KOFI KYEI YAMOAH-PONKOH & ORS. vs. ASOMDWE HOUSE COMPANY LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (LAND DIVISION)
    KUMASI - A.D 2016
KOFI KYEI YAMOAH-PONKOH & ORS. - (Plaintiffs)
ASOMDWE HOUSE COMPANY LIMITED - (Defendant)

DATE:  24TH JUNE, 2016
SUIT NO:  IRL/10/11
JUDGES:  ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS:  STEPHEN OPPONG FOR PLAINTIFFS
HANSEN KODUAH FOR DEFENDANT
JUDGMENT

The subject matter of the instant suit is ownership of a shopping complex at Anomangye-Nkwanta within the Kumasi Metropolis which has been the subject of several previous actions. In this particular action, the three plaintiffs sued for themselves and on behalf of 29 other shop owners claiming the reliefs as set out below:

a. Declaration that the plaintiffs and for that matter the occupiers are the rightful owners of the respective shops they occupy.

b. Declaration that any purported Tenancy Agreement executed between the occupiers and the defendant or its predecessor is null and void.

c. Damages

d. Any further order or other relief(s) as shall be just in the circumstances of this case.

e. Perpetual Injunction restraining the defendant from in any way interfering with the plaintiffs' right of quiet enjoyment.

                        

THE PLAINTIFFS' CASE

The plaintiffs' case as gleaned from their statement of claim filed on 14/09/2010 is that prior to the construction of the shopping complex in issue, some of them were trading in kiosks at the same location. After some consultations between KMA, the school authorities and the traders in the year 1998, it was agreed that these traders make contributions to prefinance the construction of the stores; and after the construction each trader was to be allocated the stores that stand on the site they operated. The plaintiffs asserted that the initial occupants were levied GH¢700.00; outsiders were levied GH ¢900.00 and later on GH¢1,200.00 for some of the stores. It is also the plaintiffs case that it later came to their notice that a group of people had clandestinely formed a company, GABBAT CO. LTD, and had used that name to register the lease covering the land on which the building stands. It also came out, according to them, that some of their members who had been delegated to go to the Lands Commission to sort out issues after the latter had ordered them "to stop work" are the persons who had formed the company complained of. Their names were given as Takyi Brefo, Akwasi Amanfo, Daniel Bonsu and George Baffour Owusu Afriyie. Some of the contributors took legal action which culminated in a settlement. The plaintiffs further contended that some people have formed the defendant company herein and the said company has claimed ownership of these shops; which in their view is wrong.

 

THE DEFENDANTS CASE.

The defendant's case is that sometime in the year 1999, it entered into an agreement with the Lands Commission whereby the Lands Commission granted to it the 0.35 acre land particularly described in paragraph 2 of its statement of defence. Its case is that the grant preceded the construction of the 125 stores and that all the initial traders thereon, excluding the plaintiffs herein, were mere licensees of the Lands Commission. The defendant averred that the land on which all the stores stand are its property and that a dispute arose between the defendant's directors and some stakeholders culminating in a legal suit, but the parties thereto amicably settled the matter. The name of the Company was thus amended/changed to Asomdwe House Co. Ltd. Further, the defendant asserted that the plaintiffs herein are its tenants, having entered into tenancy agreements with the defendant. As such, the plaintiffs are estopped from resiling from that agreement. The Defendants then counterclaimed as follows:

a) A declaration that all the commercial stores being occupied by the plaintiffs at Tarkwa Markro layout registered under title No. 18397 and serial No. 56/99 delineated on plan No. LDA960/K.48790 is the property of the defendant absolutely and exclusively.

b) A declaration that the plaintiffs are potential tenants of the defendant

c) Recovery of possession of the said stores.

 

The issues which have been set down for determination are:

Whether or not the tenancy agreement duly executed between the plaintiffs and the defendant is null and void?

 

Whether or not the plaintiffs are conclusively estopped from resiling from the said tenancy agreement?

 

Whether or not the plaintiffs contributed towards the construction of the building complex?

 

Whether or not the plaintiffs are potential tenants of the defendant?

 

Whether or not the plaintiffs pre-financed the construction of the stores in issue?

 

Whether or not the plaintiffs and for that matter, the occupiers are the rightful owners of their respective stores?

 

Whether or not the parties are entitled to the reliefs being sought per the endorsement on the writ of summons and that of the counterclaim?

 

Any other issue(s) raised on the pleadings.

 

THE BURDEN OF PROOF.

The requisite degree of proof will be proof by the preponderance of the probabilities and it is trite law that the onus of proof in civil suits first rests on a party whose positive assertions have been denied by his opponent. These evidential requirements are based on sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323. The Supreme Court has in a plethora of decisions explained and applied these provisions. Among the unending list of judicial authorities on this subject are: Takoradi Floor Mills v Samir Faris (2005/2006) SCGLR 882 at 884 (holding 5); Fosua v Dufie (deceased) & Adu-Poku Mensah (2009) SCGLR 316; and Continental Plastics Ltd v IMC Industries (2009) SCGLR 298 at pages 306 to 307. Thus, the parties to this suit are required to introduce such cogent evidence as will entitle them to their respective claims.

 

ISSUES OF FINANCIAL CONTRIBUTION AND PRE-FINANCING OF THE ANOMANGYE STORES COMPLEX.

These arise from the 3rd and 5th issues set down for trial. Looking at the pleadings, the onus of proof first rests on the plaintiffs. It is only when they are able to lead concrete and convincing evidence on this point that the burden will shift onto the defendant to introduce evidence to the contrary. If the defendant is unable to do so when the evidential burden shifts onto it, then the plaintiffs would be deemed to have succeeded in proving their case relative to the issues under consideration. In all these situations, the court is procedurally bound to weigh the evidence so adduced on the balance of probabilities and decide the party whose case is more favourable of the rival accounts.

 

The 2nd and 3rd plaintiffs gave evidence and indicated that the suit had been brought by the three plaintiffs for themselves and on behalf of 29 others whose names are attached to the writ of summons. On the issues under consideration, this was what the second plaintiff said:

 

In 1998, an opportunity arose after the occupants had met the KMA to construct shops on the land. The arrangement was that those on the land were to contribute GH¢700.00 towards the construction of the shops. Aside the original occupiers, those from outside were allowed in. Some original occupiers could not afford the payment due to the nature of their business and so outsiders had to be brought in. The outsiders, including myself, were asked to pay GH¢900.00. By the time the structure was completed, it had risen to GH¢1,200.00. I paid in all GH¢1,200.00 after paying an initial GH¢400.00. The construction began but in 1999, the Lands Commission inscripted on the structure that work should stop..."

 

The 3rd plaintiff's version of these payments is that whereas the initial occupants were made to pay GH¢900 instead of the original GH¢700,00.00, the outsiders were made to pay GH¢1,100.00. On his part, he told the court that he could only pay GH¢400 out of the GH¢ 900.00. He corroborated the evidence of the 2nd plaintiff in respective of the commencement of the construction and the obstruction by the Lands Commission. He added that as part of the agreement, the traders constructed a fence wall around the school which already existed on the land. Under cross-examination, the 3rd plaintiff insisted on his testimony that he made payments towards the construction of the building.

 

One of the initial occupants by name Alhassan Kwabena testified as PW1. He told the court that he has been on the land on which the stores were constructed since the year 1984. Like the 2nd and 3rd plaintiffs, PW1 also said in evidence that the occupiers levied themselves GH¢700.00 at that time for the construction of the store and that one Daniel Bonsu alias Nana Kwame Bonsu was the person nominated to receive the contributions.

 

At this point, the evidential burden shifted onto the defendant. One Kwadwo Tuffour who described himself as the Secretary to the defendant company gave evidence on its behalf. He testified that those who were originally on the land pre-financed the construction of the 125 stores. In his evidence in chief and under cross-examination, he confirmed that the traders who pre-financed the building initially paid GH¢ 700; later adjusted to GH¢900.00 as a result of increment in prices and further reviewed upwards to GH¢ 1200.00.

 

DW1, Yaw Agyei, who said he has been on this land for 25 years testified for the defendant and said he also paid GH¢900.00 towards the construction.

 

SUBMISSIONS BY COUNSEL FOR THE PLAINTIFFS

For the plaintiffs, counsel submitted that the tenancy agreements which were executed by some members of the plaintiff's "union" who contributed towards the construction of the stores has no legal basis and on the authority of Mossi v Bagyina (1963) 1 GLR 337, these tenancy agreements are a nullity. He further submitted that the question of estoppel does not arise at all; and invited this court to be guided by the instructive judgment in the case of Amoako Blankson v Nana Bonsu & Ors SUIT NO. H1/8/2016, 10TH MAY, 2016, COURT OF APPEAL, KUMASI in the determination of the issues before this court.

 

Referring to the evidence on record, counsel argued that the stores were constructed with the contributions of the plaintiffs and others who have always resisted the defendant's predecessor's claim of ownership. And since the defendant has failed to prove its ownership of the stores, the reliefs being sought by the plaintiffs ought to be granted. He again relied on the Amoako Blankson case, referred to, supra to buttress this point.

 

SUBMISIONS BY COUNSEL FOR THE DEFENDANT

After reviewing the case of both parties and their evidence in court, counsel for the defendant submitted that the plaintiffs never adduced any legal/equitable reasons by way of evidence why the tenancy agreements executed between themselves and the defendant must be declared null and void. He argued further that there was no evidence that the agreement was inconsistent with either the 1992 Constitution of Ghana, or any parliamentary statute, the Common Law of Ghana, or was otherwise in any way tainted with fraud, undue influence, duress, mutual mistake and the like. Counsel stressed that those who signed the tenancy agreements are not illiterates and to the extent that not all of these persons are before this court, those people still recognize their status as tenants, particularly those who were not originally on the land. In his view, the plaintiffs are conclusively bound by the tenancy agreements and are estopped from asserting the contrary.

 

Relative to the defendant's ownership of the land, counsel reiterated that the plaintiffs herein are not seeking a cancellation of the Lease registered under Title No. 18397 and Serial No. 56/99 delineated on plan No. LDA960/K.48790. To the extent that this document was not challenged in any way, either in the pleadings or at the trial, coupled with PW1's admission that title to the land is vested in the defendant, counsel submitted that on the preponderance of the probabilities, the defendant is entitled to the reliefs sought in its counterclaim.

 

EVALUATION OF THE EVIDENCE

It is clear from the totality of the evidence that some of the plaintiffs were original occupants of the land on which the stores complex were built. In 1998, these occupants were given permission by the Kumasi Metropolitan Asembly, KMA to construct stores after agreeing to fence the wall of the school situate on the land, among others. The representative of the defendant and others were appointed to collect the agreed contributions from the artisans originally on the land and those they allowed to contribute money towards the construction, described as "outsiders". Whereas the original occupiers paid GH¢ 900.00, the outsiders paid GH¢1,200.00 towards the construction of the building. Not all the plaintiffs were original occupiers of the land. The defendant concedes that the original occupants who contributed are the owners of the stores- the defendant's representative said so in his evidence in chief, admitted the same under cross-examination in one instance, but denied it in another instance; the defendant's predecessor company, represented by the same person as in this suit admitted before the rent officer as per exhibit H that the real owners of the stores are the original occupants of the land.

 

The evidence by the defendant's representative that Gabbat Co. Ltd was formed for all the members who contributed has been contradicted by the evidence of the plaintiffs that not all the members who contributed are members of the new company- two names readily popped up, the 3rd plaintiff, Amoako Blankson and Kwabena Antwi Agyei @ Gawushie.

 

From the evidence, the defendant's predecessor, Gabbat Co. Ltd obtained a lease in 1999 on the land on which the Anomangye Stores Complex were constructed, evidenced by exhibit 2; but that legal title was subsequently compromised by terms of settlement executed by representatives of the parties and entered as consent judgment (exhibit B & G). Pursuant to exhibits B and G, another company was formed by a section of the contributors, but not all the original contributors are members of this new Company, that is, the Defendant herein. The evidence shows some level of complicity on the part of the defendant's representative who testified on its behalf at this trial - he signed the exhibit C series as the acting secretary to the Anomangye Stores Owners Association at a time Gabbat Company Ltd was asserting ownership of the stores as against the interests of members of the association; this same Kwadwo Tuffour appended his signature to the terms of settlement which culminated in the consent judgment (exhibit B) wherein a new limited liability company was to be formed with all members of the association as share holders. It is therefore not surprising that when he mounted the witness box, he gave evidence to the effect that the defendant company is for all the members who contributed which is seen to be contrary to the defendant's pleaded case. At the same time, it is difficult to comprehend his "chameleon-like" nature. It must be noted or stressed that the decision of the High Court contained in exhibit 1 which counsel for the defendant heavily relied on has been overturned by the Court of Appeal. The decision of the appellate court has a direct bearing on the case before me and as such, i will spend some time to analyze the same.

 

THE COURT OF APPEAL DECISION IN AMOAKO BLANKSON V NANA BONSU SUIT NO.

H1/8/2016, 10TH MAY, 2016, COURT OF APPEAL, KUMASI.

It is to be noted that the subject matter of the above case was ownership of a shop by one of the contributors to the construction of the Anomangye Stores complex. The plaintiff in the above suit is the 3rd plaintiff in the case before me. Ownership of the stores complex and the interests of the contributors, if any, are among the issues to be decided by this court. It is trite learning that a decision of the Court of Appeal on matters of law are binding on the High Court. In the Amoako Blankson case, the Court of Appeal made some instructive legal observations before arriving at its decision which i intend to import here.

 

In sum, the Court of Appeal, speaking through Torkornoo J.A. reviewed the law on Licenses and distinguished a bare license from a profit a prendre or easement; the court also adequately discussed the law on Constructive Trusts and Resulting Trusts. In doing so, their Lordships relied heavily on Da Rocha B.J. & Lodoh C.H.(1995) GHANA LAND LAW AND CONVEYANCING, Anansesem Publications, pages 59, 60, 95, among others.

 

In respect of the Anomangye Stores Complex, their Lordships established that the appellant therein, and all the other tradesmen who started life on the land as bare licencees acquired some proprietary interest after their contributions had been used to develop the property including the stores complex. At page 13 of the judgment, their Lordships noted that:

 

With the construction of permanent stores on the land with the collective income of the artisans and tradesmen, the tradesmen could point at an assert of theirs which was affixed to the Assembly's land and which could give them the right to go on to the land, beyond the exercise of a license"

 

After taking into account the "consideration" provided by the artisans like the putting up of a wall around the public school situate on the land on which the stores have been constructed, the Court of Appeal at page 16 stated:

 

... the license under which the artisans operated was graduated to become a profit by reasons of the construction of the shop. Since a profit a prendre confers a possessory right on its owner, the trial court should have first recognized this interest before recognizing the lease created in favour of GABBAT Company months after the construction of the stores had started... equity will go further to pronounce a resulting trust over the store complex in KMA for the artisans."

 

The Court then considered the proprietary interest of the contributors vis avis the lease granted to

GABBAT Co. Ltd and found at page 18 as follows:

 

It is trite learning that a purchaser who buys a property buys it subject to all encumbrances that they find on the land and which they could have discovered if they were a prudent purchaser... even if GABBAT Co. obtained a lease on the land in question, that lease would be subject to the right to profit that the artisans had in their store complex which was being constructed at the time the lease was entered into..."

 

The Court went further to state that:

"this right to profit creates a proprietary estoppel against anyone who interferes with the rights of the Appellant and other tradesmen who contributed to the building of the complex from going to their stores and enjoying the profit of their stores. It entitles the Appellant to his claims before the High Court."

 

Upon a careful evaluation of the evidence on record on the balance of probabilities, I find that the plaintiffs, whether as "original occupiers" or "outsiders", made financial contributions towards the construction of the stores in issue and that the defendant's predecessor through whom it traces its title acquired the lease after the commencement of the construction. For that reason, and as the Court of Appeal rightly held, their financial contributions created a proprietary interest in their favour. And if I may add, they were not mere financiers of a project of a third party in which they had no interest.

 

ISSUE OF VALIDITY OF THE TENANCY AGREEMENT EXECUTED BETWEEN THE PLAINTIFFS AND THE DEFENDANT.

It is not in doubt that Kwabena Antwi Agyei @ Gawushie who was a contributor was made to execute a tenancy agreement by the Defendant. The said agreement was however not tendered. Exhibits 3, 4, and 5 are the only tenancy agreements brought to the notice of this court. These agreements were executed between (i) Kofi Kyei Yamoah Ponkoh (1st plaintiff herein); (ii) Charles Osei (24th plaintiff);(iii) Richard Nsiah (22nd plaintiff) and GABBAT COMPANY LTD. These agreements were executed with GABBAT between the years 2001 and 2002.

 

Whereas the contributors were given permission to put up permanent stores in the year 1998 with the actual construction commencing early 1999, GABBAT, the defendant's predecessor obtained its lease in September, 1999 as stated in exhibit 2.

 

These notwithstanding, the Anomangye Nkwanta Store owners association, represented by some of their members on the one part and accredited officers of the then GABBAT Co. Ltd who had been hurled before the Circuit Court, Kumasi, voluntarily agreed on the following terms, subsequently adopted as consent judgment by the said court on 11/09/2008:

 

We, the parties here in the case, have agreed that GABBAT CO LTD which holds the lease on the property in this case, be set aside, and a new company formed to take over the ownership of all ASSETS AND LIABILITIES of the Anomangye Nkwanta Stores Building Project, which is in the custody of the above company.

 

That the new replacing organization will be a limited liability company formed by the parties here in the case.

 

That the parties will hold shares in the new replacing company and directors will be picked from all sides.

 

The name of the new replacing company will be decided by the parties here in the case.

 

That all documents on the building which is in the custody of GABBAT Co. Ltd will be legally transferred to the new company.

 

That, the parties herein will look for the way to defray all outstanding debts owed by the parties on the building project, documentations and other legal expenses on the project.

 

All exiting problems on the stores will be borne by the parties herein the new company and resolved all matters outstanding amicably.

 

That, the parties herein will allow their solicitors to guide them in preparation of this important final agreement and they could also add their views.

 

By the preponderance of the evidence on record, the defendant company has failed to discharge its evidential burden that it was formed in line with the consent judgment so entered.

 

First, no documentation was produced from the Registrar General evidencing the taking over of the assets and liabilites of GABBAT Company Ltd by Asomdwe House Company Limited as agreed by the parties. Second, the plaintiffs have demonstrated to this court that not all the contributors are members or shareholders of the defendant company which was a prerequisite to the formation of the New Company to take over the stores complex.

 

The combined effect of these two factors is that the terms of the consent judgment have not been fully complied with so as to clothe the defendant company with any legal authority whatsoever to enter into any tenancy agreement with any person or entity. It also follows that the tenancy agreements executed between GABBAT Co. Limited and some of the Plaintiffs herein is of no effect just as the Court of Appeal found at page 21 of its judgment in the Amoako Blankson case as follows:

 

"At no time did Gabbat have an interest in the shops- not having been the builder or funder of the project. Its lease interest was in the land the shops stood on and could mature to include the shops only after the shop owners had exhausted their investments. But the consent judgment had ended Gabbat's entitlement to the lease and established the legal frame work for a new lease to the appellant and his colleagues through the new company."

 

I therefore conclude that any agreement executed between any of the plaintiffs with the defendant, either by itself, or with its predecessor is null and void and cannot operate as estoppel against the plaintiffs in any form. Since the defendant company was not formed in accordance with the consent judgment which is binding on the parties, the defendant cannot execute any tenancy agreements in respect of the Anomangye Stores Complex with the Plaintiffs or any of the contributors. Therefore, the plaintiffs cannot be potential tenants of the defendant company in its present form and I so find.

 

WHETHER THE PLAINTIFFS ARE ENTITLED TO THEIR CLAIMS AND WHETHER DEFENDANTS ARE ENTITLED TO THEIR COUNTERCLAIMS.

Going by the Court of Appeal decision that by their respective contributions which has given rise to "their right to profit" and "creation of a proprietary estoppel" against anyone who interferes with these rights, the plaintiffs are entitled to a declaration that they have a legal right to occupy their respective stores, and that any lease executed over the land is subject to their proprietary interests and I so declare.

 

The Plaintiffs are also entitled to a declaration that any purported Tenancy Agreement executed between the occupiers and the defendant or its predecessor is null and void and I so declare.

 

I am however unable to declare that the plaintiffs are the owners of their respective stores they occupy because if the terms of the consent judgment are fully complied with, the Limited Liability Company so formed will have all the contributors as members or shareholders. It is only a Limited Liability Company formed in line with the terms of the consent judgment which can assert ownership of these stores. The basis being that a limited liability company has a separate legal existence from its members. Authorities such as Salomon v Salomon (1897) AC 22, HL; Morkor v Kuma (East Coast Fisheries case) (1998-99) SCGLR 620; and Soonboon Seo v Gateway Worship Center (2009) SCGLR 278 have clearly demonstrated this principle.

 

After the consent judgment has been fully complied with and all the contributors are allotted shares in the limited liability company so formed, they will be entitled to dividends to be declared by the company. Until the consent judgment is complied with to the letter, the plaintiffs and for that matter all the contributors will have a legal right to remain on the property and operate the stores they occupy.

 

The plaintiffs have also asked for damages. It is obvious that they are asking for general damages, having failed to give any particulars. In land matters, damages are normally awarded as an alternative to specific performance. Commenting on the award of damages in land matters, the Learned author, Dennis Dominic Adjei in his book LAND LAW, PRACTICE AND CONVEYANCING IN GHANA (2015)Adwinsa Publications stated thus (page 120):

 

... The essence of damages is to put the injured person in the position in which he was before the injury. Damages is neither awarded to punish the offender nor to confer a windfall on the victorious party, Trespass is actionable per se without proof of injury but in most cases the plaintiff must be able to prove injury before damages would be awarded to compensate him"

 

The law is that general damages need not be proved, but it arises from every infringement of an absolute right, be it in tort or breach of contract. See Delmas Agency Ltd v Food Distributors International Limited (2007-2008) SCGLR 748 at page 760; Yundong Industries Ltd v Ro- Ro services ( 2005-2006) SCGLR 816 at 839; AG v Faroe Atlantic Co. Ltd (2005-2006) SCGLR 271.

 

In the case at hand, the defendant company ought to have known that any Limited Liability Company formed to take over the assets and liabilities of GABBAT Co. Ltd ought to comply with the terms of settlement adopted as consent judgment. Yet, the evidence shows the contrary, not all the contributors are members or shareholders of Asomdwe House Co. Ltd. For this reason, the defendant company had no business to interfere with the plaintiffs', and for that matter the contributors/funders legal right to enjoy the fruits of their labour. Having interfered with the rights of the contributors to remain in their stores pending the full implementation of the terms of settlement, the plaintiffs are entitled to nominal damages against the defendant company. Accordingly, I award the sum of GH¢ 20,000.00 as nominal damages against the defendant company in favour of the plaintiffs.

 

Further, I will restrain the defendant company from interfering with the plaintiffs' right to occupy the stores in issue until the terms of the consent judgment have been fully complied with.

 

Judgment is entered in favour of the plaintiffs to the extent indicated above.

 

The Defendant’s counter claims are dismissed as being without merit.

 

The submissions of counsel for the Plaintiffs on the award of cost have been considered.

 

Having reviewed the principles governing the award of costs as spelt out under Order 74 of the High Court ( Civil Procedure Rules), 2004 C.I. 47, I award costs of GH¢20,000.00 against the defendant company in favour of the plaintiffs.