[1] By a writ of summons issued on July 6, 2017 the Plaintiff claims against the Defendant the following reliefs:

a) Refund of an amount of GH₵42, 500.00 paid into Defendant’s account with Stanbic Bank, Tudu.

b) Interest on the said sum of GH₵42, 500.00 from 22nd December 2016 to the date of payment.

c) Cost including lawyer’s fees.

[2] After the service of the writ and its accompanying statement of claim on the Defendant, Appearance was entered after which a statement of defence was filed by the Defendant on July 27, 2017. The Plaintiff filed a reply to rebut the depositions in the statement of defence on August 28, 2017.

ii. Background Facts:

[3] The background facts gathered from the pleadings are different from the Plaintiff and the Defendant perspective. According to the Plaintiff sometime in December 2016, the Defendant informed him that he had the authority of other members of his family to grant a long lease of his family house at Tudu, Accra and therefore offered the Plaintiff the opportunity to take the lease. The Plaintiff says he and the Defendant negotiated and settled on an amount of the One Hundred Thousand Ghana Cedis (GH¢100,000.00) for a period of 25 years. Plaintiff says that following a verbal agreement between him and the Defendant for payment, he was instructed to pay an amount of GH¢60,000 into the Defendant’s Stanbic bank account at Tudu. The Plaintiff further contends that following the agreement the Defendant ostensibly removed the tenants and occupants from the said house but failed to grant him possession of the house.

[4] The Plaintiff says sometime in February 2017, after he had made failed attempts to meet Defendant and make final installment payment, he laid ambush near Defendant’s house and when Defendant emerged from his room, he went to him to give him the money but Defendant refused to accept the money on grounds that Plaintiff was not the only person who was interested in the property and that he the Defendant was considering other options. Plaintiff says that all efforts to get the Defendant to accept the money proved futile. Consequently, according to the Plaintiff he caused his lawyer to write to the Defendant to demand a refund of the first payment of GH¢42,500 that Plaintiff made to the Defendant but he failed to pay because the response from the Defendant’s lawyer was that he had already shared the amount of GH¢42,500 to his family members hence the law suit.

[5] The Defendant on the other hand contends that he offered the property to the Plaintiff for an amount of GH¢200,000.00 for a period of 20 years further to a verbal agreement between the parties. According to the Defendant the Plaintiff was supposed to make all payments through the bank account of Defendant, which Plaintiff failed to do. Further it is the case of the Defendant that the Plaintiff reneged on his promise to make him (the Defendant) a shareholder of the venture, hence the delay. The Defendant also contends that it was rather the Plaintiff who refused to pay the last installment of the amount agreed to but rather turned around to demand the keys to the property and he refused.

ii. Issues:

[6] At the close of pleadings many issues were set down for determination by the Plaintiff. They include the following:

“i. Whether or not the amount agreed on by the parties for 25 years was GH¢100,000 or GH¢200,000?

ii. Whether or not the Plaintiff had promised to make the Defendant a shareholder of any venture?

iii. Whether or not the Defendant pulled down part of his structure on instructions of the Plaintiff?

iv. Whether or not the GH¢42,500 paid by the Plaintiff into Defendant’s account was on instructions of the Defendant?

v. Whether or not the Defendant told the Plaintiff that he (Plaintiff) was not the only person interested in the property and that he was considering other options?

vi. Whether or the Defendant has actually leased out the property to another person who is now in effective control thereof?

vii. Whether the agreement was frustrated by the Plaintiff or Defendant?”

iv. Plaintiff’s Case/Evidence:

[7] At the trial, the case of the Plaintiff from the Witness Statement filed and adopted, as the evidence in chief is not different from the Pleadings filed. The Plaintiff’s case consisted of his testimony in court and the documentary evidence he submitted in support of the claim, marked in the record as Exhibits “A” and “B”. Giving evidence in support of the claim Mr. Offei Okraku told the Court that sometime in early December, 2016, the Defendant informed him that other members of his family had authorized him to grant a long lease of a family house belonging to them and situate at Tudu and that he wanted him (Plaintiff) to take opportunity. He said he expressed interest in the deal and after negotiation they settled on an amount of GH¢100,000 for the period of 25 years.

[8] Mr. Okraku further testified that he and the Defendant agreed that an initial payment of GH¢60.000 (Sixty Thousand Ghana Cedis) would be made by him by March, 2017 either to Defendant personally or into his Stanbic Bank Account at Tudu for distribution to members of his family after which a document on the transaction would be prepared by the Defendant and given to him (Plaintiff) together with the keys to the house. The Plaintiff further testified that:

“We also verbally agreed that the balance of Forty Thousand Ghana Cedis (GH¢40, 000) would be paid by me after documents on the house together with the keys were handed to me. In compliance with the agreement, I paid an amount of Forty Thousand Ghana Cedis (GH¢40,000) into Defendant’s Tudu branch of Stanbic Bank on the 20^th day of December 2016”.

[9] The further evidence of the Plaintiff was that on 22^nd December 2016, he again paid an amount of GH¢2,500 into the same account. He tendered as Exhibits “A” and “B” being the pay in slips. The Plaintiff also said “I am aware that the moment I started paying the money, the Defendant started removing the tenants from the said house”.

[10] According to the Plaintiff “Sometime in January 2017, I went to pay the final part of the GH¢60,000 which was GH¢17,500 to the Defendant personally at home so that I could take the document on the agreement and the keys but I did not meet him even though I duly notified him of my coming and he promised to wait for me. On two other occasions I went there to make the final payment of the GH¢60,000 to him but having failed, I realized that Defendant had started playing hide and seek with me. On the next agreed date, both Defendant and his lawyer again failed or refused to attend the meeting, but Defendant’s lawyer called my lawyer to inform him that the Defendant was not cooperating with him”.

[11] It is the further case of the Plaintiff that the Defendant has manifestly demonstrated that he is not willing to respect the agreement between them after he has collected and spent his GH¢42,500.00. He therefore prayed the court to order Defendant to refund his GH¢42, 500.

[12] I note that under cross examination by the Defendant’s counsel, Mr. Okraku stood by his testimony that the price agreed to for the lease was GH¢100,000 for 25 years and not GH¢200,000 for 20 years as stated by the Defendant. In my respectful opinion the essence of cross-examination is to provide an opportunity for the cross-examiner to impeach the credibility of a witness where there are sufficient grounds to do so such as discredited evidence of previous testimony or where there is an available documentary or other evidence to impeach the qualification, experience expertise or position a witness has ascribed to himself or herself while testifying.

[13] In this case, respectfully, I am of the view that Counsel for the Defendant even though did a good job he failed to impeach the testimony of the Plaintiff on the core and crucial part of his testimony, that is the amount agreed to for the lease and whether it was the Plaintiff that frustrated the agreement. Therefore, at the conclusion of the Plaintiff’s case, I made the following findings. They are that the:

(a) Plaintiff’s evidence to the Court is consistent by and large with the pleadings filed.

(b) And the Plaintiff’s testimony is admissible, credible and relevant to his claim before the Court.

v. Defendant’s Defence:

[14] How did the Defendant respond to the Plaintiff’s case? The Defendant testified in his own defence as per the adopted witness statement filed on July 12, 2018. Mr. Musa Abdulai testified under oath on May 10, 2019 and said he is a businessman and a resident of Tudu. He also said he knows the Plaintiff. This is what he told the Court “I will say that indeed the Plaintiff and I reached an agreement for the latter to invest in my family property at Tudu, Accra”. According to him the Plaintiff initially agreed to a joint partnership but the he later decided that he will lease the property for his exclusive use.

[15] The Defendant further testified that later on “the Plaintiff paid GH¢40,000.00 deposit towards the lease of the property whose full rent was GH¢200,000.00 for a term of 20 years”. According to Mr. Abdulai “it was rather the Plaintiff who did not make himself available to enable them conclude the deal and that he was still waiting for him when he took the matter to Court”. He also said “he has already shared the money among the members of the family (the beneficiaries) and that he needs to raise money from elsewhere to refund the Plaintiffs money since the new lessee has not made any substantial payment save that the latter has rather invested in renovating the old structure”. He also told the Court that “indeed the Plaintiff made me to demolish three rooms in the house initially to have 50% conversion and 50% for the children”. Based on all of the above, the Defendant prayed the Court to dismiss the Plaintiff’s claim. Like the Plaintiff the Defendant did not call any other witness and closed his case. In a nutshell the above is the evidence heard in this case.

vi. The Court’s Evaluation & Analysis of the Evidence:

[16] I start this analysis by stating that it is indeed disappointing that this simple case has taken over two years since it was first filed to be completed. I note that Counsel for the Defendant whose name appear in this judgment as Counsel of record is the 3rd Counsel for the Defendant since the suit was instituted. The change of Counsel at all times unreasonably delayed the adjudication of the suit. I note that due to the absence of the Defendant’s two previous Counsel to Court on numerous occasions, the mandatory Case Management Conference (CMC) was initially held without the Defendant and his Counsel. However, the Court taking the position that the sins of Counsel should not be visited on the Defendant, another CMC was later held with the Defendant. I wish to state that I have chosen to state these remarks not as a condemnation of the Defendant per se but to remind all litigants that protracted delays in the administration of justice, impact negatively on all those who access the Courts and indeed give a wrong impression about the administration of justice in this Country. I trust that going forward we shall all play our part to prevent undue delays in the prosecution and adjudication of cases in the courts because the canker has certainly become a scar on the conscience of our dear nation.

[17] The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”

This general position on the burden of proof and of persuasion has received judicial blessing from the Supreme Court. See such cases as ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774.

[18] I now turn my attention to the resolution of the “dispute” between the parties. It is instructive to note that many issues were raised by Counsel but to my mind only about two or three are crucial. On the first issue, which is, the amount agreed to by the parties, the Plaintiff and the Defendant’s evidence are different. Whilst the Plaintiff says it was GH¢100,000 for 25 years the Defendant said it was GH¢200.000 for 20 years. None of them called a witness to corroborate their side of the story. Unfortunately, though the Plaintiff paid money to the Defendant with regards to an immovable property the agreement was not in writing as required by law. In effect, the Court is called upon to choose which of the positions it prefers in the absence of a written agreement. As it is the court holds that the Plaintiff has not been able to discharge the burden, which the law places on him to prove his claim on the balance of probabilities on that issue. See Sections 14 and 17 of the Evidence Act 1975 NRCD 323. As stated above apart from the contentious oral evidence from the parties regarding how much was the amount agreed to there is no documentary evidence to remove the matter from any doubt. To that extent, I resolve the first issue against the Plaintiff.

[19] I now turn to the next issue which is whether or not the Plaintiff had promised to make the Defendant a shareholder of any venture the Plaintiff intended to run after taking over the property. This allegation was made by the Defendant at paragraph 4 of the statement of defence filed on July 27, 2017. The Plaintiff vehemently denied the allegation at paragraph 2 of the Reply to Defence filed on August 28, 2017. The denial of the Plaintiff notwithstanding, the Defendant did not provide any other evidence to support his assertion. It is trite that based on the position of the Plaintiff which is a vehement denial of the assertion, the Defendant had the onus to prove that his assertion was true. It has been held in the case BANK OF WEST AFRICA LTD. v ACKUN [1963] 1 GLR 176@181 that the party who asserts the positive carries the burden to lead evidence in proof of his claim or assertion.

[20] In this case I am of the respectful opinion that the Defendant failed to lead any evidence to prove that the Plaintiff agreed to a joint partnership and indeed promised to make him a shareholder of any venture. All that the Defendant did was to repeat the averments in the pleadings in the witness box that the Plaintiff promised to make him a shareholder in his business without any cogent evidence. That certainly is not good enough because that is not the law. From the evidence on record, I find that the court has no basis to hold that the Plaintiff, Offei Okraku made any such promise to the Defendant and reneged on same. I resolve the second issue against the Defendant.

[21] In my respectful opinion, the above analysis is also adopted with regards to the issue, which is whether or not the Defendant pulled down part of his structure on the instructions of the Plaintiff. Again, the Defendant made the assertion at paragraph 5 of his statement of defence but the Plaintiff denied same by paragraph 3 of the reply filed. Indeed, the Plaintiff averred that he will put the Defendant to strict proof. But at trial the Defendant did not speak to same in his evidence in chief at all and he did not provide any corroborative evidence to support the contention. Consequently, I hold and resolve the issue against the Defendant.

[22] To my mind, the most important issue is whether or not the Plaintiff paid to the Defendant the amount of GH¢42,500. In my respectful opinion the Plaintiff’s evidence that he paid the said amount of money to the Defendant was conceded by the Defendant at trial even though he initially pleaded that the amount paid was GH¢40,000 and not GH¢42,500. Having conceded the issue, the Plaintiff did not have to call any other evidence in support of the claim. In this case I also note that the Plaintiff’s evidence of the payment was buttressed by the fact that Exhibits “A” and “B” tendered by the Plaintiff confirm the payment into the Stanbic Bank Account the Defendant has conceded is his account.

[23] To confirm the above holding of the Court, I wish to state here below what transpired at trial when the Defendant was cross-examined on the issue of the payment of the money by the Plaintiff by Mr. Sunu, the Plaintiff’s Counsel:

“Q; I am suggesting to you that what Plaintiff paid to you was GH¢42,500

A: I said so and I admit so.

Q; And not GH¢40,000 as you claim.

A: GH¢42,500 that is what I said.

Q; I am also suggesting to you that the GH¢40,000 you have put in your witness statement as having been paid to you by the Plaintiff is incorrect.

A: I said I know it is GH¢42,500 because that was what was paid into my account.”

From the above discursive transaction between learned counsel for the Plaintiff and the Defendant it is clear that the Defendant’s admission was unequivocal and so I do hold.

[24] The next important issue for consideration is in respect of whether or not the Defendant has actually leased the property to another person who is now in effective control of the property? The Plaintiff says the property is no longer available because the Defendant has leased same to someone else. Though the Defendant denied same and his Counsel suggested to the Plaintiff that it was only part of the structure that was leased out after the issuance of the writ of summons, in my view the Defendant’s own evidence undermined the suggestion of his Counsel to the Plaintiff at trial. It is important to reiterate what the Defendant said at trial on May 10, 2019. While restating that the Plaintiff did not make himself available to enable him conclude the deal, he stated that:

“he had already shared the money among the members of the family (the beneficiaries) and that he needs to raise money from elsewhere to refund the Plaintiff’s money since the new lessee has not made any substantial payment save that the latter has rather invested in renovating the old structure”

[25] To my mind, the evidence is so clear that there is no ambiguity that the property is leased out to a “new lessee” by the Defendant. For the Defendant to therefore say that the property is still available to be given to the Plaintiff in my respectful opinion is disingenuous and a palpable lie. I have no reason to disbelieve the evidence of the Plaintiff that the Defendant has leased the property out to someone else in view of the above piece of evidence from the Defendant himself.

[26] Based on all of the evidence, it is my holding that it was the Defendant who neglected to complete the transaction after receiving the 1st tranche of the money from the Plaintiff. I do not believe the Defendant’s story that the Plaintiff after parting with GH¢42,500 rather failed to make himself available for the completion of the deal. To my mind, there is no air of reality to the Defendant’s assertion and the Court completely rejects same.

[27] Finally, before I conclude I wish to state that though the law under Section 2 (a) of the Conveyancing Act, 1973 (N.R.C.D. 175), is that contracts for the transfer of interests in land should be in writing the parties did not bother to have their agreement in writing. That notwithstanding, it should be noted that a contract for the sale or other disposition of land or an interest if not evidenced in writing is nevertheless enforceable and depending on the circumstances a decree of specific performance can even be ordered. See TAHIRU v. MIREKU AND ANOTHER [1989-90] 2 GLR 615.

[28] In this case I am of the view that in the absence of any documentary proof of the agreement by the parties I wish to state that the parties’ conduct of the transaction was relatively barebones given the subject matter of the transaction and therefore but for the fact that the Defendant admitted that he received the amount of GH¢42,500 from the Plaintiff and the pay-in slips in support of the payment, the Plaintiff would have had a serious challenge to discharge the onus the law places on him because contracts dealing with transfer of land speaks to an agreement in writing.

[29] Based on all of the evidence, I shall grant the Plaintiff’s reliefs endorsed on the writ of summons. Consequently, judgment is entered in favour of the Plaintiff against the Defendant to recover the sum of GH¢42, 500 together with interest at the prevailing bank rate from December 22, 2016 to the date of final payment. Also, costs of GH¢5,000 will be awarded the Plaintiff against the Defendants

Accordingly ordered

CASES REFERRED TO

1. ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774.

BANK OF WEST AFRICA LTD. v ACKUN [1963] 1 GLR 176@181 TAHIRU v. MIREKU AND ANOTHER [1989-90] 2 GLR 615.