Okruw Vrs Assinman Rural Bank Ltd [2023] GHAHC 216 (6 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT ASSIN FOSO IN THE CENTRAL REGION ON THURSDAY THE 6TH DAY OF JULY, 2023 BEFORE HIS LORDSHIP JUSTICE JOHN BOSCO NABARESE STEPHEN K. OKRUW ~ ~ PLAINTIFF NUMO KWEI GOOCI STREET SUIT № E1/2/2022 AJIRIGANO ACCRA VERSUS ASSINMAN RURAL BANK LTD ~ ~ DEFENDANT H/№ AF/RS – 157 ASSIN FOSO JUDGMENT The plaintiff sued the defendant claiming the following reliefs: (a) A declaration of title to House № AF/RS-157 situate as Assin Foso (b) An order for recovery of possession (c) Recovery of arrears of rent from January, 2021 to be assessed by the Rent Officer from January 2021 to date of judgment. (d) Interest on the arrears of rent from January, 2021, to date of final judgment. 1 | P a g e (e) An order of award of costs incidental to the institution of this action including but not limited to filing and solicitor’s legal fees. (f) An order of grant of any other relief that this court may deem fit to grant under the circumstances. The accompanying statement of claim sets out the plaintiff’s case. According to the plaintiff he is the owner of House № AF/RS-157, Assin Foso, and he rented out the said building to the defendant bank. He said he travelled abroad, and on his return to Ghana, he met with the manager of defendant bank with the view to claiming rent arrears and for possible renewal of the tenancy. The plaintiff said it was then that the manager of the defendant bank informed him that the defendant had purchased the house. Although the plaintiff stated that he remembers the defendant’s officers once discussed with him their desire to purchase the disputed house, the discussion did not materialize. It is the contention of the plaintiff that despite his denial of any such sale of the house to the defendant bank, the defendant officers remain resolute about the said sale and this was confirmed in a response to a letter written by his lawyer to the defendant bank for a situational report on the development. The plaintiff maintained that on no occasion did he sell or execute any deed of transfer of interest in the said building to the defendant bank whatsoever. The plaintiff contended that the defendant’s tenancy expired in December, 2020, and that from January, 2021 the defendant has failed, refused and or neglected to pay any rent to him. He stated that the defendant is determined to deny him ownership of the building and being aggrieved and dissatisfied with the development, he has caused to be issued the instant writ of summons claiming the reliefs per the endorsement on the writ of summons. The defendant bank reacted to the plaintiff’s statement of claim by filing a statement of defence. The defendant bank stated that the plaintiff relinquished his title to the said 2 | P a g e building after he negotiated with defendant on the sale of the building and the defendant paid the price for the said building. The defendant admitted however, that the plaintiff initially rented out the said house to it. The defendant stated that it paid the agreed price of the house after negotiation for the sale and it assumed ownership of the said house/building. The defendant said it was approached by the plaintiff who declared his intention to sell the house for which it agreed to buy same. The defendant said on 25th February, 2011, it invited its Board of Directors to discuss the outright sale of the house at a meeting, and that the plaintiff came to the said meeting with a valuation report carried out by E. D Quarshie Consult, who priced the said house with an open market value of GH₵ 160,000.00 as at February 2011. The defendant stated that at the Board of Directors meeting, after the plaintiff has presented his valuation report of the said house, the Board agreed with the plaintiff to pay GH₵ 120,000.00 for the said house and that amount has been paid to the plaintiff. The defendant said during the negotiation for the sale of the disputed house, the plaintiff said he had no documents covering the land from his grantor at the time he purchased the land, and therefore the defendant had to contact the plaintiff’s grantor, Nana Asiedu Munko II, chief of Assin Juaso Kusuntre Stool for the necessary papers to be prepared to cover the land. The defendant maintained that upon the advise by the plaintiff, the defendant contacted plaintiff’s grantor and the necessary papers were executed on the land in the name of the defendant and are yet to be registered with the Lands Commission. The defendant categorically stated that the plaintiff is not the owner of the disputed house since he has sold same to the defendant, and counterclaims for: “A declaration of title to House № AF/RS-157 situate as Assin Foso” It was agreed and accepted by counsel that the following issues be set down for determination by the court. They were as follows: a. Whether or not the plaintiff has sold the house in dispute to the defendant 3 | P a g e b. Whether or not the plaintiff is entitled to his claims c. Whether or not the defendant is entitled to the counterclaim. I do believe that the substantive issue in this matter is whether or not the house in dispute was sold outright by the plaintiff in the year 2011 to the defendant bank, or it was leased to the defendant for a period of ten (10) years. I must admit that the facts of this case are quite straightforward and I must commend counsel in the matter for their straight-to-the point cross-examination, though I can imagine that counsel for the plaintiff was put in a dilemma after having examined the facts of the case and, the failure or refusal of the plaintiff to call his brother, whom he said was the caretaker of the house, and if so, a material witness for that matter, and the lack of any documentary evidence put before the court by the plaintiff on the issues raised. I can therefore state without any hesitation that this situation rather limited the scope of counsel for the plaintiff’s cross-examination of the defendant’s witnesses. Having said that, the law is clear that in civil cases under Sections 11 (4) and 12 of the Evidence Act, 1975, (NRCD 323), there is an obligation placed on a party to produce sufficient evidence to convince the court that the existence of a fact is more probable that its non-existence. It is the plaintiff’s case that as owner of the disputed house, he rented same to the defendant for a period of five (5years), at GH₵ 150.00 per month as stated in the tenancy agreement, (Exhibit 1), and the tenancy expired in the year 2014. The plaintiff said he rented the house to the defendant before travelling abroad. The plaintiff said, upon his return from abroad, he met the then Manager of defendant’s bank with the view to claiming rent arrears and for possible renewal of the tenancy, whereupon the manager informed him that the building had been purchased by the defendant from him. The plaintiff stated that the defendant’s officers once discussed a possible purchase of the house from him, but they did not come to agreement. According to the plaintiff 4 | P a g e he was only willing to lease the building to the defendant’s bank for the negotiated amount of GH₵ 120,000.00 for up to the year 2020, and that he never sold the house to the defendant. And that explains why he never executed any deed of sale with the defendant. He said the defendant’s tenancy expired in December, 2020 and from January 2021 the defendant has failed, refused and or neglected to pay any rent to him. The evidence of the defendant’s representative was that the defendant bank took a decision to discuss outright sale of the disputed house with the plaintiff, and the plaintiff agreed with the bank for the outright sale of the disputed house. He said the plaintiff attended a meeting with the Board of Directors of defendant’s bank on 25th February, 2011, at Assin Manso, where the plaintiff presented a valuation report (exhibit 2) on the disputed house, and after negotiations the plaintiff agreed to accept GH₵ 120,000.00 as the agreed price for the outright sale of the house for which the bank had paid and the plaintiff had acknowledged receipt of the said amount. (Exhibit (3). Therefore, according to the defendant’s representative, the defendant had purchased the disputed house and has even been paying property rate since the year 2013, per Exhibits ‘10’ ‘10A’, ‘10B’, ‘10C’, ‘10D’, ‘10E’ and “10F”. Indeed, learned counsel for the defendant has urged me to grant the defendant’s relief on the counterclaim, having proved its case against the plaintiff on the preponderance of the probabilities. There is no doubt that as per Exhibit “1”, the defendant rented the house in dispute from the plaintiff in 2009 at a monthly rent of GH₵ 150.00 for a period of five years, which obviously expired in 2014. However, following a discussion in 2011 with the former manager of defendant’s bank, for the outright sale of the house to the defendant, the plaintiff undertook to have the valuation of the house done, and upon meeting the Board of Directors of the defendant on 25th February, 2011, presented the valuation report of the disputed building carried out by E. D Quarshie Consult to the Board, and which put the market value of the disputed house at GH₵ 160,000.00. This is 5 | P a g e how the Exhibit “2” captured the meeting with the plaintiff and the Board of Directors of the defendant. The second item of the Business of the day was: “2. AN AUDIENCE WITH MR. STEPHEN OKRUW, A LANDLORD AT FOSO: Mr Stephen Okruw was in the house to negotiate on the sale of his house at Foso. Mr. E. D Quarshie Consult ltd, a valuer, had given an open market capital value of the house at GH₵ 160,000.00 (One Hundred and Sixty Thousand Ghana Cedis) at 11/02/11. Mr. Okru and Assinman mutually agreed that the house should sell at GH₵ 120,000.00 (One Hundred and Twenty Thousand Ghana Cedis) and the amount should be paid fully by January, 2012” The plaintiff however, under cross-examination denied accepting GH₵120,000.00 as the purchase price for the disputed house. Instead, he said the amount was for a ten (10) year lease, but the plaintiff never executed any 10 year lease for the defendant, neither did he know exactly on which date the alleged ten year lease was to expire, as per Exhibits “6”, “8” and “9”. On one hand, the plaintiff stated in Exhibit “6” that the 10 year lease agreement was to have expired at the end of December, 2020, and in Exhibit “8”, it was to have expired on 30th September 2021, and again on the other hand, the plaintiff indicated in Exhibit “9” that the 10 years rent was to have expired at the beginning of January 2021, by a letter dated 20th August 2021. It is clear that there have been some inconsistencies and contradictions in Exhibits “6”, “8” and “9” regarding the dates the so-called lease for 10 years rent was to expire. Indeed, the plaintiff himself even acknowledged those contradictions under cross- examination. This is what transpired: Q: You agree with me that per your first letter and the second letter to the defendant there is a clear contradiction as to when the said lease will expire. 6 | P a g e A: Yes. I find that these contradiction in Exhibits “6”, “8” and “9” only confirm the fact that the negotiation for the sale of the disputed house was completed on 25th February 2011, when the defendant’s Board of Directors met with the plaintiff and the plaintiff agreed to accept the amount of GH₵ 120,000.00 as the purchase price to be paid by January 2012. The plaintiff accepted the terms of payment and the amount was subsequently paid to the plaintiff and he acknowledged receipt. It is therefore not surprising that after accepting the offer of GH₵ 120,000.00 as the purchase price for the house in dispute, to confirm that the plaintiff was no longer having any ownership right over the said house, on the 19th day of March, 2011 he wrote Exhibit “5”, being notice of non-renewal of lease, to all tenants in the said building to seek alternative premises for their enterprise after the expiration of their lease on 31st December, 2011, and this letter was then copied to the Managing Director of defendant’s bank. And as a result of Exhibit “5” the defendant wrote to tenants occupying the house to vacate the premises on 1st January, 2012. Then OBAATANPA NYAME COLD STORE, one of the tenants, wrote Exhibit “5A” to the senior manager of the defendant, appealing through him to the Board of Directors for extension of time to vacate the premises. It is observed that, it was minuted on Exhibit “5A” that the date to vacate the premises was extended to 31st March, 2012, for the said cold store owner. I accept the submission by counsel for the defendant that the defendant has purchased the house, and it was logical, reasonable and prudent for the defendant to have purchased the house than to opt to pay an amount of GH₵ 120,000.00 for a ten (10) year lease of the house, the open market value of which was put at GH₵ 160,000.00 by E. D Quarshie Consult. In fact, it is even clear on the evidence, especially with Exhibits “6” “8” and “9” that the plaintiff was unable to establish when the alleged 10 year lease of 7 | P a g e the disputed house was to expire, following the communication between the two parties. It is surprising that if the plaintiff was able to execute a lease for five (5) years rent, Exhibit “1” which commenced from 2009 and expired in 2014, for the defendant, why did he fail, refuse or neglect to do so for a lease or tenancy agreement for the ten year period, if he sincerely believed that the payment of GH₵ 120, 000.00 to him was not the purchase price for the outright sale of the house, but it was for a tenancy agreement for a period of ten years? I do not think that what the plaintiff stated in his evidence is credible enough to be believed. Indeed, the execution of any lease or tenancy agreement was to come from the plaintiff and not the defendant. Having paid for the house, I am of the view that the defendant must take the necessary steps to have the legal title in the house to be vested in it through the necessary documentation. It can be said that by the conduct of the plaintiff, he was prepared to be bound by a contract in the terms expressed if the defendant communicated to him its acceptance of the terms during the negotiations with the defendant’s Board of Directors. And after the negotiations with the Board, the offer the plaintiff made was agreed and accepted and the offer and acceptance being definite and final, there was no more room for further negotiations after the meeting with the defendant’s Board of Directors and the plaintiff on 25th February, 2011. See: NTHC LTD V. YAA ANTWI [2009] SCGLR 117 What the plaintiff did was not a communication by which the defendant was invited to make an offer for the purchase of the house, which was then to be negotiated, but for the defendant bank to purchase the house at an agreed purchase price, which it did. See: CHITTY ON CONTRACTS [1999] (28TH Ed.) VOL. para 2007 at page 93 8 | P a g e There was a mutual agreement between the parties at the 25th February, 2011 meeting for the house to be purchased at GH₵ 120,000.00 to be paid in two installments and before January 2012, which was done and the plaintiff acknowledged receipt of the purchase price. Following that, the defendant then started paying property rate on the building since 2013 (exhibit 10 series) and there has been no contrary opinion against that. And as DW2 stated in her evidence, the plaintiff’s brother informed the tenants in the disputed house that the plaintiff has sold the building to the defendant, and after that they now attorn tenant to the defendant. Thus, on the evidence, the plaintiff has been unable to discharge the burden placed on him to introduce sufficient evidence to avoid a ruling against him on the issues raised. In that regard, all the reliefs being claimed by the plaintiff are hereby dismissed. On the other hand, the defendant has been able to produce sufficient evidence in proof of the relief sought on the counterclaim on the preponderance of probabilities. As such judgment is entered for the defendant, declaring title in H/№ AF/RS-157 situate at Assin Foso in the defendant. By court: Agreed costs of GH₵ 10,000.00 is awarded the defendant. …………………………….. JOHN BOSCO NABARESE (JUSTICE OF THE HIGH COURT) COUNSEL 1. DANIEL ARTHUR -- FOR THE PLAINTIFF 9 | P a g e 2. ISAAC AGGREY-FYNN -- FOR THE DEFENDANT 10 | P a g e