i. Introduction:

[1] The Plaintiff per his Lawful Attorney commenced this action against the Defendants on August 14, 2015 for the recovery of money, the sum of $600,000.00 as the outstanding balance of the amount of $700.000.00 paid for one acre of the 1st Defendant’s four-acre plot of land for which the Defendants failed to deliver to the Plaintiff. The Defendants denied the claim and alleged that there was no issue about a plot to be delivered to the Plaintiff. Among the issues for this Court’s determination is whether or not the Plaintiff paid to the Defendants $700,000.00 or less.

[2] Per a writ of summons sealed in this registry on 14th day of August, 2015 the Plaintiff claims against the Defendants herein the following judicial reliefs set out here below:

The sum of US$600,000.00 or the cedis equivalent being balance of purchase price of plot of land paid to Defendants which Defendants failed to deliver

Interest at the prevailing dollar rate from 18^th November, 2005 till date of final payment.

Costs, including lawyer’s fees.

[3] After the service of the writ and its accompanying statement of claim on the Defendants, Appearance was entered by Kwaku Kyeremateng & Co (Solicitors) on August 24, 2015 together with a joint 12-paragraph statement of defence was filed by the Defendants. The Plaintiff filed a reply to respond to the defence filed on September 3, 2015. Pursuant to leave of the Court granted on November 16, 2015 the Plaintiff filed an Amended Reply on November 17, 2015.

ii. Issues for Trial

[4] At the close of the pleadings the Issues contained in the Application for Directions filed by the Plaintiff and adopted by the court for trial were:-

Whether or not the Plaintiff paid the sum of $700,000.00 to defendants for a plot of land.

Whether or not the Plaintiff to top up money for a house at ridge.

Whether or not Defendants reached agreement with Plaintiff to refund any outstanding balance due to Plaintiff after defendant house at East Legon has been sold

Whether or not the Plaintiff is entitled to his claim.

[5] The trial of the case commenced on Wednesday June 29, 2016 and the cross-examination of the 2nd Defendant was completed on Monday October 9, 2017. I note that the Defendants were granted leave to re-call the Plaintiff’s Attorney on November 20, 2017 for further cross-examination after the Plaintiff unsuccessfully applied for judgment based on admission after the close of the Plaintiff’s case on Thursday, July 13, 2017. I shall later speak to this in this judgment.

[6] At the trial, the Plaintiff’s lawful Attorney gave evidence for and on behalf of the Plaintiff and called no other witness and closed his case. The 2nd Defendant also testified for the Defendants and called no other witness and closed the case for the defence.

iii. The Evidence Received by Court:

[7] The Plaintiff’s case consisted of the Plaintiff’s Attorney’s testimony in court and the documentary evidence he submitted in support of the claim, marked in the record as Exhibits “A” to “D”. Giving evidence in support of the claim, Chief Victor K.A. Johnson testified in terms of the statement of claim and the adopted witness statement filed to the effect that somewhere in the year 2005, the 2nd Defendant who is the owner and Managing Director of the 1st Defendant Company agreed to sell one acre of their four plot property to the Plaintiff. According to the witness after negotiations with the 2nd Defendant, the purchase price of the land was agreed at US$700,000.00 which was fully paid for by the Plaintiff to the 2nd Defendant. The Plaintiff’s lawful Attorney tendered without objection a receipt dated November 18, 2005 as Exhibit “B”.

[8] The Plaintiff’s Attorney further stated that the Plaintiff fully paid for the land but the Defendants failed to deliver the land to him. He also told the Court that the Defendants’ numerous promises to refund the money to the Plaintiff did not materialise. As a result, on or about September 27, 2012, the Plaintiff lodged a complaint against the 2nd Defendant at the Tesano Police Station for a refund of his money and the 2nd Defendant agreed to refund the money and his lawyer prepared an agreement and same was signed by the Plaintiff and the 2nd Defendant. According to the Attorney, the agreement was witnessed by the lawyer for the 2nd Defendant and a police officer.

[9] According to Plaintiff’s Attorney, further to the signing of the agreement, the 2nd Defendant “paid the sum of $100,000.00 to the Plaintiff through the Police” in the form of a banker’s draft and same was paid into the Plaintiff’s Standard Chartered Bank account. Consequently, according to the Attorney, the Plaintiff made a draft of US$100,000.00 to Metropolis Development Limited, a company the Plaintiff was buying a property from. The Bank of Ghana draft and the Metropolis Development Limited draft were tendered as Exhibit “C” and “D” respectively.

[10] According to Chief Johnson apart from the $100,000.00 paid to the Plaintiff “no other payment was made which the Plaintiff failed to issue receipt so the balance outstanding is $600,000.00 which Plaintiff has endorsed on his Writ of Summons”. The witness also denied that the Plaintiff reached any agreement with the 2nd Defendant in July 2015 for the Plaintiff to be paid after the sale of the 2nd Defendant’s house in East Legon.

[11] The Plaintiff’s Attorney further stated that rather, after the 2nd Defendant failed to pay the money, he took the Plaintiff round some few properties in Accra which were in his name with the intention of getting Plaintiff to pay more money to complete one for Plaintiff but in all these, Plaintiff rejected them. This rejection by the Plaintiff informed the Defendants’ lawyer to prepare the agreement for proposed refund of the money when Plaintiff finally lodged the complaint with the police. The Plaintiff’s Attorney stated that a reading of the said agreement tendered by the Defendants’ as an exhibit showed that the Plaintiff declined any interest in the Defendants’ business and was not interested in acquiring houses built by the Defendants.

[12] In addition to the above testimony, the Plaintiff’s Attorney reiterated that the Plaintiff fully paid for the land and the Defendants acknowledged same. The Plaintiff’s Attorney denied the claim by the Defendants that there was a short fall of US$50,000.00 and the Defendants’ bankers agreed to advance same to Defendants as loan. The Plaintiff’s Attorney further stated that the facility letter dated September 5, 2011 which the Defendants filed before this Court showed that the amount granted was US$48,600.00 and not US$50,000.00. Based on all of the foregoing the Plaintiff’s Attorney prayed the Court to grant the Plaintiff’s reliefs endorsed on the writ of summons.

iv. The Defendants’ Case:

[13] The Defendants’ evidence was proffered by the 2nd Defendant, Mr. Stephen Acheampong Arhing when he testified under oath on October 9, 2017. He testified that he is the Chief Executive Officer of the 1st Defendant Limited Liability Company which is into the real estate development business.

[14] According to the 2nd Defendant, the 1st Defendant wanted to acquire a parcel of land at Roman Ridge, Accra from the British Council and the Plaintiff expressed an interest in acquiring part of the land after the 1^st Defendant has completed its acquisition and therefore instructed some other persons to pay US$700,000.00 into the 1^st Defendant’s account with First Atlantic Bank. The 1^st Defendant’s Bank Statement was tendered at trial and same was marked as Exhibit “1”.

[15] Mr. Arhing further testified that the First Atlantic Bank realised that one of the payments of US$50,000.00 did not go through. Thus neither the bank nor the Defendants received the US$50,000.00 and therefore a meeting was called by the officers of the bank and was attended by the Plaintiff and the Defendants. According to the witness the officers of the Bank brought to the attention of the Plaintiff and the Defendants the shortfall and the bank converted the US$50,000.00 into a loan on the account of the 1st Defendant as the bank had already paid British Council. It is the case of the Defendants that the Plaintiff failed to acknowledge the agreement reached with the Bank over the US$50,000.00 and the 1st Defendant therefore laboured to pay off the loan without any contribution from the Plaintiff. The loan agreement was tendered without objection and same was marked as Exhibit “2”.

[16] The 2nd Defendant further told the Court that the Plaintiff informed him latter that he was no longer interested in acquiring the land from the 1st Defendant but instead was interested in acquiring a house at Ridge in Accra. Based on this Mr. Arhing said the Plaintiff was asked to top up whatever difference he had with the 1st Defendant for one of the houses at Ridge but failed to do so and rather asked for a refund of the deposit paid into the 1st Defendant’s account.

[17] According to Mr. Arhing, the 1st Defendant and the Plaintiff reached an agreement to refund the money to the Plaintiff after the house at Ridge has been sold. However, in October 2012, the Plaintiff made a criminal report at the Tesano Police Station against him and he was arrested but according to him at the police station the Plaintiff admitted that the 2nd Defendant had no criminal liability. It is the evidence of the 2nd Defendant that he reached an agreement with the Plaintiff at the Tesano Police Station for the payment of the money. He tendered a copy of the agreement as Exhibit “3”. The 2nd Defendant further stated that the 1st Defendant paid US$100,000.00 to the Plaintiff on the

23^rd day of October, 2012. A copy of the Bank of Ghana cheque confirming the payment was tendered and marked as Exhibit “4”.

[18] According to the 2nd Defendant, following the agreement signed at the Tesano Police Station the Plaintiff later expressed interest in a house at East Legon and reached an agreement with the 1st Defendant for the house at East Legon and therefore the Plaintiff was asked to top up the balance he had with the 1st Defendant. Mr. Arhing testified that the Plaintiff mobilized both his family members and professionals to inspect the house at East Legon but after the inspection he abandoned his interest in the house claiming that the consideration sum was too high and again requested for his money.

[19] According to the 2nd Defendant, the 1st Defendant and the Plaintiff reached an agreement to refund the money to the Plaintiff after the house at East Legon has been sold because his money had been converted from cash into land; that is the house. The 2nd Defendant testified that the house at East Legon is still not sold. Mr. Arhing further testified that the 1st Defendant paid US$50,000.00 in cash to the Plaintiff but the Plaintiff failed to acknowledge same in his pleadings before this Court and “has also failed to issue receipts to the 1st Defendant for monies received despite repeated demands made on him to do so”. Based on all of the above Mr. Arhing prayed the Court to dismiss claim because the Plaintiff is not entitled to his reliefs.

[20] At the close of the Defendants’ testimony the Plaintiff’s Attorney was recalled after leave was granted to the Defendants. This was after the Plaintiff had filed a motion for judgment based on admission and the Court had dismissed same. Chief Johnson, the Plaintiff’s Lawful Attorney was recalled on November 20, 2017. At that hearing Counsel for the Defendants tendered through him Exhibits “5”, “6”, “7” and “8”. Same were marked as part of the record and therefore I shall later speak to these exhibits

v. The Court’s Opinion & Analysis:

[21] Before turning to consider the main questions, I turn now to the arguments made by the Counsel for the parties.

The Plaintiff

[22] The Plaintiff’s principal argument is that I must accept the testimony of the Lawful Attorney that the Plaintiff paid the sum of $700,000.00 to the Defendants for one acre plot of land as per Exhibit “B’. According to Mr. Baba Avio that evidence of the Plaintiff was confirmed by the 2nd Defendant when he testified that the Plaintiff invested $700,000.00 in respect of the land and the tendering of Exhibit

“3” by the Defendants which shows how much the Plaintiff paid for the land and the manner in which the amount was to be refunded to the Plaintiff. To learned Counsel for the Plaintiff the issue as to how much was paid by the Plaintiff to the Defendants is to be resolved when one considers Exhibits “B” and “3” together.

The Plaintiff’s alternative argument in regards to the latter evidence that the debt was $650.000.00 and not $700.000.00 is that same ought to be examined in the light of the Plaintiff’s letter dated 29^th May 2017 to the Lawful Attorney. According to Counsel the Plaintiff and the 2nd Defendant have been friends for over thirty years and therefore it is important for the Court “to consider the happenings after November 2016 when the Plaintiff received the amount of $500,000.00 from the Defendants” and rather consider the issue based on the initial agreement the Plaintiff signed with his Attorney. According to Counsel the Plaintiff’s letter dated May 29, 2017 “may have been written with the intention of keeping the relationship between the Plaintiff and the 2nd Defendant after the litigation considering the many years that they have been friends”. Counsel has also urged on the Court not to place any weight and consider the letter because same was later withdrawn.

[24] On the issue of the reversal of the amount of $50,000.00 which is part of the Defendants’ response that the debt owed was not $700.000.00 but $650.000.00, the Plaintiff’s Counsel relies on the reasons in the case of ZABRAMA v SEGGEDZI (1991) 2 GLR 221 and MAJOLAGBE v LARBI (1959) GLR 190 where it was held that:

“…where a party makes an assertion capable of proof in certain way e.g. by producing documents, descriptions of things reference to other facts, instances or circumstances and his averment is denied, he does not prove it merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true”.

[25] Relying on the above passage, the Plaintiff’s Counsel argues that it is clear that the Defendants merely repeated their allegation that there was a shortfall of $50,000.00 in the amount paid by the Plaintiff but produced no cogent evidence to support same. Counsel argues that a person from the Bank could have been called to corroborate the claim but the Defendants did not even though the Plaintiff’s Attorney denied the assertion. To learned Counsel therefore no credible evidence was led to support the assertion and the Court should not accept the assertion.

[26] Finally, learned Counsel submitted that the Plaintiff is entitled to “interest on the amount of $500,000.00 for the period endorsed on the writ of summons, that is from 18th November 2005 to November 2016 when the amount was paid to Plaintiff” because the Defendants denied the Plaintiff the use of the money for eleven years. According to learned Counsel during the same period the Defendants had the “use of the Plaintiffs money for their benefit”. Counsel concluded that the interest of justice will be served if the Plaintiff is awarded interest on the amount for the period as compensation for the loss of use of his money because the same amount of money cannot purchase a similar land around the same area now.

The Defendants

[27] The Defendants challenges the Plaintiff’s Attorney testimony that the debt was $700.000.00. Also relying on MAJOLAGBE v LARBI SUPRA learned Counsel submitted that it is only after the Plaintiff succeeds in leading evidence on the fact that the debt is $700.000.00 would the burden of proof shifts to the Defendants to lead evidence in rebuttal. To learned Counsel the Plaintiff has failed. Counsel referred to the Plaintiff’s Attorney’s testimony by which he denied that there was a reversal of $50.000.00 made by the First Atlantic Merchant Bank and his insistence that the amount was $700.000.00 on the one hand and the 2nd Defendant’s evidence that the correct amount was $650.000.00 together with the Plaintiff’s letter dated May 29th, 2017 (Exhibit 5) and submitted that the said letter speaks for itself that the debt was $650.000.00 and not $700.000.00. Counsel therefore submitted that the Court should find that there was no truth in the Plaintiff’s averment and testimony before the Court that the debt was $700.000.00.

[28] The Defendants argue that that the Plaintiff is not entitled to his claim because based on the evidence he acknowledges that the debt owed is $650.000.00 and he has also acknowledged that he has received the payment for same. Counsel relies on the Plaintiff’s unsuccessful application for judgment based on admission and the contents of Exhibit 5 to submit that the Plaintiff is not entitled to his claim.

[29] On the issue of interest learned Counsel submitted that first and foremost, there is no such thing as “prevailing dollar rate as far as the Bank of Ghana is concerned”. It is also the case of the Defendants that what the Plaintiff’s claim offends Section 4 of the Limitation Act, 1972 (NRCD 54). According to learned Counsel this matter being an action founded on a simple contract, it should not have been brought after the expiration of six years. According to Counsel the submission is anchored on the consequence of a choice made by the Plaintiff because it is the case of the Defendants that “the Plaintiff did not demand for his money until he took the 2nd Defendant to the Tesano Police Station in the year October 2012, more than seven years after the US$650.000.00 was given to the 1st Defendant by the Plaintiff”.

[30] Further according to learned Counsel the Plaintiff himself based on the Exhibits before the Court indicated that he would not demand interest. Again Counsel relied on Exhibits 3 and 5. I understand Counsel to say that the contents of those exhibits have legal effect and therefore this Court should interpret and apply them as such. Counsel has also urged on the Court to deny the claim for interest because based on the evidence it is based on the desire of the Attorney but not the instruction of the Plaintiff as a principal.

[31] Having laid out the essential arguments traded by Counsel. I now proceed to consider the matter. I need to state that even though on the face of the claim it seems to be a simple matter of recovery of money paid out by the Plaintiff to the 1st Defendant Company, but it is not because many issues are raised including the law as it relates to a Principal and his Agent’s relationship and to some extent matters of ethics involving Counsel and litigants.

[32] It is not in any serious contention that the suit was instituted by Mr. Joe Addo Yobo suing per his lawful Attorney, Johnson Complex (Ghana) Limited as per Exhibit “A”, the power of Attorney. Consequently the evidence establishes that the Executive Chairman of Johnson Complex, Chief Johnson testified for the Plaintiff. Now, based on what happened in the course of the trial it is important to briefly look at the law as it relates to an agent and his principal and apply same to the facts of this case.

vi. Fiduciary Relationship

[33] A fiduciary relationship arises where one party has an obligation to act for the benefit of another, and that obligation carries with it a discretionary power. It is well established principle of agency law that contracts entered into by an agent are binding on the principal as long as the agent acts within his mandate. See PS INVESTMENT LTD v. CENTRAL REGIONAL DEVELOPMENT CORPORATION & OTHERS [2012] 1 SCGLR 611.

[34] At Common Law the relationship of principal-agent is within the categories of relationships that are considered to be inherently or intrinsically fiduciary: See the Canadian case of Atlanta Industrial Sales Ltd. v. Emerald Management & Realty Ltd., 2006 ABQB 255 (CanLII) 399 A.R. 1 at para. 160.

[35] Justice La Forest (JSC as he then was) of the Canadian Supreme Court stated in the case of Hodgkinson v. Simms, 3 S.C.R. 377 at 409 that:

Certain relationships…have as their essence discretion, influence over interests, and an inherent vulnerability. In these types of relationships, there is a rebuttable presumption, arising out of the inherent purpose of the relationship, that one party has a duty to act in the best interests of the other party. Two obvious examples of this type of fiduciary relationship are trustee-beneficiary and agent - principal.

[36] In G.H.L. Fridman’s book, The Law of Agency, 7^th ed., (Toronto: Butterworths,1996) the author states at 174-75:

Once the relationship of principal and agent exists…a complex of duties attaches to the agent. These duties are equitable in character, and may be lumped together under one general principle; namely, that the agent must not let his own personal interest conflict with the obligations he owes to his principal. This general idea is manifested in various ways.

[37]  Also, in F.M.B. Reynolds, Bowstead and Reynolds on Agency, 18^th ed.(London: Sweet & Maxwell, 2006), the author states at para. 6-063:

Where an agent enters into an contract or transaction with his principal, or with his principal’s representative in interest, he must act with perfect good faith, and make full disclosure of all the material circumstances, and of everything known to him respecting the subject matter of the contract or transaction which would be likely to influence the conduct of the principal or his representative.

[38] An agent’s fiduciary duties include the duty to make full disclosure to its principal. In Ocean City Realty Ltd. v. A & M Holdings Ltd. (1987), 1987 CanLII 2872 (BC CA), 36 D.L.R. (4^th) 94, the British Columbia Court of Appeal stated at 98-99:

The obligation of the agent to make full disclosure…includes “everything known to him respecting the subject-matter of the contract which would be likely to influence the conduct of his principal” … everything which “…would be likely to operate upon the principal’s judgment”….

The test is an objective one to be determined by what a reasonable man in the position of the agent would consider, in the circumstances, would be likely to influence the conduct of his principal.

[39] On the evidence in this case, it is clear that Johnson Complex per its Executive Chairman, Chief Victor Kwabena Johnson instituted this action as an Attorney of the Plaintiff and maintained that the money paid by the Plaintiff, the Donor of the Power of Attorney to the 1st Defendant was $700.000.00. This is reflected in his evidence to the court as captured in the proceedings of November 29, 2016. In the course of cross examining the Plaintiff’s Attorney, the following evidence crucial and relevant to the case on the issue as to the total debt was elicited.

“Q. How much did the Addo-Yobo pay to the 1^st Defendant.

A. The receipt showed to me by the Plaintiff whom I represent indicate that he paid a total of USD$700,000.

Q. Did Mr. Addo-Yobo indicate to you the mode in which he paid the USD$700,000.

A. No, my Lord. He did not indicate to me but he showed me the receipt which the Defendants issued to him.

Q. Have you made yourself conversant with the Defendant case before this Court.

A. I have read the Defendants statement of defence and there is nowhere in the statement of defence that the Defendants deny receiving the money. I was even more convinced when I saw from the defence an undertaking/agreement made by the defendants and the Plaintiff at the Airport Police Station in which the defendants gave a breakdown as to how they will refund the money. And I also saw in that very agreement that it was witnessed by Counsel for the Defendant, Mr. Darlington. I also saw a cheque of USD$100,000 issued to the Plaintiff at the Police by the Defendant as first installment payment.

Q. Now you have mentioned two documents you claim to have seen, one undertaking and two a cheque for the payment of USD$100,000. Have you exhibited any of these documents before the Court.

A. No, my Lord. I saw them in the witness statement filed.

Q. I am putting it to you that Mr. Joe Addo-Yobo never paid any bulk money amounting to USD$700,000 as a balloon payment to the Defendants.

A. I will not be in position to say whether the money was paid in bulk, all I am saying is that, I have seen a total of USD$700,000 paid by Mr. Addo-Yobo to the Defendants.

Q. I am also suggesting to you that, whatever monies Mr. Addo-Yobo paid to the 1^st Defendant was paid into the 1^st Defendant account with First Atlantic Merchant Bank.

A. I am not in a position to answer that.

Q. I am putting it to you that on the 30th November 2005, the first sum of USD$100,000 was paid into that account on behalf of Mr. Addo-Yobo.

A. I have already said I do not know the mode of payment.

By Court: Defence counsel want the court to take notice that “We may have to subpoena the Plaintiff to appear in court in person”.

[40] On December 19, 2016 when the Cross-Examination continued, the following further evidence was elicited:

“Q. I am putting it to you that, the sum of USD$100,000 the Defendant paid to the Plaintiff was paid on the 23/10/12 and was drawn on a banker’s draft issued by First Atlantic Bank North Ridge, Accra in favour of the Plaintiff.

A. I am not in the position to answer this question.

Q. I am also suggesting to you that after the payment of the USD$100,000 had been made to the Plaintiff at the Tesano Police Station, the Plaintiff was paid another USD$50,000 in cash.

A. It is not true, if he had paid it, he would have demanded a receipt.

Q. I am putting it to you that, because of the cordial relationship between the Plaintiff and the 2^nd Defendant, a receipt was not demanded.

A. It is not true.

Q. I am putting it to you that, when the 2^nd Defendant confronted the Plaintiff, after the writ had been issued, 2^nd Defendant was told that you had asked him to deny since no receipt had been issued evidencing the payment.

A. It is not true. I have never advised the Plaintiff to deny receiving the money.

Q. I am suggesting to you that if you add up the USD$50,000 that was reversed in the 1^st Defendant’s account, the USD$100,000 paid by the defendant to the Plaintiff at the Tesano Police Station and the USD$50,000 plaintiff received in cash what you will get is USD$200,000 as payments to the Plaintiff.

A. That is not true. Defendant owes my client USD$600,000 and that was what we sued for.

Q. I further suggest to you that, if you deduct the sum of USD$200,000 from USD$700,000, the answer is USD$500,000.

A. I am not deducting anything from the amount I sued for. There is no basis for that.

Q. I am suggesting to you that as at today the USD$500,000 or its equivalent has been fully paid to the Plaintiff by the 1^st Defendant.

A. That is not true. The USD$500,000 is only a part-payment of the amount we sued for. So you are still owing USD$100,000.

Q. Can you tell this court what the Plaintiff paid the Defendants the USD$700,000 for.

A. For a land.

[41] The record of proceedings confirm that the cross-examination continued on February 13, 2017 and February 28, 2017 when Counsel for the Defendants concluded. The record further confirms that the Plaintiff’s Attorney maintained that the debt was $700.000.00 but having acknowledged that the Defendants had paid $100.000.00 pursuant to the agreement at the Tesano Police Station, Chief Johnson said the remaining debt was $600.000.00. In fact Mr. Darlington for the Defendants’ last question asked on February 28, 2017 was whether or not he has discussed the Defendants’ exhibits attached to the witness statement of the 2nd Defendant with the Plaintiff, his principal. The answer given was as follows:

“With regards to the loan facility agreement I have no basis to discuss it with him but in respect of the others I have discussed it with him. In fact it was the mode of payment of the balance of (US$600,000) Six Hundred Thousand US Dollars that we discussed”.

No further question was asked thereafter and therefore Chief Johnson was discharged and the Plaintiff closed his case. The matter was then adjourned for the Defendants’ to open their defence.

[42] It is of particular interest to observe that on July 13, 2017 the Court dismissed the Plaintiff’s application filed and titled “Judgment on Admission”. It was stated on the Motion paper as follows:

“TAKE NOTICE that this Honourable Court will be moved by lawyer for the plaintiff praying the court for Judgment for the sum of US$500,000.00 on admission and interest on the said sum as endorsed on the writ of summons upon the grounds in the supporting affidavit and for further ordered as the court may deem fit”.

The salient parts of the affidavit in support of the motion deposed to by Chief Kwabena Johnson from paragraphs 6 to 11 also stated as follows:

“6.That before the commencement of hearing of the case, the Defendant in December, 2016 paid the sum of US$500,000.00 to the Plaintiff.

7. That during the hearing of the case, I acknowledged the payment by the Defendant and receipt of the said sum of US$500.000.00.

8. That I am advised and believe same to be that this amount to an admission on the part of the Defendants and Plaintiff is entitled to judgment on admission on the said sum of US$500.000.00.

9. That the Plaintiff wish to accept the US$500.000.00 as full and final payment of the principal sum and abandon the balance of US$100,000.00 of the principal claim of US$600.000.00 endorsed on the writ of summons.

10. That the Plaintiff has written a letter dated 31/05/2017 to that effect, (see exhibit VK1)

11. That in the circumstances I pray for judgment on admission on the said sum of US$500.000.00 and also for interest on the said sum as endorsed on the writ.”

[43] Pursuant to the dismissal, the 2nd Defendant testified and was cross-examined. As earlier noted, Mr. Darlington for the Defendants issued a subpoena to call the Plaintiff, Mr. Addo Yobo to testify. Counsel argued the legal basis for the step taken by the Defendants on October 20, 2017 and the Court subsequently ruled that the move by the Defendants was unorthodox, not known to the rules and indeed undermined the sense of fairness because if granted the Plaintiff would be required to testify against himself as he is deemed to have testified through his lawful Attorney. The application was therefore dismissed.

[44] As indicated earlier in this judgment, the Defendants successfully applied to the Court to re-call the Plaintiff’s Attorney and tendered through him Exhibits 5 to 8. To leave no one in doubt as to what these exhibits say I hereby produce in extenso as they are important to the resolution of the issues this suit presents. Exhibit 5 is a correspondence between the Plaintiff as a principal and Johnson Complex (Ghana) Limited as his agent or Attorney. It is dated May 29^th, 2017 and seems to have been triggered by Exhibit 6 which is dated May 24, 2017 and written by the Executive Chairman of Johnson Complex, Chief Victor K. Johnson. Both Correspondence were authored after the close of the Plaintiff’s case. Exhibit 6 and 5 state as follows:

Exhibit “6”

24^TH MAY, 2017

MR. JOE ADDO-YOBO

ACCRA

Dear Sir,

WARNING AGAINST SERIOUS BREACH

OF DEBT COLLECTION AGREEMENT

May we refer you to an agreement signed between your good self and Johnson Complex (GH) Ltd. on the 15^th of July, 2016 captioned.

FURTHER AGREEMENT RELATING TO REVIEW OF PROFESSIONAL FEES OF JOHNSON COMPLEX GH. LTD. The purpose of writing to you is to warn you seriously of the consequences of your intended unlawful action.

We hope you have not so soon forgotten that it was out of our efforts basing on the Power of Attorney you donated to us the we commenced civil action at an Accra High Court compelling defendant to pay you a bulk sum of US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) out of which Johnson Complex never benefitted a cent from the amount paid to you as you rightly relied on the contents of the above referred agreement. We have observed with serious reservation that many months after you received that huge amount you have turned round to begin interfering with our efforts to obtain judgment for the balance of the principal amount of US$600.000.00 (SIX HUNDRED THOUSAND UNITED STATES DOLLARS) claimed on your instruction.

We have not ended the case and you have also started to undermine the agreement referred supra by pleading with us to accept as low as US$20,000.00 (TWENTY THOUSAND UNTIED STATES DOLLARS) from defendants as full and final settlement of the matter even though you have sold your rights as far as the interest and cost are concerned. In order that we refresh your memory, we attach to this letter a copy of the agreement you voluntarily signed on the 15^th July 2016 which you drafted yourself and was typed in our office. Please be seriously warned that should you continue to interfere with our right of 100% entitlement of the accrued interest we shall not hesitate to drag your body and soul to the Law

Court to protect our lawful interest.

Please advise yourself and keep out of possible serious legal battle with us soonest.

YOU CANNOT EAT YOUR CAKE AND STILL HAVE IT Thanks you and Best Regards.

CHIEF VICTOR K. JOHNSON

(EXECUTIVE CHAIRMAN)

CC: W.B. AVIO ESQ.

Head of Legal,

Johnson Complex Accra

[45] As stated above, it seems the principal wanting to show that he has a thick skin refused to be intimidated and therefore he wrote Exhibit 5 stated below as follows:

Exhibit “5”

P. O. BOX CT 518

Cantonments

Accra

29^TH May, 2017

The Executive Chairman

Johnson Complex (Gh) Ltd.

P. O. Box KS 1340

Kaneshie-Accra

ATTENTION: MR. VICTOR K. JOHNSON

Dear Sir,

DEBT COLLECTION AGREEMENT BETWEEN JOE ADDO-YOBO AND JOHNSON COMPLEX LTD.

Following my discussions with you last Friday, the 26^th of May, 2017, I wish to bring to your attention the following state of affairs in your legal pursuit at the High Court.

·         After going through the bank documents with Mr. Steven Arhing, I have come to accept a reversal of US$50.000.00 by the bank to bring the debt from US$700,000.00 to US$650,000.00

·         Also made clear to you, I received a cash payment of US$50.000.00 from Mr. Arhing of which no receipt was given

·         You would also recall my earlier dictum that, I would charge NO INTEREST on the amount owned by Mr. Arhing. The assertion can be found in the proposal for payment signed between the two of us at the Crime office at Tesano Police Station.

Hence your record should be amended to read US$500.000.00 instead of US$600.000.00 as the amount owned by Mr. Steve Arhing.

This should bring finality to all the contesting issues on the case in court.

Yours Faithfully

(signed)

JOE ADDO-YOBO

CC: Steve Arhing

Saasco Ltd, Accra

[46] Alarmed and disturbed at the turn of events and not wanting to give up what it says is the right of the Company, the Executive Chairman, Chief Johnson in a sharp reaction to the above letter further warned the Plaintiff by authoring Exhibit 7 dated May 30, 2017. It provides:

Exhibit “7”

30^TH MAY, 2017

MR. JOE ADDO-YOBO

P. O. BOX CT 518

CANTOMENTS

ACCRA

Dear Sir,

ACKNOWLEDGEMENT AND FORMAL DEMAND FOR PAYMANT OF INTEREST ON US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) IN RE: JOE ADDO-YOBO VRS. SAASCO PROPERTIES AND &1 OTHER

We acknowledge with surprise your letter of the 29^th May, 2017 addressed to us on the above referred suit pending at an Accra High Court.

We are however surprised that you are claiming that you earlier informed us that the defendant had earlier paid you US$50.000.00 (FIFTY THOUSAND UNITED STATES DOLLARS) which you did not issue receipt for. This is not true but a palpable lie otherwise you would not have instructed us on the amount stated in the documentary evidence you handed to us which stated the amount owed you as US$600.000.00 (SIX HUNDRED THOUSAND UNITED STATES DOLLARS)’

We are a very reputable Debt Collection Company that does not institute civil action without proper instructions.

We do not intend to attach serious concern to this afterthought of yours since the High Court has not pronounced judgment on that US$50,000.00 (FIFTY THOUSAND UNITED STATES DOLLARS).

Again, the terms of payment proposal between you and Mr. Arhin at the Tesano Police Station did not specifically indicate whether you should charge interest or not in case of default, that must have been the reason you approached us to assist you recover the amount on the document which is US$600.000.00 (SIX HUNDRED THOUSAND UNITED STATES DOLLARS). Now that you have written to instruct us to discontinue further demand of the balance of US$100.000.00 (ONE HUNDRED THOUSAND UNITED STATES DOLLARS), we have no option but to respect your decision of accepting the US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) already paid to you as final settlement of the principal debt only. However you do not have any share in the accrued interest since by an agreement signed by both yourself and the undersigned you have sold out your interest to Johnson Complex Ghana Ltd. on the 15^th of July 2016 at the time you had not received any payment from the defendants. Therefore based on the referred agreement we formally demand accrued interest on the US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) paid to you which you claim to be satisfactory to you. Interest @8.5% on US$500.000.00 from 18-11-2005 to 20-11-2016 (11years) – US$467,500 (FOUR HUNDRED AND SIXTY SEVEN THOUSAND, FIVE HUNDRED UNITED STATES DOLLARS)

We demand payment within 7 days on hand delivery of this letter, failure of which we shall commence legal action against you to seek redress without further notice to you. Meanwhile our lawyer shall notify the court that we are abandoning the claim for the balance of US$100.000.00 (ONE HUNDRED THOUSAND UNITED STATES DOLLARS) and to enter judgment for US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) with cost.

BE ADVISED ACCORDINGLY

Best Regards,

(Signed)

CHIEF VICTOR K. JOHNSON

(EXECUTIVE CHAIRMAN

CC:SAASCO PROPERTIES

STEPHEN A. ARHIN, RIDGE-ACCRA

BABA AVIO ESQ.

(HEAD OF LEGAL, JOHNSON COMPLEX GH. LTD.

HEAD OFFICE, KANESHIE-ACCRA

[47] Unsurprisingly, the Plaintiff Mr. Addo-Yobo realizing that he had bitten more than he could chew, retreated upon receipt of the above letter. He therefore wrote Exhibit “8”, which also provides as follows:

Exhibit “8”

31^ST MAY, 2017

THE EXECUTIVE CHAIRMAN

JOHNSON COMPLEX (GH.) LTD.

P. O. BOX KS 1340

KANESHIE –ACCRA

Dear Sir,

DEBT COLLECTION AGREEMENT BETWEEN JOE ADOO-YOBO AND JOHNSON COMPLEX

In furtherance to my letter dated 29^th May 2017 addressed to you on the above issue, I wish to confirm and state clearly that I will not in any way interfere in your effort to recover accrued interest on the US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) which I have received from the defendants, Saasco Properties and Stephen Arhin.

We have signed an agreement to that effect and I am bound to respect same. I am by this letter asking your company to discontinue the pursuant of the balance of US$100,000.00 (ONE HUNDRED THOUSAND UNITED STATES DOLLARS) as I have now accepted the US$500.000.00 (FIVE HUNDRED THOUSAND UNITED STATES DOLLARS) as full and final payment of the principal only.

You should pursue the interest and cost since that is your professional fees as agreed by both of us.

NOTE: This letter cancels my letter of the 29^th May 2017 addressed to you on the same subject issue.

Yours Faithfully

(Signed)

JOE ADDO-YOBO

CC: STEPHEN ARHIN

SAASCO LTD., ACCRA

[48] I have chosen to state in detail the above details to illustrate and confirm that this suit is not just about debt collection but raises serious issues including ethics and litigants’ obligation to the judicial system. In this case it is clear that some information was withheld by the Plaintiff’s Attorney from the Court when it made its unsuccessful application for judgment on admission in July 2017. From the above it is clear that even though the application sought to obtain judgment on admission in actual fact the issue was moot because the Plaintiff had received the full amount which was “satisfactory to him”. What is even worse to my mind was the fact that the Attorney attached only the letter dated May 31, 2017, Exhibit “8” herein without disclosing that it was written as a result of threats issued to the principal by himself. Considering the fact that learned Counsel as an officer of the Court was aware of such intimidating tactics but nevertheless prayed the Court to endorse same is also regrettable and indeed unacceptable.

[49] Based on the law it is clear that that when the application for judgment was filed and argued before me in July 2017 Johnson Complex as the agent had allowed its own personal interest to conflict with the obligations it owes to the principal, Mr. Addo-Yobo.

[50] Now, I have tried with difficulty to understand the submission of Mr. Avio that no evidence was led by the Defendants to prove that the amount paid to them was $650.000.00 and not $700.000.00 and also that no evidence has been led to establish that there was a shortfall or reversal of $50.000.00 of the amount paid for the land in the face of the evidence obtained at trial. Having regard to all of the evidence including the Plaintiff’s own attempt for judgment based on admission and Exhibit 5 in particular, I hold that the Plaintiff through Counsel is estopped from saying that the Defendants are still indebted to the Plaintiff because the total debt was $700.000.00 and not $650.000.00. As a matter of law, the Plaintiff or in this case the Attorney cannot approbate and reprobate at the same time in the teeth of the Principal’s own admission of how much was owed by the Defendants. In IN RE: ASERE STOOL AFFAIRS (2005-2006) SCGLR 637 the law was stated that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct.

[51] Based on the law and the Plaintiff’s own admission that the amount owed is paid out in full and same is received by him, the claim as endorsed on the writ as relief “A” is dismissed as settled.

[52] The next issue is that of interest, that is whether or not the Plaintiff is entitled to recover interest on the amount of $500.000.00 paid by the Defendants. First and foremost I wish to state that I have no difficulty in dismissing Counsel for the Defendants’ submission that the claim for interest is statute barred as of no moment. If indeed the main claim is not statute barred, as Counsel from the submission conceded, how then could the claim for interest be statute barred? To my mind, the argument is untenable and same is dismissed.

[53] The law as I understand it is that 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.

[54] Further, the law regarding calculation of interest is governed by the Courts (Award of interest and Post Judgment Interest) Rules, 2005 (CI 52). The law settles the thorny issue regarding the period when interest is to be paid. In DA COSTA v. OFORI TRANSPORT [2007-2008] SCGLR 602, the Supreme Court held in accordance with CI 52 that the damages awarded are to bear interest at the prevailing bank rate from the date of the accrual of the cause of action. That case therefore emphasizes that interest is payable from the date of the cause of action and not from the date the writ was filed.

Did the parties intend that the Plaintiff was to waive his right to interest in the event of Default?

[55] To begin with, it is a settled rule of interpretation that in construing a document to ascertain the intention of the parties that document ought to be read as a whole. The starting point must be the words and phrases the parties have chosen. It is therefore commonly thought that the purpose of interpreting a contract is to discover the actual intentions of the contracting parties. In PIONEER SHPPING LTD v B.T.P. TIOXIDE LTD (1982) AC 724, Lord Diplock posited: “The object sought to be achieved in construing any contract is to ascertain what the mutual intentions of the parties were as to the legal obligations each assumed by the contractual words in which they sought to express them.”

[56] In I.R.C. v RAPHAEL (1935) AC 96 Lord Wright posited similarly when he said:

“The words actually used must no doubt be construed with reference to the facts known to the parties and in contemplation of which the parties must be deemed to have used them; such facts may be proved by extrinsic evidence or appear in recitals; again the meaning of the words used must be ascertained by considering the whole context of the document and so as to harmonize as far as possible all the parts; particularly words may appear to have been used in a technical or trade sense, or in a special meaning adopted by the parties as shown by the whole document.”

[57] It is worth noting in this case that even though the Plaintiff’s Attorney denied that the agreement reached by the parties at the Tesano Police Station in October 2012, three years before the action was commenced did not include the Plaintiff’s waiver of interest in the Court’s opinion the evidence does not support the contention. The agreement was tendered as Exhibit “3” at trial. Clause 6 of the Agreement states:

“a. The First Party shall refund to the Second Party the Deposit without interest in full to the Second Party in respect of their Agreement for the sale and purchase of land and/or houses as per the schedule of payment provided in clause 7 of this Agreement.

b. The Second Party shall receive from the First Party the Deposit without interest sum in full and final satisfaction of any claims he may have against the First Party in respect of their Agreement for the sale and purchase of land and/or houses as per the schedule of payment provided in clause 7 of this Agreement”. [Emphasis Mine].

[58] As a general rule, no bargain shall be upset which is the result of the ordinary interplay of forces. Where parties have set themselves to contract and have reduced their intention into writing they are bound by the terms of the contract. Therefore, facts recited in a written document are conclusively presumed to be true as between the parties to the instrument or their successors-in-interest. No extrinsic evidence is permissible to vary the contract. See: WILSON v BROBBEY (1974) 1 GLR 250.

[59] It is worth repeating that on general principle, facts recited in a written document are conclusively presumed to be true as between the parties to the instrument or their successors-in-interest.[1] This conclusive presumption states the common law rule which is that parties are bound by recitals in a deed and that no extrinsic evidence is admissible to contradict or vary or add to the terms. In LLODYS BANK v BUNDY (1975) QB 326 Lord Denning M.R, in stating the general rule said that there were many hard cases which are caught by this rule. He expressed himself of the opinion that the common law would not for instance interfere in a case where a poor man who is homeless agrees to pay high rent to get a roof over his head.

[60] Undoubtedly on the facts and a review of the Exhibits 3 and 5, being the agreement signed and the letter from Mr. Addo Yobo to the Attorney, clearly speak in an eloquent, candid and plaintive manner to the fact that the Plaintiff agreed to waive interest on the principal sum in the event of a default. Such construction, in my opinion would be consistent with the object and spirit of clause 6 of the agreement signed and also be in harmony with the evident purpose of that provision as intended by the parties.

[61] Further, it is also important to point out that from the correspondence exchanged between the Plaintiff and the Attorney, specifically Exhibits 7 and 8 it is clear that the claim for interest is not by the Plaintiff but the Attorney. In the opinion of the Court same ought not be countenanced under any circumstance. To remind the Attorney, this lawsuit is between the Plaintiff and the Defendants and not between the Attorney and the Defendants and therefore it cannot rely on the so-called agreement reached with its principal for the said relief for interest. This Court shall refuse to endorse the Attorney’s threats and intimidating tactics for its own benefits and gain.

[62] Objectively, whilst the Attorney’s position in regards to the agreement signed with the Principal may not be without merit, its approach in this case is absolutely wrong. It may be true that the Plaintiff Mr. Addo Yobo has chosen to be faithful to his old age friendship rather than respecting his contract obligation, to my mind if it feels strongly that the Principal has breached his agreement with it as a debt collection agency it should use the legal process to vindicate its right but not to co-opt this Court to endorse its illegal approach. This Court shall refuse to be its witting accomplice. Based on all of the above, the relief “B” for interest is dismissed.

[63] On the issue of Cost, ordinarily one would say the Plaintiff should not be awarded Cost because the Court did not grant his reliefs. In this case however, it is clear that the principal amount was paid during the pendency of the suit and therefore it means the Defendants must therefore be made to compensate the Plaintiff for his legitimate and reasonable expenses incurred in commencing and prosecuting the action for after all they failed to pay the debt for almost a decade until the suit was filed in Court. I must however juxtapose that with the Plaintiff through his own Attorney’s behavior. The record shows that the full payment was made long before the Plaintiff through the Attorney closed his case. The question therefore is why did the Plaintiff continue with the litigation? No genuine explanation has been offered. To that extent, I shall award the Plaintiff nominal cost of GH¢10,000.

[64] Before concluding, I wish to comment and say with the greatest respect to the parties and in particular the Lawful Attorney, in the opinion of the Court they did not clothe themselves in glory in this litigation. With respect, it was a needless and costly litigation but there are no winners. To my mind the Lawful Attorney allowed its ego and profit incentive to override its good judgment and therefore it failed in the eyes of the Court to execute its mandate in the best interest of the Principal. From the evidence it is clear that litigation could have been resolved earlier but the parties and in particular the Plaintiff’s Attorney chose to be litigious. It is indeed baffling that for a debt of $500.000.00 received by the Principal it expected to received “US$467,500.00” as its compensation because according to it, it is the interest due on the said amount. The Plaintiff also declined to face off with his Lawful Attorney and therefore elected to ignore an agreement to forfeit interest on the principal amount. What has unfolded in the facts of this case represents a clear case of failure to exercise restraint and failure to engage one another in a respectful way.