Introduction:

[1] In or about May 2014, Mr. Odei Cleve, as Purchaser, and Raphael Semekor entered into an agreement for the purchase of two and half (2.5) plots of land situate at Ablekuma Borkorborkor Junction in Accra. Mr. Odei Cleve contends that the agreed amount of Thirty Six Thousand Five Hundred Ghana Cedis (GH¢36,500) was paid to Mr. Semekor, the Defendant herein. According to the Plaintiff prior to the payment for the land he asked the Defendant to furnish him with his title documents to enable him conduct a search at the Lands Commission. The Plaintiff contends that the Defendant gave him many excuses without giving him the title documents except a site plan.

[2] The Plaintiff contends that after the payment of the money the Defendant released the parcel of land to him and he developed same to an advanced stage but just as he was about to complete same, the Tipper Truck Union Group in Accra made adverse claim to the same piece of land and so he stopped work. It is the case of the Plaintiff that when the Defendant was made aware of the development he agreed to replace the land and the parties executed a Memorandum of Undertaking (MoU) to that effect but he failed to comply with the terms of the MoU.

[3] The Defendant pleaded that the Plaintiff paid to him an amount of Twenty Seven Thousand Ghana Cedis (GH¢27,000) in bits and after the last payment he executed a deed of assignment and assigned his interest to the Plaintiff. He also pleaded that he handed over to the Plaintiff a copy of his deed of assignment and the “Plaintiff was actually put into possession of the land and he constructed a washing bay on the land and worked on the land for several years”. According to the Defendant after delivering the land to the Plaintiff he was not aware of any ‘Tipper Trucks Union laying claim to the land”. The Defendant contends that having assigned his interest to the Plaintiff he no longer had any capacity to challenge the allege transport union for the land without the involvement of the Plaintiff.

[4] Among the issues for my determination are whether or not the Defendant breached the agreement to sell the two and half pieces of land to the Plaintiff and whether or not the undertakings/promise given by the Defendant to replace the parcels of land failed?

ii. The Claim & Defence:

[5] The Plaintiff‘s Writ of Summons and Statement of Claim filed on October 22, 2014, against the Defendant is for the following judicial reliefs:-

“i. A declaration that the Defendant breached the agreement to sell two and half pieces of land to the Plaintiff.

ii. Damages for breach of Contract.

iii. An order compelling the Defendant to refund to the Plaintiff the sum of Thirty Six Thousand Five Hundred Ghana Cedis being the principal amount paid to the Defendant as the consideration for the plots of lands.

iv. An interest at the prevailing bank rate on the said sum of Thirty Six Thousand Five Hundred Ghana Cedis GH¢36,500 from the date of payment to the Defendant to the date of final payment.

v. An order of this Honourable Court compelling the Defendant to pay the sum of Fifty Four Thousand Two Hundred Ghana Cedis (GH¢54,200) being the costs of development work on the plots.

vi. Interest on the above sum at the prevailing bank rate from April, 2014 to the date of final payment.

vii. Costs.

[6] The factual grounds of the Plaintiff’s claim are set out in the Statement of Claim filed. After the service of the writ with its accompanying statement of claim on the Defendant, an appearance was entered and thereafter the Defendant has contested the Plaintiff’s claim and by a Statement of Defence filed which was later amended on November 22, 2016 the Defendant vehemently denies the Plaintiff’s claim. Pleadings closed and directions were given in the matter after the Plaintiff formulated about four main issues for the Court’s consideration.

iii. Plaintiff’s Case/Evidence:

[7] The case of the Plaintiff from the Witness Statement filed by his Lwaful Attorney and adopted as the evidence in chief is not different from the Pleadings filed. Giving evidence on oath in support of the claim for the Plaintiff, the Lawful Attorney, Kofi Waddie testified per the adopted witness statement that he a cousin of the Plaintiff. He told the Court that in 2014 the Plaintiff wanted to buy a land and develop same as a facility for washing of cars (a.k.a. Washing Bay). Mr. Wadie further testified that he was subsequently informed by the Plaintiff that he had gotten a place a he was taken to the site and was introduced to the Defendant as the one who sold the land to the Plaintiff. He confirmed that the size of the land was two and half pieces and the price was GH¢36,500.

[8] Mr. Waddie also confirmed that the payment was made in three installments with the “1st payment of Twenty Seven Thousand Ghana Cedis (GH¢27,000.00) on or about April 15, 2014. 2nd installment of Two Thousand Ghana Cedis (GH¢2,000.00) made on May 13, 2015 and the 3rd and final installment of Seven Thousand Five Hundred Ghana Cedis (GH¢7,500.00) made on May 30, 2014”.

[9] Mr. Kofi Waddie further testified that the last payment was made after the Defendant and one of his cousins by name Samuel Adu were arrested by the Ghana Police Service at Odorkor after a complaint was lodged by the Odorkor Tipper Transport Union. According to him the Truck Union’s complaint was that the land belongs to them and the Plaintiff and the Defendant were trespassers. The further testimony of Mr. Waddie was that even after the arrest of the Defendant he insisted that the land was his and since the Truck Union had stated their intention to initiate an action in Court against him, he needed the outstanding balance of GH¢7,500.00 to be able to pursue and defend the action and thereby protect the interest of the Plaintiff. He also said the Defendant also promised to “exchange or replace his own house or about one and half plots to the Plaintiff if it does not go well and this information was communicated to the Odorkor Police and then the Police and the Police indicated that if that is what he is willing to do then the outstanding balance should be paid to him and we accordingly comply”.

[10] The further testimony of the Plaintiff’s Lawful Attorney was that prior to the payment of the money to Mr. Semekor, he gave to the Plaintiff a site plan after he was unable to provide to them his title documents. Mr. Waddie said with the site plan, a cadstral/parcel plan from the Survey and Mapping Division of the Lands Commission. According to the Attorney the search result delayed but the payment was made because the Defendant exerted pressure on the Plaintiff to pay otherwise he was going to sell the land to someone to others who had made an offer. It is the case of the Plaintiff that the money was paid because the Defendant assured the Plaintiff that he was the owner of the land and was willing to provide his house as a security.

[11] It is the case of the Plaintiff that a certain Auntie Serwaa who deals in the sale of lands assured the Plaintiff that the Defendant was indeed the owner of the land and so the Defendant went ahead to develop the land. Mr. Wadie further testified that after the arrest of his cousin and the Defendant the Plaintiff “managed to get an unofficial search result but when same was showed to the Defendant he admitted that the site plan given was not for the specific land in dispute”. According to Mr. Waddie the Defendant apologized to them.

[12] Mr. Waddie further testified that “the Defendant asked us to give him three (3) months to take the land from the Union and return same to the Plaintiff and that if after the three (3) months he is unable to give the land back to the Plaintiff the Plaintiff can take his own personal land with building on it and a Memorandum of Understanding/Agreement was executed to that effect”. Further according to Mr. Waddie prior to the Expiration of the 3 months the Plaintiff went to the Defendant to introduce his tenants to him and also to measure the Defendant’s land but he got anger and said he did not understand the MoU before signing same. Mr. Waddie further said the Plaintiff then asked the Defendant to prepare a different MoU for the parties to sign. He said the Defendant did and the parties signed same. Copies of both MoU were tendered at trial as Exhibits.

[13] It is also the case of the Plaintiff’s case that prior to the signing of the second MoU the Defendant gave a hand written undertaking/temporary receipt the content of which was converted into the 2nd MoU. The Plaintiff’s Attorney further testified that after 3 months the Defendant failed to hand over the land back to the Plaintiff as he undertook. According to Mr. Waddie the Plaintiff caused his lawyers to write to the Defendant to demand a refund of the money paid but he refused.

[14] According to Mr. Waddie after the Plaintiff’s lawyer’s letter the Police invited the parties to the station and the Defendant accused the “Plaintiff of not going for the land but the Plaintiff insisted that the Defendant has not yielded the land to the Plaintiff in vacant possession but the Plaintiff insisted that because of his experience with respect to the fraudulent documentation provided by the Defendant he had instructed his lawyers to handle the case”.

[15] It is also the case of the Plaintiff that prior to the claim by the Tipper Truck Union, the Plaintiff had expended an amount of GH¢54,200 on the development of the land. According to Mr. Waddie the Plaintiff spent a lot of money for the development because the land was bare and waterlogged. A photograph of part of the land was tendered as an Exhibit at trial. It is the case of the Plaintiff that the Defendant convinced the Plaintiff to let him be in charge of the development work on the land and so it was the Defendant who hired all the workers and labourers who worked on the land including truck drivers who sold gravels and sand to the Plaintiff as well as Masons. To that extent according to the Plaintiff’s Attorney it was the Defendant who negotiated with the workers and only informed the Plaintiff’s representative thereafter.

[16] The Plaintiff’s Attorney told the Court that the work done on the land included “the development on the piece of land included refilling of the entire 2.5 plot with gravels (chippings) as the entire land was waterlogged. Completed platform for cars to stand when washing the cars, and a completed single room, which was to be used as an office all these expenses on development were recorded by me”. The Attorney tendered what he said was some of the expenses incurred that he recollect as an exhibit. The Plaintiff’s case is that the Defendant has failed to perform under the agreement entered into between the parties and all efforts to get him refund the money paid has proved futile after series of promises from the Defendant.

[17] The Lawful Attorney tendered in support of his evidence, the following exhibits:

i) Exhibit A – the Power of Attorney;

ii) Exhibit B, B1 & B2 – Copies of Receipts evidencing payments for the land;

iii) Exhibits C, C1 & C2 – Copies of the Site Plan, Cadastral.Parcel Plan from the Survey and Mapping Division & Acknowledgment Card;

iv) Exhibits D – A copy of the 1^st Memorandum of Understanding;

v) Exhibit E - 2^nd Memorandum of Understanding;

vi) Exhibit F – A copy of the handwritten MoU;

vii) Exhibit G – A photograph showing part of the land when the development started;

viii) Exhibits H, H1, H2, H3, H4 & H5 – Photos showing different development stages during the various Development stages according to the Plaintiff; and

ix) Exhibit J – a copy of some of the expenses incurred according to the Lawful Attorney.

The Plaintiff called no other witness and closed his case and prayed the Court to grant his reliefs. It is to be noted that the Plaintiff’s Lawful Attorney was extensively cross-examined by the Defendant’s Counsel. I shall later make references to the cross-examination evidence.

The Defendants Case/Evidence:

[18] The Defendant testified in his own defence and called no other witness before closing his case. Before outlining the evidence it is important to re-state part of the Defendant’s pleadings in his Amended Statement of Defence filed on November 22, 2016. The Defendant pleaded as follows at paragraphs 3, 4, 5, 7, 8 9 and 10 as follows:

“3. The Defendant avers that the Defendant acquired the said land from the Nii Sampey Mensah family of Ablekuma, Accra and the said family executed an indenture for the Defendant.

4. The Defendant avers that sometime in 2014 the Plaintiff approached the Defendant and offered to buy the said land from the Defendant.

5. The Defendant avers that the Defendant explained to the Plaintiff that the Defendant was yet to register the document executed for him by the Nii Sampay Mensah family of Ablekuma.

7. The Defendant further avers that the parties agreed at a purchase price of twenty seven thousand (GH¢27,000.00) for the said land.

8. The Defendant avers that the Plaintiff paid the said twenty seven thousand (GH¢27,000.00) in bits and after the last payment the Defendant executed a deed a (sic) assignment by which the Defendant assigned his interest in the land to the Plaintiff.

9. The Defendant avers that all the copies of the Deed of Assignment and the Defendant lease documents were handed over to the Plaintiff who is now in possession of same.

10. The Defendant avers that not only were the documents covering the land handed over so (sic) the Plaintiff but was actually plot (sic) in possession of the land and he constructed a washing bay on the land and worked on the land for several years”.

[19] The Defendant told the Court that “I am part of the Nii Sempe Mensah family this is because they have appointed me as the Nii Shipi of Bokoboko”. He explained that being a “Nii Shipi of the family means he is like the Family’s Defence Minister. Per the witness statement of the Defendant filed on April 13, 2017 and adopted at trial the Defendant testified that “I acquired the said land from the Nii Sampey family of Ablekuma, Accra and the said family executed an indenture for me which I had not registered. He further testified that sometime in 2014 the Plaintiff approached him and he explained to the Plaintiff that the land was yet to be registered “and the document was executed for me by the Nii Sampay Mensah family of Ablekuma”. He also testified that the Plaintiff took copies of the documents and after thorough investigation was satisfied with the ownership and commenced negotiation for the purchase of the said land in the presence of witness. The Defendant further confirmed that the Plaintiff paid in full to him the agreed purchase price of GH¢27,000.00. According to the Defendant after the last payment “I took him to both chiefs of the area namely Nii Opare Baddoo and Nii Larbie Mensah and both prepared documents for the Plaintiff. Attached are the two documents marked exhibits 1 and 2”.

[20] Mr. Semekor further testified that the lease documents were handed over to the Plaintiff who is now in possession of the land. According to him the Plaintiff applied for title to the land. He tendered as Exhibit “C”. The Defendant also told the Court that he handed all the documents to the Plaintiff and actually put him in possession of the land and he went ahead to construct a washing bay on the land and worked on same for several years. He also said he was not aware of any group called “Tipper Trucks Union laying claim to the land”.

[21] According to Mr. Semekor having put the Plaintiff in possession of the land, the Plaintiff ought to have challenged or resisted the claim of the said Tipper Trucks Union and their claim “but the Plaintiff failed to do so and rather allowed the alleged transport union to take possession of the land”. He said he had no capacity to challenge the said Tipper Trucks Union after assigning his interest to the Plaintiff. Mr. Semekor further said it is not correct that the Plaintiff expended an amount of GH¢ 54,000.00 on the construction of the washing bay. According to the Defendant “the Plaintiff only constructed a single stand and same cannot cost fifty four thousand (GH¢54,000.00). Mr. Semekor further confirmed that he was arrested by the Police and was detained for several days before the Police closed the docket on the grounds that the matter is a civil suit. He also said “the Plaintiff and his agents coerced me into signing a document to allow him take over my house. The said document was signed under duress and same is void”. I shall later speak to this. The Defendant was also cross-examined by Counsel for the Plaintiff. I shall make references to the evidence under cross-examination if need be. In a nutshell, this is the evidence before the court.

The Court’s Opinion, Analysis and Conclusion -

[22] I proceed to evaluate the nature of the evidence adduced at the trial. I shall examine firstly the burden of the parties in this suit and relate same to the facts presented in their respective pleadings and the evidence adduced at the trial, before I make the necessary findings while determining the factual and legal issues set down. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:

“…a person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden”.

[23] 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”

[24] The principle of law has received judicial blessing as the Supreme Court pronounced on it in such cases as IN RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420 and ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774. See the statement of the law by both Wood JSC (as she then was) at page 444 and Aikins JSC respectively.

[25] Before my analysis of the evidence it is important to look at the defence erected by the Defendant in this case. From the statement of defence filed, I understand the Defendant to say that he is the bona fide owner of the land, the subject matter of the suit. For he pleaded that “The Defendant avers that the Defendant acquired the said land from the Nii Sampey Mensah family of Ablekuma, Accra and the said family executed an indenture for the Defendant” At trial however, he said “the land was a gift to me and when it was given to me, I also gave it to the Plaintiff and I instructed them to go to the Nii Sempe Stool for the documentation”. When his Counsel cross-examined the Plaintiff’s Lawful Attorney however, he suggested that the transaction was between the Nii Sempe Family and the Plaintiff. On Friday, March 9, 2018, the following evidence crucial and relevant to the Plaintiff case on the issue under discussion was elicited during the cross-examination:

“Q: The receipts Exhibits B, B1 and B2 were receipts from Nii Sempe Mensah family of Ablekuma, not so?

A: That were the receipts given to us.

Q: So you purchased that parcel of land the subject matter of this suit from Nii Sempe family of Ablekuma, not so

A: My lord we did not purchase the said parcel of land from Nii Sempe Mensah.

Q: Please take a look at the Defendant’s proposed Exhibit “1” that was the indenture given to you covering the land which you purchased, is that not so

A: Yes my lord

Q: The lessor in that indenture, the one who gave you the land is Nii Sempe Mensah family of Ablekuma, is that not so.

A: The one who sold the land to us I do not know the family he belongs to

Q: Tell us, from that proposed Exhibit 1 which you admit is the document covering the land that you acquired, who in that exhibit sold the land to you.

A: There is no name on the exhibit

Q: I am putting it to you that from Exhibit 1 you grantor is Nii Opare Baddoo head and lawful representative of Nii Sempe Mensah family of Ablekuma, Accra

A: Nii Opare Baddoo I do not know him and he is not my grantor

Q: I am putting it to you further that you never acquired any land from the Defendant

A: We bought land from the Defendant and we effected payment as well”.

[26] Having reviewed the evidence it is clear the above position is a departure from the Defendant’s own pleading part of which is stated elsewhere in this judgment and same clearly is unacceptable for it is a settled rule of law that where there is a departure from pleadings at a trial by a party whereas the other’s evidence accorded with his pleadings, the latter’s is preferable. See: TAKYI v APPIAH (1982-83) 1 GLR 1 C/A.

[27] In this case I am of the respectful opinion that the Defendant’s reliance on the receipts he issued to the Plaintiff and Exhibits 1 and 2 as his defence in this suit are much ado about nothing. A closer look at Exhibits 1 and 2 show that this Court should not place much weight on both. First and foremost Exhibit 1 titled “Indenture” states it is “DATED THIS 12^th DAY OF NOVEMBER, 20”. Supposedly between “Nii Opare Baddoo, Head & Lawful Representative of the Nii Sempe Mensah Family of Ableluma-Accra AND McJohn Odei Cleve”, There is no date of execution but the Oath of Proof says it was Sworn at Accra on April 27, 2014.

[28] Exhibit 2 on the other hand states “DATED THIS 12^th DAY OF NOVEMBER 2013 between NII Larbie Mensah IV, Head and Lawful Representative of Sempe Mensah Family of Ablekuma, Accra and McJohn Odei Cleve”. Again, there is no date of execution but the Oath of Proof states that it was sworn in Accra on 29^th November 2013. Based on the evidence I have no difficulty in dismissing Exhibit 2 as doubtful, fictitious and a self-serving document only prepared for the purposes of litigation. This is because according to the Defendant he was approached by the Plaintiff sometime in 2014 and not earlier. To that extent it is an affront to common sense that a supposed lease/indenture could be sworn and executed between the Plaintiff and a certain Nii Larbie Mensah IV in 2013.

[29] Again, Exhibit 1’s authenticity is also called into question based on the pleadings and the evidence. The Defendant pleaded that “The Defendant avers that the Plaintiff paid the said twenty seven thousand (GH¢27,000.00) in bits and after the last payment the Defendant executed a deed a (sic) assignment by which the Defendant assigned his interest in the land to the Plaintiff”. At trial the Defendant admitted that he issued and signed the receipts tendered at trial by the Plaintiff’s Attorney. A closer look at the receipts tendered as Exhibit B Series show that the last payment of GH¢7,500.00 was paid on May 30, 2014. As indicated above there is no date of execution of Exhibit 1 but it is said that it was sworn on April 27, 2014. Again, the date on the document is not in sync with the Defendant’s story. I note that the Defendant pleaded that the amount was GH¢27,000 and not GH¢36,500 as pleaded by the Plaintiff. Based on the evidence, the GH¢27,000 was paid upfront and so cannot be true that it was paid in bits as pleaded by the Defendant. It can only have been paid in bits if the total was GH¢36,500 as testified to by the Plaintiff’s Attorney. Based on the above it is my holding that Exhibit 1 can also not be relied upon in making a decision in this matter.

[30] Now, in dealing with the issues set down I wish to combine and consider issues “A” and “B” set out above together in my analysis. This is because they relate to the same subject matter, that is the land and whether the Defendant conveyed same to the Plaintiff. From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, I have no difficulty in resolving those issues in favour of the Plaintiff. The Defendant concedes receiving an amount of GH¢27,000.00 from the Plaintiff for a piece of land and he issued receipts to confirm same. To that extent, even though there was no formal written contract between the Plaintiff and the Defendant to crystalize the agreement between the parties, it is my holding that the parties had a verbal non-written agreement. I also find as a fact that there was a contractual nexus between the Plaintiff 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.

[31] As stated in her work, the learned author of “The Law of Contract in Ghana[1]” Christina Dowuona – Hammond stated on ‘Ascertaining the Fact of Agreement’ at page 4 paragraph 1.3 as follows:

“The concept of agreement is the basis or essence of every contract. A contract is essentially the outward manifestation of agreement between the parties with regard to a common objective. This manifestation of agreement may be made wholly or partly in writing, orally, by conduct or by a combination of all three. Thus one of the first inquiries in dealing with any contractual dispute is to determine whether or not there is an agreement between the parties at all”

[32] In the Amended Statement of Defence filed and in his testimony to the Court the Defendant said he actually put the Plaintiff in possession of the land and he constructed a washing bay on the land and worked on the land for several years. He also said he was not aware of any Tipper Trucks Union and he lacked the capacity to challenge the so-called Tipper Trucks Union after assigning his interest to the Plaintiff. After my examination of the evidence adduced at trial and having dismissed both Exhibits 1 and 2 being the anchor on which the Defendant erected his defence as not having any cogent evidentiary value, it is my holding that the Defendant’s testimony that he put the Plaintiff in possession and he built a washing bay on the land and operated same for several years is only a figment of his imagination. This is because there is no ring of truth to the piece of evidence as no scintilla of evidence was proffered by the Defendant that the construction of the washing bay was completed and operated by the Plaintiff.

[33] In any case what does it mean to put a purchaser of land in possession? 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…”

[34] Applying the principle above to the case at bar, it is clear that the Defendant cannot claim to have put the Plaintiff in possession when to his knowledge the Tipper Truck Union was also claiming interest in the same piece of land. I say to his knowledge because he conceded that he was arrested by the Police pursuant to the complaint filed by the Tipper Truck Union for the alleged trespass of the Plaintiff. Giving legal title of a land is not merely handing over documents all be it a deed of assignment and/or a lease. Based on the evidence it is my finding that the mere production of the receipts exhibited does not confer title on the Defendant as the owner of the land because it is settled rule that receipts, building permits, building plans, title documents et cetera do not confer title on their holders per se even though they may constitute act of ownership. See KWOFIE v. KAKRABA [1966] GLR 229 and ELIZABETH OSEI v. MADAM ALICE EFUA KORANG [2013] 58 GMJ SC 1 @ page 30 per Ansah, JSC. In this case, the Defendant failed to show and provide any acceptable legal document to prove his ownership of the land(s).

[35] Based on all of the evidence therefore it is my holding that the Defendant breached the contract he had with the Plaintiff as a result of his failure to transfer proper title of the land to the Plaintiff. Based on the conclusion above, it is also my finding that the Plaintiff could not develop the land for the purpose he acquired same because another person (The Tipper Truck Union) made adverse claim to the title of the land he paid the money for.

[36] With regards to the issue “whether or not the undertakings/promises given by the Defendant to replace the parcels of land failed”, I think the resolution of that issue is of no moment since that is not central to the determination of the real controversy between the parties and the reliefs the Plaintiff claims. The acceptable facts and the evidence heard do not make that issue relevant at all. Thus it is not necessary for the court to embark on any voyage which will not assist it in the determination of the central issue which I have discussed and determined above. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See DOMFE v ADU (1984-86) 1 GLR 653.

[37] Based on all of the evidence heard and my analysis above I hereby enter judgment in favour of the Plaintiff for the reliefs (i) (ii) and (iii) endorsed on the Amended Writ of Summons. My findings notwithstanding, can it really be said that the Plaintiff has established on the balance of probabilities that his claim in terms of the sum of GH¢54,200 endorsed on the writ as the costs of development work on the land and the interest thereon and on the amount of GH¢36,500? I shall first look at the claim for the costs of construction.

[38] Can it be said that he proved the figure stated with cogent evidence? In my view, while I have no problem relying on Exhibits “B” Series to ascertain the payment made for the land by the Plaintiff; I have difficulty accepting Exhibit ‘J” and Exhibit “H” series, being the photographs of a structure/building as a proper way of proving the money spent for the construction. 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 including carpenters etcetera is not an acceptable way of proof at law. To that extent I am of the view that the probative value which this Court should place on Exhibit “H” and “J” and accept as relevant and reliable is lacking. With the greatest respect to the Plaintiff and Counsel I cannot accept the amount of GH¢54,200 without any proper proof.

[39] The Plaintiff 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. The Court of Appeal case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA (holding 3) where it was held “where a fact was capable of positive proof it was wrong to rely on assumptions” undermines the Plaintiff’s claim of GH¢54,200 as the cost of the construction.

[40] But, does the above finding means that I should wring my hands in despair and lament that because the Plaintiff failed to establish with cogent evidence the figure of GH¢54,200 endorsed on his Writ of Summons he should not be compensated for the construction on the land which the Defendant accept the Plaintiff made on the land? I think equity and conscience dictate that I should not do so. It bears stressing that though this court is a court of law, it is also a court of equity. As explained by Abban JA (as he then was) in DOMFE v ADU SUPRA @ 666, where the judge sits as a court of law, he also sits as a court of equity and of conscience.

[41] Based on all of the evidence, I shall grant the Plaintiff an amount of GH¢25,000 for the cost of the development work on the land. Further, 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 Plaintiff is 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 Plaintiff an amount of GH¢10,000 for the breach of contract.

[42] Finally, the last issue for my consideration is whether the Plaintiff is entitled to interest on the amount of GH¢36,500 paid to the Defendant as price for the land and also the amount spent in developing the land. Counsel for the Plaintiff in his written legal submission stated that the Plaintiff is entitled to interest on the money paid. Relying on the principle established old English cases of BERNALES v. WOOD (1812) 3 Camp. 258, FARQUHAR v. FARLEY (1817) 7 Taunt and other cases and also the local case of HOLLAND WEST AFRICA & ANOR v. PAN AFRICAN TRADING COMPANY & ANOR (1976) 2 GLR179 @ Holding 3, Counsel submitted that “if a breach had deprived a Plaintiff of the use of a sum of money or other capital asset; the Defendant must be presumed to have agreed to pay interest for the period between the date when the cause of action arose and the date of the judgment. Counsel also relied on the UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES SUPRA, Counsel submitted that the Plaintiff is entitled to interest on the monies paid to the Defendant as well as any other expenditure incurred by the of

[43] So what does the law say in awarding interest? 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 plaintiff had lost from the due date. 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.

[44] In UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES SUPRA the Supreme Court 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”.

[45] Again, in the case of MULLER v HOME FINANCE COMPANY LTD [2012] 2 SCGLR 1234 the Appellant contracted to purchase a five bed-room house at a public auction which was conducted at the instance of the Defendant Home Finance Co. Ltd. The purchase followed an advertisement of the public auction placed by the Defendant in a local newspaper. After the Plaintiff inspected the property he made a successful bid for the house at the auction sale and paid US$40,000 as the purchase price. The Plaintiff was however, unable to take possession because the original owner of the house successfully sued the Company. After a number of futile assurances from the Defendant Company that steps were being taken to put him in possession, the Plaintiff sued for delivery of the five-bedroom house or, in the alternative the open market value of a comparable house at the same location and also loss of rents. The Supreme Court in allowing the appeal in part stated in respect of a breach of contract that:

“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”

Though in this case both the Plaintiff and Defendant ignored Section 2—of NRCD 175, The Conveyancing Act and thus did not have a written contract, in my respectful view the principle stated by the Supreme Court is applicable to an unwritten contract as well. I therefore take a cue from it and endorse same in this case.

[46] Based on the law, it is my holding that the Plaintiff is entitled to interest on the amount of GH¢36,500 paid to the Defendant as the purchase price for the land from the date the Writ of Summons was issued, which is October 22, 2014 till today’s date being the date of judgment. I am however unable to grant the Plaintiff interest on the amount spent in developing the land as there is no basis for same.

[47] Finally, before I conclude it is important to consider an aspect of the Defendant’s testimony proffered on July 18, 2018. It is to the effect that he has paid back part of the money he received from the Plaintiff. In the course of cross examination on the above stated date the following evidence crucial to the issue under discussion was elicited.

“Q: When you were arrested by the police, the Plaintiff had not finished payment of the land, is that not so?

A: The Plaintiff had already paid.

Q: How much had the Plaintiff paid then?

A: ¢365,000 million, but they later told me they do not want the land so I should refund their money, I have paid them ¢200,000,000 and it is left with ¢165,000,000

Q: You paid that money to who?

A: I paid it in my lawyer’s office.

Q: Has the Plaintiff issued you with any receipt?

A: I took the receipt from where I paid, i.e. my lawyer’s office.

Q: This receipt is the one issued by your lawyer to you and not from the Plaintiff to you, is that not correct?

A: Yes, my Lord.

Q: I am therefore putting it to you that you have not paid even a pesewa to the Plaintiff.

A: I have paid ¢200,000,000….

Q: For the avoidance of doubt, I am putting it to you that your lawyer has not paid any money to the Plaintiff on your behalf, therefore, you are still indebted to the Plaintiff in the sum of GH¢90,700.00.

A: My Lord the money they gave to me was ¢365,000, 000 I have paid ¢200,000,000 and I am left with ¢165,000,000”

[48] The Court notes that no receipt from either the Defendant or his Counsel Mr. Charles Bawaduah was tendered at trial to confirm the said payment of money by the Defendant. It has long 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. Hence in the instant matter, since the Defendant alleges that he has paid some money back to the Plaintiff through his lawyer, it is incumbent upon the Defendant to lead positive evidence in proof of that claim,

[49] Finally, I wish to state that it is generally accepted that demeanour as a measure of credibility can often be misleading and should not, standing alone, be determinative. However examining the Defendant’s testimony in the light of its internal consistency and its consonance with the other evidence heard and before the Court and with the probabilities inherent in the circumstances, it is my judgment that the Defendant’s evidence led is not worthy of any credit on the key parts relevant to his defence and I do not believe him. I found that the Defendant was often evasive, belligerent and unresponsive in his cross-examination. For instance even though he pleaded that he acquired the land in dispute from the Nii Sampe Mensah family of Ablekuma, Accra and the family executed an indenture for him he insisted under cross-examination that the land was his personal property that was given to him by one Nii Kwaku Fosu III in the year 1996 but he had no document covering the land. On the whole, I was not impressed with the Defendant’s testimony on the key parts of the evidence. I assessed him as a witness who was selective as to what he was prepared to tell the Court and admit. He did not present himself as a witness who was being entirely candid. His testimony was given with a view to his own interest rather than in accordance with the oath which he had taken.

v. Conclusion and Disposition:

[50] From the totality of the evidence on record, the court holds that the Plaintiff succeeds in proving his reliefs (i) (ii) (iii) and (iv) endorsed on the Writ of Summons against the Defendant. Accordingly, judgment is hereby entered for the Plaintiff against the Defendant for those reliefs

Also, the Plaintiff is entitled to recover from the Defendant any amount of GH₵25,000 as cost for developing the land and GH₵10,000 for breach of Contract. Having succeeded in proving his claim, I shall award the Plaintiff Cost of GH₵ 8,000, 000 against the Defendant.