IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
KWADWO OPOKU AND ANOTHER - (Plaintiff)
ERIC KOFI BOATENG - (Defendant)
DATE: 24TH JANUARY, 2019
SUIT NO: 0CC 80/2017
JUDGES: DR. RICHMOND OSEI-HWERE, J
AKUA POKUAA KWARTENG FOR THE PLAINTIFFS
AMA ASENSO FOR THE DEFENDANT
By this action, the Plaintiffs seek the following reliefs against the Defendant:
a) Recovery of the land as well as the building thereon known as house No. Block 39, Plot 1, Ahodwo, Kumasi.
b) An order from this Honorable court directing the Defendant to render accounts on the said property.
c) General damages for the breach of the lease agreement of 18th August 1999.
d) Costs including lawyer’s fees.
The facts which gave rise to this suit are narrated below:
Sometime in August, 1999, the Plaintiffs together with one Abusuapanin Yaw Adu (now deceased) entered into an agreement with the Defendant for the latter to build a three storey building on an undeveloped portion of land known as house No. Block 39 Plot 1. The agreement stipulated that the Defendant would use a period of two (2) years to complete the structure. Also, it was a term of the agreement that the Defendant upon completion of the ground floor of the property would rent same out and use part of the proceeds to sponsor two (2) members of the Plaintiffs’ family to travel abroad. The Defendant, per the agreement, was to enjoy proceeds from the rental of the shops for a period of thirty-five (35) years before handing same over to the Plaintiffs.
It is also a fact that by the year 2001, the Defendant had developed the basement and ground floor of the property and rented out all seven (7) shops on the ground floor. The development of the basement is,however, not yet complete.After renting the shops out, the Defendant has failed or refused to sponsor two (2) people from the Plaintiffs’ family to travel abroad and has also failed or refused to carry any further development on the building.
After unsuccessful attempts at settlement the following issues were set down for trial:
I. Whether or not the suit has been commenced in the proper forum.
II. Whether or not the suit is statute barred.
III. Whether or not the suit is an abuse of the court’s process.
IV. Whether or not the Plaintiffs have capacity to institute the present action.
V. Whether or not the purported service of the writ of summons and statement of claim on the defendant on non-working day is valid.
VI. Whether or not the Defendant has failed to sponsor two members of Plaintiffs family abroad.
VII. Whether or not the Plaintiffs are entitled to their claim.
The Case of the Plaintiffs
The Plaintiffs’ case is that the defendant has not fulfilled his obligations under the terms of the contract. They contend that the defendant has failed or refused to sponsor two members of their family abroad even though he has rented out seven stores since 2001. According to the 2nd Plaintiff’s lawful attorney who testified, the Plaintiffs did not even know the whereabouts of the Defendant after he rented the shops out. It was only after the Plaintiffs together with one Abusuapanin Yaw Adu (deceased) sued the Defendant that he resurfaced.
Apart from the Defendants failure to send two (2) people from Plaintiffs family abroad, he also failed to develop the property up to the third storey as agreed. After completing the ground floor, the Defendant abandoned work on the other floors and concentrated on renting the ground floor to tenants since it was and remains very lucrative for him to do so.
They also claim that the Defendant’s development of the basement was unprofessionally done as the place is constantly flooded during rainy seasons and the same is not habitable.
The Defendant’s Case
The Defendant’s case is that after developing the property up to the ground floor, in fulfillment of the agreement, he attempted sending two (2) members of the Plaintiffs’ family to the United Kingdom. However, these persons failed to turn up for a scheduled interview at the British High Commission and insisted that they wanted ‘a connection visa’. Since he was only interested in sending these persons abroad through the known legitimate means, he refused to yield to their demands to get a ‘connection visa’ for them.
According to the Defendant, the 2nd Plaintiffs attorney as well as some other members of the Plaintiffs’ family had prevented him from developing the property to the third floor. The Defendant stated at the trial that there were instances where due to the troubles that they gave him, he reported the matter to the police and the 2nd Plaintiff’s attorney was arrested.
The Defendant further stated that he was willing and prepared to sponsor two (2) people from the Plaintiffs family abroad through the legitimate means and also develop the property to the third floor as agreed.
In this judgment I shall first consider the preliminary legal issues in this case. I shall then consider the contractual issues between the parties. Thereafter, I shall consider the question of whether there has been a breach of contract.
Preliminary points of law
Four (4) issues relating to preliminary point of law were set down for hearing i.e.
Whether or not the suit has been commenced in the proper forum.
Whether or not the suit is statue barred.
Whether or not the Plaintiffs have capacity to institute the present action.
Whether or not the purported service of the writ of summons and statement of claim on the defendant on non-working day is valid.
On 19/03/2018, the court held that it has jurisdiction to try the matter and that the suit had commenced at the proper forum. This was after both counsel had filed their written submissions on the issue. It must be noted that the defendant never led evidence relating to the said preliminary issues during the trial and counsel for the defendant also failed or refused to address them in her written submission to the court.
I shall, however, deal with the remaining preliminary issues in this judgment.
Is the present action statute barred?
The plaintiffs first instituted an action in respect of this matter in May, 2005. This is evidenced by Exhibit C, the writ of summons and statement of claim dated 26th May, 2005. On 4th November, 2011 the plaintiffs, however, filed a notice of discontinuance to discontinue the action with liberty to reapply. See exhibit D. The present action which was filed on 30th May, 2017, therefore commenced five and half years after the 2005 suit was wholly discontinued. I therefore agree with counsel for the plaintiffs that the present action is neither statute barred nor an abuse of the court’s process.
Capacity of Plaintiffs to Sue
From the statement of claim, the plaintiffs established their capacity to sue as beneficial interest holders of the property, Block 39, Plot 1, Ahodwo, Kumasi.
There levant portions of the statement of claim provides:
I. The Plaintiffs are beneficial interest holders of property known as Block 39, Plot 1, Ahodwo, Kumasi.
II. The Plaintiffs say that on the strength of their beneficial interest, they entered into an agreement with the Defendant for the development of the undeveloped part of Block 39, Plot 1, Ahodwo, Kumasi. The Plaintiffs will say that the agreement with the Defendant was in both written and oral terms.
III. The contract document (Exhibit 1) also states that the Plaintiffs entered into the agreement with the Defendant in their capacity as landlords and bonafide owners of the property.
From the pleadings and the contract document, there is no doubt that they have interest in the property. They therefore have the capacity to sue to protect their interests in the property.
Service of the Writ
The defendant alleged that the service of the writ was served on a Sunday and as such the same is invalid. The plaintiffs denied this assertion and the defendant bore the evidential burden to establish the same. The defendant, however, failed or refused to lead evidence on the matter. It is, therefore, concluded that the service of the writ was valid.
Terms of the Contract
When a contract is voluntarily entered into by a party of full age and capacity, the court has no option than to enforce it. In the case of Printing and Numerical Registering Co. vs. Sampson (1975) L R 19 EQ 462 at 507 Sir George Hessel said:
“If there is one thing more than another which public policy requires, it is that men of full age and understanding shall have the utmost liberty of contracting and that their contracts when entered into freely and voluntarily shall be held sacred and enforced by courts of justice.”
In spite of the court’s desire to give effect to the will of contracting parties, there can be no doubt that under law of contract a claim may be defeated on the ground of illegality. The classic statement of the principle was made by Lord Mansfield in Holman v Johnson (1775) 1 Cowp. 341 at 343:
“No court will lend its aid to a man who found his cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country then the court says he has no right to be assisted.”
A contract may be illegal because it involves the doing of an act which is prohibited by statute. A contract may also be illegal not because it is prohibited by statute, but because it involves the doing of something which is considered to be against the public good or public interest. Such contracts are said to be against public policy.
Paragraph 4 of the terms of the agreement provides that:
“That if the contract is done with the construction of the Ground Floor, he will use the proceeds incurred from its renting to send two members of the family of the landlords to (sic) abroad.”
It is difficult to fathom how the Defendant was expected to execute this term. Travelling abroad mostly require a visa. The defendant is not a consular officer, so apart from providing sponsorship for visa fees, ticketing etc., it beats my imagination how he was expected to ensure that two members of the plaintiffs’ family are sent abroad with the proceeds from the rents. The court has taken judicial notice of the fact that in Ghana people use all sort of illegitimate means to travel abroad in their bid to seek greener pastures. This includes procurement of fake visas from unapproved sources. The contractual term herein smacks off illegality and the court will not countenance it by enforcing same. Consequently, paragraph 4 of the agreement is unenforceable as the same is void.
Another provision in the agreement which is at the heart of the dispute is paragraph 3 which states:
“That the contractor is to use two (2) years to complete with (sic) the whole project.”
The plaintiffs are contending that the defendant is in breach of the agreement, as the project was not completed in two years as agreed. The defendant is also saying that the plaintiffs and some their family members made it impossible for him to complete the project. However, no cogent evidence was led by the defendant to prove that he was indeed prevented by the plaintiffs. The defendant only repeated his claim when he testified on oath.
In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, the court held that where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating this averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.
The defendant’s allegation that the plaintiffs and his family members particularly the 2nd plaintiff’s attorney had on various occasions demolished the work done, stalled further development of the property and threatened occupants of the property with death could have been established in a very positive way, most especially when he alleged that he lodged police complaints in respect of the conduct. Beside the bare assertion, no police report was tendered in evidence and no witness was called to corroborate these allegations. The plaintiffs on the other hand rejected the allegations and as such the evidential burden shifted to the defendant but he failed to discharge it. In view of this, the court will not lend credence to these allegations. Consequently, the defendant cannot use frustration as an excuse for his failure to complete the project within the 2-year period, as stipulated under the contract. The defendant’s conduct constitutes a breach of contract and it is hereby held that the defendant is in breach of contract.
In the light of the breach are the plaintiffs entitled to general damages?
The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd vrs Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:
‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded.
Where a plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything unless general damages are also appropriate.’’
The plaintiffs are, therefore, entitled to general damages and I award general damages of GHC 40,000.00 in favour of the plaintiffs.
From the record, the defendant has only developed the property up to the ground floor and rented out the seven stores on the ground floor since 2001 and has solely enjoyed the proceeds there from. It is palpably clear that the defendant has not performed a significant portion of the agreement as at today. Consequently, in addition to the award of damages in favour of the plaintiffs, I abrogate the agreement between the parties.
In abrogating the contract, I am conscious of the fact that the defendant has incurred losses by way of expenditures but has at the same time generated revenue from the project. Thus in the interest of substantial justice, I hereby give the following orders:
I. The registrar shall forthwith appoint a valuer, specifically the Land Valuation Board to value the disputed property at the current market value.
II. The valuer shall assess the economic rent which has been paid on the seven shops from 2001 to date.
III. The valuer shall submit its report within one month.
IV. The revenue generated from the property i.e. the rent paid to the defendant so far plus the costs of the valuation exercise and the damages awarded to the plaintiffs shall be deducted from the assessed current value of the property. The net amount i.e. the residue shall be paid by the plaintiffs to the defendant within four months from today.
After payment of the net amount to the defendant, the plaintiffs shall take over the property excluding the seven shops. However, the seven shops shall revert back to the plaintiffs after expiration of any subsisting tenancy agreement. For the avoidance of doubt if there is no subsisting tenancy in respect of any shop, the plaintiffs shall take over the said shop after the said payment.
There will be no order as to costs.