IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
THE DENYASE STOOL - (Plaintiff)
NOBLE DREAM MICROFINANCE LIMITED - (Defendant)
DATE: 29TH NOVEMBER, 2016
SUIT NO: BFS/604/14
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
WILLIAM KUSI FOR PLAINTIFF
KWASI ADU MANTEY FOR DEFENDANT
In this suit, the plaintiff, which is the Denyase Stool, per its occupant Nana Owusu Adueni III has invited this court to do two things namely: (i) to terminate the agreement between the parties as same has been breached by the Defendant and (ii) to revert interest in the land in issue to the Plaintiff.
The Plaintiff' s case appears quite simple and straight forward on the face of it but indeed it is in a class of its own. It is that on or about February, 2013, the Denyasi stool acting per its occupant entered into an agreement with the Defendant for the sale of one hundred (100) acres of land for a total consideration of GH¢ 460,000.00. After using GH¢ 160,000.00 out of this sum to compensate farmers on the land, the defendant allegedly convinced the plaintiff to invest the balance of GH¢ 300.00 in its micro finance business. It is the Plaintiff's case that after the maturity period, the Defendant failed to re-pay the sum of GH¢ of GH¢ 362, 605.17 which had become due, and has refused to do so to date. On the basis of the foregoing, the Plaintiff claimed that it is no longer interested in the money the Defendant owes them but will rather take over the land the subject matter of the contract.
The Defendant caused its lawyer to file a defence on its behalf and after a failed attempt to settle the matter at the pre-trial stage, issues were set down for trial. Consequently, orders were made for the filing of witness statements. The Plaintiff filed its witness statement on 22/03/2016 and same was served on counsel for the Defendant on 24/03/2016 (see affidavit of service filed on 29/03/2016 and deposed by Alex Akumey of the EMS Court Process Services). As at 11/05/2016, the Defendant had not filed its witness statement and so the court extended the time for doing so by 21 days. On 17/05/2016 and 19/05/2016, the Plaintiff's pre-trial check-list and a hearing notice were duly served on the Defendant's lawyer (see affidavits of service filed on 18/05/2016 and 02/06/2016 by the same EMS process server). At the scheduled Case Management Conference on 17/06/2016, the Defendant and its counsel were absent although they had been served with hearing notice. In accordance with Order 32 rule 7A (3) (b) of the High Court (Civil Procedure) Rules 2004 C.I. 47, as amended by the High Court (Civil Procedure) Rules , 2014 C.I. 87 , the statement of defence filed by the Defendant was accordingly struck out. The said rule reads:
“Where a party has failed to comply with any of the directions given at a case management conference or a pre-trial review or both, the Judge may make any of the following orders...
(b) strike out the defence and counterclaim as the case may be, if the non-complying party is a defendant."
On 24/10/2016, the Plaintiff proceeded to prove its claims and it did so by relying on the witness statement of Nana Donkor Kwagyan, Linquist of the Paramount Chief of Denyase and which was filed on 22/3/16 .
The issues which this court has to determine are these:
1. Whether or not the Plaintiff invested the purchase price/value of the Agreement it entered into with the Defendant Company?
2. Whether or not the Plaintiff had been paid the principal/matured amount at the end of the investment by the Defendant?
3. Whether or not the Defendant had breached its part of the Agreement it executed with the Plaintiff?
4. Whether or not following the breach by the Defendant the Plaintiff terminated the said agreement?
By the principle of proof in civil suits as expounded by Kpegah JA (as he then was) in Zambrama v Segbedzie (1991) 2 GLR 221, the Plaintiff herein must prove the averments contained in its pleadings to the standard required by law. The burden of persuasion which rests on a party has been defined in section 10 (1) of the Evidence Act, 1975 NRCD 323 as follows:
"...the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court."
This being a civil suit, the Plaintiff is under a duty to establish the existence or non-existence of the facts it alleges by a preponderance of the probabilities. In discharging this onerous burden, the Plaintiff is required under section 11 (4) of NRCD 323 to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the facts are more probable than their non-existence.
I will determine issues (3) and (4) together, that is: (3) whether or not the Defendant had breached its part of the Agreement it executed with the Plaintiff and (4) whether or not following the breach by the Defendant the Plaintiff terminated the said agreement?
The Plaintiff's witness indicated in his evidence-in-chief that the parties herein entered into an agreement for the sale of a tract of land measuring 100 acres on Denyase stool land sometime in the year 2013 for a total consideration of GH¢ 450,000 out of which the Defendant paid GH¢ 150,000.00 to the farmers on the land as compensation. To substantiate this, he tendered exhibit 'TDS 5'. The witness testified further that pursuant to the agreement contained in exhibit ' TDS 5' by which the Denyase stool was to receive cash sum of GH¢ 300,000.00, the Queen mother of Denyase, Nana Adutwumwaa Bonin III upon the advice of the Defendant Company suggested that the money should be invested in the Defendant Company. Eventually, the Stool did invest the sum of GH¢ 280,000.00 in the Defendant Company; the accrued interest was rolled over and as at 10/01/2014, the balance to the credit of the Plaintiff was GH¢ 362, 605.17. The Plaintiff said it is no longer interested in the money but wants the interest in the land to be reverted to the stool.
From the evidence adduced by the Plaintiff's witness, I can see two contracts which were entered between the parties: (i) a contract for the sale of land and (ii) a financial investment agreement.
First, I will discuss the contract for the sale of land. A contract for sale of land usually precedes the main contract or the conveyance and it must embody the essential terms of the contract. It must satisfy the requirements of writing in sections 1 and 2 of the Conveyancing Act, 1973 N.R.C.D. 175. In Djan v Owoo (1976) 2 GLR 401 (holding 1), the court held as follows:
“a contract in writing for the transfer of an interest in land would not be complete in terms of section 2
(a) of the Conveyancing Decree, 1973 (N.R.C.D. 175), unless the following particulars were given:
(i) The names of the parties;
(ii) The property to be transferred;
(iii) The purchase price of the property; and
(iv) The Defendant must have signed the written contract."
A contract for sale of land may be either open or formal or a combination of the two. In an open contract, the parties leave the terms to be implied by law and may contain just the particulars of the parties, the property to be sold and the consideration for the sale. See Da Rocha B.J. and Lodoh C.H.K. (1995) GHANA LAND LAW AND CONVEYANCING, Anansesem Publications 179 to 180. In a formal contract of sale however, the parties agree on all the essential terms in addition to the particulars of the parties, the physical description of the land, the nature of the title, any rights enjoyed by the property such as easements, encumbrances and particulars of tenancy (where applicable).See Da Rocha and Lodoh , supra, 183. All these will have to be incorporated in the formal conveyance to be executed.
What is the position of the Vendor and Purchaser under a contract of sale of land? As soon as a valid contract of sale is executed, the vendor who retains the legal title becomes a trustee for the purchaser who is the equitable owner until a formal conveyance is made. Dennis Adjei JA (2015) LAND LAW, PRACTICE AND CONVEYANCING IN GHANA Adwinsa publications page 64 commented on contracts for sale of land as follows:
"A purchaser becomes an equitable owner of the land where the requirements of a contract of sale are satisfied. The vendor retains legal ownership until the conveyance is duly executed. The vendor continues to hold the legal estate in the property from the time the contract of sale is signed until the conveyance is duly executed. However, in Ghana by virtue of section 24 of the Land Registry Act, the vendor continues to hold the legal estate in trust for the purchaser until the instrument is registered." See also Lodoh and Da Rocha , referred to supra, 193.
If money remains to be paid under a contract for sale of land, the vendor acquires a lien on the property for the purchase money which is unpaid; See Re Birmingham (1959) Ch. 523. The enforcement of the vendor's lien was adequately discussed by Da Rocha & Lodoh (1995), referred to supra at page 193 thus:
The vendor can enforce his lien by applying to the Court for a declaration of the lien or for an order restoring the property to him for resale of the property. If the property is resold at a higher price than the contract price, the purchaser is entitled to the difference. If it is sold for a lower price, the vendor can demand the difference from the purchaser. The vendor's lien may be excluded by the terms of the contract of sale or may be renounced by the vendor. If the vendor takes some other security on the property he may lose the lien."
Second, I will discuss the investment agreement which I have identified from the pleadings. The moment the Defendant accepted to create an account and transfer the cash which it ought to have paid directly to the Defendant into that account, and hold same for a fixed period at an agreed interest in favour of the Plaintiff stool, which it actually did, a binding contract akin to a banker/customer relationship was made between the parties. In the event that the Defendant is unable to pay out the monies so deposited together with all accrued interest to the Plaintiff at the maturity date or upon demand, the Defendant will be in breach of the said financial investment agreement. The Plaintiff's remedy in that regard will be the return of its money plus interest and general damages for breach of contract.
With these at the back of my mind, I now turn to the two issues under consideration. I must say that after a careful evaluation of the evidence adduced on behalf of the Plaintiff, a formal contract of sale of land was duly made between the parties; the GH¢ 150,000.00 out of the purchase price which was agreed to be paid out to the farmers on the land as compensation has been duly paid on the instructions of the Plaintiff. Indeed by the Plaintiff's own showing in this trial, what was actually paid to the farmers was GH¢ 160,000.00. This was even GH¢ 10,000.00 more than the agreed figure contained in the contract for sale of land, exhibit 'TDS 5'. Further, the sum of GH¢ 280,000.00 out of the balance of GH¢ 300,000.00 payable to the Plaintiff immediately after the execution of the agreement was invested in the Defendant's product and rolled over at least three times on the Plaintiff's instructions as per paragraphs 22 to 33 of the witness statement filed on behalf of the Plaintiff.
It is to be noted that the Plaintiff pleaded in paragraph 6 of its statement of claim that:
"the remaining amount of GH¢ 300,000.00 was invested in the Defendant Microfinance business after they have been convinced by the Defendant to do so".
During the trial, the Plaintiff supported its investments with the Defendant company with documentary proof which clearly show an initial investment of GH¢ 280,000.00. The evidence was silent on the GH¢ 20,000.00 difference which the Plaintiff alleged it invested in the Defendant company. Obviously, there is a discrepancy in the Plaintiff's pleaded case and its evidence on oath as to the actual amount invested. The Plaintiff is to bear the consequences of this inconsistency which it failed to explain away on oath. See Appiah v Takyi (1982-83) 1 GLR 1 at page 7; Zambrama v Segbedzie referred to supra. By the Plaintiff's own showing, I find that the Denyase stool received all monies due and payable to it under the contract for sale of land in cash and by way of investment in the Defendant's product. Therefore, under the sale of land agreement, nothing remains to be paid to the Plaintiff; the Plaintiff does not and cannot hold any vendor's lien over the property which it now holds in trust for the Defendant who is the equitable owner until a formal conveyance is made and duly registered.
From the foregoing, it is the investment agreement which the Defendant has breached and not the contract for the sale of land which was concluded years ago whereby the Plaintiff's subject farmers have already received compensation from the Defendant to the tune of GHS 160,000.00. The Plaintiff is therefore entitled to general damages for breach of contract under the investment agreement.
That said, issues (1) and (2) can be resolved with ease. These issues are: (1) whether or not the Plaintiff invested the purchase price/value of the Agreement it entered into with the Defendant Company and
(2) whether or not the Plaintiff had been paid the principal/matured amount at the end of the investment by the Defendant?
The Plaintiff's exhibits 'DTC 1' to 'DTC 4 depict details of its investments with the Defendant. Exhibit 'DTC 1' confirms the oral evidence of the Plaintiff's witness that an initial sum of GH¢ 280,000.00 out of the purchase price of the land in issue was invested in the Defendant's products. The Plaintiff was silent on the difference of GH¢ 20,000.00 which was not invested. Exhibits 'DTC 2' and 'DTC 3' are documentary proof of the amounts rolled over with the accrued interest. As at January, 2014 the Defendant had not paid the GH¢ 362, 605.17 which had become due under the investment agreement to the Plaintiff. The writ of summons was filed on 29/07/2014 and there is no evidence on record to contradict the testimony of the Plaintiff's witness that the said amount has still not been paid.
That notwithstanding, the Plaintiff did not ask for payment of the amount due as an alternative relief. Neither did it pay filing fees commensurate with such a liquidated demand. The Plaintiff's witness categorically stated in his evidence-in-chief that " the Plaintiff currently is no longer interested in the money and wants to abrogate the contract of sale as the Defendant failed to pay the purchase..." ( see paragraph 39 of the witness statement of Nana Donkor Kwagyan).
On the totality of the evidence, the Plaintiff has failed to satisfy this court by any cogent evidence that it is entitled to abrogate the already concluded contract of sale of land and for all the interests in the land to be reverted to the stool. I therefore conclude that the Plaintiff is not entitled to any of the reliefs sought.
From the evidence, I could have made an order for a refund of the plaintiff's money, all accrued interest as well as interest at the prevailing bank rate till date of final payment on the authority of GIHOC v Hanna Asi ( 2005-2006) SCGLR 458 at 462 however, I am reluctant to do so because of the Plaintiff's statement that it is not interested in the money. I cannot force what the Plaintiff does not want down its throat!
At best, the Plaintiff who holds the legal estate in trust for the Defendant who is the equitable owner may negotiate for an amicable settlement so as to come out with their "custom made" solution. The Plaintiff's action fails.