Jonathan Kwete Quartey (suing per his lawful attorney Emmanuel N.O. Fiemawhle) v Mr. Ofori Antwi Boasiako II & Nii Samuel Adjei Mensah (Head and Lawful Representative of Akwraboye Doku Family of Atrekorwe, Teshie)

The Plaintiff commenced the instant action by a writ of summons issued out of the Registry of the High Court (General Jurisdiction), Accra against the 1st Defendant on 3rd April, 2019. Subsequently following an order for the joinder of the 2nd Defendant to the action, the said Writ of Summons and Statement of Claim was amended and filed on 5th February, 2020 to reflect the joinder of 2nd Defendant to the action. The Amended Statement of Claim was subsequently amended and filed on 22nd June, 2021.

Thus per the said Amended Writ of Summons filed on 22nd June, 2021, the Plaintiff seeks the following reliefs against the Defendants:

(a) A recovery of the outstanding amount of Fifty thousand United States Dollars (USD 50,000.00) with interest at the prevailing commercial bank rate from 2017 till date of final payment.

(b) Damages for breach of contract.

(c) Alternatively, a cancellation of the agreement dated 28th February, 2017, recovery of possession of the land described in paragraph 5 of the statement of claim and a refund of One hundred thousand United States Dollars (USD100,000.00) paid by 1st Defendant to Plaintiff within six (6) months.

(d) Costs

Counterclaim

 

Consequent upon the joinder of 2nd Defendant an Amended Statement of Defence was filed on 20th July, 2020 wherein the Defendants counterclaimed against the Plaintiff for the underlisted reliefs:

(a) A declaration that the Plaintiff had no good title capable of transfer to the Defendant.

(b) An order that the Agreement between the Plaintiff and Defendant was void ab initio as Plaintiff had nothing to give the Defendant.

(c) An order directed at the Plaintiff to refund the sum of Hundred Thousand United States Dollars (USD 100,000.00) or its cedis equivalent to the Defendant.

(d) Interest on the sum of USD 100,000.00 or its cedis equivalent.

(e) Recovery of possession by virtue of the judgment on paragraph 4 of the Statement of Defendant.

(f) General Damages.

Summary of case of the Plaintiff

The case of the Plaintiff as pleaded in his Amended Statement of Claim filed on 22nd June, 2021 is that he entered into a contract of sale of land with the 1st Defendant on 28th February, 2017. The said parcel of land, which is the subject matter of this suit is situate at Adjireinganor, East Legon, Accra. According to the Plaintiff, the said land was leased to him by Kwame Appau, which is evinced per an indenture dated 17th July, 2016 with stamp LVB2137b/07.

The Plaintiff then averred in paragraphs 7 to 13a of the Amended Statement of Claim facts regarding the sale and purchase transaction as follows:

 

7. Per the contract of sale, the Plaintiff agreed to sell his land to the 1st defendant at the cost of $150,000.00 or its equivalent in cedis.

8. The Land at the time of the agreement had an uncompleted structure on it built by the Plaintiff.

9. The 1st Defendant conducted his due diligence and was satisfied with the ownership by the Plaintiff before entering into the agreement.

10. Per the terms of the agreement, the 1st Defendant agreed to pay a first instalment of $100,000.00 which he duly honored.

11. Having paid the $100,000.00, the 1st Defendant was granted access to the land/property as per the terms of the agreement.

12. The 1st Defendant was to pay the second instalment of $50,000.00 when the

Plaintiff’s Land Title Certificate over the land became ready.

13. The Land Title Certificate has been ready since September 2017 and the 1st Defendant has been duly informed of this fact.

13a. An official search conducted by the Plaintiff at the Lands Commission on 18/05/2021 confirms his registered title to the land in dispute.

The Plaintiff also alleged that the 1st Defendant subsequently fraudulently plotted the land in dispute in the names of his children with Lodgement No. 03453/15 and further that at the time of the alleged lodgement by the 1st Defendant at the Survey and Mapping Division of the Lands Commission, the Plaintiff had not executed any document transferring the land to the 1st Defendant, a conduct which amounted to fraud.

Finally the Plaintiff averred that several demands on the 1st Defendant to pay the outstanding balance of Fifty thousand United Stated Dollars (USD50,000.00) has yielded no results, notwithstanding the 1st Defendant’s several promises to pay same. The Plaintiff also denied the allegations grounding the counterclaim.

 

Case of the Defendants

The case of the Defendants as pleaded in their Amended Statement of Defence filed on 20th July, 2020 is that the land which formed the subject matter of the Sale Agreement between the Plaintiff and the 1st Defendant did not belong to the Plaintiff and therefore the Plaintiff had no land to sell at the time.

The Defendants contended in support of their rejection of the Plaintiff’s claim to the land that the land rather belonged to the Akwraboye Dorku Family of Teshie, by virtue of a Judgment obtained in favour against the Plaintiff’s grantors and which judgment was binding on the Plaintiff. That the 2nd Defendant is not only the Head of Family of the Akwraboye Doku Family of Atrekor We in Teshie, Accra but also the Head and Lawful Representative of the said family, whose family is the allodial owners of Otanor Lands in East Legon, wherein the subject matter of this suit is situated.

The Defendant averred that the land was therefore granted to the 1st Defendant by the 2nd Defendant and therefore the Plaintiff, not being the owner of the land, had no business demanding payment from the 1st Defendant, for land he did not own. Flowing from these the Defendant counterclaimed for the reliefs sought inclusive of the return of the USD100,000.00 paid to the Plaintiff, pursuant to their contract.

Issues for Trial

The Court differently constituted on 4th December, 2019, and in the absence of any additional issues filed by the Defendant, set down the issues set out in the Application for Directions filed on 8th November, 2019 as the issues for trial. The issues therefore set down for trial are:

(1) Whether or not the Plaintiff is entitled to recover the amount of USD 50,000 with interest at the prevailing commercial bank rate from the defendant.

 

(2) Whether or not the Plaintiff is entitled to recovery of possession of the land in dispute from the defendant.

(3) Whether or not the Defendant is entitled to a refund of the sum of USD100,000,000.00 from the Plaintiff with interest.

(4) Whether or not the agreement between the Plaintiff and the Defendant was void ab initio.

(5) Whether or not the Plaintiff transferred good title to the Defendant.

(6) Any other issues that arise on the face of the pleadings.

Proceedings at Trial

Plaintiff’s lawful attorney Emmanuel N.O. Fiemawhle testified during the trial. His witness statement filed on 21st January, 2021 and supplementary witness statement filed on 22nd February, 2022 were admitted as his evidence. The 1st Defendant also testified during the trial and his witness statement filed on 28th April, 2021 was admitted as his evidence during the trial. 2nd Defendant testified during the trial. His witness statement filed on 28th April, 2021 and supplementary witness statement filed on 16th May, 2022 were admitted in evidence.

Finally, the Court appointed Expert William Schall from the Survey and Mapping Division of the Land Commission testified on 23rd March, 2023 and was cross-examined by the parties through their respective lawyers.

Ownership of Land

As stated earlier, multiple issues were set down for trial. My view however is that, the central theme and for that matter the fundamental issue for determination, which will form the bedrock for the determination of the other issues is the question regarding which of the parties herein owns the land, the subject matter of the contract between the Plaintiff and the 1st Defendant.

 

The factual basis for this conclusion stems from the understanding to be had from the pleadings that at the time the sale agreement was executed between the plaintiff and the 1st Defendant, wherein the 1st Defendant parted with his USD100,000.00, it was never asserted by the 1st Defendant that the Plaintiff did not own the land.

The above finding is reflected in the Plaintiff’s undisputed Exhibit “B”, wherein it is stated as in clause 4 follows:

4. The purchaser has inspected the property, done his due diligence and he is satisfied with the results.

Therefore, flowing from the above reasoning, I find it necessary to determine the ownership of the disputed property as a necessary predicate or foundational issue. Accordingly, in examining the evidence in respect of the ownership of the subject matter property, I will link the outcome to the determination of two (2) other issues which are whether or not the Plaintiff is entitled to recovery of possession of the land in dispute from the defendants and whether or not the Plaintiff transferred good title to the Defendant.

Burden of Proof

The determination of the ownership of the land will call for a determination of the vexed question regarding which of the parties bore the legal burden to put before the Court evidence supporting their claim of ownership of the disputed land.

It is undisputed from the pleadings that the factual antecedent’s of the Plaintiff’s action

before this Court is in respect of an alleged breach of contract by the 1st Defendant. The

 

plaintiff’s case is that pursuant to a Contract of Sale, he sold a piece of land to the 1st Defendant for One hundred and fifty thousand United States Dollars (USD150,000.00).

It is not also in dispute that, the 1st Defendant, having satisfied himself and in compliance with the terms of payment, paid the Plaintiff the sum of USD100,000.00 as the first instalment payment, but subsequently reneged in paying the outstanding difference of Fifty thousand United States Dollars (USD 50,000.00) on grounds that he subsequently accepted the representation to him by the 2nd Defendant that the land he purchased from the Plaintiff was not the Plaintiff’s land but rather the 2nd Defendant’s family land.

The legal effect of matters not disputed in the pleadings and evidence was stated in the case of in the case of Fori v Ayirebi and Others [1966] GLR @627 as follows:

“When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact.”

Following the aforementioned finding, it is my considered view that the Plaintiff at the time of the sale, was in lawful possession of the disputed property, and therefore presumed to be the owner of same.

This finding is further expanded to include a finding that the 1st Defendant having parted with amount of USD100,000.00 in the absence of any allegations of fraud against the Plaintiff at the time the contract was executed, will be deemed to have accepted the representation of the Plaintiff at the time of the sale that he is owner of the property.

 

Indeed in Plaintiff’s Exhibit “B” which is the undisputed evidence of the contract of sale executed between the Plaintiff and 1st Defendant. The root of title of the Plaintiff was detailed in clause 1 and 2 of the contract as follows:

1. By indenture dated 17th July, 2016 Kwame Apau assigned his unexpired lease (from the original 99 years) to Jonathan Kwate Quartey all that piece and parcel of land situated and lying Adjirignor, East Legon stamped as LVB 21373B/07 referred as “the property”

2. The original owners are the Ashong Mlitse family of Odaitei-We of Teshie, Accra. The just mentioned family previously leased this parcel of Land to Joyce B.B. Boakye, who also gave her unexpired lease to Kwame Apau.

When the above is juxtaposed with clause 4 of the contract as quoted supra, then the finding that the 1st Defendant satisfied himself that the root of title stated expressly on the face of the contract was true, and so paid the USD100,000.00, will be presumed as the case.

As indicated earlier, the contentious issue surrounding the ownership of the land is however predicated on a subsequent claim by the 1st and 2nd Defendant that the land did not belong to the Plaintiff but rather the 2nd Defendant with a conclusion that based on these claims, the Plaintiff could not have conveyed good title to him (1st Defendant) because he had nothing to give as a consequence of the Plaintiff not being the legal owner of the property.

To my mind therefore, and based on the pleadings the claim regarding dispute of the ownership of the land was raised by the Defendants following an alleged subsequent discovery.

 

My considered view therefore on the placement of the evidential burdens is that since it is the Defendants, led by the 1st Defendant (contracting partner), who are now asserting rival claim by changing the original settled terms of the contract and further that since it is the Defendants who are making a rival claim and claiming recovery of possession, they will be saddled with the burden to put before the court evidence to establish what to all intent and purposes is a defence against the performance of their obligations under an executed agreement, notwithstanding the fact that it was the plaintiff who initiated the action.

My conclusions on the placement of evidential burden on the Defendant is underscored by section 11(1) of the Evidence Act, 1975 (NRCD 323) which provides that:

11(1). the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.

In the case of Re- Ashalley Botwe Stool Lands [2003-2004] SCGLR 420, the Supreme Court also held that “Whereas the onus is on the Plaintiff to lead evidence that will tilt the balance of probabilities in his favour, the burden of producing evidence is not fixed but shifts from party to party depending on the issue asserted or denied.”

It is pertinent to state further that the Plaintiff maintains the burden of persuasion of the claims made against the Defendant. This is in line with NRCD 323, particularly sections 10 (1)(2)(b). 11 (4); 12 , 14 and 17.

In the case of Duah v Yorkwa (1993/94) 1 GLR 217 the court held at p. 225 thus:

 

“NRCD 323 makes provision for the duty or obligation to adduce evidence to shift from one party to the other. In a situation like the instant case, the duty or obligation could shift from the plaintiffs to the defendant… When the duty or obligation so shifts, and the defendant fails to adduce sufficient or any evidence … the ruling of the court on the issue

… will be against the defendant”

Again in the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867, the court explained the law governing the burden of proof as follows:

“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.”

Finally, in a case explaining the onerous burden on the party seeking recovery of possession and declaration of tittle, is that Akoto II v Kavege [1984-86] 2 GLR at 371, Francois JSC held as follows:

“The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge”

Regarding the standard of proof in civil trials, the Supreme Court case of Bisi v Tabiri & Anor [1987-88] 1 GLR 360 at page 361, is captured in holding 2 of the report as follows:

“The standard of proof required of a Plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either

 

beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the triers belief in the preponderance of probability.”

So what evidence did the Defendants put before the Court to establish their claims over the subject matter of the contract between the Plaintiff and the 1st Defendant?

The Defendants in their Amended Statement of Defence emphatically stated that the disputed land belonged to the Akwaboye Doku Family of Atrekor We in Teshie, Accra, a family with the 2nd Defendant is the Head of Family. The Defendant further alleged in paragraph 6 of their Statement of Defence that the disputed property formed part of a large tract of land belonging to the Akwaboye Doku Family of Atrekor We for which a judgment declaring same had been obtained.

They finally referred to the said judgment affirming their family’s ownership as that which was delivered by Justice N.M.C. Abodakpi, High Court, Fast Truck Division dated 27th July, 2015 and a further ruling of the High Court dated 24th June, 2020 “giving clarity to the judgment of the 27th day of July, 2015”.

Essentially, I understand the case of the Defendants to mean a substantial reliance of the said judgment and ruling in proof the root of title of the 2nd Defendant’s family to the land. I will accordingly springboard my evaluation from the evidence put before this Court by the 2nd Defendant.

The 2nd Defendant testimony regarding his family’s ownership of the disputed land is

expressed in paragraphs 5 to 9 of his Witness Statement as follows:

 

5. On the 27th day of July, 2015, my family obtained a Judgment in a suit entitled Nii Nmai Mensah (Substituted by Simon Adjei Adetey) v Seth Laryea Mensah (Decd) (Substituted by Emmanuel Afotey Tetteh), Okley Mensah, Afotey Alias J.J, Narh Odai (Substituted by Joseph Odai Afortey) and Charles Sowah. Suit Number 1997/92. The said suit was before the High Court, Accra Fast Track Division presided over by His Lordship Justice NMC Abodakpi. A copy of the proceedings and Judgment shall be tendered as Exhibiti 4 and Exhibit 5 respectively.

6. The Akwraboye Doku Family of Teshie, Accra in the Greater Accra Region of the Republic of Ghana is the allodial owner of a large tract of land situate and lying at Otanor, East Legon, Accra covering a total area of 748.39 acres more or less bounded on the North by Djornman and Nmai Dzor lands, bounded on the East by Nungua Stool lands, bounded on the South by Adjiringanor lands and bounded on the West by Otinshie lands. The subject matter of this suit forms part of the total area adjudged in favour of my family. A copy of a site plan depicting the family's land at Otanor which was also tendered as an exhibit in the High Court shall be tendered as Exhibit 6.

7. The land was acquired by conquest and long settlement through the founder of Akwraboye Doku Family and his son Sowah Sookpo.

8. My family has exercised acts of possession and ownership of its lands having founded a settlement on the land referred to as Otanor with religious, historical and archaeological sites such as the Ahuanyankwan shrine.

9. The Akwraboye Doku Family made grants to interested persons and family members who used the land for farming and residential purposes; until the family's attention was drawn to adverse claims of the Nii Tuaka and Nii Anorkwei famillies as well as the Ashong Mliste family of Odarteiste We, all of Teshie. Some of these persons to whom grants were made were unable to develop their lands due to the suit in Exhibit 5.

10. The Family appointed a caretaker in the person Tetteh Bankade to oversee the land and report to the Family at Teshie. With the afflux of time, the head of family had reasons to question the loyalty of Tetteh Bankade and therefore relieved him from further performance

11. I do not know the immediate purported grantor of the Plaintiff, However I know Ashong Mlitse Family of Odarteitse We of Teshie. Adjiringanor lands are traditionally owned by the Ashong Mlitse Family of Odarteitse We of Teshie who happened to be the Defendant/Judgment Debtors in Exhibit 5.

The first question though is whether or not the disputed land falls within the plan exhibited by the 2nd Defendant. In order to effectively determine this question, the court called to its aid the services of the Survey and Mapping Division of the Lands Commission.

On 2rd March, 2023, Mr. William Schall testified in Court on behalf of the Lands Commission. He tendered the plan (Exhibit CE1) which is the outcome from superimposition all the maps filed by the parties. These plans superimposed were that belonging to the Plaintiff (edged in green), that created by the 1st Defendant in the name of his children (edged in red) and the plan belonging the family of the 2nd Defendant (edged in yellow and purple).

 

An examination of the disclosures on the face of Exhibit “CE1” will show that the disputed subject matter of this suit falls beyond the property of the 2nd Defendant’s family. During the cross-examination of the Court Witness by Counsel for the Plaintiff below is what transpired:

Q: Can you confirm to the court that you received the survey’s instruction of the Plaintiff filed on the 10th of February, 2022 and the supplementary survey instructions filed on the 2nd of March, 2022.

A: Yes, we received on the 10th February, 2022 and the supplementary on 2nd March 2022.

Q:  Can you also confirm if you received the 1st and 2nd Defendants’ survey’s

instruction filed on the 16th of May, 2022.

A: Yes

Q:  Now, you can confirm that you relied on all the documents and site plans of the parties to prepare the composite plan.

A: Yes

Q: And from the report, the land shown on the site plan of Ronald Nana Ofori, Daisy Nana Ofori and Kacey Nana Ofori falls outside the 2nd Defendant’s judgment plan.

A: Yes

Q: You can also confirm that the site plan attached to the Plaintiff’s land title certificate falls outside the 2nd Defendant’s judgment plan that was submitted.

A: Yes

Q:  And you can confirm that the site plan for the Plaintiff and that of the 1st

Defendant’s relates to the same land.

A: Yes

 

The evidence of the Court Expert was that the scope of the 2nd Defendant’s family land does not extend to cover the area wherein disputed land is situated. This translates into an understanding that, per the finding of the Court Expert the plans tendered by the defendants did not reflect the judicial decision they were strongly relying on.

Counsel for the Defendants when he took his turn to cross-examine the Court Expert raised certain issues regarding the credibility of the report. Below is what transpired:

Q. You agree with me that, in the survey instructions of the Plaintiff filed on 10th February, 2022, you were to superimpose Plaintiff’s site plan, 1st Defendant’s site plan and 2nd Defendant’s judgment plan, is that correct.

A:  That is so.

Q: And you agree with me that, in your process of superimposing these plans, you did not go to the subject matter in question for any form of surveying work, is that correct?

A:  Yes

Q: And you will agree with me that if you had gone to the land in question in your process, you may not have reached the same conclusion you have reached in your report, is that correct?

A:  Yes I agree.

Now, notwithstanding to agreement by the Court Expert, I struggle to come to terms with the real issue sought to be extracted from these line of questions. My understanding of the factual premise of the line of questions is that the failure of the Court Expert to physically inspect the land impaired the finding contained in the report.

 

With all due respect to counsel for the defendant, it is my considered view that the non- inspection of the land did not impair the finding contained in the report, since there was already in existence data, in the nature of site plans, to adequately settle the issues.

I say so because, the issue before the court was whether or not the location of the disputed house fell within the property of the 2nd Defendants family. This question can easily be ascertained from the site plan of the parties. Therefore to my mind, it is only where there is a conflict before other tools of methods of unravelling the issues may be interrogated.

Besides a physical inspection involves an identification of the disputed land by the parties. To my mind, the outcome of such physical inspection will only most probably result in the answers to resulted in the dispute. I honestly do not see how the parties will present to the inspectors different locations.

Besides it is trite law that the best way to establish title is to establish the identity of the land. This is usually done with the aid of site plans. In the civil Appeal case of Mrs Vivian Aku-Brown v Aku-Brown v Samuel Lanquaye Odartey, with suit number J4/4/2016 and delivered on 29th June 2016 (reported by GHALII as Aku-brown Vrs Lanquaye [2016] GHASC 64 (29 June 2016)), the Supreme Court stated as follows:

“Using plans to identify subject-matter land for purposes of declaration of title and associated reliefs has been approved by the courts in the cases of Laryea v Oforiwah [1984- 86] 2 GLR 410 CA and Agbosu v Kotey [2003-2004] SCGLR 420 SC. Using plans to identify subject-matter land for purposes of declaration of title and associated reliefs has been approved by the courts In times past identity of land claimed in litigation was established by reference to physical features such as streams, prominent trees, mountains and lands of established boundary owners. Those features cannot be more accurate than plans prepared with the use of modern scientific instruments and capable of being

 

transposed unto the ground with ease. A plan tendered in evidence or otherwise accepted by parties in proceedings in court which clearly delimits land claimed constitutes sufficient proof of identity of the land for purposes of the reliefs of declaration of title, injunction, and possession.”

From my finding supra, I am of the considered view that the 2nd Defendant has failed to demonstrate to this Court that the disputed property land falls within the boundaries of his family land. Accordingly, having failed to show that their disputed land falls within their family land, I find that the 2nd Defendant has failed the fundamental test, which is to situate the disputed land within their family land.

As a consequence of this finding, I further find that the 1st Defendant claim that the disputed land belongs to the family of the 2nd Defendant fails on the grounds that same was not proven on the balance of probabilities. Accordingly, the 2nd Defendants claim to the land is hereby dismissed in it’s entirely.

I further find that the Plaintiff had good title to the land when he executed the sales agreement with the 1st Defendant.

Breach of Contract

I will now proceed to deal with whether or not the 1st Defendant has breached the contractual terms. The pleadings begets no dispute that the 1st Defendant has breached the terms of the contract which required him to pay and additional USD50,000.00 to complete the contract.

I have in earlier paragraphs, dismissed the grounds upon which the 1st Defendant sought to resile from the contract. Accordingly, I find that the 1st Defendant breached the

 

payment terms of the contract and therefore the Plaintiff is entitled to recover the outstanding USD50,000.00 from the 1st Defendant.

Alternative Relief

The Plaintiff in this action also sought for an alternative relief to the recovery of the Outstanding USD50,000.00. My thinking is that the alternative relief is being sought in circumstances were the principal relief for the recovery of the principal outstanding debt is impracticable.

Unfortunately, I find from the record a paucity of evidence to explain why the court should consider the alternative relief and also why his principal relief was incapable of enforcement for which the alternative relief should kick in.

The alternative relief sought by the Plaintiff is for an order cancelling the agreement between the Plaintiff and the 1st Defendant dated 28th February, 2017 and a consequential order for the recovery of the disputed property and refund of the sum of One hundred United States Dollars (USD100,000.00) already paid to the Plaintiff to the 1st Defendant. The threshold question which arises is whether or not the Court has jurisdiction to cancel a contract which is not illegal or has been frustrated by events not of the parties making and not reasonable anticipated.

My view is that a court can only cancel a contract under certain limited circumstances. The circumstances include misrepresentation or fraud, duress or undue influence, mistake, illegality, unconscionability or a where a material breach has been occasioned making the contract incapable of performance, then a party may seek the termination through the Court.

 

An examination of the pleadings and the evidence will show that with the exception of breach of the contract, the other incidents does not exist against the contract. The question therefore is whether or not there is evidence to support a material breach of the contract to support a prayer for cancellation and a restoration of the property to the Plaintiff.

There is no dispute that the 1st Defendant failed to complete his obligations under the contract, which is the pay the full cost of the property, pursuant to a contract entered in 2017. The question there is whether the failure to pay constitutes a material breach of the contract which rendered the contract incapable of performance.

It is my understanding that a material breach of a contract of sale is said to have been occasioned when a failure to perform a contract term is so serious that it defeats the purpose of the agreement and justifies the innocent party treating the contract as terminated and seeking full remedies.

In the instant case it has not been disputed that the 1st Defendant has paid a total of USD 100,000.00, leaving USD 50,000.00. My view therefore is that in the event that the Plaintiff’s action succeeds the remaining obligations is reasonably capable of cure. The Court can simply order the offending party to pay the debt, unless it can be shown that the offending party is incapable of paying the debt and therefore harm will be occasioned to the innocent party if the contract is not terminated.

Accordingly, I do not find the non-payment of the outstanding debt of USD 50,000.00 as significant breach to attract a judicial termination of the contract because more than sixty percent of the contract has been performed.

Counsel for the Plaintiff referred the Court to Plaintiff referred the Court to the case of

Safo & Another v Badu [1977] 2 GLR 63, wherein it was held that:

 

“…the common law rule was that a tenant who repudiated the title of his landlord was automatically made to forfeit his lease, and whereas a merely oral denial of title would not produce a forfeiture in the case of a tenancy for years, it would do so in the case of a yearly or other periodic tenancy. The tenant by denying that he had a tenancy was taken to waive any notice to quit, and the landlord could claim possession at once and no relief was available against forfeiture at common law for the denial of a landlord’s title. In the present case, the appellant was by the terms, a tenant at will, and not a tenant for years and by denying that she had a tenancy she was taken to waive any notice to quit and the landlord could claim possession at once.”

The distinction to be had in respect of the above principle is that whereas the above case deals with leases, the subject matter of the contract between the Plaintiff and the 1st Defendant was Assignment. It is trite that in assignment the interest of the assignor is totally divested, whereas in leases the interest of the lessor is only temporarily held in abeyance.

Therefore unlike leases, where the principles in the above cited case is the reasonable thing to do, in assignment and freehold, it is my considered view that preference should be had for the completion of the contract and not a total cancelation of the contract.

Fraud

The Plaintiff alleged in his pleading that the 1st Defendant by registering the subject matter of the contract in the names of his children amounted to fraud by presenting forged documents to the Lands Commission.

 

The record will show that the 1st Defendant did not deny that he registered the land in the names of his children. But the question is whether or not he presented forged documents to the Lands Commission.

I have examined the evidence, and I find that the plaintiff failed to satisfy the Court in proof of the elements required for proof of crime beyond reasonable doubt.

What I find however, is an assertion by the Plaintiff that simply because the Plaintiff did not execute any deed of assignment, and conduct by the 1st Defendant of registering the land amounted to fraud.

So the question is how did they forge? What documents did they forge? The Plaintiff’s failed to lead any evidence in respect of these documents. They only tendered the results of a search reports from the lands commission. To my mind unless evidence of an intention to defraud is led, then my finding will be that the 1st Defendant was simply misled by the 2nd Defendant, in respect of the ownership of the land.

Recovery of USD 50,000 with interest

The next issue is whether or not the Plaintiff is entitled to recover the outstanding US50,000.00. My view is that the Plaintiff is entitled to recover interest on the withheld amount.

It is trite learning that the Court will the courts in Ghana will enforce contracts, provided certain legal requirements are met.

In the instant case it is not in dispute that the parties agreed that the disputed property will be sold and purchased at USD150,000.00. It is not also in dispute the 1st Defendant paid an initial USD100,000.00 leaving an outstanding unpaid balance of USD50,000.00. It

 

is my considered view therefore that in the event that the Plaintiff established that the non-payment of the USD50,000.00 by the 1st Defendant amount to a breach of the contract, same will be recoverable with interest.

I say that interest is generally recoverable in respect of unpaid amounts which are due simply because the buyer withheld monies due the seller. In the case of HOLLAND WEST AFRICA & ANOR V PAN AFRICAN TRADING COMPANY & ANOR (1976) 2

GLR 179 holding (3) that

“if a breach of contract had deprived a plaintiff of the use of a sum of money or other capital asset, the defendant must be presumed to have agreed to pay interest for the period between the date when the cause of action arose and the date of the judgment”.

Let me hasten to add however that were interest are awarded for monies withheld, the interest tend to serve as damages, unless other forms of loss can be said to have been occasioned. In the case of Kama Health Services Limited v. Unilever Ghana Limited;

Civil Appeal No. J4/24/2013 and delivered on 19th July, 2013

“interest is payable because the vendor has kept the purchaser’s money under a contract which has failed as a result of the vendor’s default. The appellant also raised the issue that the parties did not include interest as a term of their contract. Parties need not provide in their contract that interest shall be paid in the event of a breach. Interest payment follows failure of a contract under which payment has been made, as a form of damages for breach of contract”.

In the much earlier case of GCB v. Binoo-Okai [1982-82] GLR 74, it was held that “interest is compensation or damages for the wrongful withholding of another person’s money.”

 

Damages

The Plaintiff prayed for damages for breach of contract. As indicated earlier, the breach complained about is the failure of the 1s Defendant to pay the outstanding debt of USD50,000.00.

I have also in earlier paragraphs indicated that the Plaintiff is entitled to recover interest on the withheld USD50,000.00. The question though is whether the plaintiff is entitled to interest and damages at the same time.

My view of the matter is interests awarded in respect of withheld amount will constitute sufficient damages unless a claimant can show that some damage was occasioned as a consequence of the withheld amount. In this instant case I find no evidence led in this direction. It is also my considered view that this is not a case where nominal damages may be awarded.

Conclusion

In conclusion, I find from the totality of the evidence that the Plaintiff has put before the court evidence on the balance of probabilities evidence to support the reliefs sought. On the other had I find that the Defendants have failed to satisfy the court that they are entitled to the reliefs sought. The reliefs sought by the Defendants are accordingly dismissed.

I accordingly enter judgment for the Plaintiff as follows:

(a) The Plaintiff is to recover the outstanding amount of Fifty thousand United States Dollars (USD 50,000.00).

 

(b) Interest on the said USD50, 000.00 at the prevailing Secured Overnight Financing Rate (SOFR) rate from January, 2018 to date of payment.

(f) Cost of GHS20,000.00 to the Plaintiff against the 1st Defendant.