HUMPHREY CHIKA EMMANUEL vs WALTER DEKU
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT(GENERAL JURISDICTION DIVISION),
    ACCRA- A.D 2019
HUMPHREY CHIKA EMMANUEL - (Plaintiff)
WALTER DEKU - (Defendant)

DATE:  30 TH MAY, 2019
SUIT NO:  GJ/1054/2018
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  MR. ABDUL AZIZ MOHAMMED FOR THE PLAINTIFF
NO REPRESENTATION FOR THE DEFENDANT
JUDGMENT

 

i. Introduction:

[1] The Plaintiff, Humphrey Chika Emmanuel, is a businessman and a tenant of the Defendant Walter Deku who is the owner of property, known and called No. 19 Konkonte Street located at Kokomlemle in Accra. The Plaintiff contends that he has rented a shop in the frontage of the house and an office space in the main building for over five years. According to him the Defendant in February 2017 offered the entire property to him for a lease because of a threat by the Accra Metropolitan Authority (AMA) to him to renovate the house or have it sealed by the AMA. The Plaintiff says he accepted the offer and a leasehold agreement was executed between them for a term of fifteen years. The Plaintiff further contends that he thereafter started the renovation of the house but same is stalled because to his utter surprise contrary to the assurance given to him by the Defendant the tenants in the house refused to vacate the premises because the Defendant has renewed the tenancies of some of them and also given fresh tenancies to others.

 

[2] The issues for my resolution in this case are: whether the Defendant signed the leasehold agreement and if yes whether or not the Defendant granted to the Plaintiff vacant possession and if not whether the Plaintiff is entitled to the reliefs endorsed on the writ of summons.

 

[3] Having failed to grant him vacant possession and/or pay back the money received for the property the Plaintiff says commenced this action for:

“(a) Declaration that the Defendant has breached the agreement reached on the 15th March 2017 between him and the Plaintiff.

(b) Recovery of specific damages of GH¢3,100.00

(c) Recovery of the sum of Seventy-Five Thousand Ghana Cedis (GH¢75,000.00) being the sum the Defendant has collected from the Plaintiff as consideration for the lease the Defendant has granted the Plaintiff.

(d) Interest on the Seventy-Five Thousand Ghana Cedis (GH¢75,000.00) at the prevailing commercial rate with effect from 15th March 2017 to date of final payment.

(e) Damages for breach of contract.

(f) Costs inclusive of Lawyer’s fees”.

 

[4] On August 10, 2018 this Court differently constituted entered judgment in favour of the Plaintiff. The record of the Court presided over by Daniel Mensah J provides as follows:

BY COURT:

Judgment is entered in favour of the Plaintiff/Applicant for the reliefs claimed.

In view of reliefs A, B and E, I am minded to adjourn the case to 4/9/2018 for hearing. Hearing Notice to be served on the Defendant to appear. Cost of GH¢1,000.00 in favour of Plaintiff”.

 

[5] Counsel for the Plaintiff on August 14, 2018 filed a Notice of Entry of Interlocutory Judgment and for Plaintiff to proceed to testify for assessment of damages. The witness statement of the Plaintiff with attached exhibits was also filed together with the notice and same was served on the Defendant. The record shows that on September 3, 2018 Asante-Acquah & Co, Legal Practitioners & Consultants wrote a letter to the Court to say they had been instructed by the Defendant and filed a Notice of Appointment of Solicitor. They also sought an adjournment to October 10, 2018 but the matter was adjourned to October 15, 2018.

 

[6] When the suit came before me first on October 15, 2018 the Defendant was present and the Court ordered him to file any documents he intended to rely on to answer the Plaintiff’s claim and to cross-examine the Plaintiff. A certain Eric Akwa, Esq. later appeared in Court after the matter had been adjourned to November 6, 2018. On November 6, 2018 the Defendant and Counsel were not in Court when the matter was called. The suit was adjourned to November 28, 2018. The Plaintiff was ordered to serve a copy of the witness statement filed and prove service of same.

 

[7] On November 28, 2018 again the Defendant failed to attend Court when the matter was called despite the service of a hearing notice on him. Pursuant to the provisions of Order 36 Rule 2 (a) of CI 47, I proceeded to hear the evidence of the Plaintiff. The matter was adjourned to December 11, 2018 after the filed witness statement was adopted as the evidence in chief to enable the Defendant attend Court to cross-examine the witness and thus was given the opportunity to answer the Defendant’s claim. From the record on December 11, 2018 Archie Danso & Associates, Legal Practitioners and Notories sent a letter to the Court that they had just been engaged and prayed the Court to adjourn the matter to a date in January 2019. Though not satisfied, the Court agreed to adjourn the matter to December 20, 2018 which was another date the Court previously set because the Court took the position that the January 2019 date requested was unreasonable.

 

[8] The record further shows that on December 20, 2018 Archie Martin Danso (Jnr) filed a ‘Notice of Change of Lawyers’ for the Defendant and also filed a “Motion on Notice for an Order to Set Aside Interlocutory Judgment dated 10/08/18 and for Leave to file a Statement of Defence out of time and defend the suit herein”. The motion was scheduled for January 7, 2019 but that date was not convenient and therefore the Court on December 20, 2018 adjourned the suit to January 23, 2019. The Plaintiff filed an affidavit in opposition to the motion on January 11, 2019 and same was served on the Counsel for the Defendant. On January 23, 2019 Mr. Julius Asinyo holding the brief of Mr. Archie Danso withdrew the application filed to set aside the interlocutory judgment. The matter was then adjourned to February 19, 2019 for the cross-examination of the Plaintiff. On February 19, 2019 again the Defendant and Counsel were not in Court when the suit was called. The Court took the position that the Defendant was not interested to cross-examine the Plaintiff and therefore discharged him and adjourned the suit for judgment because the Plaintiff indicated that he did not intend to call any other witness.

 

The Plaintiff’s Evidence:

[9] The Plaintiff’s evidence is that the Defendant leased the property No. 19, Konkonte Street located at Kokomlemele in Accra to him for 15 years. According to him he had already been a tenant of the Defendant for five years but the reason the Defendant gave for the lease was that the Accra Metropolitan Assembly (AMA) had threatened to seal the property “if the Defendant did not take immediate steps to renovate the property which the AMA had observed was in a very dilapidated state. Further due to his limited physical ability as a result of obesity and lifestyle illnesses he could not manage the property on his own”. The Plaintiff tendered Exhibits “A1 to A4” being notices from the AMA and photographs of the alleged building with writings on the walls.

 

[10] The Plaintiff’s further evidence was that after negotiations with the Defendant he accepted the Defendant’s offer and they signed a leasehold agreement for a term of 15 years. The agreed rent according to the Plaintiff was GH¢15,000.00 per year for a period of 15 years with the total rent being GH¢225,000.00. It is the further case of the Plaintiff that they also agreed that “I shall make payment of GH¢75,000.00 to the Defendant as rent for the 1st five years, which five years term shall commence in March 2017. That after the 1st five years I shall pay to the Defendant the remaining difference of GH¢150,000.00 in 2 installments of GH¢75,000.00 for the 2nd and 3rd terms of 5 years each respectively”. The Plaintiff tendered as Exhibit “B” a copy of the lease.

 

[11] The Plaintiff’s further testimony is that he paid by installment the sum of GH¢75,000.00 to the Defendant to cover the rent for the first 5 years and same was acknowledged and receipted by the Defendant. He tendered as Exhibit “C1 to C5” being receipts issued to him after the payments were made. Mr. Chika Emmanuel further testified that during the negotiations for the lease he enquired from the Defendant about “the fate of the other occupants of the property and the Defendant told me that all of them, except one tenant, were squatters against whom he, the Defendant, had already commenced an action at the rent control to eject them”. According to the Plaintiff he was also told by the Defendant that “he would also settle the only legitimate tenant in the house to vacate the property before the tenant’s term was due in order to yield vacant possession of the property to me”.

 

[12] The Plaintiff further testified that after the execution of the lease agreement the Defendant instructed him to begin the renovation of the property from the outside and he did. According to him the Defendant informed him that he had started the ejection of the squatters in the property. A copy of the letter advising him to begin with the renovation was tendered as Exhibit “D”. The Plaintiff further testified that he also served notice to the occupants to vacate the property. A copy of the said letter was tendered as Exhibit “E”.

 

[13] The Plaintiff further tendered in support of his evidence, the following exhibits:

i) Exhibit F – a sheet of paper titled “Receipt – Leased House Renovation Expenses”;

ii) Exhibit G – Form 33 Rent Control Summons Document;

iii) Exhibits H – Letter from Defendant’s Solicitor to the Rent Control Officer;

iv) Exhibits J – Letter from the Assistant Commissioner of Police, Kaneshie Division to the Rent Control Department

v) Exhibit K – Reference to Rent Magistrate and Proceedings and the Rent Control Officer’s recommendations; and

vi) Exhibit L – copy of a written document titled “Borrowing Money” by which the Plaintiff claims he borrowed an amount of GH¢10,000 from one Mr. Ifeanyi Enwelu.

 

[14] The Plaintiff contends that the Defendant failed to give him vacant possession of the property despite making the initial payment agreed to. The exhibits tendered show the various steps taken to ensure that the Defendant ejected the occupants of the property and the complaint of defrauding by false pretences lodged by the Plaintiff against the Defendant with the Ghana Police Service all in an attempt to have vacant possession of the property. According to the Plaintiff the Defendant failed to hand over the property for which they executed the leasehold for to him and also failed to refund the money paid to him. Consequently, the Plaintiff prayed the Court to grant the reliefs endorsed on the writ of summons and to compel the Defendant to refund the money paid to him.

 

The Court’s Analysis & Opinion:

[15] It is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; see sections 10 – 17 of our Evidence Decree 1976 (NRCD 323). There is no paucity of case law interpreting these provisions. In ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. Reference is also made to the cases of TAKORADI FLOUR MILLS v SAMIR FARIS [2005-06] SCGLR 882 and RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided.

 

[16] As indicated above, when the matter came before me for the Plaintiff to prove his case further to the grant of the default judgment, the Defendant failed to file any defence and/or to participate in the matter despite the numerous hearing notices served on him. Notwithstanding the absence of the Defendant in court, I have subjected the Plaintiff’s evidence to the prescribed standard provided by the provisions of the Evidence Act 1975 NRCD 323 in particular Sections 10 – 14 of the Act in order to establish whether or not the Plaintiff has discharged his burden of proof.

 

[17] On the whole, from the available evidence, I am of the view that the Plaintiff was credible and I have no reason to doubt his evidence as clearly demonstrated by the documentary evidence tendered as Exhibits even though I am of the view that some of the documents tendered are self-serving and I will comment on those later. Generally though, I find the Plaintiffs’ case is made out on the balance of probabilities. The Plaintiff sued the Defendants for the reliefs endorsed on the writ. The Defendants even though served failed to enter appearance and to file a defence to contest the suit.

 

[18] It is significant to observe that the Plaintiff tendered Exhibit ‘B’ which is the leasehold agreement signed on 15th March, 2017 between MR. WALTER DEKU AND ANTHONY K. DEKU JNR as Lessors AND MR. EMMANUEL CHIKA HUMPHERY of Accra. I have critically examined the document and it appears to me that the Clause 1 truly represents the evidence given by the Plaintiff under oath in terms of the duration of the lease and the consideration agreed to and the timelines for the payment. To that extent, I have no doubt in my mind that the Plaintiff’s evidence is acceptable in the absence of any contrary evidence. It is my holding that the parties executed a lease and based on the terms and the payment of the money agreed to the Defendant should have ensured that the Plaintiff has vacant possession of the property.

 

[19] What does it mean to be granted vacant 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…”

 

[20] Applying the principle above to the case at bar, it is clear that the Defendant failed to put the Plaintiff in possession when to his knowledge the other occupants of the property whom he described as squatters were still in occupation of the land after he had received the amount of GH¢75,000.00 and also requested the Plaintiff to start the renovation of the property – see Exhibits “C Series” and “D”.

 

[21] Based on the evidence and in particular, Exhibits B, the written contract between the Plaintiff and the Defendant which crystalized their agreement, Exhibit “C” – the receipts issued and Exhibit “D”, the letter which authorize the Plaintiff to start the renovation it cannot be contested by the Defendant that he executed the lease agreement with the Plaintiff and received the amount of GH¢75,000.00 from him to confirm same. To that extent, it is my holding that the parties had a 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.

 

[22] 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”

 

[23] According to G.H. Treitel, The Law of Contract 11th Edition ‘a breach of contract is committed when a party without lawful excuse fails to perform what is due from him under the contract, or perform defectively or incapacitates himself from performing’. Based on the evidence it is my finding that the Defendant breached the agreement dated March 15, 2017. The Plaintiff is therefore entitled to the relief “A” endorsed on the writ of summons.

 

[24] Also, based on the evidence heard and my analysis above I hereby enter judgment in favour of the Plaintiff for the reliefs (C) and (D) endorsed on the Writ of Summons. The Plaintiff is entitled to recover from the Defendant the amount of GH¢75,000.00 which he paid out to the Defendant. The Plaintiff is also entitled to interest on the amount of GH¢75,000.00. 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.

 

[25] In UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES SUPRA the Supreme Court speaking on whether a land purchaser was entitled to interest on the money paid 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”.

 

[26] 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 a nominal amount of GH¢5,000 for the breach of contract.

 

[27] Now, is the Plaintiff entitled to “specific damages of GH¢3,100.00? My understanding and appreciation of the law lead me to hold that he is not. To begin with, special damages is distinct from general damages. It is the requirement of the law that special damages ought to be pleaded and particularized and then proved by admissible evidence otherwise it could not be recovered. See CHAHIN & SONS v. EPOPO PRINTING PRESS [1963] 1 GLR 163 SC, where the Supreme Court held that “Where special damages are claimed it is not enough for the plaintiffs to write down the particulars, they have to prove them”. See also KUBI v DALI (1984-86) 2 GLR 501 where the Court of Appeal stated and affirmed the law that “special damages in the sense of a monetary loss which the Plaintiff had sustained up to the date of the trial must be pleaded and particularised and then proved by admissible evidence otherwise it could not be recovered”

 

[28] In the instant case the Plaintiff’s claim for the special damages of GH¢3,100.00 is according to the Plaintiff the cost of renovation of the property he undertook. In proving it the Plaintiff tendered Exhibit “F” which is titled “Receipt” with a list of items supposedly purchased by the Plaintiff. The list include 20 bags of cement, 10 buckets of paint, sand, 150 blocks and payments made to some workmen like a Painter etc. I have difficulty accepting the list stated and enumerated on Exhibit “F” as evidence to prove the renovation. To my mind stating the purported cost without any persuasive or cogent evidence by way of receipts of purchase of the blocks and cement for instance is unacceptable. To my mind the probative value of Exhibit “F” as a document which this Court should accept as relevant and reliable is lacking because anybody at all can make such a list. It is therefore my holding that the Plaintiff is not entitled to recover the amount of GH¢3,100.00 from the Defendant. Finally, I also wish to say that in my consideration of this case I have placed no weight on Exhibit “L” which is titled ‘Borrowing Money’. This is because it has no legal relevance to the issue before me and it is very self-serving.

 

[29] Further, taking into consideration the conduct of the Defendant who failed to attend Court despite the service of the numerous hearing notices served and relying on the authority of the factors under Order 74 of C.I. 47 and the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262 I shall award the Plaintiff cost GH¢10,000. 00.

 

 

Accordingly ordered

 

 

 

 

 

[1] 2011 Printed by Frontiers Printing & Publishing Ltd