel barrows , 1 coil of watering hose, 4 head pans, 4 shovels, one polythank, 50 pieces of 6 inches sandcrete blocks. The Plaintiff states that on countless occasions the Plaintiff complained about the actions of the Defendant but the Defendant has shown blatant disregard to the complaints of plaintiff. According to the Plaintiff, on numerous occasions the Defendants had used thugs (locally known as land guards) to terrorize the Plaintiff, his family and workers. The Plaintiff contends that Defendant is constantly using thugs to terrorized Plaintiff to enable Defendant take away the benefits of the stores which belongs to the Plaintiff and accordingly prayed for his reliefs as endorsed on the writ. In his Statement of Defence filed on the 20th day of May 2020, the Defendant admitted that the Plaintiff’s title to the land on which the stores were built except to say that the land will revert to the Plaintiff until the expiration of the agreed Twenty (20) years. Also the Defendant did not deny the agreement to pay Eighty Thousand Ghana Cedis (Ghc80,000.00) to the Plaintiff prior to starting the building of the stores. The Defendant further stated that it was agreed at a meeting between the parties to extend the duration but same was denied by the Plaintiff in reply to the Defendant’s Statement of Defence. The Defendant also denied using the Plaintiff’s materials at the site neither did he engage the services of land guards to terrorize the Plaintiff, his family, or workers and stated that it was rather the Plaintiff who threatened him on countless occasions. ISSUES SET DOWN FOR TRIAL 1. Whether or not the Parties executed a contract agreement 2. Whether or not the Plaintiff leased his land at Kasoa market to the Defendant 3. Whether or not the Defendant has breached the contract agreement executed by both parties 4. Whether or not the Defendant had completed the construction of the stores as agreed in the contract in the contract agreement Out of the four issues set down for trial the only issue in contention is issue 3 as to whether or not the Defendant has breached the contract agreement executed by the parties? Even though all the court processes including hearing notices were served on the Defendant, for Case Management Conference trial or hearing and Judgment, but the Defendant failed to respond to same without any just cause. Accordingly, the matter proceeded to trial after case management conference and adjourned for judgment. THE BURDEN OF PROOF IN A CIVIL ACTION Sections 10, 11, 12, and 14 of the Evidence Act 1975, sets out the standard of proof in any civil discourse. Section 10 (1) and (2) of the EVIDENCE ACT, 19751 defines the burden of persuasion thus: (1) For the purposes of this Decree, 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. (2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. Also, Section 11(1)(4) of NRCD 323 deals with the burden of producing evidence and defines same thus: 1 (NRCD 323) (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. Again, Section 12(1)(2) NRCD 323 provides for the Proof by a Preponderance of the Probabilities thus, (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. SEE: ZABRAMA VRS. SEGBEDZI2 AND MAJOLAGBE VRS. LARBI AND ORS3 As indicated earlier that the Defendant failed to participate in the trial despite numerous hearing notices to that effect, though that in itself does not entitle the Plaintiff to his reliefs. The Plaintiff has still the burden to lead evidence on the balance of probabilities to establish his claim. And once that has been so established, a party who failed to appear in court having been so notified cannot turn round and accuse the adjudicator of breach of natural justice as cited by the Counsel for the Plaintiff. See the case of Ex- Parte State Housing Company Ltd [NO 2] {2009} SC GLR 185 2 [1991] 2 GLR 223 3 [1959] GLR 190 – 195 The Plaintiff in his quest to establish his claim with respect to the main issue of whether or not the Defendant breached their agreed contract first tendered in evidence Exhibit A, the indenture depicting his interest and ownership of the land where the stores in dispute were built. Thereafter, the Plaintiff also tendered in evidence Exhibit ‘B’ the agreement between the parties and the terms therein. In fact Exhibits ‘A’ and ‘B’ are not denied by the Defendant in his Statement of Defence filed on 20th May 2020. In his evidence, the Plaintiff said he agreed with the Defendant to build 36 stores in a two storey building within two years. Out of the 36 stores, 27 stores were to be given to the Defendant whilst nine (9) stores are allocated to the Plaintiff. Instead of the two (2) storey, the Defendant built only the ground floor with twelve stores, took nine (9) stores and allocated 3 uncompleted stores to the Plaintiff contrary to the agreement. According to the Plaintiff It was also agreed that before Defendant starts the construction, Defendant was to pay Plaintiff an amount of Thirty Thousand Ghana Cedis (GHȼ30,000.00) and the Defendant has refused to pay the balance of Fifty Thousand Ghana Cedis (GHȼ50,000.00) to the Plaintiff although he gave postdated cheques which were dishonored per Exhibit ‘C’. It is also stated in Plaintiff’s evidence that the defendant owes me a total amount of Ninety-Two Thousand Eight Hundred and Forty Two Ghana Cedis (GHȼ92,842.00) and as follows: PARTICULARS OF THE AMOUNT OWED PLAINTIFF a) Balance of inducement fee ....... GHȼ50,000.00 this is captured in article 4 of the executed contract which has been exhibited as Exhibit ‘B’ which the Defendant paid only Thirty Thousand Ghana Cedis (GHȼ30,000.00) leaving a balance of (GHȼ50,000.00) and Defendant issued cheques which have been exhibited as Exhibit C which were never paid to the plaintiff by the Defendant. b) Supervision of works fee ....... GHȼ20,000.00 captured in article 3 of the agreement exhibited as Exhibit B and it is an amount that the parties agreed on for the supervision of the property construction from its inception to the present state. c) Rental of stores for two (2) years ...... GHȼ14,000.00, at a stage of the works the Defendant requested me to rent out one store of mine to him which he occupied for two years but failed to pay the rent indicated above. d) Construction works expenses ..... (GHȼ5,842.00) per Exhibit ‘D’. e) 20 % of three years rent of the Credit Union office- Three Thousand Ghana Cedis (GHȼ3,000.00) being 20% out of Fifteen Thousand Ghana Cedis (Gh¢15,000.00) per article ten of the agreement. The Plaintiff averred that Instead of the Defendant constructing the two storey building as stipulated in the contract agreement, Defendant constructed a single storey building in blatant disregard to the agreement entered into by the parties and demonstrated same by tendering in evidence Exhibit ‘E’. The Plaintiff further averred that during the construction of the stores the Defendant used some materials that the Plaintiff had on site and these are 3 number wheel barrows, 1 coil of watering hose, 4 head pans, 4 shovels, one polythank, 50 pieces of 6 inches sandcrete blocks and 150 pieces of 5 inches sandcrete blocks. The Plaintiff stated that on countless occasions the Plaintiff complained about the actions of the Defendant he has shown blatant disregard to the complaint of Plaintiff and also tendered in evidence Exhibit ‘F’ and Exhibit ‘G’ being letters exchanged The Plaintiff averred that on numerous occasions the Defendant had used thugs (locally known as land guards) to terrorize him, his family and workers. They stated that the contract document executed by both parties governed the relationship between the parties and beyond it there were no any verbal agreement as claimed by the Defendant and which claims are absolutely afterthoughts. As a matter of fact, the Plaintiff when he mounted the witness box repeated almost all that he had stated in his Statement of Claim as his evidence before this court. But, is that in anyway fatal to the success of his case? In the case of Sarpong (Deed) (substituted by) KODUAH VRS. JANTUAH4 the Supreme explained the principle in the case of MOJALAGBE VRS. LARBI ( 1959) GLR 190 to allay the fear of repeating one’s averment on oath and having it repeated on oath by his witness when the Supreme Court at page 740 of the report at holding 4 stated: “The principle enunciated in MAJOLAGBE VRS. LARBI ( SUPRA), did mean a party should or could not repeat what had been pleaded in evidence. What that principle meant was that, that party should lead such evidence as would constitute proof in law. Since a party was required to stick to his pleadings when giving evidence, there was nothing wrong where that party repeated on oath what had been pleaded; the only consideration of the court was to ascertain whether what the party has said on oath was sufficient to discharge the burden of persuasion that laid on him….” 4 [2017 – 2020] 1 SCGLR 736 @ 740 In the instant case despite the repetition of the Plaintiff’s averment on oath when he mounted the box to give his evidence, he did so by leading cogent evidence to establish his case. In the case of BARIMA GYAMFI AND ANOTHER VRS. AMA BADU5 the Supreme per Sakodee- Addo, Ollennu and Blay JJ. S. C stated among others that: “In a civil case, the decision must be upon the balance of probabilities established by preponderance of the evidence. Where the preponderance of the evidence is in favour of the plaintiff, a judge is fully justified in granting the plaintiff’s relief sought”. Having examined the tenancy of agreement and the terms of agreement per Exhibit ‘B’, I find that the Defendant failed to honour the agreement per paragraph 13 and no steps was taken on the part of the Defendant to negotiate with the Plaintiff to that effect neither was the agreed 36 rooms built per the agreement, See: Exhibit C’. Also, the Plaintiff was able to established the GH¢50,000.00 balance for the inducement fee as the cheques issued by the Defendant to cover them were dishonoured. However, the Plaintiff was unable to establish the costs for supervision of works fee Twenty Thousand Ghana Cedis (GH¢20,000.00) 20% on three (3) years rent of the Credit Union office – Three Thousand Ghana Cedis (GH¢3,000.00) and the rented stores for two (2) years for Fourteen Thousand Ghana Cedis (GH¢14,000.00). Accordingly, the Plaintiff was able to establish a total of Fifty-Five Thousand Eight Hundred and Forty Two Ghana Cedis (GH¢55,842.00) as the amount the Defendant owes the Plaintiff. Upon consideration of the evidence adduced, the authorities cited and the law, the Plaintiff on the balance of preponderance of probabilities succeeded to establish his claim except the question of money the Defendant owes the Plaintiff. 5 (1963) 2GLR at 597 Accordingly, judgment is entered in favour of the Plaintiff against the Defendant for the following reliefs: a) The contract or the agreement is rendered void by virtue of the Defendant’s breach of same and paragraph 13 of the agreement is invoked and the Plaintiff is to recover the property as agreed. b) Nominal damages for breach of contract assessed at Ten Thousand Ghana Cedis (GH¢10,000.00). c) Recovery of Fifty-Five Thousand Eight Hundred and Forty Two Ghana Cedis (GH¢55,842.00) being monies owed the Plaintiff. d) Interest of Fifty-Five Thousand Eight Hundred and Forty Two Ghana Cedis (GH¢55,842.00) from 1st July, till date of final payment. e) Recovery of the following items: Three (3) mason wheel barrows, one (1) coil of water holes, four (4) head pans, four (4) shovels, one (1) poly-tank , 50 pieces of 611 of cement blocks, 150 pieces of 511 cement blocks for the Defendant. Costs of Fifteen Thousand Ghana Cedis (GH¢15,000.00) is awarded against the Defendant in favour of the Plaintiff. (SGD). JUSTICE ABOAGYE TANDOH HIGH COURT JUDGE. COUNSEL MR. BENJAMIN SEVOR, FOR THE PLAINTIFF (ABSENT). MR. BAFFOUR GYAWU BONSU ASHIA, FOR THE DEFENDANT (ABSENT). /MK/ 13