IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
ACCRA- A.D 2019
DORA SARPONG - (Plaintiff)
COMMERCIAL INVESTMENT LTD - (Defendant)
DATE: 17 TH MAY, 2018
SUIT NO: CM/TOCC/002/2017
JUDGES: DOREEN G. BOAKYE-AGYEI (MRS.) JUSTICE OF THE HIGH COURT
The Plaintiff sued the Defendant for the following Reliefs as endorsed on her Writ of Summons on 12th May, 2015.
The Plaintiff’s Claim is for:
a) Refund of all her payments which stand at US$6,516.00
b) Interest on US$6, 516, 00 from August 1, 2007 to date of Judgment and thereafter interest on total Judgment debt from date of Judgment to date of final payment.
c) Damages for breach of contract.
At the failure of the parties to settle the matter at Pre-trial, the Pre- trial Judge set down the following issues as the issues for trial:
i. Whether or not Plaintiff and Defendant executed an agreement in or about October, 2006 in respect of a house ownership scheme being offered by Defendant Company.
ii. Whether or not as part of the agreement Plaintiff paid a commitment fee the equivalent of US$1,526.00 towards the four (4) bedroom house.
iii. Whether or not in line with the terms of the agreement Plaintiff made further monthly payments bringing her total payment of the equivalent of US$6,516.00 for the period up to December, 2007.
iv. Whether or not Defendant Company has allocated a plot to Plaintiff and the construction of her building has reached the foundation level.
v. Whether or not the delivery of Plaintiff’s house as per the agreement between the Parties was contingent on the Defendant Company raising a loan from a third party.
vi. Whether or not Plaintiff’s claim is statute barred.
vii. Whether or not Plaintiff is entitled to her claims as per the Writ of Summons.
Because Defendant had raised the issue of the matter being statute- barred and also issues to do with capacity when the matter was referred for trial, this Court directed on 11th October, 2017 that the Counsels were to file Written Submissions for the Court to determine same. Defendant Counsel was to file their submissions first and serve Plaintiff Counsel to enable a response and thereafter a Ruling. Defendant Counsel did not comply with that directive to enable his friend respond thus the Court made further directions for hearing. The matter was heard and Counsels were to file addresses and it is in the addresses by Defendant Counsel that he devoted same solely to the issue of the action being statute-barred.
According to Counsel for Defendant, the ambit of this suit, in terms of the critical issues for determination, is very narrow. In his opinion, from the pleadings and evidence the only issue is whether the claim is stature-barred and must be dismissed. The Plaintiff’s claim is for recovery of $6,516 and interest on this amount from 1st August, 2007 to the date of payment. The debt, from the pleadings and evidence of the Plaintiff, arose from the failure of the Defendant to perform, as agreed in Exhibit C, a contract for the building of a residential house for the Plaintiff. The Plaintiff’s evidence is that she paid the agreed two percent (2%) deposit of $1,526 on the cost of the building and the required 24 monthly instalments of $311,50 each month upon which payment she was entitled to be put in possession of the building to be constructed. The instalments were paid by bulk payments of $3,111 and $1,782 which covered the payments up to part of January, 2008.
The Defendant, an estate development company, does not deny the pleadings and evidence as stated above. Although the evidence shows that the Defendant Company did not execute Exhibit C it does not dispute that it received the payments pursuant to the agreement in that Exhibit. Its Chief Executive Officer admitted this in his evidence. The Defendant explains its failure to perform the contract by the fact that it was unable to raise the additional amount it required to construct the building as the amount paid by the Plaintiff was not sufficient to complete the building, which was valued at $76,300
The Plaintiff’s further pleading and evidence is that the Defendant defaulted in its obligation to build for the Plaintiff. By June, 2008 i.e. two years after her first payment on the contract dated 12th October, 2006, (Exhibit C) the Plaintiff had not even allocated to her the land on which the building would be constructed. The Plaintiff was required under the contract to continue paying for the cost of the building over a period of 20 years. It is obvious that she stopped the payments in view of the Defendant’s default. The Plaintiff confirmed in cross-examination that the Defendant’s default in giving her possession of the building to be constructed occurred in October, 2008. The breach was thus very apparent to the Plaintiff early.
From the foregoing, Defendant submitted that the Plaintiff’s cause of action to claim the refund of the amount she paid accrued not later than 31st October, 2008. The Writ in this Suit was issued on 12th May 2015. This is more than six years after the accrual of the cause of action. They contend further that on the evidence, the Plaintiff’s cause of action extinguished on 30th September, 2014, six years after it first accrued. Counsel for Defendant referred the Court to section 4(1) (b) of the Limitations Act 1972, NRCD 54 which states as follows:-
“4 Actions barred after six years
(1) A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of (b) an action founded on simple contract.”
As stated in sections 10, 11, 14 and 17 of the Evidence Act, 1975, NRCD 323, it behoves on the Plaintiff to lead credible evidence to prove the allegations if he is to succeed on his claim. Indeed, in Odudzeto Ablakwa (No. 2) vs. Attorney General & Another (2012) 2 SCGLR 845 at 865 the Court explained the law governing proof when it stated that:
“If a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence...”
Further to the above, the Court had in Ackah vs. Pergah Transport Ltd (2010) SCGLR 728 re-stated the principle that: “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and (11(2) and (4) of the Evidence Act, 1975 (NRCD 323).”
Where there is a provision of an Act of Parliament the Courts have a duty to enforce it. Indeed, being an Act of Parliament, no Court has the power to excuse the Plaintiff from its observance as was held in the case of Republic vs. High Court, Kumasi; Ex parte Khoury (1991) 2 GLR 393 at 399 that “this Court has a duty to enforce the statutes of the land”. See also Republic vs. High Court (Fast Track Division) Accra; Ex Parte National Lottery Authority (2009) SCGLR 390 at 398 where Atuguba JSC pointed out that “The Courts have consistently insisted that it is their duty to observe and enforce the statutes of the land”
In this case, Defendant in his evidence per his Witness Statement avers that at the date of agreement Plaintiff understood that money needed to be raised from sources other than her contribution to enable them deliver the building within the agreed period because the amount Plaintiff was required to pay within the 24 months was not sufficient to complete the building. He continues that although they were able to build and deliver houses due for other contributors, they were unable to raise the funds to do the Plaintiff’s property and they are still financially constrained. In the opinion of this Court, implicit in that testimony is an admission of the continued liability, never extinguished that Defendant owed to Plaintiff to deliver her property to her at a date when they had raised sufficient funds from whatever other sources they claim an understanding was on, same as they did for their other clients. To say that Defendant is still financially constrained suggest that when that constraint is lifted Defendant would do what was right. Any other interpretation would suggest that Defendant was engaged in a scheme to take money from the public such as the Plaintiff on the pretext of building for them which after the upfront payments, they would be able to pay off the building over a number of years.
Plaintiff’s testimony is also that delivery of her house as per the agreement she entered into with the Defendant is not contingent on the Defendant raising funds from Global Green Bull Ltd or any other source. Clearly, in the opinion of the Court, the minds of the parties was not ad idem on an understanding being either expressly or impliedly reached that additional funds would be sourced from a 3rd Party outside of Plaintiff and Defendant for the property to be built, completed and delivered to Plaintiff who would then finish paying off same over a number of years.
The Limitations Act 1972, N.R.C.D 54, section 6 is very instructive. 6(1) Sections 2 to 5 do not apply to a claim for specific performance of a contract or for an injunction or any other equitable relief. 6(2) Subsection (1) does not prevent a Court from applying by analogy a provision of sections 2 to 5 in proceedings where in the opinion of the Court the interest of justice so requires.
Unjust enrichment is when a person unfairly gets a benefit by chance, mistake or another's misfortune for which the one enriched has not paid or worked and morally and ethically should not keep. A person who has been unjustly enriched at the expense of another must legally return the unfairly kept money or benefits. The Merriam- Webster legal dictionary defines unjust enrichment as the retaining of a benefit (as money) conferred by another when principles of equity and justice call for restitution to the other party; also: the retaining of property acquired especially by fraud from another in circumstances that demand the judicial imposition of a constructive trust on behalf of those who in equity ought to receive it. The other meaning is that it is a doctrine that requires an equitable remedy on behalf of one who has been injured by the unjust enrichment of another.
Our Courts sitting as Courts of Equity have said that “Indeed a Court of conscience will never allow a man to profit by his own fraud.” See Mahama vs. Soli (1977) 1 GLR 215 @360. The Courts have always said that it will not assist any party to unjustly enrich himself. In Atta vs. Adu (1987-88) 1 GLR 233, the Court stated firmly at page 241 that “a Court of Equity abhors such unjust enrichment”. In Addai vs. Pioneer Tobacco Co. Ltd (1989-90) 1 GLR 526, the Court pointed out at page 532 that “In the Court of Equity, the line is drawn between honest risk taking with its commensurate rewards, and the overreaching that amounts only to unjust enrichment” And in Nartey-Tokoli vs. Volta Aluminium Co. Ltd (No.3) (1989- 2 GLR 513, the Court stated at page 518 that “it is a basic requirement for all Courts which practice equity, to deny unjust enrichment to all suitors. No Court should allow unmerited largesse to the detriment of an innocent party.” It has also been held in Quagraine vs. Adams (1981) GLR 599 @ 610 that “whenever a Defendant was unjustifiably enriched at the expense of a Plaintiff, the Plaintiff could compel his ill-gotten gains out of him on the principle of unjust enrichment”. No man should be permitted to take advantage of his own wrong. See Ndoley vs. Iddrisu (1979) GLR 559 @ 565.
Having reviewed statutory provision and case law, the Defense put up by Defendant per his Lawyer of the matter being Statute Barred is firmly rejected by the Court. The Defendant has admitted receiving the money and not having performed what he took the money for. It therefore lies ill in his mouth for him to hope to have received the money, not done what he was to do and be allowed to keep same on a technicality. In any case, the Limitations Act allows the Court to do justice in situations such as this.
The Court will accordingly resolve all the issues in favour of Plaintiff as the Defendant has admitted everything. The Court enters judgment for Plaintiff on all her reliefs claimed and orders the Defendant to refund all her payments made which stand at US$6,516.00 with interest on the US$6, 516, 00 from August 1, 2007 to date of final payment. Damages for breach of contract will be fixed at Ghc5000. Cost of Ghc10, 000 for Plaintiff against Defendant.