AGYEMANG JA:

In this appeal against the judgment of the High Court (Land Division) Accra, delivered on the 21^st day of February 2013, the defendant /appellant (alternately referred to as the defendant, or the appellant) prays that the judgment of the court below, and all consequential orders therein, as well as costs, be set aside and that judgment be entered in his favour.

These are the matters that have given rise to the instant appeal.

By an amended Statement of Claim, the plaintiff/respondent (referred to alternately as the plaintiff, or the respondent) made the following claims against the appellant at the court below: anorder restraining the appellant from renting out the “first store to the right on approaching the gate of, and in House No. B267/25”, and a further order directing the appellant to put the respondent into the store until the expiration of the respondent’s term in 2008;

The respondent sought in the alternative, an order for the refund of the ¢28,000,000 being the outstanding amount the appellant allegedly owed to the respondent and her husband; interest on the said sum at the commercial rate from 15^th January 2005 to the date of final payment; and damages for breach of contract.

It was the case of the plaintiff in pleading, that she and her husband entered into an agreement with the defendant for the rental of a specific store described herein, from 1999 until 2004, and that the sum of ¢28,000,000 was paid by them after which they were put in possession. It was her further pleading that in 2003, before the expiration of the term, she was put out of the store by the defendant who announced that he needed to renovate it. She was in consequence placed in a smaller store to await the completion of the renovation works. According to the plaintiff, upon the strength of that promise, she and her husband entered into another agreement with the defendant for the rental of the bigger store for a five-year term: 2004 to 2009.

The plaintiff claimed she was never placed in that store the subject of the agreement despite repeated requests. She therefore decidedto seek redress at the Rent Control Office, and then at the court below when that outfit was unable to resolve their differences.

These matters, save the receipt of the sum of ¢28, 000,000, were denied by the defendant who maintained that although the tenancy agreement had been with the plaintiff’s husband and not the plaintiff, that he in fact placed the respondent back in possession of the bigger store when he completed the works for which he put her out of the store, and that the plaintiff occupied that store until she allegedly returned the keys of the store to him fifteen months later. The defendant alleged that the plaintiff in doing this, informed him that her business was not doing well, and asked for a refund of the rent advance paid.

At the close of hearing, the learned trial judge entered judgment for the plaintiff for the refund of GH¢2,800(being the equivalent of ¢28,000,000), as well as the payment of interest on the said sum at

the Bank of Ghana interest rate from 1^st January 2006 to the date of final payment, and damages for breach of contract in the sum of GH¢3,000.

It is against the said judgment that the instant appeal has been brought.

The defendant set out five grounds of appeal which we reproduce at length:

The judgment is against the weight of the evidence adduced at the trial;

The learned trial judge erred in finding that the plaintiff had been able to prove her claim by a preponderance of the probabilities;

The learned trial judge erred in finding that the plaintiff never used the renovated store;

The learned trial judge erred in finding that the defendant rented the shop during the pendency of the suit even though he had been ordered by the court to refrain from doing so;

The learned trial judge erred in giving judgment for the plaintiff respondent.

We note that ground (e) is essentially the same ground as ground (b). We will therefore strike it out as superfluous. With regard to the other grounds we also note that although the appellant has set out complaints against specific findings, we find that grounds (a)-(c), all complain about the evaluation of the evidence by the learned trial judge which allegedly led to a judgment that was against the weight of the evidence led. For this reason, in our consideration of the matters on appeal, we will subsume Grounds (b)and (c), under the first ground:(a).

The said Ground (a) which is that the judgment of the court below is against the weight of the evidence, invites usto rehear the matter. We have by this omnibus ground, been invited, (being in much the same position as the trial court regarding the evidence led), to evaluate same, and arrive at our own conclusions regarding whether or not the findings of the trial judge are supportable from the evidence adduced, see: Agyenim-Boateng v Ofori and Yeboah [2010] SCGLR 861.This is in line with our jurisdiction under Rule 8(1) of the Court of Appeal Rules CI 19.We will in this endeavor, have regard to inter alia, the specific matters of complaint subsumed under ground (a).

To aid the court in the said enterprise, the appellant has a duty to point out pieces of evidence which, had they been evaluated properly by the trial court, ought to have led the court to a conclusion different from what was arrived at, see: Tuakwa v. Bosom [2001-2002] SCGLR 61.

The plaintiff pleaded, and led evidence regarding the payment of the sum of ¢28,000 000 (Twenty-eight million old cedis), which was supposed to be payment in advance for the rental of the particularstoredescribed as “first store to the right on approaching the gate of, and in House No. B267/25”belonging to the defendant. In this regard, she tendered exhibit A which was a receipt dated 15^th January 2005 and was recited to be for the payment of “Goodwill from March 2004 to December 2004”. The defendant stoutly denied the receipt of money from the plaintiff for the advance payment of rent. It is worthy of note that the defendant who denied that the plaintiff paid any money to him apart from monthly rental payments (an allegation belied by his pleading in which he admitted that money was paid for a five-year rental of the store, albeit by the plaintiff’s husband), stated that the plaintiff went into occupation on the strength of the said advance payment, and that she used the store for one year three months and quit, demanding the refund of the money paid as advance.

Interestingly(and contrary to the defendant’s testimony), that there was money to be refunded to the plaintiff, and that it was her money and not her husband’s, was acknowledged by the defendant who pleaded that he “…struck a deal with the plaintiff that he would rent out her storeroom to another tenant to enable him refund her money”.During cross-examination, the defendant stated that he in fact did receive an amount of ¢20,000,000 from the plaintiff’s husband.The plaintiff maintained (and this was admitted by the defendant in pleading) that it was an amount of ¢28,000,000, for a period of five years, and that it was she (not her husband), that made an initial payment of ¢18,000,000. She said she paid the balance of ¢10,000,000 by installments. Exhibit A was tendered to evidence that initial payment of ¢18,000,000. It was in the name of ‘Cecelia’ which was an apparent misspelling of the plaintiff’s first name ‘Cecilia’, for the defendant admitted issuing it to the plaintiff. The defendant however stated that while it appeared to be money received from the plaintiff for the store, it was in fact issued at the instance of the plaintiff for her to use to collect money from her husband who was out of the country.It was a bare assertion uncorroborated by any other evidence. In the absence of such corroborative evidence negating the contents of exhibit A, the said receipt evidenced the payment of ¢18,000,000 by the plaintiff out of the sum of ¢28,000,000 payable to the defendant.

As aforesaid, the defendant admitted in pleading that an amount of ¢28,000,000 was paid as rent advance, but maintained that it was the plaintiff’s husband, not the plaintiff who paid it. This was negated by the plaintiff who succeeded in proving through documentary evidence, the payment of the sum of ¢18,000,000. The balance of ¢10,000,000 which would bring the total to ¢28,000,000 must be held to have been paid by the plaintiff also,in view of the defendant’s admission of that total sum having been paid for the rental of the store.

The finding of the learned trial judge that the sum of ¢28,000,000 was paid by the plaintiff for the store thus finds support from the evidence.

Did the learned trial judge err when she held that the plaintiff had not been placed back in occupation of the store after the renovation works?

That was the plaintiff’s case at the court below, and before that, it was the subject of the complaint at the Rent Tribunal Office.

In pleading, the defendant stated that it was his intention (with the plaintiff’s alleged agreement), to let out the said store to refund the plaintiff’s money to her. During cross-examination he admitted that he had in fact at that material time, let out the said store to another. Thisgave credence to the plaintiff’s case that the store for which the payment of advance was made, was not made available to her by the defendant.

The defendant who denied that he had deprived the plaintiff of her due, asserted that he in fact placed the plaintiff in the store, but that it was shethat left it after using it as a shop for one year three months, alleging that business was not good.

The defendant therefore assumed the burden of proving this assertion which was the reason he gave for his placing a tenant other than the plaintiff tenant in the store. In the face of the plaintiff’s case, the defendant called no evidence to establish this crucial fact on which his case hinged, that he had in fact placed the plaintiff in occupation after the renovation. Thus, he failed to adduce sufficient evidence to avoid a ruling on that issue, see: S.11(1) of the Evidence Act NRCD323: “… the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.”In his submission before us, the appellant has urged us to consider the gap in time between when the plaintiff was expected to have been placed in the store: June 2004, and when she made her report at the Rent Control Office: February 2006, and find that she must have been in occupation of the store during that period, hence the delay in taking action. We are not persuaded by that argument, for it invites us to make an inference from non-established facts sincea number of factors may have caused or contributed to the plaintiff’s decision to take action when she did. That singular matter without more is not sufficient for us to make the inference urged on us. In Jones v. Great Western Railway Co. (1930) 144 L.T. 194 at 202: Lord Macmillan expatiateson the difference between conjecture and inference:

“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.”

We hold that we will be indulging in an exercise of conjecture should we make the finding urged on us, and we are not entitled to do so.

We also find the learned trial judge’s reasoning - that had the plaintiff occupied the store, the defendant would not have agreed to refund the whole of the amount - sound, and supportable from the evidence.

In the circumstance, the matters as they stood at the close of the evidence, was that although the plaintiff had paid monies for the rental of a store in the defendant’s premises, she had in fact been denied occupation.

In view of the compelling evidence, we find that the learned trial judge’s conclusion that the plaintiff was entitled to the “goodwill” or rent advance (as the case may be) that she paid, was not erroneous.

The appellant complains in what was set out under Ground (d), that the learned trial judge erred when he held that the store was rented during the pendency of the suit. He points out that as among other things, the plaintiff who sought an injunction to restrain such rental acknowledged in her testimony thatbefore the suit was commenced, and during the pendency of the complaint before the rent Control Office, the store was found to be rented out. While the plaintiff indeed did recount the said matters, it is nevertheless curious that the defendant against whom an order of injunction was obtained never sought to challenge same, or to comply therewith by ensuring that the occupant quit the store. In any case, we find that should there be some merit in the appellant’s argument, that there is enough evidence on record for us to uphold the finding of the court below.

We are wholly in agreement with the findings and orders of the learned trial judge including the award of damages of GH¢3000. Although the said award is not the subject of complaint, we consider it necessary inaffirming the judgmentof the court below to indicate why we are in agreement with the judgment altogether, including the award of damages.

We note from the pleadings that the defendant repeatedly raised the matter of dealing with the plaintiff’s husband and not the plaintiff. Indeed, that was the reason an objection to the tendering of the contract document was upheld by the learned trial judge. We however state that as the plaintiffwho in fact advanced the “goodwill” or rent advance (as the case may be)was in fact the beneficiary of the rental agreement, she was in the same position as the husband in enforcing the contract in accordance with S.5(1)of the Contracts Act 1960 (Act 25). The said provision (S. 5(1)) confers rights on third party beneficiaries of a contract. It reads:

(1) A provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to this section and sections 6 and 7, be enforced or relied on by that person as though that person were a party to the contract.”

Having found that the defendant upon receipt of the ¢28,000,000, failed to give vacant possession to the plaintiff, the contract was breached by the former which entitled the plaintiff to the award of damages of GH¢3,000 made by the learned trial judge.

The appeal therefore lacks merit altogether and accordingly fails. It is hereby dismissed, and the judgment of the court below is hereby affirmed.

Costs of GH¢1,000.00 for the Respondent.

SGD

MABEL M. AGYEMANG

(JUSTICE OF THE APPEAL COURT)

SGD

MARFUL-SAU, J. A. I agree          SAMUEL MARFUL-SAU

(JUSTICE OF THE APPEAL COURT)

SGD

ACKAH-YENSU, J. A. I also agree             BARBARA ACKAH-YENSU

(JUSTICE OF THE APPEAL COURT)