Darko and Another Vrs Marley [2022] GHAHC 18 (29 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON TUESDAY THE 29TH DAY OF NOVEMBER, 2022 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE SUIT NO: GJ/1651/2016 1. FRANK DARKO PLAINTIFFS 2. DANIEL KWEI-KUMAH SACKEY ALL OF HSE NO. 11REGIMANUEL ESTATES COMMUNITY 19, LASHIBI VS NELSON MARLEY UNNUMBERED HOUSE DAWHENYA NEAR PRAMPRAM JUNCTION DEFENDANT J U D G M E N T The Plaintiffs claim against the Defendants are for:- a) The sum of One Hundred and Forty Eight Thousand Ghana Cedis (GH¢148,000.00) being monies received by the Defendant for the purchase of 30 plots of land which did not materialize. b) Interest on the above from September, 2014 till date of judgment. c) Damages for breach of contract. d) Cost. e) Legal fees f) Any order or reliefs On the 19th day of July 2017, Judgment on admission was entered against the Defendant for GH¢118,000.00. The Court then ordered the Plaintiff to serve the Defendant with a Hearing Notice to enable the Court to assess damages. The case from the 14th day of June, 2017 suffered a chequozed history until 21st July 2022 when the Court took evidence from the Plaintiffs on assessment of damages. 1st Plaintiff offered a Witness Statement. He states that he incurred so much cost relative to the land transaction which is the subject matter. Plaintiffs numerates their cost as follows: 1. Plaintiffs registered the subject matter with the Lands Commission in payment of GH¢15.00 was made per Exhibit ‘B’. 2. Defendant was paid GH¢1,500.00 for the preparation and execution and signing of the indenture and site plan. 3. Plaintiffs paid Domestic Tax Revenue amounting to GH¢216.00 per Exhibit ‘C’. 4. Plaintiffs paid GH¢281.50 tax to the Domestic Tax Division of the Ghana Revenue Authority per Exhibit ‘D’. 5. Payment of GH¢1,500.00 was made for the cadastral plan of the subject matter. 6. Plaintiffs incurred transport cost of GH¢1,200.00 on twelve attempts from Community 19, Lashibi to Dawhenya for services of Court process at GH¢100.00 per visit. 7. Purchase of two (2) fuel tanks and deposited same on the land amounting to GH¢38,000.00 per Exhibit ‘E’ series. 8. Plaintiffs incurred cost of transporting the two (2) fuel tanks to the site amounting to GH¢2,000.00. See Exhibit ‘F’ which depicts pictures of tanks. 9. That the two (2) fuel tanks got damage as a result of the dispute on the land. See Exhibit ‘G’. 10. 1st Plaintiff says he made payment to WA1 CONSULT, Architects and Built Environment Consultant for the design of a filling station at Dawhenya, Accra amounting to GH¢6,000.00 per Exhibit ‘H’. 11. 1st Plaintiff says he made payments of various amounts of money to Defendant totaling GH¢148,000.00 in respect of the disputed land per Exhibit ‘J’. 12. Pursuant to this action, the Plaintiffs spend GH¢8,000.00 on legal expenses. 13. 1st Plaintiff says he incurred expenses in clearing the land for the purpose of using same as Petrol Station which amounted to GH¢6,000.00. This Court after entering judgment on admission against the Defendant on Plaintiff’s relief (a) adjourned the matter for the Parties to contest the interest on relief (a) and further for assessment of damages. The Court thereafter ordered the Plaintiff to serve the Defendant with Hearing Notice for the said trial. The Defendant was duly served with the Hearing Notice. The Defendant however did not still appear in Court for the trial. The legal effect of the Plaintiffs conduct is not attending Court even after service had been effected on him is that the Defendant do not wish to contest the suit. See the case of:- Ankumah v City Investments Co. Ltd [2007-08] 2SCGLR 1064 at 1067 Holding 4 “A Court is entitled to give… judgment, as in the instant case if a party fails to appear after notice of the proceedings has been given him. For then, it would be justifiable to assume that he does not wish to be heard”. By a recent decision of the Supreme Court, the conduct of the Defendants in not responding to Court processes duly served on it ought to be respected, but they ought to be made to face the corresponding sanctions that come with it. See the case of:- Alabi vrs B5 Plus Company Ltd [2018/19] 1GLR 197 Held:- “Where a Party voluntarily and deliberately failed and or refused to attend upon a Court of competent jurisdiction to prosecute a claim against him, he could not complain that he was not given a fair hearing or that there was a breach of natural justice. The Defendants must be respected for making such a choice, but they must not be allowed to get away with it…” In this case, no defence was filed by the defendant on the relief contested between the Parties and the assessment of damages. No issues was therefore joined for the Court to determine on the facts of the case. Again on the law pertaining to this case, no issues had been raised for determination. See the case of:- Kusi vrs Kusi [2010] SCGLR60 Per Georgina Wood CJ (as she then was) at page 78 as follows:- Held:- “The rule of evidence is that where no issues are joined as between Parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue”. Judgment had already been entered against the Defendant on admission. The Defendant should pay interest at the current Bank rate on the sum as stated on relief (a) from September 2014 to today. Based upon the evidence adduced by the Defendant in the assessment of Damages which in most cases are even supported by receipts, the Defendant is entitled to General Damages. I award to the Defendant GH¢40,000.00 General Damages. Cost of GH¢20,000.00 against the Defendant. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: EKOW EGYIR DADSON ESQ, FOR THE PLAINTIFF ABENA POMAA BAMFO ESQ, FOR THE DEFENDANT 6