IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2019
BENJAMIN ADDY - (Plaintiff/Respondent)
ULTIMATE VENTURES AND CONSTRUCTION LTD - (Defendant/Appellant)
DATE: 14TH MARCH, 2019
CIVIL APPEAL SUIT NO: H1/236/2018
JUDGES: C. J. HONYENUGA, JA (PRESIDING), A. LOVELACE-JOHNSON, JA AND N. C. A. AGBEVOR, JA
HANS AMUDE FOR THE DEFENDANT/APPELLANT
VIVIAN LAMPTEY FOR THE PLAINTIFF/RESPONDENT
This is an appeal from the decision of the Accra High Court, in which judgment was given in favour of the plaintiff/respondent. The defendant/appellant would be referred to as the appellant and the plaintiff/respondent as the respondent.
The respondent by his writ of summons claimed against the appellant: -
Recovery of the sum of Two Hundred and Eighty Thousand United States Dollars (USD280,000) or its equivalent in Ghana Cedis being the sum of money owed the plaintiff by the defendant under the contract for sale of land duly executed between the parties.
Interest on the said sum from January 2016 to date of final payment
Damages for breach of contract
Costs: including cost of solicitors
Any other reliefs/orders as the Honourable Court may deem fit.
In the court below, the Appellant entered a defence and counter-claimed against the respondent for:-
The sum of US$90,000 (Ninety Thousand US Dollars being the cost of the Honda Accord and Toyota Land Cruiser vehicles
Interest on the aforementioned sum from January 2016 till date of final payment.
The sum of Gh¢24,000 (Twenty-Four Thousand Cedis) which it lent to the plaintiff when the plaintiff claimed he was in dire need of final payment.
Cost including counsel’s fees.
The trial court found for the respondent and arising out of the High Court’s decision this appeal was lodged. The grounds of appeal are that:-
The learned trial judge respectfully erred in law and deviated from the settled authorities when he believed the evidence of the lawyer who acted for the defendant/appellant and prepared the contract for the sale of the land.
The learned trial judge erred in law and deviated from the settled authorities when he held that the defendant/appellant as a purchaser of land was under a duty to investigate every issue concerning the land including the title and the size of the land which he was buying before entering into the contract for the sale of the land.
The learned trial judge respectfully erred in law and deviated from the settled authorities when he held that the defendant/appellant’s allegation of misrepresentation is unfounded and without any basis in law.
The learned trial judge respectfully erred in law and deviated from the settled authorities when he held that in so far as the defendant/appellant had developed the land and gone into occupation thereof, it was only fair and reasonable that the defendant/appellant pays the agreed price of the land.
The learned trial judge respectfully erred in law and deviated from the settled authorities when he found that the signature written and attributed to the plaintiff/respondent by the defendant/appellant on Exhibit 2 was not written by the plaintiff/respondent and can therefore not be the plaintiff/respondent’s signature and that being the case, the contents of Exhibit 2 were not binding on the plaintiff/respondent
That the learned trial judge erred when he dismissed the counterclaim of the defendant/appellant and granted the plaintiff/respondent part of his reliefs.
The judgment is against the weight of the evidence.
No further grounds of appeal were filed.
Before going into the merits of the appeal I will revisit the facts.
The facts of this appeal are that: On the 10th September 2014, the parties executed a contract for the sale and purchase of land at Tema at a cost of $1,000,000 evidenced in the contract of sale executed by the parties as Exhibit A’ in the case of plaintiff’s witness statement and as exhibit 1 of the witness statement of the defendant. From the pleadings and witness statement, it is clear the appellant paid cash the sum of $600,000 to the respondent leaving a balance of $400,000 as at 22nd October 2014.
The court found from the pleading and the evidence on record that the defendant sold its Mercedes Benz car to the plaintiff at a cost of $200,000 and the said car was transferred into the name of the plaintiff by the defendant company manager and that the parties agreed that the cost of the Mercedes Benz be deducted from the price of the land sold to the defendant by the plaintiff. This transaction brought the balance outstanding on the cost of the land sold to the defendant to $200,000.
In his statement of defence, the appellant pleaded that the respondent misrepresented to it that the size of the land which he was selling to the appellant measured two (2) acres and that the appellant agreed to buy the land at $1,000,000 whilst the respondent knew that the land he was selling to the appellant measured 1.56 acres. The appellant says that as a result of the misrepresentation of the size of the land to it, it decided to rescind the contract and demanded the refund of the amount paid to the respondent for the land.
The appellant’s further pleaded that the respondent pleaded with the appellant to have the matter settled amicably and that the respondent agreed to accept $800,000 as the new cost of the land and that the appellant alleges that the parties signed an agreement on the 24th July 2015 in which $800,000 was agreed as the final cost of the land. That the respondent also elected to find a new purchaser of the land and to refund the $800,000 to the appellant with a commission. Alternatively, the respondent would transfer the land to the appellant if he is unable to secure a new buyer of the land. The appellant averred that the respondent finally chose to sell the land to the appellant at the new purchase price of $800,000.
According to the appellant, at this state of the transaction, the total amount which he had paid in respect of the land to the respondent was $600,000 and it was thereafter that the respondent expressed interest in having the appellants Benz car at a cost of $200,000 which then settled the appellant’s indebtedness in respect of the land to the respondent. The respondent denied these averments by the appellant.
The 1st ground of appeal by the appellant is that the learned trial judge respectfully erred in law and deviated from the settled authorities when he believed the evidence of the lawyer who acted for the appellant and prepared the contract for the sale of the land.
It is trite that so far as appeals are concerned it is virtually in the same position as if the hearing were the original hearing and may review the whole case and not merely the points as to which the appeal was brought- see Abban JA as he then was in Mamudu Wangawa vrs Gyato Wangara (1982-83) GLR 639.
The Supreme Court in Praka vrs Ketewa (1964) GLR 423 at 426 said with regard to an appeal being by way of rehearing: -
“It is true that an appeal is by way off rehearing and therefore the appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the same extent as the trial court could; but when the decision on the facts depends on the credibility of witnesses, the appeal court ought not to interfere with the findings of fact except where they are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or from the facts found by the trial court”.
Acquah JSC (as he then was) in Koglex Ltd (No. 2) vrs Field (2000) SCGLR 175 at 184 said:-
“Briefly the primary duty of an appellate court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself that the said findings are supported by the evidence on record. Where there is no such evidence that ought to be set aside; However, where there is such findings of the trial court based solely on the demeanour and credibility of the witnesses, then the trial court which had the opportunity of seeing and hearing the witnesses, is in a decidedly better position than the appellate court. And therefore the appellate court should be extremely slow in interfering with such findings”
Ground one of the appeal was against the learned trial judge for believing the evidence of PW1 who acted for the defendant/appellant as a lawyer and prepared the contract for the sale of the land. Counsel also rightly noted the duty of an appellate court as stated by the Supreme Court in Ntiri and Another vrs Essien and Another (2001-2002)2 SCGLR at 451.
In support, the appellant spelt out the areas of contradictions and inconsistences in the evidence of PW1. That PW1 in his evidence said that Alhajie Taofek had already gone unto the land to inspect it, a matter of information to him, also that PW1 said he wrote an acknowledgment for the plaintiff to sign and that PW1 said he made a photocopy of the cheque on an A4 sheet as acknowledgement of the payment of $400,000 for the plaintiff to sign that he has received the payment, and that also some of these were not pleaded. In the cross examination of plaintiff on 19th June 2017 he testified that it was PW1 who wrote a receipt for him to acknowledge the payment. In our respectful opinion the issues spelt out here may be inconsistences in the evidence of plaintiff and PW1 but are not issues which are material or go to the root of the substance of this case. In Ababio vrs Bekoe (1996/97) SCGLR 392 Ampiah JSC had this to say:
“Not to have seen the witnesses, put appellate judges in a permanent position of disadvantage against the trial judge, and unless it can be shown that he has failed to use or has probably misused his advantage- for example has failed to observe inconsistences or indisputable fact or material probabilities- the higher courts ought not to take responsibility of reversing conclusions so arrived at merely as a result of their own comparisms and criticisms of the witnesses and of their own view of the probability of the case” see Kludze JSC in In Re Okine (Dcd); Dodoo & Another V Okine & Others (2003-2004)1 SCGLR 582 at 607.
The trial court was of the view that “the allegations made on these matters by the defendant in its statement of defence and in view also of the denial by the plaintiff of these allegations it is the duty of the defendant to adduce evidence to prove its allegations in accordance with the provisions of Section 14 and 17 of the Evidence Act, 1975 NRCD 323……….”. This is affirmed in the case Bank of West Africa Ltd vrs Ackun (1963) 1 GLR 176 which states – The Onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof”.
The trial judge supported this with the cases of Ababio vrs Akwasi III (1994/95) GBR 774 and Okudzeto Ablakwa (No.2) vrs Attorney General & Another (2012) 2 SCGLR 845
The defendant in our opinion has failed to satisfy the burden of persuasion on him whilst PW1 as a material witness satisfied the burden of producing evidence of facts in the transactions. Thus this court would not disturb the findings of the trial court and therefore this ground is dismissed.
In ground 2, learned counsel alleges that the learned judge erred in law and deviated from the settled authorities when he held that the defendant/appellant as a purchaser of land was under a duty to investigate every issue concerning the land including the title and size of the land which he was buying before entering into the contract for the sale of the land.
The appellant alleges that it was misled about the details of the land purchased from the respondent. The facts of this transaction are that the parties met and agreed on the terms upon which the land was being sold or leased to the appellant. These terms of the transaction were reduced into writing as the contract of sale (Exhibit KK2). Exhibit KK2 dated 10th day of September 2014 contains not only the details of the parties but also the –
Size of the land
Venders root of title
Purchase price at $1,000,000
Deposit paid of $200,000 being commitment fee of which the vendor acknowledged receipt
Fact that Toyota Ghana Limited was in occupation at the time of this contract
That the purchaser shall pay the outstanding balance of the purchase price to the vendor
Exhibit “KK2” was duly signed by each of the parties and this is evidence of a binding agreement. If therefore there are any details not included in the contract of sale it rests on the purchaser to enquire or investigate. In the instant case, the size of the land was very clear in the root of title which is the deed of gift and the contract of sale. Any other information undisclosed should be the duty of the purchaser to investigate.
The purchaser was to be guided by the principle of caveat emptor. Accordingly, this court will not disturb the findings and conclusions of the trial court on this. This ground therefore is dismissed.
That the learned trial judge erred when he held that the defendant/appellant allegation of mispresentation is unfounded and without any basis in law.
The defendants case is that the plaintiff was introduced to him by one Adams Abdul Razak as the owner of a parcel of land measuring 2 acres situate at Kpone-Tema. The Managing Director of the defendant company expressed interest to purchase the land. After extensive negotiations between the parties the plaintiff offered the land to the defendant at US$1,000,000 with the understanding that the land measured 2 acres in size “but on the title documents covering the land, the plaintiff had caused the size of the land to be stated as 1.56 acres in order to reduce the payment of registration charges at the Tema Municipal Assembly”. After payment of part of the purchase price, its Managing Director begun to have doubts about the size of the land.
It is his claim that because Toyota Ghana Limited was in occupation at the time defendant could not measure the land. The defendant subsequently engaged surveyors to measure the land which turned out to be 1.56 aces and not 2 acres as mispresented by the plaintiff to induce the defendant to enter the contract and also to get a higher purchase price. The defendant alleges that the trial judge failed to advert his mind to Exhibit 2 which was executed by the parties that “Both parties have agreed on the sale of the land at Kpone Industrial Area which was supposed to be 2 acres and now 1.56 acres was agreed through the initiative of lawyer Ken Kudjordjie (sic) citing the case Guardian Assurance Company Limited vrs Appiah (1967) GLR at page 47 in support.
The plaintiff denies the above mentioned assertion. The standard required in proof of belief of a fact is the preponderance of the evidence adduced by the proponent of issue over that adduced by its opponent. (see Section 12(2) of the Evidence Act).
The presence of Toyota Ghana Limited on the land was known to the appellant as it was reduced into writing in the contract of sale and therefore cannot be an excuse for not entering the land.
In a contract of sale of land, there may be pre-contractual statements which may influence the purchaser in the transaction. These may however not be reduced to terms of the contract though they may influence the party or parties. Defendant in this case alleges a misrepresentation of the land in issue to him by plaintiff to be 2 acers which turned up to be 1.56 acres.
In defendants witness statement he averred in paragraphs 4 and 5 at page 25:-
“(4) In the year 2014 Benjamin Addy was introduced to me in my capacity as the Managing Director of Ultimate Ventures and Construction Limited by an Estate Agent by Name Adams Abdul Razak.
(5) Adams Abdul Razak who is a friend of Benjamin Addy informed me that Benjamin Addy was the owner of a parcel of land measuring 2 (two) acres and situate at Kpone-Tema Industrial Area which for want of convenience I will refer to as the land”.
The foregoing is suggestive that it was Adams Abdul Razak who mentioned the size of the land for sale as 2 acres to defendant and not the plaintiff prior to defendant visiting the land.
Exhibit “A” in the case of defendant) and the deed of gift to the plaintiff are clear that the land measured 1.56 acres which I have no doubt the defendant purchaser read before the contract. More so the principle in the case Brown vrs Quanshiga (2003/2004) SCGLR 930 is the law that “The principle of caveat emptor is still a postulate of our law. A prospective vendor or purchaser of the land cannot shift onto the shoulders of the existing owner the burden of informing them of the encumbrance, title or interest held by him. In many cases, it will not even be enough to conduct a search in the deeds Registry or the Land Title Registry”.
The court made a finding that the defendant was literate and gave his evidence in English. He cannot therefore be heard to say that he did not read Exhibit A, the contract for the sale of the land before appending his signature thereto. The court in Duah vrs Yokwa (1993/4) 1 GLR 217 stated that “whenever there was a written document and oral evidence in respect of a transaction the court would consider both the oral and the documentary evidence and often lean favorably towards the documentary evidence especially where the documentary evidence was found to be authentic and the oral evidence conflicting. The defendant allegation of misrepresentation of the size of the land by plaintiff is unfounded. See also Inusah vrs DHL (1992) 1 GLR 267 HC. This ground of appeal therefore fails and therefore dismissed.
It is provided in Court of Appeal Rules 1997 (CI.19) r 8 (5) that
“The grounds of appeal shall set out concisely and under distinct head the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively”
This ground of appeal violates the rules of this court i.e. Rule 8 (5) set out above as narrative and argumentative of the appeal. See West Laurel Co. Ltd. & Others vrs Agricultural Development Bank (2007-8) SCGLR 556. Accordingly, this ground is struck out.
This appeal is about the signature written and attributed to the respondent on Exhibit 2. The court held that the said signature is not that of the respondent.
The contents of Exhibit 2 read as follows:-
“AGREEMENT BETWEEN BENJAMIN ADDY AND ACH TOAFEEK SULLEY
Both parties have agreed on the sales price of the land at Kpone industrial Area which is supposed to be 2 acres and now 1.56 acres and was agreed through the initiative of lawyer ken Kudjordjie. That Mr. Toafeek Sulley pays $800,000 instead of the initial $1000,000 agreed and again Mr. Benjamin Addy request to get a buyer then refund the $800,000 back with commission to Mr. Toafeek or prepare a transfer document to Mr. Toafeek if he could get a buyer
Signed (Seller) Signed (Buyer)”
Exhibit 2 is a variation of Exhibit A (or 1) Toafeek Sully.
The trial court held:-
“Upon a cursory comparism of the signatures of the plaintiff on both Exhibits A and B on one hand with the signature attributed to the plaintiff on Exhibit 2 bears no resemblance with the signatures of the plaintiff as Exhibit A and B. the court finds as a result therefore that the signature written and attributed to the plaintiff by the defendant on Exhibit 2 was not written by the plaintiff herein……..”.
The duty of the court to arrive at or identity any signature is as set out in Section 141 of NRCD 323 which the court carried out and found out the signature is not that of the defendant/respondent. Accordingly, this court will not disturb the findings of the trial judge. There being no merit in this ground it is dismissed.
GROUNDs SIX AND SEVEN
I have found it necessary to discuss these two grounds based on the burden of proof to produce the required evidence to satisfy the court. The trial court found that on delivery of the Meredez Benz to the respondent herein, the sum payable was $200,000 reducing the balance for the cost of land to $200,000.00. The respondent returned the Benz to the appellant who was to receive $170,000 and the delivery of the Land Cruiser and the Honda Accord to the appellant at a total cost of $90,000. With this according to the appellant the respondent’s indebtedness came to $280,000. The respondents did not dispute taking the two vehicles and that the cost was to be paid to the appellant which appellant counterclaims. The respondent disputes that the Mercedes was returned to the appellant in exchange of the two cars rather the appellant sold the Benz to one Anthony Opoku a friend of the appellant.
The trial court found that the Benz was given by the appellant to the respondent as part payment of the cost of the land sold and that the appellant caused a transfer of the car into the name of the respondent. This the court found as supported by Exhibit C which has not been denied by the appellant. Also the two vehicles were transferred to the respondent as Exhibits E and F. The conduct of appellant in the transfer of the vehicles, the court found was consistent with that of a person who has voluntarily transferred the ownership of the vehicles to a new owner and in tune with the respondent’s assertion that those two vehicles were in exchange for the return of the Mercedez Benz as a set off against the cost of the Benz.
Anthony Opoku is said to have admitted under cross examination that the respondent never gave him any document evidencing the sale of any vehicle to him neither was any time fixed for the payment of the Benz allegedly sold to him by the respondent. Thus the court found that the evidence by Anthony Opoku is not consistent with the sale of the Benz to him. The court “does not believe the testimony of Anthony Opoku of sale of the Benz to him” which sale the respondent denied.
On the loan of $24,000 which the appellant claims it gave to the respondent which the respondent denies, the appellant was obliged to lead evidence to prove that they only repeated the averments in their defence without leading any supporting evidence. This court therefore is of the opinion that the appellant has failed to adduce sufficient evidence to satisfy the court on the balance of probabilities.
When an appellant complains that 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 the case of Djin vrs Musa Baako (2007/8)1 SCGLR 686
The grounds of appeal raised by the appellant that:-
i. The size of the land as being 2 acres
ii. The signature on Exhibit 2 as being the act of the respondent
iii. Failure to gain access to the land to survey because Toyota Ghana was in occupation when this was made clear in the document of contract Exhibit A (or1) etc.
required the appellant to discharge the evidential burden when these matters were raised by him. Thus in Tuakwa vrs Bosom (2001/2) SGLR 61 at 65 Sophia Akuffo JSC as she then was had this to say:-
“In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court to, in a civil case analyse the entire record of appeal, taking into account all the testimonies and documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on the preponderance of the probabilities the conclusions of the trial judge are reasonably and amply supported by the evidence”.
See also Odorkor vrs Gatsi (1966) GLR 31 SC.
The trial court made the following findings that “In the opinion of the court the defendant has not led sufficient evidence to satisfy the court on the preponderance of probabilities that it truly lent an amount of Gh¢24,000 to the plaintiff in this case. In the same manner, the defendant has failed to adduce sufficient evidence to satisfy the court, on the balance of probabilities that the Toyota Land Cruiser and the Honda Accord given to the plaintiff by the defendant were given to the plaintiff with the view that the plaintiff was to pay for them rather than that they were given in part exchange for the Mercedez Benz which the plaintiff had returned to the defendant. The court finds the evidence of the plaintiff on this issue to be more probable than the evidence of the defendant on this subject. The court will therefore dismiss the counterclaim filed by the plaintiff”.
We agree with the findings of the trial court and hold that the respondent proved his case on the balance of probabilities. These grounds of appeal are dismissed.
In conclusion the appeal fails in its entirety and it is dismissed. The judgment of the High Court, Commercial Division, Accra dated 9th day of March 2018 is hereby affirmed.