AMOAKO BLANKSON vs. NANA BONSU, GABBAT CO. LTD. (NOW ASOMDWE CO. LTD & ANDREWS AFRIYIE )
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2016
AMOAKO BLANKSON - (Plaintiff/Appellant)
NANA BONSU, GABBAT CO. LTD. (NOW ASOMDWE CO. LTD AND ANDREWS AFRIYIE - (Defendants/Respondents)

DATE:  10TH MAY, 2016
CIVIL APPEAL SUIT NO:  H1/8/16
JUDGES:  E. K. AYEBI J.A (PRESIDING), GERTRUDE TORKORNOO (MRS) J.A, ANGELINA M. DOMAKYAAREH (MRS) JA
LAWYERS: 
JUDGEMENT

 

AYEBI, JA

1. This an appeal by the Plaintiff against the judgment of a Kumasi Fast Track High Court dated 28th May, 2013. Originally, the Plaintiff sued the 1st Defendant alone for the following reliefs:

(a) A declaration that he, being the original allotee of the plot of land marked out as Plot No. 11 located on the grounds of St. Joseph R.C. J.S.S, Suame and which plot was meant for the construction of stores, the Defendant has no right to arbitrarily wrongly allocate the said store to another person, so as to deprive the Plaintiff of its use.

(b) Recovery of possession of the said space or plot or any store built on the said plot No. 11

(c) Damages for trespass

(d) Perpetual injunction

 

2. The Plaintiff pleaded that he, the 1st defendant and other traders and artisans were doing business on portions of the St. Joseph Roman Catholic J.S.S land allocated to them by the school. To promote their welfare, they formed a loose Union of which he and 1st defendant were executive members. As a result of their appeal, the school authorities permitted them to put up permanent structures on the portions they each occupied.

 

3. In order that the structures they will put up will be uniform, 1st defendant decided to undertake the construction. They all agreed to contribute ¢9 million each towards the construction. It was also agreed amongst them that each person will occupy the store at the space or land immediately behind the location of his kiosk or container.

 

4. The plaintiff says he paid a total sum of ¢4 million by installment and during the Christmas holidays he tendered the balance of ¢5 million to the 1st defendant. The 1st defendant refused to accept the balance because he had re-allocated the store on plot No.11 which is behind his kiosk to another person. When his protests failed, he sued the 1st defendant.

 

5. In his statement of defence, the 1st defendant denied that the land on which the stores were built belonged to the St. Joseph Roman Catholic J.S.S. Rather, the land is a lease from the Republic of Ghana to Gabbat Company Limited and it was the company which collected money from the other tenants to complete the stores when all attempts to get the plaintiff to pay the balance of ¢5 million failed. But in a reply filed by the plaintiff, he challenged the formation of the Gabbat Company Limited and the leasing of the land to her as fraudulent. It was these allegations of impropriety which made the company applied to be joined to the suit to clear its name and avoid multiplicity of suits. The grant of the application made Gabbat Company Limited the 2nd defendant in the suit.

 

6. Then pursuant to the grant of an application for leave to amend the endorsement on the writ of summons, the plaintiff amended the number of the store to read No. 12. Thereafter, the plaintiff obtained an order restraining the 1st defendant and his assigns from entering store No. 12. Upon the order, the store was locked up.

 

7. Since the restraint order affected Andrews Afriyie in his pocket, he applied to the court to vacate the order which affected him, a non-party to the action, without being heard. The court vacated the injunction order subject to an undertaking by Andrews Afriyie to compensate the plaintiff should he win the suit. This is how come Andrews Afriyie became the third defendant in the suit.

 

8. So this is the case of the plaintiff against the defendants: about 20 years ago, the teachers of St, Joseph School gave him a place to trade. He said he placed a container on the land and sold spare parts in it. He admitted the 1st defendant and other traders and artisans were similarly doing business on portions of the land the school allowed them. According to him the portion of the land on which he was trading is now store No. 12. He also stated that the teachers were not owners of the land but caretakers.

 

9. In course of time, the oficials of Kumasi Metropolitan Assembly asked them to vacate the land because they wanted to construct a wall to protect the school. The occupants of the land pleaded with the officials of KMA to allow them to construct the fence wall and then put up their own stores outside the wall and it was agreed.

 

10. Although each of them was to put up his own store, the 1st defendant suggested that in order that the structure would be uniform, they should come together. They agreed and permitted the 1st defendant to collect various sums of money from them, construct the stores and handover to them.

 

11. Each of them was to pay ¢9 million and it was further agreed that after the construction, each of them will occupy the store directly behind the place he was formerly trading in a container. He is claiming store No. 12 because it is situated right behind his old place.

 

12. In the course of constructing the stores, the Lands Commission put a “stop work” notice on it. They gave the 1st defendant and others money to settle the matter with the Lands Commission. After sometime their delegates informed them the matter has been settled and the construction resumed. But then, they realized that the1st defendant and three others have fraudulently registered the Gabbat Company Limited privately as if all the stores belong to them.

 

13. The plaintiff said they lodged a complaint with the police and 1st defendant and his cohorts were arrested. They were charged with the offence of conspiracy to defraud and defrauding by false pretence and were arraigned before the Circuit Court. The matter was withdrawn for settlement. The terms of settlement were filed in court. The court adopted the terms, struck out the case and discharged the 1st defendant and three others.

 

14. As regards the payment of the ¢9 million towards the construction of the stores, plaintiff stated that by 1st December, 1999, he had paid ¢4 million. And in the same December 1999, he tendered the balance of ¢5million to the 1st defendant but he refused to accept it. At that time, the ground floor of the store complex has been completed and the 1st defendant allocated his store No. 12 to the 3rd defendant. This is the basis of the plaintiff’s suit against the 1st defendant which the 2nd and 3rd defendants joined on their own volition.

 

15. The 1st defendant gave evidence for himself and the 2nd defendant. The 1st defendant denied that the St. Joseph J. S. S gave them the land to construct the Store Complex. He said as squatters trading in kiosks on the land, KMA worried them. He invited seven other colleagues to join him sell the idea of a store complex to other artisans and traders. They all accepted the idea. He admitted that the decision to form a company came later and second defendant company was formed by the originators of the Store Complex idea. He tendered Exhibit 2 as the lease the 2nd defendant company took on the land from the Republic of Ghana.

 

16. The 1st Defendant a director of the 2nd defendant company tendered documents showing its registration and certificate to commence business. With the formation of 2nd defendant, he said the store complex was owned by it but the complex has now been transferred to Asomdwe Company Limited. The 1st defendant admitted that they financed the construction through individual contributions of ¢9 million each. However, he described this amount as rent in his statement of defence. He stated that the money was to be paid within a given period.

 

17. Within the period, out of 45 members of what plaintiff described as a loose union, 22 paid up fully. In the case of the plaintiff, he was able to pay ¢4 million. All efforts to get him complete the payment proved futile. So the company had to fall on others for money to complete the project. He said plaintiff was not given a big store because he could not pay up fully. He was given a small store on the 1st floor commensurate with the ¢4 million he paid. Plaintiff refused to accept it although others in his shoes did. Plaintiff also refused to accept refund of his money.

 

18. Rather plaintiff summoned them before the chairman of the Garages Association without success. The plaintiff then forcibly entered store No. 11 now No. 12. The National Union ordered him to quit the store. When they met for the plaintiff to hand over the store, he pulled a gun. He was arrested, charged and arraigned before the court. The court ordered him to vacate the store. Further the court advised him to take a civil action against the association, if he had a right to claim any of the bigger stores. The court gave this advice on 09/02/2000– Exhibit 1 refers. The plaintiff heeded the advice by issuing this writ of summons on 17/03/2000. The 1st defendant concluded that store No. 12 is the subject of the tenancy agreement between the 2nd defendant company and the 3rd defendant. For this reason, the plaintiff cannot be entitled to his claim.

 

19. The 3rd defendant did not give evidence during the trial although he filed a statement of defence to the effect that he is in occupation of the store as a tenant of the 2nd defendant for a period of 50 years. Since the 2nd defendant is the lessor of the 3rd defendant, and it is an obligation on the 2nd defendant to assure the 3rd defendant of a valid title, the evidence of the 2nd defendant is sufficient to vindicate the case of the 3rd defendant.

 

20. In his judgment, the trial judge considered two main issues namely, (a) whether or not a time frame was agreed for contributions to be made by initiators of the project towards its completion and

(b) whether or not the initiators of the project were to be allocated constructed stores directly behind the places they occupied before the erection of the complex. The trial judge resolved issue (a) in the affirmative and issue (b) in the negative and accordingly dismissed the claim of the plaintiff.

 

21. Dissatisfied by the dismissal of his claim, the plaintiff has appealed and prayed for the reversal of the judgment on the grounds that

(a) The judgment is against the weight of evidence

(b) The trial judge erred by dismissing the plaintiff’s claim on the grounds that he had not fully paid his contribution.

 

22. In the written submissions of plaintiff/appellant (still referred to as plaintiff) counsel argued ground (b) first. On the issue of the payment of his contribution, counsel referred to the evidence of the plaintiff that as at 1st December, 1999, he had paid ¢4million out of the ¢9 million. Further the plaintiff stated that in the same month (December) he tendered the balance of ¢5 million but the 1st defendant refused to accept it. Counsel observed that this vital piece of evidence was never challenged by the plaintiff even when the plaintiff repeated it under cross-examination. On the authority of Takoradi Floor Mills vrs Samir Faris [2005/06] SCGLR882, counsel submitted that the failure of 1st defendant to cross-examine the plaintiff on that evidence amounted to an admission of same.

 

23. In the further submission, counsel for the plaintiff criticized the evidence of the first defendant that they gave themselves time within which to pay up their contributions. This is because the defendants failed to tell the court the time within which each member was to complete the payment. But DW2 and DW3 stated that they were to pay up fully within one year. Going by this evidence of DW2 and DW3 and the unchallenged evidence of plaintiff that he tendered his balance within the same December 1999 the plaintiff was willing and ready to pay up within the one year. Otherwise the 1st defendant should not have accepted the payment made on 1st December, 1999. Counsel submitted that the trial judge erred in condemning the plaintiff for not paying the full amount promptly and then dismissing his claim for non-payment of his contribution.

 

24. In response, it is submitted on behalf of the defendants that it was the directors of the 2nd defendant, legitimate owners of the land and the stores who allocated the stores. The plaintiff failed to pay the balance of ¢5 million when a demand was made on him. Once at the time the plaintiff purportedly decided to pay the balance and the 2nd defendant had rented out store No. 12 to the 3rd defendant, the option left to the plaintiff was either to accept an alternative store or a refund of his money. The submission concluded that the question of time of was not an issue as it had not been pleaded by the plaintiff nor been made part of his case. The submission urged us to dismiss the ground of appeal.

 

25. I do not think the response of the defendants/respondents properly answered the issue plaintiff raised on this ground (b) of the appeal. But since an appeal is by way of re-hearing, this court is entitled to look at all the evidence on the record before it draws a conclusion on the issue of non-payment of the full contribution by the plaintiff. It is surprising how the period within which members were required to pay up their contribution has become a major issue. The pleadings do not suggest so.

 

26. At the trial, the 1st defendant gave evidence that members gave themselves time to pay up, counsel for the plaintiff objected because no time period was pleaded. The court however allowed the evidence based on the averment of the 1st defendant in paragraph 8 of his statement of defence. The said paragraph 8 of the defence is a response to paragraph 12 of the plaintiff’s statement of claim. In that paragraph 12, the plaintiff pleaded that he tendered the balance of ¢5 million during the Christmas holidays but the 1st defendant refused to accept it claiming that he has re-allocated the portion ear-marked for him to another person.

 

27. In response, 1st defendant admitted the plea in paragraph 12 and explained that all attempts to get the plaintiff to pay the balance of ¢5 million failed for almost one year, so 2nd defendant had to fall on other prospective tenants to complete the stores.

 

28. In his evidence in court, the plaintiff stated the reason for the refusal by the 1st defendant to accept the balance as the 1st defendant has pleaded in paragraph 12 of the statement of defence. That being so, the time of payment of the balance whether in December, 1999 or 1999 is not the issue.

 

29. In view of the explanation of the 1st defendant in paragraph 12 of his statement of defence as to why he refused to accept the balance from the plaintiff, the submission by counsel that the failure of defendants to cross-examine the plaintiff on the evidence of tendering the ¢5 million in December 1999 is inconsequential.

 

30. It may well be that members of the loose Union agreed that everybody should pay up his contribution within one year. And that is what the evidence DW2 and DW3 echoed. But clearly that is not the evidence of the plaintiff and 1st defendant who were the direct participants in the transaction. The trial judge in my view did not fall into the error of saying that the plaintiff failed to pay up his contribution within one year or any stipulated period, although he formed the opinion that time of the essence.

 

31. What the trial judge stated at page 7 of the judgment which is page 207 of the record of appeal is that since the main source of funding the project was the contributions of individual members, reasonably each member would have been enjoined to pay up as early as possible to facilitate the early completion of the project for the collective benefit of all the contributors.

 

32. He regarded such a commitment as a prudent business practice which he found wanting in the conduct of the plaintiff. The trial judge went on to condemn the plaintiff in a very harsh language for adopting what he called a “wait and see attitude”

 

33. On the evidence, has the plaintiff drawn attention to any piece of evidence which is not supported by the conclusion of the trial judge on this issue? I cannot find any. At the trial court, it is the duty of the plaintiff to adduce sufficient evidence to make out his claim on the preponderance of probabilities. In this court, the plaintiff as the appellant must point to the pieces of evidence which establish his claim but were not considered by the trial judge - see Djin vrs Mensah Baako [2007/08] SCGLR 686

 

34. The plaintiff has presented his case as a fait accompli. He regarded the plot of land the teachers of St. Joseph J.S.S allowed him to trade on as his bonafide property. But the evidence of P.w.1 the teacher does not support him. He had refused to recognize the 2nd defendant and now Asomdwe Company Limited as the bonafide lessor of the land and the owner of the store complex. As far as he is concerned once the store No. 12 is situated behind the place his kiosk was, it must be allocated to him.

 

35. However, there is overwhelming evidence that some members of the loose Union could not be allocated stores behind the old place they traded in kiosks but they accepted the allocation. There is further evidence that some members of the Union who could not pay up the ¢9million accepted smaller stores commensurate with the amount they paid. The plaintiff appeared to be insistent on having things his own way. That cannot be.

 

36. Once the plaintiff had agreed to join forces with the artisans and other traders to put up the store complex, the plaintiff must abide by the conditions set down by the loose Union or the group to be entitled to a store in the complex. To date, the plaintiff has not paid the ¢5million balance to the 2nd defendant and it was receipted. From the defence put up by the 1st defendant, at the time plaintiff paid the ¢5 million store No. 12 was not available to be allocated to him. And from the evidence of the plaintiff, he was not prepared to accept any other store in the alternative. The 1st defendant was therefore justified in not accepting the ¢5million tendered.

 

37. The plaintiff called P.W.2 Kwabena Alhassan to support his claim. P.W. 2 from the evidence paid the ¢9million fully but was not given store No. 8 directly behind where he was a squatter. He sued the 1st defendant and others. Pursuant to a court order, P.W.2 is now in possession of store No. 8. The judgment of the court has not been tendered at the trial. We cannot ascertain the ratio of the judgment culminating in the order. But a distinguishing factor in the plaintiff’s case and P.W. 2’s case is that unlike P.W. 2, the plaintiff has not fully paid the ¢9million. The plaintiff cannot therefore be entitled to a big store like store No. 12.

 

38. The case of the 1st defendant is that at the time the plaintiff tendered the balance of ¢5 million, store No.12 was not available to be allocated to him. That store the plaintiff was aware had been allocated to the 3rd defendant. The plaintiff was aware of the allocation of the store No. 12 to the 3rd defendant before he tendered the balance. Hear the plaintiff under cross-examination at page 88-89 of the record of proceedings;

“Ques.: the ₵9million was to be used to build the stores by the 1st defendant

Ans: that was so

Ques: At the time of completion of the stores how much had you paid to1st defendant?

Ans: It was storey building it was not yet completed.

Ques: At the time of completion of Store No. 12 how much did you pay to the 1st defendant?

Ans:     I paid ¢4 million to him

Ques: Your last payment to 1st defendant was in December, 1999 that is Exhibit A3

Ans:     It was 1st December, 1999

Ques: By that time, store No. 12 was ready for use.

Ans:     Store No. 12 was completed but the whole project was not  completed.

 

39. It is clear from plaintiff’s own answer that at the time store No. 12 was completed and ready for use, plaintiff had paid only ¢4 million. And at the time he went to tender the balance of ¢5million, the store was not available to be allocated to him. Wherein lies the arbitrariness in 1st defendant allocating the plot to the 3rd defendant? I see none. In Faibi vrs State Hotels Corporation [1968] GLR at holding one on onus of proof, the court held that

 

“onus in law lay upon the party who would lose if no evidence was led in the case, and where some evidence has been led it lay on the party who would lose if no further evidence was led.”

 

I do not find on the record any evidence led by the plaintiff which shows that the 1st defendant was not justified in refusing to accept the balance of the ¢5million he tendered at the time he did for store No. 12. There is therefore no merit in grounds (b) of the appeal. It is dismissed.

 

40. In ground two of the appeal, the plaintiff held the view that the judgment is against the weight of evidence. The meaning and scope of that ground of appeal is trite as it has been expounded in several decided cases such as Amponsah vrs V.R.A. [1989/90] 2GLR 28, Tuakwa vrs Bosom [2001/02] SCGLR and Djin vrs Musa Baako (supra). Under this ground of appeal, it is the duty of the appellant to demonstrate to this court that the judgment is indeed against the weight of evidence. The appellant discharges this duty by pointing out favourable pieces of evidence on the record which the trial court has omitted or neglected to consider and apply in his favour. The appellant can also point out pieces of evidence which were wrongly applied against him.

 

41. In the Reply of the plaintiff at the trial, he alleged fraud against the 1st defendant in the formation of the 2nd defendant company and also in securing the lease of the land in the name of the 2nd defendant. At the trial, the plaintiff led evidence to show that for the fraud committed on members of their loose Union, the 1st defendant and 3 others were charged before the Circuit Court on two counts of conspiracy to defraud and defrauding by false pretences. He tendered the charge sheet to which was attached the terms of the settlement signed by nine settlement committee members including himself and the adoption of the terms of settlement by the court.

 

42. In his submission under the ground (a) of the appeal, counsel criticized the judgment because the trial judge overlooked the evidence of the fraudulent conduct of the 1st defendant leading to his arraignment before the Circuit Court and the subsequent settlement. I do not find any linkage between the claim of plaintiff and the prosecution of 1st defendant and others in charge of fraud because counsel has not demonstrated it. But then contrary to Order 11 rule 8(1) of C. I. 47 on pleadings, the allegation of fraud had not been properly pleaded. The rule requires that where fraud is pleaded, the particulars must be stated and proved at the trial. There is no such pleading and proof of fraud on the record.

 

43. The Circuit Court case and the settlement arising out of it, are material facts which should have been pleaded but were not pleaded. The trial judge I believe accepted the evidence on it because there was no objection to it. But the fact of the case is that none of the accused were convicted of fraud because the matter was settled and plaintiff was involved in the settlement.

 

44. The counsel also attacked the judgment because key provisions of the terms of settlement which were all violated especially the name and formation of Asomdwe Company Limited to take over from 2nd defendant were not considered. In other words the judgment was silent on the non-compliance with and enforcement of the key provisions of the terms of settlement.

 

45. The counsel for the defendant has debunked any suggestion that the judgment is against the weight of evidence on those grounds. I agree with him. In the endorsement in the plaintiff’s writ of summons, statement of claim and evidence, no issue was raised relating to any violation of the terms of settlement or their enforcement. They are entirely new issues which were not contested at the trial court. They are not issues of law of substantial nature which the appellant can raise for the first time on appeal. As held in Aboagye vrs Accountant General & Or [2012]1GLR 536 at holding 2 an appellant was not entitled to introduce fresh evidence or issues through his statement of case because it is impermissible under rule 15(6) of the Supreme Court Rules. An appeal is by way of rehearing of the suit based on the contested issues at the trial between the parties and not new issues.

 

46. At page 118 of the record of appeal, counsel for plaintiff informed the court that the 2nd defendant company no longer exists as it has been replaced by Asomdwe House. He applied orally that the title of the suit be amended to reflect the change. The counsel for the defendants conceded that there has been a change. Although he thought that the plaintiff’s counsel should have come by way of formal application for amendment he did not oppose the oral application. The court granted the application and amended the name of the second defendant to read Asomdwe House Company Limited.

 

47. In finding fault with the judgment on this ground (a) of the appeal the same counsel for the plaintiff now says the trial judge erred grievously beyond measure when it held that Asomdwe Company had succeeded Gabbat Company, the 2nd defendant and had taken over its assets including the store complex. Again the reason given is that the terms of the settlement have not been complied with in the formation of the Asomdwe Company Limited.

 

48. One wonders whether the appellant through his counsel is sincere about the issues he has raised in this ground of appeal. This is because the issues are not only irrelevant to the core issue in controversy at the trial but also frivolous. We find absolutely no merit in the ground of appeal. It is dismissed. Accordingly, we affirm the judgment of the trial court and dismiss the appeal.

 

 

K. AYEBI

[JUSTICE OF APPEAL]

 

TORKORNOO, J.A.                       I ag                 G. TORKORNOO (MRS)

           [JUSTICE OF APPEAL]

 

DOMAKYAAREH (MRS), J.A.         I also agree    A. M. DOMAKYAAREH (MRS)

                           [JUSTICE OF APPEAL]

 

 

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