IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
LA REAL ESTATE LTD - (Plaintiff)
EAST DADEKOTOPONG CEVT. TRUST - (Defendant)
DATE: 14 TH MAY, 2018
SUIT NO: RPC/345/10
JUDGES: GEORGE K. KOOMSON JUSTICE OF THE HIGH COURT
JOSEPH OPOKU BOATENG FOR PLAINTIFF
L.S.N. AKUETTEH FOR DEFENDANT
In this action, the Plaintiff sued the Defendant for the following reliefs:
a) Payment of USD50,000.00 or its cedi equivalent as funds advanced by the Plaintiff to the Defendant as an initial advance under a proposed Joint Venture Agreement which did not materialize.
b) Interest on the said USD 50,000.00 from October, 2005 up to the date of final payment at current bank rate.
The Defendant has also in a counterclaim asked for the following reliefs:
1. General damages for breach of contract
2. Punitive damages for wilful misrepresentation and deceit
The case of the Plaintiff is that it entered into a Memorandum of Understanding (MOU) with the Defendant in October, 2005 by which the Plaintiff was to be offered 30% shares originally allocated to NTHC in a Joint Venture Company formed between the Defendant and NTHC Ltd in 2001. In consideration of the allotment of shares, the Plaintiff contended that it was to pay to the Defendant USD 348,000.00 or its cedi equivalent. The parties were to form a Joint Venture Company with the object of developing portions of the land owned by the Defendant in Accra and parcel out portions thereof for outright sale. It is the case of the Plaintiff that, following the execution of the MOU and before the incorporation of the Joint Venture Company, the Defendant requested for and obtained from the Plaintiff an advance of USD 50,000.00 to cover Defendant’s administrative and operational expenses.
The Plaintiff further stated that owing to differences over land allocation and pricing, the Joint Venture could not aterialize and the Plaintiff accordingly requested for a refund of the USD 50,000.00 advanced to the Defendant. The Plaintiff further contended that the Defendant offered to give the Plaintiff land in lieu of cash but when the Plaintiff demanded for the particulars of the land to be allocated, Defendant decided to ignore their request. This caused the Plaintiff to institute the present action. The case of the Defendant on the other hand is that, in 2003, it signed a Joint Venture Agreement with NTHC Ltd and formed a company called Trade Fair Estates Ltd to develop the Trust land situate behind the Ghana International Trade Fair Centre. Defendant further contended that NTHC failed to raise the expected equity capital needed to develop the land. In the process, NTHC secured some monies for the Trust and also assisted the Trust to obtain a short term loan from NDK Financial Services Ltd and others whiles awaiting the expected capital.
According to the Defendant, whiles pressure was being mounted on it to settle its indebtedness to its creditors, the Plaintiff was introduced to the Defendant by Dr. Barnor of Goldplus Properties Ltd as an investor who has teamed up with a team of foreign financiers with ready funds to go into Joint Venture with the Defendant. It is the case of the Defendant that the Plaintiff represented to it that the Plaintiff would immediately release USD 500,000.00 to the Defendant as part payment of the equity contribution upon the signing of a Joint Venture Agreement to enable the Defendant settle its indebtedness to NDK, NTHC and others and to discharge its other obligations. Defendant therefore contended that on the basis of this representation, among others, the Defendant and Plaintiff executed a Joint Venture Agreement for the development of a parcel of Defendant’s land at La. It is further the case of the Defendant that the Plaintiff failed to honour its obligation under the Joint Venture Agreement which required the Plaintiff to pay USD 500,000.00 on or before the execution of the said Joint Venture Agreement. As a result of the Plaintiff’s breach, the Defendant contended that, the Defendant was unable to discharge its financial obligations to its creditors and also led to the collapse of the Joint Venture Agreement between the parties herein. The Defendant stated that as a result of the Plaintiff’s breach, it suffered huge damages and loses.
The Defendant therefore asked for the reliefs in its counterclaim.
When pre-trial settlement failed, the following issues were settled for trial:
Whether or not Plaintiff and Defendant executed a Joint Venture Agreement in 2005 for the development of a parcel of Defendant’s land situate behind the Trade Fair, La-Accra.
Whether or not by the said Agreement Plaintiff undertook to pay to the Defendant USD 500,000.00 as part payment of its equity on or before the signing of the Agreement.
Whether or not the Plaintiff breached the said Agreement.
Whether or not Plaintiff advanced USD 50,000.00 to Defendant to cover Defendant’s administrative and operational expenses.
Whether or not Plaintiff is entitled to its claim.
Whether or not the Defendant is entitled to its counter-claim
I shall resolve all the issues together in accordance with the law and the evidence adduced, as they all have the breach of Agreement and the refund of USD 50,000.00 running through them.
The general rule is that a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. Section 14 of the Evidence Act, 1975 (NRCD 323) therefore provides:
“Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.”
The Section 10(1) of the Evidence Act explains what constitutes the burden of persuasion in the following way:
“10(1) for the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.”
The Supreme Court in an exposition of this burden in the case of ACKAH v PERGAH TRANSPORT LTD  SCGLR 728 @ 736 stated:
“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 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 probable than its non-existence. This is the requirement of the law on evidence under Section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323)
In his book, Essentials of the Ghana Law of Evidence, 2014 Edition, S.A. Brobbey, JSC, made reference to the Bench Book for US District Court Judges, published by the Federal Judicial Centre (March 2000 ed.) which explains the principle as follows:
“The Plaintiff has the burden of proving his (her) case by what is called preponderance of the evidence. That means the Plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the Plaintiff claims is more likely to be true than not. To put it differently, if you were to put the Plaintiff’s and the Defendant’s evidence on opposite sides of the scale, the Plaintiff would have to make the scale tip somewhat on his (her) side. If the Plaintiff fails to meet this burden, the verdict must be for the Defendants.”
In the case before me, both the Plaintiff and the Defendant have the burden of proof in respect of their respective claims. The first question to be resolved is as to whether or not the parties entered into a Memorandum of Understanding. It is the case of the Plaintiff that in October, 2005 the parties signed a Memorandum of Understanding under which the Plaintiff was to be offered 30% shares originally allocated to NTHC Ltd in a Joint Venture Company: See paragraph 3 of the statement of claim filed by the Plaintiff on 25th October,2010 and paragraph 10 thereof. The Defendant denied this averment of the Plaintiff. The onus therefore fell on the Plaintiff to lead credible and sufficient evidence to establish that the existence of this fact is more probable than its non-existence. In its attempt to prove the existence of an MOU, the Plaintiff tendered exhibit ‘B’. For the sake of emphasis exhibit ‘B’ is hereby reproduced seriatim as follows:
AMENDMENT TO MOU BETWEEN EAST DADEKOTOPON DEVELOPMENT TRUST AND LA REAL ESTATE LTD 22ND AUGUST, 2005
1. Paragraph (1) amended
That La Real shall pay USD 370,370.00 into an Escrow account to be set up at the Trust Bank, Accra, in not more than seven (7) days from the day of signing this MOU.
2. Paragraph (2) amended
That the La Real shall pay the equity value in cedi, of the 30% shares allotted to the NTHC in TRAFEL into the TRAFEL account with the Trust Bank, Accra less the payment made to the NTHC in not more than 45 days counting from the date of signing this MOU.
3. New Paragraph
That the East Dadekotopon Development Trust shall hold a non-dilution equity share of 60% in the JV Company, TRAFEL.
4. Paragraph (6) amended
The J.V. shall have the power to contract loans from both within and outside Ghana and in furtherance of this be permitted to use documents covering the said first phase parcel of land as collateral for the loans.
5. New Paragraph
That La Real shall pay the sum of USD 260,000.00 as good-will to the Trust, 40% of which shall be paid to the Trust on the day of signing this MOU.
6. New paragraph
That on the day of signing a formal J.V. Agreement, the La Real shall pay to the Trust the balance of 60% of the good-will money.
7. Paragraph (9) seems ambiguous
The Defendant also tendered in evidence as exhibit ‘5’ a document which was prepared by Plaintiff’s counsel which is entitled “Memorandum of Understanding”. An examination of Exhibit ‘5’ clearly shows that the said MOU was not signed by any of the parties. If it was executed at all, the Plaintiff, who has the duty to establish its existence failed to lead cogent and credible evidence to establish same. I do not think exhibit ‘B’ in any way establishes that the parties executed the MOU. It is a document which purports to amend an MOU. Whether the said amendment was to be effected after the execution of the MOU or before its execution, the Plaintiff could not lead credible evidence to establish it. And as Kpegah, JA (as he then was) said in the case of ZABRAMA v SEGBEDZI  2 GLR 221, that:
“The current position is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact(s) he asserts can properly and safely be inferred.”
The Plaintiff in the face of the denial made by the Defendant in its pleadings, that is, paragraph 4 of the statement of defence and counterclaim filed on the 6th December, 2010, could not lead any evidence to establish that the parties actually executed the said MOU. The Plaintiff, if it was a signatory to this MOU, could have produced its copy of the MOU which had been executed. More so, on the face of Exhibit ‘5’, the name of counsel for the Plaintiff has been written on it, presumably, as the one who prepared the MOU for the parties. If therefore, the said MOU was executed by the parties, it should not have been difficult for the Plaintiff to have obtained copies to tender in evidence. From the evidence led by the parties, I do not find it difficult to make a finding that no such MOU was executed by the parties. I therefore hold that the parties never executed any MOU in 2005 as asserted by the Plaintiff.
The next issue I will resolve is as to whether or not the parties executed a Joint Venture Agreement in 2005 for the development of a parcel of Defendant’s land situate behind Trade Fair, La-Accra. The averment that the parties entered into a Joint Venture Agreement in 2005 was made by the Defendant. This averment is contained in paragraph 9 of the statement of defence and counterclaim filed on the 6th December, 2010. In proof of this averment, the Defendant tendered Exhibit ‘1’ on behalf of the Plaintiff. Exhibit ‘1’ was executed by one Charles Laba and witnessed by Ghassan Laba. The representative of the Plaintiff who testified on behalf of the Plaintiff acknowledged the signatures of these two persons, who he described as his brothers and directors of the Plaintiff Company. Having identified and acknowledged the signatures of the two Laba brothers on Exhibit ‘1’, I am inclined to believe that the Defendant has fulfilled its obligation to lead sufficient and credible evidence in proof of what it asserted in paragraph 9 of the statement of defence and counterclaim. Ollenu J. (as he then was) in the oft-cited case of MAJOLAGBE v LARBI & ORS  GLR 190 @ 192, quoting his earlier judgment in the unreported case of KHOURY AND ANOR v RICHTER (1958) delivered himself thus:
“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by 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.”
The Defendant, in the instant case, has adduced the necessary and credible evidence, by the production of Exhibit ‘1’ to establish what it averred in paragraph 9 of their statement of defence and counterclaim. The Plaintiff could not discredit this evidence of the Defendant nor lead any evidence to the contrary to throw doubt on what the Defendant averred. It is therefore my considered opinion that the parties executed the Joint Venture Agreement in 2005. This leads me to the question whether or not by the said Agreement Plaintiff undertook to pay to the Defendant USD 500,000.00 as part payment of its equity capital on or before the signing of the Agreement. The Plaintiff’s representative expressed his surprise at the execution of Exhibit ‘1’. In my view judicial decisions are not based on emotional expressions of the parties but on credible evidence led in support of facts pleaded by the parties. It is noted that in commercial transactions the subjective evidence of parties intentions are not relevant and as LORD NEUBERGER stated in ARNOLD v BRITTON (2015) AC 1619 that:
“When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote LORD HOFFMANN in CHARTBROOK LTD v PERSIMMON HOMES LTD (2009) AC 1101, PARA 14. And it does so by focussing on the meaning of the relevant words, in this case the clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context.
That meaning has to be assessed in the light of:
i. The natural and ordinary meaning of the clause,
ii. Any other relevant provisions of the lease,
iii. The overall purpose of the clause and lease,
iv. The facts and circumstances known or assumed by the parties at the time that the document was executed; and
v. Commercial common sense, but
vi. Disregarding subjective evidence of any party’s intentions.....”
The Plaintiff Company with their eyes wide open decided to execute Exhibit ‘1’.
Whether the representative is surprised or not, it is well established as a principle of law that a party of full age and understanding would normally be bound by his signature on a document, particularly where there is no evidence to show that the other party had misled him: see the case of OPPONG v ANARFI  1 SCGLR 556, citing with approval WILSON v BROBBEY  1 GLR 250 and the dictum of LORD DENNING MR in GALLIE v LEE (1969) 2 CH.17 at 36. It is therefore my opinion that Exhibit ‘1’, having been executed by a director of the Plaintiff, short of any evidence to the contrary, being led by the Plaintiff, is binding on the Plaintiff. I am therefore convinced that in the said Agreement, the Plaintiff undertook to pay the Defendant USD 500,000.00 as part-payment of its equity capital on or before the signing of the Agreement. Did the Plaintiff breach the said Agreement? It is the case of the Defendant that the Plaintiff breached the agreement, Exhibit ‘1’. The Defendant contends that the Plaintiff failed to pay the USD 500,000.00 agreed to in exhibit ‘1’ to the Defendant. This, according to the Defendant, constitutes a breach of the Agreement on the part of the Plaintiff. The Plaintiff thinks otherwise. As I have earlier on in this judgment held, the Plaintiff is bound by the terms and conditions of this agreement, Exhibit ‘1’ Clause 7 of the Agreement (Exhibit ‘1’) states:
FINANCES OF THE COMPANY
The Company shall initially be registered with ten million cedi (¢10,000,000.00) equity capital.
After incorporation the shareholders shall ensure the full payment for their allotted shares such that the shareholding structure shall be as follows:
Class A shareholders - 60%
Class B shareholders - 40%
The Board may call on the shareholders to make additional equity contributions as may seem desirable for the attainment of the objects of the company.
The Board of Directors of the Company shall immediately upon payment of the equity contributions.
Pay off all proven expenses incurred in the acquisition and registration of the property; security for the property to ward off encroachers etc.
Discharge all obligations such as tax etc, necessary to confirm good and marketable title to the property.
Pay all pre-incorporation expenses as shall be presented to and accepted by the Board.
Without prejudice to above La Real shall pay to the Trust on or before the signing of this Agreement an amount of USD 500,000.00 being part payment of their equity contributions to enable the Trust settle and discharge its obligations to NTHC and other legal, brokerage, etc, expenses so as to pave the way for the winding up of Trafel and the smooth take off of the project. The Trust shall execute a lease in favour of the company covering the agreed acreage being its equity contribution not later than 30 days from the date of incorporation of the Company.
The agreed total equity contributions of La Real shall be paid not later than 30 days from the date of incorporation of the company.
It is the case of the Defendant that the Plaintiff failed to pay the agreed USD 500,000.00 to the Defendant. As a matter of fact, the representative of the Plaintiff was found wanting on the issue of the payment of USD 500,000.00 to the Defendant as is contained in Exhibit ‘1’. It appeared the representative, until he was confronted with the signatures of Ghassan Laba and Charles Laba, was not aware of the existence of Exhibit ‘1’. Be it as it may, the Defendant led evidence that the Plaintiff did not pay the said sum to the Defendant. The Plaintiff had a duty to disprove what the Defendant averred that Plaintiff did not pay the said sum of money by adducing sufficient evidence of payment. This, the Plaintiff could have been able to do by tendering the receipt of payment or calling either Charles or Ghassan Laba to testify on the payment. The Plaintiff however failed to discharge this burden when it was shifted to it. The commentary to the Evidence Act on Section 14 of the Act states as follows:
“Thus, while the burden of producing evidence may shift from one party to another and back again in the course of a trial, the burden of persuasion will not shift back and forth; it may shift from the pleadings, but it will be determined to have done so only after all the evidence has been presented.”
It is clear from Section 14 of the Evidence Act that the burden of producing evidence may shift. In the instant case, when it was shifted on the Plaintiff regarding the payment of USD500,000.00 on or before the signing of Exhibit ‘1’, the Plaintiff could not lead any evidence to establish that it did pay the said amount to the Defendant in fulfilment of its obligation under Clause 7 of the Exhibit ‘1’. I am satisfied from the evidence on record that the Defendant has succeeded in establishing that the Plaintiff breached the Agreement exhibit ‘1’ by its failure to pay the USD 500,000.00 as part payment of its equity capital. The next question to be resolved is as to whether or not Plaintiff advanced USD 50,000.00 to Defendant to cover Defendant’s administrative and operational expenses. It is the case of the Plaintiff that it advanced USD 50,000.00 to the Defendant to cover the Defendant’s administrative and operational expenses. The Defendant has denied this averment. In such a situation the law requires the Plaintiff to lead sufficient and credible evidence in proof of this assertion. Brobbey, JSC, in the case of IN RE ASHALLEY BOTWE LAND; ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-2004] SCGLR 420 at 425 summed up the principles in the following manner:
“The effect of section 11(1) and 14 and similar Sections in the Evidence Decree, 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything; the Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the court has to make a determination of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. If the Defendant desires the determination be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the Plaintiff. If the court chooses to believe the only evidence on record, the Plaintiff may win and the Defendant may lose...”
In the instant case, the Plaintiff decided to rely on inferences to prove its case, why do I say so? In the first place, the Plaintiff did not tender any receipt of payment of USD 50,000.00 to Goldplus Properties Ltd. The fact that the Defendant appointed Goldplus Properties Ltd as its agents to handle brokerage services does not mean that some USD 50,000.00 was paid to Goldplus Properties for the benefit of the Defendant. This allegation of payment having been denied by the Defendant, the onus is on the Plaintiff to adduce evidence to establish this.
Again, the evidence of Plaintiff’s own representative is quite unreliable. On the 26th February, 2018 the representative of the Plaintiff was asked the following questions:
Q. Did you pay any monies at all to the Trust?
A. Yes I believe we did.
Q. How much did you pay?
A. It was USD 50,000.00.
Q. Who did you pay it to?
A. I can’t remember
Q. Did you pay it to a member of the Trust or somebody else?
A. I can’t remember.
Clearly, it the Plaintiff paid any such amount for the benefit of the Defendant, there should be a receipt of payment, Bank pay-in-slip, bank transfer receipt etc. Furthermore, if the money was paid to Goldplus Properties Ltd as the Plaintiff want this court to believe, one would have expected that in the face of the denial by the Defendant, the Plaintiff would have called Goldplus Properties Ltd to testify to this payment. Dr. Barnor could have been also called to testify but was also not called. The Plaintiff however decided to rely on Exhibit ‘G’, H’ M’ and L’. For the avoidance of doubt and for emphasis, I hereby reproduce Exhibit G’, H’, M’ and L’ in their original wording.
Received from Goldplus Properties the sum of fifty million cedi (¢50,000,000.00) being loan granted to arrange security of the Trust land. Amount received ¢50,000,000.00
Less 5% commission 2,500,000.00
(VICE CHAIRMAN) DATE: JUNE 7, 2005
From Exhibit G’ the Defendant acknowledges receipt of ¢50,000.00 (fifty million cedis) being loan granted to the Defendant less 5% commission. The stamp on it is that of Goldplus Properties Ltd. There is nothing on the face of the Exhibit G’ that shows that this loan of fifty million was obtained from the Plaintiff. Assuming for a moment that the said loan was obtained by Goldplus Properties Ltd from the Plaintiff, I have my doubts if the Plaintiff could sue the Defendant by themselves. To me, whatever transaction that was made regarding such a loan would have been between the Plaintiff and Goldplus Properties Ltd. The nature of the agreement between the Plaintiff and the Goldplus Properties Ltd had not been placed before this court. As a matter of fact, the Plaintiff cannot purport to rely on Exhibit ‘G’ as a proof of the amount of USD 50,000.00 having been paid to the Defendant. No evidence has been led by the Plaintiff on how USD 50,000.00 became fifty million cedi. At what exchange rate did Goldplus and the Plaintiff use? If the money was paid in cedi equivalent why is the Plaintiff saying they paid USD 50,000.00.
MAY 6, 2005
GOLDPLUS PROPERTIES LTD P. O. BOX OS 2893 OSU, ACCRA
ATTENTION: DR. A.W. BARNOR
Following our letter of 6th May, 2005 we write to request an amount of one hundred million cedi (¢100,000,000.00) to help us put in place measures towards the security of the land.
PETER KPOBI (VICE CHAIRMAN)
Exhibit ‘H’ is also a letter written by the Defendant requesting for One Hundred Million Cedi (¢100,000,000.00) from Goldplus Properties Ltd. This has no reference to the Plaintiff. I find it amazing how the Plaintiff would like this court to rely on Exhibit ‘H’ and conclude that it has paid USD50,000.00 to the Defendant for which it seeks refund
APRIL 21, 2006 ATTN:- DR. A.W. BARNOR
The Managing Director Goldplus Properties F543 Angola Road Osu ACQUISITION OF LAND AT EAST DADEKOTOPON ESTATES
We acknowledge receipt of your letter dated 18th April, 2006. The expenditure so far made on behalf of the Trust as quoted in your letter is $71,153.21. We would be grateful if La Real Estates would furnish us with the full details of expenditure.
We also note that La Real Estate is claiming 10 acres of land for full recovery of costs ($71,153.21) which works out to be $7,115.32 per acre. In our letter dated 30th March, 2006, we quoted a special concessionary price of $48,300 per acre to you.
We suggest however that we can still amicably discuss the cost per acre and terms of settlement.
Thank you for your usual co-operation.
SETH M. ODOI
Regarding Exhibit ‘L, the little said about it the better. In Exhibit ‘L’, the amount referred to therein as having been expended by the Plaintiff on behalf of the Defendant is quoted as USD 71,153.21. Nothing in this letter is also said about USD 50,000.00 having been paid to Goldplus Properties Ltd by the Plaintiff. It is noted that “expenditure so far made on behalf of the Trust” is different from “an advance paid to the Defendant through Goldplus properties”. If the plaintiff has advanced a loan of USD 50,000.00, to the defendant, I believe this is not how the letter, exhibit L, would have been couched. The language of exhibit L clearly shows that the USD 71,153.00 represented expenses incurred by plaintiff on behalf of defendant which the defendant acknowledges in the said letter.
Ref: MD/EA/04/06/01 18th April, 2006
The Trustees East Dadekotopon Development Trust P. O.Box CT 119 Cantonment, Accra
ATTN: MR. SETH M. ODOI
ACQUISITION OF LAND AT EAST DADEKOTOPON ESTATES
I acknowledge receipt of your letter of Marcy 30th 2006 on the current position of the Trust on the acquisition of land at East Dadekotopon by La Real Estates Limited.
It is quite clear that the Trust policy that is now being made known to GOLDPLUS, on the size of land the Trust is prepared to give to La Real is at a variance with the aspirations of La Real. This invariably means that La Real’s second option of recovery of cost in their proposal is the only way forward. To date the estimated direct costs of the transaction is $71,153.21 (Seventy One Thousand One Hundred and Fifty Three Dollars Twenty One Cents) which at 9,200:$1 is equivalent to ¢654,609,500 (Six Hundred and Fifty Four Million Six Hundred and Nine Thousand Five Hundred Cedi) which translates to ten (10) acres of land. The Trust should therefore kindly allocate the ten acres of land to close the transaction. It is our fervent hope that it will not take more than two weeks to finalize for collection the documentation on the ten acres of land. I humbly suggest that this last issue is cleared up fairly fast to maintain the existing cordial relationship between all parties.
Thanking you for everything
DR. A.W.Q. BARNOR
In exhibit ‘M’, Dr. Barnor talks about the estimated cost of transaction in the following manner:
“To date the estimated costs of the transaction is USD 71,153.21.....”
Now, what did Dr. Barnor meant by the ‘estimated costs of the transaction’? Is he referring to a USD 50,000.00 payment when he wrote USD 71,153.21? No answers were provided by the Plaintiff to these questions. I find the contents of Exhibit ‘M’, Exhibit ‘L’ in conflict with the contents of Exhibit ‘G’ and H’. The cumulative effect of the contents of these exhibits on the case of the Plaintiff is that there are apparent inconsistencies in the evidence adduced by the Plaintiff in support of its case for a refund of USD 50,000.00. The Court of Appeal in the case of OBENG v BEMPOMAA [1992-93] 3 G.B.R 1022-1037 held the view that “....inconsistencies, though individually colourless, may cumulatively discredit the claim of the proponent of the evidence.’’ The Plaintiff in the instant case could have saved the situation by calling Dr. Barnor to testify but it failed to do that. It is my view therefore that the Plaintiff failed in its attempt to establish that it paid USD50,000.00 to Defendant or Goldplus Properties Ltd for the benefit of the Defendant.
On the probabilities, I find that the Plaintiff failed to establish its claim that it advanced USD 50,000.00 to the Defendant to cover its administrative and operational expenses.
It follows therefore that the Plaintiff is not entitled to its claim. The case of the Plaintiff against the defendant is accordingly dismissed.
I am therefore left with the issue as to whether or not the Defendant is entitled to its counterclaim.
I have resolved and held earlier in this judgment that the Plaintiff breached the Agreement Exhibit ‘1’. The question I have to resolve is therefore as to whether the Defendant should be entitled to damages and if so the quantum of damages.
In CHAPLIN v HICKS (1911) 2 K.B. 786, it was stated that the fact that damages are difficult to assess does not disentitle the claimant to compensation for loss resulting from the Defendant’s breach of contract. Again, in TAI HING COTTON MILL LTD v KAMSING KNITTING FACTORY (1979) AC 91 @106 it was stated that where it is clear that the claimant has suffered substantial loss, but the evidence does not enable it to be precisely quantified, the court will assess damages as best it can on the available evidence. It is also noted further that, a violation of a right at common law will usually entitle the claimant to nominal damages without proof of special damage: see ASHBY v WHITE (1704) 2 LD, RAYM, 938.
In HADLEY v BAXENDALE (1854) 9 EX.341, the court, in determining the measure of damages in an action for a breach of contract stated:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered as either arising naturally i.e., in the usual course of things from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.”
In the instant case, the Defendant has invited the court to consider the judgment debt they paid to NDK Financial Services and NTHC Ltd, in the consideration of how much damages to award to the Defendant for the breach of the Plaintiff. Is the Defendant saying that the failure of the Plaintiff to honour its obligation under the contract brought about the debt owed to NDK Financial Services Ltd and NTHC Ltd? By the terms of clause 7 of Exhibit ‘1’, it can be said that the Defendant was expecting the equity payment of the Plaintiff so as to use some to settle its indebtedness to these financial institutions. However, it is flawed for the Defendant to say that the breach of the Plaintiff occasioned that debt for which the Plaintiff should be punished for it. I therefore find the said debt too remote. In any case the clause 7 which the Plaintiff relies on clearly confirms that the Defendant owed certain legal obligations to NTHC Ltd and other entities. It is not the breach of the Plaintiff that occasioned these legal obligations described in clause 7(d) of Exhibit ‘1’. It is my considered opinion however, that, the Defendant is entitled to damages, which in the circumstances of this case, I will assess as GH¢30,000.00.
I have taken into consideration in my assessment the fact that the land the subject matter of the Agreement (Exhibit ‘1’) was not given to the Plaintiff. The Defendant is still in possession and can sell same, if it has not even done so already. It is for the violation of its right under the agreement that I have given the Defendant the amount of GH¢30,000.00. Having examined the records before me, I do not think that the Defendant should be entitled to any punitive damages for misrepresentation and deceit. There is evidence on record that the plaintiff was trying to get the contract work. See EXH. L and M. I do not find any conduct of deceit and or misrepresentation on the part of the plaintiff. A breach of a term of the Agreement by the plaintiff, to me, does not constitute deceit or misrepresentation. Deceit is a tort which consists of a false representation of fact made by a defendant or a person who knows it to be false, or without belief in its truth, or recklessly, careless whether it be true or false, who intends that it should be acted upon by the plaintiff, and with the result it is so acted upon and damage is caused to the plaintiff. The defendant in the instant case has not led evidence to show that the representation was false, or that it was made without belief in its truth, or that it was recklessly or carelessly made by plaintiff. I therefore refuse the second relief on the Defendant’s counterclaim. No evidence or special reasons had been offered by the Defendant to warrant its claim for punitive damages.
Accordingly, I enter judgment for the Defendant on the first relief on the counterclaim. The Defendant shall have its costs, assessed at GH¢4,000.00 against Plaintiff.