ACCRA - A.D 2019
LOTUS CORP - (Defendant)

SUIT NO:  GJ/482/2017


By virtue of a sale agreement dated the 10 th of October, 2014, Plaintiff agreed to purchase three houses numbered 007, 009 and 010 situate at a prime and plush area of Cantonment, Accra near the US embassy, called ICON project, managed by Defendant with the purchase price for the three projects being US$1,520,000. Defendant provided a limited warranty for the structural integrity of the three houses by undertaking to repair or replace defects caused by work improperly carried out by Defendant. It is further not in dispute that Plaintiff made a total payment of US$1,180,298 for properties 009 and 010 and part payment for Unit 007.


Plaintiff upon being granted access to the three properties, claim to have noticed several defects with two of the houses that were handed over by the Defendant, being Units 09 and 10. Plaintiff cite the swimming pool that was constructed had serious, if not dangerous structural defects which he claim were brought to the attention of the Defendant. That its hopes had been dashed as contrary to its expectation as per the contract Defendant has failed to remedy the defects it brought to its attention.


Plaintiff contend that with the failure of the Defendant to remedy the defects, it had to expend Gh¢372,000 to undertake the repairs in order to mitigate its losses. And that Defendant was in the process of selling Unit 007 to a third party in breach of the agreement between them. To Plaintiff it has been denied access to the property it has partly paid for and Defendant was ready to abrogate the contract and these were enough to provoke Plaintiff to cause the issuance of the writ seeking the following reliefs:

i. An order for specific performance of the contract for the sale of Unit 007, ICON project, No 20A, 2nd Circular Road, Cantonments, Accra.

ii. An order compelling Defendant to pay for the repair and replacement of all defects occasions [sic] by the work improperly carried out by the Defendant with respect of Unit 007, 009 and ‘010’ situate at the ICON project, 205, 2nd Circular road, Cantonments, Accra including refund of Gh¢372,000 already incurred by Plaintiff to correct some of the defects in the house including the swimming pool.

iii. An order of injunction restraining the Defendant, its agents and assigns from selling, dealing or interfering with Unit 007 of the ICON project pending the final determination of this suit.

iv. Cost

v. Such further and other relief as to this honourable court may deem fit.



Defendant denied the claims of Plaintiff for delivering defective properties and being liable for the reliefs sought by Plaintiff. That the three properties were purchased by Plaintiff at a discounted price of US$500,000 each plus cost of US$52,408.22 as cost for non-standard features and a US$15,300 as cost for legal documentations. That the three units were to be built in stages with all of them being at the same stage of construction. And the claim of defects having been discovered almost eight months after handing over cannot be true.


That per the payment plan given to the Plaintiff he was supposed to have paid US$1,587,708.22 but only paid US$1,180,289.00 between May, 2013 to April 2015 and never made these payments in advance. To Defendant, Plaintiff was supposed to have pre-finance the construction in accordance with the building schedule but always paid late resulting in mis-match of request of funds and receipt of funds. Defendant contend that Plaintiff requested for the opportunity to rent out the properties to raise funds to pay Defendant as it encountered financial difficulties in the purchase of the three units. And this to it caused undue delay in the construction of the three units.


Defendant claim that based upon a request from Plaintiff, it decided to assist Plaintiff to obtain a facility from the Fidelity Bank to complete the project. And it was when the facility was approved and disbursed that Plaintiff made a further payment of $47,000. Defendant note that whatever communication regarding defects was done outside the time frame specified in the agreement and denied any defects discovered with the swimming pool. That Plaintiff caused its workers to demolish the swimming pool thereby denying it the opportunity to verify the claim of the defects with the swimming pool.


Defendant notes that Plaintiff created unnecessary expenditure by stripping the three units from ceiling to ground to furnish it to its personal taste and this cost, Defendant contend, cannot be passed on to him. That with the failure of Plaintiff to make more payments, the parties agreed for the third unit to be sold and the monies owed to Plaintiff refunded to him. And it was on the 28th of February, 2016 that the parties agreed for two units to be handed over to Plaintiff to complete without financial recourse to the Defendant whilst the latter retained general supervision oversight. It accordingly deny that it is in breach of the terms of the agreement and that Plaintiff has lost whatsoever interest it had in Unit 007 and was entitled to sell it and pay Plaintiff its money and hence Plaintiff not entitled to its reliefs.


With issues joined in the reply the following were set down as the issues for trial:

1. Whether or not the Defendant rectified the defects in respect of Unit 009 and 010, ICON project, No 20A, 2nd Circular Road, Cantonments, Accra after the Plaintiff has notified it of same,

2. Whether or not Defendant’s counterproposal in the letter dated November 17, 2016 requesting Plaintiff to make full payment for the uncompleted Unit 007 and in addition use its own funds to complete the said Unit is conscionable.

3. Whether or not Plaintiff has an interest in Unit 007, ICON Project, No 20A 2nd Circular Road, Cantonments, Accra and accordingly entitled to the relief of specific performance.

4. Whether or not Defendant has the right to sell Unit 007, ICON Project, No 20A, 2nd Circular Road, Cantonments, Accra.

5. Whether or not Plaintiff is entitled to the reliefs sought


I find it quite interesting that Plaintiff who set down the above issues in the application for directions filed on the 28th of July, 2017 totally abandoned his own issues and set down completely different issues at page 6 of his address to the court. That is an indication that the issues above does not accurately capture the essential issues for resolution in this suit. I have examined the issues set down by counsel for Plaintiff in his address including those as to whether or not there was a valid contract, whether there had been part performance, and whether defects were communicated to Defendant. The claim as to whether there was a valid contract was not traversed by Defendant and I see no reason for such to be stated as an issue for trial. I am guided by the admonition of Pwamang JSC in the case of DR R. S. D TEI V CEIBA INTERCONTINENTAL [2018] DLSC 3301 p4 that:

“One of the functions of pleadings is to limit the issues and narrow the proofs. If facts alleged in a statement of claim are not denied by the defence or if no defence is filed, they are not in issue and no evidence need be offered to prove their existence, save the question of damages. See Order 11 Rule 13


I find the claim of whether there was a contract of sale or not as being not an issue before me as both parties agree that there was one.


Besides, the first issue set down in the application for directions assume as a matter of course that there were defects in Units 009 and 010, glossing over the fact that the claim of defects had been traversed by Defendant and needed to be proved by Plaintiff before one can think of whether same had been rectified. I am of the opinion that the issues worth considering are whether or not there were defects in the properties and same were brought to the attention of Defendant in a timeous manner. Whether Plaintiff is entitled to his claim of special damages of Gh¢372,000.00 and finally whether Plaintiff is entitled to his claim of specific performance. There may be sub issues I will be dealing with under each of the broad issues. I have reset the issues based on the trite rule that a Judge is not bound by the issues set down by the parties if he is of the opinion that they do not address the questions before the court.


Wood CJ speaking in the case of FATAL V WOOLEY [2012-13] 2 SCGLR 1070 at holding 2 noted as follows:

“it is sound learning that courts are not tied down to only issues identified and agreed upon by the parties at pre-trial. Thus if in the course of the hearing an agreed issue is clearly found to be irrelevant, moot or even not germane to the action under trial, there is no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out but emanates at trial, from either the pleadings or the evidence, the court cannot refuse to address it on ground that it is not included in the agreed issues.


See also WILLIAM ASHITEY ARMAH V HYDROFOAM ESTATE (GHANA) LTD [2014] DLSC 3000. J4/33/2013 dated 23rd May, 2014.



Plaintiff testified through its Managing Director, Kwamina Bentsi-Enchil Duker and tendered the following, among others, as the crucial evidence of the Plaintiff: The Sales Agreement of the three properties of 007, 009 and 010 at the ICON Project as Ex ‘A’, a statement of account of Plaintiff as Ex ‘B’, a document captioned Structural Conditions Survey Report [Summary] as Ex ‘C’, email exchanges between one Kwabena Adusei and Leonora Twum as Ex ‘D’, further email correspondence as Ex ‘E’, a letter from the lawyers of Defendant to Plaintiff as Ex ‘F’, and invoices of works Plaintiff claim to have expended on the projects as Ex ‘G’ series.


Defendant on the other hand testified through its Chief Executive Officer, Leonora Nana Twum and also tendered the following: a building schedule payment as Ex ‘1’, email exchanges between representatives of the parties as Ex ‘2’, a document captioned variations and documentations was admitted as Ex ‘3’.



I prefer to commence the analysis with the claims of defects discovered, allegations of drawing attention of same to Defendant as well as the claim of entitlement to an amount of Gh¢372,000 before wrapping up with the claim for specific performance regarding Unit 07.



In construction law, defect can be said to be anything that renders the works done unfit for the use it was intended for when a property is used in a reasonable way and with care. And so if works are not carried out in accordance with the contract or to the standard that is reasonably expected by the parties and for which the client has paid money for that will be a defect that will constitute a breach of contract. In the case of BAXALL SECURITIES LTD v SHEARD WALSHAW PARTNERSHIP [2002] EWCA Civ. 9; a construction defect was claimed to be patent if it is reasonably discoverable with the benefit of skilled third party advice such as an architect or engineer.


Plaintiff’s representative in his evidence in chief claim in paragraphs 9 and 10 that two of the three houses completed and handed over to him being Units 009 and 010 had several defects with the finishing works. And with the defects, a litany of them were listed by Kwamina Duker when he came under cross examination on the 30th of November, 2018 as he told the court at page 2 of the proceedings of the following defects:

“… these defects accumulated, beginning from stairs that were uneven and of different heights, to leakages throughout the building to the garage which was too small for conventional cars to enter to a septic tank that was above the level of the house, to windows that could not close, to a swimming pool which underneath, was a huge cavity covered only by a thin layer of concrete and supported by rotten wooden poles”.


Further defects was stated to be the electrical armoured cables that was supposed to carry electricity from the main line to the house as having been laid in a gutter together with the drain pipes, the claim of the electrical fittings being substandard, plaster board rotten and paint used being substandard as to be peeling off necessitating a re-painting. As far as the defects alleged are concerned it is my duty to answer the questions as to whether the defects were proved by the Plaintiff who bears the burden of proof and the burden of persuasion, and if proved whether they were communicated to the Defendant and if communicated whether the communication was done timeously and in accordance with the timelines provided under Ex ‘A’ and finally whether Plaintiff is entitled to the special damages of the Gh¢370,000.


One aspect of the burden that Plaintiff bears in terms of pleading such special damages was done. But was the allegation of defects proved and if so how was the defects proved? I am not unmindful of the admonition of the Supreme Court in the case of KLAH v PHOENIX INSURANCE CO LTD [2012] 2 SCGLR 139 before evaluating the evidence in terms of proof or otherwise of the defects wherein the court in holding held that:

“The pleadings of a party would constitute allegation and not evidence. Thus where an averment in a statement of claim has been positively denied, it would be incumbent upon the party asserting those averment to substantiate them by leading evidence in compliance with the cardinal rule of pleadings under Rule 7(1) of Order 11 of the HCCPR, 2004, CI 47, namely that the material facts relied upon by a party for his claim but not the evidence by which those facts were to be proved should be contained in the statement of claim”


Plaintiff in an effort to prove its claim of defects discovered tendered Ex ‘C’. Exhibit ‘C’ is captioned ‘Structural Conditions Survey Report’ with pictures of the claim of the defects discovered with the building and the swimming pool. Exhibit ‘C’ does not show who authored the report. It is unsigned, it is undated. Miss Twum correctly cross examined Kwamina Duker by attacking the authenticity of Ex ‘C’ in the following:

“Q: Mr. Duker, can you please look at the exhibits file, and let us look at Ex ‘C’ series… Can you tell the court what this report is about, just a summary of it.

A: This report was a structural condition survey

Q: Can you please tell the court where the assessment was done, on which property by looking at the report before you

A: I do not believe it refers to Units 7, 9 and 10 because I do not have a cover page

Q: I suggest to you Mr. Duker that on the face of this report, it does not relate to the Defendant’s units at all

A: That is so impossible. That is not true

Q: Can you tell us on the face of this report who the author is

A: Yes I can tell you who the author is but I will have to refer to my architect. I know his name.

Q: Can you tell us on the face of this report who the author is

A: No, not on the report I have here but I can tell you who prepared the structural survey.

Q: I suggest to you that this piece of writing constitutes no authenticated report and not one which you expect this court to rely on.

A: I will love the court to come and see the buildings but I disagree with you. It is inconceivable that this report does not relate to the building…”


From the above exchanges, Defendant was raising a genuine and legitimate concern regarding the authenticity of Ex ‘C’. Ex ‘C’ contravenes the best evidence rule enunciated by Lord Hendricks in ONYCHUND v BARKER [1745] 1 AIK 21. The court does not know who authored the document, when it was authored, and on what property that report was about. Neither was any valuer or architect called by Plaintiff to testify or speak to this document. And authenticity is a precondition precedent to admissibility of a writing. See section 136 of the Evidence Act, NRCD 323. Even though the court glossed over the authenticity of this writing when it was admitted in evidence but it does not preclude it from raising these questions. See JUXON-SMITH v KLM DUTCH AIRLINES [2005-2006] SCGLR 438.


I find and hold that Ex ‘C’ fails to meet the test of authenticity under law. I find and hold that Ex ‘C’ is of scant probative value before the court due to the deficiencies that afflict Ex ‘C’.


In the event that even the findings supra may be wrong, there are other concerns that may must be addressed by the court. One of them is when the Defendant was notified of Ex ‘C’ and invariably its attention drawn to defects in the properties. It is not disputed that Plaintiff was handed over the properties on the 28th of February, 2016. By Clause 16 of Ex ‘A’ under limited warranty, defects were to be brought to the attention of the vendor [Defendant] within two months of the completion inspection for defects and within one year of the completion inspection for defects in the structure of the property.


Whiles Plaintiff contend that completion inspection has not yet been carried out and it was well within the period when it notified Defendant of the defects. Evidence of the notification is found in Ex ‘D’ via email correspondence that were around October, 2016. Kwamina Duker claim under cross examination that the report of defects were done on daily, weekly basis in a constructive manner. In fact when the exhibits were handed over to Plaintiff’s representative to show the reporting made he stated that:

“I will have to look at the email trail, but it is within the exhibits”. And when the exhibit containing the email correspondences were shown to the witness he stated:

“I am not sure whether we have all the emails here. But to expedite matters, I can tell you that all the defects including the swimming pool were communicated to the Defendant both verbally, by email and usually by whastsapp”.


Besides, the email exchanges beginning from October, 2016, there is no evidence of correspondence by whatsup or any other means before me. On the basis of the principle in the case of BOUSIAKO CO LTD. V COCOA MARKETING BOARD [1982-83] GLR 824 that if a party had in his possession certain documents to establish his case and he failed to produce them, then the proper inference to be drawn is that the documents never existed or, if they did, they did not contain the averments he testified about. I am therefore safe to find as a fact that communication to Defendant of defects was done in October, 2016 when Ex ‘C’ which I have attached scant probative value was sent to Defendant.


But even if the communication was done of defect to Defendant in October, 2016, will that take it outside the two months period under Clause 16 of the Agreement entered between the parties in view of the claim that practical completion has not yet been achieved?


It appears that the three properties were not fully completed when they were handed over to Plaintiff to customize the finishing to its taste. And from March, 2016 when Plaintiff took over the three properties it brought its own contractor to complete the properties. And this is what the Defendant’s representative, Leonora Twum claim that the Plaintiff took over the properties, stripped it of most of the fittings and fixtures and replace them with fittings to the taste of Plaintiff. In that respect if defects had been found and reported to the Defendant in October, eight months after Plaintiff took possession of the properties, it would be unfair to lay responsibility for any remedial works at the door step of the Defendant.


Defendant’s representative had made the same claim in her evidence on the 17th of December, 2018 regarding the swimming pool that it was demolished before she could have the opportunity to verify the defects. Where a vendor is not afforded the opportunity to carry out repairs identified in construction, the chances of the buyer surcharging the vendor with cost of repairs and remedial works becomes remote. See PEARCE HIGH LTD v BAXTER [1999] EWCA Civ 789.


Again, I find it baffling that in a case such as this, where an expert evidence in terms of the evidence of an architect, a contractor or a structural engineer in the persons of any of the professionals that worked on the properties were not called by Plaintiff to testify. Kwamina Duker was most of the time not within the jurisdiction and relied on Ms Arwad Ashkar and Samuel Kwabena Adusei. None of these person were called to testify and speak to any of the claims of Plaintiff. Well, as the name of the game in court is evidence, I am not permitted to be a magician to discern and scoop evidence not before and the consequences of the failure to call such material witnesses must be borne by the Plaintiff who had made those claims before the court. I can only recall the words of Ayebi JA in the case of JACQUELINE ASABRE v JOHNSON ABOAGYE ASIM [2017] 109 GMJ 206 CA – Ayebi JA which I adopt here as my own words that:

“we wish to advise and remind counsel humbly that in a court of law the merits of a case are not determined based on suspicions, feelings or emotions of the appellant or any party. Cases are determined on the bases of the evidence led in support of the facts alleged in the pleadings. Counsel should please take note”.



And this brings the court to a consideration of the last weightier matter under the defects before I turn my attention to the issue of specific performance. And that is whether Defendant should be liable to indemnify Plaintiff for the cost it claimed to have incurred to the tune of GH¢372,000. This is a claim for special damages. Whiles general damages need not be proved as it flows as a matter of course from a breach of contract or the establishment of a tortious liability, it is not so with special damages. Without proof of special damages, there would be no liability on the Defendant. See DELMAS AGENCY GHANA v FOOD DISTRIBUTION INTERNATIONAL LTD [2007-2008] SC GLR 748; MOSES OKRAH v AGRICULTURAL DEVELOPMENT BANK [2016] DLSC 2866 PER YAW APPAU JSC; KOBI v GHANA MANGANESE LTD [2007-2008] SCGLR 771@772 SC.


The special damages Plaintiff seeks is the cost of repairs and replacement of all the defects occasioned by the work improperly carried out by the Defendant. Exhibit ‘G’ is what Plaintiff produced as the evidence of the cost incurred in the repairs done. They are a series of invoices or proforma invoices of various building products. I have not found any receipt of payment in Ex ‘G’ and therefore the claim by K. Duker in paragraph 16 of his witness statement that he had so far spent Gh¢372,000 on properties Units 09 and 010 to mitigate his losses and Ex ‘G’ being evidence of that cannot be correct, I so find and hold.


He further claim to support it with Ex ‘E’ by stating that the repairs had been carried out with the knowledge of Defendant. Exhibit ‘E’ record communication between Samuel Adusei and Leonora Twum regarding works being undertaken on the properties. As to whether the works was to remedy defects or as Defendant contends was to customize the properties to the taste of Plaintiff, has not been stated on the face of the email correspondence in Ex ‘E’. And in some of the emails, Leonora Twum remonstrates that there was lack of activity on the part of the contractor of Plaintiff to continue the works, Plaintiff had opted to complete. I do not think, I so find, that the works discussed in Ex ‘E’ and undertaken by Plaintiff was done on the understanding that it was to remedy any defects but it was rather, to bring it to the special standard and taste of Plaintiff.


Exhibit ‘G’ far from being receipts of payment of works to remedy defects are only invoices. This cannot form a basis for the court to rule that Plaintiff is entitled to the recovery of the amount of Gh¢372,000.00. I hold that the Plaintiff once again has been unable to prove its claim to special damages of Gh¢372,000 and same is dismissed.



Plaintiff seeks an order of specific performance of the sale of Unit 007 to him. Plaintiff claim to have made part payment of Unit 007 as in all he paid US$1,180,298 out of US$1,520,000 for the three properties which represent full payment of two of the properties and part payment towards Unit 007. Having made part payment towards Unit 007, is Plaintiff entitled to the equitable remedy of specific performance?


The grounds upon which specific performance of a contract involving land may or not be granted are lit by a floodlight of authorities. One of such principles is that a Plaintiff who seeks specific performance of a contract had to show that he was ready to perform his own obligations under the contract and any failure on his part or breach was bar to his claim for specific performance. See IBM WORLD CORPORATION v HASNEM ENTERPRISES LTD [2001-2002] 2 GLR 248.


A further rendition of the principles animating specific performance was stated by the Supreme Court in the case of GORMAN & GORMAN v ANSONG [2012] 1 SCGLR 174 when Ansah JSC noted as follows:

“… specific performance is an equitable remedy and it is granted at the discretion of the Court. It may be granted especially with regard to sale of landed property… because there is no other remedy which puts the plaintiff in the same position as though the contract was performed. However, it trite law that specific performance will not be granted in certain situation: if damages will be an adequate remedy, where there is want of mutuality, where performance requires the Court’s supervision, if it will be pointless to grant it, if the contract cannot be enforced in its entirety, if the order will cause severe hardship to the defendant and if the defendant’s personal freedom will be retrained by it”.


See also KOGLEX LTD. (NO 2) v FIELD [2000] SCGLR 175 where the Supreme Court ordered specific performance where there had been part performance on the part of the Plaintiff. Also NDOLEY v IDDRISU [1979] GLR 559; BONSU v AGYEMANG [2012] 1 SCGLR 978.


I ask whether on the circumstances of this case it is appropriate to grant the equitable remedy of specific performance. There has been part performance on the part of the Plaintiff by paying part of the monies for the Unit 007. Besides, Plaintiff had requested for variations to be made to Unit 007 which had been made which makes it different from the standard Units sold by Defendant. Defendant estimate the cost of reverting Unit 007 to the standard property of theirs to be US$97,708. And for which it seeks that Plaintiff must be made to pay for it for which Plaintiff vehemently dispute. Clause 9 of the contract maintains that the Vendor [Defendant] shall not be liable for any variations provided.


But is that enough to entitle Plaintiff the exercise of the discretion of the court in ordering specific performance in its favour?


Ex ‘A’ provided a schedule of payment at each stage of construction at Clause 6. Plaintiff appears to have made the last payment in April, 2015 which makes Plaintiff in breach of Clause 26(a) of Ex ‘A’ which entitles Defendant to take steps to terminate the contract. The parties virtually agreed on the sale of Unit 007 and the deposit of Plaintiff refunded to him. Plaintiff does not object to his money being refunded to him as far as Unit 007 is concerned even though he has in another breath asked for specific performance of the delivery of the property to him. For instance on the 17th of December, 2018 this is what Plaintiff’s counsel put to Leonora Twum at page 4 of the proceedings:

Q: Now when it comes to Unit 007 the Plaintiff has also proposed that you either refund his money to him or he takes over, just like the first two rooms and complete

A: My Lord, it is I who actually proposed that Unit 007 will be sold and any monies owed to the Defendant [sic] company will be refunded”


As Plaintiff even though has made part payment but failed to keep up with the terms of payment per Clause 6 of Ex ‘A’, I find it inequitable to grant him the order of specific performance. I will order for monies paid by him be refunded. In respect of the claim of variations done to Unit 007 worth US$97,000.00 or being the cost of reverting the property to standard property, which Plaintiff dispute, I will order the appointment of Architectural and Engineering Services Ltd (AESL) to undertake a valuation of the variations ordered by Plaintiff and for which Defendant seeks to surcharge Plaintiff with the amount of US$97,000.00. The amount found to be the cost of the variations and an extra money to put the property back to a standard Unit shall be the reasonable deductions to be made from the deposit of Plaintiff.


As Defendant was in the process of selling Unit 007 and the court had to place an injunction based on the sale based on an application filed by the Plaintiff, I think it is only fair that Defendant is reasonably compensated for the damages incurred and I will award cost of US$5,000 or its cedi equivalent to the Defendant.



Award of cost is always at the discretion of the court and the principles are governed by those set out in Order 74 Rules 2 and 4 which states as follows:

“2(3) without prejudice to the powers and discretion of the court, an award of costs shall ordinarily be designed to

(a) Compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made; and

(b) Provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer.


(4) In assessing the amount of costs to be awarded to any party, the court may have regard to

(a) the amount of expenses , including travel expenses, reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings;

(b) The amount of court fees paid by that party or that party’s lawyer in relation to the proceedings.

(c)The length and complexity of the proceedings;

(d) The conduct of the parties and their lawyers during the proceedings; and

(e) any previous order as to costs made in the proceedings”.


I take into particular consideration the expenses incurred by Defendant in defending the suit, the court fees paid and on the part of Plaintiff the regard I have for the fact that perhaps his claim of defects discovered was not professionally put before the court and I will award cost of Gh¢30,000.00 in favour of Defendant against Plaintiff.