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IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2019
CHIEF INSPECTOR COURAGE KWAKU AGBANU - (Plaintiff)
NII OKPELOR JACOB ABLORH MENSAH & 3 OTHERS - (Defendants)
DATE: 15TH JANUARY, 2019
SUIT NO: AL/44/2015
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:
MR. WISDOM ANTHONIO FOR THE PLAINTIFF
MR. NII ADJIN MENSAH FOR THE 1ST DEFENDANT
MR. GEORGE TETTEH WAYOE FOR THE 2ND – 4TH DEFENDANTS
JUDGEMENT
Introduction
(1) By the original Writ of Summons filed on June 10, 2015 which was amended on August 10th, 2015 and Further Amended on December 6th, 2016 with the leave of the Court, the Plaintiff claims against the Defendants the following judicial reliefs:-
(a) Special Damages of:
i. Initial sums paid to 2nd Defendant at his request for rezoning of parcel of land - GH¢ 1,000.00
ii. Total sums paid to 2nd and 3rd Defendants as purchase price of land - GH¢ 7,000.00
iii. Monies paid to 2nd Defendant as cost of construction of fence wall - GH¢ 1,700.00
iv. Total payments made for processing of Deeds of Lease - GH¢ 1,800.00
v. Sums paid by Plaintiff to surveyor for his services - GH¢400.00
vi. Costs of 1 trip each of sand and stones purchased - GH¢ 1,200.00
vii. Cost of clearing of land and uprooting of nim trees on plot - GH¢600.00
viii. Cost of single room demolished/destroyed by Defendants - GH¢ 5,500.00
ix. Cost of processing new Title Deeds/Transfer Documents - GH¢500.00
x. Cost of 5000 blocks @ 2.80 per block deposited on plot - GH¢14,000.00
xi. Total payments to 1st Defendant for Deed of Lease - GH¢36,200.00
(b) Interest on the said GH¢36,200.00 at the prevailing commercial rate of 35% per annum from 8/6/2013 till the date of final payment.
(c) General damages of GH¢50,000.00
(d) Costs of instituting this suit including lawyer’s fees.
The Claim, Defences & Issues:
(2) The factual grounds of the Plaintiff’s claim are set out in the 38 paragraph Statement of Claim filed together with the Writ of Summons. After the Defendants were served the 1st Defendant entered appearance and filed a 19 paragraph Statement of Defence on February 26, 2016 by which he substantially denied all the claims of the Plaintiff against him. Mr. George Tetteh Wayoe Esq. entered appearance for the 2nd, 3rd and 4th Defendants and also filed a joint 22 paragraph Statement of Defence for all of them on October 23, 2015.
(3) Mr. Wisdom Anthonio for the Plaintiff filed a reply to respond to the Statements of Defence filed by the Defendants on March 17, 2016. At the close of the Pleadings the Plaintiff’s Counsel formulated about 8 issues and Counsel for the 2nd, 3rd and 4th Defendants also formulated 6 additional issues for the determination by the Court. The issues set down are also follows:
Plaintiff’s Issues:
Whether or not 1st, 2nd and 3rd Defendants sold the piece of land situate at Nmai-Dzorn to Plaintiff?
Whether or not 1st, 2nd and 3rd Defendants took various sums of moneys at various points in time from Plaintiff as purchase price of the said piece of land and costs of Title Deeds/Transfer Documents.
Whether or not 1st, 2nd and 3rd Defendants issued various receipts to Plaintiff to acknowledge receipt of moneys from Plaintiff.
Whether or not the said piece of land was sold to Plaintiff at GH¢8,000.00 or GH¢14,000.00 or GH¢21,000.00 or GH¢35,000.00.
Whether or not 1st, 2nd and 3rd Defendants encouraged Plaintiff to develop the piece of land.
Whether or not Plaintiff had meetings with 1st, 2nd and 3rd Defendants.
Whether or not 3rd and 4th Defendants vandalized Plaintiff’s single room and fence wall on the land Whether or not Plaintiff is entitled to his claim.
Additional Issues:
Whether or not one (1) plot of land in the same locality as the land, the subject matter of this dispute was sold for GH¢8,0000.00 at the time of the purported sale to the Plaintiff in October, 2012 as claimed.
Whether or not Plaintiff had a meeting with the Defendants’ family to plead for reduction in the original contract sum. Whether or not the Plaintiff came back later to indicate his readiness to go ahead with the intended purchase with a new offer, regarding the price he could afford per the reduction, which was activated by his own request.
Whether or not the Plaintiff completed the contract to purchase and whether indeed he finally acquired the said piece of land.
Whether or not in the first place, the Plaintiff had a single room structure on the said piece of land.
Whether or not the Plaintiff indeed had sand, stone, etc. on the said piece of land.
Whether or not the Plaintiff rather trespassed unto the Defendants’ family land, the subject matter of this dispute, when he had not properly contracted to purchase the said piece of land. And in his trespass caused some confusion and distress to the 2nd, 3rd and 4th Defendants.
Plaintiff’s Case/Evidence:
(4) The case of the Plaintiff from the Witness Statement filed and adopted as evidence in chief is not different from the pleadings filed. I note that the Plaintiff’s witness statement filed was very detailed. The Plaintiff told the Court that he is a serving police officer at Somanya District Police Command. According to him The 1st Defendant is the acting lawful head and representative of the Numo Sowah Din Okpelor Family of Nmai –Dzorn and Teshie Accra which is also known as Okpelor Sowah Din Family. The Plaintiff testified that the 1st Defendant resides at Teshie, whilst the 2nd and 3rd Defendants who are members of the said family, reside at Adenta Frafraha Road and Teshie respectively. He also said the 4th Defendant ordinarily resides at Madina.
(5) It is the case of the Plaintiff that in or about October 2012, he met the 2nd Defendant clearing or grading a parcel of land at Nmai-Dzorn. Chief Inspector Agbanu said the 2nd Defendant represented to him that that land is to be rezoned from farmlands to residential lands or plots. He said based on the representation made to him the 2nd Defendant requested that the Plaintiff give him GH¢5000 to top up the money for the cost of rezoning after which one plot would be demarcated from the parcel and sold to me. He said he expressed interest and paid GH¢1000 at that moment. The Plaintiff said the 2nd Defendant accepted the money and showed him the plot intended to be sold to him. According to the Plaintiff the 2nd Defendant did not issue him with a receipt for the money he paid.
(6) The Plaintiff further testified that the 2nd Defendant took him to the residence of the 1st Defendant at Teshie and introduced the 1st Defendant to him as the head of the Numo Sowah Din Okpelor family and also to be the “one to execute the indenture for me if the transaction was concluded”. According to the Plaintiff the 1st Defendant affirmed the representations of the 2nd Defendant and consented for the said plot of land to be sold to him. According to the Plaintiff the 1st Defendant further mandated the 2nd Defendant to bargain and agree with him on the purchase price of the plot of land. According to the Plaintiff they consequently agreed on GH¢8000 as the full purchase price of the one plot of land.
(7) The Plaintiff further testified that the 2nd Defendant advised him to engage a surveyor to prepare a site plan and demarcate the one plot of land from the parcel of land. It is also the case of the Plaintiff that 2nd Defendant told him that he should pay half of the purchase price being GH¢ 4,000 after which an indenture was to be given to him and thereafter the “outstanding balance of GH¢4,000 can be paid in instalments”.
(18) The Plaintiff further testified that after speaking to the 2nd Defendant, he engaged Sani Ibrahim, a Surveyor and in the company of the 2nd Defendant they went unto the land. He also said, the 2nd Defendant showed the surveyor the plot of land to be sold to him and the “surveyor picked the coordinates points of the sites and demarcated the one plot for me”. According to the Plaintiff subsequently, on December 2, 2012, he paid the sum of GH¢4000 to the 2nd Defendant in the presence of the surveyor and his cousin called, Evans Segbawu who also testified at the trial. It is the further case of the Plaintiff that the 2nd Defendant gave him a “handwritten acknowledgement of receipt note signed by the 2nd Defendant and myself”. A copy of the said hand written receipt was tendered at trial as Exhibit “A”.
(9) Chief Inspector Agbanu further testified that he gave copies of the site plan to the 2nd Defendant to enable the 1st and 2nd Defendants to prepare the indenture for him and also to confirm that the one plot of land has been sold to him. According to the Plaintiff after paying the money the “indenture was not forthcoming from the 1st and 2nd Defendants despite constant reminders”. The Plaintiff said the non-production of the indenture prevented him from paying the outstanding balance. He also said the 2nd Defendant again advised him to build a fence wall around the plot to ward off encroachers.
(10) According to Chief Inspector Agbanu the 2nd Defendant got him a mason who charged him GH¢1700 for the construction of the fence wall. He told the Court that he paid the money, being the sum of GH¢ 1700 in the later part of December, 2012 to the 2nd Defendant in the presence of his cousin, Evans Segbawu. The Plaintiff further testified that upon the construction of the fence wall, he was satisfied that the land sold to him would be genuine and therefore he purchased and deposited on the plot of land building materials, a trip each of sand and stones at a cost of GH GH¢600 each totaling an amount of GH¢1200.
(11) According to the Plaintiff he kept reminding the 2nd Defendant of his promise to get him the indenture for the plot sold to him but nothing happened “until I paid a further GH¢1000 to the 2nd Defendant on two occasions upon the advice of the 2nd Defendant”. He also said after the payment of the last GH¢1000 to the 2nd Defendant, he accepted his advice in the “presence of Evans Segbawu that the indenture should be procured through the 3rd defendant, who the 2nd Defendant claimed had been representing and testifying for the 1st Defendant and the Numo Sowah Din Okpelor Family in Court.
(12) Chief Inspector Agbanu further said he later received a telephone call from one Nii of Teshie, the 3rd Defendant herein, who told him “that the plot of land sold to me by the 1st and 2nd Defendants did not belong to them but to himself and that I should meet him at a spot in Teshie for an arrangement for the land to be transferred to me if I was still interested”. The Plaintiff said at the said meeting with the 3rd defendant, he pointed out to him that he had paid GH¢7000 to the 1st and 2nd Defendants for the 1 plot of land. Nonetheless, “the 3rd Defendant demanded GH¢3000 from me to prepare the indenture claiming that he need not take the land from me since same has already been sold to me. I requested that the 2nd Defendant be called to come and listen to the 3rd Defendant’s demands. The 3rd Defendant called the 2nd Defendant and upon his arrival we haggled over the payment of the additional GH¢3000”.
(13) According to the Plaintiff after negotiating over the money for a while, he agreed to pay only GH¢1000 to the 3rd Defendant and the outstanding to be paid in two months’ time in the presence of both the 1st and 2nd Defendants. The Plaintiff said on or about 22/5/2013, the 3rd Defendant brought to him four copies of a 99-year Deed of Lease already executed by the transferor, Numo Sowah Din Okpelor Family and with him as the lessee. A copy of the lease document with an attached site plan was tendered at trial and same was marked as Exhibit “B”.
(14) Chief Inspector Agbanu further testified that he became somewhat skeptical when he read the lease and saw that it was backdated to September 7, 2006 even though he purchased the plot of land from the Defendants in December, 2012. According to him “the 3rd Defendant could not explain this misnomer to me satisfactorily and so I insisted that I will pay him the money he demanded from me only in the 1st and 2nd Defendants’ presence so as to ensure that I was dealing with a genuine person”. According to the Plaintiff, the 3rd Defendant convinced him to accept the backdated lease document and start the processing. He said he agreed and started the processing at the Lands Commission and spent GH¢1800 up to the point that he stopped.
(15) It is the further case of the Plaintiff that, upon his request for receipts for all monies paid by him to the 2nd Defendant, he gave him a receipt dated 8/6/2013 purported to be the official receipt emanating from the Okpleor Sowah Din Family of Nmai Dzorn/Teshie. According to him the receipt did not include the initial GH¢1000 he paid for the top up of the cost of rezoning of the parcel of land. The receipt also did not indicate whether there is any outstanding to be paid on the purchase price. A copy of the Official Receipt No.0000019 dated 8/6/2013 was tendered at trial without objection and same was marked as Exhibit “C”.
(16) The Plaintiff further testified that one day he received telephone calls that someone had entered his plot of land and started digging foundation trenches thereon. He said he reported the matter to the Nmai Dzorn police and the matter was transferred to the Property Fraud Unit at Police Headquarters for investigation. The investigations revealed that one Richard Kwadwo Osei Sarpong caused the foundation to be dug. He claimed that the former head of Numo Sowah Din Okpelor family had sold the 1 plot of land to him in 2005.
(17) The further case of the Plaintiff is that during the pendency of the matter with police for investigations, he went to see the 1st Defendant concerning the developments on the plot of land sold to him with his consent and the 1st Defendant told him that he recalled that “I was introduced to him by the 2nd Defendant but he does not recall giving me an indenture”. According to Chief Agbanu he explained to him that the 3rd Defendant had already given him a Deed of Lease dated 7/9/2006 and showed him a copy. ‘He inspected it and told me that that deed of lease, Exhibit “B” was a forged document and that the signature appearing thereon was not his”.
(18) According to the Plaintiff later upon the request of the police, statements were taken from the 1st Defendant as part of the investigations. The Plaintiff said after that, the 1st Defendant asked him if the plot of land sold to him was developed and he answered in the negative. He said the 1st Defendant demanded from him another GH¢2500 to enable him to prepare and give to him a genuine indenture concerning the plot of land sold to him. He said he agreed with the 1st Defendant that he will pay him the money he is demanding in two instalments and so on 2/1/2014, he paid GH¢ 1500 at the residence of the 1st Defendant. According to the Plaintiff “the 1st defendant issued Okpelor Sowah Din Family Official Land Receipt dated 2/1/2014 to me”. A copy of the said receipt was tendered and marked as Exhibit “D” at trial. It is the case of the Plaintiff that at the back of Exhibit “D” the 1st defendant wrote by hand that “the 2nd and 3rd Defendants received the purchase price of the land from me and that the money I paid to him was for documentation only”.
(19) The further case of the Plaintiff is that he again on 25/1/2014, paid the outstanding of GH¢1000 at the residence of the 1st Defendant and the 1st Defendant issued to him another receipt in the name of Okpelor Sowah Din Family dated 25/1/2014. A copy of the said receipt was tendered at trial as Exhibit “E”. According to the Plaintiff at the back of Exhibit “E” the 1st Defendant indicated that the plot of land was sold to him by the 2nd and 3rd Defendants.
(20) The Plaintiff further testified that after he paid the outstanding balance, the 1st Defendant requested and inspected all the receipts and other documents issued to him by 2nd and 3rd Defendants for payment made to the 2nd and 3rd Defendants. The Plaintiff said being satisfied, the 1st Defendant instructed his surveyor to” prepare for me a new site plan in my name for a new indenture”. The surveyor prepared the site plan and the 1st Defendant called him on phone that the indenture was ready for collection and processing. He further testified that on or about 15/12/2014, “I went to the residence of the 1st Defendant and received from him four sets of a Deed of Lease dated 4/1/2014 already executed by the 1st Defendant with a stamp registration number Stamp No. LVD1095/2014. The Deed of Lease had the new site plans prepared by Mr. E.K. Djokoto, 1st Defendant surveyor, attached to it”. A copy of the Deed of Lease was tendered as Exhibit “F” by the Plaintiff at trial.
(21) The further evidence of the Plaintiff was that after he executed his portion of Exhibit “F” on the advice of the 1st Defendant, he started the processing of the land. The Plaintiff testified that “on the day Exhibit “F” was handed over to me, 1st Defendant advised me that I should go ahead and develop the plot of land”. This is because “his checks from family members confirmed that the plot of land sold to me was different from that sold to the said Richard Kwadwo Osei Sarpong, who I was advised not to allow to take over my plot of land as his was at a different location”. Consequently, according to him he engaged an agent at the Lands Commission and the processing cost him GH¢1800.
(22) Further, it is the case of the Plaintiff that acting on the previous representations of 2nd and 3rd Defendants that the land had never been sold by the Numo Sowah Din Okpelor Family to anyone else and that “I should start development, I deposited over 5000 pieces of 6 inches quarry dust blocks at the cost of GH¢ 2.80 per block, aside the trip each of sand and stones already deposited there. He also said “I purchased 3357 pieces of 6 inches quarry dust blocks at GH¢2.80 per block on 7/2/2014 from a block factory at a cost of GH¢ 9,400. I was issued a receipt dated 7/2/2014 a copy of which is attached herewith and marked Exhibit G”.
(23) Further, according to the Plaintiff he had at his residence at Tigo Pole, Nmai Dzorn over 2000 pieces of 6 inches quarry dust blocks which he caused to be conveyed onto the plot of land to build a single room to store other building materials. He said the 2000 pieces cost him GH¢5600 that is GH¢2.80 per block. According to Chief Inspector Agbanu the 2000 blocks are not covered by receipts because “I bought them earlier in time and used quantity and the remaining over 2000 pieces I deposited on the plot for the intended building project”. He also said in moving the quarry dust block to the plot of land, some got broken and so according to him “in fairness I decided to claim from the Defendants only GH¢14, 000.00”.
(24) It is the further case of the Plaintiff that “I started work on my plot of land by clearing same of the bushes and uprooting of Nim trees thereon at a cost”. According to him on or about, 25/1/2014, the 4th Defendant with land guards entered the land, threatened and attacked the workers and so he lodged a complaint against the 4th defendant and his land guards at Nmai Dzorn police station but they fled the site before the police could arrive.
(25) Chief Inspector Agbanu further testified that on or about 8/3/2014, he sent workers to construct a single room on the land and whilst working on the land, the 3rd and 4th Defendants, with land guards, attacked them. He said he was called to come but they fled before he arrived. According to him for fear that the workers might be attacked again, he advised them to leave the plot of land.
(26) His further evidence was that whilst the single room was being constructed, the 3rd and 4th Defendants with their land guards came and attacked the workers again. He said “I had a call from the workers and I quickly reported the conduct of the 3rd and 4th Defendants to the Accra Regional Police Command. I was given a patrol team of the Accra Regional SWAT to go with me to forestall any bloodshed. Before we could arrive, the 3rd and 4th Defendants and their land guards had fled. The patrol team waited for a while and left whilst I remained with the workers on the land. After a while I decided to go to Nmai Dzorn police station to complain about the conduct of the 3rd and 4th Defendants”.
(27) He further told the Court that “as I was about to enter the police station, I got a phone call that the 3rd and 4th Defendants with their land guards have returned. I rushed back and saw them on the plot sitting on motor bikes and horses. I quickly called the SWAT patrol team. The land guards fled as soon as they saw me. I managed to restrain the 4th Defendant. The 4th Defendant offered to refund to me all moneys I paid to 1st – 3rd Defendants as purchase price and documentation fees for my plot of land. The 4th Defendant told me the land was no longer selling at the price I agreed with the 2nd Defendant. The patrol team returned shortly and the 4th Defendant told them that they entered the land because I was developing the land during the pendency of police investigations concerning a case on the land”.
(28) The Plaintiff said he contacted the police investigator in charge of the complaint pending at the Property Fraud Unit of the Ghana Police Service who informed him that the investigation had ended and it came out that the plot of land sold to him by the 1st, 2nd and 3rd Defendants had earlier been sold to the said Richard Osei Sarpong. A copy of the investigative report dated 19/8/2014 was tendered at trial as Exhibit “H”.
(29) The Plaintiff further testified that after the conclusion of the investigation, he started receiving threats of harm and death from the 3rd and 4th Defendants and his checks revealed that the land has been sold to another person at a higher price to the knowledge of the Defendants. It is the case of the Plaintiff that the Defendants colluded amongst themselves and vandalized the single room he built on the plot of land. The Plaintiff tendered at trial photographs of the alleged “vandalisation of my single room structure on 9/3/2014” as Exhibit “J”.
(30) Chief Inspector Agbanu said “I reported the vandalisation to the Chief of Nmai Dzorn who invited the 2nd and 3rd Defendants and myself to Nmai Dzorn for a meeting. In that meeting, the 2nd and 3rd Defendants stated that the land was sold to me at GH¢24,000 but they were prepared to accept GH¢ 21,000 as the final purchase price. I denied their claim and so I decided to seek redress in court.
(31) He also said he reported “the threat of death I received from the 4th defendant to the police who investigated the matter and charged and arraigned the Defendants before court, which criminal matter is still pending at the Accra Circuit Court”. A copy of the Police Investigation Report on the complaint against the 4th Defendant dated 13/5/2015 was tendered as Exhibit “K”.
(32) According to the Plaintiff all the building materials he took to the land have been stolen while the labourers he engaged on the land charged him GH¢ 10,000.00 of which he paid GH¢5,500. The Plaintiff ended his testimony as per the adopted witness statement by providing the Court with what he said was the summary of the expenses he incurred in regards to the plot of land situate at Nmai Dzorn in a table form as follows:
Particulars of Special Damage:
a. Initial sums paid to 2nd defendant at his request for rezoning of parcel of land – GH¢ 1,000.00
b. Total sums paid to 2nd and 3rd defendants as purchase price of land - GH¢ 7,000.00
c. Moneys paid to 2nd defendant as cost of construction of fence wall - GH¢ 1,700.00
d. Total payments made for processing of Deed of Lease - GH¢ 1,800.00
e. Sums paid by plaintiff to surveyor for his services - GH¢ 400.00
f. Costs of 1 trip each of sand and stone purchased - GH¢ 1,200.00
g. Costs of clearing of land and uprooting of nim trees on plot - GH¢ 400.00
h. Costs of single room demolished/destroyed by the defendants - GH¢ 5,500.00
i. Cost of processing new Title Deeds/Transfer Documents - GH¢ 500.00
j. Cost of over 6” and 5” blocks deposited on plot - GH¢14,000.00
k. Total payments to 1st defendants for Deed of Lease - GH¢ 2,500.00
Total - GH¢ 36,200.00
(33) The Plaintiff in support of his case called Mr. Sani Ibrahim. A Surveyor with the Regional Survey of Mapping Division of Lands Commission. He filed a witness statement which was adopted by the Court as his evidence in chief. He testified that he knows the Plaintiff and got to know the 2nd Defendant as a result of this case as a member of the Numo Sowah Din Okpelor Family of Nmai-Dzorn, Accra. He told the Court that he knows the plot of land which is the subject matter of the suit. According to Mr. Sani somewhere in the year 2012 the Plaintiff engaged his services as a land surveyor for a fee and he went on to meet the 2nd Defendant.
(34) According to Mr. Ibrahim the Plaintiff, the 2nd Defendant and himself together went onto the land at Nmai-Dzorn. He told the Court that the 2nd Defendant showed him “the 1 plot intended to be sold to Plaintiff and I in the presence of the 2nd Defendant and the Plaintiff picked the points of the sites and demarcated the 1 plot for Plaintiff. I also prepared site plan covering the said 1 plot of land and caused same to be signed by a Licensed Surveyor and handed over same to the Plaintiff later”. He also told the Court that he charged the Plaintiff GH¢400.00 and same was paid to him. He also said he knows as a fact that “Plaintiff on 2/12/2012 paid the sum of GH¢4,000.00 to the 2nd Defendant in my presence and also in the presence of Plaintiff’s cousin in the person of Evans Segbawu which sum the 2nd Defendant received and issued him a hand written receipt dated 2/12/2012”. I note that the Plaintiff also called Mr. Evans Segbawu who filed a witness statement and also testified at trial. In a nutshell, the Plaintiff gave evidence for himself and called Mr. Ibrahim and Mr. Segbawu to close his case.
The Defendants’ Case/Evidence:
(35) The 2nd, 3rd 4th Defendants gave evidence for themselves and one Isaac Thompson Mensah testified for the 1st Defendant and called no other witness before closing their case. Mr. Isaac Thompson Mensah testified that he knows the Plaintiff and the Defendants. He said he got to know the Plaintiff “when my father, the 1st Defendant called me when the Plaintiff came to our house holding a document in respect of land he said my father prepared for him. He continued that “my father studied the document which was an indenture and told the Plaintiff that it was not properly executed. The Plaintiff subsequently brought One Thousand Ghana Cedis (GH¢1000.00) to my father to prepare an indenture for him which my father did”.
(36) He further testified that “my father asked me to go with the Plaintiff to the land in question to verify whether or not it had not already been granted. I went with the Plaintiff to the land and I ascertained that it had not been granted to any other person so I informed my dad about it and he prepared an indenture for the Plaintiff even though no valuable consideration had been paid for the land. My father did this because the Plaintiff pleaded with him to assist him and also because he wanted an amicable resolution of the issue the Plaintiff had with his family members”.
The Testimony of the 2nd Defendant:
(37) The 2nd Defendant’s evidence was in pith and substance a rehash of the Statement of Defence filed by Mr. Tetteh Wayoe for the 2nd, 3rd and 4th Defendants. Mr. Daniel Ablorh Mensah who is the 2nd Defendant in the suit testified that the Plaintiff and his cousin came to meet him grading a parcel of land and expressed interest in a piece of it. He said he indicated to the Plaintiff that the entire parcel of land is a family land and that the portion he was grading belonged to somebody who was buying same from the family but the Plaintiff kept to put pressure on him that he still wanted a piece from another portion. He said he eventually agreed and took the Plaintiff to meet the 1st Defendant who was the Acting Family Head of at the time.
(38) According to Mr. Ablorh Mensah the land, the subject matter of the dispute was transacted for sale to the Plaintiff at Thirty Five Thousand Ghana Cedis (GH¢35,000) for a plot of land in the chosen area. His further evidence was that after the meeting with the 1st Defendant, the Plaintiff “came to me later and gave me a Thousand Ghana Cedis (GH¢1,000) as down payment”. The Plaintiff then gave me 6 bottles of Sprite and a bottle of whisky as a thank you or gratitude, for helping him to secure the land”. He said he never attempted to convince the Plaintiff to buy a piece of land but rather it was the Plaintiff who put pressure on him after seeing the parcel of land he was working on and expressed interest in acquiring one. He said the reason why “I never attempted to convince the Plaintiff to buy a piece of land was that lands are very expensive in Nmai-Dzorn and I knew the Plaintiff could not afford one at the time he was putting pressure on me for a piece. However, I decided to facilitate for him because I knew him briefly, for at the time of his incessant pressure, he was a kind of friend, hence, my intention to help him by taking him to the family to see whether he would be assisted and then pay the purchase by instalment”.
(39) The further evidence of Mr. Ablorh Mensah was that “the Plaintiff paid Seven Thousand Ghana Cedis (GH¢7,000) but he could not raise the GH¢35,000 and came begging for a reduction, so he was arranged to meet the elders of the Okpelor Sowah Din Family, the traditional custodians and owners of Nmai-Dzorn Lands. “At this meeting, Plaintiff proposed to pay Fourteen Thousand Ghana Cedis (GH¢14,000) in addition to the GH¢7,000 already paid. Thus, the Plaintiff now proposed to pay GH¢21,000 instead of GH¢35,000. And same was agreed by elders of the family”.
According to Mr. Ablorh Mensah the Plaintiff never came back to pay the GH¢14,000 after which he would have been permitted to enter the land but “he decided to trespass unto the land to dig trenches on the portion agreed to be sold to him even though the sale had not been completed and possession given to him”.
(40) Mr. Ablorh Mensah further testified that all “what I was expecting was for the Plaintiff to come back with various sums at different times, so I could lead him to the family, as he pays for the land in a kind of indirect instalment. A process I was very ready to go through with him by interceding on his behalf at my family level until the day of final payment. However, my expectation was never met and all I could get was a legal suit against me”. He said “all I did was to help the Plaintiff to acquire a piece of land from my family but his inability to raise monies within a reasonable time to make a full payment became his problem and instead of the Plaintiff coming back to meet the elders once again to propose a payment plan, he rather chose a legal action”.
(41) According to the 2nd Defendant “the Plaintiff can never make a case that the piece of land, which is the subject of this litigation, is sold for GH¢8,000 because lands in that area were not sold at the said price at the time of the intended sale. And that lands in that area were going for not less than $20,000 at the time so it could not have been that the land was sold for GH¢8,000 and the Plaintiff in no way can justify to the Court why the family would sell to him in particular at such a very low price”. He further said “that the Plaintiff can never prove that the land was sold for GH¢8,000. However, the Defendants herein can prove that receipts for the Plaintiff’s initial payment indicates that whatever monies paid, were “part payment” of the purchase price”.
(42) Mr. Ablorh Mensah further said that it was his expectation that upon the completion of the final payment of GH¢35, 000 by the Plaintiff the necessary title documentation would have been done in his name and then the property passes to him but “the Plaintiff never showed up to complete payment but decided later to use his standing in society as a ‘Policeman’ to bulldoze his way to take the land by moving unto the land when the sale has not been completed”. He also said “I never told the Plaintiff to develop the piece of land because he had to finish payment before title will pass to him”. It is the case of the 2nd Defendant that the Plaintiff was given the opportunity to finish payment within two months after his counter offer of GH¢14,000 in addition to the initial payment of GH¢7,000 but decided to ignore his obligation to complete payment and rather litigate and ridiculously, to litigate in a transaction that he has not met his obligation therein”. Based on the above Mr. Ablorh Mensah said because the Plaintiff did not finish the payment for the land “the piece of land has not been handed over to him yet” and so “he cannot hold himself out as owing any piece of land because there is no agreement for title to pass before final payment is made. Mr. Ablorh Mensah concluded his testimony by saying that because the Plaintiff failed to pay for the full price of the land, there is no agreement between them and therefore title cannot pass to him and so he has no land to claim from the Defendants.
(43) Mr. Benjamin Boye Tawiah, the 3rd Defendant also relied on the witness statement and the supplementary witness statement filed for his testimony at trial. He denied the Plaintiff’s allegations against him and testified that the reason why his name came into the transaction was that “the initial intended piece of land to be given the intended Plaintiff purchaser was for the 1st Defendant but same had been sold at the time”. According to him it was decided that his portion be sold to the Plaintiff if he was ready to sell. He said he agreed that his “portion of the said family land be sold to the Plaintiff”. Mr. Boye Tawiah also testified that the land was “going for GH¢35,000 but was reduced at the Plaintiff’s plea to GH¢21,000 which he paid GH¢8,000”. The 3rd Defendant further testified that the Plaintiff did not complete the full payment for the land and therefore he could not deal with the land. To that extent, according to him the Plaintiff had no business going unto the land.
(44) The 4th Defendant also testified in his own defence. His testimony was that he has not had any dealing with the Plaintiff. He said “I am a family friend and can say today that I am a son of the Okpelor Sowah Din Family, the lawful custodians of Nmai-Dzorn lands and do carry out land management sales with the 2nd and 3rd Defendants herein. That in relation to the land, the subject of this dispute, the Plaintiff dealt with the 2nd Defendant herein and have no idea why he has sued me”. He also testified that “the Plaintiff’s claim that his building materials have been destroyed is untrue and that there was nothing belonging to the Plaintiff on the said piece of land to be destroyed”. According to him, the Plaintiff is not entitled to his claim and the reliefs he seeks from this Honourable Court. It is therefore the case of the 1st, 2nd, 3rd and 4th Defendants that the Plaintiff is not entitled to any of the reliefs he seeks and therefore the suit should be dismissed. In a nutshell, this is the evidence before the court.
DETERMINATION OF ISSUES BY THE COURT - The Court’s Opinion, Analysis and Conclusion
(45) The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.
“Except as otherwise provided by law, unless and until 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 he is asserting”
(46) The principle of law has received judicial blessing as the Supreme Court pronounced on it in the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420. The Court held per Wood JSC (as she then was) at page 444 that:
“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial, depending on the issues asserted and or denied.”
(47) Further, it is to be noted that this general position on the burden of proof and of persuasion has had judicial approval by the Supreme Court in the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:
“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.
(48) In the context of the instant suit the Plaintiff carries the burden of proof and of persuasion which is to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 325). However, as was observed by, Brobbey JSC (as he then was) in the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS SUPRA at page 465 a defendant generally does not carry a burden of proof, because the Plaintiff who took the Defendant to Court has to prove what he claims is entitled to from the Defendant. However, if the court has to make a factual determination of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. Consequently, in line with the tenets of Section 14 of NRCD 323, a Defendant who wishes to be successful in a matter is required to adduce facts and provide evidence on issues he desires to be held in his favour.
(49) The Supreme Court has also explained in the case of OKUDZETO ABLAKWA (No. 2) vs. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at 867 that
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
See also BANK OF WEST AFRICA v. ACKUN [1963] 1 GLR 176.
(50) In this case I wish to consider the Plaintiff’s case by first considering the Plaintiff’s issue (A), which is “Whether or not 1st, 2nd and 3rd Defendants sold the piece of land situate at Nmai-Dzorn to Plaintiff “. If the answer is yes, I would then consider “At what price did the parties agree to sell the land? That issue will then take care of the Plaintiff’s issue (D) and the Defendants’ additional issue (1) and (3). I will then consider “how much money did the Plaintiff pay to the 1st, 2nd and 3rd Defendants”? After that I shall combine the Plaintiff’s issue (F) with the Defendants’ additional issues Further, I shall combine Plaintiff’s issue (G) and Defendants additional issues (4) and (5) and finally, I shall deal with the additional issue (6). From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, and, after having read the written submission filed by the Plaintiff’s Counsel and Counsel for the 2nd, 3rd and 4th Defendants, in my view the above issues constitute the meat of the action because they relate to the question as to whether or not the 1st, 2nd and 3rd Defendants had any contractual relationship with the Plaintiff in the first place.
(51) In respect of the first issue set out and stated above, after my examination of the evidence adduced at the close of the trial, I have come to no other conclusion than that, the Plaintiff’s testimony and that of the witnesses called evidence is credible and sufficiently discharges the onus on the Plaintiff based on the prescribed statutory standard and established judicial authorities. Indeed on that issue the Defendants admit that one plot of land was sold to the Plaintiff. Their only defence which was reiterated by Counsel for the 2nd, 3rd and 4th Defendants in his written legal submission was that “it is clear from the arrangement between the parties herein that title or interest in the intended land would only pass to the Plaintiff after full payment of the purchase price by the Plaintiff”. The submission to my mind admits to the fact that the piece of land was sold to the Plaintiff in the first place.
(52) Further, Exhibit “A”, which is a handwritten receipt dated December 2, 2012 signed by the 2nd Defendant, Daniel Ablorh Mensah acknowledged receipt of the amount of GH¢4,000.00 as “part-payment of a purchase price for a plot of land situate at Nmai-Dzorn”. The 2nd Defendant under cross-examination admitted taking GH¢7,000 in total from the Plaintiff in respect of a plot of land sold to the Plaintiff. Other Exhibits tendered at trial such as Exhibit “B”, being the indenture dated September 7, 2006 and Exhibit “C”, an official receipt dated June 8, 2013 from the Okpelor Sowah Din Family of Nmai-Dzorn with the face value of GH¢7,000 as part-payment for the plot of land situate at Nmai-Dzorn and Exhibits “D”, “E” and “F” all speak in plain and clear terms in regards to the sale of the one plot of land to the Plaintiff first by the 2nd Defendant, but later acknowledged and affirmed by the 1st and 3rd Defendants. I therefore find from the evidence on record that the 1st, 2nd and 3rd Defendants sold a plot of land situate at Nmai-Dzorn to the Plaintiff. I therefore resolve the first issue in favour of the Plaintiff.
(53) The next issue for consideration is in respect of the agreed price for the plot of land. The Plaintiff says that after he first met with Mr. Ablorh Mensah he expressed interest in acquiring one plot of land but he explained to him that he did not have enough cash on him at that time and therefore he gave Mr. Ablorh Mensah GH¢1,000 and “he accepted same from me”. According to the Plaintiff thereafter he went to show him the plot intended to be sold to him. It is the case of the Plaintiff that he bargained with the Defendant there and then and agreed on the sum of GH¢8,000 as the full purchase price for the plot of land after which the land was demarcated to him. He also testified that he was assured that if he paid half of the price he would be presented with the Indenture/Title to the land. It is the case of the Plaintiff that further to the direction of the 2nd Defendant he engaged the services of a surveyor, Sani Ibrahim who successfully surveyed the plot of land after the 2nd Defendant had showed him the points and co-ordinates. Chief Inspector Agbanu further testified that he thereafter paid the sum of GH¢4,000 to Mr. Ablorh Mensah in the presence of his cousin, one Evans Segbawu and the surveyor.
(54) The Defendants contest the Plaintiff’s claim with regards to the price of the plot of land and say the agreed price was the sum of GH¢35,000 for the plot of land because the lands in the locality at the time were not being sold below $10,000. According to the Defendants the intended land was not sold to the Plaintiff because he could not pay for same even though the price was later reduced to GH¢21,000. According to the Defendants though the Plaintiff at the time had paid GH¢8,000, GH¢7,000 was actually in respect of the land but GH¢1,000 was given to the 2nd Defendant as a gift with some drinks for leading him to secure the family land. According to the Defendants therefore, the Plaintiff was to deduct the GH¢7,000 from the price of GH¢21,000 and therefore the balance due which he failed to pay was GH¢14,000.
(55) From the evidence on record the court has no basis to hold that the price for the plot of land was GH¢35,000 and same was later reduced to GH¢21,000. Though all the exhibits of payments (Exhibits “A””C”,”D” and “E”) indicated on the face as “part payment” and they together total about GH¢13,500 on the face in the opinion of the Court the Plaintiff explained clearly what the payments were for. I note that at the back of Exhibits “D” and “E” specifically it is stated that those payments were for “documentation” and not ”land money” because “Daniel and Boye Ben” (referring to both the 2nd and 3rd Defendants) had taken the land money already. That being so, I hold that there is no basis to accept the Defendants position of the price of the land which remained bare assertions and clearly a well-orchestrated and rehearsed story by the Defendants who testified.
(56) Ollenu J. A. (as he then was) observed and held in the old case of KYIAFI v. WONO [1967] GLR 463 on the credibility of witnesses that:
“The question of impressiveness or convincingness are products of credibility and veracity. A court becomes convinced; impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses”.
(57) Relying on the above statement, I wish to state with respect to the 2nd, 3rd and 4th Defendants that they did not impress me as a truthful witnesses. I say so about them because I had the opportunity to observe them when they testified and I have also read the cold words of their testimony. The 4th Defendant in particular came across as a cocky and arrogant witness and all of them showed that they were only willing to adhere to their rehearsed story as contained in the statement of defence and witness statements filed and nothing more. I note that the Defendants’ case is riddled with inconsistencies and untruths such that their case rather strengthened the case of the Plaintiff. For instance while the 2nd Defendant insisted that the amount of money paid to him was GH¢7,000, the 3rd Defendant told the Court in his evidence in chief that it was GH¢8,000.
(58) A few lines from the cross-examination of the 2nd and 3rd Defendants in particular are instructive on the issue of their credibility. On October 10, 2017 when the 2nd Defendant was cross-examined he “danced around” a simple question as to whether he introduced the Plaintiff to the 1st Defendant as the head of family of the Okpelor Sowah Din Family of Nmai-Dzorn. This is what happened:
“Q. You introduced the 1st Defendant to the Plaintiff as the head of Okpelor Sowa Din family is that correct
A. No I didn’t introduce the 1st Defendant to the plaintiff. I was grading the parcel of land and he approached me and he showed interest in part of it so I told him the land is a family land and the portion I am grading is for somebody. And he said he is interested in a portion so we arranged and I took him to my uncle the first defendant that he has the portion of land for sale so that is what happened.
Q. When you took the plaintiff to the 1st Defendant you told the plaintiff that this is my head of family. What did you tell the plaintiff about the 1st Defendant?
A. That he showed interest in a parcel of land that is why I brought him
Q. Why did you take Plaintiff to the 1st defendant?
A. Because the area that he showed interest in belongs to the 1st Defendant
Q. Is it true that when you took the Plaintiff to the 1st Defendant, the 1st Defendant at that time was the acting head of Okpelor Sowah Din family
A. Yes but then we were in court over the head of family issue
Q. I am suggesting to you that when you took the Plaintiff to the 1st Defendant you indeed introduced the 1st Defendant as the head of the Okpelor Sowah Din family
A. No …
Q. Look at your witness statement that you filed on 20th June, 2016 paragraph 4 line four (counsel reads to open court) is it there
A. Yes
Q. I am putting it to you that you indeed introduced the Plaintiff to the 1st Defendant as the head of the acting Okpelor Sowah din family
A. No
Q. You took monies from the Plaintiff to which you issued receipts is that correct
A. Yes
Q. How much in total did you take from the Plaintiff?
A. Is GH¢7,000”
(59) On February 14, 2018 when the 3rd Defendant was also cross-examined by the Plaintiff Counsel. This is part of what happened:
“Q. It is your case that the plot of land that was offered to the Plaintiff was priced at GH¢35,000.00
A. That is so my Lord.
Q. But you did not make the offer of that one plot to the Plaintiff.
A. That is so my Lord.
Q. I am suggesting to you that your claim that the plot was priced at GH¢35,000.00 is not correct.
A. My Lord it is true, the issue is that this is my second time coming into this matter, I did not give the land to him. My Lord I did not have any negotiations with him with respect to the land.
Q. So you did not know the Plaintiff and you did not deal with him and so your claim that the Plaintiff offered to buy the land at GH¢21,000.00 is not true.
A. My Lord I would like to explain the reason I hold the above position. My lord about 12:00 to 1:00 pm somewhere in 2013 – 2014, I was at home when I received a call from Daniel Ablorh Mensah, the 2nd Defendant in this suit, who informed me that he had given my phone number to someone he was having negotiations with concerning a plot of land. My Lord someone and I are joint owners to a particular land which has arouse some issues and I have therefore intended to sell it off so the 2nd Defendant notified me that the person who intended to buy his land which was not possible has expressed interest in buying mine. So the intended buyer called me so we arranged and met at the Laskala market, he was in a company of his brother, after the conversation, he expressed interest in buying the land and I told him the land belongs to someone and I. My lord so I told him about the price which was GH¢35,000.00. My lord I asked him to pay half of the agreed amount of GH¢21,000.00 before he could go to the land. My Lord, he made me understand that he had initially paid GH¢6,000.00 to Daniel Ablorh Mensah to be used to construct a wall. My lord I notified him that I am the person who has done all works on the land but it was not Daniel Ablorh Mensah. My lord so I asked him to take the GH¢6,000.00 out of the GH¢21,000.00 he is to pay for the land as Daniel Ablorh Mensah is my son and I cannot give him out or cause his arrest. My lord, I then asked him to pay GH¢8,000.00 out of the GH¢15,000.00 so that I could give it to the person with whom I own the land and then pay the rest of the GH¢7,000.00 in bits. My lord, he then agreed with the terms and requested that he is given documents in respect of the land, the said documents were prepared and signed by the head of family in the person of Jacob Nii Ablorh Mensah and it was witnessed by me”.
When the Cross-examination continued on February 19, 2018 this is what happened.
“Q. The Plaintiff was prevented from developing the land that was shown and sold to him.
A. My Lord, I did not show any land to the Plaintiff.
Q. I am putting it to you that the Plaintiff was prevented from developing the plot of land shown and sold to him, by you and the 2nd Defendant.
A. My Lord I did not take him to any land to show to him.
Q. But did you prevent him from developing any land at all.
A. My Lord I did not show him any land to go and develop it…..
Q. In your Witness Statement to this Court, in paragraph 4, you stated that a plot of land was intended to be sold to the Plaintiff which did not go through.
A. My Lord, the plot is mine but I did not do any business with him. He came to be that he had been shown a piece of land but I did not show him any piece of land.
Q. Yourself and the 2nd Defendant gave Plaintiff a Deed of Lease that is Exhibit “B”. Is that so?
A. My Lord I want to take a look at the signatures. My Lord we prepared the Deed for him but I have an explanation. My Lord he had done the transaction with Daniel Mensah already so I told him Daniel Mensah should prepare the document for him so that he (Plaintiff) will come and give me the money to me but since then he has not come.
Q. You signed Exhibit “B” as a witness to the 1st Defendant herein, is that not so.
A. My Lord, yes, I witnessed for him.
Q. Do you know that 1st Defendant said that his signature in Exhibit “B” has been forged.
A. My Lord it is not true that it is a forged document.
Q. Look at Exhibit “B” and the site plans attached to Exhibits “B” & “F”
A. Yes.
Q. Those two site plans in both Exhibits “B” & “F” refer to the same plot of land’
A. My Lord I do not know….
Q. You earlier on agreed that you prepared Exhibit “B” for the Plaintiff, on the day that you and the 2nd Defendant went to give Exhibit “B” to the Plaintiff you took money from him. Not so.
A. My Lord I and Daniel Mensah went to see the Plaintiff or went to the Plaintiff’s house but I did not give him the document and he did not give me any money.
Q. I am putting it to you that on the day the two of you, you and the 2nd Defendant went to Plaintiff’s house, he gave you money in exchange for Exhibit “B”
A. My Lord he did not give me any money.
Q. You stated in your Witness Statement that your plot of land which you claim you sold to the Plaintiff was going for GH¢35,000.00 and the Plaintiff pleaded to pay GH¢21,000.00. Is that so?
A. My Lord when he came to me that was what I told him.
Q. You remember having told this Court that you never bargained and sold any plot of land to the Plaintiff.
A. My Lord, we bargained but I did not take him to any land.
Q. I am suggesting to you that when you stated in paragraph 3 of your Witness Statement that “I have no dealing with the Plaintiff herein”, you were not being truthful to the Court.
A. My Lord plaintiff came to me but he did not give me any money and we had no dealing in respect of any land”.
(60) In the opinion of the Court the inconsistencies demonstrated by both the 2nd Defendant and the 3rd Defendant show that they are not worthy witnesses and indeed there is no concrete or cogent evidence from the Defendants to support their assertion that the price agreed upon was GH¢35,000.00 and same was reduced to GH¢21,000.00. They only mounted the box to repeat the pleading in the statement of defence even though the Plaintiff denied same in the reply filed on March 17, 2016.
(61) It has been held in the case BANK OF AFRICA WEST AFRICA LTD. V. ACKUN [1963] 1 GLR 176@181 that the party who asserts the positive carries the burden to lead evidence in proof of his claim or assertion. Hence in the instant matter, since the Defendants allege that the price for the land was GH¢35.000 and same was reduced to GH¢21.000 but the Plaintiff did not pay the full amount, it is incumbent upon the Defendants to lead positive evidence in proof of that claim. It is sad commentary however that not a single document and/or receipt was tendered in evidence by the Defendants to prove their claim of the allege price of the land. I therefore hold that there is no evidence on record and indeed the Defendants have not succeeded in proving that the price for the land agreed to was GH¢35,000. I therefore resolve the re-stated issue in favour of the Plaintiff and hold that the 1st, 2nd and 3rd Defendants received various sums of monies as shown on the receipts tendered at trail from the Plaintiff. In my view, the Plaintiff issue D and the additional issues (1) and are merely consequential to the determination of the re-framed issue I have determined above.
(62) The next major issue is whether or not the Plaintiff’s one single room and fence wall was vandalized by the 3rd and 4th Defendants? In determining the above issue the Court also shall determine the Defendants’ additional issue 4 and 5. The Defendants contend that because the Plaintiff failed to pay for the full price of the land he had no permission to enter the land and therefore he was a trespasser. Again, having heard the testimonies of the witnesses at trial and the documentary evidence filed, I am unable to agree that the Plaintiff was a trespasser. Firstly, my immediate finding above has rejected the price tag placed on the land by the Defendants. Secondly, even though the Defendants say the Plaintiff was a trespasser both Exhibits “B” and “F” Indentures prepared and signed by the 1st Defendant and given to the Plaintiff undermines the trespasser argument by the Defendants. In my view the Defendants contention that the Plaintiff trespassed onto the land as a trespasser is not sustainable. Clearly, based on my understanding of the law, an indenture holder cannot be found liable for trespass. It is a fact that the Defendants prepared Exhibits “B” and “F” and gave same to the Plaintiff and therefore his entry on the land was lawful, I do hold.
(63) The Plaintiff evidence was that he was encouraged by the Defendants to develop the land and so he cleared the land and subsequently deposited sand and stones together with blocks and building materials on the land. He also testified that on or about March 3, 2014 he sent out workers onto the land to construct a single room on the land but the 3rd and 4th Defendants with Land Guards attached them and destroyed the building and the properties on the land. The 4th Defendant testified by denying that the Plaintiff’s building materials were destroyed on the land. According to him “there was nothing belonging to the Plaintiff on the said piece of land”. The 3rd Defendant Mr. Boye-Tawiah on the other hand testified that because the Plaintiff had not fully paid for the land he had no business going onto the land. In effect he said he had every right to resist the Plaintiff’s presence on the land even though according to him after the 2nd Defendant took the money from the Plaintiff he agreed to accede his portion of the family land to the Plaintiff.
(64) Having reviewed all of the evidence, I accept the Plaintiff’s evidence on this issue on the balance of probabilities and hold that indeed he had building materials, stones and blocks on the land but same were destroyed by the 3rd and 4th Defendants and people who took orders from them. The tenor of the 3rd Defendant in particular’s evidence clearly shows that he believed he had the right to resist what he believed to be his property. Exhibit “K”, which is a police report dated 13th May 2015 confirms that it was recommended by the police after investigating the Plaintiff’s complaint that the 4th Defendant was to be charged with threat of death as a result of what happened on the land, the subject matter of the suit. Consequently I resolve the issues under discussion in favour of the Plaintiff and dismiss the Defendants’ contentions as afterthoughts and without any basis.
(65) My findings above notwithstanding, can it really be said that the Plaintiff has established on the balance of probabilities that his claim in terms of the sums endorsed on the writ? I note that the Plaintiff claim is not for specific performance or recovery of possession but of special and general damages. It is trite learning that special damages is distinct from general damages. It is the requirement of the law that special damages ought to be pleaded and particularized and then proved by admissible evidence otherwise it could not be recovered. See CHAHIN & SONS v. EPOPE PRINTING PRESS [1963] 1 GLR 163 SC, where the Supreme Court held that “Where special damages are claimed it is not enough for the plaintiffs to write down the particulars, they have to prove them”. See also KUBI v DALI (1984-86) 2 GLR 501 where the Court of Appeal also stated and affirmed the law that “special damages in the sense of a monetary loss which the plaintiff had sustained up to the date of the trial must be pleaded and particularised and then proved by admissible evidence otherwise it could not be recovered”
(66) In this case though the Plaintiff pleaded and particularized the special damages can it be said that he proved all the figures stated with cogent evidence? In my view, while I have no problem relying on Exhibits “A” and “C” “D” and “E” and the charge sum of GH¢400.00 the surveyor testified that he was paid in my assessment of the Plaintiff’s claim; I have difficulty accepting some of the claims stated and enumerated under Special Damages and numbered as VI, VII, IX and to some extent the 5000 blocks the Plaintiff says were on the land. To my mind stating them without any persuasive or cogent evidence by way of receipts for instance is unacceptable. Also, even though Exhibit “G” is a receipt for the purchase of quarry blocks there is no indication that the blocks were purchased specifically for the Nmai Dzorn project. To that extent I am of the view that its probative value as a document which this Court should accept as relevant and reliable is weakened. The figure on the face of it is GH¢9,400 but the Plaintiff is claiming GH¢14,000 for blocks.
(67) But, does the above finding means that I should wring my hands in despair and lament that because the Plaintiff failed to establish all the figures endorsed on his Writ of Summons as special damages with acceptable evidence he should not be compensated for the destruction of the construction I have found occurred for instance? I think equity and conscience dictate that I should not do so. It bears stressing that though this court is a court of law, it is also a court of equity. As explained by Abban JA (as he then was) in DOMFE v ADU SUPRA @ 666, where the judge sits as a court of law, he also sits as a court of equity and of conscience.
(68) Based on all of the evidence, I shall grant the list provided under the special damages except VI which in my opinion the Plaintiff should have been able to provide receipt for same after purchasing the sand and stones. I will allow the cost of clearing the land because the figure stated is reasonable. For the blocks cost, the Court shall allow the GH¢9,400 for which there is a receipt. There is no basis for the GH¢5,500 claimed for the “Cost of single room demolished/destroyed by Defendants” especially as there is no evidence of any room but only photographs of a foundation on a bare land. I also hold that it was part of the blocks which were used to build the foundation I have found to have been illegally destroyed. To that extent, under that leg I shall award the Plaintiff an amount of GH¢2,500. Consequently, I shall award the Plaintiff Special damages of GH¢27,400 instead of the GH¢36,200 endorsed on the writ of summons.
(69) In my view the award of general damages to the Plaintiff is appropriate in this case. It is trite that liability for payment of damages is established when a claimant proves on the balance of probabilities that a defendant’s wrongful act caused a tangible harm, loss or injury to him. To that extent, once the threshold is met, the Plaintiff is entitled to some compensation for the recovery of his or her loss. That claim by the Plaintiff to my mind is legitimate.
(70) In the case of ATTORNEY GENERAL v FAROE ATLANTIC COMPANY LIMITED [2005-2006] SCGLR 271 the Supreme Court per Dr. Twum JSC stated the basic principle stated in the Hadley v Baxendale [1854] 9 Exch 341 in regards to the award of general and special damages at page 290 of the report thus:.
“My Lords, in my view, a claim for damages for breach of contract will entitle the plaintiff to nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damage are ever ordered. See London and Northern Bank Limited v Newness [1900] 16 TLR 433. General damages are such as the law will presume to be natural or probable consequence of the defendants act. They arise by inference of the law and need not therefore be proved by evidence. Hence they may be averred generally as was done in this suit.” See also such cases as [1]
(71) Consequently I shall make the following orders against the Defendants; The Defendants shall pay to the Plaintiff as follows:
(1) Special Damages – GH₵27,400.00
(2) GH₵20,000.00 as general damages for breach of contract and the destruction of the Plaintiff’s property on the land.
Total = GH₵ 47,400.00
Also, the Special Damages shall attract interest at the prevailing Bank Rate from June 10, 2015 being the date the Writ of Summons was issued.
(72) Finally, on the issue of costs, I am of the respectful view that the Defendants are required to compensate the Plaintiff for his legitimate and reasonable expenses incurred in prosecuting the action based on Order 74 of C.I. 47 and on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (Ghana) LIMITED [1999-2000] 2 GLR @262. I wish to state that whilst I am not unmindful of the fact that litigation is expensive, in my respectful opinion I have to fix an amount that is fair and reasonable for an unsuccessful party to pay in the particular circumstances of the case based on the law and specifically the factors set out under Order 74 of C.I. 47, rather than an amount fixed by actual costs/expenses incurred by the successful litigant and/or award the cost as punishment of the Defendant. With that in mind, I note that many adjournments were granted at the requests of the Defendants especially the first Defendant whose Counsel before the end of the trial stage stopped coming to Court despite the issuance of numerous hearing notices to him. No reason was given to the Court for his absence. Consequently I shall assess and award the Plaintiff cost of GH₵20,000.
(73) Finally, I cannot conclude this judgment without expressing my disappointment in Mr. Nii Adjin Mensah, Counsel for the 1st Defendant for his failure to provide the court with his written legal submission even though the suit was adjourned on few occasions to enable him do so. In my respectful opinion, it is important for Barristers to be reminded that they owe a duty to the Profession, the Court and their Clients and I trust that he will not repeat this.