Introduction:

[1] The Plaintiffs, Victoria Solomon and Evelyn Nyarkoa Obeng are mother and daughter respectively. According to the pleadings the Defendant is a former Honourable member of Ghana’s Parliament and he represented the Obom-Domeabra Constituency in the Greater Accra Region. The Plaintiffs contend that sometime in or about the year 2000 they bought four plots of land (two each) situate at Lakeside Estates at Adenta in Accra from the Defendant for GH¢4,500 per plot. According to the Plaintiffs they believed the Defendant had capacity and authority to deal with them as the Lawful Attorney of the Anum Yemo family based on the representations he made to them. The Plaintiffs contend that after paying the money for the plots of land they deposited quarry stones and sand on the land to commence construction but they were confronted by land guards who drove them away on the grounds that their Vendor is not the owner of the land.

[2] It is the case of the Plaintiffs that they informed the Defendant and he apologized to them and “gave them one new plot each in October 2013 at New Legon Annex, Frafraha within the Adenta Municipality as part replacement pending the demarcation of two additional plots”. The 1st Plaintiff says she erected a fence wall around the two plots but they were demolished by another group of land guards who claimed that the Defendant had no land there to sell to them. It is the further case of the Plaintiffs that the Defendant after becoming aware again gave them “another two adjacent plots (one each) at another location at New Legon Annex in the Adenta Municipality in July 2014 but they again lost the land through the activities of land guards of opposing claimants of the land.

[3] It is the further case of the Plaintiffs that once it became obvious that the Defendant could not give them any secured land they requested for the “refund of their monies at the current value of lands within the Lakeside Estates or New Legon Annex areas, but the Defendant failed to make the refunds after several promises to do so”.

[4] The issues for my resolution in this case are: whether the Plaintiffs are entitled to the current replacement value of the plots of land paid by them at New Legon Annex area or Lakeside Estates at Adenta and whether the Plaintiffs are entitled to the other reliefs endorsed on their writ of summons.

[5] Having failed to refund the monies paid for the plots of land the Plaintiffs commenced this action for:

“(a) Refund of the Cedi equivalent of US$80,000 being the current replacement value of four (4) plots of land in the New Legon Annex area within the Adenta Municipal Authority.

(b) Refund of GH¢4,400 and GH¢1,200 being the current cost of two (2) double axle loads of quarry stones and one (1) double axle load of sand respectively.

(c) Refund of GH¢36,188 being the current cost of constructing a fence wall around two (2) plots of land.

(d) General damages for breach of contract.

(e) Cost for bringing this action inclusive of Solicitor’s fees.

[6] On October 11, 2018 this Court entered interlocutory judgment in favour of the Plaintiffs and ordered them to file their witness statement and attach all documents they intend to rely on as exhibits. The record of the Court shows that the Plaintiffs were ordered to serve a copy of the witness statement to be filed on the Defendant.

[7] Counsel for the Plaintiff on November 2, 2018 complied with the order made and filed the witness statement of the Plaintiffs with attached exhibits. The Court notes that even though Counsel for the Plaintiffs initially informed the Court that the Defendant has been served with the witness statement filed it turned out not to be the case. In fact the Defendant was not served until June 26, 2019. The record shows that on November 14, 2018 Kwasi Appiah-Korang Jnr. Esq of K-Archy & Company Legal and Management Consultants filed a Notice of Entry of Appearance for the Defendant. On November 26, 2018 Counsel was in Court for the Defendant and was updated of the status of the suit and the Court ordered the Plaintiffs’ Counsel to serve the Defendant’s Counsel with all the processes filed. The suit was then adjourned to December 17, 2018 to be spoken to. On December 17, 2018 Mr. Appiah-Korang Jnr sent a letter to seek adjournment on the grounds that he is indisposed. The Court granted the adjournment request but because the letter did not propose a return date the Court on its own in consultation with Plaintiffs’ Counsel adjourned the suit to January 10, 2019 and the Plaintiff was ordered to serve a Hearing Notice on the Defendant’s Counsel.

[8] When the matter was called on January 10, 2019 both Counsel were present and Mr. Appiah-Korang Jnr prayed the Court for an adjournment to enable the parties start settlement discussions. The Court granted the request but the record shows that according to Counsel for the Plaintiffs after they left the Court neither the Plaintiffs nor Counsel was contacted by the Defendant. Indeed, the record shows that Counsel for the Defendant did not attend Court again despite the service of numerous hearing notices until June 11, 2019. The Court also notes that even though Counsel for the Defendant was informed in November 2018 that an interlocutory judgment had been entered against his client no step was taken by him to have it set aside. Consequently, after the Court was satisfied that the witness statement had been served on the Defendant through his Counsel, the Court heard the evidence of the 1st Plaintiff on July 2, 2019.

[9] The Court further notes that prior to hearing the evidence the Court expunged from the record the evidence heard on April 15, 2019 on the grounds that the Defendant had by then not been served with the witness statement. When the evidence was heard both the Defendant and his Counsel were not in Court even though they were in Court on June 11, 2019 when the matter was adjourned to July 2, 2019. The Court did not adjourn to a later date for cross-examination because the Court took the position that the Defendant was not interested to cross-examine the 1st Plaintiff and therefore discharged her and adjourned the suit for judgment because the Plaintiffs’ Counsel indicated that he did not intend to call any other witness.

[10] I note that the reason why the Court opted to serve the Defendant and Counsel with hearing notices even though they failed to comply with the orders and attend Court was that, on the authorities, where a Court has taken a decision without due regard to a party who was absent at trial because he was unaware of the hearing date, that decision is a nullity for lack of jurisdiction on the part of the Court. See: BARCLAYS BANK v. GHANA CABLE CO [1998-99] SCGLR 1 and the earlier case of VASQUEZ v. QUARSHIE [1968] GLR 62.

[11] On the other hand, the law is that where the party is sufficiently made aware of the hearing date and/or offered the opportunity to appear in court to answer/defend or as in the present case where the Defendant was duly served but he failed/refused to attend Court, the Court is entitled to proceed to determine the case on the basis of the evidence adduced at the trial, notwithstanding the absence of the party, in this case the Defendant. See Order 36 of the High Court Civil Procedure Rules, (2004, CI 47) and also IN RE: WEST COAST DYING IND. LTD; ADAMS v TANDOH [1987-88] 2 GLR 561.

The Plaintiffs’ Evidence:

[12] The Plaintiffs’ evidence was given by the 1st Plaintiff. In pith and substance it was not different from the pleadings. According to Evelyn Nyarkoa Obeng the Defendant represented himself to the Plaintiffs “as the Lawful Attorney of the Anum Yemoh family and with the authority and capacity to sell portions of the family lands which were gifted to the family by the La Mantse in 1970 with the consent and concurrence of the Council of Elders of the Labadi Stool”. According to the Plaintiffs sometime in or about the year 2000 the Plaintiffs bought two plots of land each from the Defendant based on representations he made to them. The 1st Plaintiff said the plots numbers for the land were C126 and 128 and D346 and D348 situate at a “location known as New Legon, Frafraha-Adenta in Accra, at a cost of GH¢4,500 per plot at the time”. The 1st Plaintiff tendered as Exhibits “A and B”, being the indentures signed and Exhibits “C1 to C3”, the payments receipts issued.

[13] The Plaintiff’s further evidence is that as a result of the activities of armed robbers in the area she was residing with the 2nd Plaintiff they decided to start the construction on the plots of land purchased. According to the witness before they could commence the actual construction “we were confronted by land guards who drove us away saying the plots did not belong to the Defendant as a result we lost all the sand and stones we deposited on the land”. According to the witness when the Defendant was informed he apologized and “gave us another two plots of land each in October 2013 at New Legon Annex, Frafraha-Adenta, within the Adenta Municipality as part of the replacement”. Ms. Nyarkoa Obeng said they erected a fence wall but the wall was demolished by another group of land guards who claimed that the Defendant had no land in the area to give to the Plaintiffs.

[14] The Plaintiffs’ further testimony is that they once again informed the Defendant who for the third time offered them two adjacent plots (one each) at another location at New Legon Estates Annex in the Adenta in July 2014. The witness tendered as Exhibits “D” and “E”, the Indentures executed by the Defendant and the Plaintiffs. According to the Plaintiffs they lost that land as well due to the activities of land guards of opposing claimants to the land. The witness testified that they became convinced that the Defendant had no land to give to them and so they requested for the refund of the monies paid at the prevailing value within the New Legon Estates and New Legon Estates Annex areas but the Defendant failed to make the refund. A copy of a letter of petition sent to the Honourable Speaker of Parliament to intervene on behalf of the Plaintiffs as the Defendant was then a Member of Parliament was tendered as Exhibit “F”.

[15] The other exhibits tendered in support of the 1st Plaintiff’s evidence and the Plaintiffs case are as follow:

i) Exhibit G – a letter written by the Plaintiffs’ Solicitor to the Defendant for the refund of the current value of the plots of land;

ii) Exhibit H – A Daily Graphic of Wednesday, August 8, 2018 Promotion for RockHill Properties;

iii) Exhibits J – a document titled “Estimates for Construction of Fence Walls for two (2) Plots of Land”.

[16] The 1st Plaintiff further testified that “the estimates for the fence wall construction also indicates that the current cost for two (2) double axle loads of quarry stones is GH¢4,400 and that for one double axle load of sand is GH¢1,200.

[17] The Plaintiffs contend that the Defendant failed to give them the land they purchased because he had no land to give to them. Consequently, the Plaintiffs prayed the Court to grant the reliefs endorsed on the writ of summons and to compel the Defendant to refund the money paid to them.

The Court’s Analysis & Opinion:

[18] It is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; see sections 10 – 17 of our Evidence Decree 1976 (NRCD 323). There is no paucity of case law interpreting these provisions. In ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. Reference is also made to the cases of TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 and RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-2004] SCGLR 420 which further elucidate the burden of proof as statutorily provided.

[19] As indicated above, when the matter came before me for the Plaintiff to prove his case further to the grant of the default judgment, the Defendant failed to file any defence and/or to participate in the matter despite the numerous hearing notices served on him. Notwithstanding the absence of the Defendant in court, I have subjected the Plaintiff’s evidence to the prescribed standard provided by the provisions of the Evidence Act 1975 NRCD 323 in particular Sections 10 – 14 of the Act in order to establish whether or not the Plaintiff has discharged his burden of proof.

[20] On the whole, from the available evidence, I am of the view that the Plaintiffs deserve judgment even though I am of the view that some parts of their claim and documents tendered are questionable and I shall comment on those later in this judgment. Generally though, I find the Plaintiffs’ case is made out on the balance of probabilities. The Plaintiffs sued the Defendant for the reliefs endorsed on the writ. The Defendant even though entered appearance but they failed to file a defence to contest the suit.

[21] It is significant to observe that the Plaintiffs tendered Exhibits “C1”, “C2” and “C3” being the receipts issued to the Plaintiffs for the payments made. They also tendered Exhibits “A” and “B” which are the Indentures signed on 1st October, 2003 between ANUM YEMOH FAMILY AND VICTORIA SOLOMON as Lessor and Lessee respectively AND also one dated 1st October, 2003, between ANUM YEMOH FAMILY AND EVELYN NYARKOA OBENG as Lessor and Lessee. I have critically examined the documents and it appears to me that the parties entered into a contract for the transfer of the plots of land for which the Plaintiffs provided the required consideration to the Defendant. I note that the agreement was between the Anum Yemoh Family and not the Defendant in name and so ordinarily one would say he is not the proper party. In this case, I am of the respectful view that in the absence of any explanation from the Defendant I accept the Plaintiffs’ evidence as a fact and uncontroverted. To that extent, I have no doubt in my mind that the Plaintiffs’ evidence is acceptable in the absence of any contrary evidence. It is my holding that the parties executed a lease and based on the terms and the payment of the money agreed to the Defendant should have ensured that the Plaintiffs were given the plots of land assigned without any encumbrance and thus had vacant possession of the plots of land.

[22] What does it mean to be granted vacant possession in law? The apex Court in the case of UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861 speaking through Benin JSC stated the law on what it means to put a purchaser in possession of a land at page 880-881 of the report as follows:

“It is an incidence of every sale of land for valuable consideration that the purchaser be granted quiet enjoyment. Thus possession that is challenged to the extent that the tenants even refused to pay rents to the purchaser on account of challenges to his title, would not be considered as possession in the eyes of the law; it is anything but quiet enjoyment. The position then is that the defendant-appellant, having failed to give legal title to the Plaintiff-respondent, could not claim to have given them possession…”

[23] Applying the principle above to the case at bar, it is clear that the Defendant failed to put the Plaintiffs in possession when to his knowledge land guards prevented them from occupying the land and developing same. The evidence show that after the first land was assigned two other places were further assigned but other claimants with the help of land guards prevented the Plaintiffs from developing the land.

[24] Based on the evidence and in particular, Exhibits A and B, the indentures executed between the Plaintiffs and the Defendant crystalized the agreement between the parties. The payment receipts clearly confirm the consideration provided by the parties. To that extent, it is my holding that the parties had a written agreement. I also find as a fact that there was a contractual nexus between the Plaintiffs and the Defendant based on the evidence. I am satisfied based on the evidence that the nature of the legal relations between the Plaintiff and Defendant was contractual and therefore their rights are also sustainable under the law of contract.

[25] According to G.H. Treitel, The Law of Contract 11^th Edition ‘a breach of contract is committed when a party without lawful excuse fails to perform what is due from him under the contract, or perform defectively or incapacitates himself from performing’. Based on the evidence it is my finding that the Defendant breached the agreements dated 1st October, 2003. The Plaintiffs are therefore entitled to refund of the monies paid to the Defendant.

[26] Now, are the Plaintiffs entitled to the current replacement value of the plots of land they paid for and if so should it be $80,000 as endorsed on the writ of summons? Based on the law, I am of the view that the Plaintiffs are entitled to current value of the lands in the area they agreed to and paid for. Undoubtedly, this is a contract freely entered into by the parties and therefore it is the duty of this Court when called upon to enforce same based on the terms. The Supreme Court in MULLER v HOME FINANCE COMPANY LTD [2012] 2 SCGLR 1234 did not hold back when it spoke about the enforceability of contract signed by parties to regulate their affairs in the case of a breach. The apex Court held that where as in this case, there is a failure to deliver a house paid for, the Court should not just order the money paid for the house and interest simpliciter, without taking into account the loss the Plaintiff incurred in not enjoying the house purchased earlier (in the year 2002). The Court opined that:

“In effect, where there had been total failure “to deliver”, the measure of damages would be the current market value, and if that was not easily ascertainable, then the cost of replacement”.

[27] On the argument that the amount paid in 2002 should be the same in 2012, the Court further reasoned that:

“It would be a travesty of justice to say at this moment in 2012 – the same 2002 amount should be paid”

The Court further stated:

 “Such a conduct, we dare say, would run counter to the notion of stability of contract… it will not be out of place…for the Supreme Court to reiterate the fact that, if it is desirable for people to use contract in the business world to regulate and control their dealings with one another, then it is the duty of the law courts to give teeth to these contracts to enable them bite and bite very hard when the contracts are honoured in the breach by the parties”

[28] The above notwithstanding, the issue is why are the Plaintiffs claiming “the current replacement value of four (4) plots of land in the New Legon Annex area within Adenta Municipal Authority” when their pleading clearly states that “sometime in or about 2000 they bought two (2) plots of land each (in total 4 plots) known as plot numbers C 126 & 128 and D 346 & 348 all situate, lying and being at a location near Lakeside Estates at Adenta in Accra at a cost of GH¢4,500 per plot at the time”. As I understand it from the pleadings in paragraphs 6 and 8 it was the replacement lands offered in 2013 and 2014 which are situate at “New Legon Annex, Frafraha and New Legon Annex in Adenta Municipality”. I am not sure if there are differences, as no better explanation was offered. It is a settled rule of law that when a party departs from its pleadings at a trial the Court ought to look at such a party with suspicion. See: TAKYI v APPIAH (1982-83) 1 GLR 1 C/A.

[29] Be that as it may, I am of the view having looked at the evidence and the exhibits that though the amount paid in 2000 and 2001 should not be used as the replacement value, I am unable to accede to the Plaintiffs reliance on the RockHill Properties values. First, those lands are situate at “East Legon Hills” and secondly, “they are demarcated within a well planned community”. To that extent the value of $20,000 quoted for a plot cannot be the same as the one paid for by the Plaintiffs in my respectful view.

[30] Based on the evidence heard and my analysis above I hereby enter judgment in favour of the Plaintiffs and award them GH¢25, 000 for a plot of land and so the total amount for the four (4) plots is GH¢100,000. The Plaintiffs are also entitled to interest on the amount of GH¢100,000.00 from the date their Solicitor wrote to the Defendant to demand the refund, which is June 2, 2017 at the prevailing Commercial bank rate until the date of final payment. On the authorities, the rationale for the award of interest on a judgment debt is that if the judgment debtor had paid the money at the appropriate commercial time, the creditor would have had the use of it. Accordingly, the interest was really meant as compensation for what the Plaintiffs have lost from the due date when the demand was made. See: HELOO v. TETTEY [1992] 2 GLR 112-129, AMARTEY v. SOCIAL SECURITY BANK LTD. AND OTHERS v. ROBERTSON (CONSOLIDATED) [1987-88] 1 GLR 497-505 [C/A.

[31] In UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861 the Supreme Court speaking on whether a land purchaser was entitled to interest on the money paid held that “both the trial High Court and the Court of Appeal had rightly held that the Plaintiff-Respondent was entitled to award of interest and special damages. Both Courts were right in the conclusion reached because the agreement having failed due to the default of the Vendor, the purchaser was entitled to interest for the money that had been paid to the vendor and was thus deprived of its use”. I adopt and apply the same reasoning in this case.

[32] Now, does the fact that the Defendant failed to attend Court to contest the suit mean that the Court should grant all the reliefs endorsed on the writ of summons? To my mind the answer is No. See the case of REPUBLIC v. COURT OF APPEAL, ACCRA; EX PARTE TSATSU TSIKATA (2005-2006) SC. GLR 612. And so can it be said that the Plaintiffs proved the figures stated reliefs B and C on the writ of summons with cogent evidence? In my view, they did not. I have difficulty accepting Exhibit ‘J” being the figures stated on a sheet of paper dated 14th June 2018 and allegedly prepared by one Ernest Asamoah with a total figure of GH¢36,188 as a proper way of proving the money spent for the construction of the fence wall. To my mind stating the figures without any persuasive or cogent evidence by way of receipts for blocks, chippings, cement, sand and proof of payment to artisans etcetera is not an acceptable way of proof at law. One may ask who is Ernest Asamoah and if he is the artisan or the person who supervised the construction, why was he not called as a witness? I am of the view that the probative value which this Court should place on Exhibit “J” and accept as relevant and reliable is lacking. With the greatest respect to the Plaintiffs and Counsel I cannot accept the amount of GH¢36,188 together with the GH¢4,400 and GH¢1,200 respectively (being total of GH¢41,788) without any proper proof.

[33] The Plaintiffs and Counsel ought to know that the general rule is that where a party in a civil suit raises an issue which is essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant. Discharging this burden requires that a party goes beyond merely repeating the averments in his pleadings on oath and produce evidence of other facts and circumstances from which the Court can ascertain that what he claims is true. The old case of MAJOLAGBE v. LARBI [1959] GLR 190 @ 192 has long shown the path to follow and laid in pithy terms what a party in an action such as the one at bar must prove on the preponderance of probabilities in order to secure a favourable verdict in his favour. See also the Court of Appeal case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA.

[34] But, does the above finding mean that I should wring my hands in despair and lament that because the Plaintiffs failed to establish with cogent evidence the total figure of GH¢41,788 claimed they should not be compensated for the construction on the land which I accept as a fact in the absence of any contrary evidence from the Defendant? I think equity and conscience dictate that I should not do so. Based on all of the evidence, I shall grant the Plaintiffs an amount of GH¢25,000 for the cost of the development work on the land.

[35] Finally, on the strength of the evidence before me and the law as applied in this judgment and in view of my finding that there was a contractual nexus between the parties, the determination of the issue of the breach of the agreement follows that the Defendant is liable for breach and to that extent it is my finding that the Plaintiffs are entitled to some damages for the breach of contract. Based on the evidence and taking into consideration the nature of the agreement the parties had and the circumstances of the breach I will award the Plaintiffs a nominal amount of GH¢10,000 for the breach of contract.

[36] Further, taking into consideration the conduct of the Defendant who failed to attend Court despite the service of the numerous hearing notices served and relying on the authority of the factors under Order 74 of C.I. 47 and the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262 I shall award the Plaintiffs cost GH¢15,000. 00. Accordingly ordered.

CASES REFERRED TO

BARCLAYS BANK v. GHANA CABLE CO [1998-99] SCGLR 1

VASQUEZ v. QUARSHIE [1968] GLR 62