DARKO VRS APRAKU (H1/104/2019) [2021] GHACA 43 (27 May 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA- AD 2021 CORAM: MARGARET WELBOURNE, JA –PRESIDING JENNIFER A. DODOO, JA GEORGE KOOMSON, JA SUIT NO. H1/104/2019 27th MAY, 2021 SAMUEL KODWO DARKO PLAINTIFF/APPELLANT VRS NANA AGYAKUMA APRAKU DEFENDANT/RESPONDENT ………………............................................................................................................. JUDGMENT ..................................................................................................................................... Introduction The Plaintiff/Appellant (who will simply be referred to as the Appellant in this matter) issued a writ against the Defendant/Respondent (who will be simply referred to as the Respondent) claiming the following reliefs: i. A declaration that the Defendant is in breach of the sub-lease agreement. ii. An order of forfeiture of the sub-lease. iii. An order for recovery of possession by the Plaintiff iv. An order of interlocutory injunction against the Defendant, her agents, successors, assigns, workmen and all manner of persons claiming through her from interfering with the quiet enjoyment of the land by the Plaintiff and his successors. v. Damages for breach of contract. vi. Costs. It was the Appellant’s case as gleaned from his statement of claim that he is the lessor of a 0.40 acre of land situate at Airport Residential Area having obtained his lease from the Lands Commission in September 1991. Thereafter, he made a sublease of 0.11 acres to the Respondent in 1995. Although he executed his part of the sublease, the Respondent refused to execute her part. She has also refused to pay ground rent for her portion of the lease. He therefore claimed as per the endorsement on his writ. The Respondent in response stated that she had purchased a sublease of plot No. 1A from the Appellant. Yet the Appellant had divided the plot into two and given her a portion of what she had paid for. As a result, she had refused to sign the sublease he had sent for signature. She therefore claimed that she had not failed, neglected or refused to sign the conveyance but rather it was the Appellant who had failed and/or neglected to effect the corrections to the sublease. She said she had fulfilled her part of the obligations by paying to the Appellant the sums of Ten Thousand Pounds Sterling (£10,000.00), Sixteen Thousand United States Dollars ($16,000.00) and One Million, Four Hundred Thousand Cedis (¢1,400,000.00) between September 1993 and August 1995. She accused the Appellant of fraud (see p 89 of the Record of Appeal {ROA}) particularizing same as: a. The Plaintiff purports to make a grant of the unexpired term of 94 years from an undefined time to the Defendant, relying on a grant from the Lands Commission (Headlease) which grant was for a period of 89 years from the 1st day of November, 1990. b. That the Plaintiff was not granted 94 years in the headlease for him to purport to make a grant of 94 years thereof. c. The Plaintiff’s conveyance to the Defendant is faulty by reason that it does not state any date of execution neither does it indicate any commencement date. d. The site plan and schedule to the conveyance does not represent the understanding of the parties as per their agreement. e. There is an indication of a witness to the execution of the document by the Defendant but which execution never happened. The Respondent therefore made a counterclaim for the following reliefs: a. A declaration that there exists an agreement between the Parties for the Plaintiff to sublease the land which is described as “ALL THAT piece or parcel of land identified as Plot No. 1A and containing an approximate acre of 0.40 acre situate at Airport West Residential Area, Accra …… b. That the Plaintiff has refused, failed and/or neglected to submit a valid conveyance of a sublease to the Defendant granting the area of land described in the schedule under paragraph 22 (a) above. c. A declaration that the Plaintiff has breached the agreement between the parties in respect of the land described in the schedule under paragraph 22 (a) above. d. An order for the recovery of possession of the parcel of land described in the schedule under paragraph 22 (a) above e. Damages for breach of the agreement. f. An order of specific performance of the agreement between the parties. g. An order that the Plaintiff should obtain all necessary written consent as provided in the conveyance between himself and the Government of Ghana in September, 1991 for the benefit of the Defendant. h. An order of perpetual injunction restraining the Plaintiff, his agents, workmen, privies, assigns and/or any person(s) claiming under or through him (Plaintiff) howsoever described from interfering with the Defendant’s peaceful and quiet enjoyment of the land described in (a) above or any portion of the said land. i. Costs j. Any other further order(s) as to this Honourable Court deems just and equitable. The Appellant in his Reply stated that it was only about 0.11 acres of the land of 0.40 acres which was up for sale. It was his contention that he gave the Defendant the site plan covering the whole acreage as the Defendant needed to satisfy herself that the land did indeed belong to him. He stated further that the Defendant tried to prevail upon him to sell to her some more land. He however refused to accede to her demands. The issues set down for trial were as listed below: i) Whether or not the Plaintiff granted the Defendant a sublease of a portion of his property? ii) Whether or not Defendant has complied with the terms of the sublease? iii) Whether or not the Plaintiff executed a deed of assignment for transfer of his interest to the Defendant? iv) Whether or not there was any agreement at all between the Plaintiff and the Defendant? v) Whether or not the Plaintiff is entitled to his reliefs if there was no sublease agreement? vi) Whether or not Defendant is entitled to her counterclaim? vii) Any other issues arising from the pleadings. The Defendant filed the following additional issue: 1. Whether Plaintiff conveyed the entirety of the parcel of land described as Plot No. 1 to Defendant? In a Judgment delivered on 11th January, 2017, the trial judge found that the Appellant had conveyed the entirety of the parcel of land described as Plot No. 1 to the Respondent. The Court found therefore that the Appellant as Plaintiff had not discharged the burden of proof on him as required by Section 11(1) and 11(4) of the Evidence Act, 1975 (NRCD 323). The Appellant’s claims were consequently dismissed and judgment was accordingly entered for the Respondent. The Respondent was adjudged to have proven her counterclaim. The Court held further that the Appellant had breached the sublease between himself and the Respondent and was therefore entitled to general damages for the said breach. General damages were assessed at GH¢5,000.00. The Court further ordered specific performance of the contract and ordered also that the Appellant was to seek the necessary written consent from the Lands Commission as provided in the conveyance between himself and the Government of Ghana in September, 1991 for the benefit of the Defendant. Aggrieved by this decision, the Appellant has launched the instant appeal. The grounds of appeal are as follows: a. That the judgment is against the weight of evidence. b. The finding that the Plaintiff conveyed the entirety of the parcel of land described as Plot No. 1 to the Defendant is contrary to the evidence. c. The conclusion that the Plaintiff has not discharged the burden of proof on him as required by section 11(1) and (4) of the Evidence Act, 1975 (NRCD323) is contrary to the evidence. d. That the conclusion that the Defendant has discharged the burden of proof on her with respect to her counterclaim as required by section 11(1) and (4) of the Evidence Act, 1975 (NRCD 323) is contrary to the evidence. e. The learned judge erred when she concluded that the Plaintiff breached the sub- lease agreement with the Defendant. f. Further grounds to be filed upon receipt of the Record of Appeal. The Appellant’s Submissions In arguing ground (a) that the judgment was against the weight of evidence, the Appellant contended that the learned trial judge wrongly excluded evidence which she ought to have taken into consideration and took into consideration, certain evidence which she should not have done. It was the Appellant’s contention that trial court based its decision not on the evidence adduced at the trial but rather on the submissions filed by the Respondent and therefore ended up in a one-sided judgment which was at variance with the evidence on record. The Appellant argued that contrary to the trial judge’s assertion at page 4 of the record that; “From the totality of the evidence adduced, it has not been established that the defendant had breached the agreement between the parties herein. This will be further explained when dealing with the other issues.”, there was no further explanation for the conclusion reached. The Appellant submitted that it was his case consistently that he had subleased 0.11of an acre to the Respondent. It was the Respondent’s case in her Statement of Defence and Counterclaim that she had contracted for 0.40 acres. In her evidence-in-chief she stated that the land was 0.41acres and in cross-examination, she gave the dimensions of the land as 0.25 acres. It was thus, the Appellant’s case that with these inconsistencies, the Respondent could not even clarify the size of the land for which she had contracted. It was also Appellant’s case that there was evidence on record to prove that the Respondent had sent people to him to negotiate and purchase for some more of the land which she claimed she had purchased in its entirety. He argued that if she had really contracted for and purchased the whole land as she claimed, there would have been no need for her to make overtures to purchase some more of the land from him. This evidence, he said, had neither been challenged in cross-examination nor had the Respondent led evidence contrary to this contention. Furthermore, the Appellant argued that there was a witness who had corroborated this piece of evidence. In view of this, the trial judge should have preferred the corroborated evidence rather than the Respondent’s uncorroborated evidence. He relied on the cases of Tonado Enterprises v. Chou Sen Lin (2007-2008) SCGLR 135 and Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 882. The Appellant also submitted that if the court had come to the conclusion that there was a valid sublease between the parties, it should also have concluded that the failure of the Respondent to pay ground rent for the over 10-year period that she was in occupation of the land was a breach of the sublease. The Appellant submitted that on the entire evidence, he had proven his case on a preponderance of probabilities and had thus satisfied the evidential burden placed on him. He urged the court to reverse the trial judge’s findings. The Respondent’s Submissions The Respondent averred that it was the inconsistencies in the Appellant’s evidence which led the trial court to make findings against him. It was their contention that the trial judge had found as follows: “From the evidence led, the parties are disputing the size of the land the plaintiff granted to the defendant. It is not in dispute that the parties agreed on the property being subleased and the defendant made full payment for it as agreed by the parties. As at that time the parties were agreed on what they had contracted for. It was after full payment had been made by the defendant and the plaintiff sent the agreement, he had signed to the defendant to sign her portion that the parties started disputing the size of the land. It is obvious that the parties had a valid agreement but one party later wanted to change the size of the land of the sublease they had agreed on. I find as a fact that the parties herein had a legally binding sublease agreement.” It was their case that the Appellant had in his statement of claim averred that he was the leaseholder of Plot No. 1 Airport West Residential Area measuring 0.40 of an acre but the site plan attached to Exhibit A that he tendered in evidence measures 0.83 acre. Although he had stated that he had leased 0.11 acre, he had in fact leased 0.40 acre to the Respondent and the subject matter of the lease was found in Exhibit 6 which described the whole area as “Plot No. 1 Airport West Residential Area, Accra containing an approximate area of 0.11 acre and bounded on the North West by Plot No. 1 more or less on the East by Plot No. 150 more or less on the South by a lane more or less on the south by Plot 152 more or less which piece of land is more particularly delineated on the plan attached hereto and thereon shewn pink. It was their contention that the site plan attached to Exhibit 6 described the plot as Plot No. 1 C Airport West Residential Area. They therefore concluded that it was these seemingly inconsistencies that led the trial court to come to the conclusions that it came to. They also claimed that the evidence led by the Appellant to show that the Respondent had sent people to plead with him to sell her more land had been challenged in cross- examination. It was therefore untrue for the Appellant to state that this evidence was never challenged. It was, they contended for the Respondent to call in as witnesses, those persons to whom the Respondent had resorted to, to plead for him to sell them more land. They relied on the case of Mojolagbe v. Larbi & Others (1959) GLR 190 where it was held at holding 4 that; “that where corroborative evidence must exist, the court expects a party who makes an averment (which the other side denies) to call such corroborative evidence in support of his own”. On the matter of the ground rent, it was contended that the head lease, the Appellant was required to pay ¢124,000.00 per year. Yet the Appellant had expected the Respondent to pay the said amount to him. If, as he claimed, he had sublet just a portion of the land, why was he expecting the Respondent to foot the whole bill with no contribution from him as head lessor? It was their contention that they were granted the whole portion of the land from the evidence and whilst it was incumbent on the Appellant to succeed on the strength of his case and not on the weakness of the Respondent’s case, he failed to do so. They relied on the case of Oppong Kofie and Another v. Fofie (1964) GLR 174. The Respondent contended that she had in her pleadings and evidence clearly established that the Appellant had failed to submit a valid conveyance of a sublease to her. Exhibit 6 as submitted was defective as it did not meet the requirements of section 2 of the Conveyancing Act. The Respondent also stated that the general damages for breach of contract of GH¢5,000.00 was rightly awarded as the Appellant had been found to have been in breach of the contract between the parties. It was also their contention that since the contract had been partly performed by the Respondent, they were entitled to specific performance. In this regard, they relied on the case of Stickney v. Keeble (1915) AC 419 and Kotey v. Kolotey (2005-2006) SCGLR 368 An appeal as indicated by Rule 8(1) of the Court of Appeal Rules (1997) CI 19, is by way of rehearing. What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance. See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993- 94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC. In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities. See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729. In this wise, the appellate court is enjoined to put itself in place in the trial court and evaluate the evidence. In so doing, it could make inferences from the facts on record and either affirm the judgment or interfere with the judgment where it deems fit. In its duty to rehear the matter, an appellate court is in the same position of the trial court and can make up its own mind on the facts and also draw its own inferences from the facts as found. Based on its evaluation of the evidence on record, the appellate court may interfere with the findings of facts made by the trial court, where good reasons exist for such interference. The authorities are however clear that findings of fact made by a trial Court can only be interfered with where such findings are not supported by the evidence on record; are perverse, or are based on wrong inferences drawn from established facts. These principles have been established in cases such as Simmonds v. Trassaco Estate Development Company (2010-2012) 1 GLR 393 CA; at holding 7 in the headnotes; Bonney v. Bonney (1992-93) Part 2 GBR 779 @781 SC and Jass Company Ltd & Anor v. Appau & Anor (2009) SCGLR 265 @275. In Amoah v. Lokko & Alfred Quartey (substituted) Gloria Quartey & Others (2011) 1 SCGLR 505, the court speaking through Aryeetey JSC whilst conceding that it was the exclusive duty of a trial judge to make primary findings of facts which will constitute the means by which the final outcome of the case would be arrived at, however held that, this notwithstanding, an appellate court was obliged to evaluate the evidence in coming to a decision whether the conclusions and findings of the trial court, which are being assailed, are supported by the evidence on record. It is only when the findings of fact made by the trial court are not supported by the evidence on record that the appellate court would interfere and substitute its own findings for those of the trial court. He went on to state that findings made by a trial court would be irrefutable when: a. They are supported by the evidence on record. b. They are based on the credibility of the witnesses. c. Where the trial court had the opportunity to see and observe the demeanour of witnesses; and was satisfied with the truthfulness of their testimonies. He set out at page 514, the following as the situations where the findings of the trial court may be interfered with as: i. Where the court had taken into account matters which were wrong in law. ii. Where the court excluded matters, which were critically necessary for consideration. iii. Where the court had come to a conclusion which no court, properly instructing itself, would have reached; and iv. Where the findings were not proper inferences drawn from the facts. With the above considerations in mind, we shall now proceed to consider the evidence which the trial judge is said to have glossed over and wrongly entered judgment for the Respondent on her counterclaim whilst dismissing the Appellant’s claim by considering the judgment of the trial judge on the various issues dealt with in determining the matter. We shall next consider whether the trial court’s findings and conclusions on these issues are supported by the evidence led at the trial. We will then finally consider the allegations made by the Appellant against those findings and whether the appellant has been able to amply demonstrate to the court’s satisfaction the lapses they have complained of. The court will take grounds (a) and (b) together (a) That the judgment is against the weight of evidence (b) The finding that the Plaintiff conveyed the entirety of the parcel of land described as Plot No. 1 to the Defendant is contrary to the evidence. The Appellant claimed that he had leased a portion of his land to the Respondent. At paragraphs 3, 4 and 5 of his statement of claim (found at p 3 of the Record of Appeal {ROA}) he averred as follows: (3) …. in September 1991 the Government of the Republic of Ghana subject to the conditions, covenants and stipulations therein leased ALL THAT piece of land known as Plot No. 1 and containing an approximate area of 0.40 acre situate at Airport West Residential Area, Accra in the Greater Accra Region of the Republic of Ghana s (4) Plaintiff avers in 1995 he gave a sublease part of Plot No. 1, situate being at Airport Residential Area, Accra to the Defendant. (5) Plaintiff avers that the land in question under the sub-lease measures 55 feet more or less on one side, 95 feet more or less on another side, 110 feet more or less on another side and 55 feet more or less and measuring 0.11 acre more or less, which is particularly delineated and shewn on a site plan edged pink. The Respondent admitted paragraphs 4 and 5 of the statement of claim but denied paragraph 5. In paragraphs 5, 6 and 7 of her amended statement of defence found at page 87 of the ROA, she stated: (5) The Defendant denies paragraph 5 of the Statement of Claim and says that the subject matter of the sublease was the totality of the area marked as 1A on the site plan given to the Defendant to conduct a search and which site plan shows the area for which the parties agreed to sell and buy respectively. (6) The Defendant further says that when her representative collected the conveyance covering the sublease, from the Plaintiff, it became evident that the Plaintiff had further divided the subject matter (Plot 1A) into two portions and that the proposed sublease covered only one of the portions marked by the Plaintiff. In other word; the Plaintiff had changed the site plan from what was used in the negotiation and agreement between the parties. In effect the Plaintiff had taken half of the subject matter of the sublease (Plot 1A) back from the Defendant. (7) The Defendant says that upon realization of the such attempt to misrepresent the subject matter of their agreement, she refused to sign the conveyance and informed the Plaintiff to correct the presumed mistake on the site plan. So, what was the area of land sold to the Respondent? In his evidence in chief (see p. 43-44 of the ROA), the Appellant has stated: The Lands Commission has allocated a land to me at Airport West, Plot 1A. The land is a leasehold and I had built a storey building in which I was staying with my family (wife and children). I have constructed two boys’ quarters. Before I met the woman, I had built one three bedrooms and a hall, I roofed it, wired it, and done the plumbing but I had not done the floor and the windows and doors were not fixed. Later, I decided to lease it out. He continued at pages 50-52; After the payment of the lease, I asked my lawyer to prepare an agreement to that effect which I signed and sent it to her and this was in 1995. When she came to look at the land, she used two years to pay. So, when the agreement was ready, I gave it to Adusei to be given to her. After the agreement, I did not hear anything from her until one day when, I received a call from Defendant from abroad to add the remaining portion of the land to her and I told her I was going to use that portion to build a house for my wife. Later she made her elder sibling and the said Adusei and another to come and plead with my wife so that the plot would be given to her and my wife told them she cannot involve herself. After that the Defendant’s husband also came with force to construct a fence wall around the plot and I told him I would report him to the police. Later the husband came and said that the wife was interested in purchasing the plot with $6,000 and I told him I would not sell it so I refused. The Defendant has never complained to me about the agreement I had with here even though she has been in the country for some time. In the agreement I had with the Defendant, I gave her a boys quarters. I did not take the Defendant to any part of the land except the one I gave and that is the boy’s quarters. In cross-examination of the Appellant (page 56 of the ROA) the following information was elicited: Q: You will agree with me that it was sometime in 1991 when the Defendant came to inspect the land which is the subject matter in dispute? A: It was rather 1993 and not 1991. Q: I put it to you that it was rather 1991 and not 1993 when the Defendant came to inspect the land? A: It was in 1993 because I gave her the document in 1995 and it took her 2 years to pay. Immediately she finished paying. I prepared the document. Q: You will agree with me that the defendant came to inspect the land because you had told an agent to look for a buyer for you? A: It was a part of the land where there was a building and not the whole land. The portion I gave to the Defendant was where there was a building. Q: At the time the defendant and the agent came to inspect the land the land had only an uncompleted outer boys’ quarters on it, not so? A: It is not true. I had completed my storey building where I was staying on the land. I completed the building before 1982. Q: You will agree with me that when the Defendant came to inspect the land and expressed interest in the land, she indicated her interest in buying the whole land which offer you agreed to? A: That is not correct, it was part of the land I had built three-bedroom house. Q: When I talk about the whole land, I am not talking about where you had already constructed your building. I am talking about where the boys’ quarters had been erected and the new place where you had built the new house. A: That is not correct. At pages 61-62 of the ROA the following ensued: Q: You have told the court that you are taking your property back so that you return Defendant’s money to her. Which of the properties are you talking about? Is it the one you have built on together with the bare land or what? A: Where I have put up my building does not belong to the Defendant. Hers is the building I gave her together with the bare land in front of it. Even after she paid the money, I prepared the site plan together with the documents, signed my portion and sent them to her for her also to sign but she did not make any complaint since then till now. That is why I am now bringing the matter to court. Q: Am I right to say that after you had sold the land to the Defendant, you later regretted? A: That is not the case. I have not regretted at all. Q: Because you regretted and Defendant was away and not coming to Ghana because she was sick, you decided to take part of the land that was bare, not so? A: That is not correct at all. When I prepared the site plan for the Defendant, she rang me and told me that I should add the side that was remaining and I refused. Again, she sent her husband to Ghana, to my residence that she was interested in the remaining portion so I should add it to what she had paid for and that she would pay for it and I refused. Again, she made her elder sibling and the agent, Mr. Adusei to come and plead with my wife because I had told them I was going to build a house there for my wife. They therefore came to plead with my wife to speak to me so that I add that portion to what I had already given her and if refused. Q: You are telling this Court that the Defendant sent her brother and another person to come and plead with you to add that land in dispute. When was that? A: I can’t tell the exact date but this was after I had signed my portion of the document and sent them to her. They even pleaded with my wife to convince me to add that portion and I refused. Q: I put it to you that what you are telling the Court is not true. A: What I know is what I am telling the Court. At p. 101 of the ROA the Appellant was recalled for further cross-examination. This is what transpired therein: Q: You are on record to have told the court that the Defendant convinced herself that you were the proper owner of all the properties under plot 1A before she entered into the negotiation with you. Is that correct? A: That wasn’t the case, the whole of Plot 1A was in my name. Even before I gave her part to her, I was already living on one side and where there was a boys’ quarters, I gave to the Defendant. Q: I want to put the same question to you that you are on record to have told the Court that the Defendant convinced herself that you were the proper owner of all the properties under plot 1A before she entered into the negotiation with you, is that correct? A: That is not correct. I now say that I made her to understand that the whole Plot 1A was mine. Q: And that you gave her a site plan to conduct a search to convince herself that the whole plot 1A was for you? A: Yes. Q: You want the Court to believe that at the time of the negotiation, part of plot 1 A had been developed into a residential facility? A: Yes; by then I had already put up three buildings. Q: It is your case that you had three buildings on Plot 1A aside the one you gave to the Defendant? A: Yes, there were two uncompleted buildings. One had reached the lintel level and the boys’ quarters which I intended to grant the Defendant. The completed one is the one I was living in. So, there were three buildings on Plot 1A. Q: When did you complete this building you were living in on Plot 1A? A: In was completed in 1980s Q: When did you complete the other one on lintel level on Plot 1A? A: I completed in somewhere between 1997 and 1998. The Respondent fought this case through an Attorney. At pages 152-156 of the ROA the Attorney in his evidence-in-chief told the court this: Q: Do you know the subject matter of this case? A: Yes. It is at West Airport Residential Area. Q: What is it? A: It is a parcel of land situate at Airport Residential Area, Airport West. Q: Do you have any particular description to this land? A: It is a Plot 1A as described. Q: Do you know the size? A: It is about 0.4 of an acre. Q: The Plaintiff has brought your principal here in this Court saying that the Defendant has not executed the lease of deed by the Plaintiff what do you say to that? A: That is wrong. The document was brought to the notice of the Defendant by one Mr. Adusei and the Defendant realized that the document had some flaws and also lacked the consent of the Lands Commission. The size of the land was also altered and also the document did not show any date of execution neither did it indicate any date of commencement. Q: Before the Plaintiff and the Defendant entered into this transaction what did the Defendant do by way of investigating the title of the Plaintiff? A: A site plan was given to the Defendant and she used it to conduct a search. The search came out with the site plan of Plot 1A. Defendant satisfied herself that the land was for Plaintiff. The evidence continues at p. 159-160 thus: Q: Look at Exhibit 11 and tell the Court where you find the gate to the existing building? A: Looking at the gate is at the frontage of the existing building and at the time of negotiation the blocks or foundation as is seen there was not there when the Defendant was buying Plot No. 1A. Q: Look at the back of the photograph and tell the Court the date there? A: It is June 1999. Q: Looking at Exhibit 11, you can find some developments in front of the building. What do you know about it? A: It is the present development by the Plaintiff. Q: Look at this picture and tell the Court what it is? A: The picture shows further developments in front of the building that was there at the time of negotiations and the further development represents the present residence of the Plaintiff. Q: Look at Exhibit 12 and tell the Court how many structures you find there? A: There is one structure and another coming up. Q: In the totality of the picture how many buildings can you see there? A: I can see one completed building and one uncompleted up to foundation level. Q: Do you find anything at the left-hand side of the picture? A: Yes. I can find a building there. A white building. Q: Are you familiar with that building? A: Yes. Q: What is that building? A: The building is situate on Plot 1, that is, the other side of Plot No. 1A and to my understanding that building belongs to the Plaintiff. Q: Look at the back of the photograph and tell the Court the date embossed there as date of taking the photograph? A: It is June 1989. And if I may add, it was after negotiations on Plot No. IA Q: The Plaintiff is saying that they gave a document to be signed by the Defendant who refused to sign it, what do you say? A: Yes. The Defendant refused to sign the document, in that, the document has adopted sides on Plot No. 1A. Plot Number 1A as given to the Defendant at the time of the negotiations was halved in his later document that was given to the Plaintiff. The document lacked the consent of the Lands Commission and the head lease gave the Plaintiff about 89 years but in this document that was presented to the Defendant, the Plaintiff sought to give 94 years to the Defendant. And also, it did not indicate the execution date nor the commencement date so the Defendant found the document incomplete and also found it invalid and above all, she found it fraudulent so she pointed out these mistakes and flaws to the person who brought it, that is, Mr. Adusei to be taken back to the Plaintiff to consider amending those mistakes and flaws. Q: The Plaintiff is saying that it is the Defendant who ought to have signed the document and returned it to him for registration of her interest of the Defendant and returned it to him for registration of interest of the Defendant but she failed to do that so he is seeking to indict her, what do you say? A: As I have already said, the document was incomplete and the document had so many flaws and mistakes that was the main reason why Defendant refused to sign. And if the document was complete, it was not up to Plaintiff to register it on behalf of Defendant. In cross-examination found at pages 168-169 of the record, the Respondent’s Attorney gave the following evidence: Q: What is the size of the land that the Defendant currently occupies? A: Per the document that was sent to Maame Dufie, it is .11 of an acre. Q: You have told this court that there is another equal half that Plaintiff has taken is that not so? A: Yes, my Lord it was divided so that side is what the Plaintiff is occupying now but the land that the Defendant Maame Dufie negotiated and paid for was 1A in its entirety. Q: What is the size of 1A? A: 0.41 Q: In your last evidence, you told the Court that it was .41. Do you still stand by that? A: The size will reflect in the site plan that will reflect the size of Plot No. 1A. Q: In your evidence in chief you told this Court that Plot 1A is .41 acres. I put it to you. A: Yes my Lord that is .40 Q: So you are saying that where the Defendant now occupies is .41 acre? A: Yes. That is Plot 1A in its entirety. At pages 172 of the ROA, this is what transpired in cross-examination of the Respondent’s Attorney: Q: Look at Exhibit 7. Apart from the series of payments he Plaintiff as at 1993 had never given you any document in connection with the transaction? A: To my recollection, that is wrong because I was given a site plan 1A to conduct a search which bore the size 0.25 acres that was what I negotiated on and that was what I did a search on. The site plan 1A in contention. Q: Initially, he gave you a document to go and do a search before the negotiation started; he gave you a document to go and do a search not so? A: That is correct, he gave the Principal document 1A which is a site plan upon which the Principal conducted a search and that took the size of the land which was about 0.25 of an acre, that is what we negotiated on and what we paid for and the only issue here is that when another document for execution came that is when we realized that the size of land of Plot No. 1A which we negotiated and paid for had been altered or changed and that is the more reason why we sent the document back and why we could not execute the document. The Court notes that the Appellant has consistently stated that the land he sold to the Respondent was 0.11 of an acre. The Respondent by her Attorney’s evidence in chief stated that the land, Plot 1A was sold to her and it was 0.40 acres. (see page 153 of the ROA). In cross-examination, he said the land sold to the Respondent was 0.41(see page 169 of the ROA). He then said again that it was 0.40 at page 169 of the ROA. Thereafter, at page 172 of the ROA, he gave the land size as 0.25. At page 182 of the ROA the Respondent’s attorney gave the land size as 0.25 acres and said that that was the site plan given to him to conduct the search with. Exhibit A tendered by the Appellant is the head lease. The land is described as Plot 1 and has an approximate area of 0.40 acres. (see page 254 of the ROA). In Exhibit 6 found at p. 294 of the ROA, the Appellant as sublessor agreed in Clause 3 as follows: The sublessor has assigned part or portion of the interest to the sublessee and the sublessee shall pay or be liable to pay the rent due on the lease to the lessor. The sublease refers to plot no. 1 containing an approximate area of 0.11 (see page 295). Exhibit 7 is Plan of land for an area of 0.25 acre (see page 298). Exhibit 8 is a search report (see p. 299) of the ROA. It is dated 23rd December, 2013. We note that Exhibit 8 has neither a site plan nor lease attached. So, what area of land was the search in respect of? It does not say. Furthermore, this search has the number No. O/S 21091/13. It is dated 23rd December, 2013. The writ was issued in September, 2011. This means that Exhibit 8 was requested at a time when the writ had already been issued. It would therefore have no probative value as it was acquired during the period of the litigation and not before. We have examined the receipts tendered in evidence and marked as the Exhibit 13 series (see pages 320-326 of the ROA). They are listed as follows: Exhibit 13 is a receipt dated 8th June, 1994 for $2,000.00. It is part payment of uncompleted building bought. Exhibit 13A dated 16th May, 1995 evidences $3,000.00 received from Mr. Kwabena Adusei on behalf of Madam Maame Dufie and is part payment of uncompleted house at Airport. Exhibit 13 B acknowledges receipt of the sum of $3,500.00 being last and full payment of an uncompleted building at Airport West. This is dated 15th August, 1995. Exhibit 13 C dated 26th June, 1995 acknowledges receipt of the sum of $2,000.00 being part payment of an uncompleted building at Airport West. Exhibit 13D dated 11th February, 1994 is an acknowledgement of the sum of ¢1,400,000.00 being part payment for an uncompleted building sold. Exhibit 13 E is an acknowledgment of receipt of £8,000.00 on 21st September, 1993 being part payment on an uncompleted house bought. Exhibit 13F if an acknowledgment of receipt of the sum of $1,500.00 being part payment of an uncompleted building bought. From the evidence on record, the Respondent paid for an uncompleted building. However, it is the acreage of land around the building which has now become a bone of contention. We agree with the trial judge when she stated at page 241 of the ROA that the issue as to whether or not the Appellant granted the Respondent a sublease of a portion of his property is not in dispute as the parties are agreed that it was a sublease that was granted by the Appellant to the Respondent. But where we depart company with the findings of the trial court is where it made a finding that the whole of Plot 1 was conveyed to the Respondent. It was not the whole plot measuring 0.40 acre but 0.25 of an acre. This is so, because Exhibit 7, the site plan is dated 22nd June, 1993 and is contemporaneous in time with Exhibit 13E when the first payment of £8,000.00 was made on 21st September, 1993. Thereafter, the Respondent caused Exhibit B and B1 to be drawn up delineating the land as consisting of 0.11 acres. Exhibit 6 made on 22nd August, 1995 and signed by the Appellant was also drawn up but the Respondent never signed it. The evidence does not prove that the Appellant had conveyed the whole of Plot No. 1 to the Respondent as found by the trial judge at p. 245 of the ROA. The land actually conveyed to her was 0.25 acres. The portion of judgment giving the Respondent the whole of Plot No. 1 is hereby set aside and, in its place, the court makes a finding that it was 0.25 out of the 0.40acres of the land which was subleased to the Respondent. The Respondent is only entitled to a declaration that there exists an agreement between the Parties for the Appellant to sublease a portion of the land numbered Plot 1 and containing an approximate acre of 0.25 acre situate at Airport West Residential Area, Accra. The court will now deal with the following grounds of appeal together: c. That the conclusion that the Defendant has discharged the burden of proof on her with respect to her counterclaim as required by section 11(1) and (4) of the Evidence Act, 1975 (NRCD 323) is contrary to the evidence. d. The conclusion that the Plaintiff has not discharged the burden of proof on him as required by section 11(1) and (4) of the Evidence Act, 1975 (NRCD323) is contrary to the evidence. e. The learned judge erred when she concluded that the Plaintiff breached the sub- lease agreement with the Defendant This court has already found that instead of granting the Respondent 0.25 acres out of the 0.40 acres, the Appellant purported to convey 0.11 acres by drawing up the sublease as found in Exhibit 6. The court therefore agrees with the trial judge that the Appellant had breached the lease agreement by purporting to convey 0.11 acres instead of what had been contracted for to the Respondent. However, what was contracted for was not the totality of the land whether 0.40 acres or 0.83 acres but rather 0.25 acres. We would therefore not interfere with the amount of GH¢5,000.00 awarded as damages as there was a breach of the sublease by the Appellant attempting to substitute the 0.25-acre land contracted for, with a land area of 0.11acres. The learned judge did not err when she concluded that the Appellant breached the sub-lease agreement with the Respondent. The Appellant had sued for forfeiture of the sublease and recovery of possession. In Fibrosa Spolka Akeying v. Fairburn Lawson Combe Barbar Ltd (1943) AC 32 the court held: It is clear that any civilized system of law is bound to provide remedies from cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from another which is against conscience that he should keep. Such remedies in English Law are generally different from remedies in contract or tort and are now recognized to fall within a second category of the Common Law which has been called quasi-contract or restitution. The principle of unjust enrichment requires: 1. That the Defendant has been enriched by the receipt of a benefit. 2. That this enrichment is at the expense of the Claimant. 3. That the retention of the enrichment be unjust. The Respondent has made payment for the land conveyed to her. The Appellant has taken this money as far back as the early 1990s (as payment was made between September 1993 and August 1995). The instant suit was instituted on 29th September, 2011, a period of 18 years after the first payment was made and 16 years after full payment was made. It would be unjust at this juncture to order a forfeiture of the sublease when the Respondent had to all intents and purposes partly fulfilled her obligations under the contract by making full payment for the land. It would equally be unjust to order a recovery of possession of the land in question. See Sir Dennis Adjei’s ‘Land Law, Practice and Conveyancing in Ghana (3rd edition) at p. 198 where the learned author and jurist states: Specific performance may be granted where the contract is considered as a whole and taking all the circumstances into consideration it would be just and equitable to grant it. The English Court of Appeal in Stickney v. Keeble (1915) AC 386 @ 419 held that, “Indeed, the dominant principle has always been that equity will only grant specific performance if, under all the circumstances, it is just and equitable so to do.” In this instant case under consideration, it would amount to fraud for the Appellant to refuse to perform his part of the contract by executing the sublease of 0.25 acres in favour of the Respondent. See the case Kotey v. Kolete (2005-2006) SCGLR 368 @ 379. The judgment is therefore upheld with the exception that the Appellant is entitled to 0.25 acres and not the whole portion of Plot No. 1 A as stated by the trial judge. The finding that the Appellant conveyed the entirety of the parcel of land described as Plot No. 1 to the Respondent is contrary to the evidence. The Appellant led oral evidence to prove that the Respondent sent emissaries to both he and to PW1 to convince him to allocate more land to her. This evidence has been corroborated by PW1. It is the Respondent’s case that she has challenged this evidence and that this required the Appellant to call further evidence to prove this point. But the point remains, these are said to be the Respondent’s relatives or at any rate, her emissaries. In Gyamfi v. Badu (1963) 2 GLR 596 SC the court said at p. 59: It will be nothing but madness for a party to a suit to rely upon his opponent to prove his case for him; where the only witnesses who could give oral evidence of a party's case are his opponents, the court should not regard his failure to call such persons as fatal; in such circumstances the court will look at other available and material evidence on the record, and if those prove to be sufficient to establish the averment, uphold the averment The conclusion that the Appellant has not discharged the burden of proof on him as required by section 11(1) and (4) of the Evidence Act, 1975 (NRCD323) in respect of his contention that he only granted 0.11 acres of land to the Respondent is supported by the trial judge’s evaluation of the evidence. The conclusion that the Respondent has discharged the burden of proof on her with respect to her counterclaim as required by section 11(1) and (4) of the Evidence Act, 1975 (NRCD 323) is in accordance with the evidence. This Court reiterates the order granted by the trial court to the Appellant to obtain all the necessary written consent as provided by the conveyance between himself and the Government of Ghana in September, 1991 for the benefit of the Respondent in respect of 0.25 acres only. Had he done so in the first place, the Respondent would have been responsible for payment of the ground rent exigible to the Lands Commission. The appeal against the judgment of the trial court fails except that the Respondent is entitled to 0.25 acres only and not to 0.40 acres. sgd JENNIFER A. DODOO (MRS) (JUSTICE OF APPEAL) sgd I AGREE MARGARET WELBOURNE, (MRS) (JUSTICE OF APPEAL) I ALSO AGREE COUNSEL sgd GEORGE KOOMSON, (JUSTICE OF APPEAL) PAUL KOFI BOAKYE FOR PLAINTIFF/APPELLANT DENNIS OSEI ANTWI FOR DEFENDANT/RESPONDENT 29