IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (3)
KUMASI - A.D 2018
GHANA COTTON CO. LTD - (Plaintiff)
K. N. INDUSTRIAL COMPLEX INC AND NANA BAFFOUR KYEI A. K. A - (Defendants)
DATE: 6TH JUNE, 2018
SUIT NO: IRL/68/2015
JUDGES: FRANCIS OBIRI (HIGH COURT JUDGE)
AMOFA AGYEMANG FOR PLAINTIFF
NKANSAH-NINWIE FOR DEFENDANTS
On 27th March 2015, the plaintiff issued writ of summons against the defendants claiming the following reliefs:
a) A declaration that, the purported assignment of property numbers plots 1 and 2 Atimpogya, Kumasi to the defendants has failed and same is of no effect.
b) A declaration that, the plaintiff is still the lawful owner of the said leasehold interest in the said property.
c) A declaration that, the continuous occupation of the property by the defendants even after notice to vacate or quit amount to trespass to the plaintiff property.
d) A declaration that, any contract executed between the parties in respect of the property is null and void and of no effect and a further order for cancellation of any documents of transfer or assignment executed between the parties in respect of the property.
e) General damages for fraud.
f) General damages for breach of contract.
g) An order for recovery of possession of property plot nos. 1 and 2 Atimpogya, Kumasi from the defendants Costs
h) Any order relief.
The defendants entered appearance and filed their statement of defence. They also counter-claimed for the following reliefs.
a) A declaration that, the assignment of property nos. 1 and 2 Atimpogya, Kumasi to the 1st defendant is valid and binding.
b) A declaration that, by virtue of the assignment of property nos. 1 and 2 Atimpogya, Kumasi, the 1st defendant is the lawful owner of same.
c) Further or other reliefs.
d) At the close of pleadings, the following issues were set down for trial:
e) Whether or not the plaintiff Company is in existence
f) Whether or not the suit is statute barred.
g) Whether or not the defendants were justified in not honouring their promise to pay for the property.
h) Whether or not the consideration for assignment of the disputed property has failed.
i) Whether or not the defendants deceived the plaintiff into executing the Deed of Assignment of the property and whether the Deed of Assignment is valid and binding on the parties.
j) Whether or not the plaintiff is the lawful owner of the property.
k) Whether or not the plaintiff is entitled to recover the property from the defendants.
l) Whether or not the defendants have perpetrated fraud on the plaintiff.
m) Whether or not the plaintiff is entitled to the reliefs it seeks
n) Whether or not the defendants are entitled to their counter-claim.
o) Whether or not the plaintiff as a non-existent legal entity under the Companies Code 1963, Act 179 has the capacity to bring this action.
p) Whether or not this present action is statute barred by the Limitation Decree, (sic) 1972, (NRCD 54)
q) Any other relevant issues raised by the pleadings.
At the conclusion of the case, counsel for both parties filed their respective addresses. Counsel for plaintiff prayed that, the plaintiff action should succeed and the defendants counterclaim dismissed for the following reasons;
First, the defendants made false representations for the purchase of the property in dispute. According to counsel, this induced the plaintiff to allow them to go into possession of the property. In the view of the plaintiff counsel, those misrepresentations made by the defendants can also be inferred from the various letters and statements made by them to the plaintiff. Counsel added that, the plaintiff acted on the said misrepresentations which induced her to consent to the assignment of the property to the defendants.
However, the plaintiff later discovered the falsity in the representations after the defendants have taken over the property. Secondly, when the plaintiff discovered that the defendants representations were untrue, the plaintiff by a letter dated 2001 repudiated the contract since the purchase price was not paid. Therefore, the property should be recovered for the plaintiff. Thirdly, since the defendants did not pay the purchase price of the property, the property was not transferred to the defendants in legal sense. Again, the plaintiff Company is in existence as a legal entity as per the search result from the Registrar General Department. Therefore, the plaintiff has capacity to sue. Counsel added that, the search result is from the Registrar General Department, which is a Government agency and therefore deemed to be authentic.
The Plaintiff counsel submitted that, the plaintiff action is not caught by the Limitation Act, 1972 (NRCD 54). Counsel submitted that, from the exhibits tendered in the case especially exhibits S, T and U, it can be established or concluded that the defendants were not in adverse possession for more than 12 years whereby the plaintiff action would have been caught by Statute of limitation. Counsel added further that, the defendants perpetrated fraud on the plaintiff in respect of the acquisition of the land and therefore no legal title can pass to the defendants. for the plaintiff stated that, the denial by the defendants of the letters written and signed by the 2nd defendant on behalf of the defendants in cross-examination show that, the intention of the defendants was to perpetrate fraud on the plaintiff. Counsel argued that, the defendants perpetrated fraud on the plaintiff by misleading her to consent to assign the property when the defendants knew they have not paid the purchase price. Plaintiff counsel further submitted that, the defendants could not prove that, they paid for the land.
He added that, when the defendants’ assertion was denied, they did not go further to lead other evidence to corroborate it. It is therefore the view of the plaintiff counsel that, the defendants could not prove that, they paid the purchase price after the purported assignment was made. In the view of the plaintiffs’ counsel, the defendants made various promises as to the payment of the money but none of them materialised. He submitted that, the defendants issued Canadian Dollar cheque of $400,000 but same was dishonoured. The second defendant also promised to go to the Czech Republic to pick up a bank draft but that also proved to be false. The plaintiff’s counsel contended that, if the defendants paid the purchase price in June 2000 before the assignment was made, then they would not have been given assurances to pay for the property subsequently. Counsel concluded that, the plaintiff relief should be upheld and the defendants counterclaim dismissed. The defendants counsel on his part prayed that, the plaintiff claim be dismissed and the defendants counter-claim upheld for the following reasons.
First, assignments are prepared only after full payments have been made in respect of contracts. Counsel therefore contended that, in this case, the defendants made full payment of the purchase price of the property. That was why the plaintiff prepared and consented to the assignment of the property in the name of the defendants. In the view of the defendants counsel, this is confirmed in paragraphs 4 and 5 of the deed of assignment which was tendered as exhibits L1 and 4. According to the defendants counsel, the defendants paid the purchase price for which the plaintiff acknowledged in exhibit L2 and L4. Counsel therefore submitted that, the deed of assignment shows that the defendants paid the purchase price. Secondly, counsel added that, a search at the Lands Commission shows that, the defendants are the owners of the land. According to the defendants counsel, if the property has not been transferred to the defendants, the plaintiff would not have waited all these years before bringing this action. Thirdly, the defendants counsel submitted that, the parties entered into a valid contract and the court must give effect to the contents of the contract. Again, the defendants counsel argued that, the plaintiff by the sale of the property to the defendants has transferred all her interest to them. Furthermore, as of the time the plaintiff Company initiated this action, it was not in existence. Therefore, the plaintiff has no capacity to sue in this case. The defendants counsel argued again that, the plaintiff action is statute barred. In the view of the defendants counsel, the defendants were in possession for more than 12 years before the plaintiff initiated the action. Therefore, the defendants have obtained possessory title to the land which prevails over a registered title to a land. Counsel therefore submitted that, the plaintiff’s action is caught by statute of limitation and by her conduct is barred by law to bring the present action.
Counsel concluded that, the plaintiff action should be dismissed and the defendants counterclaim upheld.
Before I come to the determination of the issues, I wish to summarize the evidence of both parties. The plaintiff testified through a representative and called one witness. The defendants testified through the 2nd defendant but did not call any witness. The plaintiff representative Thomas Azong testified as follows: He lives at Lashibi Tema and is a Senior Accountant with Ghana Cotton Company Ltd. He maintained that, the plaintiff Company is in existence. According to him, the plaintiff is the owner of a warehouse located on plots Numbers 1 and 2 Kumasi-Atimpogya, Light Industrial Area, Kumasi. In the year 2000, the defendants applied to the plaintiff to buy the property. There were correspondences between them as to the price the defendants were to pay for the property. They agreed on ₵1,200,000.000.00 (or Gh₵120,000.00) which was to be paid in two equal installments.
He continued that, there was further correspondence that the money was to be paid in Bankers draft. He stated that, the defendants’ requested that, their foreign partners wanted the deed of assignment to be executed before the payment would be made. The plaintiff agreed and applied to the Lands Commission for consent to assign the property into the name of the defendants so that, their foreign partners will be convinced and pay the agreed price. The plaintiff representative continued that, in October 2000, the defendants indicated to the plaintiff through a fax message that, their foreign partners have prepared a bankers draft of US$270,000 which was equivalent to the purchase price to be paid within 72 hours but same was not paid. He said the defendants later brought a Canadian Dollar cheque of 400,000 but same was also dishonoured. The defendants also issued SSB Bank Ltd cheques which were also dishonoured. He said in November 2000, the second defendant informed the plaintiff that, he was travelling to the Czech Republic to pick a Bankers draft of US$270,000 which was the purchase price but it also proved futile. The plaintiff representative stated that, because of the failure of the defendants to pay the purchase price, the plaintiff instructed her consultant to write to the defendants to cancel the contract in March 2001. After the termination of the contract, the defendants wrote to the plaintiff in 2008 that they should discuss the payment for the property.
The plaintiff agreed but on the scheduled date, the 2nd defendant failed to attend. He stated that, in 2009, the plaintiff caused her lawyer to write to the Lands Commission to cancel the consent to assign the property to the defendants. He stated further that, in 2010, the plaintiff again caused his lawyers to write to the defendants to quit from the land. The defendants caused their lawyers to reply that, the 2nd defendant was not in the country and on his return, they will settle the matter but that was done. According to the plaintiff representative, the defendants made fraudulent representation to the plaintiff in respect of the purchase of the property. And the plaintiff was induced to consent to the assignment when the defendants have not paid for the price of the land. The plaintiff representative led evidence on the particulars of the fraud. He concluded his evidence that, the defendants failed to pay for the land and therefore, the plaintiff is entitled to the reliefs claimed. He was cross-examined by the defendants counsel. He denied in cross-examination that, the property belongs to the defendants. He also denied that, the purchase price has been paid by the defendants. He further insisted that, the defendants gave a cheque for the payment but same was dishonoured. This was not disputed by the defendants counsel. He again insisted that the plaintiff Company is in existence. PW1 was Professor Kassim Kasanga.
He testified as follows. He is a retired lecturer at Kwame Nkrumah University of Science and Technology and a Consultant with R. Kassim Kasanga and Associates. He knows the parties. He said his firm acted as consultant for plaintiff in this case over the property. He confirmed the various correspondences that went on between the parties in respect of the agreement for the sale of the property in dispute. He added that, in the course of the transaction, the defendants were made aware that, the transaction would be completed only upon payment of the purchase price to the plaintiff. He stated that, the defendants did not pay the price of the plots after they have misled the plaintiff to consent to the assignment into their name. He stated further that, since the defendants did not pay for the land, the plaintiff instructed his firm to write to terminate the contract in 2001. He concluded his evidence that, all the promises the defendants made for the payment of the purchase price did not materialised.
He was cross examined. In cross-examination, he denied that, the defendants paid for the land. He also insisted that, the defendants were to pay the money into the plaintiff accounts through a telegraphic accounts but same was not done. PW1 further insisted that, the agreement was abrogated in 2001. He again insisted that, the plaintiff Company is in existence. When the defendants took their turn in evidence, the 2nd defendant testified for himself and on behalf of the 1st defendant as follows. He is a Director of the 1st defendant Company. He knows the plaintiff Company but added that, it has ceased to exist under the laws of Ghana and therefore has no capacity to sue them. He told the court he knows the plots in dispute. He stated that, originally, the plots used to belong to the plaintiff but in the year 2000, he negotiated on behalf of the first defendant for the purchase of the plots. They agreed on a purchase price of ₵1,200,000.00 (Gh₵120,000.00). After the agreement, he consulted his foreign partners who paid the purchase price of the plots to the plaintiff. He stated that, the defendants later moved into possession after the property has been assigned to them.
He continued that, the defendants have since been in possession of the plots and have developed same. He concluded his evidence that, the plaintiff action should be dismissed and the defendants counter-claim upheld. He was cross-examined by the plaintiff counsel. In cross-examination, the 1st defendant admitted that, he negotiated with PW1 to clear the land and start development to attract their investors. He also admitted in cross-examination that, the defendants decided to occupy the land before they would make payment to the plaintiffs. Having summarized the addresses and the evidence, I wish to proceed to analyse the merits of the case for both parties. I wish to discuss the evidential burden place on each party in this case. It is a basic principle in the law of evidence that, a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility, short of which his claim may fail. It is also trite 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 probable than its non-existence.
See: Section 11 (4) of NRCD 323
Ackah V Pergah Transport Ltd & Ors (2010) SCGLR 728 Gihoc Refrigeration & Household Products Ltd. V Hanna Assi (2005-2006) SCGLR 458.
The standard of proof of allegations in civil cases is proof by preponderance of probabilities. However, when crime is pleaded or raised, then the allegation sought to be proved must be proved beyond reasonable doubt.
See: Aryeh & Akakpo V Ayaa Iddrisu (2010) SCGLR 891
Again, it is the party who alleges who must proof, which in most cases is the plaintiff. However, a different standard is used if the defendant counterclaims to the plaintiff’s action. Order 12 rule (1) of CI 47 says “A defendant who alleges that he has a claim or is entitled to a relief or remedy against the plaintiff in an action in respect of any matter, whenever and however arising, may instead of bringing a separate action make a counter-claim in respect of that matter”. Therefore, a counter-claimant is deemed to be the plaintiff in respect of the counter-claim.
The Supreme Court in the case of Gbedema V Awoonor Williams (1970) CC 12 discussed the nature of a counter-claim as follows: “a counter-claim is to all intends and purposes an action by the respondent against the applicant. It is an independent and separate action”.
The Court relied on the case of Winterfied V Bradnum 3 QBD 324 in which Bret L. J. said at page 326 as follows: “A counter-claim is sometimes a mere set off: sometimes it is in a nature of cross action; sometimes it is in respect of a wholly independent transaction. I think the true mode of considering the claim and counter-claim is that they are wholly independent suits which for convenience of procedure are continued in one action”. Lord Esher M. R. In Stumore V Campbell & Co. (1892) 1 QBD 314 at page 317 said “For all purposes except of execution, a claim and counter-claim are two independent actions”. Therefore, it is settled that a counter-claim is in law a separate and independent action which is tried together with the original claim of the plaintiff. This means that, if in the course of an action in which there is a counter-claim, the plaintiff action is struck out, dismissed, discontinued or stayed, the defendant can proceed to prosecute his counter-claim.
See: Fosuhene V Atta Wusu (2011) SCGLR 273
In Re Will of Bremansu Akonu-Baffoe & Ors V Buaku & Vandeyke (Substituted By) Bremansu (2012) 2 SCGLR 1 313.
It is therefore, the plaintiff who generally must prove his case on the preponderance of probabilities. However, where the defendant files a counter-claim, then the same burden of proof would be used in evaluating and assessing his case just as is used to evaluate or assess the case of the plaintiff against the defendant.
See: Yeboah V Ahele (2012) 44 GMJ 37 C. A. Again, in the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors V Kotey & Ors (2003-2004) SCGLR 420 it was held that, the burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages, of the trial depending on the issues asserted and denied. Coming back to the case before me, I wish to state that, both parties tendered various documents in the course of the trial which were admitted without objection. Again, during the application for directions, thirteen issues were set down for trial. However in my opinion, the case can be resolved by the determination of the following issues.
a) Whether or not the plaintiff Company is in existence and therefore has capacity to bring this action
b) Whether or not the plaintiff action is statute barred.
c) Whether or not the consideration for the assignment of the disputed property has failed.
d) Whether or not the defendant perpetrated fraud on the plaintiff
e) Whether or not the plaintiff is entitled to her claim.
f) Whether or not the defendants are entitled to their counter-claim.
Before addressing the issues, I wish to state that, the identity of the plots is not in dispute. It is also not in doubt that, before the whole transaction started, the plots in dispute belonged to the plaintiff. The 2nd defendant admitted same in paragraph 8 of his witness statement which was filed on 18th November 2016. First of all, I wish to address the issue of the plaintiff’s capacity to sue in this case. This is because, capacity is very fundamental in every case. It is trite that, capacity or locus standi goes to the root of every matter. A party cannot therefore succeed without proving that, he has capacity to sue. The law does not deal with busy bodies but people who have interest in a case.
See: Musama Disco Christo Church V Jehu Appiah (2010) 27 MLRG 56 CA This means that, if a party has no capacity to sue, his case must fail even if he has a cast iron case.
See: Yorkwa V Duah (1992-93) GBR 278 CA
Again, if a party has no capacity to sue in respect of his claim or counter-claim, then it means the party does not legally exist before the court. See: Kowus Motors V Check Point Gh. Ltd. (2009) SCGLR 230
The law is therefore settled that, the court itself can even raise the issue of capacity of a party in a case.
Secondly, if the conclusion of the court is that a party before it lacks capacity to institute an action, then the court cannot proceed to determine the merits of the case notwithstanding the evidence before it.
See: Stephen V Apoh (2010) 27 MLRG 12 CA
In this case, while the plaintiff contends that it has capacity to sue, the defendants contend otherwise. According to the defendants, the plaintiff Company has been liquidated and therefore does not exist. This was refuted by the plaintiff. The plaintiff in proof of her capacity tendered a search results from the Registrar General Department as exhibit “X” dated 30th May 2016. It has been signed by one Christain Nutakor an Assistant Records Officer for the Registrar General. It gave the names of the directors of the plaintiff Company as well as the secretary. It did not indicate that, the plaintiff company is not in existence. I have no reason to doubt the authenticity of exhibit “X” which is an official record. The law is that, official record in the custody of a Public Official is presumed to be genuine and authentic as well as admissible under section 126 of the Evidence Act, 1975 (NRCD 323). It means that, as of the time the plaintiff issued the writ, it was in existence and is still in existence as per exhibit “X”.
I therefore hold that, the plaintiff Company is in existence and therefore has capacity to sue. I will therefore resolve issue ‘a’ in favour of the plaintiff. The next issue I will consider is whether the plaintiff action is statute barred. The law is settled that, where an adverse possessor or a trespasser has been in an undisturbed possession of a land for a period of more than 12 years, to the knowledge of the true owner, he cannot be disposed by the person who claims to be the original or true owner of the land. The adverse possessor acquires possessory title which extinguishes the real owners’ rights and interest in the land. The adverse possessor’s right is backed by law which is section 10 (1) and (6) of the Limitation Act, 1972 (NRCD 54).
See: Benjamin Johnson V Fati Walliams (2012) 43 GMJ 154 CA
Memuna Moudy V Antwi (2003-2004) 2 SCGLR 967
Adjin V Musah Baako (2007-2008) SCGLR 686.
Adjetey Adjei V Nmai Boi (2013-2014) 2 SCGLR 1474
Klu V Konadu Apraku (2009) SCGLR 741
Gihoc Refrigeration & Household Products Ltd. V Hanna Assi (supra).
However, adverse possession must be open, visible, unchallenged and apparent so as to give notice to the legal owner that someone might be asserting a claim to the property which is adverse to his interest.
See: Abbey & Ors V Antwi (2010) SCGLR 17
In this case, the defendants contend that, they have been in possession to the knowledge of the plaintiff since the year 2000. However, the suit was instituted in 2015. Therefore, the plaintiff action is statute barred under NRCD 54. The plaintiff contends otherwise. I have gone through the documents filed in this case. The defendants went into possession in the year 2000 when the assignment was made to them. However, on the 12th of March 2001, the plaintiff wrote per exhibit “Z8” that, she had terminated the agreement on grounds of non-performance. Again, in 2008, the plaintiff wrote exhibit “T” in response to the defendant letter which is exhibit “S” in respect of the payment of the purchase price of the property. The plaintiff again wrote a letter in 2010 which is exhibit “V” asking the defendants to quit from the plots in dispute. This shows that, the plaintiff did not sleep on her right for over a period of 12 years. The law is settled that, a break in the claim of adverse possession at any time will halt the period of limitation, and the limitation period will restart when the adverse possessor returns..
See: section 10 (3) of NRCD 54. See also Land Law Practice and Conveyancing in Ghana; 2nd Edition by Dennis Dominic Adjei at page 179.
Clearly, from the year 2000 to 2008 or 2010 is not 12 years. And from the year 2010 to 2015 when the writ was issued is also not twelve years. Therefore, even if the defendants were in adverse possession from the years 2000 or 2001 as soon as exhibit “T” was written in the year 2008 by the plaintiff and same was replied to in 2008 by defendant per exhibit “S”, there was a break in the adverse possession if any. And it started again to the year 2010 when another break occurred by the quit notice. Therefore, the defendants counsel is with respect wrong when he submitted that the adverse possession is from 2000-2015. I will therefore resolve issue “b” in favour of the plaintiff. My view is that, the action is not statute barred.
This takes me to the main issue as to whether the purchase price was paid by the defendants. This appears to be the main issue in this case. The plaintiff contends that it was not paid. The defendants contend that it was paid by virtue of paragraphs 4 and 5 of exhibit 4 which is the deed of assignment. Paragraphs 4 and 5 of exhibit 4 which was executed on 29th June 2000 states that, the defendants have paid for the plots of land and the plaintiff has acknowledged receipt. On the face of the two paragraphs, they appear to mean that, the purchase price for the property was paid. However, second defendant wrote exhibit “H” on 24th June 2000 and stated that, “the (sic) requested that we should sign the deed in advance before his arrival in Ghana and we should deposited (sic) the deed/lease to our local banker SSB Bank Limited Kumasi where the draft will be paid”. The 2nd defendant also wrote and signed exhibit “P” on 17th November 2000 in his own handwriting and stated in part. “The embassy has confirmed that the bank draft of USS$ 270,000 dollars has been issued in Czech and I need to pick the draft personally in Czech for exchange of document with Ghana Cotton Company Limited”. Exhibit “P” was written on 17th November 2000 while exhibit ‘4’ was signed on 29th June 2000. The 2nd defendant again wrote exhibit “S” on 20th February 2008 and addressed same to the plaintiff company. He stated in part as follows “I spoke to Prof Kassim and he directed me to deal with you directly regarding payment if I arrive in the country. Could you please arrange for a meeting”.
This letter was written in the year 2008. Meanwhile, the defendants counsel contend that, as of the year 2000, they have paid for the plots, so the question is, what other payment was the 2nd defendant prepared to meet the plaintiff and deal with? Furthermore, the plaintiff wrote a letter on 12th March 2001 to PW1 and instructed him to write to the defendants to terminate the agreement for non-performance. The plaintiff caused Goldstreet Real Estate consult to write exhibit ‘U’ in July 2009 to cancel the consent to assign because the defendants failed to pay the purchase price. The defendants were copied but they did not protest that they do not owe the plaintiffs. The defendants also caused their lawyer to write exhibit “W” which was in response to a notice to quit from the land by the plaintiff which is dated 23rd March 2010. In the said letter, the defendants counsel did not indicate that, his clients will not quit because they have paid the purchase price. It beats my mind how someone will pay ₵ 1,200,000,000 (Gh₵120,000) for plots of land and when asked to quit will fail to say anything about the fact that he/she has paid the purchase price. In response to exhibit “W”, the plaintiff wrote exhibit ‘V’ which is dated 30th March 2010 and the conclusion of paragraph 2 of exhibit ‘V’ states “we need to emphasize that KN Company (1st defendant) has never been a tenant of Ghana Cotton Company Limited. Ghana Cotton Company Limited has also not received any money from KN Company either as rent or payment of the warehouse”.
The admissions by the defendants’ in exhibits ‘H’, ‘P’, ‘S’ & ‘W’ go to confirm the plaintiff case that, the defendants did not pay for the plots of land. In the case of In Re Asere Stool, Nikoi Olai Amontia IV (Substituted) by Tafo Amon II V Akotia Oworsika III (Substituted by) Laryea Ayiku III (2005-2006) SCGLR 632 at 651 it was held as follows: “Where the adversary of a party has admitted a fact advantageous to the cause of the party, what better evidence does the person need to establish that fact than by relying on his own admission. This is really an estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted”. The 1st defendant again made this admission in cross examination.
Q: From your own showing, you made the decision to occupy and develop the site even though you had not made payment for same.
A: Yes, but the area was too waterlogged so I had to develop it before we could even have access to the area. I did it through correspondence with PW1.
Therefore, If it is the contention of the defendants that, the purchase price was paid, then when was it paid? how? and where?. These should have been proved by the defendants rather than just relying on their bare assertion that same has been paid which the plaintiff denied. Where an averment is denied, the averment is not proved by repeating it on oath or having it repeated on oath by a witness. A party proves it by producing other things; circumstances to establish that what he avers is true.
See: Attorney General V Faroe Atlantic Co. Ltd (2005-2006) SCGLR 271
Courage Adonoo V Fan Milk Ltd (2006) 8 MLRG- 211 CA
T. K. Serbeh V Mensah (2005-2006) SCGLR 341
Frabina Ltd Shell Service Station V Shell Ghana Ltd (2011) 32 MLRG 132 SC
The plaintiff and PW1 contended throughout the trial that, the defendants misled the plaintiff to sign the deed of assignment so that it would be shown to their foreign partners before the payment. And exhibits ‘S’ ‘H’ ‘P’ and ‘W’ which are from the defendants themselves confirm same. It is therefore my judgment that, the defendants did not pay for the purchase price. It is the law that, a contract is completely made where there has been offer, acceptance and consideration paid.
See: NTHC Ltd V Antwi (2009) SCGLR 117
However, where there is a breach of a fundamental or essential term of the contract such as failure to pay consideration, a contract may be terminated.
This is because; such breach goes to the root of the contract and affects its substance.
See: Social Security Bank Ltd V CBAM Service lnc (2007-2008) 2 SCGLR 894.
I will therefore resolve issue C in favour of the plaintiffs.
I will now proceed to the issue as to whether or not the defendant perpetrated fraud on the plaintiff.
When fraud is alleged, it should be pleaded and specifically proven by leading evidence on it. Some authorities have compared fraud to cancer which if not treated will affect the entire body. Fraud has been proven to have among others the following ingredients.
a) It vitiates every transaction including judgments and orders. Thus once it is proved, it will wipe and sweep everything away.
b) It connotes criminal conduct and the sanctions may include imprisonment.
c) The burden to prove fraud is on the person alleging it.
d) It must be proved beyond reasonable doubt.
See: Mass Products Ltd V Standard Chartered Bank & Anor (2014) 69 GMJ 39 SC
Twum V SGS Ltd (2011) 30 GMJ 92 CA
Okofo Estates Ltd V Modern Signs Ltd (1998-99) SCGLR 224
Amuzu V Okilikah (1998-99) SCGLR 141
Sasu V Amuah Sekyi & Anor (2003-2004)2 SCGLR 742
Republic V Circuit Tribunal Koforidua, Exparte Nana Anku
Dodozah Didieye III (2006) 4 MLRG 165 CA
Adumuah Okwei V Ashieteye Laryea & Anor (2011) 1 SCGLR 317
Poku V Poku (2007-2008) SCGLR 996
Fraud is a serious matter that, even in some instances, when it is not specifically pleaded but is led in evidence without objection, the rules of evidence are relaxed for the Court to entertain same.
See: Philip Morro Djima V Gloria Lekiah Djima (2013) 63 GMJ 183 CA
Again it was held in the case of Apea & Anor V Asamoah (2003-2004) 1 SCGLR 226 at 229 as follows: “Notwithstanding the rules on pleadings the law was that, where there was clear evidence of fraud on the face of the record, the Court would not ignore it”.
An assertion of fraud however should not be based on flimsy or baseless allegations and accusations. In this respect, the dissenting opinion of Francios JSC in Dzotepe V Harhomene III (1987-88) 2 GLR 681 which was affirmed by the Supreme Court in the case of Osei Ansong & Passion International School V Ghana Airport Co. Ltd(2013-2014) SCGLR 25 is apt, which I quote as follows:
“There is no denying that a judgment or order obtained by fraud is in the eyes of the court no judgment, as it is not founded on the intrinsic merits of the case but is borne out of an attempt to overreach the courts by deceit and falsehood.
See: Lazarus Estates Ltd. V Beasley (1956) 1 ALL ER 341. But the fact that, the courts abhor fraud should not make them insensitive to the just claims of parties. The judicial edifice was not constructed to lend a ready ear to every cry from suitors who had lost on the merits. If charges of fraud are not examined closely, the stratagem would subvert the very administration of justice and undermine the hallowed principle that a victorious party is entitled to the fruits of his judgment and should not be deprived of his victory without just cause”.
Therefore, if a party alleges fraud, at least there should be prima facie evidence on the face of the records to connect same. There is no time bound to issue a writ to set aside an order which is void or was fraudulently obtained.See: Republic V High Court (Fast Track Division) Accra Exparte Speedline Stevedoring Co. Ltd. (Dolphyne Interested Party) (2007-2008)1 SCGLR 102.
Coming back to the case before me, the plaintiff pleaded fraud on the part of the defendants and led evidence on it in the witness statement. I have also gone through the exhibits and found the following: First, the 2nd defendant’s signature on exhibit ‘1’which is the deed of assignment is different from his signature on exhibit ‘S’ which is a letter he signed on 20th February 2008. It is unlawful for one person to have different signatures on different documents. It connotes criminal conduct. The 2nd defendant indicated on exhibit “P” that, a cheque of US$270,000 was ready for him to go and pick from the Czech Republic which turn out to be false. He issued two cheques to the plaintiff which are captured on exhibit “C” but they were both dishonoured. He wrote exhibit ‘H’ to mislead the plaintiff to consent to the assignment with the hope that the purchase price would be paid immediately which has not be paid as of now. From the above, it is clear that, the 2nd defendant perpetrated fraud on the plaintiff. It is settled law that, to sustain fraud, the plaintiff has to prove not only that, the defendant made representations as to existing facts which were false to his knowledge but also to prove that, the defendant intended the plaintiff to act on the false representations and be deceived by them. There must be proof of actual intention to deceive the plaintiff. He must also establish that, he was influenced by the misrepresentation to his detriment and has suffered damage as a result of the misrepresentation. See: Kusi V Kusi (1968) GLR 1120.
Applying the above principles to the case before me, my humble view is that, the defendants perpetrated fraud on the plaintiff. The plaintiff was therefore right to repudiate the contract and ask for vacant possession of the land from the defendants. Where a purchaser had perpetrated fraud on a vendor, proceedings by the vendor to avoid the transaction might be taken at any time while the influence operated on the mind of the vendor.
See: Kessie V Namih & Ors (1981) GLR 444
I will therefore resolve issue “D” in favour of the plaintiff. It therefore follows automatically that, the plaintiff is entitled to reliefs a, b, c, d and gas endorsed on the writ of summons. I will also grant the plaintiff general damages for fraud and general damages for breach of contract in respect of reliefs ‘e’ and ‘f’. The law is that, general damages are as the law will presume to be the natural or probable consequences of the defendants act. It arises by inference of the law and therefore need not be proved by evidence, the law implies general damages in every infringement of an absolute right of the plaintiff.
See: Delmas Agency Ghana Ltd V Food Distributors Int. Ltd (2007-2008) 2 SCGLR 748.
Yungdong Industries V Ro Ro Services (2005-2006) SCGLR 816.
I will award the plaintiff GH₵10,000.00 as general damages for fraud and GH₵10,000.00 as general damages in respect of breach of contract on reliefs ‘e’ and ‘f’. I will decree perpetual injunction to restrain the defendants, their agents, servants privies etc. from interfering with the plaintiff use and occupation of the land in dispute in respect of relief (i). The cost in the case is assessed at GH₵10,000.00 against the defendants.
The defendants counterclaim is dismissed in its entirety.
(HIGH COURT JUDGE)