NANA KWADWO POKU vs MICHEAL ADUSEI
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2018
    CHARLES AGBANU FOR DEFENDANT/APPELLANT. YAHAYA SEIDU FOR PLAINTIFF/RESPONDENT.
NANA KWADWO POKU - (DefendantT/Appellant)
MICHAEL ADUSEI - (Plaintiff/Respondent)

DATE:  24 TH JULY, 2018
SUIT NO:  H1/02/2017
JUDGES:  ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
LAWYERS:  CHARLES AGBANU FOR DEFENDANT/APPELLANT
YAHAYA SEIDU FOR PLAINTIFF/RESPONDENT
JUDGMENT

WELBOURNE, JA

This is an appeal against the judgment of the High Court, Kumasi, dated 1st June, 2016.

 

BRIEF FACTS:

The facts in this case are fairly simple and straightforward.

The Plaintiff/Respondent who is a Ghanaian by birth and nationality; but, domiciled in Germany, acquired about thirty-three (33) building plots of land from the Defendant/Appellant herein in accordance with ASHANTI CUSTOMARY LAND LAW AND PRACTICE in 2008. The said acquisition, which was free from all encumbrances, was reduced into writing. Customary drinks were provided to legitimize, validate, regularize and perfect the entire transaction. A site plan; allocation note and receipt were all issued by the Defendant to the Plaintiff after the Defendant had received substantial amount of money in the form of consideration. For some inexplicable reasons; the Defendant later sold the same building plots to third parties after collecting huge and fantastic amount of monies from the said third parties. The Defendant pocketed the proceeds from the sale to the third parties and failed to refund the Plaintiff/Respondent’s money back to him.

 

It is for this reason that the Plaintiff/Respondent herein instituted legal action

 

On the 20th day of September, 2012, the Plaintiff issued a writ at the High Court, Kumasi, claiming against the Defendant the following reliefs:

 

A Declaration that both the legal and equitable title/interest comprised in Plot Nos. 9, 10, 11 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, Block

 

A are all exclusively and bonafide vested in the Plaintiff having duly acquired same from the

 

Defendant’s family in due accordance with Ashanti Customary Law and Practice dated the 20th day of March, 2008.

 

Recovery of Possession.

 

Interlocutory/Perpetual/Permanent injunction.

 

General Damages for trespass.

 

After a full trial, judgment was given in favour of the Plaintiff/Respondent by the learned trial High Court Judge.

 

Aggrieved and dissatisfied with the judgment of the trial High Court judge, the Defendant/Appellant herein appealed to this Court on the following grounds:

1. The judgment of the Court below was against the weight of evidence.

2. The weight of evidence did not support the conclusion of the High Court of Justice that agreement voluntarily entered into by the Plaintiff/Respondent in the Allocation Note dated 20th March, 2008, cannot be enforced against him for breach of contract. The failure of the High Court to properly and dispassionately evaluate the evidence before the Court, occasioned the Defendant/Appellant a substantial miscarriage of justice.

 

ADDITIONAL GROUNDS OF APPEAL:

3. (a) The cost and damages awarded were excessive and unreasonable in the circumstances.

3. (b) The judgment of Court below is incurably bad and perverse in that allocation paper does not constitute or confer title to land as it does not represent the acquisition.

3. (c) The Court below grossly erred in law in not taking viva voce evidence whose absence completely and inexorably denuded the Court of any material on which to base its judgment and orders.

3. (d) The purported Attorney of the Plaintiff/Respondent lacks capacity to represent the Plaintiff/Respondent in the absence of a Power of Attorney identifiable in the record of proceedings proving the donation of such a Power.

 

In this judgment, the Plaintiff/Respondent is hereinafter referred to as “the Respondent” and the Defendant/Appellant is hereinafter referred to as “the Appellant” respectively. Plot Nos. 9, 10, 11 12, 13, 14, 15, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, Block A, as allocated to the Respondent by the Appellant and which are the subject-matter of dispute are referred to as “the property in issue”. Also, Record of appeal is hereinafter referred to as “the ROA.”

 

GROUNDS ONE (1) AND TWO (2):

Since grounds one and two of the appeal are almost the same, this Court would discuss this two grounds concurrently:

 

The law is trite that an appeal is a way of rehearing. Since a careful perusal of the ROA indicates that thegrounds of appeal in the instant case are mixed law and fact, we yield to the oft cited principle laid down in the case of TUAKWA V. BOSOM [2001-2002] SCGLR61 that:

“Appeal is by way of rehearing particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a balance of probabilities the conclusions of the trial judge are reasonably or amply supported by the evidence.”

 

Again, in the case ofDJIN V. MUSAH BAAKO (2007-2008) SCGLR 686, which stated at holding 1 that:

“Where (as in the instant case), an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against”.

 

See also the cases of:

 

MARGARET MARY ADJEI V. THE ATTORNEY-GENERAL & OTHERS [2012] 50 GMJ 198, CA;

 

ARYEH AND AKAKPO V. AYAA IDDRISU           (2010)  SCGLR891 and AKUFO–ADDO V. CATHELINE (1992) 1GLR 377.

 

This Court intends therefore to examine the evidence as adduced at the trial, both oral and documentary, and come to a conclusion as to whether the correct inferences were drawn and whether the conclusions arrived at by the trial judge were supportable by the evidence on record.

 

The Plaintiff accompanied the Writ of Summons with a 10-paragraph Statement of Claim, in which he stated the material facts leading to the action. In a nutshell the basis of the Plaintiff’s claim is that even though he bought and paid for the Plots of land mentioned in the Writ and the Statement of Claim, the Defendant has trespassed on to the said Plots and is selling them to third parties and has refused to refund the purchase price of the Plots to him.

 

On his part, the Defendant also filed a Statement of Defence. From the defence filed, the Defendant admits he did sell Plot Nos. A9-15, 18-24, 31-46 and 27-29 Block A to the Plaintiff for the purpose of developing estate houses and not for establishing a University as had been alleged in his Statement of Claim. Indeed, whether the sale is for the building of a University or the construction of estate houses is of no consequence, once the Planning authorities have no problem with it. More importantly, the Defendant admits taking over the said Plot of land justifying his actions on the grounds that the Plots of land were sold to the Plaintiff on condition that he should commence his building project within one year of the grant to him and complete it without any right of claim by the Plaintiff for expenses or compensation.

 

One notes that, issues set down by the parties at the close of pleadings (at the Application for Directions stage) can be found at page 11 of the ROA. The interlocutory injunction granted by Court on 09/03/2013, restraining the Defendant, his agents, servants, assigns, workmen or persons claiming through Defendant from any or further development(s) on the land until the final determination of the suit can be found on page 27 of the ROA. Exhibit ‘1’ (the Allocation Note) granting the Plots of land to the Respondent herein can be found at page 30 of the ROA. Exhibit ‘2’ (the Notice for the re-entry) can be found at page 31 of ROA. The judgment of the trial Court can also be found at pages 109– 119 of the ROA. On 27/01/2014, the trial Court received a letter from the Alternative Dispute Resolution Secretariat that the mediation was unsuccessful.

 

Counsel for the Appellant’s argument that “… when sane minds enter into a transaction voluntarily like in the instant case they should be bound by it to the letter unless fraud is alleged to vitiate same but this is not the case here.” is indeed sound, however this said transaction or condition in the instant case is unconscionable and the Court must intervene to do justice, as did by the trial judge.

 

In the instant case, the Respondent herein does not dispute the Appellant’s title to the property in issue that he bought and neither has the Appellant denied selling those Properties to the Plaintiff. However, the simple legal issue raised is whether the Appellant herein has the legal right to re-enter the disputed properties he had sold to the Respondent herein for a valuable consideration for failure to comply with a provision in the document (Exhibit “1”) allocating the said Property to him. The relevant paragraph of Exhibit “1” is hereby reproduced as follows:

“The Allocation is made subject to the following conditions:-

1. That the Allotee will pay the ground rent involved.

2. That the Allotee will within one year commence and within two years complete building on the Plot.

3. That the NyantakyiwaaBaagro Family reserves the right to re-enter on the Plot if any of the above conditions are not complied with and without any right of claim by the Allottee for expenses or compensation.

 

It is worthy of note that the above conditions appear to be the general practice among land owners in Ashanti. The Courts have in countless instances expressed their displeasure to the above provisions in a number of cases that came before them and the Judges have expressed the hope that the earlier those conditions are removed from Allocation Notes the better. This is simply because, these conditions are incapable of fulfillment and have never been fulfilled. They are also difficult for the Courts to enforce; because, in the opinion of the Courts, they are unconscionable conditions. The trial Judge in his judgment expressed his candid opinion on the low income level status of the average citizen when he said at page 114 of the ROA that: “In this country where income levels are low, a man saves for many years to buy a Plot of land. Sometimes they resort to the financial institutions for a loan to buy a Plot. By the time the person succeeds in raising enough money to buy a Plot he/she is completely back to square one. He must spend some years again to save for the commencement of the building. If the source of his money is from the Banks, he is burdened with the monthly deductions until he redeems the loan he cannot embark on any meaningful development of the Plot. This is even for a simple residential house.”

 

A close reading of the ROA indicates that the project for which the Property in issue was acquired appears to be a big one. Whether it is the building of a University or the building of estate houses, it is a big project that certainly cannot take two years to complete. The provisions in the Allocation Note above quoted are therefore unconscionable, oppressive and inequitable and same cannot be reasonably enforced by any Court of law, with due regard to the peculiar circumstances pertaining to the instant case. This Court therefore agrees with the trial Judge on this score.

 

Further, this Court holds the view that an Allocation note by itself cannot be a binding contract for the sale of land whose term are enforceable at law. The reason is simple. Allocation Notes are deficient in many respects to constitute a binding contract.

 

In agreement with the trial judge, this Court also shares the candid view that an unconscionable transaction is one that is oppressive, grossly, unfair or patently unreasonable, as in the instant case. Typically, unconscionable transactions are those between powerful on the one hand and poor and ignorant parties on the other hand. The relief to an unconscionable transaction lies in equity and legislation.

 

In the case of CAMPBELL SOUP CO. V. WENTZ, UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 172 F. 2d 80 (1948), the court unanimously held on appeal inter alia that: “We think it too hard a bargaining and too one-side an agreement to entitle the plaintiff to relief in a court of conscience...we are not suggesting that the contract is illegal. Nor are we suggesting any excuse for the grower in the case who has deliberately broken an agreement entered into with Campbell. We do think, however, that a party who has suffered and succeeded in getting an agreement as tough as this one is, should not come to a chancellor and ask court help in the enforcement of its terms. That equity does not enforce unconscionable bargains is too well established to require elaborate citation.

 

The Supreme Court recently had the opportunity to pronounce upon the validity of an Allocation Note. In the case of BOATENG (NO.2) V. MANU (2) AND ANOTHER [2007-2008] SCGLR 1117 the Court held that an Allocation Note is but the initial process to evidence that land has been acquired by an individual or corporate body. The Supreme Court speaking through Atuguba JSC held as follows:

“That kind of paper cannot by itself represent the acquisition.”

The Court went on and gave the reasons as follows:-

“There are three main reasons why they cannot represent the fact of acquisition. Firstly, the Allocation Paper may or may not state the nature of the acquisition, i.e. whether it is a lease, a sale, a pledge, mortgage, gift, etc.; Secondly, it may not specify the duration of the acquisition; and thirdly, it may not give details of the extent of the extent of the land acquired.”

 

The Court further explained that:

“When admitted in evidence, it can only show that some transaction had taken place to signify that the owners or holders of land had purported to give some land to an individual or corporate body. The grantee will thereafter proceed to perfect his title by obtaining documents which will have to be registered.” The Allocation Paper per se cannot pass title from the grantor to the grantee.

 

This Court has deduced from the Supreme Court’s reasoning that an Allocation Note is only the initial process in the acquisition of land. In the Allocation Note exhibited in the instant case, the nature of the acquisition is not stated, the duration of the acquisition is not stated, and neither the extent nor dimensions of the land are stated. It cannot therefore be a binding contract between the parties but only an intention expressed by the parties to the contract.

 

However, a detailed perusal of the ROA before this Court in relation to the instant case, consideration has already passed from the grantee (the Respondent herein) to the grantor (the Appellant herein). It is noted by this Court per the ROA that the consideration paid by the Respondent herein to the Appellant herein was not stated in Exhibit “1” (the Allocation Note) or in any other document on record but for the admission of both parties to the transaction.

 

Therefore, it is fair and just that equitable rules must apply in the instant case. The equitable principle laid down many years ago in the celebrated English case ofWALSH V. LONSDALE [1992] 21 CH.19should be applicable to such transactions as in the instant case: “That an agreement for a lease is as good as a lease, and since equity looks on that as done which ought to be done the Courts have a duty to enforce the agreement in equity.”

 

In the instant case, the Appellant herein does not deny that he had granted the Property in issue to the Respondent herein. The Appellant’s reason is that he had re-entered the Property in issue as a result of the failure of the Plaintiff to fulfill the conditions for the “grant.” But, can the Appellant unilaterally re-enter the Property in issue without due notice or his consent and concurrence, whatsoever to the grantee? At law, the grantor (the Appellant herein) has no such right, no, not even under a properly executed lease wherein are covenants for re-entry. There are specific provisions for the exercise of the right of re-entry under the Conveyancing Act, 1973 (NRCD 175).These are contained in sections 29 and 30 of the said Act.

 

Section 29 (1) provides:

“A right of re-entry or forfeiture under a provision in a lease for a breach of a covenant, condition or an agreement in the Lease is not enforceable by action or otherwise until:

(a)The lessor serves on the lessee a notice

(i) Specifying the particular breach complained of.

(ii) Requiring the lessee to remedy the breach, if the breach is capable of remedy.

(iii) Requiring the lessee to make reasonable compensation in the money for the breach, expect where the breach consists of a non-payment of rent.

(b) The lessee fails, within a reasonable time after the service of the notice under paragraph (a) to remedy the breach, if it is capable of remedy, and expect where the breach consists of non-payment of rent, to make reasonable compensation in money to the satisfaction of the lessor, for the breach.”

 

Our courts do not encourage, assists, facilitate, etc. fraud.

 

Counsel for the Respondent argued at page 4 of his written submission that; we are extremely happy that, counsel for the Defendant has averred that:

“It is trite learning that, when same minds enter into a transaction, voluntarily like instant case, they should be bound by it to the letter unless fraud is alleged to initiate same but this is not the case here.”

 

Counsel further submitted that: “this submission is incredible and ludicrous” and he cited the case of AGYEMANG SUBSTITUTED BY BANAHENE VRS ANANE [2013-2015] SCGLR, the supreme court of Ghana held that:

“As a rule, courts are not expected to endorse, concessions, compromise or agreements by parties which were contrary to, inconsistent with or not warranted by any rule of law or procedure. Thus in any proceedings where the step taken by a party or parties was in violation of any constitutional or statutory provision, same was not sanctioned by any substantive rule of law or procedure, the court has a duty to reject it; notwithstanding the fact that it was based on the mutual agreement of the parties”

 

According to Counsel for the Respondent, the import of the above quoted supreme court decisions is that; “parties, cannot, as in the instant case assuming without admitting that, they – plaintiff and defendant –did even enter into any agreement to that effect, submit that, failure to develop the land within a stipulated time does not automatically leads to FORFEITURE.” He relied on the Section 29 of CONVEYANCING ACT, 1973(NRCD 175).

 

Section 29(2) details the mode of sending a registered letter for re-entry.

 

Counsel for Respondent further averred in his submission inter alia that, of paramount importance to this appeal is the need to consider Section 30(1) read:

“Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture under any provision in a lease, or for non-payment of rent, the lessee of the property and also a sub-lessee of the property comprised in the lease or any part thereof may, either in the lessor’s action (if any) or in any action brought by such person for that purpose, apply to the court for relief.”

 

The Respondent herein and the Appellant herein agreed on the quantum of money to be paid. The Appellant accepted the money/amount involved. Legally then; the defendant ceases to beowner of the Plots after vesting title and interest in the Respondent. Going bythe principle of nemodat quod non habet, the Appellant is no longer the owner of the Property in issue so as to make any valid transfer of same to a third party.

 

In the case of SOLOMON BAAH V. MELCOM (GHANA) LTD AND ANOTHER; SUIT NO. HI/27/2015, UNREPORTED, JUDGMENT DELIVERED ON 27TH FEBRUARY, 2016, THE COURT OF APPEAL, KUMASI, held inter alia at page 10 of the judgment per Torkornoo JA that:

The Courts are courts of law and our duty is to apply the law to disputes brought to it.”

 

Again, in the case of ADDAE AIKINS V. DANIEL DANKWA, CIVIL APPEAL NO. J4/24/2014, UNREPORTED JUDGMENT AND SAME DELIVERED ON 28TH MAY, 2014,Atuguba JSC said in passing that:

A Court has power to uphold but not to pervert justice.”

 

At pages 65 and 67 of the ROA there are two letters purported to emanate from the Appellant and his Counsel. The two purported letters even; if they are genuine; they did not satisfy the requirements of the law. Section 29 (2) reads:

“Where a notice has been sent by registered post addressed to a person at his last know postal address in Ghana, then, the purpose of subsection (1), that person shall be deemed, unless the contrary is proved to have had knowledge of the fact that the notice had been served as from the time at which the letter would have been delivered in the ordinary course of post.”

 

Clearly then, assuming without admitting that, even such letters were written at all, same did not conform to the requirement of the law for service.

 

Counsel for the Appellant submitted in his written submissions at page 2, that; it is not right for the court to rewrite the terms of transaction for parties or persons who the law presumes to be reasonable men who can take care of their own affairs without any “officious” intervention in the fashion of an officious bystander or even a Justice of the High Court of Justice.

 

Counsel therefore refers us to the case of GORMAN & GORMAN V. ANSONG [2012]1 SCGLR 174,

Supreme Court holding that:

“The general rule regarding the construction of documents was that the court must give effect to the intention of the parties as found in the document and not what was intended to be written, so as to give effect to the intention expressed. The courts would be hesitant to construe private document outside the four corners of the document for good reason. Contract and other written documents between private individuals were presumed, unless otherwise proven, to represent the intentions of the parties. Thus any undue interference by the courts, would fly in the face of the sanctity attached to such document

.However, the general rule was not in any absolute. Ultimately, interpretation of contracts or documents of any kind must give effect to the parties written intentions. But the court must also consider in appropriate cases, surrounding circumstances which had the effect of elucidating the intentions of the parties”.

 

We think that relying on this authority; Appellant’s counsel has muddied the waters for himself. This Case is not explicit on the position taken by Counsel and same did not inure to his advantage.

 

This ground of appeal is accordingly refused.

 

ADDITIONAL GROUNDS (3. (III) (a); (b); (c) and (d)):

 

Since the Additional Ground 3. (iii) (b) of Appeal as stated by the Appellant has a bearing on the two original grounds of appeal already discussed by this Court, it will be unnecessary to delve into it.

 

On Additional Ground 3(iii) (a):

 

Counsel for the Appellant averred that, the cost and damages awarded were excessive and unreasonable in the circumstances. However, this Court thinks that an award of GH¢5,000.00 and GH¢5000,00 as general damages for trespass and cost respectively, is fair, just and equitable, considering the value and size of the property in issue.

 

On Additional Ground 3.(iii) (c):

 

Counsel again argued that the Court below erred in not taking viva voce evidence whose absence completely and inexorably denuded the Court of any material on which to base its judgment and orders. This Court to some extent disagrees with Counsel for Appellant on this footing. This is because the two parties were given the needed time provided under the law to file their written Submissions. Should there be the need for any of the parties to file any new or additional document leave may be sought from the Court to do same. Therefore, Counsel’s argument on this additional ground is rather weak and cannot stand. This ground is also dismissed accordingly.

 

On Additional Ground 3. (iii) (d):

 

Counsel for the Appellant again averred that, the purported Attorney of the Respondent lacks capacity to represent the Respondent herein in the absence of a Power of Attorney identifiable in the record of proceedings proving the donation of such a power. The authorities are legion that, capacity goes to the root of a matter, which is pending before the Courts. Evidently, page 43 of ROA, shows the Affidavit of one Mr. OWUSU OPOKU MORRISON being a businessman and the Attorney of the Respondent herein. This Court is a Court of record and for the Respondent’s Attorney to swear an Affidavit on oath claiming to be the lawful Attorney of the Respondent cannot be misleading. We believe that the Appellant herein is making every necessary effort to clutch at any possible ‘straw’ so as to make a strong case against his adversary. This ground is also dismissed as lacking merit.

 

In our conclusion, this Court holds the candid view that judicial authorities are settled that where the appellant has appealed against a judgment on the omnibus ground that the judgment is against the weight of evidence as in the instant case, the appellate court had jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts – see AKUFO-ADDO VRS CATHELINE [1992] 1 GLR 377. But then the appellant who so alleged that the judgment is against the weight of the evidence has the primary duty of showing from the evidence on record that it is so – see BOATENG V. BOATENG [1987-88] 2 GLR 81.

 

The appellant does not discharge this duty unless he has shown from the record; admissible and credible evidence in his favour which the trial court had failed to consider overlooked or made wrong inferences from.

 

From a detailed perusal of the ROA, this Court is however satisfied that, the Appellant herein has failed to discharge this duty adequately for the Court to rule in his favour.

 

Again, in the case of RE ASERE STOOL; NIKOIOLAIAMONTIA IV (SUBSTITUTED BY TAFO

AMON II V. AKOTIAOWORSIKA 111 SUBSTITUTED BY LARYEA AYIKU III (2005-2006) SCGLR 637this court held as follows:

“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”.

 

Since the Appellant has agreed that he has collected the said undisclosed amount of money from the Respondent, and has subsequently re-entered the Property in issue without refunding the said purchase price to the Respondent herein, this Court affirms the decision of the trial Court accordingly. This is because it was the trial Court that has the privilege of taking a physical look at the documents in their original form.

 

Based on all the above overwhelming evidence in the ROA, this Court cannot agree more with the trial Judge on his ingenious application of the law in his judgment. This Court therefore refuses the appeal, and we so hold.

 

Cost of GH¢5,000.00 awarded.

 

MARGARET WELBOURNE (MRS.)

[JUSTICE OF APPEAL]

 

I AGREE                                                             K. N. ADUAMA OSEI

[JUSTICE OF APPEAL]

{PRESIDING}

 

I ALSO AGREE                                                    SENYO DZAMEFE

[JUSTICE OF APPEAL]