Linda Amoako& Anor Vrs Nketia Dzokoto [2022] GHACC 58 (8 February 2022)

IN THE CIRCUIT COURT ONE (1) ACCRA, HELD ON WEDNESDAY, 8TH DAY OF FEBRUARY, BEFORE HER HONOUR AFIA OWUSUAA APPIAH (MRS). SUIT NO. :C2/15/2022 LINDA AMOAKO & ANOR PLAINTIFF V NKETIA DZOKOTO OF UNKNOWN HOUSE NO. ODUMAN DEFENDANT JUDGMENT Plaintiffs herein, husband and wife instituted this action against the Defendant claiming the following reliefs; 1. A return of all the GHc58,600 expended on the said land. 2. Interest at the current bank rate on the said amount since December 2020. 3. General damages 4. Cost Plaintiff’s case per her statement of claim attached to the writ of summons is that Defendant a worker with Amasaman District Assembly represented to them that he owns the parcels of land at Ashalaja and took them for site inspection. They expressed interest in buying two plots of the land and negotiated at a price of GHc25,000 per plot bringing the total to GHc50,000. Upon their request Defendant gave them a site plan which was declared defective and unfit for search purposes at the Lands Commission. Defendant upon being informed of this event assured them he owns the land. They made atotal payment of GHC40,000 to Defendant with an outstanding balance of GHC10,000 to be paid upon receipt of indenture and site plan. Defendant however failed to give them the documents after several demands and calls but later gave them an excuse that there was a new head of family among his grantors and therefore plaintiff’s had to pay additional GHc5,000 to the new head of family. They sent theGHC5,000 to the new head of family and a deed prepared in their favour. Plaintiffs averred that on their first day of visiting the site, land guards demanded GHC2,500 which they paid. They then expended a total of GHC12,500 in erecting a wall, GHc900 on site plan and GHC200 for search on the said land. However, in the process of erecting a wall on the second day, they were chased away by the workmen of one Lakare Amadou. Upon a report and a search at the Lands Commission, it was revealed that the land was registered in the name of Lakare Amadou and same was confirmed by the head of family who claimed to have been misled by Defendant into granting same to them. They averred that Defendant had refused and failed to refund all the monies they had expended on the land despite several demands on him and a report to the Property Fraud Unit of the Police head Quarters. They therefore prayed the court per their reliefs endorsed on the writ of summons. Defendant upon service of the writ of summons and statement of claim caused his solicitor to enter appearance and file a statement of defence. The statement of defence was a general denial of the averments of Plaintiffs and stated that Plaintiffs had not demanded a refund of their money neither had they returned the documents given to them in respect of the land. . Defendant therefore averred that Plaintiff’s are not entitled to their reliefs. Issues for determination At the close of the pleadings, the following issues were set out as issues for determination by the court; 1. Whether or not there was an agreement between the plaintiffs and the Defendant to grant two plots of land to Plaintiff. 2. Whether or not Plaintiff paid an amount of GHC40,000 to Defendant towards the acquisition of the land. 3. Whether or not Plaintiff made other payments to the tune of GHC18,500 being other expenses as detailed below. 4. Whether or not Defendant failed to give the 2 plots of land to the Plaintiff. Defendant and his counsel however failed to appear in court for the conduct of the trial despite services of several hearing notice and witness statement of Plaintiffs despite having filed his witness statement. It is to be noted that, the failure of the Defendant to appear at trial to cross examine the Plaintiff on the evidence or challenge same either in cross examination or by contrary evidence did not exonerate the Plaintiff from proving his case put in issue by the statement of defence filed by the Defendant to the required standard. The Standard of proof in civil case such as the present action is proof on the preponderance of probabilities. This is Statutory and has received countless blessing from the Courts of this land in plethora of authorities. See sections 11(4) and 12 of the Evidence Act, 1975, NRCD 323. Section 12(2) of Act 323 defines preponderance of probabilities as “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. In the case of ADWUBENG V DOMFEH (1997-98) 1 GLR 282 it was held per holding 3 as follows: “... And sections 11(4) and 12 of NRCD 323 clearly provided that the standard of proof in all civil actions, without exception, was proof by a preponderance of probabilities…”. And in Section 14 of the Evidence Act, it is provided that “except as provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. This has always been the position of the law. As stated in the case of FAIBI VS. STATE HOTELS LTD [1968] GLR 411, the onus in law lay on the party who would lose if no evidence were led in the case and where some evidence were led, it lay on the one who would lose if no further evidence were led. Issue 1, 2 and 4 To prevent repetition of evidence and authorities, permit me to discuss issues I, 2 and four together as they are intertwined. 1st Plaintiff’s evidence on oath for and on behalf of all the plaintiffs is that sometime in December 2020, she negotiated with Defendant for the purchase of 2 plots of land at GHC25,000 per plot after the latter informed her he had four plots of land at Ashalaja for sale. She paid an initial amount of GHC20,000 cash to Defendant together with a cheque for GHc10,000 to be drawn by Defendant for which defendant issued a receipt for same ie exhibit A. She testified that she later paid to defendant an additional GHC20,000 which she withdrew from her GT bank account and collected the GHc10,000 cheque with a balance of GHc10,000 to be paid upon receipt of indenture(see exhibit a copy of GT bank statement of 1st Defendant In February 2021, she again paid an additional amount of GHC4,010 and GHC1,010 to Solomon Ackaah by MTN Mobile Money transaction tendered in evidence as exhibit C, C1 on the instructions of defendant who described the said Solomon Ackaah as the new head of family of his grantors. Thereafter, she was issued with exhibit D, an indenture with Solomon Ackaah as the lessor and plaintiffs as the lessees. She stated that she contracted a surveyor to demarcate the land at a cost of GHc900 and spent GHC1250 erecting a wall on the land. However in the process of constructing the wall, agents of one Lakare Amadu forcefully chased her of the land. She reported the matter to Defendant but he failed to recover the land for her and had failed to refund the monies paid for the land and expended on the land. Mother of 1st Plaintiff testified as PW1. According to her, 1st Plaintiff informed her she and her husband 2nd Plaintiff were desirous of acquiring a land for residential purposes. In December 2020, 1st plaintiff came home with Defendant herein to negotiate a land transaction. She stated that she witnessed the payment of GHC20,000 and a cheque with GHC10000 face value to Defendant and signed exhibit A as a witness. The evidence of Plaintiff and PW1 was not challenged by cross-examination. Supreme Court case of FORI v. AYIREBI AND OTHER [1966] GLR 627 held that “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”. Per exhibit A, Defendant acknowledge receipt of part- payment of cash sum of GHc30,000 form Plaintiffs for payment of two plots of land he had allocated to Plaintiffs. PW1’s evidence also corroborates the testimony of Plaintiff in respect of this said payment. Section 25 of NRCD 323 states “Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest”. Further exhibit B being the bank statement of 1st Plaintiff’s account with GT bank discloses a withdrawal of GHC20,000 by 1st Plaintiff personally and no cheque withdraw by Defendant. Plaintiff’s evidence that she has been forcefully driven away from the land by one Lakare Amadu amounts to a breach of the contract for the sale of land entered into by parties herein. Plaintiff’s claim need no further prove and same is deemed to be proved on the preponderance of probabilities. The court therefore finds proven plaintiff’s claim they negotiatated with Defendant for the purchase of two plots of land situate at Ashalaja Defendant in his statement of defence contended that the land was available and Plaintiff’s had not made a demand for a refund of their monies. Defendant however failed to attend trial and or give his evidence on respect of his defence. Brobbey JSC at holding 5 in the case of In RE ASHALLEY BOTWE LANDS, ADJETEY AGBOSU AND OTHERS V KOTEY AND OTHERS (2003-04) SCGLR 420 held that the effect of sections 11(I) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: “A litigant who is a defendant in a civil case does not need to prove anything. The plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact, or of an issue and that determination depends on evaluation of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour” Section 11(1) of, NRCD 323 provided “For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party.” In the absence of any evidence to the contrary by the Defendant, the court further finds established that Plaintiff’s paid an amount of GHC40,000 to Defendant for the purchase of the two plots of land and they have been driven away from the land to the knowledge of Defendant which clearly amount to Defendant failing to give them the purchased two plots of land. The court therefore finds proven on the preponderance of probabilities that a. There was an agreement between the plaintiffs and the Defendant for the latter to grant two plots of land to Plaintiffs. b. That Plaintiffs paid an amount of GHC40,000 to Defendant towards the acquisition of the land. c. That Defendant had failed to grant the said plots of land to the Plaintiffs. Issue 3- Whether or not Plaintiff made other payments to the tune of GHC18,500 being other expenses In respect of the other expenses incurred by plaintiff’s on the land amounting to GHC18,600 plaintiffs failed to separate same form the purchase price paid in their reliefs endorsed and claimed on their writ of summons. In the statement of claim and evidence on oath however, 1st Plaintiff gave a breakdown of the composition of the said amount of GHC58,600. From the evidence of 1st Plaintiff summarized supra, plaintiff testifies to have spent GHc12,500 on erecting a wall on the land, paid GHc900 to a surveyor for the demarcation of the two plots of land and GHc5,020 to the alleged new head of family of Defendant’s grantor, Solomon Ackaah and GHc2,500 to landguards. These amount claimed by Plaintiff’s from Defendants are amounts Plaintiffs claim to have expended on the land and same in law amounts to special damages The law is settled that, unlike general damages which are at large, a claim for special damages should be specifically pleaded, particularized and proved popularly referred to as the “triple Ps”. Special damages are said to be liquidated, verifiable and provable sums. They are neither inferred nor implied. The Supreme Court in the case of CHAHIN & SONS V. EPOPE PRINTING PRESS [1963] 1 GLR 163 held “where special damages are claimed it is not enough for the plaintiffs to write down the particulars, they have to prove them.” See also Bonham-Carter v. Hyde Park Hotel Ltd. (1948) 64 T. L. R. 177 applied. The court therefore has to determine whether or not the special damages of GHC18,600 claimed by Plaintiff against 1st Defendant was indeed incurred and Plaintiff entitled to same. Plaintiff in her evidence stated that she spent GHC12,500 on erection of a wall on the land but was forced out of the land by the agents of Lakare Amadu. Erection of a wall as an expense is too vague and broad. Fencing of a wall can be made by wood, sticks, bricks, cement blocks etc. and its cost differs depending on the material used. Plaintiffs ought to have particularized the component of the fence wall expense of GHC12,500 and tendered Receipts of purchased materials for the said erection of wall and another other thing that can satisfactorily establish or prove that such expenses was incurred by the Plaintiffs. It has been held in the case of ODAMETEY V CLOCUH [1989-90] 1GLR 14 by the Supreme Court in holding 1 “that the present position was that if the plaintiff in a civil suit failed to discharge the onus on him and thus completely failed to make a case for the claim for which he sought relief, then he could not rely on the weakness in the defendant’s case to ask for relief. If, however, he made a case which would entitle him to relief if the defendant offered no evidence, then if the case offered by the defendant when he did give evidence disclosed any weakness which tended to support the plaintiff’s claim, then in such a situation the plaintiff was entitled to rely on the weakness of the defendant’s case to strengthen his case.” In the absence of a break down of the said GHc12,500 fence wall cost, the court is unable to find proven that indeed plaintiff spent the sum of GHc12,500 fencing the wall on the land as claimed to order the payment of the said amount. In respect of the payment of GHC5,000 to the new head of family and GHC900 to a surveyor, Plaintiff testified that she paid to one Solomon Ackaah on the instructions of Defendant the sum of GHC5,020 in his capacity as the new head of family of his grantors. Exhibits C, C1 clearly establishes that on the 1/2/2021 and 11/2/2021, 1st Plaintiff transferred GHC4010 and GHc1010 totaling GHC5,020 to the said Solomon Ackaah through MTN Mobile Money transfer. 1st Plaintiff further testified that she paid GHc900 for the demarcation of the land and This evidence of Plaintiff is not disputed and same are specific and need no further proof These said amount is satisfactorily proven and same is granted as prayed. In respect of an amount of GHC2,500 Plaintiffs paid to land guards, the acts of land guards are prohibited under the Vigilantism and Related Offences Act, 2019, Act 999. Under section 1 (d) of this Act, it is provided that the Act applies to an act or threat of violence or intimidation undertaken by a person or a group of persons to further the interest of that person or any other person affiliated or associated with or connected or related to a landowner or purchaser of landed property”. Section 7 of Act 999 specifically prohibits the activities of land guards with a severe punishment of not less than 10years imprisonment and not more than 25 years imprisonment as the prescribed punishment upon conviction under that section. Amissah J. A. in the case of Olatiboye v Captan 1968 GLR 146 held as follows on illegal contracts: “it is not every infringement of a statutory provision that makes a contract illegal and therefore unenforceable. Where the act contemplated by the contract was prohibited by statute but was subject to a penalty which was merely for the benefit of the revenue, the contract could be enforced. Where the provisions of a statute indicated the intention of the legislature to prohibit the contract itself, then even though the penalty imposed for a breach incidentally benefitted the revenue, the contract would nevertheless be illegal and unenforceable.” Act 999 seeks to prohibit any activities whatsoever of land guards and the punishment as mention supra does not even have the option of a fine which would mean revenue benefit for the state but outright imprisonment. Therefore any contract or agreement with such entities, becomes an illegal contract and the courts would not condone and or entertain any breach or benefit accruing out of same. Plaintiff’s claim for GHC2,500 paid to Land guards therefore is refused. Plaintiffs further pray the court for award of general damages against Defendant. General damages are at large and are considered to be the direct natural or probable consequence of the action complained of. The Supreme Court in the case of ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD[1989-90] 2 GLR 623 held “On the measure of damages for breach of contract, the principle adopted by the courts was restitutioin integrum, ie if the plaintiff has suffered damage not too remote he must, as far as money could do it, be restored to the position he would have been in, had that particular damage not occurred. What was required to put the plaintiffs in the position they would have been in was sufficient money to compensate them for what they had lost”. Per the evidence before the court, Plaintiff engaged the services of workmen to erect a wall on the land, incurred expenses on transportation to the land as well as cost of search at the Lands Commission. The Court therefore award the Plaintiffs Ten Thousand Ghana Cedis (Gh¢10, 000.00) as general damages against the Defendant. The court from the totality of the evidence before the court, the court enters judgment in favour of plaintiff against the Defendant as follows; 1. Forthwith recovery of the sum of GHC40,000 being the purchase price of the two plots of land paid to Defendants. 2. Recovery of Special damages of GHC5,920 being of GHc5020 and GHC900 being paid by Plaintiffs to Solomon Ackaah, New Head of Family and surveyor’s cost. 3. Interest to be calculated on order 1 and 2 from February 2021 supra till date of final payment. 4. General damages of GHc10,000 5. Cost of GHc3000. 1st PLAINTIFF PRESENT DEFENDANT ABSENT OSCAR ASANTE NNURO FOR PLAINTIFFS ABSENT MR A. H COBBINAH FOR DEFENDANT ABSENT (SGD) H/W AFIA OWUSUAA APPIAH (MRS.) (DISTRICT MAGISTRATE) 11