Sarpong and Another Vrs Soway [2022] GHAHC 114 (29 November 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (LAND DIVISION) ACCRA HELD ON TUESDAY THE 29TH DAY OF NOVEMBER, 2022 BEFORE HER LADYSHIP JUSTICE JENNIFER MYERS AHMED (MRS), JUSTICE OF THE HIGH COURT. ---------------------------------------------------------------------------------------------------- SUIT NO: LD/0658/2020 1. LYDIA SARPONG : PLAINTIFFS 2. MARTINA BAAH VRS MOSES BOYE SOWAY : DEFENDANTS ---------------------------------------------------------------------------------------------------- J U D G M E N T The plaintiffs on the 25th of March 2020 issued out a writ of summons and statement of claim from the registry of this court praying for the following reliefs: i. ii. iii. A declaration that the defendant has perpetrated fraud on the plaintiffs. General damages for fraud perpetrated on the plaintiffs by the defendant. An order directed at the defendant to refund to each plaintiff the two thousand eight hundred Ghana (Gh¢2800.00) price per plot of land and the additional two hundred Ghana Cedis(Gh¢200.00) per plot that the defendant received for documentation. iv. Interest on item iv above at the commercial rate from 2008 up to the date of final payment. v. General damages for breach of contract to provide the plaintiffs with parcel of land at Akporman. vi. General damages for the several trips to the defendant and his family at Akporman, for time wasted and for inconvenience. vii. Cost of money spent on developing the plots that the defendants gave to the plaintiffs and cost of this action inclusive of legal fees. viii. Any other reliefs that the honourable court may deem fit. The defendant entered appearance on the 21st of May 2020 and filed a statement of defence on the 9th of December 2020 partly admitting some of the claims of the plaintiffs and partly denying others. At the close of pleadings the issues that were set down for determination were: 1. Whether or not the defendant agreed to provide land to the plaintiffs for a consideration in money? 2. Whether or not the plaintiffs paid the agreed consideration for the defendant to provide the land as agreed with the plaintiffs? 3. Whether or not the defendant transferred an unencumbered land owned by the defendant’s family to the plaintiff. 4. Whether or not the defendant showed the plaintiffs land after land after the first land the defendant gave to the plaintiffs could not be taken by the plaintiffs. 5. Whether or not the plaintiffs expended money beyond the consideration they paid to the defendant? 6. Any other issues arising from the pleadings. 7. Whether or not the plaintiffs are entitled to their reliefs. The Plaintiffs’ Case The case of the plaintiffs, from the totality of the pleadings and the witness statement filed on their joint behalf by the 2nd plaintiff is that they are both teachers at the Ghana Atomic Energy Commission basic Schools situate at Kwabenya in Accra whilst the defendant is a staff at the Building and Maintenance Section of the Ghana Broadcasting Corporation. They got to know him in the year 2007 when one Ben introduced to him as they were then desirous of acquiring a parcel of land. The defendant took them to Akporman and pointed out a parcel of land to them which he claimed belonged to his family, the Agbawe family of Akporman. After a search conducted by them disclosed that the land indeed belonged to the Agbawe family of Akporman, they negotiated with the defendant and settled on a price of Gh¢2,800.00 per plot and Gh¢200.00 which according to representations made by the defendant, was to be used for documentation. Both plaintiffs made a part- payment of Gh¢1400 each to the defendant and also each paid the Gh¢200.00 to him for the documentation. The rest of the money which amounted to Gh¢1400.00 for each of them was paid to the defendant in instalments. Tendered into evidence as exhibit A series were some of the receipts that were issued to them by the defendant. After completion of all payments to the defendant they were given indentures by the defendant, copies of which were also tendered into evidence as exhibits B and B1. Both indentures described their parcels of land as each containing an approximate area of 0.16 acre or 0.07 hectares and the 1st plaintiff’s land was adjacent to the 2nd plaintiff’s land. The plaintiffs thereafter moved in to possession and each commenced with the construction of a ‘boys quarters’ on their individual plots, at the far corners of both plots. Sometime in or about the year 2009, after the 1st plaintiff had laid one course of blocks for her boys quarters and the 2nd plaintiff had reached the ‘footing’ level, one Kwamina claiming ownership of the land and insisting that he had acquired his from a family who were the true owners of the land, started to build a structure in the middle of their separate plots in such a manner that the structure straddled both plots. The defendant brought the police into the matter but to them it was not a matter which involved the police but one which involved who the rightful owner of the land was. The defendant then promised to give them new plots of land but failed to do so, despite several visits to him at Akporman. He then became evasive, refused to answer their calls when they called him on the phone and often switched off his phone to avoid their calls. The plaintiffs eventually lodged against him at the Property Fraud unit of the Ghana Police Service and he was arrested and granted bail but still continued with his tricks and so in in December 2012 the plaintiffs again lodged a complaint against him to the police at Kwabenya. Tendered into evidence as exhibit C was an extract from the Kwabenya police. In September of 2015, the plaintiffs say they were able to trace the defendant to his office at the GBC in Accra where he gave them an undertaking in writing witnessed by one of his superior officers a copy of which was tendered into evidence as exhibit D. According to the 2nd plaintiff they made over 30 fruitless trips to Akporman between 2008 and 2019 looking for the defendant and estimated that they spent about Gh¢150.00 each trip. Finally in 2019 the defendant gave them another parcel of land at a new location called Boi around the GBC tower. They contracted and paid for the services of a surveyor who ‘picked’ the plot in the presence of two of the defendant’s relatives but before the surveyor could fully complete his work someone started building on the land and this person when confronted by them said that he had been given the land by members of the defendant’s family. Tendered into evidence as exhibits E and E1 were copies of the site plans given them by the surveyor they engaged. The defendant again in 2019 gave them another plot of land at a different location at Boi and they had to again pay for a site plan to be drawn up, a copy of which was tendered into evidence as exhibit F. They decided to wall the entire plot of land but when the wall being constructed on this new plot reached the level of three courses of blocks they were again demolished by unknown persons. They had by then spent over GH¢10,000.00 on documentation, building materials and construction activities. Pictures of the construction work taken by them were tendered into evidence as exhibit G series. They again reported the matter to the police at Agbogba but the defendant and his family asked them to continue developing the land which they did by constructing their demolished wall, Subsequently they found the inscription ‘Keep Off, Property of GBC’ on the wall they had constructed and on other properties in the area so they decided to make enquiries at the GBC. At the GBC they were shown a video of members of the GBC Task Force writing on walls in the area and to their horror observed that the defendant from whom they had acquired the land was a member of the task force writing on the walls. To the plaintiffs, the actions of the defendant showed very clearly that he had perpetrated fraud on them. He had to date not given them the plots of land they had paid for and had also failed to refund their monies to them. They were thus compelled to sue him for the reliefs endorsed on their writ of summons. The Defendant’s Case The case of the defendant on the other hand is that he was indeed introduced to the plaintiffs by one Mr. Victor as people who were interested in buying land and he had assured them that his family the Nii Akpor family had land situate at Akporman. He admitted that after negotiations with the plaintiffs a surveyor demarcated the land and then the family executed an indenture for the plaintiffs in respect of the first plot of land at Akporman. However with regard to the second plot of land the plaintiffs brought in their own surveyor but no indenture was executed for them because of what he described as ‘the early withdrawal of plaintiffs from the transaction’. The plaintiffs both paid for the land by instalments and took possession of the plots of land by digging a foundation and preparing the footings but then complained of harassment by one Kwamena who claimed to have acquired the land from the people of Boi so he( the defendant) reported the issue to the Accra Regional police and ten armed policemen were detailed to accompany him to the land. When they got to the land, the plaintiff were there and they all met with this Kwamena but when Kwamena was arrested the plaintiffs intervened and pleaded that not be sent to the police station. Kwamena was thus warned by the police to stop his harassment of the plaintiffs. The plaintiffs later came back asking that they be relocated from the land, adding that they were abandoning everything they had done on the land so the Nii Akpor family relocated them to a place near Adjacote where the plaintiffs begun fencing the land. They later complained that officials of the GBC had asked them to leave the land, claiming the land belonged to the corporation. A meeting was then held between the plaintiffs and the chief of Akporman during which it was explained to them that though the GBC had land in the area, it was situate on top of the hill whereas the land given to the plaintiffs was located down the hill but the plaintiffs were not convinced by this explanation and demanded that he repay the Gh¢5000.00 they paid him for the land and also requested a refund of the Gh¢200.00 they had each paid as survey fee. He asked them to give him time to refund the money to them but they instead commenced the instant action. After the close of the plaintiff’s case, the defendant was supposed to open his defence but instead of doing so he came to court and pleaded that he be allowed to repay the money he owed to the plaintiffs and indeed made a part-payment of Gh¢….to them. However, he had since then failed to appear in this court despite the issuance and service of several hearing notices on he and his counsel. The court thus proceeded to close his case and order the filing of addresses which he again ignored. It has been said time without number that a person who makes a claim or allegation bears the onus of proving what he or she claims or alleges. In Good News Co- operative v Grace Amoyaw [2019] 131 GMJ 220 CA, it was held at page 224 that; ‘Indeed a party whose pleadings raise an issue essential to the success of his case assumes the burden of proving such an issue. It is incumbent on the party to have produced admissible and credible evidence so as to avoid a ruling against him and the absence of that proof will attract or earn such a ruling…. In essence, a party who asserts a matter must prove it but he who denies it need not disprove; hence the Latin maxim “Ei qui affirmat, non qui negat, incumbit probation”. This position is rightly supported by the case of Fynhout Production Ltd v Kwakye & Another[1971] 1 GLR 475.’ The plaintiffs have led evidence through the 2nd plaintiff and presented documents in support of their claims. However the defendant’s counsel when he cross-examined the 2nd plaintiff on her evidence did not ask any questions that dented or contradicted her testimony. She denied the assertion of the defendant’s counsel that she and the 1st plaintiff had rejected the third parcel of land allocated to them by the defendant in 2019 even though the family had explained to them that the land was not part of the land belonging to the GBC whose land was situate at the top of the hill. She stated that the defendant had explained nothing of the sort to them and had rather said that the family would meet with the GBC staff. When they suggested to the defendant that they wanted to be part of that meeting to be sure that whether the land belonged to them or the GBC the defendant ignored the suggestion and did not invite them to any such meeting. From the issues that were raised and the nature of the questions posed by the defendant’s counsel during cross-examination, the defendant does not basically deny the claims of the plaintiffs. In Ashanti Goldfields Co. Ltd. V Westchester Resources Ltd [2013] 56 GMJ 84 C. A , Korbieh J. A at page 128 stated as follows; ‘The law is that where the evidence of a witness is unchallenged in cross-examination, it is deemed to have been admitted by the other side.’ The defendant has not been able to raise any tangible defence to the claims of the plaintiffs for in his statement of defence, he admitted receiving an amount of Gh¢2500.00 from each plaintiff and then admits that he relocated them to Adjancote after they complained about harassment from Kwamena. If the land he initially allocated to the plaintiffs was unencumbered, why did he, after allegedly having Kwamena arrested, not have been able to safeguard the interests of the plaintiffs who were the lessees of his family by protecting their interest in the land granted them? If the land was unencumbered there would have been no need for him to have had to replace the land for the plaintiffs. Undoubtedly he did not have any valid interest he could have passed on to the plaintiffs. From the evidence on record, even though the defendant maintained in court that the replacement land at Adjacote belonged to his family a fact which the officials of the GBC had conceded, he offered no proof of this. It was a bare assertion he made without any proof of same. And interestingly enough, it was only in 2019 that he was able to offer any replacement land to the plaintiffs, which in the end turned out not to be his. He did not deny the assertions by the plaintiffs that he was evasive for years and tried to avoid them instead of replacing the land for them or even refunding their monies to them. It must be also noted that his concession that he owes them money and has made a part payment of same is an admission of the plaintiffs’ claims. Thus the court finds that the defendant has not been able to ‘puncture’ many holes in the claims of the plaintiffs and further finds that the plaintiffs have adduced sufficient evidence in support of their claims made. The court will thus grant judgment in favour of the plaintiffs for all the reliefs endorsed on the writ of summons. Cost of Gh¢20,000.00 is awarded in favour of the plaintiffs. LEGAL REPRESENTATIVE: MR. ALEXANDER ADJEI FOR PLAINTIFF –PRESENT MR. C. A. CHAMBERS FOR DEFENDANT –ABSENT SGD JENNIFER ANNE MYERS AHMED (MRS) JUSTICE OF THE HIGH COURT 9