Ackah Vrs Pergah Transport Ltd and Others (HI/185/07) [2007] GHACA 14 (13 December 2007);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

ACCRA

                                                                               

                                                                               

CORAM:   1.  AKAMBA                  J. A.    PRESIDING

                2.  QUAYE                                      J. A.

                3.  MARFUL-SAU                         J. A

       

     SUIT NO. HI/185/07

13th DECEMBER 2007    

  

     DON ACKAH                                                         -        PLAINTIFF/RESPONDENT

 

                        VRS.

 

PERGAH TRANSPORT LTD. & 2 OTHERS   -       DEFENDANTS/APPELLANTS

                                                                       

  JUDGMENT

 

MARFUL-SAU J.A.

The fundamental issue raised in this appeal for determination is who owns house no. plot 642 East Legon Accra.   Is it owned by the Respondent herein or the1st Appellant?  From the record of appeal the facts of the case simply are as follows: - SG.SSB Bank Ltd. who were the 3rd Defendants in the trial offered to sell house No. Plot 642, East Legon Accra.  The house was at the time occupied by the 2nd Appellant herein.  The purchase price of the house was fixed at ¢330,000,000.00.   This transaction was in year 1999.  The Respondent herein arranged for a loan of ¢200,000,000.00 from Unique Trust Financial Services for the 1st Appellant, which amount was paid to SG SSB Bank Ltd. by 1st Appellant as part payment of the purchased price.  After about four (4) years, the balance of ¢130,000,000.00 was paid by the Respondent again on behalf of the 1st Appellant.   Meanwhile the 1st Appellant unknown to the Respondent also issued two cheques in the sums of ¢60,000,000.00 and ¢70,000,000.00 to pay off the outstanding purchase price of ¢130,000,000.00.   The SG SSB Bank Ltd. was to deposit the title deeds on the house in dispute with the Unique Trust Financial Services after full payment of the ¢330,000,000.00 but from the record of appeal this was not done, due to the delay in the payment of the ¢130,000,000.00 balance.

 

The contest in this case however is not as to who paid what and on whose behalf. The bone of contention relates to the claim by the Respondent that the offer for the sale of the said house was made to him and he agreed with the 2nd Appellant that he will purchase the house in the name of the 1st Appellant, to enable the 1st Appellant boost it corporate profile and afterwards transferred to the Respondent.   This claim by the Respondent was disputed fiercely by the 2nd Appellant who denies ever agreeing with Respondent to pay for the house in the name of the 1st Appellant and ownership later transferred to the Respondent.   According to the 2nd Appellant the offer was made to her and she only sought financial assistance from the Respondent who offered to help 2nd Appellant pay for the house.

 

The dispute came to a head, when the Respondent requested the 2nd Appellant to vacate the premises.  Upon her refusal, the Respondent took a team of workmen to dismantle portions of the house, an act that resulted in the arrest of the Respondent by the police.   Following the police arrest the Respondent commenced this action with a writ, by which he claimed the following reliefs: -

  1. A declaration that by the payment by Plaintiff of the purchase price on H/No. Plot 642 East Legon, Accra, offered for sale by the SSB Bank Ltd. the Plaintiff is the owner of the said house and therefore entitled to a transfer of the same into his name.
  2. A declaration that the 1st and 2nd Defendant have no legal and /or equitable interest in the said H/No. Plot 642, East Legon, Accra.
  3. A further declaration that the 2nd Defendant is a trespasser in the said H/No. Plot 642, East Legon, Accra.
  4. An order that the 3rd Defendant transfers the said H/No. Plot 642 East Legon, Accra to the Plaintiff or in the alternative the Registrar of this court transfers the same to the Plaintiff at the cost of the 3rd Defendant.
  5. An order that the 2nd Defendant vacates the said house, H/No Plot 642 East Legon, Accra and deliver vacant possession to the Plaintiff.
  6. Cost and Lawyers fees.

 

The 1st and 2nd Appellants disputed the Respondents claim and also counterclaimed for the following reliefs: -

  1. Payment of the sum of ¢55,969,182.50 being the cost (estimated and actual) of restoration works done as a result of the vandalisation of the premises by Plaintiff and his hired thugs.
  2. Interest on the amount in paragraph (i) from date incurred till date of final payment at the going bank rate.
  3. Payment of ¢15,000,000.00 by Plaintiff to 1st and 2nd Defendants being sundry expenses incurred by 2nd Defendant in securing the premises before the restoration.
  4. Damages.
  5. Cost.

 

On the 12th December 2005, the issues formulated in the Application for Directions filed on the 19th July 2005 were set down for the trial.  The issues adopted for the trial were as follows: -

  1. Whether the former Managing Director of the 3rd Defendant originally made the offer for the purchase of the house subject matter of this suit to the Plaintiff.
  2. Whether the Plaintiff and the 2nd Defendant, then acting on behalf of the 1st Defendant agreed that the house be purchased in the name of the 1st Defendant to improve its asset base.
  3. Whether it was also agreed between the Plaintiff and the 2nd Defendant that the house will be transferred to Plaintiff after the 1st Defendant has won a bid from the Ghana Commercial Bank.
  4. Whether the Plaintiff paid the purchase price of the house as a result of the agreement between him and the 1st and 2nd Defendants mentioned in ‘b’ and ‘c’ above.
  5. Whether the 2nd Defendant then acting on behalf of the 1st Defendant was fully aware that the purchase price for the said house was paid with a loan contracted by the Plaintiff from Unique Trust Financial Services Ltd.
  6. Whether the Plaintiff incurred a very huge debt as a result of the loan taken to pay the purchase price of the house and particularly because of the refusal of the 1st and 2nd Defendants to transfer the house to him for use for purposes for which he purchased the house.
  7. Whether the Plaintiff offered to let the 1st and 2nd Defendants to retain ownership of the said house upon the payment to him by the said Defendants of the sum expended on the house and paid by the Plaintiff to Unique Trust Financial services Ltd.
  8. Whether the Plaintiff granted a loan to 1st and 2nd Defendants to pay the purchase price of the house.

 

At the end of the trial, the Court entered judgment for the Respondent.   At page 331 of the record of appeal, which is part of the judgment, the trial Judge declared the Respondent owner of the property in dispute and ordered the 2nd Appellant to vacate the property.   It is against this judgment dated 12th April 2006, that the 1st and 2nd Appellants have mounted this appeal.  The Notice of Appeal filed on the 12 April 2006 has only one substantive ground of appeal that is, the judgment of the High Court is against the weight of evidence.   Even though the Appellants indicated that further grounds of appeal would be filed, the record reveals that no further grounds were filed and indeed learned Counsel for the Appellants in his statement of case, argued the only ground contained in the Notice of Appeal.

 

From the pleadings, four issues were paramount in the determination of this suit.   Indeed these issues were all part of the issues set down for trial.   I shall reproduce the issues hereunder: -

  1. Whether the former Managing Director of the 3rd Defendant originally made the offer for the purchase of the house subject matter of this suit to the Plaintiff.
  2. Whether the Plaintiff and the 2nd Defendant, then acting on behalf of the 1st Defendant agreed that the house be purchased in the name of the 1st Defendant to improve it asset base.
  3. Whether it was also agreed between the Plaintiff and the 2nd Defendant that the house will be transferred to Plaintiff after the 1st Defendant has won a bid from the Commercial Bank.
  4. Whether the Plaintiff granted a loan to the 1st and 2nd Defendants to pay the purchase price of the house.

 

These issues as I have observed were very fundamental in the determination of the dispute.   Issues 1 to 3 above relates to claims put up by the Respondent in his pleadings whilst 4 above relates to claims by the Appellants.    The onus of proof at the trial on issues 1 to 3 was on the Respondent to discharge whilst that of issue 4 was on the Appellants.  Issues 1 to 3 above formed the core of the dispute and it was the duty of the Respondent, to lead credible evidence to prove them, since the law ordinary is that he who alleges has the burden to prove.  So the question I ask is that, did the Respondent successfully discharged the burden he assumed?

 

The Respondent testified in the trial as the Plaintiff and called three witnesses.  Pw1 was Mr. Paul David Fletcher Dollitel an Architect.  He testified that he was engaged by the Respondent to carry out renovations at the house in dispute.  Pw2 was Mr. Samuel Adu Gyamfi, the Managing Director of Agate Transport, who testified as regards contract between his company and Ghana Commercial Bank.  Then there was Pw3 Mr. Fred Mills Tettey, the Credit Manager of Unique Trust Financial Services who testified about the loan application by the Respondent and the initial payment of ¢200,000,000.00 to SG SSB Bank Ltd, as part of the purchase price of the house in dispute.

 

From the record of appeal, it is obvious that the gravamen of the Respondent’s case is that the entire transaction concerning the purchase of the house was between himself and the former Managing Director of SG SSB Bank, Mr. P. K. Thompson.   This point can better be illustrated with excerpts from the record of appeal as follows:

 

At page 43 and 44 the following examination is recorded.

            Q:        Now, do you know the former Managing Director of SSB now SG SSB?

            A:        Yes my lord.

     Judge:       What is the name?

            A:        Mr. P. K. Thompson

            Q:        Now, have you had any dealings with him in respect of any house.

A:      Yes in around October 1999, Mr. Thompson called me and he told me     about a house in East Legon and asked me whether I know a particular person ……

Q:         No, he told you about a house what did you do after that?

A:         He asked whether, I will be interested in buying the House, and I told him at the time I did not have money to buy he said we should arrange to buy the house, so I agreed to buy the house.

Q:         Now after that did you take any steps?

A:         We discussed the purchasing of the house and I agreed to buy and we even agreed on the purchase price of the house and after that I went to see him after the agreement of the house and he told me that he has somebody living in the house.

At page 48 the following is also recorded at line 19 to 24.

             Q:        Now did you make any application to SSB to purchase this house?

          A:       Initially I spoke with the Managing Director, made all the arrangements with the Managing Director, so I did not go subsequently to SSB, I had all my dealings with the Managing Director of SSB on the house.

At page 49 lines 1 to 11

Q:         So why did you say that the house be bought in the name of the 1st Defendant, can you explain to the Court.

A:         Because when I met them, Mr. Thompson asked me to help the 2nd Defendant to get her business going and so part of the process of helping her to boost her balance sheet for Ghana Commercial Bank.   I said if we took the house and put the house in the name of Pergah Transport the value ¢330 million will be part of her balance sheet that would be submitted to Ghana Commercial Bank.   That was the main reason. 

From the record the alleged involvement of Mr. P. K. Thompson in getting the Respondent to acquire the house in dispute was so crucial and the Respondent testified to same at page 52, 65, 67, 69 and 82 among others.  I think that the examination of the Respondent at page 67 lines 8 to 28 is very relevant and same is reproduced below: -

     Danso:    There was a meeting in respect of the house after the purchase, that you made unrealistic demands at that meeting.

A:         “The meeting that the 1st and 2nd Defendants are referring took place in 2004, that is 5 years after purchase because I was under the impression that the balance of the ¢130,000,000.00 had been paid by the 2nd Defendant when we had that meeting.  The 2nd Defendant indicated at the meeting, which was arranged by Mr. Thompson that she was interested in taking over the house, therefore I must give her the amount that I have paid up to she has paid ¢130,000,000.00 which she had not paid so at the meeting, I afterwards gave her the figures as I paid Unique Trust over the period, I gave it to her and she wouldn’t pay”

The last examination of Respondent that I seek to refer is at page 82 of the record of appeal at line 10 to 18.

Q:         If you were buying the house and that the ownership was to be in you, why were you expecting the 1st Defendant to pay the balance that you claim to have paid?

A:         Because I discussed this matter with Mr. Thompson and the 2nd Defendant that I was not interested in the house and the interest rates that I was paying were too high and there if she wanted the house, she could take it, she could pay and take the house.

In this judgment I have taken the trouble to reproduce the above evidence of the Respondent to demonstrate the role played by the then Managing Director of SG SSB Bank, Mr. P. K. Thompson in the purchase of the house, as alleged by the Respondent at the trial.  Indeed having said all these concerning the role played by Mr. Thompson, one expected the Respondent to have called the said Mr. Thompson to testify to corroborate the evidence.

 

From the record of appeal, I find at page 100 to 101 that the Respondent applied for a subpoena directed at Mr. P. K. Thompson to testify for the Plaintiff on the 9th February 2006.   Even though the subpoena was filed, the said Mr. Thompson did not appear to testify.

 

On examination of the evidence, the Respondent needed to call Mr. Thomson to corroborate his evidence.  Indeed Mr. Thompson in this suit was a very material witness for the Respondent and taking into account his evidence some of which has been reproduced above in this judgment the failure of the Respondent in calling the said Mr. Thompson was fatal to the discharge of the evidential burden he assumed in the trial.  Indeed the law is well settled in Majolagbe V. Larbi & Anor. 1959 1GLR 190, that where evidence is capable of positive proof it must so proved and a mere repetition of the evidence on oath without more does not discharge the burden of proof required in law.

 

From the evidence on record I find that the claim by the Respondent that the offer was made to him first and that he agreed with the 2nd Appellant that the property will be purchased by him in the name of 1st Appellant to boost the corporate value of 1st Appellant and then later transferred back to the Respondent were all capable of positive proof had the Respondent called Mr. P. K. Thompson to testify as he attempted by the filing of the subpoena.   The Respondent therefore failed to adduce credible evidence in law to establish his claim over his eventual ownership of the house and I am satisfied that from the record there is no credible evidence to support the judgment declaring the Respondent owner of the house in dispute.

 

Having failed to adduce the required evidence to prove his claim as by law required the Respondent, then Plaintiff, should have lost the contest and for the reasons I have given in this judgment the appeal by the 1st and 2nd Appellant ought to succeed and I so hold.

 

An appeal is by way of rehearing.  In this suit the 1st and 2nd Appellants counterclaimed for the following: -

  1. Payment of ¢55,969, 182. So being cost of (estimated and actual) of restoration works done as a result of the vandelisation of the premises by Plaintiff and his hired thugs.
  2. Interest on the said amount.
  3.    Payment of ¢15,000,000 by Plaintiff to 1st and 2nd Defendants being sundry expenses incurred by 2nd Defendant in securing the premises.
  4.    Damages.

 

The above Counterclaim by the Appellants are in the form of special damages but from the record of appeal no evidence was led to proof the damages suffered.  I have looked at the statement of defence and counterclaim and the said pleading is silent on the alleged damages.  The 2nd Appellant in her testimony at page 129 of the record of appeal only mentioned the things that were damaged in the house.  She also tendered Exhibit 9 which is a proposed cost of restoration work in the house assessed at ¢35,969,182.00.  Apart from the fact that Exhibit 9, is only a proposal, it is inconsistent with the amount of ¢55,969,182 being claimed in the counterclaim.  Indeed the 1st and 2nd Appellant did not even particularise the damages sustained.  The claim for  ¢55,969, 182 and ¢15,000,000.00 are not supported by the pleadings and evidence on record and the trial court was right in refusing same.

      See 1.  Attorney General V. Faroe Atlantic Co. Ltd. 2005-2006 SCGLR 271

               2.  Youngdong Industries V. Roro Services & others 2005-2006 SCGLR 816

 

However there is evidence on record to show the on the 1st January 2005, the Respondent took some men to the house in dispute and caused some damages to the property, this incident led to the arrest of the Respondent.   Infact the evidence of the 2nd Appellant is corroborated by Dw1, Helen Adeku who was in the house when the men entered to destroy some parts of the house.  Her evidence at page 191 is also corroborated by the evidence of Dw2 Benjamin Kwame Dotse, a Chief Inspector of Police, who investigated the attack on the house.   The record of appeal reveals that the house was damaged and as such the 2nd Appellant would definitely spent some money to repair the damage caused by Respondent and his men.   I think that the Respondent ought to compensate the 2nd Appellant for the damage caused to the house.  I will assess the damages at ¢30,000,000.00 taking into account Exhibit 14 which is a Photo Album of the damages found at page 416 of the record of appeal.

 

I have earlier on indicated that an appeal is by way of rehearing. In this appeal there is no dispute that the Respondent paid an amount of ¢200,000,000.00 in 1999 on behalf of the 1st Appellant towards the purchase price of the house in dispute.   The 2nd Appellant claims that it was by way of financial assistance.  By this assertion it presupposes that the 1st and 2nd Appellant were enjoined to repay the said loan.  Indeed there is evidence that the Respondent took the loan from the Unique Trust Financial Services Ltd.

 

By paragraph 15 and 16 of the statement of defence and counterclaim the 1st and 2nd Appellants denied ever agreeing with the Respondent to take the loan from the Unique Trust Financial Services Ltd.   The justice of this matter requires the 1st and 2nd Appellant to repay the ¢200,000,000.00 paid on behalf of the 1st Appellant.  In this judgment therefore I will order the 1st and 2nd Appellant to refund the ¢200,000,000.00 to the Respondent together with interest from 24th November 1999 to date of this judgment at the current commercial bank lending rate, to be calculated at simple interest.

 

The appeal of the 1st and 2nd Appellants succeeds accordingly subject to the orders contained in this judgment.

    

 

MARFUL – SAU, J. A

 

 

COUNSEL

MR. JULIUS HUKPORTI FOR PLAINTIFF/RESPONDENT

MR. K. ASIRIFIE AND MR. OSEI OWUSU FOR DEFENDANTS/APPELLANTS.