Seapoint Resorts Ltd Vrs Wonda World Properties [2023] GHAHC 10 (18 January 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE LAND DIVISION HELD IN ACCRA ON TUESDAY, THE 18TH DAY OF JANUARY, 2023 BEFORE HIS LORDSHIP ALEX OWUSU-OFORI (JA) JUSTICE OF THE APPEAL COURT SITTING AS AN ADDITIONAL HIGH COURT JUDGE SEAPOINT RESORTS LTD. - PLAINTIFF SUIT NO.: LD/0326/2018 VRS WONDA WORLD PROPERTIES - DEFENDANT PARTIES: PLAINTIFF REPRESENTED BY JULIUS CEASAR NDIGWE CHUKWUDINMA PRESENT DEFENDANT ABSENT ============================================================== J U D G M E N T 1.0 The Plaintiff by its Writ of Summons dated 15th day of March 2018 is claiming against the Defendant for the following reliefs. 1. The recovery of the sum of Nine Hundred Thousand United States Dollars (US$900,000.00) being the balance outstanding from the cost of a parcel of land sold by the Plaintiffs to the Defendants in May of 2017; Plaintiffs sold the parcel of land to the Defendants at Two Million United States Dollars (US$2,000,000.00), the Defendant paid One Million Untied States Dollars leaving a balance of Nine Hundred Thousand United States Dollars (US$900,000.00) Page 1 of 17 2. Interest on the sum of Nine Hundred Thousand United States Dollars (US$900,000.00) from the 17th May 2017 until the date of judgment or payment. 3. Cost including lawyer’s fees calculated at 15% of the sum claimed herein. 2.0 The Defendant on the 23rd day of April 2018 entered appearance through its solicitors and on the 22nd day of June 2018 filed a defence to the Plaintiff’s action. 3.0 The Plaintiff subsequently on the 21st day of April 2021 prayed the Court for leave to amend the Writ of Summons and the deletion and substitution of some paragraphs of the Statement of Claim, which prayer the Court granted. 4.0 By the said amendment the Plaintiff prayed for; a) The recovery of the Ghana Cedi equivalent of the Nine Hundred Thousand United States Dollars (US$900,000.00) being the balance outstanding from the sale of the parcel of land by the Plaintiff to Defendant in May 2017. b) Interest on the Ghana Cedi equivalent of Nine Hundred Thousand United States Dollars (US$900,000.00) from the 17th May 2017 until the date of final payment. c) Cost including lawyers’ fees. 5.0 And also by the amendment of the pleadings as follows:- Page 2 of 17 1. By the deletion of “3009” in paragraph 3 and the substitution with “2009”. 2. By the insertion of “the Ghana Cedi equivalent of” after properties in paragraph 4 line 1. 6.0 This insertion was repeated in the subsequent paragraphs and for the deletion of paragraph 7 and substituting with a new paragraph as follows; 8. “Defendant was given possession of and access to the land and is currently in full possession and has started developing the property in earnest but has refused to pay its outstanding indebtedness to the Plaintiff”. 9. By deleting paragraph 8 and substituting it with a new paragraph 8 as follows; “Defendant made the initial payment of the equivalent of one Million, One Hundred Thousand United States Dollars (US$1,100,000.00) but at the time scheduled for the payment of the second installment, Defendant failed to honour its obligations citing reasons that it had made expenses in the course of registration process and therefore payment should be rescheduled” 7.0 Paragraphs 10 and 11 was prayed as well as substitute it with new paragraphs likewise insertions in paragraph12. This is the case for the Plaintiff. PLAINTIFF’S CASE Page 3 of 17 8.0 The Plaintiff’s case is that it is a Limited Liability Company registered in Ghana to do business of Development and Management of Hotels and similar hospitality businesses that the Defendant who owns a sister company known and called Wonda World Properties on the 5th of February 2009 assigned their residual interest in a parcel of land at La in Accra originally leased to Wonda World Properties for a period of 99 years commencing on the 5th day of September 2008 to them. 9.0 It is Plaintiff’s case that they paid to the Defendant Two Million United States Dollars as the consideration for assigning to the Plaintiff the residue of the 99year lease. 10.0 That in May 2017 due to problems in obtaining the necessary planning permits to develop a report on the assigned land, they decided to sell the land to do other business at which point the Defendants decided to buy the land back from them. 11.0 They therefore entered into a contract of sale agreement duly signed by the parties which terms were as follows; i) The Plaintiff as seller of the land shall sell the land to the Defendants as purchaser, for Two Million United States Dollars (US$2,000,000.00) ii) The Defendants as buyer to pay in advance immediately one million US Dollars (US$1,000,000) of the total cost of (US$2,000,000); Page 4 of 17 iii) Another Five Hundred Thousand United State Dollars (US$500,000.00) to be paid upon the execution of a Deed of Assignment. iv) The final instalment of Five Hundred Thousand United States Dollars (US$500,000.00) to be paid upon the registration of title in the name of the Defendant; 12.0 It is Plaintiff’s case that the Defendant was given possession of and access to the land and is currently in full possession and has started developing the property in earnest but has refused its outstanding indebtedness to them. 13.0 That the Defendant made the initial payment of the equivalent of One Million One Hundred Thousand United States Dollars (US$1,100,000.00) but at the time schedule for the payment of the second instalment, Defendant failed to honour its obligations citing reasons that it had made expenses in the course of registering the land and therefore payment for the outstanding balance be rescheduled. 14.0 Plaintiff aver that Defendant has since not made any further payment and the refusal of the Defendant to pay the amount owed is causing a lot of hardship to it and unless compelled by the Court will continue in the recalcitrant ways by refusing to pay what is due them. Page 5 of 17 15.0 This Court should therefore grant them the reliefs sought for as endorsed on their Writ of Summons and the accompanying Statement of Claim. DEFENDANT’S CASE 16.0 The Defendant as I have already stated entered appearance, filed a defence to the action and also filed a witness statement for one Nana Kwame Bediako the Managing Director of Wonda World Properties. 17.0 The said witness on whose belief the witness statement was filed however failed to appear before the Court to testify. 18.0 All what the statement which does not form part of the evidence before the Court because it was not tendered seek to say is that the Plaintiff is not entitled to any of the reliefs sought from the Court because it has not fulfilled any of the obligations towards the Defendant and that the Company has neither been able to take possession of the land nor register any interest in same due to activities of rival claimants of title to the said land. 19.0 After the close of pleadings the issues set down for the Court’s determination were; 1) Whether or not the Plaintiff is entitled to recover from the Defendant the Cedi equivalent of US$900,000.00 being the balance outstanding from the sale of the parcel of land to the Defendant by the Plaintiff. Page 6 of 17 2) Any other issues arising from the pleading. 20.0 The Plaintiff herein has a single task of leading credible evidence to establish the fact that the land it purchased from the Defendant purposely to develop a resort was re-sold to the Defendant when they were faced with challenges in obtaining the planning permit. 21.0 At the close of the Plaintiff’s case who testified through its Managing Director Julius Ceasar Ndigwe Chukwudinma, the Defendant on the 27th day of October 2022 was called upon by the Court to open its defence per the witness statement filed for Nana Kwame Bediako its Managing Director. 22.0 Counsel for the Defendant informed the Court that though they have filed a witness statement to call one witness, they elect not to open their defence but would rather seek an adjournment to file a written address to enable the Court deliver the judgment. Counsel however failed to file the written address. 23.0 The Plaintiff in leading evidence to establish its case tendered in evidence Exhibit “A” being the Deed of Assignment transferring the unexpired term of the lease it had from the Defendant Company, which interest it could not register due to problems it encountered. The Deed of Assignment Exhibit “A”. The face of it was signed on behalf of the Assignee by Nana Kwame Bediako its Chief Executive Officer and witnessed by one Reginald Sittie and Chukwudinma for the Assignor witness by Patience Mintah. Page 7 of 17 24.0 The Plaintiff in support of the claim for the outstanding balance of the Cedi equivalent of the US$900,000.00 of the land sold back to its Assignors caused an official search to be conducted to verify who the owner of the property is. The search conducted was attached to the supplementary witness statement filed by the Plaintiff and admitted in evidence as Exhibit “B” 25.0 For the purposes of evaluating the evidence I wish to state verbatim the content of the search results. LANDS COMMISSION LAND REGISTRATION DIVISION My Ref No: LRDGAOTS4088432021 Date10 /08/20 SEAPOINT RESORT LTD. Dear Sir/Madam: RE: OFFICIAL SEARCH ON LAND SITUATE AT LA IN EXTENT OF 1.1 ACRES FOR SEAPOINT RESORTS LTD. Reference your application for a search on the subject parcel of land. We wish to inform you that the parcel of land falls within Land Certificate No. GA. 30336 issued to WONDA WORLD PROPERTIES. Page 8 of 17 A copy of site plan attached for ease of reference. Please note that for details of the registered certificate, you may purchase a certificate search form from the Client Services and Access Unit of the Lands Commission to enable you obtain further information. Yours faithfully, PORTIA OPOKU ANTWI FOR: DIRECTOR 26.0 This result amply shows that after the land was purchased back by the original Assignors Wonda World Properties (the Defendant herein) it had succeeded in registering the land and obtaining land title certificate on the land. 27.0 The Plaintiff in its supplementary witness statement filed on the 9th day of February 2022 say in paragraphs 3, 4 and 5 as follows: - 3) “I say that the Defendant herein despite failing to honor all the other obligations including payment of the outstanding amount of the Ghana cedi equivalent of US$900,000.00 has taken possession and caused the Land Registration Division of the Lands Commission to register its interest in the land. 4) A search report from the Land Registration Division of the Lands Commission reveals the Defendant Company has been issued with land certificate number GA 30336 contrary to the terms of Agreement. A Page 9 of 17 copy of the search report from the Land Registration Division of the Lands Commission marked and attached as Exhibit B1. 5) The refusal of the Defendant to pay the amount owed is causing a lot of hardship loss of income and a dent on the reputation of Plaintiff Company in the Tourism industry. It has further frustrated the Plaintiff Company’s ability to diverge into other productive ventures for profit.” 28.0 It is its belief that the Defendant Company would not pay the US$900,000.00 unless compelled by the Court to do so. 29.0 The triumph card being wave by the Defendant is that once there is no sum stated as consideration given when the Defendant decided to re-purchase the land when the Plaintiff had difficulties in obtaining development permit and once the contract of sale the Plaintiff allegedly prepared for the sale of the property back to the Defendant was not tendered in evidence coupled with the fact that no receipt was issued evidencing the payment of US$1,100.000.00 to the Plaintiff, they do not owe them any outstanding US$900,000.00 or its cedi equivalent to pay when Plaintiff representative mounted the witness box the line of cross examination by counsel for the Defendant clearly illuminate the thinking of the Defendant. 30.0 These are excerpts of the proceedings of what transpired on the 22nd day of July 2022 when Plaintiff representative was being cross examined. “Q: Exhibit “A” is a Deed of Assignment; correct? A: Yes my lord. Page 10 of 17 Q: It is not your case that the Defendant has breached the Terms of Exhibit “A”; correct? A: It is my case. Q: Which Term in Exhibit “A” did the Defendant breach? A: The Term he has breached is that the Deed of Assignment has already been registered by the Defendant and that only after the registration that the balanced sum of US$900,000.00 equivalent in Ghana Cedis would be paid. It has been registered yet the amount has not been paid till date. Q: Tell the Court which paragraph in Exhibit “A” you have just referenced? A: It is not meant for reference in Exhibit “A” Q: And so you have come to this Court to recover an amount of US$900,000.00 pursuant to a contract of sale; yes or no? A: US$900,000.00 Ghana Cedi equivalent, yes, of contract of sale being the balance. He has already paid US$1,100,000.00 Ghana Cedi equivalent over the purchase of the property. The outstanding balance US$900,000.00 cedi equivalent still remain unpaid till date after registering the title as evidence from the Lands Commission document. Q: You have not put before this Court a copy of the said contract of sale; I put it to you. A: The Defendant has admitted owing the money already. Page 11 of 17 Q: Exhibit “B” attached to your witness statement does not show that the Defendant owes you US$900,000.00; I put that to you. A: It is not meant to reflect in Exhibit “B” because it is a search from the Lands Commission concerning that he has registered the property. Q: None of your Exhibits show that the Defendant owes you US$900,000.00? A: I do not have the Exhibits but I have an evidence attached to my witness statement and the Supplementary witness statement. There is no way I could have presented Exhibits on a money owed. Q: Did you issue a receipt at any point to the Defendant? A: No receipt was issued but there was a transaction. Q: And you admit that you have not put before the Court this said contract of sale, correct? A: No my lord I have put it before the Court but he has already agreed on the terms, he has already agreed on the payment and has registered the property so I did not have any worry for any default from him. 31.0 This Court made a finding of fact that the land situate and lying at La, in the Greater Accra Region measuring 1.030 Acres or 0.417 hectare which unexpired term was sold to the Plaintiff was re Page 12 of 17 purchased by the original Assignors (Defendant) herein through an agreement reached. 32.0 I am saying so because the Defendant in the statement of defence filed dated 22nd June 2018 in paragraph 3 of the said statement unreservedly admitted what was contained in paragraphs 3, 4 and 5 of the Plaintiff’s Statement of Claim. 33.0 The said paragraphs states: “3) On the 5th of February 2009, Wonda World properties assigned their residual interest in a parcel of land at La in Accra originally leased to Wonda World properties for a period of 99 years commencing on the 5th day of September 2008 to the Plaintiff; 4) The Plaintiff paid to Wonda World Properties Two Million United States Dollars (GU$2,000,000.00) as the consideration of assigning to the Plaintiff the residue of the 99 years lease. 5) In May 2017 due to the problem in obtaining the necessary planning permit to develop a resort on the assigned land, the Plaintiffs decided to sell the land and do other business at which point the Defendants offered to buy the land back from the Plaintiff. 34.0 The Defendant herein by the said paragraphs stated above did not mince words but whole heartedly admitted that it received US$2 Million from the Plaintiff as consideration for the unexpired term of the lease granted and when it became explicit that the Plaintiff cannot develop the land and decided to sell to anybody to enable it recoup Page 13 of 17 whatever money spent, the Defendant herein offered to buy the land back. I believe the Defendant did not take the land back for free. 35.0 Again this is what the Defendant said in paragraph 4 of the Statement of Defence. 4) “The Defendant in response to Paragraph 6 of the Plaintiff’s Statement of Claim states that save that the Defendant agreed to pay by instalments the final payment were to be made upon completion of the registration of documents processes at the Lands Commission” 36.0 It is clear per the search conducted at the Lands Commission, Land Registration Division attached to the Supplementary witness statement of the Plaintiff and marked as Exhibit “B” that the Defendant agreed to pay by instalments and upon completion of the registration of document at the Lands Commission made the final payment. 37.0 There is ample evidence on record that the Defendant had succeeded in registering the land and had obtained land Title Certificate No. 30336 covering the land. 38.0 What then is preventing it from honoring its promise or paying back to the Plaintiff what it owed the Plaintiff? 39.0 It is not lost on the Court that the Plaintiff paid US$2 million before the Defendant assigned the unexpired interest in the land to the Plaintiff, so if they decided to buy the land back when Plaintiff Page 14 of 17 intended to sell it to a Prospective buyer; paying the same US$2 million or its cedi equivalent for it in my humble view would not be outrageous. 40.0 The Defendant in the defence put up conceded to the fact that it owed the Plaintiff but will only pay when it succeeds in registering the land. This has been done. It subsequent denial that it does not owe the Plaintiff any outstanding debt defies logic and any proper understanding. 41.0 The Defendant Company through its alter ego, the Chief Executive Officer are only seeking refuge on the lame pretext that the Plaintiff failed to tender in evidence the contract of sale of the land in issue when the Defendant bought it back from the Plaintiff. 42.0 What the Defendant is seeking to do by putting up this defence, I will say is mischievous after admitting in its own defence that it owe the Plaintiff and will pay by instalments and make the final payment when the land is registered. 43.0 In Civil cases the general rule is that a party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof see the cases of: FAIBI V STATE HOTELS CORPORATION (1968) GLR 471 and BANK OF WEST AFRICA LTD. VRS ACKUN (1963) 1 GLR 176 SC. 44.0 By Section 14(1) of the Evidence Act 1975 (NRCD 323) it states the grounds as to who bears the burden of proof at any given time in any dispute it states: Page 15 of 17 “Except as otherwise provided by law unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting” 45.0 Also look at Sections 10, 11, and 12 of the Evidence Act, 1975 (NRCD 323) a party who bears the burden of proof is to provide the required evidence of the fact in issue that has the quality of credibility short of which his claim may fail. 46.0 On the substance of Plaintiff’s testimony I find it to be credible even though the contract of sale is not in evidence. 47.0 The Defendant at the close of the Plaintiff’s case elected not to open any defence by putting their witness they have filed a witness statement for in the box to enable the Plaintiff’s lawyer cross examine its representative on his testimony. 48.0 This is their right which they exercised similar to the recent Election Petition where the Respondent elected not to open their defence after the Petitioners have closed their case, but I must say that Plaintiff can only succeed upon the strength of its own case and not the weakness of the Defendant and the Defendant’s failure to testify does not in any way lighten the might upon the Plaintiff to prove its case on preponderance of admissible evidence that in fact the Defendant indeed owed it the outstanding balance as slated on the Writ of Summons. 49. I am more than convinced that the Defendant owed the Plaintiff and the court will proceed to enter judgment in favour of the Plaintiff Page 16 of 17 against the Defendant on all the reliefs sought for in the endorsement to the Writ of Summons and the accompanying Statement of Claim. ORDERS 50.0 The Court will order for: a) The recovery of the Ghana Cedi equivalent of the Nine Hundred Thousand United States Dollars (US$900,000.00) being the balance outstanding from the sale of a parcel of land by the Plaintiff to the Defendant in May 2017; b) Interest on the Ghana cedi equivalent of Nine Hundred Thousand United States Dollars (US$900,000.00 from the 17th May 2017 until the date of final payment; c) Cost of (GH¢40,000.00) is awarded in favour of the Plaintiff against the Defendant. (SGD) ALEX OWUSU-OFORI (JA) COUNSEL: SEKYERE DUODU WITH ALEXANDER OWUSU- ANNOH FOR THE PLAINTIFF PRESENT EMMANUEL TEI AGBAM FOR BOBBY BANSON FOR THE DEFENDANT ABSENT Page 17 of 17