INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(631, 'J. OPOKU BOATENG & CO. VRS   1. RAOUL ABOU CHEDID 2. GOLD COAST SECURITIES LTD 3. K. AMPONSA- DADZIE', '', 'links/cases/OPOKU BOATENG v RAOUL ABOU CHEDID.pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nThe court has been called upon in this application to make a determination as to whether a lawyer who initiate an action for the recovery of his legal fees from his former client can do so by the issuance of a writ of summons or must come strictly be an application in the form of a motion.  \r\nAnd two whether when a lawyer who sues more than one defendant in his claim for recovery of his fees, such an action makes it multiple causes of action or different causes of action and renders the action incurable bad without the leave of the court having been first obtained.   1st Defendant/Applicant has moved the court to strike out or dismiss the writ filed by the plaintiff/respondent. In an affidavit that accompanied the application and deposed to by the 3rd Defendant, he claims that the writ of \r\n \r\n2 | P a g e  \r\nthe plaintiff is incompetent, unfounded in law and constituted an abuse of the judicial process. Moving the application, 3rd defendant who is also a legal practitioner relied on section 41 of the Legal Profession Act, Act 32 and the case of JONAH v KULENDI & KULENDI [2013-2014] 1 SCGLR 272. The essence of his submission is that Act 32 has spelt out a mode for a lawyer who intends to recover his fees from a client to come by way of an application and nothing else and as long as this suit is not by way of an application, plaintiff has miscalculated and ought to be thrown out of the court.  \r\nSection 41 of Act 32 states as follows:  \r\n “All applications made under this Part to refer any bill to be taxed and settled or for the delivery up of deeds, documents, or things shall be by motion in the matter of the lawyer concerned”.  \r\nI find nothing in this provision that says that when a lawyer institutes an action for the recovery of his fees for the performance of legal services, the lawyer must approach the court by way of an application. The sections that precede section 41 deals with the service on a client of a bill by lawyer at least one month before the lawyer commences proceedings. And when this bill is served, the client may apply to the court and the court may refer the bill to be taxed. And where no such application is made the lawyer, suo moto, may refer the bill to be taxed. Section 41 deals with matters regarding taxation of the bill raised by a lawyer which the provision says any such matters regarding taxation, delivery of any documents, deeds or writing demanded by a client from a lawyer should be done by way of an \r\n \r\n3 | P a g e  \r\napplication. The law however, does not say that when a lawyer commences an action to recover his fees it should be by way of application in the form of a motion.  \r\n3rd defendant relied on the case of JONAH v KULENDI & KULENDI supra as the authority in support of his claim that a lawyer suing for his fees must do so by way of an application. In fact, JONAH v KULENDI never ever decided that and the import of that decision has gravely been misconstrued by 3rd defendant.  \r\nIn that case the plaintiff had issued a writ against three different parties when he claimed against the 1st defendant recovery of US$1.000.000.00 which he alleged he gave to 1st defendant when the latter instituted an action against Investcom, Scancom and Grand View Management Ltd. And that the monies advanced to 1st defendant was to be repaid from the monies to be realised from the monies to be received from the Investcom suit. As against 2nd and 3rd defendants, plaintiff claimed that they were aware of that suit as lawyers and had received fees of up to US$100.000 from plaintiff and that without recourse to him the defendants had settled the claim for an amount of USD54,000.000.00 of the claim against Investcom.  \r\nAs against 2nd and 3rd defendants it was the claim of the plaintiff that the fees they charged 1st defendant be disclosed to him and was not bound by the success fee agreed upon. It was the opinion of the Supreme Court that regarding the fees that was charged by 2nd and 3rd defendants, if plaintiff wanted a disclosure, then the procedure was by way of an application. And two that it was wrong for the plaintiff to have put together separate causes of \r\n \r\n4 | P a g e  \r\naction against the 1st defendant, with the rest of the defendants, when the claim of plaintiff emanates from separate causes of actions.  \r\nThe plaintiff in Sam Jonah case was not a lawyer who was suing for his fees. Two in the Sam Jonah case, the plaintiff had a cause of action against 1st defendant for recovery of a loan whiles against 2nd and 3rd defendants in respect of an agreement they had as lawyers regarding their fees with 1st defendant, a contract which plaintiff was not a party or privy to. It is therefore not the law that a lawyer must commence an action for recovery of his fees by way of an application. And it is again not the law that when a lawyer issue a writ and ask for consequential orders against more than one defendant the action is bad in law and such a lawyer must first obtain leave of the court. What is cause of action is described by the Black Law’s Dictionary “a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person” (8th Edition). In other words it is the ground on which an action may be sustained. The right to bring a suit.    \r\nThe claim of plaintiff here as can be gleaned from the endorsement on the writ is the recovery of fees against 1st defendant in a suit he claimed to have conducted on behalf of 1st defendant against 2nd defendant. And what he seeks against 2nd defendant is an injunction restraining the further payment of the judgment debt to 1st defendant and also against 3rd defendant from collecting any further monies from 1st defendant from the suit he handled. So the claim against all the defendants arise from the same cause of action but not different causes of action as it was in the SAM JONAH case and the fact \r\n \r\n5 | P a g e  \r\nthat there are more than one defendant does not transform the suit into separate causes of actions.  \r\nThe application is wholly without basis and frivolous. Same is dismissed with a cost of Ghc3.000.00.     \r\n         (Sgd.) Eric K. Baffour, Esq. Justice of the High Court    \r\nRepresentation  \r\nPlaintiff Represented by Osei Tutu Nkwantabisa  1st Defendant – Present  Margaret Owusu, Esq. for plaintiff – Present  Amponsa-Dadzie, Esq. for 1st Defendant – Present  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'CM/OCC/0734/16 ', '', '', '', '2016-11-21', ''),
(632, 'PAUL JACQUAYE  VRS   IDEAL FINANCIAL HOLDINGS LTD ', '', 'links/cases/PAUL JACQUAYE v IDEAL FINANCIAL HOLDINGS.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff claims the following endorsement on its writ issued on 06/07/15 against the defendant:  \r\n1. An order for the payment of the sum of Four Million Ghana cedis.  \r\n2. Interest on the said sum at the prevailing interest rate from 1st July, 2014 till date of final payment.  \r\n3. Damages for breach of contract.  \r\n4. Costs. \r\n \r\n2   \r\n5. Any other orders the court may deem fit.  \r\nThe plaintiff provides the basis of his claim to the reliefs he seeks in the statement of claim that accompanied the writ. He styles himself as a businessman and a former majority shareholder cum chairman of the Board of Directors of Ezi Savings and Loans Ltd. Plaintiff claims that sometime in 2014, based on a series of negotiations with the defendant, plaintiff agreed to sell his 70% shares in Ezi Savings & Loans amounting to 7.000.000 shares to defendant at a price of Ghc 5.000.000.00. Defendant paid Ghc1.000.000.00 and was supposed to pay Ghc4.000.000.00 by September, 2014, after defendant had completed an audit of Ezi Savings & Loans. To plaintiff the terms of this agreement were initially captured in a memorandum of understanding (MOU) signed between them which provided that if the auditing gave different information from what plaintiff had provided defendant was at liberty to withdraw from the contract and demand a return of the deposit paid with interest on the amount.   \r\nBank of Ghana which had regulatory oversight was duly informed and it gave approval for the transaction. Besides the MOU which was signed, the parties also executed what they called Share Purchase Agreement (SPA). Defendant carried out the financial due diligence on Ezi Savings & Loans Ltd and completed same in July, 2014. Plaintiff further claim that defendant duly received the financial due diligence of Ezi Savings & Loans and afterwards decided to proceed with the transaction. That the Board of Ezi Savings & Loans was formally dissolved in a meeting on 21st July, 2014 at Madina. The defendant took over and changed the name of Ezi Savings & Loans to First Trust Savings & Loans Ltd (1st Trust S&L) with a new Chief Executive Officer. In terms of the MOU signed, according to plaintiff, defendant should have paid all the Ghc5.000.000.00 by September, 2014 and yet the defendant has still not \r\n \r\n3  \r\nfulfilled its promise. Defendant has communicated to him of its intention not to make further payments because of a misrepresentation of information to it. Plaintiff then concludes that defendant has no intention of paying its outstanding obligations unless compelled by the court and hence its claim before the court.   \r\nDEFENDANT’S ANSWER AND COUNTER CLAIM Defendant has contested the claim of plaintiff and has counter claimed for the following reliefs in its amended statement of defence and counter claim:  \r\na. Payment of the sums of GH¢698,762.67 (Clydestone), GH¢1,458.62 (Transol) and GH¢167,700.56 and GH¢1,509,644.42 (Parod) owed by the said companies to First Trust Savings and Loans.  \r\nb. Interest on the said amounts at the agreed rates from 31/01/15 to the date of final payment.  \r\nc. Payment of all other sums of money found due to First Trust Savings and Loans from the Plaintiff together with interest.  \r\nd. General damages for fraudulent misrepresentation. \r\n  \r\ne.  An order directed at the Plaintiff to transfer the shares the Defendant purchased from him in Ezi Savings and Loans Ltd to her or that the Registrar of this Court transfers the said shares to the Defendant at the cost of the Plaintiff.  \r\nf.  Costs on full indemnity basis.  \r\n \r\n4   \r\nDefendant claims that plaintiff was not entitled to further payments as he had misrepresented facts regarding the liabilities of Ezi S & L that the assets were Ghc28.970.000 with liabilities being Ghc26.700.000 with a net worth of Ghc2.269.000 which representation had proved to be untrue. Defendant particularizes the misrepresentation in paragraph 4 of the statement of defence as follows:  \r\ni. The Plaintiff being the Chairman, majority shareholder and directing mind of Ezi Savings and Loans and having exclusive knowledge of the status of the said  company at the date of sale of the shares, failed to fully disclose and/or concealed said facts to/from the Defendant; ii. The Plaintiff made statements about the status of the said company to the Defendant, recklessly without belief in the truth of same.   \r\nTo defendant, plaintiff was fully aware of the status of the company with the defendant having no means of knowing same. Defendant then claims that the MOU was of no relevance after the signing of the SPA and as plaintiff has misrepresented facts plaintiff is rather in breach of the SPA and needed to indemnify the defendant against losses, liabilities and damages. To defendant even though the Bank of Ghana approved the transaction but it was subject to a condition of plaintiff making good its obligations regarding outstanding loans. That the outstanding loans referred to were loans the plaintiff owed to institutions such as Clydestone Gh. Ltd, Transactions Solutions Gh Ltd., companies which the plaintiff was the sole shareholder and directing mind. These two companies in addition to another, Parod Ltd belonging to the uncle of plaintiff all owed Ezi S&L huge sums of monies.   \r\nTo defendant, plaintiff took personal responsibility for the debt of Parod Ltd. \r\n \r\n5  \r\nDefendant further claims that an audit of the books of Ezi S & L revealed how plaintiff by means of fraud siphoned Ghc10 million cedis from Ezi to Clydestone and Transol and that he did commit the fraud by not passing the transactions through the books of Ezi S&L which has made defendant now saddled with the payment of the Ghc10 million Ghana cedis.  Defendant further contends that it had injected huge sums of monies into the company to resuscitate it from its financial comatose by the time it made the discoveries that it was too late to resile from the contract. And hence its failure to pay the moneys plaintiff is demanding and its counter claim against the plaintiff.  \r\nREPLY Plaintiff joined issues with the defendant in its amended reply and defence to the counter claim and denied misrepresenting any facts and parried the claim of fraud levied against him as Clydestone and Transol are independent companies listed on the Ghana Stock Exchange. And further contending that defendant is capable of making demands for the payment of those debts. Again plaintiff rebuff the claim of defendant maintaining that as at the time of the signing of the SPA and when the audit report on Ezi S & L was received, defendant had not yet injected any monies into First Trust except the Ghc1.000.000.00 that had been paid to plaintiff. Plaintiff then proceeded to raise some legal issues of the voidness of any sale of First Trust to the defendant as at the time of transfer First Trust was not the majority shareholder. To plaintiff First trust could not have transferred its shares to defendant as it had not completed the purchase of the shares from Plaintiff when it purported to do the transfer.  Plaintiff again claim that defendant has no capacity to demand payments of debt owed to another company.  \r\nISSUES FOR TRIAL With the pretrial hearing failing to amicably resolve the issues as evidenced by lack of \r\n \r\n6  \r\namicable solution the following five issues were arrived at as the issues for determination for the court:  \r\ni.  Whether or not the Plaintiff misrepresented material facts to the Defendant which said facts the Defendants relied on same to its detriment.  ii. Whether or not the Plaintiff should be liable for the debts owed by Clydesone and Transol. iii. Whether or not the Defendant can use the outstanding amount they owe to the Plaintiff to off-set the debt owed by Clydesone and Transol. iv. Whether or not the Plaintiff is entitled to his claim. v. Whether or not Defendant is entitled to its counterclaim.  \r\nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW Before proceeding to launch into the evaluation of the evidence, a caution as to the respective burdens borne by the parties in this suit would be worthwhile. It is so trite now that a party asserting  a claim bears both the burden of producing evidence  and burden of persuasion, the two being components of the burden of proof. Sections 10 and 11 of the Evidence Act, NRCD 323 deals with the burden of persuasion and the burden of producing evidence. And a party bears the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that a party is asserting. See the following cases: HENRY DOE SAMLAFO V. GREDA &ANOR. [2010] 26 GMJ 94, CA, MAC DAN v. GABRIEL GBORBLESHIE [2015] 85 GMJ 90 at 113.  It is pertinent to recognize that the court is dealing not with the claim of the plaintiff but the counter claim of the defendant as well and per the rules of evidence the burden the defendant’s counterclaim is a separate and independent action which the defendant bears the burden of persuasion and of producing evidence in respect of those claims. See NII ODOI ASUMANG v. \r\n \r\n7  \r\nWILLIAM CHARWAY [2014] 75 GMJ 108, 135 the Court of Appeal held that:    \r\n“It is trite law that a party who counterclaims becomes plaintiff as far as that counterclaim is concerned. The burden of persuasion shifts unto that defendant to establish that claim as if he was a plaintiff.”  \r\nAlso, in NOTEY v. AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION [2014] 77 GMJ 1 at 40, it was held that:   \r\n“Without any doubt a defendant who files a counterclaim assumes the same burden as the plaintiff in the substantive action if he/she is to succeed. This is because a counterclaim is distinct and separate claim on its own which must also be proved according to the same standard of proof prescribed by sections 11 and 14 of the Evidence Act (1975).” \r\nSee also OPANIN KWASI ASAMOAH v. KWADWO APPEA [2003-04] SCGLR 226 at 246, JASS CO. LTD. &ANOR. v. APPAU&ANOR. [2009] SCGLR 269; FOSUHENE v. OWUSU [2011] 32 GMJ 163.  \r\nHow did the plaintiff prove his claim and how was defendant able to prove its counterclaim? Plaintiff testified in person and among the documents admitted in favour of the plaintiff were the following critical ones: Ex ‘B’ – the MOU the parties signed on the 27th of May, 2014; Ex ‘C’ – the Share Purchase Agreement (SPA) which was signed on the 19th of June, 2014; Ex ‘D’ a financial due diligence report conducted at the instance of defendant to verify the financial health and also the representations made by plaintiff regarding Ezi Savings and Loans. It is instructive to note that Ex ‘D’ though admitted into evidence was unsigned. The law is quite clear that an unsigned \r\n \r\n8  \r\ndocument has no probative value and indeed void. See the decision of Court of Appeal in PROVENCAL v ZWENNES [2008-2009] 2 GLR 492; also REPUBLIC v. HIGH COURT, TEMA, EX PARTE OWNERS OF MV ESSCO SPIRIT [200304] 2 SCGLR 689 at 694, per Twum JSC; MARTIN AMIDU No. 3 v. A.G., WATERVILLE & WOYOME [2013-14] 1 SCGLR 606 at 658,  Beyond our jurisdiction, the Nigerian courts in the case of A-G, ABIA STATE v. AGHARANYA [1999] 6 NWLR (Pt. 607) 362 at 371 that:  “It is well settled that an unsigned document is worthless and void.”  \r\nAgain, Tobi JSC of the Nigerian Supreme Court in the case of Omega Bank Nigeria PLC v. O B C Ltd., Suit No. SC 77/2002, dated Friday 7th January, 2005 NSC decided:   \r\n“A document which is not signed does not have any efficacy in law…. The document is worthless and a worthless document cannot be efficacious. To me, the exhibit has no probative value.” \r\n  So the court will exclude Ex ‘D’ tendered by the plaintiff as a court of law has a discretion to exclude a document that had been admitted into evidence, when at the time the court was writing its judgment it is the  opinion that such a document should not have been admitted into evidence in the first place. Nonetheless, this will not occasion any harm to the plaintiff, as luckily enough for the plaintiff, the defendant tendered the signed copy of the same document as Ex ‘16’.   \r\nDefendant on the hand testified through its Chief Executive Officer, Nii Kotei Djanie, its three witnesses, who testified through a subpoena; Dw1 and former managing director of Ezi Savings and Loans, Nii Ayitey Armah, Dw2 – Victor Tetteh who testified of conducting the due diligence that defendant requested for. Then finally there is also the evidence of John B. Warrisah, from Bank of Ghana. Cumulatively, \r\n \r\n9  \r\nthey tendered the following documents to bolster the defence and counter claim of the defendant: a writ issued by the estate of Kofi Jacquaye as Ex 1 series, series of correspondence on overdraft balance of liabilities of Transol, Cladystone and Parod as Ex 2, 3 and 4. There is also Ex ‘14’ being cash of various investment that had been made by the defendant by 28th of August, 2014, the financial due diligence report already referred to as Ex ‘16’ and Ex ’18’ being Bank of Ghana’s tabulation of the investment made by defendant after purchase of the majority shares of Ezi Savings and Loans.  \r\nMISREPRESENTATION The court is called to action first to answer whether Paul Jacquaye misrepresented facts and information during the days of the negotiations for the purchase of his 70% shares in Ezi Savings and Loans Ltd which had made defendant act to his detriment. It would be worthwhile before dealing with the evidence on record that I set out the perimeters of the law on misrepresentation. Representation according to the Law of Contract by Chesire & Fifoot, 15th Ed at page 332, the learned authors states that:  \r\n“is a statement of fact by one party to the contract (the representor) to the other (the representee) which while not forming a term of the contract is yet one of the reasons that induces the representee to enter into the contract. So a misrepresentation is simply a representation that is untrue”.   \r\nAccording to Dowuona Hammond, in her work Contract Law in Ghana, such a misrepresentation could be a fraudulent, negligent or innocent misrepresentation. And to constitute a misrepresentation it has been noted that the statement must be in relations to existing facts or state of affairs or past state of affairs as mere state of intention or opinion is not enough to establish misrepresentation. See BISSET v \r\n \r\n10  \r\nWILKINSON [1927] A.C. 177. It is also worthy of note that contracts for the sale of  shares of a company, insurance contracts e.t.c are in a special category that are usually termed as contracts uberrimae fidei. In such contracts the law require that material information are disclosed or not hidden as its discovery may have dire consequences on the contract.  As defendant is the one alleging misrepresentation, clearly then, the onus probandi falls on him. Among some of the claim of defendant in support of the misrepresentation allegation are, one that the plaintiff did not fully disclose the financial health of Ezi S & L to them. For instance in the MOU, Ex ‘B’ it states as follows:  \r\n“The buyer [defendant] is reliably informed by the seller [plaintiff] that the total liability is 26.7 million Ghana cedis, the total assets are 28.970 million Ghana cedis and the net worth of the company is 2.269 million Ghana cedis”.   \r\nAgain this clause finds its way into Ex ‘C’ the Share Purchase Agreement (SPA) at clause 6 which states as follows:  \r\n“The buyer has already paid a deposit to the seller pursuant to signing a Memorandum of Understanding (MOU) by the parties on the 27th May, 2014 … on the proviso that the seller had reliably informed the buyer that the total liabilities of the company is 26.7 million Ghana cedis, the total assets are 28.970 million Ghana cedis and the net worth of the company is 2.269 million Ghana cedis …”   The question is when plaintiff made this claim of the net worth of Ezi being 2.269 million Ghana cedis, was that true or false? \r\n \r\n11  \r\n That was palpably untrue as plaintiff did not provide any basis to the court of the source of this claim he made to the defendant. Ex ‘16’ being the financial due diligence report shows that the worth of Ezi S & L at the time of the sale was negative Ghc19.6 million. For Victor Tetteh, the auditor who conducted the audit confirmed it in his evidence in the following:  \r\nQ: Take a look at Ex ‘C’ and look at item number 6, paragraph 6. The plaintiff told the defendant that the net worth of the company was Ghc2.269 million cedis. Can you tell the court what you found out by your investigations?  \r\nA: After our field work that is on the due diligence and being impairment losses, the net worth of the company after our work is a negative Ghc19.6 million”  \r\nIndeed when plaintiff came under cross examination he failed to disclose the basis of the representations made to the defendant in the following exchanges:  \r\nQ: You made a number of representations to the defendant and these are contained in Ex ‘C’, is that correct  \r\nA: Yes My Lord,   \r\nQ: At the time you told defendant that the liabilities of Ezi Savings and Loans was 26.7 million Ghana cedis, you are aware the defendant had not seen the books of Ezi Savings and Loans  \r\nA: Yes My Lord  \r\n \r\n12  \r\nQ: What was your source of this information about the status of the company that you gave to defendant?   A: The accounts of the company.  \r\nQ: Which accounts of the company.  \r\nA: The management accounts of the company.  \r\nQ: Did you show it to the defendant.  \r\nA: No my lord the defendant was to conduct a due diligence information for himself”  \r\nAs the information put out by the plaintiff has turned out to be completely untrue, I will hold and find that there had been a misrepresentation. And this misrepresentation did not only induce the defendant to enter into the contract for the purchase of the shares of plaintiff but the said false statements found their way into  both Ex ‘B’ and ‘C’, as part of the terms of the contract.  \r\nNonetheless, having so found as a fact that there was a misrepresentation made by plaintiff to the defendant; what then is the effect of such a misrepresentation on the contract? I pose this question for my consideration because the fact that there is a misrepresentation does not ipso facto lead to the irresistible conclusion that the contract is void. Such a contract only becomes voidable and may be set aside by the party that has been affected by the misrepresentation.  \r\nEx ‘B’, the MOU and Ex ‘C’ the Share and Purchase Agreement (SPA) were signed \r\n \r\n13  \r\non 27th May, and 19th June, 2014 respectively. The misrepresentations regarding the net worth of Ezi became material terms of the contract between the parties. As these two contracts predated the Audit Report, Ex ‘16’ which is dated the 14th of July, 2014. I glean that less than a month after the contract was concluded, defendant had a full glimpse of the real condition of Ezi S & L. Defendant seems to have done nothing upon discovery of the misrepresentations made by plaintiff. One could see from the evidence on record that on 21st of July, 2014, exactly a week after Ex ‘16’ was ready and available showing the perilous situation of Ezi S & L that defendant was purchasing, the parties met and plaintiff formally handed over Ezi S & L to defendant through Nii Kotei Dzanie.  It is my understanding of the law of contract that as misrepresentation only makes a contract voidable at the instance of the innocent party, the law afford the following options to the innocent party. First such innocent party may rescind the contract and seek for restitution. This option is intended to cancel the contract and restore the parties to their positions before the contract was entered into. The only ground upon which rescission may not be possible is where the circumstances are such that ‘restitutio in integrum’ is impossible. The net effect of rescission is that the contract is terminated ab initio as if it had never existed. The parties are put in status quo ante. See the case of ABRAM STEAMSHIP CO. v WESTVILLE SHIPPING CO. LTD [1923] AC 773 @ 81. Second, an innocent party may choose not to rescind but affirm the contract. This may expressly or impliedly be done by the innocent party. Affirmation is deemed complete and binding if a party fully aware of the misrepresentation either expressly or impliedly by conduct affirms the contract. Which option did defendant exercise?  \r\nThe parties expressly agreed under clause 10 of Ex ‘C’ that either party had the liberty to terminate the agreement if there was a breach of a provision of the agreement by the \r\n \r\n14  \r\ngiving of a 30 days’ notice for such a breach to be remedied. This is complimented by Ex ‘B’ clause 3(e) and (f) that the buyer could withdraw and demand a refund of the deposit made plus 30% interest per annum on the amount paid as deposit. Nii Kotei Djanie, CEO of defendant, under cross examination provide the reason why he claims defendant did not rescind the contract in the following:  \r\nQ: You told the court that according to the terms you had the right to withdraw from  the transaction, is that correct?  \r\nA: That is correct  \r\nQ: But you did not exercise your right, is that correct.  \r\nA: I didn’t have such a time to exercise my right, … the time that all these things have been unfolding, we have moved from a point I could have withdrawn. We had injected capital in to the business, we have gotten approval from the Central Bank, and we have started rebranding the company. So it was practically impossible and we had done all that we could do to settle the accounts with Mr. Jacquaye but he refused”.  \r\nIs that true as defendant’s CEO claims that it had gotten to a point it could not pull out? There is no evidence adduced by defendant that as at 14th July, 2014 when Ex ‘16’ had been made available to the defendant showing the accounts of Ezi S & L as being in red, defendant had injected a lot of money into the company it had purchased. Indeed Ex ‘18’ shows that per the records of Bank of Ghana, defendant had only injected an amount of Ghc200.000 into the new company it purchased as at 24th of June, 2016, that is three weeks after defendant had received the due diligence report it commissioned to be done on his behalf. Ex ‘18’ demonstrates that virtually all the \r\n \r\n15  \r\ninvestment and capital injection were after 14th July, 2014 when defendant knew how false the information provided it by plaintiff was. Having failed to exercise the option of rescinding the contract when it had made minimal injection into Ezi S & L, it lies foul in the mouth of defendant to turn round to claim that when it realized the misrepresentations of Paul Jacquaye it could not rescind it.   \r\nAgain, learned counsel, Martin Danso, Esq. contends that the defendant did not want to rescind the contract and pay a 5% penalty. It is true that defendant would have paid a 5% penalty but defendant would have come out better off as there would have been a 30% interest on the amount of Ghc1 million it paid plaintiff plus the Ghc200.000 it had already injected. It is therefore, not correct, I find, that defendant could not have rescinded the contract from my analysis supra.  \r\nWhat the parties agreed to regarding the right of rescission is buttressed by section 214 of the Companies Act, Act 179 which states as follows:  \r\n“If a director of a company, having acquired as such director any special information which may substantially affect the value of the shares or debentures of the company or any associated company, shall buy or sell any such shares or debentures without disclosing such information to the seller or purchaser thereof, the purchase or sale shall be voidable at the option of the seller or purchaser within twelve months after the date of the agreement to sell or buy”  \r\nHaving not rescinded the contract, I find that defendant choose the option of affirmation of the contract. How? In full glare of Ex ‘16’ telling defendant of the liabilities of Ezi S & L in terms of non-payment of its taxes, its debts to Transol, Parod and Clydestone, it choose to make the following injections: hired offices by the 24th of \r\n \r\n16  \r\nJuly, 2014 and paid Ghc302.400, cash injection of Ghc400.000 on 31st of July, 2014, another cash injection of Ghc295.000 on 11th of August, 2014 such that by 22nd August, 2014 defendant had spent Ghc5,617.272 on the new company it bought. See Ex ‘18’. Being aware after 14th July, 2014 of the poor health of Ezi S & L, and yet made those whooping investment, it cannot be said that the defendant had been persuaded by the misrepresentation to make those capital injection when it could have withdrawn. See the case of IRVINE v KIRKPATRICK [1950]7 BELL APP 186 that under such circumstances therefore:   “the misrepresentation and the concealment go for just nothing, because it is not dolus qui dat locum contractui”.  \r\n See also the case of LONG v LLOYD [1958] 1 WLR 753.  \r\nWith the affirmation of the contract by defendant can the claim of defendant that he should not be made to pay any more monies to Plaintiff a legitimate claim to make? For Nii Kotei Djani admits that the contract sum to be paid to plaintiff was 5 million cedis and also concedes that it had only paid 1 million to him. As to the rest of the monies the following are his answers:   \r\nQ: So the remaining 2 million cedis to be paid after 60 days, has not been done  \r\nA: My Lord, I have no monies to pay to Mr. Paul Jacquaye  \r\nQ: So have you paid the money or not  \r\n \r\n17  \r\nA: I have no monies to be paid to Paul Jacquaye”  \r\nDefendant’s CEO spoke as if he was a law unto himself and could dictate, vary the terms of a contract at his own whim and caprice. A court of law cannot allow such blatant violation of the very terms of a contract a party has signed unto to be treated with scant respect.  \r\nALLEGED LIABILITY OF PLAINTIFF FOR THE DEBTS OF COMPANIES HE HAS MAJORITY SHARES Defendant in the second and third issues is seeking that plaintiff be made personally liable for the debt of Clydestone, Transol and Parod and further seeks that the outstanding amount of 4 million due plaintiff be diverted to settle the indebtedness. Defendant has listed various sums owed by Ezi S&L to these three companies at the time of the takeover. As these lending are deemed to be connected lending, Dw3 claim that Bank of Ghana requested that plaintiff be liable and pay those monies. Exhibits 4, 5, 6, 7 and 8 are series of correspondence between Clydestone, Transol and Ezi S& L and most of the letters signed by Ayitey Armah Tetteh, Dw1, then the managing director of Ezi S&L, whiles some were signed by Plaintiff. They seems to deal with proposals by Clydestone and Transol of efforts the companies were making to retire the facilities they had taken with Ezi.  \r\nAccording to Dw3, Bank of Ghana ordered plaintiff to personally pay those monies as they are companies related to him and besides, plaintiff did not seek the approval of Bank of Ghana before Ezi S & L lent to those connected companies. The rule that a company has separate existence independent of its directors and shareholders is notorious that downloading the authorities is the subject of a full thesis writing. Where a member even holds all the shares of a company, the debts of the company are \r\n \r\n18  \r\nindependent of the personal debts of the individual. See the celebrated case of SALOMON v SALOMON & CO LTD. [1895-9] ALLER 33; MORKOR v KUMA (EAST COAST FISHERIES CASE) [1998] @632.  \r\nIt is a fact that the debts of the three companies together with interest accrued on the monies they borrowed had exhaustively been made bare by Ex ‘16’ when Dw2 undertook the audit of Ezi S & L. Why did not defendant confront plaintiff about this liability since 14th of July, 2014 when it discovered this until it was sued by plaintiff. These debts I find are debts of companies which plaintiff happens to have interest in them and that will not make plaintiff personally liable for those debts. I have taken a careful look at Ex ‘1’ series. A suit by the estate of Kofi Jacquaye against First Trust Savings & Loans. First Trust admitted owing the estate and terms of settlement were filed wherein installment payments to liquidate the debt were made. It is my view that if indeed First Trust genuinely believed that it was not liable for those debts it would have made it clear in its defence or in the alternative it could have issued a third party notice for indemnity by the plaintiff, if it was entitled to one. Having so admitted its liabilities it is estopped from claiming that plaintiff should be made liable for the debts it admitted owing.  \r\nThe corporate veil is not pierced lightly. There must be evidence that the companies were set up as a sham and used for the perpetuation of fraud or it never had an independent existence. See ATLAS MARITIME CO SA v AVALON MARITIME LTD [1991] ALL ER 769; MAJDOUB & v W BARTHOLOMEW & CO LTD [1962] 1 GLR 122; OWUSU v THORNE LTD [1966] GLR 90.   \r\nThe defendant is asking the court to lift the corporate veil and hold the plaintiff personally liable. In law the corporate veil may be lifted by one, the Companies Act, \r\n \r\n19  \r\nAct 179, or two by some other legislation and three by the court when it is just and fair to lift the corporate veil. The veil could be lifted under Act 179 in one of the following ways: when a company carries on business for more than six months without a member under section 38 of the Act, second, when a company carry on business for more than four weeks after the number of directors have fallen below two under section 180 of the Act. Three when there is a violation of the following sections of Act 179 – section 121(1)(2) regarding failing to affix its name at a conspicuous place, section 29 when a company fails to furnish the Registrar in duplicate vital information on the directors and finally when a company breaches the minimum capital requirement.  Defendant in its counterclaim seems not to have rooted its claim for the lifting of the veil on any of the above grounds supra.  \r\nThere are other laws whose breach may invite the lifting of the corporate veil. One is when in the course of official winding up of a company under the Bodies Corporate (Official Liquidation) Act, Act 180, it appears that the companies business had been carried out with intent to defraud creditors of the company and two where there had been massive violations of the Internal Revenue Act, 2000, Act 592. I could glean that the prayer of the defendant in its counter claim is also not founded on this.  \r\nCan it therefore be the lifting of the veil where the court finds it just and equitable to do?  For in the MORKOR case supra, Sophia Akuffo JSC noted that the courts will lift the corporate veil if:  \r\n“it is shown that the company had been established to further fraudulent activities or to avoid contractual liabilities, the veil will be lifted”  \r\n \r\n20  \r\n Among some of the factors that will make a court exercise its discretion to lift the corporate include, among others, where there had been fraud, improper business conduct, deliberate attempt at evasion of legal obligations, wilful misdeeds, then the veil will be lifted to reach the persons behind the company.  \r\nDefendant’s representative in his witness statement in paragraphs 18 and 19 claim that plaintiff used Clydestone and Transol to siphon an amount of Ghc10 million from Ezi S&S. Plaintiff’s counsel confronted defendant’s representative in the following exchanges:  \r\nQ: Take a look at Ex 19, is that the IT audit report you are referring to?  \r\nA: Yes My Lord  \r\nQ: Can you show us which page of the report was mentioned that Paul Jacquaye has siphoned 10 million cedis from Ezi Savings and Loans?  \r\nA: It is a voluminous report. I think the purported fraud by Paul Jacquaye is something that cannot only be found in this document but others as well. My Lord, Jacquaye used very sophisticated formulas to fraud the Bank and each and every day I discover an aspect of the fraud.  \r\nQ: Prior to taking over the company, you did a due diligence#  \r\nA: Yes My Lord  \r\nQ: Both legal and financial \r\n \r\n21   \r\nA: Yes My Lord  \r\nQ: Did any of these reports mention anything about this 10 million Ghana cedis fraud  \r\nA: My Lord sophisticated fraud cannot be revealed by just an audit report”.  \r\nWell, if the fraud allegedly perpetuated by plaintiff cannot be revealed by audit report both legal and financial, then how would such a fraud be discovered before the court? That the court believe the word of mouth of defendant unsupported by any evidence to demonstrate fraud? In the case of REDDAWAY v BOWHAM [1896] AC 199 @ 221 Lord McNaughton noted on fraud as follows and which was quoted with approval in the case of FOFIE v ZANYO [1992] 2 GLR 475 that:  \r\n “fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be modesty itself if it could only afford it. But fraud is fraud all the same, and it is fraud and not the manner of it, which calls for the interposition of the court”   Defendant on the issue of fraud bears the burden of proof to show that the debts of Transol, Clydestone and Parod that the conduct of plaintiff towards defendant had been fraudulent and that plaintiff acted fraudulently and dishonestly as fraud is dishonesty as describes by Dr. Twum JSC in the case of BROWN v QUARSHIGAH [2003-2004] 2 SCGLR 930 and at 946 stated as follows:   ‘at common law a charge of fraud is such a terrible thing to bring against a \r\n \r\n22  \r\nman that it cannot  be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’  \r\nThe standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:  \r\n‘In any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt’.   \r\nThe defendant with full eyes opened when it received the audit report that showed the loans taken by those companies from Ezi Savings & Loans, it did nothing  and indeed as I have found when it went ahead to affirm the contract.  I do not find any fraudulent conduct by plaintiff in the loans Transol, Clydestone and Parod took from Ezi. Defendant is at liberty to pursue those companies for the loans it owes First Trust Savings and Loans Ltd. Accordingly the court declines the invitation to order plaintiff to be personally liable for the debts of the companies. Similarly it cannot order the defendant to pay the 4 million Ghana cedis it owes plaintiff to the three companies.  \r\nI cannot rest this judgment without raising and commenting on one critical issue that came up during trial and which demands the attention of the court.  This is the claim made in paragraph 6 of the amended statement of defence wherein learned counsel state that with the signing of the Ex ‘C’, the Share and Purchase Agreement and the MOU was of no relevance. With profound respect, that cannot be correct as Ex ‘C’ states under clause 13 that the MOU, Ex ‘B’ and ‘C’ constitutes the sole and entire agreement of the parties. It cannot therefore be correct that after the \r\n \r\n23  \r\nsigning of Ex ‘C’, Ex ‘B’ no longer had any effect.  \r\nCourts have never existed to draft and craft terms of contracts for parties and it does not lie in the hands of parties to seek to change fundamental clauses they have agreed to in a contract. The fact that performance of the contract may be onerous for a party is no ground for the court to seek to verify the terms of the performance of the contract. This time honoured principle was emphasized by the Nigerian Supreme Court in KAYDEE VENTURES LTD V. HON MINISTER OF FED. CAPITAL TERRITORY & 2ORS (2010) 1 CLRN at page 110    “ contract … deemed to have voluntarily entered into it [by parties]and therefore bound by its terms. Where the contract is reduced into writing, it is that document that invariably constitutes the guide to its interpretation. And the parties will not be allowed to read into such contract terms upon which they reached no agreement and thus not forming part of the contract.”   In the end the court dismiss the counter claim of the defendant save to say that upon payment of its liabilities to plaintiff, plaintiff is ordered to transfer the share of purchase to the defendant. The prayer of plaintiff on the other hand is granted in respect of the following:  \r\n1. An order for the payment of the sum of four million Ghana cedis.  \r\n2. Interest on the said amount at the prevailing bank rate from the time they became due till date of final payment  \r\nIn the exercise of the discretion of the court I will refuse to award nominal damages in \r\n \r\n24  \r\nfavour of the plaintiff as its own conduct towards defendant in terms of the misrepresentation makes it unjust to be awarded any such damages.  \r\nI will award cost of Gh¢ 10.000.00 in favour of Plaintiff.     \r\n           (Sgd.)      Eric K. Baffour, Esq. Justice of the High Court      \r\nRepresentation:  \r\nPlaintiff represented by Ruben Amanor – Present  Defendant Absent  Robert Alloh, Esq for Plaintiff – Present  Archie Martin Danso, Esq for Defendant – Present   ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'RPC/07/2015', '', '', '', '2016-07-20', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(633, 'POLY KRAFT (GH) LIMITED  VRS   SUNRIDGE CO. LTD.  ', '', 'links/cases/Poly Kraft (GH) Ltd v. Sunridge.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nThe Plaintiff is a limited liability company duly registered under the laws of the Republic of Ghana for the purpose of selling or supplying cardboards.  The Defendant is also a limited liability company registered under the laws of the Republic of Ghana and deals in the bottling and boxing of Safina Mineral Water.  \r\nIn the Plaintiff’s statement of claim, the Plaintiff claims against the Defendant the following reliefs: “a. The payment of the sum of GH¢30,556.97 being the outstanding balance owed the Plaintiff as at 31st August, 2013. \r\n2  \r\nb. Interest on the above sum at the prevailing bank rate from September, 2013 till date of final payment. c. Cost.”  \r\nThe material facts which gave rise to the matter before me are as follows.  The Plaintiff avers that between the period of January 15, 2013 and August 31, 2013, it agreed to sell and/or to supply to the Defendant company cardboards on credit basis based on an oral agreement it had with the defendant company.  Per the terms of this oral agreement, the defendant was afforded thirty (30) days to make payment on every invoice raised.  The Plaintiff avers further that the Defendant company made some payments leaving an outstanding balance of Thirty Thousand, Five Hundred and Fifty-Six Ghana Cedis and Ninety Pesewas (GH¢30,556.97) as at 1st September, 2013.   It is the claim of the Plaintiff that the Defendant has failed or neglected to pay the balance outstanding in the sum of Thirty Thousand, Five Hundred and Fifty-Six Ghana Cedis and Ninety Pesewas (GH¢30,556.97) in spite of repeated demands made on it to pay same.  \r\nA review of the record indicates that on February 25, 2015, the Defendant entered appearance through its solicitor, Lamtiig Apanga, Esq of Gyandoh Asmah & Co who filed a statement of defence in the behalf of the Defendant on April 16, 2016.  The following issues were set down for trial after pre-trial settlement failed: 1. Whether or not the Plaintiff supplied the Defendant Company with cardboard between January 15, 2013 and August 31, 2013. 2. Whether or not the Defendant had thirty (30) days to make payments on every invoice raised. 3. Whether or not the Defendant company did not owe the Plaintiff Company GH¢30,556.97 as at 31st September, 2013. 4. Whether or not the Plaintiff Company is entitled to its claims.  \r\nAfter pre-trial, the case was referred to this Court for the conduct of the trial.  It is noted, that the Defendant never appeared in court to contest the trial notwithstanding the fact that the Defendant was served with several hearing notices of the dates for trial and the Court’s Notes as evidenced \r\n3  \r\nby the numerous affidavits of service on the record.  It is on record, however, that on January 14, 2016, Counsel for Defendant filed a notice of withdrawal of his representation with the Registry of this Court.  Having failed to comply with the case management orders made by this Court on February 15, 2016, which orders were duly served on the Defendant per the affidavit of service on record, the statement of defence filed by the Defendant was struck out by the Court on June 24, 2016 in accordance with Order 32 rule 7A of the High Court (Civil Procedure) Rules, 2004, (CI 47) (as amended).  It is further noted that the Defendant failed to cross-examine the Plaintiff on its evidence, having failed to participate in the trial.  \r\nIn the circumstance, the only triable issue material to the disposition of this suit, in my view, is 1. Whether or not the Plaintiff is entitled to it reliefs as endorsed on the writ of summons.  \r\nThe general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The court applied the English case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the case of FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 the court also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in Section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   \r\nSection 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in \r\n4  \r\nthe mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     \r\nFrom the foregoing, therefore, it is clear that for the Plaintiff to succeed on its claims, it assumes the onus of proving its assertions against the Defendant.  \r\nIt is the Plaintiff’s case that the Defendant breached the terms of the agreement between the parties when it failed to pay the balance due and outstanding from the cardboards it, the Plaintiff, supplied to the Defendant in the total sum of Thirty Thousand, Five Hundred and Fifty-Six Ghana Cedis and Ninety Pesewas (GH¢30,556.97) as at 1st September, 2013.  \r\nTo prove its claim, the Plaintiff supported its claims with the testimony of its representative, Mr. Gyamebi, a Sales Executive with the Plaintiff Company for over ten (10) years and who, according to his testimony given on oath to this court, directly dealt with the Defendant in the transactions leading up to the filing of this present suit.  He testified that it was the course of dealings between the parties that the Defendant would place an order for the supply of cardboards with him or in the event that he was absent from work at the time, with any other sales person of Plaintiff Company and based on the order so made and the agreed delivery date, the Plaintiff would supply the Defendant with the cardboards.    \r\nMr. Gyamebi further testified that between the period of January 15, 2013 and August 31, 2013, the Plaintiff Company agreed to sell and/or to supply to the Defendant Company with cardboards on credit basis and the Defendant was afforded thirty (30) days to make payments for those supplies.  He testified additionally that after the Plaintiff had supplied the Defendant with the cardboards, the Defendant company made some part payments leaving an outstanding balance in respect of which Plaintiff’s lawyers wrote to Defendant to demand payment.  He asserted that the Defendant subsequently replied to that letter asking to pay by installments in a letter dated February, 9, 2015.    \r\nThrough Plaintiff’s representative, the Plaintiff tendered into evidence, marked as Exhibit “A” in the record, copies of the Defendant’s Account Statement beginning January 15, 2013 and ending \r\n5  \r\nAugust 31, 2013. Plaintiff also tendered into evidence the credit sales invoices issued to the Defendant on various dates and for differing amounts.  See Exhibits “B”, “B1”, “B2”, B3” and “B4”.  It appears from Exhibit “C” tendered by Plaintiff that owing to the persistent refusal and/or neglect of the Defendant to pay its outstanding debt, the Plaintiff instructed its lawyers to issue this letter, titled "Final Demand Notice to the Defendant to demand payment and or to recover the outstanding debt.  Plaintiff further tendered Exhibit “D” in support of its claims.  Exhibit “D” is a letter from the Chief Executive Officer of the Defendant Company proposing to pay the debt owed in monthly instalments commencing April 1, 2015.  \r\nA review of the record before me supports a finding that the Plaintiffs’ documentary evidence and statement of claim were corroborated in material aspects by the testimony of the Plaintiff’s representative.   The Defendant, on the other hand, failed to file any evidence to controvert the testimony of this witness and/or the documentary evidence of the Plaintiff and also failed to attend court to cross examine the Plaintiff’s witness.  Regarding the onus of proof on a defendant in a civil case, Brobbey, JSC in the Supreme Court case of IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU and OTHERS v. KOTEY and OTHERS [2003-2004] SCGLR 420 at 465 had this to say:   “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.  The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff.  If the court \r\n6  \r\nchooses to believe the only evidence on record, the plaintiff may win and the defendant may lose.  Such loss may be brought about by default on the part of the defendant.  In the light of the statutory provisions, literally relying on the common law principle that a defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant.”   And on the failure of a party to cross-examine a witness after he has given his evidence in chief, the position of the law is well settled. In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-2006] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus:   “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”  \r\nOn the strength of the foregoing positions of the law, the court is left with no option than to find the testimony of the Plaintiff’s witness, offered to corroborate the Plaintiff’s statement of claim and documentary evidence, unchallenged and therefore credible.  In stating thus, I am further guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA.  \r\nThe Plaintiff, nonetheless, is required to prove it is entitled to its reliefs as endorsed on its writ of summons.  See IN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU and OTHERS v. KOTEY and OTHERS, supra, per Brobbey JSC at 465.   \r\n7  \r\nIt is the claim of the Plaintiff, essentially, that it had an oral agreement with the Defendant to supply the Defendant with cardboards on credit basis, payable after thirty (30) days on every invoice raised.    \r\nIt is trite that for a valid contract to exist the parties must be in agreement regarding all the essential terms of the contract or the circumstances surrounding the contract must be such that it may be reasonably inferred that the parties were tacitly agreed as to the terms of the contract.  There should also be the four main elements of contract present, that is,  (i) the parties must have capacity to enter into the contract,  (ii) there must be offer and acceptance of key terms of the contract on which the parties are in agreement,  (iii) there must be consideration for the exchange of goods or services; and  (iv) the intention of the parties to create legal relations must be unmistakable.   \r\nI find that there is no dispute regarding the fact that there was an agreement between the parties for the sale of cardboards.  This is because even in the absence of a written agreement to demonstrate the intentions of the parties, it can be reasonably inferred from the facts and the evidence before me, that the parties were tacitly agreed as to the supply and purchase of cardboards.  Indeed, it appears from the evidence before me that the Defendant actually made part payments on invoices raised for supplies made to it by the Plaintiff in execution of their oral agreement.  These invoices are marked herein as Exhibits “B”, “B1”, “B2”, “B3” and “B4”.  Furthermore, an evaluation of the letter issued by the Chief Executive Officer of the Defendant Company, marked herein as Exhibit “D” shows that after the Plaintiff took out the writ of summons against the Defendant, the Defendant, through its Chief Executive Officer acknowledged the debt owed in the total amount of GH¢30,556.97 and seeking to avoid a protracted trial offered to liquidate the balance owed and outstanding by three (3) monthly instalments commencing April 1, 2015.    \r\nSince the statement of defence of the Defendant was struck out and the Defendant also failed to utilise the opportunity to state its case through cross-examination of the Plaintiff’s representative, this court finds as a fact that by the undisputed evidence before the court, the parties reached an \r\n8  \r\nagreement for the supply of cardboards on credit basis, payable after thirty (30) days on every invoice raised.  I am also satisfied that the Defendant admitted owing the Plaintiff in the sum of GH¢30,556.97 as balance outstanding in respect of the part payments it made to the Plaintiff for the supply of cardboards for the period indicated in the writ of summons.  \r\nThe Plaintiff performed its part of the agreement by delivering the cardboards to the Defendant, which Defendant admits accepting.  By the Plaintiff performing its part of the agreement, this court owes a duty to compel the Defendant, on the other hand, to perform its side of the agreement, which is, to pay for the balance outstanding on the invoices raised in the sum of GH¢30,556.97 as at 1st September, 2013 in line with the doctrine of sanctity of contracts.  This doctrine is a general idea that once parties duly enter into a contract, they must honor their obligations arising thereunder.  Thus when qualified parties have consciously entered into a contract, the court must enforce the contract unless there are in existence conditions that when proven will nullify the agreement.  [These conditions include fraud, frustration and any such acts which will prevent the court from indorsing the contract.]  In my view, this doctrine is encapsulated in the provisions of the Sales of Goods Act, 1962 (Act 137), which by its Section 21 provides that “[T]he fundamental obligations of the buyer in a contract of sale are to pay the price and accept delivery of the goods.”  [Emphasis mine.]  In any event, and as stated earlier, this debt was admitted by the Defendant’s Chief Executive Officer in Exhibit “D” and the Defendant must abide by that admission and pay its just debts.   From the evidence adduced in this case and the testimony of Plaintiff’s representative, I am satisfied that it is more probable than not that the Plaintiff supplied the Defendant with the cardboards for which Defendant made part payments leaving a balance due and outstanding in the amount claimed by Plaintiff in its statement of claim with the total indebtedness of the Defendant standing at Thirty Thousand, Five Hundred and Fifty-Six Ghana Cedis and Ninety Pesewas (GH¢30,556.97) as at 1st September, 2013.  I also find that the Defendant, though having admitted to owing this sum of money, failed and/or neglected to pay its just debts to the Plaintiff in spite of several demands made on it by Plaintiff so to do in breach of its obligations under the contract between the parties and in breach of the law.   \r\n9  \r\nFrom the foregoing, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered for Plaintiff in favour of reliefs (a) and (b) as endorsed on its writ of summons.    \r\nI award costs in the sum of GH¢3,000.00 in favour of the Plaintiff against the Defendant.      \r\n        ……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION) COUNSEL:     EMMA OWUSU-MARFO, ESQ. (HOLDING BRIEF FOR ISAAC OSEI BONSU, ESQ.) OF MINKAPREMO & CO., AKOSOMBO CHAMBERS, ACCRA, COUNSEL FOR PLAINTIFF. NO LEGAL REPRESENTATION ON BEHALF OF SUNRIDGE CO. LTD., DODOWA, DEFENDANT.  \r\nCASES REFERRED TO:  \r\nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \r\nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   \r\nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \r\nIN RE ASHALLEY BOTWE LANDS; ADJETEY AGBOSU and OTHERS v. KOTEY and OTHERS [2003-2004] SCGLR 420 at 465 \r\nMAJOLAGBE v. LARBI [1959] GLR 190 \r\nKLUTSE v. NELSON [1965] GLR, 537, SC  \r\nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. ', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'RPC/349/14', '', '', '', '2016-07-26', ''),
(634, 'DANGME RURAL BANK LTD.   VRS   GALLYWOOD FILM VILLAGE', '', 'links/cases/SG-GH LTD v MAUMESS FAIRPLAY LTD AND ANOR.docx.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nThe Plaintiff is a limited liability company, duly registered under the laws of the Republic of Ghana and authorized by the Bank of Ghana to provide universal banking services.  The Defendant, a customer of the Plaintiff bank, is also a company limited by guarantee and incorporated under the laws of Ghana to engage in film production.  \r\nIn the Plaintiff’s statement of claim, as amended, the Plaintiff claims against the Defendant the following reliefs:     “a) The recovery of an amount of GH¢409,681.56 inclusive of interest from the Defendant being the total outstanding balance on two credit facilities of GH¢250,000.00 and GH¢20,000.00 granted to Defendant by Plaintiff in May, 2012 and November 2012 respectively as financial support for the completion of Defendant’s school building project the repayment of which have long expired but Defendant has failed and refused to do so despite repeated demands by Plaintiff. b) Interest on the total outstanding balance of GH¢409,681.56 calculated at 30% per annum from August 2014 till date of final payment. c) Cost inclusive of Counsel’s fees.”  \r\n2  \r\nThe material facts which gave rise to the matter before me are stated in Plaintiff’s amended statement of claim and supported by the documentary evidence adduced by the Plaintiff in support of its case.  It is the case of the Plaintiff bank that it advanced an overdraft facility in the amount of GH¢250,000.00 to the Defendant on or about May, 2012 at the request of the Defendant to assist Defendant complete its school project (hereinafter referred to as the “Overdraft Facility”).  The Overdraft Facility was to attract an agreed interest rate of 30% per annum and was to be fully repaid within twelve (12) months, effective June, 2012 to expire at the end of May, 2013.  See Exhibits “A” and “B”, which are the Letter from William Akuffo, the Managing Director of the Defendant company by which the Defendant applied for the Overdraft Facility and the approval letter issued by the Plaintiff in approval of the Overdraft Facility, respectively.  According to the Plaintiff, the Defendant, sometime in November, 2012, requested for and was granted further a commercial loan of GH¢20,000.00 for three (3) months to expire in February, 2013, (hereinafter, the “Commercial Loan”).  To evidence this transaction, the Plaintiff tendered in evidence Exhibit “C”, the loan application letter written by the Managing Director of Defendant Company, William Akuffo, and Exhibit “D” the commercial loan approval letter dated 15th November, 2012 issued by the Plaintiff.  These two (2) credit facilities are referred to herein, collectively, as the “Credit Facilities”.  \r\nIt is Plaintiff’s case that the repayment periods of the Credit Facilities have long expired with the total outstanding balance of GH¢409,681.56, as at August 2014, remaining due and unpaid by the Defendant.  Plaintiff tendered in evidence Exhibits “E” and “F”, the statements of accounts on the Credit Facilities in proof of the balance outstanding in respect of the Credit Facilities.  Plaintiff further alleged that several repeated demands on the Defendant to pay up its debts were to no avail.  As a result, in August, 2014, it instructed its Solicitors to issue a formal demand notice, Exhibit “G” to the Defendant to demand the repayment of the outstanding balance due.    \r\nIt is the Plaintiff’s final contention that the Defendant has failed, refused and neglected to fulfill its part of the terms and conditions governing the grant of the Credit Facilities and that unless compelled  by this honourable court, the Defendant will continue to default to repay the loans to the detriment of the Plaintiff.    \r\nThe evidence of the record establishes that on 22nd January, 2015, the Defendant entered appearance through its Solicitor, Thomas Acquah, Esq. of Law Temple who filed on 26th February, 2016 a statement of defence to the suit on behalf of Defendant.   \r\nThe following issues were set down for trial after pre-trial settlement failed: 1. Whether or not the repayment of the credit facility of GH¢250,000.00 (Two Hundred and Fifty Thousand Ghana Cedis) and the interest thereon extended to Defendant by Plaintiff in May, 2012 has expired? 2. Whether or not the Plaintiff is entitled to the claims endorsed on the Writ of Summons? \r\n3  \r\n3. Any other issues arising out of the pleadings.   Before delivering my judgment, certain developments that took place during the trial of this case necessitate that I give a brief procedural history of this case.  After attempts at court assisted settlement of the case failed at the pre-trial settlement level, the case was referred to this court to conduct the trial.  On 15th day of March, 2016, this Court granted the Plaintiff leave to amend its statement of claim. The amended statement of claim was filed on the same day and a copy served on the Defendant as evidenced by the Affidavit of Service on the docket before me.  The Defendant however failed to file any response to the Plaintiff’s amended statement of Claim, by way of an amended statement of defence or otherwise.  \r\nIt is noted, further, that neither the Defendant nor its solicitor appeared in court to contest the trial notwithstanding the fact that the Defendant was served with several hearing notices of the scheduled dates for trial as well as Court’s Notes through its Solicitor, as evidenced by the numerous affidavits of service on the record.  A review of the docket provides no evidence as to support a finding that Mr. Thomas Acquah, the Solicitor who entered appearance on the behalf of Defendant, subsequently withdrew his representation of the Defendant in this case.  Furthermore, not only did the Defendant fail to make any officer of the company available to participate in a court assisted audit to reconcile the accounts as between the parties herein, it also failed to comply with the case management orders made by this Court.  In that regard, the statement of defence filed by the Defendant was struck out by the Court on 16th March, 2016 in accordance with Order 32 rule 7A of the High Court (Civil Procedure) Rules, 2004, (CI 47) (as amended) by CI 87.  \r\nIn the circumstance, the only triable issue that is material to the disposition of this suit, in my view, is as follows: 1. Whether or not the Plaintiff is entitled to its reliefs as endorsed on the writ of summons and amended by the amended statement of claim.  \r\nThe general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The court applied the case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the case of FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 the court also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of \r\n4  \r\nhis claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   \r\nSection 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     \r\nFrom the foregoing, therefore, it is clear that for the Plaintiff, to succeed on its claims that it ought to be granted the right to recover from the Defendant the amount of the Credit Facilities that it alleges remain outstanding and due, it assumes the onus of proving its assertions against the Defendant. Plaintiff is therefore duty bound to establish the requisite degree of belief in my mind by adducing enough evidence to show that the likelihood of the circumstances being alleged is more probable than not.  \r\nPlaintiff’s claims and documentary evidence were corroborated by the testimony of Plaintiff’s representative, Mr. Devine Kudjonu, the Credit Manager, given on oath to this court.  The court finds that the Defendant failed to advance any defence in its behalf to controvert the testimony of the Plaintiff’s witness and/or the documentary evidence of the Plaintiff before this court. Indeed, the statement of defence filed by the Defendant was struck out, the Defendant did not file any evidence in support of its case and finally, the Defendant failed to attend court to cross examine the Plaintiff’s witness.  The position of the law on not cross-examining a witness after he has given his evidence in chief, is well settled.  In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus: “In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”  \r\nIn the circumstances the court is left with no option than to believe the claims of the Plaintiff as corroborated by the testimony of its witness and its documents tendered in evidence. In stating thus, I am guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\n5   \r\nThe documentary evidence before the court and the uncontroverted testimony of Plaintiff’s Representative shows that it is not in dispute that the parties intended to create legal relations and their intentions were reduced into a binding contract as between the parties.  In DANIELE CONSTRUCTION v. MABEY & JOHNSON [2006] 4 M.L.R.G. 101 at 116, Akoto Bamfo J.A. stated that:   “An agreement is reached by a process of offer and acceptance and for a determination as to whether parties have reached an agreement, one should find whether there has been a definite offer by one party and an acceptance of that offer by the other, the test being whether the parties have all outward appearances as agreed in the same terms upon the same subject matter”.  \r\nAlso, in the unreported case of NTHC LTD v. ANTWI, (February 4, 2009), the Supreme Court held that:  \r\n“In the instant case, the letter of January 17, 2005 constituted an offer and not an invitation to treat, and that offer was converted into a contract by the plaintiff’s acceptance letter of January 31, 2005. There was, therefore, clearly an intention to create legal relations and the plaintiff’s undertaking to pay the purchase price was consideration enough to result in the formation of a contract.”  \r\nAll the requirements for the existence of a valid contract were present in the relationship between the Plaintiff and the Defendant.  There was agreement as to all the material terms of the agreements governing the Credit Facilities.  Additionally, these four (4) main ingredients were also present; the parties had capacity to enter into the agreements, there was offer and acceptance of the key terms of the agreements on which both parties were ad idem, there was consideration for the services and the intention of the parties to create legal relations could not be disputed.    \r\nExhibits “A” and “C”, which are the letters written by William Akuffo, the Managing Director of the Defendant company by which the Defendant applied for both the Overdraft Facility and the Commercial Loan constituted the offer by the Defendant company which was converted into a contract by Plaintiff bank’s acceptance in the form of the approval letters issued by the Plaintiff in approval of the Overdraft Facility and the Commercial Loan, Exhibits “B” and “D” respectively.  The relevant terms and conditions of the Overdraft Facility were contained in Exhibit “B”, which provided that upon acceptance by the Defendant, the facility would attract an interest rate of 30% per annum and the principal and agreed interest was to be repaid within twelve (12) months to expire in May 2013.  In respect of the Commercial Loan, the material terms and conditions thereof were stated in Exhibit “D” as follows: the loan duration was for three (3) months to expire in February, 2013 and interest on any unpaid principal was to be calculated at 30% per annum.  By \r\n6  \r\nexecuting Exhibits “B” and “D”, under the sub heading “ACCEPTANCE”, the Defendant is deemed to have accepted the foregoing terms and conditions and also accepted to be bound by them.  \r\nI am, therefore satisfied that it is more probable than not that as agreed between the parties herein, the Plaintiff advanced to the Defendant the sums of money in the amounts claimed by the Plaintiff in its statement of claim with the total indebtedness of the Defendant on the Credit Facilities standing at Four Hundred and Nine Thousand, Six Hundred and Eighty One Ghana Cedis, Fiftysix Pesewas (GH¢409,681.56) as at 1st August 2014.  See Exhibits “E” and “F”, the statements of accounts on the Credit Facilities tendered in proof of the balance outstanding in respect of the Credit Facilities.    \r\nFurther, I am satisfied that the Plaintiff has adduced sufficient evidence to support a finding that the Defendant failed, refused and neglected to fulfill its obligations under the terms and conditions governing the grant of the Credit Facilities.  The Defendant failed to pay its stated indebtedness upon the expiration of both Credit Facilities and it refused to pay up in spite of the several demands made on it by Plaintiff so to do as evidenced by Exhibit “G”, the formal demand notice issued by Plaintiff’s Solicitors demanding payment of the Defendant’s outstanding debt, which was due and payable.  In holding thus, I would like to borrow the words of Acquah, JSC (as he then was) which captures succinctly the obligation of a borrower to repay the loan it has contracted in the case of BARCLAYS BANK (GHANA) LTD v SAKARI [1997-98] 1 GLR 746 - 767:  \r\n“Now, what is the obligation created under this loan contract, a breach of which would entitle the other to sue? The obligation of the bank was to advance the money, which it did, and that of the defendant was to repay the loan together with interest, if any.  This is the obligation of the parties under this loan contract, and indeed, almost all loan contracts. When a bank lends money to its customer, the obligation of the customer is to repay the loan. If the loan is sought for, let’s say, a business venture, and the business flops resulting in massive financial loss to the customer, this misfortune, though may be due to no fault of this customer, does not change the nature of the obligation of the customer to repay the loan he had contracted for.  He will still be obliged to fulfill his obligation.  Thus, the obligation of a borrower in a loan contract as opposed to other types of contracts, is to repay the loan and not the performance of the purpose for which the loan was sought.”   \r\nThe breach of the Defendant’s obligations under the terms and conditions of the Credit Facilities thus gave the Plaintiff the right to sue for the recovery of the sums claimed.  I therefore find that the Plaintiff has met its burden of proving that the Defendant owes it the sums of money claimed as per the reliefs (a) and (b) as amended by the amended statement of claim.    \r\n7  \r\nFrom the foregoing, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered for Plaintiff in favour of reliefs (a) and (b) as endorsed on its writ of summons as amended by the amended statement of claim.    \r\nI award costs in the sum of GH¢40,000.00 in favour of the Plaintiff against the Defendant.    .  \r\n                                                                                                    (Sgd)             ……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)       COUNSEL:     MARTIN MIREKU, ESQ., OF ABORIGINES LEGAL CONSULT, COUNSEL FOR PLAINTIFF THOMAS ACQUAH, ESQ., OF LAW TEMPLE, COUNSEL FOR DEFENDANT   \r\nCASES REFERRED TO:  \r\nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \r\nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   \r\nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \r\nTAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969 \r\nMAJOLAGBE v. LARBI [1959] GLR 190  \r\nKLUTSE v. NELSON [1965] GLR, 537, SC  \r\nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\nDANIELE CONSTRUCTION v. MABEY & JOHNSON [2006] 4 M.L.R.G. 101 at 116 \r\nNTHC LTD v. ANTWI, (Unreported, February 4, 2009, Supreme Court) \r\nBARCLAYS BANK (GHANA) LTD v. SAKARI [1997-98] 1 GLR 746 - 767 ', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/302/14', '', '', '', '2016-06-14', ''),
(635, 'SOCIETE GENERALE GHANA LTD.  VRS   1. AL-SAFA INTERNATIONAL TRADING LTD 2. MURKTAZA KHAN ', '', 'links/cases/SOCIETE GENERALE v AL-SAFA LTD.pdf', 'Yes', '', '2016', 'High Court', ' JUDGMENT  \r\nPlaintiff claims jointly and severally the following reliefs endorsed on its writ issued against the defendants :  \r\ni. The total sum of GHc369.209.68 being the outstanding balance and accrued interest as at 31st March, 2014 on an overdraft and revolving loan facilities granted to the 1st defendant by the plaintiff.  \r\nii. Interest at  the prevailing bank rate  on the said GHc369,209.68 from 1st April, 2014 till the final payment.  \r\niii. Further or other reliefs.  \r\nIn an eight paragraph statement of claim the plaintiff avers that on the 5th of March, 2014 upon 1st defendant’s request it approved and granted an overdraft facility of Ghc200.000 and a revolving loan facility of GHc150.000.00 to the 1st defendant which was to be retired within twelve months of disbursement. The loan granted had an interest rate of 25.5% per annum collectible monthly in arrears and a penal rate of 6% above the interest rate. Besides, in the event of expiration of the loan any amount \r\n \r\n2  \r\nof the loan due and unpaid was to attract another penal rate of 35.5% per annum. 2nd defendant agreed to guarantee the due repayment of the loan which he has failed to do and hence the reliefs it seeks before the court. Judgment in default of appearance had been taken against the 1st defendant and what is left to be determined is in respect of the guarantee plaintiff claim was issued by 2nd defendant. 2nd defendant filed an appearance and a defence to the claim.  \r\n Accordingly the pre trial Judge stated two main issues for determination and these were: 1. Whether or not the plaintiff is entitled to an amount of Ghc 369,209.68 or any part thereof 2. Whether or not the interest charged on the facilities is unconscionable.  \r\nAs part of the preparations towards the trial the court ordered the plaintiff and 2nd defendant to file their respective documents and witness statements. Plaintiff duly complied and filed same. 2nd defendant failed to comply and the court invoked its powers under Rule 7A of Order 32 of the High Court (Civil Procedure) Rules as inserted by the High Court (Civil Procedure) Amendment Rules, CI 87 to strike out the statement of defence of the 2nd defendant. As same had been struck out the court does not find it as serving any useful purpose to recount what 2nd defendant claims to be his defence in the action as there is none at the moment.  \r\nThe case management conference nonetheless proceeded with the admission of the witness statement of the plaintiff’s representative, Diana Oppong as the evidence in chief. Plaintiff then tendered an overdraft facility agreement for Ghc200.000 as Ex ‘A’, its terms and conditions as A1’, a deed of assignment as Ex ‘B’, the guarantee agreement signed by 2nd defendant as Ex ‘C’, Ex ‘D’ is the statement of account of the 1st defendant showing its level of indebtedness whiles the last document of plaintiff is a demand letter from the solicitors of plaintiff to defendants as Ex ‘E’. Plaintiff’s representative mounted the box and her witness statement and the exhibits were formally admitted into evidence. As 2nd defendant was fully aware of the date when the matter was adjourned for trial to commence because 2nd defendant’s representative was in court and is deemed to have duly informed 2nd defendant of what transpired in court. In the absence the 2nd defendant to be in court to  cross examine \r\n \r\n3  \r\nthe plaintiff’s representative, the court discharged Plaintiff’s representative, Diana Oppong as a witness.  It is the rule that the failure by a party to cross examine a witness on vital matters testified to is deemed to be an admission of those matters and a party need not call further evidence on that. See the following cases: FOLI v AYIREBI [1966] GLR 627; BILLA v SALIFU [1971] 2 GLR 87; BEDIAKO v THE STATE [1963] 1 GLR 48; LANQUAYE v THE REPUBLIC [1976] 1 GLR 1; TAKORADI FLOUR MILL v SAMIR [2005-2006] SCGLR 882; BANDA v The REPUBLIC [1975] 1 GLR 52.  \r\nPlaintiff’s testimony and documents evidencing its claim to the reliefs were not challenged and examining the documents the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. Judgment is accordingly entered for the plaintiff against the 2nd defendant in respect of its claim of an amount of Ghc369,209.68, interest on the said amount at the prevailing bank rate from 1st April, 2014 till date of final payment.   I will award cost of Ghc20.000.00 in favour of the plaintiff against 2nd defendant.         \r\n              (Sgd.) Eric K. Baffour, Esq. Justice of the High Court           ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'BFS/13/2014', '', '', '', '2016-04-29', ''),
(636, 'SONIAG COMPANY LTD  VRS   BOND FINANCIAL SAVINGS AND LOANS LTD', '', 'links/cases/SONIAG CO. v BOND FINANCIAL.pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nBy this application Plaintiff seeks for leave to file a rejoinder to the Plaintiff’s reply and defence to his counterclaim. In an affidavit in support of this application the deponent has noted that particulars that ought to have been particularized in the statement of claim was not done and was accordingly raised in the statement of defence by drawing the attention of the plaintiff to it. Subsequently in plaintiff’s reply to the statement of defence and a counter claim, plaintiff has supplied those particulars. And that with the supply of those particulars, it thinks that the nature of its defence ought to shift in answer to the particulars now provided.  \r\nDefendant has vehemently resisted the application for a number of reasons. One that the application is unwarranted by the rules of court and only a calculated attempt to enable plaintiff substitute a new defence to the statement of defence filed by him and that if particulars had not been provided, defendant could have asked for better and further particulars. And again that if plaintiff was of the opinion that it needed to file any further pleadings it was entitled to apply for leave to amend the statement of defence.  \r\nIt is provided by Order 11 Rule Rule 4 that  \r\n \r\n2  \r\n“No pleading subsequent to a reply shall be filed except with leave of the Court”.  What it means is that a rejoinder or any further pleadings being in the nature of an amendment or otherwise may be available only with leave of court as the plaintiff/applicant is seeking. I must state that in terms of the counter claim by defendant, with a defence filed by the plaintiff, the defendant is entitled as a matter of right to file a reply to the defence to the counter claim. For it has always been the law as noted as far back in the case of AMON v BOBBETT (1889) 22 QBD 543 where Browne LJ noted that:    “a counter claim is to be viewed and to be treated for all purposes for which justice requires it to be so treated as an independent action”.  \r\nSee also Dotse JSC in the case of JASS CO. LTD v APPAU [2009] SCGLR 269. And if the defendant intended to respond to any averment made in the defence to the counter claim, the defendant was the plaintiff and the plaintiff the defendant as far as the counter claim was concerned and need no leave to file any process.  \r\nI reckon that the present action of the defendant has become necessary due to what the defendant claims to be certain averments that have been made specifically in the reply for which he needs leave to respond. It is true that with the close of pleadings seven days after the delivery of a reply, a party who intended to file any further pleadings was to come for leave to file same, nonetheless that does not foreclose the right of a party to proceed for leave for the purpose of filing a rejoinder to averments made in a reply which a defendant has not had the opportunity to respond to same more so when those averments are being made for the first time in the reply.   \r\nIf it is the claim of the applicant in seeking to bring to the fore all the issues in controversy but not by way of amendment but through an answer to the reply, I do not think that, I will be exercising my discretion judiciously if I were to refuse this prayer. This will not do any harm to the case of the plaintiff neither will it undue delay the trial of the action.  \r\nI accordingly grant defendant/applicant leave to file a rejoinder to plaintiff’s reply within five days failing which the order of the court lapses. \r\n \r\n3   \r\nI will award cost of Gh¢400.00 in favour of the plaintiff.       \r\n          (Sgd.) Eric K. Baffour, Esq. Justice of the High Court    \r\nRepresentations:   \r\nPlaintiff represented by Sonia Antwi – Present  Defendant Represented by Emmanuel Neequagye – Present  Felix Quartey, Esq. for Plaintiff/Respondent – Present  K. Fredua–Agyeman Danso, Esq. for Defendant/Applicant –Present   ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'CM/0050/16', '', '', '', '2016-06-16', ''),
(637, '1. SOPHIA JACKSON 2. FELIX JOJO JACKSON  VRS:  EMMANUEL PAA KWESI MORTON', '', 'links/cases/SOPHIA JACKSON.pdf', 'Yes', '', '2016', 'High Court', ' J U D G M E N T  \r\nParties: Plaintiff absent. Defendant present.  Counsel: George Eshun with Emma-Jean Martin for Defendant present  \r\nJudgment is entered in favour of Defendant on his Counter-Claim. Grant of Letters of \r\nAdministration to Defendant to administer the estate of COMFORT OLIVE JACKSON is \r\nhereby confirmed. The Defendant is declared the sole beneficiary of House Number \r\nC37, Awudome Estates, Kaneshie. It is further ordered that the property be retrieved from the 2nd Plaintiff who is a trespasser and the Plaintiffs and their agents and assigns \r\nare restrained from interfering with the administration of the estate of deceased by \r\nDefendant.   \r\nCost of GH&#8373;1,000.00 is awarded to Defendant. \r\n           \r\n                H/L DORIS BEMPONG MRS. JUSTICE OF THE HIGH COURT \r\nE.L…….. ', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BFA 47/2015', '', '', '', '2016-04-29', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(638, 'THOMAS VRS  SALORMEY MENSAH', '', 'links/cases/THOMAS MENSAH VRS SALORMEY MENSAH.pdf', 'Yes', '', '2016', 'High Court', ' JUDGMENT The Petitioner herein, by a petition filed on the 21st of January, 2015 seeks a dissolution of his marriage to the Respondent on the ground that the marriage celebrated between the Parties has broken down beyond reconciliation.  \r\nThe said Parties were married under the ordinance on the 27th of September 2004 at the Tema Municipal Assembly.  After the marriage they cohabited at house number B/319/22 Agya Pa Ye, North Kaneshie. Though exhibit 1 being the certificate of marriage, tendered by Respondent, states the respective occupations of Petitioner and Respondent as cashier and teacher, the pleadings disclose that Petitioner works as a shop attendant and the Respondent  described as a matter. There are two children of the marriage namely Genevieve Aboagyewaa and Charlotte Sakyiwa whose ages were correctly stated as 9 and 7 respectively by Respondent in her answer and not 12 and 9 as stated in the petition.  The petition further discloses that there have been previous proceedings between Parties to the said marriage at the Family and Juvenile Court, Ministries, Accra relating to the maintenance of the children of the marriage. \r\nIn the petition, Petitioner prays this Court for the following reliefs: \r\n1. That the marriage celebrated between petitioner and respondent be dissolved. 2. That the Petitioner be given reasonable access to the children. 3. That the Petitioner undertakes to put into use money given to her to maintain the children of the marriage and ensure their wellbeing in terms of educational provisions, medical provisions and their general upkeep solely for these purposes. \r\n2  \r\n4. Any other order(s) as this Honourable Court may deem meet. \r\nThe Respondent, for reasons which remain unclear to this Court, entered Conditional Appearance to the petition on the 16th of February 2015 after which she filed an answer and cross petition on the 10th of March 2015. \r\nIn proof of his claim that the marriage between the Parties has broken down beyond reconciliation, Petitioner avers that the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with her and the Respondent had caused him much anxiety, distress and embarrassment. The relevant particulars of unreasonable behaviour of Respondent are given as follows. \r\n1. The Respondent has on numerous occasions heaped insults on the Petitioner and his family in public and ridiculed him about his joblessness  2. The Respondent abandoned the matrimonial home and duties and was most often found in the company of a male counterpart in the neighbouring house. 3. The Respondent has changed her marital name and is using the name of an unknown man  4. The Respondent travels in and out of the jurisdiction without informing the Petitioner 5. Upon the slightest misunderstanding the Respondent will hire thugs to attack and beat up some of the tenants in the family house where the couple lived. 6. The Petitioner says they have lost affection for each other and the union is only an arrangement of convenience to ensure the best interest of the children.”  \r\nIn paragraph 7 of her answer and cross petition, Respondent admits that the marriage between the Parties has broken down beyond reconciliation but blames Respondent for the unfortunate state of affairs. In denying the particulars of unreasonable behaviour enumerated in the petition, she explained that any expression of concern on her part regarding Petitioner’s refusal to find a job was always met with insults and sometimes physical assault. Respondent averred that Petitioner was in the habit of going out to smoke marijuana and returning home to terrorise Respondent sometimes in the presence of Respondent’s customers. The conduct complained of involved the Petitioner calling Respondent names like prostitute in public, attempting to strangle Respondent to death in the presence of the children of the marriage, throwing the belongings of the Respondent out of the matrimonial home and persistently locking out not only the Respondent but the children of the marriage, leaving them at the mercy of mosquitoes in the cold of the night. It is the case of Respondent that it had to take the intervention of DOVSU for Petitioner to allow them back into the home. Both the Darkuman police and DOVSU in light of Petitioners violent disposition advised her to seek shelter elsewhere in order to save her life \r\n3  \r\nand limb. At the time of filing the answer Respondent was lodging with a friend per the advice of these two bodies. \r\nShe lamented that Petitioner who was doing everything within his power to eject her from the matrimonial home had together with his two sisters namely Charlotte Amakye and Nana Ama, sued her in Court seeking to eject her from the matrimonial home and demanded that she remove the container in which she sells her drinks, banku and tilapia (to raise money for the children’s upkeep) from the frontage of the matrimonial home. In furtherance of his bid to eject her, Petitioner had approached the father of Respondent demanding that he comes to collect Respondents belongings from the matrimonial home as he is no longer interested in the marriage.  \r\nAt the hearing of the petition, the Petitioner testified that the parties, otherwise enjoyed a peaceful marriage until he lost his job.  It was then that Respondent’s attitude suddenly changed towards him. He accused Respondent of then forming inappropriate liaisons with other men and even changing her marital name.  He tendered exhibit B being a facility letter addressed to one Salomey Woyee as evidence of the fact that Respondent had changed her name during the subsistence of the marriage. There was yet another charge relating to the unruly behaviour of customers who patronized the Respondent’s drinking spot.  The Petitioner tendered in evidence Exhibit C, being a medical report issued to one George, a tenant in Petitioner’s family house who was allegedly assaulted by one of Respondents’ customers resulting in the said tenant terminating his tenancy. He admitted that the Parties prior to the instant petition had appeared before the Family and Juvenile Unit in Accra arising out of his failure to maintain the children for 5 years and tendered EXHIBIT A being the ruling of the Court ordering him to pay part of the rent for the accommodation of Respondent and the children of the marriage.  Petitioner’s testimony in Court was however silent on his allegation that Respondent travels in and out of the jurisdiction without informing him. \r\nThe Respondent in her evidence in chief denied all the allegations of Petitioner and blames all their marital problems on the constant smoking of marijuana by Petitioner and on his refusal to find a job to enable him assist her financially in the education and general upkeep of the children of the marriage.  She tendered in evidence EXHIBITS 1 and 2 being copies of the said application for maintenance filed at the District Court praying for an order for Petitioner to pay school fees among other reliefs. The Petitioner pursuant to the order paid partly for the accommodation of Respondent and the children but has refused to comply with the Court’s order for maintaining the children and for payment of their school fees and medical expenses after making an initial payment of GH¢200 in 2014. She explained that \r\n4  \r\nshe had been driven into cross-petitioning for divorce arising out of the incessant threats, physical, emotional, and verbal abuse she suffers at the hands of Petitioner. \r\nBy the provisions of the MATRIMONIAL CAUSES ACT, 1971, ACT 367, a Petitioner to succeed in obtaining a decree of divorce must first satisfy the Court of one or more of those facts set out in SECTION 2(1) of the Act to prove that the marriage has broken down beyond reconciliation.  This will mean that a Petitioner for a decree of divorce is not only required to plead facts showing a total breakdown of the marriage but to prove same. In the words of OSEI –HWERE, J in DANQUAH V DANQUAH (1979) GLR, the Court will exclude facts pleaded but not proved.  \r\nThe Parties have made a miscellany of allegations against each other but I do not intend to make a finding in respect of each and every one of the said allegations except those I consider relevant to the grant or refusal of the respective prayers of the parties.  \r\nThe main ground upon which the Petitioner relies in proof of the fact that the marriage has broken down beyond reconciliation is the fact that Respondent has behaved in a way that he cannot be expected to live with her. Chief among the charges levelled against Respondent is that of general promiscuity on the part of Respondent. The Petitioner accuses Respondent of having affairs with other men. One name that came up during crossexamination of the Respondent on this issue was that of Collins Baffour.  According to Counsel for Petitioner, the Respondent together with the said Collins Baffour are supposed to have been arrested by the Kotobabi police from a room in Kasoa. Counsel was emphatic that the two were arrested because they were caught alone in a room at Kasoa. The Respondent vehemently denies this allegation and insists that Collins Baffour is only a friend that she was involved in some loan transaction with sometime ago and as a result of which she was invited by the police and not arrested from a room as Counsel sought to suggest. Counsel concludes based on this allegation that Respondent was involved in an illicit relationship with Collins Baffour.  Unfortunately, this Court is unable to infer adultery on the part of Respondent based on these unsubstantiated allegations which have been denied by Respondent. In the case of KLAH V PHOENIX, INSURANCE, 2012 2 SCLR @ 1139 THE SUPREME COURT  held that when an averment has been positively denied it was incumbent on the Party asserting those averments to lead evidence  to substantiate the Party’s claims \r\nCounsel for Petitioner during cross examination of Respondent alluded to certain statements that were given at the police station that go to prove that Respondent and the said Collins Baffour were arrested after having been caught being alone in a room. These statements were neither tendered in Court nor the police who are supposed to have effected \r\n5  \r\nthe arrests called forward to give evidence in this Court.  In any event, I am yet to come across a law that authorizes the police to arrest anyone on suspicion of being in the process of or having committed adultery.  It is trite learning that the burden of proving adultery lies on the Party alleging it.  Adultery, being a matrimonial offence that is grave and weighty ought to be proved with a very high standard of probability though not necessarily to the standard required in criminal trials SEE THE DICTUM OF SARKODEE J IN THE CASE OF ADJETEY V ADJETEY ( 1973)1GLR 216. It will therefore be unsafe for this Court to find adultery proven against Respondent on the basis of the uncertain and uncorroborated evidence of Petitioner and I so find the allegation of adultery levelled against Respondent unproven. Linked to this charge of adultery is the accusation that Respondent has changed her marital name and has presently assumed the name of another man.  In support of this allegation Petitioner relies on exhibit being a facility letter addressed to one Salomey Woyee. The Respondent admits to using the said name which she claims to be one of her maiden names. I note however that this fact was never pleaded by Respondent and exhibit 1, the marriage certificate tendered in evidence by Respondent does not list the name Woyee as one of the names of Respondent. This leads me to conclude that Respondent must have had a hidden motive for using the said alias. It appears that respondent is in the habit of using different names for different purposes for unknown reasons but does this entitle one to conclude that she has assumed the name of another man? There is no evidence before this Court corroborating Petitioner’s bare assertion that the name Woyee belongs to a man who impliedly is in a relationship with Plaintiff.  As stated in the case of MAJOLAGBE V LARBI (1959…. “proof in law is the establishment of an averment by proper legal means, in other words, the establishment of an averment by admissible evidence”.  A simple bare assertion will not suffice. I therefore hold that Petitioner has failed to establish that Respondent is currently using the name of “an unknown man”. I now turn to the plaint of Petitioner regarding the unwholesome conduct of Respondent in the matrimonial home which he shares with his other siblings, notably his two sisters whose names have been given as charlotte Amakye and nana Ama. Petitioner alleges that the insulting behaviour of Respondent is not only towards him but extends to his sisters as well. The evidence on record paints a picture of extremely strained relations between Respondent on the one part and Petitioner and the rest of his family on the other.  The Petitioner attributes the problems in the marriage to the insolence of the Respondent since he lost his job and Respondent accuses Petitioner of being responsible for the breakdown in the marriage by his acts of violence, abuse of marijuana and wilful neglect to care for the children of the marriage.  Though I do not hold Respondent totally blameless for the problems in the marriage, I find from the evidence that Petitioner is mainly to blame for the current state of affairs between the parties. \r\n6  \r\nPetitioner himself made the following admissions during cross-examination. \r\n Q: you have on many occasions called your wife a prostitute \r\nA: Yes, I did not insult her in court but I have said so but I have an explanation. I do not   remember saying so in court but when we quarrel we insult each other and say a number of things to each other. \r\nQ:  One of the issues that leads to quarrels between you is smoking. \r\nA:  it is not smoking that is destroying the marriage  \r\n Q: you return home late after smoking marijuana and your wife complains that is what is causing the problem. \r\nA: Not true because she knew me before she married me.  \r\nSo she cannot say it is because of this that the marriage has broken down. \r\nIn respect of Respondent’s allegations pertaining to his violent conduct Petitioner had this to say. \r\nQ:  It is as a result of the constant threats on your part that Respondent was advised not to sleep there (in the house) \r\nA:  I agree but I did not ask her not to sleep in the house. \r\n     I put it to you that you encouraged your sisters to maltreat your wife \r\nA: Not true, my sisters know what goes on. \r\nQ: You do not love Respondent anymore. \r\nA:  Yes. \r\n Q: The Respondent’s family, the police DOVSU and even the District Court have all intervened in   this marriage but failed. \r\n      That is because of your intransigence to resolve the matter. \r\nA:  Yes. \r\nQ:  You do not even maintain the children \r\nA:  I disagree. I maintained them until 2010 when I lost my job.  I did not have money but she was helping but I give her money occasionally I have even paid fees recently. \r\n7  \r\nIt is quite clear that, the responses of Petitioner under cross examination completely corroborate the evidence of Respondent regarding the Petitioner’s conduct.  In addition to the above admissions, Petitioner admits in his evidence in chief to locking out Respondent and the young children of the marriage out at night and to throwing out her belongings during a quarrel.  \r\nThe conduct of Petitioner in my view falls far short of that of a reasonable father and husband. I find his conduct such as the locking out his own young children at night not only cruel but reprehensible and driven by an intention to get Respondent and the children of the marriage out of the matrimonial home.  I do not think the petitioner’s sisters for instance would have had the impetus to sue for the ejectment of Respondent from the matrimonial home if they did not have the blessing of Petitioner to do so.  After all, the evidence shows that this is a family house to which they are all equally entitled. I am at a loss to understand how Petitioner who laments that he is unable to maintain his children because of his unemployment should put impediments in the way of Respondent as she strives to earn a living for the benefit of the family as a whole. Petitioner accuses Respondent of hiring thugs to brutalise tenants in the said house and appears to rely on Exhibit C, a medical form issued to one George Kacou as evidence of this fact.  There is however nothing in the said exhibit that links Respondent to the said incident. This Court would have expected the Petitioner given his financial situation to have exercised some patience and restraint, even if truly provoked by Respondent, if for nothing at all, in the interest of the children of the marriage. In light of the above I am not satisfied that a proper case has been made out by the Petitioner in support of his claim that it is the Respondent who has behaved in a way that he cannot be expected to live with her. \r\nThe pertinent issue however is whether this court is satisfied upon the evidence led as required by SECTION 2(3) OF THE MATRIMONIAL CAUSES ACT that the marriage has broken down beyond reconciliation. The evidence on record shows that the Parties have not lived as husband and wife for the past 3 years. Under SECTION 2(d) OF THE MATRIMONIAL CAUSES ACT, this is a factor listed as proof of breakdown of a marriage. This Court referred the parties to conciliator for an attempt at settlement to no avail, it is quite obvious that the marriage between the Parties has irretrievably broken down as the Parties themselves have told this Court. I accordingly grant the decree for divorce prayed for by Petitioner and consented to by Respondent. As prayed for by Petitioner, I grant custody of the two children of the marriage, namely Genevieve Aboagyewaa Mensah and Charlotte Sakyiwa Mensah to Respondent with reasonable access to Petitioner.  It is on record that Petitioner is currently gainfully employed and in his relief (iii) Petitioner prays the Court to order Respondent to undertake to apply any monies given her by \r\n8  \r\nPetitioner towards the education, medical and general upkeep of the children. The history of this case does not give me cause to think that Respondent who has been solely responsible for all expenses relating to the children of the marriage for sometime now will misapply any monies given her by Petitioner. I accordingly grant the Respondent’s prayer for monthly maintenance of GH¢200 for the two children of the marriage which Petitioner accepts. Additionally, per his prayer in relief (iii) Petitioner shall be responsible for the payment of school fees, medical bills feeding fees of the children of the marriage. The Respondent should bear expenses relating to their clothing. As regards accommodation, Petitioner is hereby ordered to pay half the cost of providing accommodation for the children of the marriage. The Respondent in her Cross-Petition prays for a lump sum payment of GH¢20,000.00.  The evidence before this Court which stands undisputed is that, the Petitioner who has been unemployed for a considerable period only gained employment as an assistant in his sister’s shop recently.  SECTION 19 OF THE MATRIMONIAL CAUSES ACT enjoins this Court in making an order for financial provision to consider the living standard and circumstances of the Parties.  SECTION 20 also stipulates that such an award must be such as the Court considers just and equitable.  I am of the opinion that the demand by Respondent for GH¢20,000.00 is rather on the high side given the circumstances of Petitioner and in view of his other obligations towards the children of the marriage. \r\n I therefore award a lump sum payment of GH¢5,000.00 in favour of Respondent to be paid by Petitioner.   \r\nEach Party to bear their own costs. \r\n[SGD] MRS. AKUA SARPOMAA AMOAH                     JUSTICE OF THE HIGH COURT  \r\naey/… ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDMC 158/2015', '', '', '', '2016-02-22', ''),
(639, '1. THOMAS POTH, 2. P & P GMBH VRS. 1. NANA KWAME BEDIAKO  2. WONDA WORLD PROPERTIES LTD  ', '', 'links/cases/THOMAS POTH RULING.pdf', 'Yes', '', '2016', 'High Court', ' R U L I N G  \r\nI take notice of the fact that the Plaintiff/Respondent had ample opportunity afforded to them by the Court to oppose the application on matters of fact but spurned  that opportunity from the affidavit evidence and the pleadings, I do not think that the Defendant/Applicant has admitted owing the monies being claimed by the Plaintiffs.   \r\nThe 1st Respondent is not ordinarily resident in Ghana and neither is the 2nd Plaintiff a Ghanaian company and so also is the 3rd Plaintiff who there is affidavit evidence that she once jumped bail.  Be that as it may, I think the Defendant/Applicants have made out a case for the Plaintiff/Respondent to provide security for cost so that at the end of the trial if and only if the Defendant succeeds in this action, their victory does not become an empty victory on paper.   \r\nThe Applicant is asking for $200.00 as security for cost. No known accurate mathematical basis has been given for making such a demand for $200.00 as security for cost and as \r\n3  \r\nDefendants themselves have not made any counterclaim to that effect what then comes to be determined should be a fair figure to cover for the cost of this litigation.   \r\nI accordingly grant the application and order the Plaintiffs to provide a security to the tune of $50,000.00 or its cedis equivalent. I order that the Plaintiffs comply within a period of 30 days.     \r\n                      (SGD.) JUSTICE ERIC KYEI BAFFOUR  JUSTICE OF THE HIGH COURT      \r\nREPRESENTATIONS:  \r\n3RD PLAINTIFF/RESPONDENT PRSENT & REPRESENTS OTHER PLAINTIFFS/RESPONDENTS  \r\nEUDENA BAAH-DUODU FOR KWEKU PAINTSIL, ESQ FOR THE PLAINTIFFS/RESPONDENTS – PRESENT   \r\nBOBBY BANSAN, ESQ FOR 1ST & 2ND DEFENDANT/APPLICANT – PRESENT  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'BDC/23/15', '', '', '', '2016-02-17', ''),
(640, 'UNIVERSAL MERCHANT BANK LTD.  VRS   AKOSOMBO TEXTILES LIMITED ', '', 'links/cases/UNIVERSAL MERCHANT v AKOSOMBO TEXTILES.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff claims the following reliefs endorsed on its writ issued against the defendant  \r\ni. Recovery of the sum of Gh¢2,092,984.85 (Two Million, Ninety two Thousand, Nine Hundred and eighty-Four Ghana cedis, Eighty-Five Pesewas)  \r\nii. Interest the sum of Ghc¢,092,984.85 at the rate of 5% per annum above the prevailing base rate of the Plaintiff from 31st July, 2014 till date of final judgment.  \r\niii. Recovery of the sum US$1,104,732.94 (One Million, One Hundred and Four Thousand Seven Hundred and Thirty-Two United States Dollars, NinetyFour Cents) or its cedi equivalent.  \r\niv. Interest on the sum of US$1,104,732.94 at the rate of 12% per annum  from 31st July, 2014 till date of final payment  \r\nv. Judicial sale of the mortgage/charged properties in satisfaction of the judgment debt  \r\n \r\n2   \r\nIn the statement of claim that accompanied the writ, plaintiff claims that it disbursed a number of loan facilities to the defendant and as defendant could not meet up with the repayments schedules the loans were restructured for the defendant. That the restructured loan facilities came to an amount Gh¢1,956,250.00 and an overdraft facility of US$1.000.000.00. The restructured facility had a retirement date of 31st December, 2014. To plaintiff as defendant defaulted it called in the facilities and demanded the repayment of the entire sum of monies. And yet the defendant has failed to repay the monies claimed together with the penal interest as agreed between the parties per the agreement they entered into and defendant will not repay the facilities unless compelled by the court to pay. Defendant in its statement of defence and counterclaimed denied the claim of the plaintiff claiming that plaintiff unduly delayed in the disbursement of the loan thereby defeating the purpose for which the loan was to be provided it as well as exposing it to third party contractual obligations. And as plaintiff frustrated the timelines set it lies ill in the mouth of the plaintiff to complain about the defendant’s inability to service the loans on the agreed terms between the parties. Defendant also denied any entitlement of penal charges to the plaintiff. Defendant accordingly counterclaimed for the following reliefs:  \r\ni. A declaration that the Plaintiff failed, refused and/or neglected in discharging its financial obligations to the Defendant herein in terms of the timely disbursement of the loans, the subject matter in dispute.   \r\nii. A further declaration that as a direct result of the Plaintiff’s failure, refusal and/or neglect to honour its obligations aforesaid, the Defendant suffered consequential financial loss.   \r\niii. Damages for consequential loss of profit as a direct result of the Plaintiff’s failure, refusal and/or neglect in discharging its financial obligations to the Defendant herein in terms of the timely disbursement of the financial arrangements.   \r\niv. A consequential order that the loss of profit so found and ascertained by the \r\n \r\n3  \r\nCourt shall be used as a set-off against what is lawfully due the Plaintiff from the Defendant.  \r\nv. An order for accounts into the loans advanced to the Defendant by the Plaintiff and the restructured one dated 5th June 2011 to determine the Defendant’s true indebtedness to the Plaintiff.   \r\nvi. A declaration that the Plaintiff is not entitled to exact the penal charge of 5% on the loans advanced to the Defendant by the Plaintiff by reason the late disbursement of same and their adverse effect on the Defendant’s production target and profits.  \r\nvii. Damages for breach of contract  \r\nviii. Costs including solicitor’s fee assessed at 15% of the Plaintiff ‘s claim    \r\nAs the pretrial conference failed to settle the matter between the parties the following were set down for trial by the pre trial Judge:  \r\n1. Whether or not defendant is indebted to plaintiff in the sum of Gh¢ 2,092,984.85 and US$1,104,732.94  \r\n2. Whether or not Defendant failed, refused and/or neglected to disburse the loans timeously to the Defendant in breach of its financial obligations to the defendant. 3. Whether the defendant suffered consequential financial loss of profit as a result of the Plaintiff’s failure refusal and/neglect to honour its obligations aforesaid.  \r\n4. Whether or not plaintiff’s action is premature.  \r\n5. Whether or not Plaintiff is entitled to claim the penal charge of 5% on the loans advanced to defendant  \r\n6. Whether or not Plaintiff is entitled to the reliefs sought  \r\n \r\n4  \r\n7. Whether or not defendant is entitled to its counterclaim  \r\nAs part of the preparations towards the trial the court ordered the parties to file their respective documents and witness statements on the 25th of January, 2016. Despite prove of service of the orders of the court and hearing notice on the defendant it failed to comply with the orders of the court. The court extended the period for defendant to comply with its orders. With the persistent failure of the defendant to file the processes the court invoked its powers under Rule 7A of Order 32 of the High Court (Civil Procedure) Rules as inserted by the High Court (Civil Procedure) Amendment Rules, CI 87 to strike out the statement of defence and counter claim of the defendant.   \r\nThe case management conference, nonetheless proceeded with the admission of the witness statement of the plaintiff’s representative, Dacosta Owusu-Duodu as the evidence in chief. With it were tendered and admitted the following: Ex ‘A’ being a facility agreement between the parties dated the 5th of May, 2013. A demand notice for the two amounts of Gh¢1, 956,250.00 and US$1,000.000.00 as Ex ‘B’ whiles Ex ‘C’ is a proposal made by defendant of its intent to liquidate its indebtedness. Account statements of defendant were also tendered as Ex ‘D’.  \r\nPlaintiff’s representative mounted the box and his witness statement and the exhibits were formally admitted into evidence. As defendant was fully aware of the date when the matter was adjourned for trial to commence because defendant’s counsel was served with a hearing notice and the affidavit of service duly filed before the court. The court adjourned to the 5th of July, 2016 and ordered another hearing notice to be served on counsel for defendant to appear to cross examine the plaintiff’s representative. Zoe, Akyea & Co were again served but failed to appear to cross examine Dacosta Owusu-Duodu.  In the absence of the defendant to be in court to cross examine the plaintiff’s representative, the court discharged Plaintiff’s representative, as a witness.  It is the rule that the failure by a party to cross examine a witness on vital matters testified to is deemed to be an admission of those matters and a party need not call further evidence on that. See the following cases: FOLI v AYIREBI [1966] GLR 627; BILLA v SALIFU [1971] 2 GLR 87; BEDIAKO v THE STATE [1963] 1 GLR 48; LANQUAYE v THE REPUBLIC [1976] 1 GLR 1; TAKORADI FLOUR MILL v SAMIR [2005-2006] SCGLR 882; BANDA v REPUBLIC [1975] 1 GLR 52. \r\n \r\n5   \r\nPlaintiff’s testimony and documents evidencing its claim to the reliefs were not challenged and examining the documents the court is convinced that the plaintiff has a legitimate claim in law that has not been impeached at all. Judgment is accordingly entered for the plaintiff against the defendant in respect of its claim of an amount of   \r\ni. Recovery of the sum of Gh¢2,092,984.85 (Two Million, Ninety two Thousand, Nine Hundred and eighty-Four Ghana cedis, Eighty-Five Pesewas)  \r\nii. Interest on the sum of Gh¢2,092,984.85 at the rate of 5% per annum above the  prevailing base rate of the Plaintiff from 31st July, 2014 till date of final judgment.  \r\niii. Recovery of the sum US$1,104,732.94 (One Million, One Hundred and Four Thousand Seven and Thirty-Two United States Dollars, Ninety-Four Cents) or its cedi equivalent.  \r\niv. Interest on the sum of US$1,104,732.94 at the rate of 12% per annum from 31st   \r\nJuly, 2014 till date of final payment.  \r\n  I will award cost of Gh¢50.000.00 in favour of the plaintiff against defendant.       \r\nEric K. Baffour, Esq. Justice of the High Court    \r\nRepresentation:  \r\nParties – Absent  Robert Pappoe, Esq. for Bannerman-William Jnr. For Plaintiff – Present  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'BFS/281/2014', '', '', '', '2016-07-08', ''),
(641, 'ABDULAZIZ HAMIDU  VRS.  1. A. A. MINERALS LTD.     2. KWEKU EFFAH', '', 'links/cases/ABDULAZIZ HAMIDU v. A. A. MINERALS LTD & ANOR..pdf', 'Yes', '', '2016', 'High Court', '  CONSENT JUDGMENT: \r\nThe terms of settlement dated 21st October, 2016, and filed on the 1st day of November, 2016, are hereby adopted as consent judgment of the court.  They are as follows: \r\n“1. That the defendants pay the consent judgment debt of GH¢284,800.00 as follows: \r\ni. GH¢100,000.00 (One Hundred Thousand Ghana cedis) upon the execution of these terms for same to be adopted as the consent judgment between the parties by the honourable court.  ii. That the defendant pays a further GH¢84,800.00 (Eighty Four Thousand, Eight Hundred Ghana cedis) on or before 30th November, 2016.  iii. That the defendant pays the sum of GH¢100,000.00 (One Hundred Thousand Ghana cedis) in full and final settlement of its assumed obligation to the plaintiff on or before the 30th of January, 2017.  \r\n  2. That the parties pray the above terms to be adopted by the honourable court as the consent judgment between them.”   \r\nGEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)   \r\nCOUNSEL: 1. Ms. Bridgette Ampadu, with Ms. Evelyn Doku, for Plaintiff. 2. Ms. Shirley Mawuli Armah for Defendants.   ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BC 205/2014', '', '', '', '2016-10-08', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(642, 'ABENA APEMASU VRS.  1. ANANE SEMEGLO 2. AGBAWE FAMILY   3. LAND TITLE REGISTRY ', '', 'links/cases/ABENA APEMASU v. ANANE SEMEGLO & 2 ORS..pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T \r\nThis is not a Financial and Economic Crimes case. I exercise jurisdiction in this case pursuant to an Order of Transfer dated 23rd February, 2015, transferring this part heard case to me. \r\nIn the final amended Statement of Claim, filed on the 18/11/2009, the plaintiff claims against the defendants the following reliefs: \r\n“a. A declaration that the Plaintiff is the owner of all that piece or parcel of land situate and lying at Adenta near Accra and bounded on the North by vendors land measuring 150 feet more or less on the south by vendor’s land measuring 150 feet more or less on the west by Accra to Aburi road measuring 100 feet more or less on the East by vendor’s land measuring 100 feet more or less and containing an approximate area of 0.35 of an acre.  \r\nb. Recovery of possession.  \r\nc. Perpetual injunction restraining the 1st Defendant either by himself, agents, assigns, privies and anyone save the Plaintiff from asserting any interest, rights, title or ownership to the land.  \r\nd. General damages for trespass against the 1st Defendant.  \r\n2  \r\ne. An order setting aside the Land Certificate of Provisional Land Certificate obtained on the grounds of fraud on the part of the 1st and 2nd defendants and on mistake by the 3rd defendant.  \r\nf. Costs. \r\ng. Any other reliefs that this Honourable Court may deem just and equitable.” \r\nThe 1st defendant counterclaimed as follows: \r\n“a) Declaration of title of all that piece or parcel of land situate and lying being at Adenta near Accra and bounded on the north by vendors land measuring 150 feet more or less on the West by Accra to Aburi Road measuring 100 feet more or less and containing an approximate area of 0.35 of an acre.  \r\nb) Perpetual injunction against the Plaintiff, her assigns, privies and successors in title from entering onto the said land or doing anything or causing anything to be done thereon which is inconsistent with the ownership or possessory right of the Defendant.  \r\nc) General damages for trespass.  \r\nd) Recovery of possession. \r\ne) Costs.” \r\nThe 2nd defendant, also, counterclaimed as follows: \r\n“1. The declaration of title to all that piece of land situate and lying at Adenta measuring 150 feet more or less on the South measuring 150 feet more or less on the West measuring 100 feet or more or less on the East measuring 100 feet more or less containing an approximate area of 3.35 of an acre.  \r\n2. A declaration that the purported sale of the aforesaid land by the Agbawe Family of La to the Plaintiff and 1st Defendant is null and void.  \r\n3. Perpetual injunction against both the Plaintiff and 1st Defendant entering onto the said land or deny anything or causing anything to be done thereon which is inconsistent with ownership possessory right of the Head of the Adenta Family (2nd Defendant). \r\n3  \r\n4. General damages for trespass.  \r\n5. Recovery of possession. \r\n6. Costs.” \r\nThe plaintiff says she is a retired civil servant resident in Accra and the United Kingdom. The 1st defendant says he is a building contractor. The 1st defendant and the plaintiff are both claiming ownership of the same land on the Adenta - Aburi road granted to them by the 2nd defendant family herein. Different members of the 2nd defendant family granted the land in dispute to the plaintiff and the 1st defendant at different periods in time. The 3rd defendant entered an appearance and filed a Statement of Defence. In its Statement of Defence, the 3rd defendant averred that the Provisional Land Title Certificate was issued to the 1st defendant in accordance with due process and the plaintiff is not entitled to the reliefs sought. \r\nThe issues for trial are as follows: \r\n1. Whether or not the defendant can be said to be in lawful possession when the plaintiff had exercised acts of possession prior to the defendant forcefully erecting structures on the land. 2. Whether or not the defendant had notice of the interest of the plaintiff in the disputed land prior to putting up structures on the land. 3. Whether or not the defendant put up the structures after a report was made to and investigations were being conducted by the Property Fraud Unit of the police service.  4. Whether or not the defendant’s title is null and void, same having been obtained subsequent to that of the plaintiff.  5.  Any other issues arising out of the pleadings. \r\nLearned counsel for the plaintiff invited the court to add the following issues arising out of the pleadings and evidence: \r\na. Whether as between the plaintiff’s document of title and the claim of the 1st defendant, which of them is more credible or genuine? b. Whether the claim of the 1st defendant in his statement of defence that he had acquired his land in 1979 as against his evidence  (Exhibit 1) to the effect that he had acquired the said land in 1974, are reconcilable or fatal? \r\n4  \r\nc. Whether the 1st defendant’s title documents are tainted by fraud and/or mistake for which same shall be cancelled and the Land Register rectified by the 3rd defendant in accordance with law?  \r\nThe plaintiff’s attorney Kwabena Acheampong said the plaintiff is his aunt. He tendered a Power of Attorney as exhibit A. Under cross –examination by counsel for the 2nd defendant, the plaintiff’s attorney said the plaintiff is domiciled in London and came to Ghana in January 2011. He denied that there is nobody in existence called Abena Apemasu and maintained that she is his boss he is working with and she owns the place he is living. He contended that the plaintiff was in London in 2008 when she gave the Power of Attorney. He stated that the attesting witness of the Power of Attorney also lives in London. He admitted that on the face of it exhibit A it does not disclose that Abena Apemasu is resident in the U.K. Under cross – examination by counsel for the 3rd defendant the plaintiff’s attorney admitted that the signature of Abena Apemasu on exhibit B the Indenture and that on exhibit A the Power of Attorney is not the same. He said Abena signed exhibit A but in exhibit B she just wrote her name but did not sign. He added that he was not sure whose signature is on exhibit B. The 1st defendant challenged the plaintiffs’ capacity. Learned counsel for the 1st defendant in his written address submitted that where a party appoints an agent to litigate on behalf or in the name of the party, the appointment by a Power of Attorney must follow strict rules since the issue of capacity to sue and be sued goes to the root of a matter. He stated that where one is not clothed with capacity the court will not grant an audience to the person. He said since capacity goes to the root of a case it can be raised anytime even if on an appeal. He added that a Power of Attorney not witnessed is incurably defective and invalid and cannot cloth anyone with capacity to prosecute a case. He submitted that while Kwabena Acheampong alleged that the plaintiff was resident in London, exhibit A stated otherwise. He stated that during cross-examination, it was revealed that the signature of the plaintiff on exhibit A, the Power of Attorney was different from that on exhibit B, the Indenture. He concluded that in view of the controversies surrounding the procurement of the Power of attorney it is obvious that the said Kwabena Acheampong could not have been appointed by the plaintiff to represent her in this matter and for that reason he had no capacity to testify in this dispute for and on behalf of the plaintiff.   \r\n5  \r\nLearned counsel for the 1st defendant relied on the following authorities in support of his submission that the defective Power of Attorney procured by Kwabena Acheampong does not cloth him with capacity to represent and testify for and on behalf of the plaintiff; Dzanku v. Afalenu [1968] GLR 792 at 793, Yorkua v. Duah [1992-3] GBR 278, Repbulic v. High Court (Fast Track Division) Accra, Ex Parte Slan Goldfields Ltd. [2009] SCGLR 204, Macfoy v. United Africa Company Ltd. (1962) AC 150, the Nigerian case of Oketade v. Adewumi (2010) 2-3 SC (Pt. 1) 140 and Moro v. Husseini [2013]59 GMJ 1. Section 1 of the Powers of Attorney Act, 1998 (Act 549), provides that the power should be signed by the donor and attested by one witness if the donor himself signs, but by two witnesses if signed on behalf of the donor. Section 1 (2).  \r\nIn Justice S. A. Brobbey’s book, Practice and Procedure in the Trial Courts and Tribunals of Ghana (2nd Edition) at page 309 on Powers of attorney, it was stated that “the practice in Ghana courts is that where the power is from a foreign country but to be used in Ghana, it should be notorised by a notary public. The same rule applies if the power given in Ghana is to be used in a foreign country. Such a document will not be valid if it is sworn before a commissioner for oath”.   \r\nThe authorities are clear that an action instituted by a defective Power of Attorney will be fatal and therefore the bearer shall be devoid of capacity to represent his/her principal. Want of capacity is a point of law which if raised goes to the root of the action. Where the Power of Attorney relied on to institute the action is defective, then automatically that foundation on which the action is based has collapsed for want of capacity and therefore no action can be based upon it.  \r\nIn Sir Justice Dennis D. Adjei’s book, Land Law, Practice and Conveyancing in Ghana, he states on capacity to maintain suit at page 37 as follows, “Capacity goes to the root of every action and a person who has an iron cast case would not be heard on the merits of her case where she is unable to satisfy the court that she has capacity to maintain the suit. Where the issue of lack of capacity is raised, the court is prohibited from determining the case on its merits without first considering the issue of capacity.” \r\nIt is a fact that exhibit A the Power of Attorney that the plaintiff’s attorney is relying on is defective and not in accordance with the requirements of the law. As explained \r\n6  \r\nabove, the implication of this is that there is no action. I therefore strike out the plaintiff’s action for lack of capacity. For the avoidance of any doubt it must be stressed that because the action is struck out for lack of capacity, the reliefs sought by the plaintiff or the merits of the plaintiff’s case will not be dealt with in this judgment. Both the 1st and 2nd defendants counterclaimed for declaration of title and other reliefs. A counter claim is a separate claim in which the defendant becomes the plaintiff or the party with the burden of proof with respect to the reliefs sought.  The 1st defendant said he is a building contractor. The 1st defendant testified that the land in dispute is his and he tendered exhibit 1 an Indenture and other exhibits including a Provisional Land Title Certificate. He said he constructed a fence wall and a gate on the land. According to the 1st defendant when he was constructing the fence wall the plaintiff’s attorney herein confronted him and claimed that the land belonged to him so they took the matter to the Adenta Police Station.   Under cross-examination by counsel for the plaintiff the 1st defendant said exhibit 1 is dated 6th September 1974 and he was one year old then. He maintained that when he purchased the land exhibit 1 was the document given to him. He said he signed exhibit 1 when it was brought to him but he cannot remember who witnessed his signature as it was a long time ago. He added that he was old when exhibit 1 was given to him. He denied that exhibit 1 was prepared around 2007 and back dated to 1974. He stated that he reported the plaintiff’s attorney to the Adenta police. He admitted that in the course of registration of his land title, the Land Title Registry wrote to him that there were conflicting claims, exhibit 4, as a result of which he was given a Provisional Land Title Certificate exhibit 5. He stated that he has not been given the final certificate.  \r\nDW1, Nii Adjei Kpobi Asaawa said he is the head of the Agbawe Akutso family of La. He explained that Agbawe Akutso is one of the seven quarters of La. He said the Agbawe family has land at Adenta, Frafraha, Oyarifa and Ashalley Botwe. He stated that he does not know the plaintiff herein but knows the 1st defendant because he contacted him with respect to the land in dispute. According to DW1 he went with the 1st defendant to the Land Title when the 1st defendant wanted to process his land documents. He said when they went there the land had not been given to any person apart from 1st defendant. DW1 concluded that to him the land in dispute belongs to \r\n7  \r\nthe 1st defendant. Under cross-examination by counsel for the plaintiff, DW1 said he knows nothing about exhibit 1. \r\nCW1, Mahmed Sam-Dadzie, is a land surveyor at the Survey and Mapping Division of the Lands Commission. He testified that they prepared a composite plan tendered as exhibit CW1. He said the land in dispute is on the Adenta –Aburi road. Learned counsel for the 1st defendant in his written address submitted that the burden of proof in an action for declaration of land is properly discharged where it is proved that the plaintiff a) properly and legally acquired the particular piece of land with b) defined identity and of which c) has been in possession or has had the right of possession. He cited the cases of Anane v. Donkor (1965) GLR 188 and Amankwah v. Nsiah Part 2 [1994-95] GBR 785 in support of his submissions. He asserted that notwithstanding some slight slips in his testimony, the 1st defendant by and large was able to identify the exact boundaries of the land per his site plan as well as the Provisional Land Certificate issued to him by the Land Title Registry. He added that the 1st defendant showed that he was indeed in effective possession of the disputed land, having built a wall around it and quoted Section 48(1) and (2) of the Evidence Act 1975, (NRCD 323) in support of his claims. He asserted that the 1st defendant would have completed building on the land but for the court action.  Learned counsel stated that the 1st defendant having expended money on the land, the Land Development (Protection of Purchasers) Act 2 of 1960, which was made for protection of purchases should be applied to him. He stressed that the plaintiff having failed to prove a prima facie case against the 1st defendant, whatever weaknesses there may have been in the case of the 1st defendant would not inure to the benefit of the plaintiff, therefore on the preponderance of the evidence before the court, the case of the 1st defendant is more preferable than that of the plaintiff and    he cited and cases of Effisah vAnsah [2005-2006] SCGLR 943 and Sarkodie v. FKA Company Limited (2009) 7 GMG 198 in support of his submissions. In his written address, learned counsel for the plaintiff stated that the 1st defendant’s claims are not bona fide and are fraudulent as the 1st defendant’s documents show that they are of a much more recent origin than 1974 by which time the 1st defendant had either not been born or was an infant without the requisite capacity to enter into such transactions. It was submitted that the 1st defendant’s purported grantors were not in existence or clothed with capacity to act in 1974. It was contended that the \r\n8  \r\n1974 conveyance was in fact, a 2007 document deliberately and fraudulently back – dated to appear old and earlier in time than that of the plaintiff to overcome the challenge 1st defendant and his purported grantors (2nd defendant family) had to deal with in terms of priority of grant and the nemo dat rule. It was asserted that the consideration stated in the 1st defendant’s exhibit 1 as the yearly rents paid or payable by him was five thousand cedis (¢5,000.00) and the amount was questioned as compared with the plaintiff’s ¢200.00 in 1978. It was contended that per exhibit 1 the 1st defendant’s land measured 80 feet X 100 ft, covering an approximate area of 0.18 acre but in his Statement of Defence and counterclaim filed on 10th October, 2008 he counterclaimed for land measuring 150ft X 100ft of approximate size of 0.35 of an acre. It was further submitted that the fraudulent documents of the 1st defendant, either acting alone or in concert with the 2nd defendant, induced the 3rd defendant to rely on same by mistake or some passive acquiescence, to issue the Provisional Certificate or registration of same. It was asserted that the 1st defendant’s conduct is fraudulent and cannot pass any valid title to him as same is void ab initio having been tainted with notice and fraud. \r\nLearned counsel for the plaintiff submitted in his written address that the evidence led and confirmed by exhibit 7 the Search is to the effect that as of June 2008 the 1st defendant had not entered into any effective undisturbed possession of the land and was being confronted by the plaintiff’s agents on the land and at the police station. He also stressed that the 1st defendant was consistently inconsistent and proved to be an unreliable witness. He stated and stressed the contradictions in the 1st defendant’s evidence and his pleadings and submitted that it is trite law that there are fatal consequences for a party whose evidence departs substantially from his pleadings and cited the cases of Hammond v. Odoi [1982-3] GLR 1215, Dam v. Addo & Bros [1962] 2 GLR 200 and Yungdon Ind. V. Roro Services [2006] MLRG 7 to support his case. Counsel asserted that per exhibit C (search dated 31/12/2004) the plaintiff had confirmed her prior registration without any rival claims. He stated that this raises the question of priority of grant from a common grantor or related grantors and cited the case of Mark Ofei Antwi v. John Kwaku Mortey [2015] J90 G.M.J. 85 in support of his submissions.  \r\nFrom the evidence led and exhibits tendered, the following are undisputed facts:  \r\n9  \r\n1. The Indenture, exhibit 1, tendered by the 1st defendant is dated 1974 and the 1st defendant said he was about one year old in 1974.   2.  It was when the 1st defendant started developing the land in 2008 that the plaintiff’s attorney confronted him and challenged his ownership of the land. The plaintiff instituted this court action in 2008.  3. The 1st defendant’s evidence was not consistent with his pleadings.  The Indenture, exhibit 1, tendered by the 1st defendant cannot be relied on as it is dated 1974 when the 1st defendant said he was about one year old. This raises the issue of whether the 1st defendant had capacity to sign the said document if his evidence is true. A one year old child or any minor does not have the legal capacity to enter into a contract or sign a legal document. When asked by the plaintiff’s counsel why exhibit is dated 6th September, 1974 but in paragraph 9 of his Statement of Defence and counterclaim the 1st defendant stated that he acquired the land in dispute in December, 1979, the 1st defendant replied “I didn’t know that this case would come to court so I don’t have the dates on mind”. The law and authorities are clear that where a party leads inconsistent evidence with the said party’s’ pleadings, the party’s evidence as a whole cannot be relied on. The 1st defendant said he is a building contractor. He is therefore expected to be knowledgeable about issues concerning his land and its acquisition. This is more so because the plaintiff’s attorney has been challenging his title to the said land since 2008 and they have been in court since 2008.  The 1st defendant who is represented by counsel had a very long time to prepare for the case in court, but the record of proceedings show that he was very evasive in his answers especially under cross-examination. This makes his evidence unreliable and he cannot be considered a credible witness. The evidence and exhibits tendered makes it beyond doubt that the 1st defendant had notice that the plaintiff was also claiming ownership to the land in dispute since 2008 so he cannot allege that he is a purchaser for value without notice. The fact that the 1st defendant was given a Provisional Land Title Certificate is in indication that there are issues to be resolved before he can be given a final certificate.   \r\nI have considered the totality of the evidence adduced and based on the reasons stated above the 1st defendant has failed to establish his counterclaim. 1st defendant’s counterclaim is therefore dismissed.  \r\n10  \r\nWith respect to the 2nd defendant’s counterclaim, in its Statement of Defence and counterclaim, the 2nd defendant contended that the head of the Kplen We Family of Adenta Stool (2nd defendant) the supposed joint heads of family, Nii Adjei Dabloe and S. K. Quaye could not have alienated the land, the subject matter of this case to both the plaintiff and the 1st defendant because Nii Adjei Dabloe, who was the then Chief of Adenta died in 1967 and S. K. Quaye is in fact the Wulomo to the Bosomatis Shrine Of Adenta and therefore not entitled to grant lands to Adenta. The 2nd defendant further contended that Nii Asafotse Tetteh Nukpe and his principal members of the Agbawe Family of La do own land in Adenta and that Adenta lands are under the control and management of the Kplen We Family of Adenta and that assertion is borne out by a judgment of the Circuit Court in the case of Okraku Mantey vrs. Sowah Okataban & ors (Suit No. CCL 8/93).  It added that any transfer of title in any Adenta land by the Agbawe Family of La to either the plaintiff or the 1st defendant was done without the knowledge and consent of the land owners of Adenta the Kplen We Family of Adenta and should therefore be declared null and void. Counsel for the 2nd defendant only cross-examined the plaintiff’s attorney and the 2nd defendant did not lead evidence in support of its claims.   \r\nFrom the facts of this case and the undisputed evidence adduced both the plaintiff and 1st defendant herein acquired the land in dispute from the 2nd defendant family through different members of it acting at different periods in time.  \r\nLearned counsel for the plaintiff submitted in his written address that the arguments in the 2nd defendant’s Statement of Defence should be treated as bare allegations without proof as it failed to come to court to substantiate same on oath.   Exhibit 4 dated 22nd February, 2008, from the Land Title Registry and addressed to the 1st defendant states that there are too many conflicts as to who the head of families are and who owns what as to boundaries within the Kplen We Agbawe Families of La in Frafraha, Adenta and Oyarifa so the Registry will issue a Provisional Certificate pending the resolution of the above issues.  A result of the conflicts stated in exhibit 4 is seen in this matter where the same 2nd defendant family granted the land in dispute to both the plaintiff and the 1st defendant herein.  \r\n11  \r\nDW1, said he is the head of the Agbawe Akutso family of La and stated that the land in dispute belongs to the 1st defendant. The 2nd defendant family herein (of which DW1 belongs) claims the land in dispute does not belong to either the plaintiff or the 1st defendant but to it hence claimed a declaration of title to it. How can a family with conflicting evidence as to ownership of its land have its claim to the said land sustained?  The 2nd defendant did not lead evidence to establish its claim. I do not think that it is in the interest of justice that a grantor family which has through its members given the same land to the plaintiff and 1st defendant herein be entitled to title on the same land.    \r\nI have considered the totality of the evidence adduced and based on the reasons stated above the 2nd defendant has failed to establish its counterclaim. The 2nd defendant’s counterclaim is also dismissed.  \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 with respect to costs. I have also considered the facts and unique circumstances of this case. This is a rare kind of case in which there is no winner and the ownership of the land in dispute is still undetermined partly due to the lack of capacity of the plaintiff as explained in the judgment. As there is no winner in this case, there is no legal or other basis to warrant the award of costs. There is therefore no order as to costs which respect to all the claims herein.  \r\n                      (SGD.) GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)  \r\nCOUNSEL: \r\n1. Mr. David Ametepe for Plaintiff. 2. Mr. K. Adjei Lartey for 1st Defendant. 3. EBAA Law Consult for 2nd Defendant.  4. S.O. Ackwerh (Senior Land Registrar) and Mr. Paul Dzadey (State Attorney) for 3rd Defendant.  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BL 537/08', '', '', '', '2016-06-22', ''),
(643, 'AGAPET  VRS. TEMA DEVELOPMENT CORPORATION  ', '', 'links/cases/AGAPET VRS. T.D.pdf', 'Yes', '', '2016', 'High Court', '       J U D G M E N T \r\n 2  \r\nThe Plaintiff’s case is simple. It alleges that the defendant directed it to supply fuel to its contractor called Safco Engineering Ltd in return for payment. It duly made supplies of fuel to Safco Engineering but unfortunately, the defendant has failed or refused to pay for supplies made in the month of month of May 2006 amounting to 107,225,130 cedis being the price of 13,947 litres of diesel. The defendant’s ground for failure to pay for that particular supply of fuel is that by its arrangements with plaintiff, plaintiff was only entitled to payments for supplies supported by claim forms submitted by Safco Engineering. It argued that the claim forms for May 2006 were not supported by a covering letter from Safco and were presented directly to them by plaintiffs, contrary to the laid down procedure. It therefore denied that the 13,947 litres of diesel was supplied to Safco for the defendant’s project.   \r\nI found it very strange that this matter was not settled at the pretrial conference because it seemed to me to be a simple matter of determining whether or not Safco Engineering received the fuel in May and whether that fuel was provided on the accounts of the defendant. Somehow, the parties allowed the court to conduct a trial on the matter. At trial, the plaintiff proved laboriously with its records and showed that it indeed supply Safco Engineering with fuel in May and this was done as part of the directions it had received from the defendants.   \r\nWhen the defendant presented its defence, it called a key witness, Thomas Goka. He is an accountant with Safco and the person who coordinated all the records on supplies of fuel made before and after May 2006 and generally submitted the claim forms to defendant. His evidence served to corroborate that \r\n 3\r\nof the plaintiff. He confirmed that Safco Engineering had been supplied with the fuel in May but Safco had not presented the claim forms themselves because ‘a letter (dated 7th June 2006) came from TDC that from that time, suppliers should submit their claim forms directly and not through our company’. With that clear directive from defendant, he requested plaintiffs to send their claims to defendant, which they did.   \r\nWhat this means is that defendant’s complaint that it did not receive claim form from Safco was a result of its own directive. And it could have easily determined that the fuel had indeed been supplied if it had gone through Safco’s records with them. Indeed, Safco is still supposed to be doing jobs for the defendant through other subcontractors. And after giving those directives, it turned round to refuse to pay for the fuel supplied and caused a trial at which its liability was settled by its own witness. If the situation had not caused loss to the plaintiff, and been an abuse of this court’s functions, it would be comic. Be that as it may, this court is satisfied that plaintiff’s claims have been corroborated by its evidence and defendant’s witness.  Judgment is entered in favor of plaintiff in the sum of 10,722.51 cedis with interest thereon at prevailing commercial rate from May 2006 to date of payment. Costs of GH¢6,000.    \r\n                        (SGD) MRS. GERTRUDE TORKORNOO (JUSTICE OF THE HIGH COURT)  ', 'JUSTICE GERTRUDE TORKORNOO (MRS), J', 'Civil', '', 'RPC206/07', '', '', '', '2016-04-15', ''),
(644, 'E. P. CHURCH, GHANA VRS.  1. THE DISTRICT PASTOR, E. P. CHURCH OF GHANA 2. THE CATHECHIST, E. P. CHURCH OF GHANA   3. THE EVANGELICAL PRESBYTERIAN CHURCH OF  GHANA 4. THE CHIEF LANDS REGISTRAR    ', '', 'links/cases/E. P. CHURCH GHANA v. THE DISTRICT PASTER, E.P. CHURCH OF GH & 3 ORS..pdf', 'Yes', '', '2016', 'High Court', '\r\nRULING \r\nThis is an application for trial de novo by learned counsel for the defendants which is opposed by learned counsel for the plaintiff. Both learned counsel have filed detailed written submissions in support of their positions.  Learned counsel for the plaintiff stated that this action commenced in 2002. The plaintiff called three witnesses and closed its case on 6th February, 2008. He said the defendants opened their case on 22nd April 2008. He added that the case was started de novo on 18th January, 2012, at the instance of the defendants counsel before Justice Godwin Gabor. The plaintiff called two witnesses and closed its case on 30th April, 2014. Then the defendants witness testified and was being cross-examined when the judge went on retirement. The suit was then transferred to this present judge, Justice Georgina Mensah-Datsa. Learned counsel for the plaintiff submitted that justice will not be seen to be done if the court should refuse to adopt the proceedings but uphold the defendants demand for a trial de novo for a second time. He stated that any decision not to adopt the proceedings will work to the detriment of the plaintiff considering the advanced age and its attendant frailties of plaintiff’s star witness, Seth Kofi Dzeble. He added that it will be unfair and unjust to compel their witness to go through the torture of a trial de novo for the third time.  \r\n2  \r\nIn the Supreme Court unreported case of Adomako Anane v. Nana Owusu Agyemang (Substituted by Nana Banahene) & 7 Ors., Civil Appeal No. J4/42/2013, dated 26th February, 2014, the court held that  “The argument against de novo hearing is so cogent and compelling that sound case management policy reasoning alone constitute a sufficient basis for charting a new legal path in our jurisprudence. We would, therefore, state the law as follows. In civil proceedings, the ultimate question of whether or not evidence already adduced before a previous judge be adopted should not rest on the parties’ consent. It should exclusively be at the discretion of the new judge who takes over the partly heard case. Since this involves the exercise of a discretionary jurisdiction, we will identify some of the factors that must be taken into account to arrive at this decision. The judge’s broad and primary concern must be to ensure that the adoption of the proceedings would not result in miscarriage of justice. Specific factors that would influence the decision would include the length of time that the case has been on the court’s calendar, the stage at which a trial has reached, the number of witnesses already called, the disputed issues, the nature of the evidence – mostly narrative or documentary, weighty objections by either party, if any, to its reliability, the availability of the witnesses who has already testified, the quality and reliability of the record or transcript.” The last date on which this case was heard was 12th May, 2015, before Justice Godwin Gabor proceeded on retirement. This action was started in 2002. From the record of proceedings, the current hearing in the case started in 2012 before Justice Godwin Gabor. The plaintiff has closed his case and the defendants have opened theirs. The defendants’ witness is being cross-examined. I have observed the length of time it took for the hearing to proceed this far. I have also observed the number of adjournments it took to reach the volume of the present record of proceedings. I have carefully studied the record of proceedings and have noted that, although there are a few typographical errors, they can be corrected and they do not go to the substance of the case. I am, therefore, of the opinion that the record of proceeding is reliable. Based on the Supreme Court’s decision stated supra, I hereby refuse the application to hear the case de novo. This is because it is in the interest of case management and justice that the proceedings be adopted for the hearing to continue, considering that this case started in 2002 and the witnesses are elderly people. Adopting the proceedings for hearing to continue will also prevent the perception that one party \r\n3  \r\nor both parties will have the chance to improve their case and remedy any weakness that may have been exposed by cross-examination. This is more so when to grant the application to start the case de novo will mean that hearing is to commence for the third time in a case which was instituted in 2002. Looking at the history of this case, and how long it takes to complete the evidence of a witness, when will this case end, if the application to hear it de novo is granted?   The application to hear the case de novo is refused or denied.  There is no order as to costs.  \r\n(SGD.)  GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)    \r\nCOUNSEL: 1. Dick Anyadi for the Plaintiff. 2. Benson Nutsukpui for the Defendants.   ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'L 420/2002 ', '', '', '', '2016-07-05', ''),
(645, '1. THE EXECUTIVE DIRECTOR,  ECONOMIC AND ORGANISED CRIME OFFICE   2. THE EXECUTIVE SECRETARY, NARCOTICS CONTROL BOARD   VRS.   NAYELE AMETEPE  ', '', 'links/cases/E.O.C .O. & ANOR v. NAYELE AMETEPE.pdf', 'Yes', '', '2016', 'High Court', 'NAYELE AMETEPE       - RESPONDENT \r\nRULING \r\nThis is an application to confiscate the following properties of the respondent herein  1. NIGHT ANGELS ENTERPRISE – DZORWULO, MOTORWAY EXTENSION. 2. Fidelity Bank Account No. 1050405565731 – (GH¢ 21,897.58) 3. Fidelity Bank Account No. 1961405113233 – (GH¢ 289.97) 4. Fidelity Bank Account No. 1951405565737 – (GH¢ 3.22) 5. Fidelity Bank Account No. 2030405113220 – (GH¢ 282.64) \r\n2  \r\n6. Fidelity Bank Account No. 1060405113216 – (GH¢ 664.19) 7. Fidelity Bank Account No. 1962405113253 – (GH¢ 99.33) \r\nto the state, in accordance with Sections 46, 47, 48, 49 & 51 of the Economic and Organised Crime Office Act, 2010, (Act 804). The respondent has been served. The application to confiscate these properties of the respondent has not been opposed nor has any claimant claimed ownership of them.  The facts of this case are that, on or around 10th November, 2014, the respondent, Nayele Ametepe, a.k.a., Ruby Adu Gyamfi, was arrested at Heathrow Airport by the officers of the United Kingdom Border Force with 12.5 kg of cocaine, a narcotic drug and was consequently charged for concerned in evasion of prohibition /restriction on import imposed by s.3 (1) of MDA 71-Class A drug, of the United Kingdom. On or around 6th January, 2015, the respondent herein was arraigned before the Crown Court at Isleworth in London, presided over by His Honour, Judge Martin Edmunds QC, in Case Ref: T20141080. She pleaded guilty and upon her own plea, was convicted and sentenced to a term of eight (8) years and eight (8) months imprisonment with hard labour. A copy of the Certificate of Conviction was attached as Exhibit NCB B. The respondent is currently serving her prison sentence at HMP Send Ripley road – Woking Surry GU 23 7LJ prison, with the prison number A9518DH, in the United Kingdom. The applicants contend that pursuant to the combined effects of sections 15(1) of the Narcotics Control, Enforcement and Sanctions Act, P.N.D.C. Law 236, and section 46 of the Economic and Organised Crime Office Act, 2010, Act 804, the respondent’s properties are liable to be confiscated to the State and be utilised in accordance with Section 66 of Act 804. \r\nLearned counsel for the 2nd applicant, submitted that it is the items in or the contents of Night Angels Enterprise or the Enterprise itself, or any property belonging to the said Enterprise and the monies in the listed bank accounts with the accrued interest thereon that the applicants seek to confiscate. He prayed that the items in or contents of the Night Angels Enterprise be auctioned by Public auction and all the proceeds utilised in accordance with section 66 of Act 804. He requested that the bank be ordered to pay the monies into the accounts of the 2nd applicant (NACOB) so that the 2nd applicant will utilise it in accordance with section 66 of Act 804.  \r\n3  \r\nI have considered the submissions made by learned counsel for the 2nd applicant, the facts of this case and the documents or processes attached and I am satisfied that the applicants have made a case to warrant the confiscation of the properties herein belonging to the respondent. It is a fact that the respondent has been convicted and is currently serving her prison sentence for a narcotic drug related offence. I am satisfied that the properties stated herein were derived from the proceeds of crime.  \r\nIn the circumstances, I hereby grant the application for confiscation and confiscate all the listed properties herein belonging to the respondent to the state.  I order that the items in or the contents of the Night Angels Enterprise and the Enterprise itself be auctioned by public auction and all the proceeds from it be utilised as per the orders below in accordance with section 66 of Act 804.  By section 51(4) of Act 804 where the Court makes a confiscation order, the Court shall give directions to give effect to the order.  In accordance with section 66 of Act 804, which deals with the utilisation of proceeds of realisable property, I hereby order as follows: 1. 20% of the total amount should be paid to the Registrar of the Court, that is, Financial and Economic Crimes Court. 2. 20% of the total amount should be paid to the Economic and Organised Crimes Office, to defray the expenses of the said office. 3. 50% of the total amount should be paid to the Institution of relevance, that is, the Narcotics Control Board.  4. 10% of the total amount should be paid into the Consolidated Fund. It is ordered that the bank herein, that is, Fidelity Bank, should release the amounts in the bank accounts stated herein with the accrued interest thereon to the 2nd applicant herein, so that the 2nd applicant can enforce the Court orders herein as to the utilization of the monies herein.  There is no order as to costs.       \r\n4  \r\n      (SGD.) GEORGINA MENSAH-DATSA \r\n(JUSTICE OF THEHIGH COURT)     \r\nCOUNSEL:  1. Mr. Abu Issah for the 1st applicant. 2. Mr. Daniel Amankwah for the 2nd applicant.  \r\n     ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'FTRM 34/15', '', '', '', '2016-04-06', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(646, '1. THE EXECUTIVE DIRECTOR, ECONOMIC AND ORGANISED CRIME OFFICE   2. NARCOTICS CONTROL BOARD   VRS.   EDWARD MACAULEY', '', 'links/cases/E.O.C.O. & ANOR. v. EDWARD MACAULEY.pdf', 'Yes', '', '2016', 'High Court', 'RULING \r\nThis is an application to confiscate Plot No. 2A Mango close, Dansoman, Accra, property of the respondent herein to the state, in accordance with Sections 46, 47, 48, 49 & 51 of the Economic and Organised Crime Office Act, 2010, (Act 804), which is opposed to by the respondents’ lawful attorney and the claimant herein.  The facts of this case are that, somewhere in 2011, the applicant was arrested by the security agencies for being a manager of a Ghana-based heroin trafficking organization response for illegally importing into the United States of America multiple kilograms of heroin. Subsequently, the respondent with some of his ring leaders were extradited to the United States of America to stand trial. On 6th April, \r\n2  \r\n2012, the respondent pleaded guilty to conspiracy to import heroin and was convicted and sentenced to one hundred and sixty-eight (168) months imprisonment by United States District Court, Eastern District of Virginia, Alexandria Division, in Case Number 1:11 CR 00199—001 pursuant to 21 U.S. Code § 963. The respondent is currently serving his sentence at the Federal Correctional Institution at Fort Dix, New Jersey, U.S.A., and has given a power of attorney to his oldest son, Edward Macauley Jnr. of House No. 11 24th Close, Dansoman, to pursue this suit on his behalf. Following the conviction of the respondent for illicit dealing in drugs, the 2nd applicant identified the above stated property, Plot No. 2A Mango close, Dansoman, Accra, as belonging to the respondent and therefore liable to be confiscated to the state.  The case of the applicants is that the respondent had been on the wanted list of the 2nd applicant and his activities had been monitored since 2002 as a drug dealer. The respondent, with the assistance of some accomplices at the Ghana Airport Company used couriers aboard commercial airlines to smuggle heroin from Ghana to the United States. The respondent also used his house as a meeting place of drug couriers in order to facilitate or aid his drug trafficking activities. It is the case of the applicants that having been convicted of conspiracy to import heroin into the United States, which is also a serious offence under the law, the properties of the respondent are liable to be confiscated to the state so as to deprive the respondent of benefiting from his crime and also as part of his punishment for dealing in drugs. The applicants contend that the properties of the respondent are presumed to be acquired from the respondent’s drug dealing unless the respondent rebuts the assumption with cogent evidence to the contrary. The applicants further contend that the respondent who has the burden of proving that the property attached is not tainted, illegal or acquired through illegitimate means has woefully failed to do so. The applicants, therefore, pray the court for confiscating order in respect of the attached property.  The case of the respondent, in an affidavit of opposition filed by the respondent on 18th August, 2015, is that the attached property is not a derivative of illicit drug trafficking and that it was neither used to facilitate or aid the commission of illicit trafficking in narcotic drugs. The respondent asserted that Plot No. 2A Mango Close, Dansoman, and the building on it belong to his son who is also called Edward Macauley, his attorney in the instant case, and that the signature of the respondent and that of his son, the attorney which is on the indenture, are quite clear and distinct.  \r\n3  \r\nLearned counsel for the 2nd applicant submitted that one of the purposes of the Narcotic Drugs (Control, Enforcement and Sanctions) Law, 1990 (PNDCL 236), as stated in its preamble, is to “put in place provisions that will prevent illicit narcotic drug dealers benefitting from their crimes”. He stated that Sections 15(1) (a) of PNDCL 236 specifies the person liable to be proceeded against for the confiscation of properties as follows:  “Section 15 – Persons Liable to be Proceeed Against.  (1) Any person who –  a) has been convicted of an offence under Part 1 or Part 11 of this Law or of a corresponding offence under a foreign law committed after the commencement of this Law;” Learned counsel for the 2nd applicant submitted that the respondent was convicted of conspiracy to import heroin into the United States of America under the 21 U.S. Code § 963 which is a corresponding offence under Section 56 of the PNDCL 236. He contended that the respondent is therefore a liable person whose properties are liable to be confiscated to the state. He added that under Section 46 of the Economic and Organised Crime Office Act, 2010, (Act 804), having been convicted of a serious offence, the respondent’s properties are liable to be seized and confiscated to the State and the Executive Director of E.O.C.O. can apply to the court for a confiscation order against the property that is deemed to be tainted property.  Section 46 of Act 804 states as follows: “46. (1) Where a person is on trial for a serious offence, the Executive Director shall apply to the Court for either or both of the following orders (a) a confiscation order against property that is deemed to be tainted property, or  (b) a pecuniary penalty order against the person in respect of benefit derived by that person from the serious offence.   \r\n(2) Where a person is convicted of a serious offence, the Executive Director shall apply to the Court within one month after the conviction, for any of the orders specified under subsection (1).” Learned counsel for the 2nd applicant submitted that pursuant to the above provisions, by the reason of the respondent’s conviction, the properties belonging to the respondent are all illegal or tainted properties liable to be confiscated to the state.  \r\n4  \r\nHe emphasized that the confiscation proceedings are part of the sentencing process following a conviction and it is utilized to enhance the punishment of a defendant who has already been convicted of a particular offence. He cited the case of The Executive Director, Economic and Organised Crime Office vrs. Ibrahim Sima, unreported, a ruling delivered on 09/12/11 by the High Court, where after quoting Sections 22 and 46 of Act 804, and Order 19 of C.I. 47, and also the cases of McIntosh v. Lord Advocate (2001) 3 WLR 107 and Philips v. United Kingdom (Application 41087/98) 5 July [2001] Crim. L. R. 817, came to the conclusion that:  “At the risk of sounding repetitive, I hold in this Ruling that the application for a confiscation order is not a new criminal charge since the respondent has already been convicted for the qualifying offence, i.e. dealing in illicit drug trafficking. Rather, the application is part of the sentencing process after the confiscation …”  He also cited United States of America v. Cherry, 330 F.3d 658 (4th Cir. 2003), where the U. S. Court of Appeal held that: “A judgment of forfeiture, imposed pursuant to 18 U.S.C. § 982, is not a separate conviction; rather, it constitutes part of the sentence, in that it is utilized to enhance the punishment of a defendant who has already been convicted of a particular offence.” Learned counsel for the 2nd applicant submitted that since a confiscation order is part of the sentencing of a convicted person and since the purpose is to enhance the punishment of a defendant, the attached property of the respondent who has been convicted of drug trafficking should be confiscated to the state to serve as deterrent to would-be drug dealers. He stated that one of the cardinal principles of law is that people should not be allowed to profit from unlawful activity in general, and from crime in particular. He cited the case of Edward Macauley v. E.O.C.O. and Executive Secretary, NACOB, unreported, in which the High Court quoted with approval the case of R vrs. Cuthbertson [1981] AC 470 where it was unequivocally held that, “money and/or goods obtained from crime should be removed from the criminal.” He cited the case of R vrs. Wateford, 17th February, 1975, unreported, which was quoted in Edward Macauley vrs. E.O.C.O., supra, where the court held that, “the first thing the law should do is to ensure that those who break the law should not make money out of their wrong doing.” It also held that “the legislation under which the application was brought was a means by which drug dealers can be deprived of their assets.” \r\n5  \r\nLearned counsel for the 2nd applicant submitted that the court should confiscate the attached property of the respondent drug convict so that the respondent herein would be deprived of any profit from his drug dealing. He stated that in dealing with confiscation proceedings, the court takes a very hard line approach to ensure that criminals, and for that matter drug dealers do not benefit in any way from their criminal activities. He stressed that in the case of R v. Smith (David Cadman) 2001 App. Cases, the court took a hard line approach to deprive the defendant of his assets. The House of Lords, speaking through Lord Rodger of Earlsferry commented that, “If in some circumstances it (the confiscation scheme) can operate in a penal or even a draconian manner, then that may not be out of place in a scheme for stripping criminals of the benefits of their crimes.” Learned counsel for the 2nd applicant stated that in line with the hard line approach to confiscation issues, the law is that the burden of proof as to whether or not a property is legitimately acquired is on the person whose property has been attached for confiscation.  Section 45 of Act 804 stipulates that: “45.(1)In determining whether or not a confiscation or pecuniary penalty order should be made, the Court shall presume that the property or income which is the subject of the application, including the property and income indicated in the declaration was acquired as a result of a serious offence.  (2) The burden of proof that the property or income which is the subject of the application or the declaration of property and income is lawfully acquired property is on the person convicted for the offence in relation to which the application is made.”  He submitted that in the McIntosh case, supra, the respondent had been convicted for the offence of drug trafficking and the crown had applied for a confiscation order. It was argued that the mandatory assumption in confiscation proceedings that the defendant, the accused, has the benefit from criminal conduct unless he can show the assumption to be “incorrect” is an unfair reversal of the burden of proof which runs counter to the express presumption of innocence as enshrined and guaranteed under Article 6 of the European Convention of Human Rights and Fundamental Freedoms which the United Kingdom had then ratified and adopted. This argument of the respondent therein was totally rejected by the Privy Council. The European Court of Human Rights itself appears to agree with the legal position adopted by the Privy Council in the McIntosh case that it is the respondent who is to proof that he \r\n6  \r\nacquired his properties through a legitimate source. In Philips v. United Kingdom, supra, the European Court held that:  “... the right to be presumed innocent under Article 6(2) arises only in connection with the particular offence “charged”. Once the person has properly been proved guilty of that offence, Article 6(2) can have no application in relation to allegations made about the accused’s character and conduct as part of the sentencing process …” Learned counsel for the 2nd applicant submitted that similarly, in our jurisprudence, the golden rule is that a person is presumed innocent until proven guilty and the burden of proof is on the prosecution. It is, however, not the case in a confiscation application such as in this instant application. The respondent has already been convicted of conspiracy to export heroin, a narcotic drug. The burden of proving that the attached properties are not tainted, illegal or are acquired from legitimate business must therefore be on the respondent and not on the applicants.  He stated that it is an open knowledge that there is a lot of money in dealing in illicit drug trafficking. He said the main motivation for illicit drug dealers is to make huge sums of money. He contended that it was clear from the indictment of the respondent a copy of which the applicants exhibited as “Exhibit A1” that the respondent was the leader of a Ghana-based heroin trafficking organization responsible for importing into the United States multiple kilograms of heroin. He submitted that this evidence was not controverted and that as a leader of a ring of drug dealers, it is their view that the respondent’s properties were acquired through dealing in drugs. The respondent cannot, therefore, be allowed to enjoy his illegal properties.  It was submitted that the respondent has also stated in his affidavit in opposition that house Plot No. 2A Mango Close, Dansoman, Accra, including the building thereon and its fixtures, belongs to his son who has been given the power of attorney by his father to defend this suit. In an attempt to justify his claim of ownership of the property at 2A Mango Close, the claimant gave evidence on 11th January, 2016. The sum of his case is that he bears the same name as his father and that he acquired the property 8 years ago. According to him, he worked in several places in the U.K. and worked as a barber earning £600.00 a week where he got money to purchase the plot in question at GH¢18,000.00. The applicants admit that even though the indenture of 2A Mango Close bears the name Edward Macualey, the signature on it is different from the known signature of the respondent. It is also admitted that Variety Bar, which is situated on 2A Mango \r\n7  \r\nClose, is different from MACASH Enterprise of which the respondent owns 60% shares. Indeed, the two businesses have different registration numbers and bears different Tin numbers as well. It is, however, the view of the applicants that looking at the expenses of the claimant and his income from his barbering business, it is doubtful if he could have purchased and developed 2A Mango Close.  Learned counsel for the respondent herein and claimant stated that he will file an address but failed to do so. The respondents’ attorney contended that the said property is his. He asserted that he has the same name as that of his father, the respondent herein, but the respondent’s signature is quite clear and distinct from his (the attorney) and attached the documents to establish same. He also stressed that the said property was not used to facilitate or aid the commission of a serious offence of a person convicted; nor was it derived, obtained or realized as a result of the serious offence. He led evidence in court to prove his claim. He stated that the property is in the name of Edward Macauley but it is his and not for his father, the respondent herein. He testified that he owns a restaurant and a bar on the property in issue. According to the claimant herein, he acquired the property in issue eight (8) years ago when he decided to come and live in Ghana from London and has been operating it till date. He stated that, whilst in the UK, he worked in several places from which he got the money to purchase the property in issue. Under cross-examination, the claimant said he has three different signatures. He said he was earning about £600.00 pounds a week from the barbering shop in London, where he was a barber and owned shares in the barbering company. He said he bought the property in issue for GH¢18,000.00. He stated that he was in the U.K. from 1994-2007. The claimant said he has two wives and four children. He stated that his oldest child will be 15 years in March 2016 and was with him in the U. K. between the years 2003 to 2007. He said he put her in school, that is, Government Council School. He stated that he didn’t cater for any siblings between the years 2003 to 2007. He added that apart from the varieties pub and restaurant, he did not have any other companies or source of income between the years 2003 to 2008. He contended that he had cars, that is, BMW 318 I, Nissan Sentra and Mini Cooper. He admitted he was paying bills while in London.  The claimant disagreed with learned counsel for 2nd applicant’s suggestion that, looking at his expenses, there is no way he could have gotten money to buy the property in issue.  He insisted that, between the years 2003 to 2008, he had saved enough money to own it. He denied that he and his father, the respondent herein, \r\n8  \r\npurportedly have the same name in order to outwit the law enforcement agencies. He explained that he has worked since 1995 which has enabled him to save enough money to acquire the plot in issue and build a restaurant. He added that he has three shops and he is operating one of them as Varieties Pub. He stated that he has rented out one of the shops for five years and he is putting up a barbering saloon in the third shop. He said he built on the land in 2008 and has witnesses to prove same.  The main evidence the claimant relied on to establish his claim to the property in dispute is that, although, he and his father, the respondent, have the same name, they have difference signatures. The claimant said he has three different signatures and he explained to the court that he was using a particular signature but at a point in time he was not comfortable using that so he changed it. He stated that he has the right to sign signatures that he can always re-sign back.  The essence of a signature is to let people know who authored a document. It is one of the things that can indicate that a document is genuine and binding on the one who signed it. The question is, as the claimant here says he has three different signatures, how would anyone know which one he is using and relying on at any given time? Should the public or anyone who relies on a particular signature of the claimant herein do so to their detriment? I do not think so. Since the claimant does not have one signature, how can any person rely on his signature when they are not consistent? This is more so when the issue of his signatures being different from that of his father, the respondent herein, is what the claimant is relying on to prove that the property is his. The claimant says he has different signatures which he claims he changes and uses depending on the circumstances. How can any court rely on such evidence?  This is one area of the law where the person who claims the property has the burden to establish ownership of same on the balance of probabilities. Although the claimant stated he bought the property himself, he didn’t tender any documentary proof of that, for example evidence of his earnings in U.K. etc., evidence of being part owner of the barbering shop in U.K., etc., not even one receipt in support of his earnings or acquisition of the property in issue. How can any court accept such evidence without cogent proof? The claimant did not also produce any witness to corroborate any of his claims. In the circumstances, it is difficult to attach much weight to his evidence. I have evaluated the totality of the evidence adduced in this case, the facts and circumstances of it and on the balance of probabilities, came to the conclusion that \r\n9  \r\nthe property in issue is the property of the respondent herein and not his lawful attorney, the claimant herein.  It is not in dispute that the respondent herein has been convicted of a narcotic offence and is currently serving his sentence. I am satisfied that the property herein was derived from the proceeds of crime.  In the circumstances, I hereby grant the application for confiscation and confiscate Plot No. 2A, Mango close, Dansoman, Accra, belonging to the respondent herein to the state.  There is no order as to costs.     \r\n      (SGD.) GEORGINA MENSAH-DATSA \r\n(JUSTICE OF THEHIGH COURT)     \r\nCOUNSEL:  1. Mr. Daniel Amankwah for the 2nd applicant. 2. Mr. Kwesi Baffoe Intsiful for the respondent and claimant.     ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'FTRM 227/13', '', '', '', '2016-02-26', ''),
(647, 'EMMANUEL DATSIEVOR AMEVOR  VRS. A. A. ABROKWA', '', 'links/cases/EMMANUEL DATSIEVOR AMEVOR v. A. A. ABROKWA.pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T This is not a Financial and Economic Crimes case. I exercise jurisdiction in this case pursuant to an Order of Transfer dated 23rd February 2015.  \r\nThe plaintiff claim against the defendant the following reliefs: \r\n1. Declaration to title to the 0.11 Acre of Land situated at Agbogbloshie.  2. Recovery of possession to the said land from the Defendant.  3. An order to perpetual injunction restraining the Defendant, his agents or servants from continuing with the development of the said land including acts that amount to an assertion of title to the land.  4. An order restraining the Defendant from interfering with the Plaintiff’s right to quiet possession of the land. \r\nThe plaintiff is a businessman and domiciled in the United Kingdom whilst the defendant is a businessman resident in Accra. \r\nThe plaintiff’s case is that the land in dispute was acquired by his late father Francis Heletsi Amevor from the late R.M. Johnson in the early 1960’s. He stated that his father erected structures on the land which were occupied by his siblings Anani Amevor and Azametsi amevor who undertook commercial activities on the land. He added that his father established a beer bar and a printing press on the land until his \r\n2  \r\ndemise in 1995. He said his late father bequeathed the said parcel of land to him. He stated that his late father commenced the process of registering the land in his name but could not complete it before he died in 1995. According to the plaintiff he has completed the registration process and his name has been entered at the Lands Commission as the owner of the owner. He contended that sometime in 2010 the defendant went onto the land without his authority and demolished the printing press which was the only structure left on the land at the time and is putting up a structure for commercial purposes on the land. He said when the defendant’s acts came to his attention he asked his attorney to question the defendant about his conduct but he failed to heed to wise counselling so the matter was reported to the police whose investigation established that the land was acquired by the plaintiff’s late father so they advised him to take the matter to court. \r\nThe defendant’s case is that the late R. M. Johnson did not own the land in dispute since it has been part of the family property of the late Gilbert Johnson family from time immemorial. He asserted that the said land has never been regarded as part of the estate of the late Francis Heletsi Amevor. He contended that the Gilbert Johnson family granted him a lease in 1998 and ejected those previously in possession to facilitate vacant possession of the land by the defendant. He stated that it was one David Agbeko Amevor who interfered with his construction on the land and when a report was made to the police they advised that they go to court. The defendant contended that his title to the land in dispute has already been decided in the civil appeal entitled George Kofi Gyima vrs. J. K. Abrokwa, Civil Appeal No. H1/64/09 in which a judgment delivered on 5th November 2009, declared that the defendant holds a valid grant of a lease of the land in dispute from the Gilbert Johnson family. He stated that the plaintiff and his assigns are aware of the said suit therefore the plaintiff is estopped by the said judgment from disputing the defendant’s interest in the land in dispute. He maintained that his possession and development of the land in dispute is lawful. \r\nThe issues for trial are these: \r\na. Whether or not the Plaintiff is the rightful owner of the land in dispute on the basis that he was gifted the said land by his late father.  b. Whether or not the Defendant is in adverse possession of the disputed property.  \r\n3  \r\nc. Whether or not the Defendant’s grantors had the authority of the principal members of Johnson family to sell the disputed property to the Defendant.  d. Whether or not the plaintiff is entitled to his claims.  e. Any further or other issues arising from the pleadings.  \r\nThe defendant added the following as additional issues: \r\n1. Whether or not the plaintiff is estopped by the judgment in the suit entitled George Kofi Gyima versus J. K. Abrokwa, Civil Appeal No. H1/ 64/09 delivered on 5th November, 2009 from litigating the title of the defendant to the land in dispute. 2. Additional issue No. 1 be set down for legal argument.   \r\nThe application for directions was taken and granted on the 24/11/2011 for the issues   filed on the 18/11/11 and additional issues filed on the 22/11/11 set down for trial by the court.  It must be stated that on record there is a notice of additional issues filed on the 11/11/11 (by the previous counsel for the defendant) which listed three additional issues and relied on by the current counsel for the defendant in his address to the court but these issues were not the ones accepted by the court when it granted the application for directions. \r\nThe plaintiff commenced his evidence in chief on 11/11/2013 and on 2/12/2013 learned counsel for the plaintiff sought an adjournment to amend their pleadings. The application by the plaintiff for leave to amend his Statement of Claim to add paragraphs 21 and 22 to read as follows: \r\na. The plaintiff says two searches were conducted on the 29th day of November 2010 and the 24th day of September, 2013 and both revealed the plaintiff as the owner of the land in dispute. b. The plaintiff further says that a publication in the Ghanaian Spectator, dated on the 17th day of September, 2011 also revealed details of the plaintiff at number 57 as the owner of the parcel of land in dispute. \r\nwas moved and granted on the 20/5/2014.   \r\n4  \r\nAlthough both counsel stated that they will file addresses only counsel for the defendant did. \r\nWith respect to the issue of whether or not the Plaintiff is the rightful owner of the land in dispute on the basis that he was gifted the said land by his late father, learned counsel for the defendant submitted in his address that the issue of capacity like jurisdiction is very important and must be taken by the court even if the parties fail to take it and cited the cases of Duah v. Yorkwa [1993-94] 1 GLR 217, Sarkodiee I v. Boateng II [1982-83] 1 GLR  715 and Kwame v. Serwah [1993-94] 1 GLR 429. He stated that from the evidence adduced on behalf of the plaintiff, what he meant by bequeathed was a gift. He added that the plaintiff had to establish his capacity by leading evidence that he had a gift either at common law, statute or under customary law. He contended that if the gift was not a customary gift, it has to be proved with a deed of gift. He stressed that no deed of gift has been tendered in court. He stated that from the evidence led the plaintiff’s father had no document on the land in dispute. He submitted that from the evidence of the plaintiff and his witness he is relying on a customary law gift but no evidence was led on that as no evidence was led on any of the incidents of a gift at customary law especially aseda and concluded that the plaintiff has not been able to establish a capacity to issue the writ. He relied on the cases of Abdul Rahman Osumanu Giwah & Ors v. Baba Ladi; Suit No. CA/NOJ4/36/2013 SC unreported dated 29 July 2013, Mahama Hausa v. Baako Hausa [1972] 2 GLR 469, Asare v. Kumodji [2000] SCGLR 298, Akunsah v. Botchway & Jei River Farm Ltd. [2011] 1 SCGLR 288, Barko v. Mustapha and Ano. [1964] GLR 78 and In Re Ohene (Dec’d); Adiyia v. Kwere [1975] 2 GLR 89. Learned counsel for the defendant submitted that even if the property belonged to the plaintiff’s father, which is denied, the proper persons to bring the writ are the administrators of the estate of Francis Amevor and not the plaintiff who is not an administrator.  \r\nI have considered the evidence adduced and submission made by learned counsel for the defendant and come to the conclusion that the Plaintiff is not the rightful owner of the land in dispute on the basis that he was gifted the said land by his late father as the evidence led did not support his claim. \r\nOn the issue of whether or not the Defendant is in adverse possession of the disputed property, he led evidence to prove that he was not in adverse possession. Learned \r\n5  \r\ncounsel for the defendant submitted that the defendant led evidence and tendered exhibits 1, 2, 3, 4 to indicate that he is a lessee of the Johnson family who are the owners of the land in dispute. He said in exhibit 4 the administrators of the estate of Francis Amevor were informed by the Johnson family of the imminent demolition of their structure and they have not challenged the demolition or the defendant’s occupation of the land. He stated that the evidence is that upon the demolition it was the plaintiff’s attorney who went to report to the police. He stressed that it was the Johnsons who maintained control of the land and the plaintiff’s father was permitted to put up a small structure to do his printing work and he was not in exclusive possession of the land. He stated that the Johnson family had the authority to lease their land to the defendant and they did. He said they lawfully ejected everyone from the land and put the defendant in possession so the defendant cannot be said to be in adverse possession as he is on the land as a licensee of the true owners of the land, i.e. the Johnsons. He quoted Ghana Land Law and Conveyancing by B.J da Rocha and C. H. K. Lodoh at page 163 which defined adverse possession as “possession which is inconsistent with the title of the true owner of the land and not possession under a license from him or under some contract or trust”. He asserted that to be in adverse possession, there must be a squatter and a true owner and in this case, the defendant who is a lessee of the Johnson family cannot be said to be in adverse possession.  \r\nFrom the evidence led, it is clear that the defendant is not in adverse possession as he established how he came to be on the land lawfully. I therefore find as a fact that the defendant is not in adverse possession.     \r\nConcerning the issue of whether or not the Defendant’s grantors had the authority of the principal members of Johnson family to sell the disputed property to the Defendant, the defendant and his witness led evidence to establish same. \r\nWith regards to the issue of whether or not the plaintiff is estopped by the judgment in the suit entitled George Kofi Gyima versus J. K. Abrokwa, Civil Appeal No. H1/ 64/09 delivered on 5th November, 2009 from litigating the title of the defendant to the land in dispute, it is a fact that the defendant has a judgment of the court   (exhibit 5) in his favour. The said judgment has not been quashed or set aside it is therefore binding and serves as an estoppel.  \r\n6  \r\nTo determine the issue of whether or not the plaintiff is entitled to his claims, the plaintiff’s lawful attorney Francis Amevor tendered exhibit A the Power of Attorney and said the plaintiff is his step brother who lives in London. He testified that their late father Francis Heletsi Amevor gifted the land in dispute to the plaintiff. He stated that before their late father gifted the land to the plaintiff he had started processing the land document in 1992. He said after their father’s death in 1995, the plaintiff gave him a Power of Attorney to continue with the registration of the land and he was given a new yellow card exhibit B. He also tendered exhibits C and D being searches conducted on the 29th November 2010 and 24th September 2013 respectively on the land. He asserted that after that they had a publication in the Spectator on the 17th September 2011 at page 26 tendered as exhibit E. According to him he was to follow up to get the certificate but due to the court cases he had not done so. He gave evidence that his late father had been on the land since 1960 and died in 1995. He added that he was working with his late father in the Salvation Press on the land and their building was on it.  He contended that on 21st April 2010 the defendant came to the land and demolished the Salvation Press claiming the land had been sold to him. Plaintiff’s attorney said he reported the issue to the police and they were advised to go to court. Under cross-examination plaintiff’s attorney said his late father owned the land but there is no document executed in favour of him. He said there is a yellow card in the plaintiff’s name. He said exhibit A was signed in 2010 but stamped on 11th February 2002. He stated that his late father had two wives, his mother Cecilia Esibu and his step mother Rosina Adjorlolo also known as Mrs. Amevor. He stated that their father did not make a Will and Letters of Administration have been taken on his estate. He said the administrators of the said estate were David Agbeko Amevor, Esther Amevor, Rosina Amevor and he Francis Amevor. He denied that until they instituted this writ the defendant had exercised control of the land for 13 years. He also denied that David Agbeko pulled down the defendant’s structure on the land. \r\nPW1 William Korshie Ahiabli, a private investigator and surveillance operative said the plaintiff and his lawful attorney are is uncles as they are his mother’s cousins. He said he came to Accra on 2nd January 1959 and was visiting his grandfather the late Francis Koshie Eletsie Amevor. He said around 1993 he went to Land Title with his grandfather and on the third occasion he gave him a yellow card and asked him to be checking it for him due to his old age. He said his grandfather died on the 5th \r\n7  \r\nJune 1995 and after his funeral he handed over the yellow card exhibit B to the person whose name was on it, that is, the plaintiff herein. According to him plaintiff said he is busy so he plaintiff will prefer his lawful attorney herein to continue with the process and pleaded with him to assist his lawful attorney. He said later plaintiff’s attorney told him the printing press on the land was being demolished and he told him to go to the police and he later joined him at the police station where they gave their statements and the defendant herein against whom they made the complaint was invited and he also came to the police station and they were advised to go to court. He said the printing press belonged to his grandfather and had been on the land since 1974.  He said presently there is a tall building standing on the land replacing the old Salvation Press. Under cross-examination PW1 said gave him only the yellow card but did not show him any document on the land so he does not know if he had any indenture on the land but maintained that his grandfather told him the land is his. He said his grandfather gave him the yellow card three years before he died and within that period he introduced him to one Mr. Mensah who said he was working on it so he should give him time and later he gave back the document to the owner and does not know where it got to. \r\nThe defendant testified that in 1998, he negotiated with the principal members of the Johnson family for the land in dispute and tendered the lease he got from the Johnson family as exhibit 1 and took effective possession of it. He said there were tenants and some Johnson family members staying in old structures on the land and the family cleared them. He added that there was a small structure built at the edge of the land used as a printing press by the late Mr. Francis Amevor and later used by Mrs. Rosina Amevor as a shop for selling drinks. He said the Johnson family wrote to the tenants to leave the site through their lawyer and took them to court and tendered exhibit 2 in support of his evidence.  According to him the tenants requested for a short time to leave the site and which was agreed on and they all left. He stated that the family told Mrs. Amevor that they needed the place she was occupying and she left and tendered exhibit 3.  He also tendered exhibit 4 a letter from the family to the administrators of Mr. Amevor to demolish the printing press. He said George Kofi Gyima took him to court with respect to the land in dispute and he tendered the judgment in the defendants’ favour as exhibit 5. He asserted that he has developed the said land but the plaintiff is claiming it and tendered exhibit 6 as a search conducted which shows that the land does not belong to the plaintiff. Under cross- \r\n8  \r\nexamination the defendant said his official name is Andrews Asante Abrokwa but he is also known as Jimmy Kwasi Abrokwa, and admitted in exhibit 5 he was sued the by name J. K. Abrokwa. He tendered exhibit 7 a National Identification Card bearing the name A. A. Abrokwa as his official name. He said he entered into the agreement with the Johnson family in 1998 but it was documented in 2001 as stated in exhibit 1. He said he did not do a search at the Survey and Mapping Division of Lands Commission. He stated that he is not aware of exhibit C. He said he is not aware that there was a publication about the disputed land for which he never objected to. He said he and the Johnson family demolished the printing press. \r\nDW1 Samuel Awusu Maxwell Johnson testified that the land in dispute is owned by the Johnson family of Accra. He stated that the defendant came to the said family for land. He asserted that he knows the plaintiff and he was born in their family house. He said the defendant is the one in occupation of the land in dispute now. He tendered exhibit 7 an AMA environmental bill in the name of Baffoe (carpenter) dated 26th February 2003 which relates to the land that has the printing press and other structures. He also tendered exhibit 8 a letter written by Mrs. Amevor (plaintiff’s father’s wife) and contended that before exhibit 8 Mrs. Amevor paid rent to him. He tendered exhibits 9 and 9A. He stated that he was not in the country so could not tell how the plaintiff’s father came on the land but it cannot be true that the land was sold to the plaintiff’s father because they do not sell their lands but lease it. He   gave evidence that so far as the Johnson family is concerned it is the defendant who must be on the land in dispute. Under cross-examination DW1 said he testified at the police station in connection with the land in dispute for the family’s interest and not for anybody. He admitted he testified with respect to exhibit 5 for the plaintiff therein against the defendant therein and herein. He stated that it was his father and uncle who gave the land to the defendant. He said the lease between the Johnson family and the defendant was signed between 1998 or 1999 and he was a witness to it. He said he was a witness to the lease agreement between G.K. Gyimah and the Johnsons. He said he was not in the country when the buildings including the printing press were demolished but when he returned the plaintiff’s lawful attorney reported the case to him and he accompanied him to the police station and when the police asked him he told him he didn’t know who demolished it. He said when he came down from London he sought the permission of Rosina Amevor to develop the land not because the Amevors were the owners of the land but because \r\n9  \r\nthey had buildings on it. DW1 said he does not know of any contractual relationship between R. M. Johnson and the plaintiffs. He added that R. M. Johnson is a younger brother to his father J. B. Johnson who was the head of the family and his uncle would not do anything without consulting his father. \r\nI have deliberately stated the detailed evidence adduced by the parties and their witnesses in this case which is the basis for the judgment. DW1 who has related to both parties herein has testified that the land in dispute belongs to the defendant because he got it from their family the rightful owners of it. He has corroborated the defendant’s evidence which is supported with documentary evidence. I have carefully evaluated the totality of the evidence led and am persuaded by that of the defendant.  \r\nAn evaluation of the evidence adduced indicates 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 (NRCD 323). The plaintiffs claim fails and judgment is entered for the defendant.  I have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case and award costs of GH¢8,000.00  to the defendant  against the plaintiff herein.  \r\n      (SGD) GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)    \r\nCounsel: Mr. Ellis K Quashigah for Plaintiff.                Mr. Nii. Akwei Bruce-Thompson for Defendant. ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'FAL 717/11', '', '', '', '2016-01-21', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(648, 'EX-CHIEF INSP. ADAMS KYEI  VRS.  1. THE INSPECTOR GENERAL OF POLICE   2. THE ATTORNEY-GENERAL ', '', 'links/cases/EX-CHIEF INS. ADAMS KYEI v. I. G. P. & ANOR..pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T The plaintiff claims against the defendants the following reliefs: \r\na. A declaration that the purported dismissal of the plaintiff from the Police Service is wrongful, null and void and of no legal effect.  b.  An order for re-instatement. \r\nOr in the alternative \r\nc. Damages for wrongful dismissal. d. Any other order(s) as this Court may seem just. \r\nThe facts of this case are that the plaintiff was a Chief Inspector of Police with the Ghana Police Service and was the Criminal Investigations Department (CID) Station Officer, stationed at the Airport Police Station, Accra before his dismissal from the Police Service.  \r\nThe plaintiff’s case is that he has been in the police service for almost 23 years. He was arraigned before a Disciplinary Board headed by Mrs. Patience Ashiokor Quaye to hold formal proceedings into his conduct. He avers that on or about the 3rd day of August, 2011, the proceedings commenced with the first witness, one Anthony Golo, a Bureau of National Investigations (BNI) officer and an uncle of one Christopher Amenyona, the owner of the subject matter of the enquiry. The plaintiff’s lawyers \r\n2  \r\ntook preliminary legal objection against the capacity of the said BNI Official and the adjudicating officer adjourned the case for her ruling but no ruling was given in respect of the objection taken.  The plaintiff claims that after the adjudicating officer made him swear and his lawyers drew the attention of the adjudicating officer that the procedure was wrong and the case was adjourned, he was not at any other time thereafter sworn in to give evidence to put his side of the case before the adjudicating officer. According to the plaintiff whilst the matter was still pending before the adjudicating officer, on  or about the 18th January, 2012, he received a police wireless-message notifying him about the “LIFTING OF INTERDICTION” and subsequently his uniforms and other apparel and his weapon were all returned to him to resume his normal police duties. The plaintiff said quite surprisingly, on the 20th  day of July 2012, he received another document from the Central Disciplinary Board (CDB) with the heading “REVIEW OF SERVICE ENQUIRY PROCEEDINGS BY THE CENTRAL DISCIPLINARY BOARD” purporting to remove him from the Police Service following a service enquiry into his conduct by Chief Superintendent Patience Ashiorkor Quaye of HTU CID/HQRS. The plaintiff contends that his purported removal from the Police Service has no legal basis because he was never given a hearing at the Service Enquiry which offends against the audi alterem partem rule, a cardinal principle of natural justice. The plaintiff stated that being aggrieved by the way he was removed from the Police Service, he petitioned the Inspector General of Police (IGP) and Rose Bio Atinga wrote again on the 23rd April 2013 to say that “After careful perusal and consideration of his petition, the Inspector General of Police was of the view that your client was fairly dealt with, considering the gravity of the charges, upon which he was tried and dismissed.” \r\nThe defendants’ case is that in July 2009 one Christopher Amenyona who was travelling outside the country parked his unregistered Toyota Camry Saloon car at parking lot seven at the Kotoka International Airport (KIA), for safekeeping to collect same on his return. According to the defendants Christopher Amenyona’s uncle called Anthony Golo went to the KIA to check on his nephew’s car but found that the car had vanished from the parking lot. He made some enquiries and discovered that it was the plaintiff who had caused the car to vanish, so he petitioned the Police Intelligence and Professional Standards Bureau (PIPS) for the matter to be investigated. The PIPS conducted investigations into the matter and recommended that is was clear that the plaintiff had dented the image of the Ghana \r\n3  \r\nPolice Service and so he should be interdicted and tried by a Service Enquiry. The Police Administration by Police Wireless message DTO: 141230/11/11 requested that Chief Superintendent Patience Ashiokor Quaye (DW4) to conduct Formal Proceedings under regulations 4(3) (c) of the Police Service Disciplinary Proceedings Regulation 1974 (L.I. 933) involving Chief Inspector Kyei Adams. On 24th May, 2010, the Central Disciplinary Board ordered DW4 to conduct the Service Enquiry. On 16/09/2010, the plaintiff was formally charged with Misconduct: Contrary to section 17(k) of Act 350/70. The defendants contended that the Service Enquiry commenced on the 12/11/2010 and the following findings were made: \r\na. With the evidence shown the defendant stole the car as claimed by the prosecution witness. b. It is evident that defendant stole the car and after the petitioner had lodged a complaint against him that he bought a similar one for the owner and refunded an amount of $3000. 00, an indication that he actually stole it. c. Defendant in answer to a question admitted that it was through his negligence that the car got missing hence he should be blamed for that. \r\nThe defendants stated that DW4 as the Adjudicating Officer recommended that the plaintiff should be severely reprimanded to serve as a deterrent to others. On 20th July, 2012, the Central Disciplinary Board in reviewing the record of proceedings and considering the findings of the adjudicating officer imposed a sentence of Removal from the Service.        \r\nThe issues set out for trial are as follows: \r\na. Whether or not the plaintiff was arraigned before a Disciplinary Board headed by Mrs. Patience A. Quaye to hold formal proceedings into the Plaintiff’s conduct.  b. Whether or not the proceedings commenced with the first witness one Anthony Golo a BNI Officer giving evidence.   c. Whether or not the said witness was cross-examined by plaintiff’s lawyers. d. Whether or not the plaintiff was ever given a hearing. e. Whether or not the plaintiff received a Police Wireless Message on 18th January 2012 notifying him of the “LIFTING OF INTERDICTION’ and resumed duties as normal. \r\n4  \r\nf. Whether or not on 20th July 2012, the plaintiff was served with a “REVIEW OF SERVICE ENQUIRY BY THE CENTRAL DISCIPLINARY BOARD” purporting to remove the plaintiff from the Police Service following a Service Enquiry.  g. Whether or not the purported removal of the plaintiff from the Police Service was wrongful. h. Any other issue(s) arising from the pleadings. \r\nThe defendants filed additional issues which are as follows: \r\n1. Whether or not the plaintiff herein towed an unregistered Toyota Camry Saloon Car from the Kotoka International Airport (KIA) to the Kotoka International Airport Police Post alleging that it was involved in a criminal investigation he the plaintiff was handling. 2. Whether or not the plaintiff was investigating a criminal matter involving the said Toyota Camry Saloon Car.  3. Whether or not the above-mentioned Toyota Camry Saloon Car has vanished and has to date not been found.  4. Whether or not there was a petition to the Police Intelligence and Professional Standard Bureau (PIPS) by the owners of the Toyota Camry Saloon Car to investigate the alleged stealing of same.  5. Whether or not the Police Intelligence and Professional Standard Bureau (PIPS) investigated the alleged stealing of the Toyota Camry Saloon Car and found the plaintiff culpable.  6. Whether or not the plaintiff herein admitted to the Police Intelligence and Professional Standard Bureau (PIPS) that he stole the Toyota Camry Saloon Car.  7. Whether or not charges of Misconduct contrary to section 17(k), Act 350, 1970, and a Notice of Formal Proceedings were served on the plaintiff.  8. Whether or not there was a Service Enquiry adjudicated by Patience Quaye on the alleged stealing and misconduct of the plaintiff.  9. Whether or not the plaintiff herein appeared before the Service Enquiry adjudicated by Patience Quaye.  10. Whether or not there was a Review of the Service Enquiry adjudicated by Patience Quaye by the Central Disciplinary Board resulting in the Dismissal of the plaintiff.  \r\n5  \r\n11. Whether or not the dismissal of the plaintiff was wrongful. \r\nOn the issue of whether or not the plaintiff was arraigned before a Disciplinary Board headed by Mrs. Patience A. Quaye to hold formal proceedings into the plaintiff’s conduct, the plaintiff and defendants witnesses all testified that the plaintiff appeared before her for a Service Enquiry. Under cross-examination the plaintiff said he was not asked to appear before a Disciplinary Board. He explained that a Disciplinary Board is different from Service Enquiry. He said after the Service Enquiry the report is sent to the Disciplinary Board which is made up of three senior police officers (COP). He stated that the Service Enquiry is made up of one officer, one Inspector and one junior officer.  \r\nWith respect to the issue of whether or not the proceedings commenced with the first witness one Anthony Golo a BNI Officer giving evidence, exhibit 1, the record of formal proceedings indicate that he was not the first witness as he testified on the 21/10/2011 and hearing commenced on 21/09/2011. DW4 Chief Superintendent of Police, Mrs. Patience Ashiokor Quaye, the adjudicating officer at the Service Enquiry explained that at the first hearing the plaintiff swore on the Bible. She said Antony Golo was not present on that day because they could not locate him at that time.  \r\nRegarding the issue of whether or not the said witness was cross-examined by plaintiff’s lawyers, exhibit 1 indicates that the plaintiff’s lawyer asked him a few questions and then objected to the witness saying that he had no authority from the owner to claim anything on his behalf, thereby challenging his capacity. \r\nConcerning the issue of whether or not the plaintiff was ever given a hearing, the plaintiff claimed he was not given a hearing whilst the defendants’ witnesses contended he was. Exhibit 1 corroborates the evidence adduced that he was given a hearing as his evidence was taken on oath and he was given the opportunity to question the petitioner and his lawyer cross-examined the petitioner. This issue is dealt with in detail in the judgment. \r\nWith regards to the issue of whether or not the plaintiff received a Police Wireless Message on 18th January 2012 notifying him of the “LIFTING OF INTERDICTION” and resumed duties as normal, exhibit D states LIFTING OF \r\n6  \r\nINTERDICTION. No evidence was adduced to dispute the plaintiff’s claim that he resumed his duties thereafter. \r\nThe issue of whether or not on 20th July 2012, the plaintiff was served with a “REVIEW OF SERVICE ENQUIRY BY THE CENTRAL DISCIPLINARY BOARD” purporting to remove the plaintiff from the Police Service following a Service Enquiry is not in dispute as same is stated on exhibit E.  \r\nWhether or not the purported removal of the Plaintiff from the Police Service was wrongful will be determined later in this judgment.  \r\nOn the issue of whether or not the plaintiff herein towed an unregistered Toyota Camry Saloon Car from the Kotoka International Airport (KIA) to the Kotoka International Airport Police Post alleging that it was involved in a criminal investigation he the plaintiff was handling, the plaintiff gave evidence that he and one Oscar towed the car because Oscar told the police he wanted his car to be moved.  DW1 King Solomon Atobrah works with the Ghana Airports Company Limited as a car park supervisor. He testified that he knew the plaintiff. He said that the plaintiff confirmed Staff Officer Opete’s claim that the car was under investigation hence it was picked up. DW2 John Rocky Asiamah is the Staff Officer and works with the 24 Hour Towing, Airport. DW2 said it was when officials from the Ghana Airport Company Limited asked him about the whereabouts of the said car that he knew he had been deceived by the plaintiff when he told DW2 that he was investigating a case on the car. The evidence adduced is clear that the said car was never the subject of any investigations. \r\nWith regards to the issue of whether or not the plaintiff was investigating a criminal matter involving the said Toyota Camry Saloon Car, no evidence was adduced to establish that was the case. The plaintiff denied that he said he was investigating a case involving the said car. The undisputed evidence led is that the said car was never the subject of any investigations. \r\nConcerning whether or not the above-mentioned Toyota Camry Saloon Car has vanished and has to date not been found, the evidence led is that the said car is missing and same has not been found till date.  \r\n7  \r\nWith respect to whether or not there was a petition to the Police Intelligence and Professional Standard Bureau (PIPS) by the owners of the Toyota Camry Saloon Car to investigate the alleged stealing of same, the evidence led establishes that was the uncle of the owner, Anthony Golo, who reported the case to PIPS. This was confirmed by Anthony Golo (DW3). \r\nThe issue of whether or not the Police Intelligence and Professional Standard Bureau (PIPS) investigated the alleged stealing of the Toyota Camry Saloon Car and found the plaintiff culpable, it answered in the affirmative by exhibit 4.  \r\nWhether or not the Plaintiff herein admitted to the Police Intelligence and Professional Standard Bureau (PIPS) that he stole the Toyota Camry Saloon Car cannot be determined as there is no evidence that he admitted stealing the car.  \r\nThe issue of whether or not charges of Misconduct contrary to section 17(k), Act 350, 1970, and a Notice of Formal Proceedings were served on the Plaintiff is not in dispute as exhibit A confirms that.  \r\nWith respect to the issue of whether or not there was a Service Enquiry adjudicated by Patience Quaye on the alleged stealing and misconduct of the plaintiff, the witnesses and exhibit 1 establish this clearly beyond doubt.  \r\nWith regards to the issue of whether or not the plaintiff herein appeared before the Service Enquiry adjudicated by Patience Quaye, the plaintiff, defendants’ witnesses and exhibit 1 all confirm that he did.  \r\nWhether or not there was a Review of the Service Enquiry adjudicated by Patience Quaye by the Central Disciplinary Board resulting in the dismissal of the plaintiff is not in dispute as stated in exhibit E.  \r\nThe plaintiff had has an issue whether or not the purported removal of the plaintiff from the Police Service was wrongful. Among the defendants’ additional issues was the issue of whether or not the dismissal of the plaintiff was wrongful. They are the same issue and will be determined together.  \r\nIn his written address learned counsel for the plaintiff submitted that the plaintiff’s complaint is about the proceedings at the Service Enquiry and what went on there. He stated that under cross-examination DW1 King Solomon Atobra said he was not \r\n8  \r\naware that there was a Service Enquiry into the conduct of the plaintiff, neither was he invited as a witness before that Police Enquiry. He added that under crossexamination DW2 John Rocky Asiamah said he never appeared before the Police Service Enquiry to give evidence against the plaintiff but it was rather the PIPS that took a statement from him. He submitted that under Police Force (Disciplinary Proceedings) Regulations, 1974, L.I. 993 regulation 10 and 13(g) makes a mandatory requirement that “the proceedings shall be recorded in writing, and any verbal statement which a defendant may make in addition to his written statement of explanation shall be taken down in writing”. Learned counsel stressed that the plaintiff was not even called upon to open his defence. He stated that from the evidence of DW3 and DW4 and their answers under cross-examination, the plaintiff’s claim that he was not given a hearing at the Service Enquiry has been established. He contended that DW4 merely acted on the report from PIPS by making references from same when that report was not formally tendered in evidence by an officer from PIPS or the person who wrote same. He cited In Re- Ashalley Botwe Lands; Adjetey Agbosu v. Kotey [2003-2004] SCGLR 420 and Sections 11(1), 13 and 14 of the Evidence Act and submitted that per the evidence adduced before the court the plaintiff is entitled to the reliefs endorsed on his Writ of Summons.   \r\nLearned counsel for the defendant submitted in his written address that the plaintiff attested to the fact that he was the CID Station Officer at the Airport Police Station and that the car involved in this case is a Toyota Camry. Learned counsel stated that the plaintiff admitted during cross-examination that he gave a statement to PIPS, which confirms that he was investigated. It was submitted that the plaintiff admitted under cross-examination that he appeared before DW4 in a Service Enquiry. \r\nIn his written address learned counsel for the defendants submitted that the plaintiff’s claim must fail because an evaluation of the evidence before the court on a preponderance of probability shows that he failed to impugn the Service Enquiry. It was contended that he failed to challenge the penalty of removal from service imposed on him by the Central Disciplinary Board. It was submitted that given the fact that the matter was investigated by PIPS which culminated in the Service Enquiry, whose findings was reviewed by the Central Disciplinary Board which imposed a harsher sentence, the removal of the plaintiff was lawful notwithstanding that he tried to replace the car and $3,000.00 to Christopher Amenyona. \r\n9  \r\nLeaned counsel for the defendants quoted section 12 of the Evidence Act, 1975 (NRCD 323) and cited the cases of In re Yendi Skin Affairs; Andani v. Abdulai (1982-83) GLR 1080 at 1085 and Kisko Products (Ghana) Limited v. Delmas America Africa Lines (2001-2002) 1 GLR 368 at 367 in support of their case. \r\nDW1 stated under cross-examination that he was aware that there was a Service Enquiry into the conduct of the plaintiff. He said he DW1 was not invited as a witness before that Police Enquiry. Under cross-examination DW2 said he did not appear before the Police Service Enquiry to give evidence against the plaintiff but it was the PIPS that took a statement from him.  \r\nDW3 Anthony Golo testified that his nephew Christopher Amenyona’s unregistered Toyota Camry car got missing from the KIA car park and his investigations indicated that it was the plaintiff who towed it away. DW3 said he petitioned the IGP on the issue of the missing car. He said he confronted the plaintiff to return the car but he did not but rather bought another car to replace it. He emphasized that the car the plaintiff bought was the same brand of car but the one plaintiff bought was Japan and the missing one was an American model. DW3 said he was aware that as a result of his petition to the IGP, the matter was referred to the PIPS. Under crossexamination DW3 said he appeared before PIPS and also the Service Enquiry at the Police Headquarters. DW3 said he appeared before DW4 the adjudicating officer twice and he was questioned by the plaintiff’s lawyers. Under cross-examination DW3 said DW4 asked the plaintiff questions. \r\nDW4 gave evidence that she was mandated by the Police Administration to try the plaintiff. She said she received a report (exhibit 2) from PIPS through the Police Administration. She tendered exhibit 3 the petition to PIPS. She stated that she conducted a Service Enquiry and tendered exhibit 1 as the record of the formal proceedings. She said she found the plaintiff guilty and recommended that he be reprimanded by the Police Administration. She tendered exhibit 6 the review conducted by the Central Disciplinary Board. \r\nUnder cross-examination DW4 said apart from this Service Enquiry she had conducted one other. She disputed plaintiff’s counsel contention that she is not very conversant with Service Enquiries. DW4 stated that she was not aware that during the Service Enquiry the interdiction of the plaintiff was lifted and stressed that at the \r\n10  \r\ntime the plaintiff was said to have been recalled to duty the Service Enquiry had not been concluded. She explained that in the conclusion of her Service Enquiry, she wrote that the plaintiff had been on interdiction for a long time. She said the plaintiff’s lawyer in court was one of the two lawyers the plaintiff attended the Service Enquiry with. She denied that the plaintiff was not given a fair trial at the Service Enquiry. She tendered exhibit 1 as her summary of the evidence based on the facts of the case. She stressed that the plaintiff was given the opportunity to be heard and gave evidence. She admitted that the proceedings of a formal Service Enquiry is to be recorded in writing and stated that when they finish the Enquiry, they type and submit a report officially. She said the hand written proceedings were a draft so after typing them she did not file them.    \r\nUnder cross-examination the plaintiff maintained that he never spoke to the adjudicating officer, DW4 but she disputed this. Exhibit 1 indicates that the plaintiff appeared before the adjudicating officer at least three times or on three different occasions, was sworn on the Bible and gave evidence or was asked questions by DW4. \r\nDW2, DW3 and DW4 corroborated the evidence adduced that the petition against the plaintiff was investigated by PIPS.  \r\nThe plaintiff, his lawyer, DW3 and DW4 all stated that DW3 was at the Service Enquiry and questioned by the plaintiff’s lawyer. They all stated that in the course of the plaintiff’s lawyer questioning DW3, there were heated exchanges so DW4 adjourned the proceedings. The plaintiff claims that the Enquiry was not properly conducted and concluded because they were never recalled by DW4. The plaintiff’s case is that when his lawyer challenged DW3’s capacity to testify they were never given another opportunity to cross-examine him. Under cross-examination the plaintiff admitted his lawyer asked Anthoy Golo (DW3) some questions. Under cross-examination, DW4 maintained that the plaintiff’s counsel had the opportunity to cross-examine DW3 and he did. She added that the plaintiff’s counsel in court had the opportunity to cross-examine DW3 when they appeared before her, but he did not take it but rather attacked him from the way she saw it. DW4 stated that after that day, counsel for the plaintiff did not further cross-examine DW3 neither did the plaintiff ask DW3 any questions. DW4 stated that DW3 was recalled after that day to testify and he did as indicated on exhibit 1.  \r\n11  \r\nUnder cross-examination, DW4 said exhibit 3 the petition to PIPS was referred to her by the Police Administration. DW4 said PIPS an investigative bureau conducted investigations as a result of the said petition. She said hers was an adjudicative body and not an investigative body. DW4 stated that the plaintiff gave evidence before her and she questioned him based on the particulars of the offence against him. DW4 said she could not furnish the court with the handwritten recorded statement of the plaintiff because she did not have it. \r\nExhibit A is the notice of formal proceedings to the plaintiff and exhibit B is the response of the plaintiff to the notice of formal proceedings in which he denied the charge. Exhibit C is the Police wireless message to the Commanding Officer/ Airport Station to release the plaintiff to appear before the adjudicating officer. Exhibit D is the Police wireless message lifting of interdiction of the plaintiff and dated 12/05/10. Exhibit E is the Review of Service Enquiry proceedings by the Central Disciplinary Board with respect to the plaintiff imposing a sentence of Removal from the Service on him. Exhibit F is the petition of the plaintiff against his purported removal from the Police Service. Exhibit F gives the detailed reasons why the plaintiff contended he was not given a hearing, no service enquiry into his conduct took place and that he should be re-instated into the Police Service. Exhibit G is the response to the plaintiff’s petition stating that he was fairly dealt with therefore his petition could not be upheld and sustaining the punishment of dismissal imposed on him. Exhibit 1 is the record of formal proceedings under Regulation 4(3) (c) of the Police Service (Disciplinary Proceedings) Regulations, 1974 (LI 993) on the plaintiff. In it the adjudicating officer DW4 recommended that the plaintiff should be given severe reprimand to serve as a deterrent for others. Exhibit 2 is the petition against the plaintiff to the Police Administration.     \r\nThe totality of the evidence adduced and the exhibits tendered all indicate clearly that the plaintiff was given a hearing and that due process was adhered to. It also confirms that the Service Enquiry was properly held as all the parties were given the opportunity to be heard and were heard. The law requires that a person be given the opportunity to be heard. It does not compel a person to speak hence there is a right to silence or not to speak to a charge or complaint. Once it is evident that a party was given the chance or opportunity to be heard, the law deems that he has been given a hearing.  \r\n12  \r\nI have carefully evaluated the totality of the evidence led and come to the conclusion that the dismissal of the plaintiff was not wrongful but in accordance with law. \r\nAn evaluation of the evidence adduced indicates 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 (NRCD 323). The plaintiffs claim fails and judgment is entered for the defendant.  I have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case. I am of the opinion that it is in the best interest of the parties herein that I make no order as to costs.  There is no order as to costs.   \r\n (SGD.) \r\nGEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)     \r\nCounsel:                                                                                   \r\n1. Mr. E. Arthur Mensah for the Plaintiff. \r\n2. Mr. Cecil Adadevoh (PSA) for the Defendants.  \r\n  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BMISC 778 /2013', '', '', '', '2016-04-07', ''),
(649, 'ALEX ODOI NARTEY  VRS.   FINANCIAL INTELLIGENCE CENTRE ', '', 'links/cases/F.I.C. v. ALEX ODOI NARTEY.pdf', 'Yes', '', '2016', 'High Court', 'RULING \r\nThis is an application to defreeze the accounts of the applicant herein, which is opposed by the respondent.  \r\nThe applicant’s case, from his Affidavit in Support, is that, from June, 2013, to December, 2015, he was appointed as the Deputy Chief Executive of the National Health Insurance Authority (N.H.I.A.) in charge of finance and investments. He contended that, out of his numerous and extensive work engagements with various institutions, he saved substantial amounts of monies earned in his respective bank accounts. He stated that all acquired funds have been legitimate earnings through his years of hard work in various establishment and capacities. He stressed that throughout his employment with the N.H.I.A., he has conducted his duties with \r\n2  \r\ndiligence, integrity and in a manner expected of a reasonably prudent public servant. He asserted that he has co-operated with the B.N.I. in their investigations.  \r\nThe applicant contends that his wife’s account has also been frozen although she is not being investigated. He stated that, due to the freezing of all his bank accounts by the respondent, he and his family have resorted to borrowing and/or relying on charity and generosity of friends; and on some occasions, they have struggled to provide for their basic needs including, but not limited, to food, payment of utilities, school fees, health care, etc.. \r\nLearned counsel for the applicant emphasized that most of the money in the applicant’s frozen accounts stood in his credit before his employment with N.H.I.A. It was submitted that the continuous freezing of the applicant’s account and that of his wife’s, who is not under any investigation, constitutes a breach of the applicant’s fundamental human rights and freedoms, particularly the economic right and right to property.  \r\nLearned counsel for the respondent, in opposing the application, submitted that the applicant and four others whose accounts were frozen are being investigated by the B.N.I., in respect of their involvement in the reconfiguration of the Oracle Financial Systems that resulted in the loss of the sum of U.S. $3,125,000.00 to the state and attached an international report from the B.N.I. marked as Exhibit F.I.C. 1. He stated that it is appropriate that the accounts remain frozen pending the completion of the investigation by the B.N.I.. He contended that, since investigation is ongoing, it would be pre-mature to defreeze the accounts of the applicant herein.  \r\nI have carefully considered the submissions and authorities cited by both learned counsel in support of their case.  \r\n3  \r\nOn the issue of the process used by the applicant, learned counsel for the applicant has explained that they used the originating notice of motion, a new suit, and not the suit under which the applicant’s account was frozen. He stated that it is because the applicant was not notified about that suit or the freezing by the F.I.C., as required by Section 47(3) of Act 749, as amended.  \r\nThe applicant’s accounts were frozen and confirmed frozen in January, 2016. The Supreme Court case of Xenon Investment Co. Ltd. (Civil Motion No. J5/46/2015), dated 22nd March, 2016 is to the effect that an account can be frozen by the F.I.C. for a year, where necessary pending investigations.  \r\nIt is a fact that all of the applicant’s accounts have been frozen. He contends that his wife’s account has, also, been frozen. He asserts that he has been denied access to all his sources of funds and this has created hardship on him and his family.  \r\nBalancing all the interests at stake, that of the applicant and the state, it is in the interest of justice to grant the applicant access to some of his accounts and funds to enable him sustain himself and his family. I have carefully studied all the accounts frozen. I have considered the amounts therein and the dates the transactions were made in the said accounts. In Account No. 1030000110620, with Fidelity Bank of Ghana, most of the deposits were made by June, 2013, when the applicant was appointed to the N.H.I.A.. \r\nIn the circumstances, I hereby defreeze the said account of the applicant forthwith to enable him have access to one of his accounts and the funds therein. The application to defreeze the applicant’s accounts is granted with respect to only the said account above.  \r\nThere is no order as to costs.   \r\n4  \r\n(SGD.) GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)  \r\nCOUNSEL: \r\n1. Mr. Yonny Kulendi, with Mr. Samuel Abu Jinapor and Ms. Georgina Arthur, for         the Applicant. 2. Mr. C. A. Chambers for the Respondent.  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'FT 0034/16', '', '', '', '2016-05-05', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(650, 'GEORGE LAMPTEY  VRS.  1. MEKLLOYDS CO. LTD.  2. THEOPHILUS OHENE POKU', '', 'links/cases/GEORGE LAMPTEY v. MEKLLOYDS CO. LTD..pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T  \r\nThis is not a Financial and Economic Crimes case. I exercise jurisdiction in this case pursuant to an Order of Transfer dated 10th February 2015.  \r\nThe plaintiff claims against the defendants the following reliefs: \r\n1. A declaration that the plaintiff is the bonafide owner of Plot Nos. 80 and 82 Millennium City Kasoa.  2. A declaration that the purported sale of Plot Nos. 80 and 82 which forms part of a larger piece or parcel of land sold to the 1st defendant contained in an unregistered indenture dated 20th May, 2007 is null and void and of no legal effect.  3. Perpetual injunction restraining the 2nd defendant, his workmen, agents, and assigns from interfering or dealing with the land.  4. Against the defendants jointly and severally damages for trespass. 5. Costs.  \r\nThe plaintiff’s case is that he is the owner of two plots of land at Kasoa Millennium City known as Plot Nos. 80 and 82. He contended that the 2nd defendant who claims to have acquired the said land from the 1st defendant has put up a structure on his land. The 1st defendant case is that the land is at Essel and Budu village. Its case is that that the two plots claimed by the plaintiff falls \r\n2  \r\nwithin their boundaries. It stated that it granted the land in dispute to the 2nd defendant who has put up a structure on it.  \r\nLearned counsel for the plaintiff stressed in his written address that although the 2nd defendant was served with the writ of summons he only filed an appearance through his lawyer who is also the lawyer for the 1st defendant. \r\nThe issues for trial are as follows: \r\ni) Whether or not the plaintiff is the bonafide owner of Plot Nos. 80 and 82 at Kasoa Millennuim City.  ii) Whether or not Adom Spinning Company the Assignors of Plot Nos. 80 and 82 to the plaintiff fraudulently acquired the land.  iii) Any other issue arising out of the pleadings.  \r\nThe defendants also filed additional issues which are the following: \r\n1. Whether or not the subject matter of the trial, the disputed land, is situate at Asare-Budu and not Kasoa and whether or not the parties are laying claim to different parcels of land.  2. Whether or not the defendants are entitled to maintain their grant.  \r\nAlthough both counsel stated that they would file addresses only counsel for the plaintiff did.  \r\nConsidering the issues listed for trial, I think it is best to determine first the first additional issue, that is, whether or not the subject matter of the trial, the disputed land, is situate at Asare-Budu and not Kasoa and whether or not the parties are laying claim to different parcels of land.  \r\nThe plaintiff gave evidence that the land in dispute, that is, his two plots of land are at Kasoa Millennium City. The 1st defendant’s representative Mr. Emmanuel Manu is the Managing Director of the 1st defendant. The 1st defendant’s representative contended that their land is at Essel and Budu village. He said plots 80 and 82 claimed by the plaintiff falls within their boundaries. Under cross-examination the 1st defendant’s representative admitted that since the plaintiff got his land from Adom Spinning it is not correct that the plaintiff’s land is part of their land. During re-examination 1st defendant’s representative stated that the plaintiff’s plot and the 2nd defendant’s plot are the same property. DW1 said the land claimed by the plaintiff is not the same as the defendants land. He contended that the land claimed by the plaintiff is on the grid line of \r\n3  \r\n170 and 180 and the plaintiff is using that to claim 190 and 200. Under crossexamination DW1 said Essel and Budu village is his grandfather’s village. He said he knows Kasoa Millennium City and it is different from Essel and Budu village. He stated that he knows the land in dispute. He asserted that the plaintiff is claiming ownership of lands with a different plot number. He admitted that the parties herein are claiming the same land.  \r\nLearned counsel for the plaintiff submitted in his written address that although the parties gave different localities as to where the disputed land was situated in their evidence both the plaintiff and 1st defendant indicated that they were litigating over the same land. He stated that the evidence settles the issue that the parties are litigating over the same land and not different parcels of land.   \r\nFrom the totality of the evidence led, it is clear that the parties herein say their land is at a different locality and have site plans which show that the land they are claiming is at different places. However, the evidence adduced establishes beyond any shadow of doubt that the parties herein are not laying claim to different parcels of land but the same parcel of land. I find as a fact that the parties herein are disputing over the same parcel of land.   \r\nConcerning the issue of whether or not Adom Spinning Company the Assignors of Plot Nos. 80 and 82 to the plaintiff fraudulently acquired the land, under cross-examination the plaintiff said he was not aware that Adom Spinning is in court for fraudulently acquiring land in Gomoa Fetteh. He disputed that the people who made the grant to him did not pass through the normal procedure and said the land was given to them, they paid for it and were given indentures which were registered by the Lands Commission at Cape Coast. Under crossexamination the 1st defendant’s representative said they contend that the purported grant of Adom Spinning was tainted with fraud because from the indenture the oath of proof is dated 25/7/97 and the instrument itself was executed on 1/1996. He added that the site plan attached has a vertical grid line between 10, 99 and 1/1996 but the plaintiff is claiming 10/99 and 11/100 outside the range Adom Spinning property. DW2 Amos Wuntah Wuni works with the Lands Commission as the deputy Executive Secretary in charge of operations. DW2 said he worked in the Central Region from March 1998 to June 2003 as the Regional Lands Officer. DW2 tendered exhibit 5 a truncated copy of a document. DW2, who is a lawyer, stated that he cannot comment on whether or not the documents being processed for Kofi Asmah’s companies were tainted with fraud. He said some of the irregularities on the documents \r\n4  \r\nwere remediable and explained that some of the site plans could be properly drawn or rectified and the Gomoa Fetteh Salt Company encumbrance could have been resolved. Under cross-examination DW2 said he prepared the original of exhibit 5 but cannot vouch for each page of the photocopy tendered. Under cross-examination DW2 admitted that he is not in a position to tell the court whether or not the alleged irregularities he mentioned have been corrected. \r\nIn his address learned counsel for the plaintiff stated that the defendants rely on paragraphs 7 to 9 of their defence as a basis for fraud in respect of the acquisition of the land by the plaintiff’s grantor, Adom Spinning Company Limited. He said their evidence was based on exhibit 5 tendered in evidence by DW2. He submitted that firstly, it is not stated anywhere in exhibit 5 that the grant from the Gomoa Fetteh Stool to Adom Spinning Company Limited was tainted with fraud. According to him, Adom Spinning is only mentioned as one of the companies referred to as the sister companies of Kofi Asmah on page 1 of exhibit 5. He said secondly, there was no reference to the plaintiff’s land in exhibit 5, and most significantly and above all, DW2, who is the author of exhibit 5 could not confirm any fraud in the job assigned to him. He stressed that fraud is not mentioned or imputed anywhere in the said report. He added that from the comments in exhibit 5, the report had nothing to do with fraud but was about checking and rectifying anomalies in respect of the document submitted. The plaintiff’s counsel stated that if the author of a document says he cannot comment on fraud in what he has written, it implies a polite way of admitting that there was no fraud otherwise he would have said so, just like he admitted there were irregularities. He contended that exhibit 5 pre dates the registration of the plaintiff’s title deeds, that is, exhibit A, therefore if a report is written by the Lands Commission or its officer in 2002 and in 2013 the same Lands Commission registers the plaintiff’s title deeds then the presumption is that it found no irregularity or fraud in the document otherwise it would not have registered it. \r\nLearned counsel for the plaintiff submitted that the 1st defendant testified that it had taken 21st Century Company Limited and the Lands Commission to court at Agona Swedru in respect of the land and for which an injunction had been placed on the registration of some documents. He stated that that action is in itself an indictment on exhibit 5 which the 1st defendant seeks to establish the fraud. He pointed out that 21st Century Limited and Adom Spinning Company \r\n5  \r\nLimited may be sister companies but they are for all purposes separate legal entities. He added that the fact that the documents of 21st Century are being challenged does not mean there are problems with the document of Adom Spinning, especially when no causal link is established as regards the irregularity between the companies. He stated that in an attempt to further establish the fraud, DW1 testified that the Gomoa Fetteh Stool, the grantors of the land to both plaintiff and the defendant did not have the legal capacity to do so. He said that evidence is a betrayal of the 1st defendant’s document which was signed by Nana Abor Yamoah the Chief of Gomoa Fetteh. He said DW1 tendered in evidence a judgment, exhibit 4, purporting to distool Nana Ewusie Abor XIX, the Chief of Gomoa Fetteh who executed the lease in favour of the plaintiff’s grantor. He contended that firstly, the said judgment was not filed on notice to enable the plaintiff investigate its authenticity. He said secondly, the judgment ought to have been registered since it affected interest in land and therefore it is of no legal effect. He added that thirdly, there was no evidence in court that it was a final judgment. He submitted that granted without admitting that the said judgment has a legal effect, the last paragraph of page 8 had the following recommendation “This chieftaincy tribunal therefore recommends to the Gomoa Akyempim Traditional Council to remove the name of the 1st defendant Nana Ewusie Abor XIX from the...of the chiefs of Gomoa Akyempim Traditional area with immediate effect”. He said there is no evidence to show that this recommendation was carried out to conclude the purported removal of Nana Ewusie Abor XIX. He added that the judgment did not invalidate any document executed by Nana Ewusie Abor XIX in his position as the chief of Gomoa Fetteh Stool. He said the leases executed was on behalf of the Gomoa Fetteh Stool and its people and his removal could not invalidate leases signed in that capacity unless specifically set aside by a court of competent jurisdiction.  He emphasized that removal from office is different from setting aside documents executed while in office as a chief. He stated that what is significant is that notwithstanding the said judgment DW1 said he and his family have taken the grants made by the said Nana Ewusie Abor XIX which compromises the finality of the said judgment. He stated that it is clear that DW1 did not believe in the finality of the said judgment otherwise he would not be litigating in court. He concluded that the claim of fraudulent acquisition of the land by the plaintiff’s grantor could not be established. He maintained that the plaintiff’s title remains unassailable as admitted by DW1 in his evidence that no court has given judgment against the plaintiff’s grantor.                  \r\n6  \r\nThe only exception to the rule on proof by the preponderance of probabilities as the standard of proof in civil cases is in Section 13(1) of the Evidence Act, 1975 (NRCD 323) which provides that in a civil action, an allegation that a crime has been committed must be proved beyond reasonable doubt. This section raises the standard of proof to the level of proof required in criminal cases. I am persuaded by learned counsel for the plaintiff’s submissions on this issue and do not wish to repeat same. I have carefully considered the totality of evidence led and I am not convinced that Adom Spinning Company the Assignors of Plot Nos. 80 and 82 to the plaintiff fraudulently acquired the land. This is because the evidence led does not meet the high standard of proof required to establish same. I therefore find as a fact that Adom Spinning Company the Assignors of Plot Nos. 80 and 82 to the plaintiff did not fraudulently acquire the land.       \r\nWith respect to the issue of whether or not the plaintiff is the bonafide owner of Plot Nos. 80 and 82 at Kasoa Millennuim City, the plaintiff testified that he is a banker and lives at Ho. According to the plaintiff his employer, Ghana Commercial Bank entered into an agreement with Adom Spinning Company Limited for the sale of land to some staff members including him. He said they were about 90 staff who took advantage of the purchase and payment was deducted from their salaries. He stated that he paid GH¢4,400.00 for two plots herein and was given an indenture, exhibit A. He said he registered the documents at the Lands Department as No. 760/2013 and did not face any difficulties in registering the land. He testified that in February 2013 or thereabouts he visited the land and saw some development on it and met a representative of the 1st defendant. He added that the police took him to the site and he met the representative of the 1st defendant and asked them to stop working on the land but they refused so he applied for an injunction at the Cape Coast High Court. The plaintiff said he learnt that it was the 1st defendant that sold the property to the 2nd defendant. He asserted that he took photographs of the structure erected by the defendant on the land and tendered it as exhibit B. He said at the police station the 1st defendant produced a document that encompassed a large tract of land including his. He contended that the chief of Gomoa Fetteh granted the land to his grantors on the 1/4/96 and from the document he saw at the police station, he had an earlier grant. Under crossexamination the 1st defendant’s representative said he was aware that the plaintiff’s land has been registered. Under cross-examination DW1 admitted that to the best of his knowledge no court has given judgment against the plaintiff’s grantor. \r\n7  \r\nIn his address learned counsel for the plaintiff submitted that the plaintiff’s evidence and his pleadings establish that he has unassailable title to the land in dispute. He stated that the plaintiff tendered exhibit A his title deed which is duly registered under the Land Registry Act, 1962 (Act 122) with registration number 760/2013. He added that that document is a deed of assignment executed between Adom Spinning Company Limited and the plaintiff. He stated that the recitals of the said document show the title deeds of the plaintiff’s grantor which is a lease executed between the Gomoa Fetteh Stool and Adom Spinning Company with registration number 1104/97. He contended that on the contrary the 1st defendant’s title deed is unregistered and therefore of no effect as provided for under Act 122. He stressed that the 1st defendant claimed it was unable to register its title deeds following an injunction granted by the Swedru High Court in a suit involving its grantors and the 21st Century Company, a sister company of the plaintiff’s grantors. Learned counsel for the plaintiff stated that there was no documentary proof in support of the 1st defendant’s assertions and same ought to be rejected. He contended that the issue is not why the 1st defendant has not been able to register its title deeds but whether it has a registered document.  \r\nLearned counsel for the plaintiff stated that in the order of priority of grant, it stands clear from the pleadings and evidence that both the plaintiff and the 1st defendant derived their root of title from the Gomoa Fetteh Stool, however whereas the plaintiff’s grantors (Adom Spinning Company Limited) had their grant in 1996, the 1st defendant had its grant in 2007 as seen from exhibits A and 1. He contended that as at the time of the grant to the 1st defendant, their grantors had nothing to give as the land had already been given to plaintiff’s grantors. He quoted Nemo Dat Quod Non Habet which implies you cannot give what you do not have. Counsel asserted that the only basis for setting aside the plaintiff’s title would be evidence of fraud in the grant but that could not be proved before the court.  \r\nThe plaintiff’s counsel said the 1st defendant tendered exhibit 2, a document purporting to be a search report seeming to suggest that the plot was for 21st Century Company Limited. He asserted that a search report must be accompanied by a site plan which must identify the portion of land for which the search is being conducted. He added that the plaintiff and the 1st defendant have different site plans and the search could only be conclusive as to the determination of the plaintiff’s ownership if his site plan was used for the \r\n8  \r\npurpose, which was not the case in this instance. He stated that exhibit 2 is a search report conducted with the 1st defendant’s site plan and not the plaintiff’s site plan therefore its result cannot be conclusive in the determination of the plaintiff’s title to the land. He submitted that if the Lands Commission has registered a document which does not reflect in its search report, it does not invalidate the registration nor does it annul the grant more especially when it was not conducted with the plaintiff’s site plan. He added that secondly, for the 1st defendant to make a claim to ownership of the land the search report must reveal its name not another company or person to establish its case. He emphasized that a search report does not confer title but only gives information based upon which one can prove his title. He stated that since the plaintiff has produced a registered title deed which is prima facie evidence of ownership between the parties to the suit, in rebutting its validity the 1st defendant ought to have gone beyond a mere search report. He contended that the defendants ought to have called the Lands Commission to explain the discrepancy regarding the search and the plaintiff’s registered document to enable them discharge the burden of persuasion which had then shifted unto them. He also stated that the 1st defendant testified that its grantors had taken 21st Century Company Limited to court but that is not a subject matter of dispute before this court. Moreover he said if the search report is anything to go by, it is 21st Century Company Limited who can lay claim to the land and not the 1st defendant.      \r\nI have deliberately given the details of the evidence of the parties herein and the submissions made by learned counsel for the plaintiff. I have considered the totality of the evidence led and I am persuaded by the submissions made by learned counsel for the plaintiff and do not wish to repeat same. In the circumstances, I am satisfied that the plaintiff is the bonafide owner of Plot Nos. 80 and 82 at Kasoa Millennuim City and I find that as a fact. \r\nOn the issue of whether or not the defendants are entitled to maintain their grant, the 1st defendant’s representative stated that the company owns land in the vicinity and it is located between the longitude grid line 1099 and 1100 as contained in their site plan. He said their land is 7.03 acres. He tendered a document between Nana Abor Yamoah and Meklloyds Company Limited as exhibit 1.  He stated that the transaction took place in 2002 when he had a meeting with the principal elders of the Gomoa Fetteh Stool and they agreed to grant the land for the company to give to the directors and employees of the company and he paid for it. The 1st defendant’s representative said in 2003 \r\n9  \r\nwhen they paid for the land a site plan was drawn on behalf of the company and approved by the Regional Lands Surveyor in Cape Coast. He stated that when the site plan was approved the 1st defendant company went down financially so they got the indenture signed in May 2007. He added that in 2009 they submitted the documents to the Lands Commission in Cape Coast for registration. According to him, a letter was sent to them requested a search to be conducted and the report issued described the site as belonging to 21st Century Company Limited. He said they disputed that because before the land was given to them they saw a memo from Lands Commission. The 1st defendant’s representative said their grantor the Gomoa Fetteh Stool is in court with 21st Century in the Cape Coast, Swedru and Winneba High Courts. He tendered exhibit 2 a search report dated 17th April 2007. He stated that the site is described as belonging to the 21st Century held from Nana Abor Ewusie. He said Adom Sinning Company has an interest in the property said to belong to 21st Century Limited. He asserted that since they took the land they have developed certain parts of same and made some grants to some members of staff of their company. He stressed that their company has not had any argument with anyone since the land was granted to them. He stated that they had not seen any member of Adom Spinning Company on the land and 21st Century has also not disturbed them. He said last year the plaintiff confronted one of the assigns that the property belongs to him. Under cross-examination the 1st defendant’s representative admitted that their indenture is not registered. He explained that they bought the land in 2007 but it is not registered because there is a suit against 21st Century by the family and since 2010 an injunction has been placed on the land. He admitted the 1st defendant is not a party to the said suit.  \r\nDW1 Nana Abubarkai Sulemana said he is the head of family at Gomoa Fetteh Kakraba. According to DW1 in 2001, the 1st defendant’s representative led the 1st defendant to them and purchased 30 plots of land and paid for them. He said the land is at Atwaburem. He stated that at the material time their elder called Nana Kofi Otoboa transacted the purchase with the 1st defendant and gave them a document. DW1 stated that the land Adom Spinning is claiming does not belong to them but rather the 1st defendant. He contended that when they made the grant to the 1st defendant they them into possession of the land, that is, vacant possession, and there was no physical opposition to their possession. DW1 said they are in court against Adom Spinning Company at the Agona Swedru High Court. He explained that the owner of Adom Spinning, Kofi Asmah, claims he bought the land from Nana Abor Awusie but the said person \r\n10  \r\nhad no authority over the land. DW1 tendered exhibit 4, a 1913 judgment in support of his claim. Under cross-examination DW1 said he and Nan Ewusie are not from the same family but they are the grandchildren of his father. Under cross-examination DW1 said he knows Nana Abor Ewusie XIX and he was the chief at the time the land was granted to the plaintiff’s grantor but insisted the said chief did not have authority over the land. Under cross-examination DW1 said looking at the plaintiff’s documents, they were executed after the said chief’s death in 1998. Under cross-examination the 1st defendant’s representative stated that it was the 1st defendant that granted the land to the 2nd defendant and he has put up the one story structure on the property. Under cross-examination the 1st defendant’s representative stated that the land in dispute belongs to the 2nd defendant.   \r\nLearned counsel for the plaintiff contended that the defendants are not entitled to maintain their grant in light of the submissions made in respect of the three other issues for trial. He stated that a defective title, an unregistered assignment, inability to prove fraud against the grant of the land to the plaintiff and the inconsistencies in the evidence of the defendants and their witnesses is a pointer to the fact that they are not entitled to maintain their grant.    \r\nHaving determined that the plaintiff is the owner of or has title to the land in dispute it follows that the defendants are not entitled to maintain their grant with respect to the said land. \r\nAn evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on him as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiff against the defendants herein for all the reliefs sought.   \r\nFrom the evidence adduced I find as a fact that the defendants have trespassed onto the plaintiff’s land. Having so found the plaintiff is entitled to damages. It is trite knowledge that general damages flow from the breach of contract or tort.  \r\nIn Attorney-General v. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 at 290, the Supreme Court, per Dr. Seth Twum JSC stated: \r\n  “….a claim for damages for breach of contract will entitle the plaintiff to nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damages are ever ordered…General damages are such as the law will presume to be natural or probable consequence of the \r\n11  \r\ndefendant’s act. They arise by inference of the law and need not therefore be proved by evidence.  \r\nAs the Supreme Court per Twum JSC held in Delmas Agency Ghana Ltd. Vrs. Food Distributors International Ltd. [2007-2008] 2 SCGLR 748, holding (3): \r\n “General damages is such as the law will presume to be the natural or     probable consequences of the defendant’s act. It arises by inference of law and therefore need not to proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages as are also appropriate.”     \r\nI have evaluated the totality of the evidence led, the facts and circumstances of this case and consider GH¢5,000.00 as adequate as general damages. I therefore award GH¢5,000.00 as general damages to the plaintiff against the defendants herein. \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case and award costs of GH¢5,000.00  to the plaintiff  against the defendant herein.   \r\n (SGD.) \r\n GEORGINA MENSAH-DATSA \r\n (JUSTICE OF THE HIGH COURT)   \r\nCounsel:                                                                                   \r\n1. Mr. Kweku Gyimah Kye for Plaintiff. \r\n2. Mr. Kofi Nti for Defendants.                            ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'TSOL 3/15 ', '', '', '', '2016-01-28', ''),
(651, 'GLADYS ABA QUARCOO  VRS.  1. KOFI BATSA 2. CAPT. BUCKMAN 3. E. K. FREMPONG   4. AKUA AFRIYIE 5. THE EXECUTIVE SECRETARY, LAND COMMISSION             ', '', 'links/cases/GLADYS ABA QUARCOO v. KOFI BATSA & 4 ORS..doc final.pdf', 'Yes', '', '2016', 'High Court', '1  \r\nIN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, FINANCIAL AND ECONOMIC CRIMES COURT I, ACCRA, HELD ON THURSDAY, THE 14TH DAY OF JANUARY 2016, BEFORE HER LADYSHIP GEORGINA MENSAH-DATSA, JUSTICE OF THE HIGH COURT.              SUIT NO: SOL 6/15  \r\nGLADYS ABA QUARCOO                            -        PLAINTIFF \r\nVRS. \r\n1. KOFI BATSA 2. CAPT. BUCKMAN 3. E. K. FREMPONG     -        DEFENDANTS     4. AKUA AFRIYIE 5. THE EXECUTIVE SECRETARY,      LAND COMMISSION             \r\nJ U D G M E N T  \r\nThe Plaintiff claims against the Defendants the following reliefs: \r\n1. An order of the court directed at the 5th Defendant to expunge and delete all and any records of title entered on the land subject matter of this suit in favour of the 1st, 2nd, 3rd and 4th Defendants; \r\n2. An order of the court for the recovery of possession; \r\n3. A declaration that the Plaintiff is the true and lawful owner of the land; \r\n4. Perpetual injunction to restrain the Defendants, their assigns, privies, workmen and others from interfering with the subject matter of dispute; \r\n5. An award of damages for trespass; \r\n2  \r\n6. Further or other relief. \r\nAlthough the defendants were served, they never made an appearance in court. On the 21st December, 2015, the plaintiff’s motion ex-parte for judgment in default of appearance was granted and evidence was led in support of her reliefs sought.  \r\nExhibit A is a Power of Attorney authorizing Ibrahim Akuffo to act on behalf of the plaintiff herein and he gave evidence in court for her. He testified that the plaintiff herein is his mother and said the land in issue is at Dzorwulu. He contended that the land belonged to his mother’s mother (his grandmother) the late Christiana Amartekai Amartey and she gave it to the plaintiff herein. He stated that the plaintiff, took the Letters of Administration upon the death of her mother, Christiana Amartekai Amartey and tendered it as exhibit B. Exhibit B is the Letters of Administration granted to Gladys Aba Quarco (plaintiff herein) for the estate of Christiana Amartey. According to him, after the plaintiff obtained the Letters of Administration, she prepared a Statutory Declaration, exhibit C, confirming the ownership of parcel of Land and its unsold state. He stated that when the plaintiff went to register the land at the Lands Commission, she was informed that the 1st to 4th defendants’ names had been put on the land. He tendered in evidence, exhibit D, a letter from the Lands Commission dated 28th March, 2014 which advised the plaintiff herein to seek an order of the Court to have the transactions listed therein deleted. \r\nThe plaintiff’s evidence as per her lawful attorney is unchallenged. An evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on her as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered for the plaintiff against the defendants herein for all the reliefs sought.  \r\nThe plaintiff claimed damages for trespass. Declaration of title and recovery of possession to the land in issue have been granted to the plaintiff herein. The evidence led shows that the 1st to 4th defendant’s herein have documents indicating their ownership of the said land. From the evidence adduced I find as a fact that the 1st to 4th defendants have trespassed onto the plaintiff’s land. Having so found the plaintiff is entitled to damages. It is trite knowledge that damages flow from the breach of contract or tort.  \r\n3  \r\nIn Attorney-General v. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 at 290, the Supreme Court, per Dr. Seth Twum JSC stated: \r\n  “….a claim for damages for breach of contract will entitle the plaintiff to nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damages are ever ordered…General damages are such as the law will presume to be natural or probable consequence of the defendant’s act. They arise by inference of the law and need not therefore be proved by evidence.  \r\nAs the Supreme Court per Twum JSC held in Delmas Agency Ghana Ltd. Vrs. Food Distributors International Ltd. [2007-2008] 2 SCGLR 748, holding (3): \r\n “General damages is such as the law will presume to be the natural or     probable consequences of the defendant’s act. It arises by inference of law and therefore need not to proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages as are also appropriate.”     \r\nAlthough the plaintiff herein claimed for damages no evidence was led by her lawful attorney with respect to that. I have evaluated the totality of the evidence led, the facts and circumstances of this case and consider GH¢20,000.00 to be adequate as damages and I award same to the plaintiff herein against the 1st to 4th defendants herein.  \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case and award costs of GH¢10,000.00  to the plaintiff  against the 1st and 4th defendants herein.  \r\n          \r\n4   \r\n                                                       (SGD) \r\nGEORGINA MENSAH-DATSA \r\n (JUSTICE OF THE HIGH COURT)      \r\nCounsel:                                                                                   \r\n1. Mr. Bram-Larbi for Plaintiff. \r\n2. No representation for Defendants.   \r\n  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'SOL 6/15', '', '', '', '2016-01-14', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(652, 'GYADU DART CO. LTD VRS.  1. ALBERT OKPOTI BOTCHWAY  2. C.A. STEEL LTD', '', 'links/cases/GYADU DART CO. LTD. v. ALBERT OKPOTI BOTCHWAY & ANOR..pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T \r\nThis is not a Financial and Economic Crimes case. I exercise jurisdiction in this case pursuant to an Order of Transfer dated 15th May, 2015, transferring this case to me. In an amended Statement of Claim, filed on the 20th day of July, 2012, the plaintiff claims against the defendants the following reliefs: \r\n1.  A declaration of title to all that parcel of land the property of the plaintiff situate at South Legon, Accra, containing an approximate area of 2.626 acres, described more particularly in the accompanying Statement of Claim a portion of which land the defendants have trespassed upon and caused damages to structures thereon.  2. Damages for trespass committed by the defendants, their servants, agents, assigns and/or workmen to the aforementioned land including consequential losses occasioned by the destruction of the structures on the plaintiff’s land. 3. An order of perpetual injunction restraining the defendants whether by themselves, their servants, agents, assigns, and/or workmen from encroaching upon, entering, occupying or interfering in any way with the plaintiff’s ownership and possession of the said land.  4. Further or other reliefs. 5. Costs.  \r\n2  \r\nThe plaintiff is a company registered under the laws of the Republic of Ghana and engaged principally in the business of Real Estate Development. The 1st defendant is a businessman and the managing director and joint owner of the 2nd defendant company. The facts of this case are that the land in dispute located at South Legon or North Dzorwulu forms part of a larger piece of land acquired by the Government of Ghana in 1946 to build the University College of Gold Coast (now University of Ghana). It was occupied by the Department of Rural Development and the said department still has its building on part of the land in dispute. The plaintiff acquired the land from the original owners of the land, the Osu Stool and the defendants from the Government of Ghana through the Lands Commission. Both parties in this case built walls on the land in dispute but the walls were demolished. The Osu Stool instituted an action against the Lands Commission at the High Court which is still pending.  The plaintiff called three witnesses. The plaintiff’s representative, Kwabena Nketia, the Director of Operations (hereinafter plaintiff’s representative) testified on behalf of the plaintiff company; Nii Nortei Narh with the stool name Nii Nortei Agbo I (PW1) the chief of Kotobabi, Dzorwulu and Roman Ridge and the Osu Stool Lands and property chairman and Isaac Nii Nortey (PW2), PW1’s son, a contractor and member of the Osu Traditional Council.    The plaintiff’s case is that upon the grant of the land in dispute by the Osu Stool in 2006, it went into possession putting a caretaker on the land. The plaintiff built a fence wall and security posts on the land and was in occupation without let or hindrance until recently when the defendants without any justification came on the plaintiff’s property and with the aid of bulldozers and macho men demolished portions of the fence wall and security posts. The plaintiff tendered exhibits A - the indenture given to it by the Osu Stool, B-picture of the demolished wall, E- the Writ of Summons against the Lands Commission, G- the injunction, H- ruling of the High Court, J- judgment of the High Court, amongst others.  The defendants called two witnesses. The 1st defendant who is the managing director and joint owner of the 2nd defendant company testified on behalf of himself and the 2nd defendant. DW1, Timothy Anyidoho is a Senior Lands Officer at the Lands Commission.  The defendant’s case is that the 2nd defendant acquired the land in dispute from the Government of Ghana through the Lands Commission in 2010.  The defendants contended that it was the Lands Commission in the exercise of its constitutional \r\n3  \r\nfunction that sought the assistance of National Security to demolish the plaintiff’s wall. The defendants tendered exhibits 1and 2, Leases from the Lands Commission to the 2nd defendant amongst others.   The issues for determination are as follows: 1. Whether or not the grant of the disputed land to the plaintiff’s by the Osu stool is null and void and conveyed no title whatsoever.  2. Whether or not the grant of the disputed land by the Lands Commission to the 2nd defendant in 2010 during the pendency of Suit No.: BL 90/2004 was unlawful.  3. Whether or not, by reason of the judgment in Suit No.: SOL 21/10, the 2nd defendant and its grantor, the Lands Commission are estopped from laying any claim to any of the Osu Stool lands including the land currently in dispute.  4. Any other issues arising from the pleadings. With respect to the issue of whether or not the grant of the disputed land to the plaintiff’s by the Osu stool is null and void and conveyed no title whatsoever, under cross-examination the plaintiff’s representative stated that no search was conducted at the Lands Commission at the time they were acquiring the land. He stated that they attempted to register the document given to them by the Osu Stool in 2006 but their application was not granted and they have not applied again.  He admitted that the plaintiff caused the demolition of the wall the defendants put up on two occasions. PW1, identified his signature on exhibit A. PW1 testified that that when they started granting out the lands, the Lands Commission challenged them and gave out the lands to some companies so they took legal action against the Commission around 2004-2005. PW1 explained that the University of Ghana has been built and there is a vast land remaining which the Lands Commission was granting to people to use for purposes other than that which the Government took the land hence the suit.  The 1st defendant testified that the 2nd defendant acquired the land in dispute from the Government of Ghana through the Lands Commission in 2010. He stated that in June 2011, the Lands Commission fulfilled its promise to demolish all the structures put up by squatters on the land with the assistance of National Security. He stressed that the land in dispute cannot be for the plaintiff because before he acquired the land, he conducted a search (exhibit 3) which indicated that the land was in the name of the State that is the Lands Commission after which he applied for the land. The 1st defendant contended that the injunction referred to by the plaintiff has been set \r\n4  \r\naside by the court as per exhibit 4 hence the court had authorized Lands Commission to continue with its mandate to administer that land as per the Act that established it. Under cross-examination, the 1st defendant said in their application to the Lands Commission they indicated the purpose for which they wanted to acquire the land as to set up a sister company that was going into the steel industry and other training facilities that will create jobs for people. He admitted that the land was given to the defendants for civic and cultural purposes only. He also admitted that the 2nd defendant company was incorporated at the time the defendants submitted their application to the Lands Commission. During cross-examination, the 1st defendant stated that when the walls the defendants put up were repeatedly demolished, he approached the Lands Commission about it and they told him some squatters who claimed to be owners of the land have been organising thugs to destroy people’s property in that area. He denied that when the Lands Commission told him there was an issue they told him it was a court case pending.  DW1 gave evidence that the defendants are beneficiaries of a government allocation of land at South Legon, Accra. He said he was personally responsible for inspecting the two plots of land before they were allocated to the defendants. He contended that there was a wall and structure on the said land, so after the grant of the land to the defendants in November 2010, in 2011 the Lands Commission had to secure vacant possession for the defendants. He added that the Commission sought the assistance from the Land Task Force comprising the police and the military in order to demolish the structures on the land to grant vacant possession to the defendants. He claimed that it was the then Regional Lands Officer who ordered the demolishing of the wall on the in dispute but due to the burning of the files rooms of the Lands Commission, the correspondence file which contains that evidence got burnt. Under crossexamination DW1 said in 2010 he was a Lands Officer.   I deliberately narrated the evidence adduced by both parties herein, although it may not be directly relevant for the determination of this issue, to assist in the understanding of this case and the final orders of the court.  Learned counsel for the defendants submitted in his written address that both parties in this suit admit that the land in dispute forms part of a larger piece of land compulsorily acquired by the Colonial Government from the Osu stool for the purpose of developing what is now the University of Ghana at Legon. He stated that the effect of the said compulsory acquisition was to completely extinguish whatever rights, interests and title the Osu stool had in the said and that being the case it had \r\n5  \r\nno interest or title in the said land, which it can legally transfer to the plaintiff. It was submitted that the maxim “nemo dat quod non habet” which means “no one gives what he does not have or “no one transfers (a right) that he does not possess” applies to the Osu stool. He stated that the purported grant made in 2004 by the Osu stool to the plaintiff conveyed no title or interest whatsoever to the plaintiff, consequently the same is null and void.   I have evaluated the facts, circumstances and submissions made by both learned counsel in this case and I am persuaded by the submissions made by learned counsel for the defendants as stated above. Since the reasons for it have been stated in the submissions made by learned counsel for the defendants it is not necessary to repeat same. It is not disputed that the land in dispute is government land for now. I therefore find as a fact that the grant of the disputed land to the plaintiff’s by the Osu stool is null and void and conveyed no title whatsoever.  Concerning the issue of whether or not the grant of the disputed land by the Lands Commission to the 2nd defendant in 2010 during the pendency of Suit No.: BL 90/2004 was unlawful, PW2 gave evidence that, that is the suit the Osu Stool brought against the Lands Commission for selling out the lands at South Legon. He said the court granted an injunction against the Lands Commission in 2005 but it did not comply with the said order so the Traditional Council made a publication. He stated that the said suit is still pending in court.   Learned counsel for the defendants submitted in his written address that PW2’s testimony that, despite publications in the press, proceedings in court, promises made by the government of the day and petitions, the Government of Ghana is yet to hand over the unused land to the Osu stool, ought to be expunged because of the failure to file the pursuant Amended Statement of Claim granted by the court.  It must be stated that on 16/2/2016 when the court granted the plaintiff’s application to amend their Statement of Claim, learned counsel for the defendants was present and did not object to PW2 continuing his evidence (when the plaintiff had not yet filed the amended Statement of Claim). He is therefore deemed to have waived his right to object to it especially when there was an opportunity for an application to be made to exclude the said evidence. As the evidence is not illegal as defined by law the court will rely on it. The application by the plaintiff for leave to amend their pleadings, that is, to amend their amended Statement of Claim filed on 12/2/2016 was granted on the 16/2/2016. \r\n6  \r\nLearned counsel for the plaintiff filed the said amendment on the 11/10/2016 after parties had closed their case and filed their addresses and waiting judgment.  This is irregular as a party has to file pleadings within a reasonable time where the court does not specify the time to do so after the grant of an application to file or amend pleadings. Under cross-examination, DW1 said with the institution of this case, he got to know that the owner of the wall that was demolished is the plaintiff herein. He stated that he is aware that there is a suit pending before the High Court involving the Osu Stool and the Lands Commission with regards to the general area in which the land in dispute is situated. He admitted that at a point the court granted an injunction in favour of the Osu Stool against the Lands Commission.  Learned counsel for the defendants submitted in his written address that PW1 tendered exhibits G and H which are the ruling of the court and a copy of the order of injunction respectively, to support his assertion that the Lands Commission was restrained from dealing with or selling the South Legon lands during the pendency of the said suit Osu Stool vrs. Lands Commission, No. BL 90/2004. Learned counsel stated that the said ruling was set aside and superseded by the ruling of the same court dated the 11th of September, 2008, exhibit 4 tendered by the 1st defendant. He contended that the said exhibit 4, apart from restraining the Osu stool, also authorized the Lands Commission to carry on with its statutory function of managing the land in dispute pending the final determination of the suit. He added that as part of that management, the Lands Commission had the constitutional duty to make grants of Government lands like the one in dispute in this action as per Article 258(1) (a) of the 1992 Constitution of Ghana. He stated that the only fetter that can be placed on the Lands Commission in the exercise of that function in where like in this case, it was initially restrained by the court. Counsel submitted that in this case, that restraint was vacated per exhibit 4. He stressed that since the land in dispute was granted to the 2nd defendant after the earlier injunction had been vacated and therefore there was no restriction on the functions of the Lands Commission at the time, the said grant was properly and lawfully made and cannot therefore be assailed.     Learned counsel for the plaintiff submitted in his written address that at the material time that the Lands Commission purported to make the grant of the disputed land to the defendants both parties knew of the pendency of Suit No.: BL 90/2004 and the 2005 injunction order which the Lands Commission maneuvered to set aside at the blind side of the Osu stool. He stated that granted that the order setting aside the \r\n7  \r\n2005 injunction was legitimate that did not warrant the disposal of the disputed land by the Lands Commission to the defendants under the guise of “their statutory function of managing Government lands” to dispose of the land during the pendency of the suit. It was submitted that the Lands Commission must have been fully aware of the pronouncements at the time by the government of the day to return the unutilised lands back to their original allodial owners and yet they defied the courts.  It was contended that in this case as in Suit No.: BL 90/2004, it is not disputed that the lands acquired under the Public Lands Ordinance Cap 142 were not being utilised for the purpose for which they were originally taken. Counsel stated that Article 20 Clause 6 of the 192 Constitution stipulates that the owners of the property immediately before the compulsory acquisition shall be given the first option to acquire the property should it not be used for the purpose and that provision creates a reversionary interest in the original owners of the lands who are in this case the plaintiff’s grantors the Osu stool. It was submitted that having instituted Suit No.: BL 90/2004 to protect that reversionary interest it amounted to an obstruction of justice for the Lands Commission to ignore the pendency of the action and proceed to dispose of the very subject matter to the defendants herein for purposes totally unconnected with the use of the land for the University or for any purpose totally unconnected to it. He urged the court not to lend its hand to the illegitimate grant made by the Lands Commission in flagrant disregard to the pending court action. Learned counsel for the defendants submitted that from the evidence adduced the Osu stool had unsuccessfully used political means to regain ownership of the said lands in consequence of which it instituted the said case of Osu Stool vrs. Lands Commission, No. BL 90/2004 for a declaration that the said land is not being used for the purpose for which it was acquired, hence be given the first option to reacquire the same. He stated that the case is still pending before the court so the stool is yet to obtain that declaration. He added that, that fact and the fact that the Lands Commission by exhibit 4 was authorized to manage the said lands further make the grant to the 2nd defendant legal. It must be stated that the statements attributed to governments of the day to return stool lands taken over by government to them are a mere indication of intent and cannot be said to be legally binding or enforceable. For the land to revert to the original stool there has to be a legally binding action which will serve as notice to all. This has not yet occurred with respect to the land in dispute here. \r\n8  \r\nI have considered the totality of the evidence adduced and the detailed submissions made by both learned counsel in support of their case. I am persuaded by the submissions made by learned counsel for the defendants and the reasons given for those submissions which have been stated above. It is therefore not necessary to repeat same. An evaluation of the evidence adduced leads to the conclusion that the grant of the disputed land by the Lands Commission to the 2nd defendant in 2010 during the pendency of Suit No.: BL 90/2004 was not unlawful. On the issue of whether or not by reason of the judgment in Suit No.: SOL 21/10, the 2nd defendant and its grantor, the Lands Commission are estopped from laying any claim to any of the Osu Stool lands including the land currently in dispute, the 1st defendant said he was aware of the said suit entitled Nii Ako Nortei v. Lands Commission, and insisted that the Osu Stool was not in adverse possession as at the time the defendants acquired the land.  Learned counsel for the defendants submitted that under cross-examination PW1 admitted that the lands covered by the said judgment tendered as exhibit J, were Achimota and GIMPA lands that are different from the lands the subject–matter of Suit No.: BL 90/2004 or the land in dispute in this action. He emphasized that that since exhibit J relates only to the said Achimota and GIMPA lands, its effect cannot be extended to cover all other lands owned by the said Osu stool including the land in dispute in this action. He concluded that no issue of estoppel arises in the first instance and both the Lands Commission and the defendants cannot be estopped from laying claim to the land in dispute.   Learned counsel for the plaintiff submitted that PW2 admitted that the subject matter in the mentioned case in this issue is totally different and unrelated to the land the subject matter of the instant case.  From what has been stated above, it is obvious that this issue should not have been listed as one for trial as it is unrelated to this case. An evaluation of the evidence adduced indicates that the plaintiff has not discharged the burden of proof on it as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). The plaintiff’s claim fails and judgment is entered for the defendant.  I have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case, including the fact that both parties have had their wall \r\n9  \r\nand/or structures demolished. This case demonstrates the frustrations and expenses involved in acquiring legitimate land in Ghana and the role the relevant institutions play in this. Having considered all these, I come to the conclusion that it is in the interest of justice that no order be made as to costs. There is therefore no order as to costs.   \r\n      (SGD.) GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)   \r\nCOUNSEL: 1. Mr. Peter Zwennes for Plaintiff.  2. Mr. William Addo for Defendants.    ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'IRL 14/2012 ', '', '', '', '2016-10-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(653, 'ISAAC LAMPTEY  VRS.  ANITA SEARIJLANI ', '', 'links/cases/ISAAC LAMPTEY v. ANITA SEARIJLAM.pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T  \r\nPer an amended Writ of Summons and Statement of Claim dated 15th April, 2015, the plaintiff claims against the defendant the following reliefs: \r\n1. A declaration that the Plaintiff is the owner of the disputed property.  2. An order for the Ejection of the Defendant from the disputed property. 3. An order for the Defendant to pay to the Plaintiff an amount of One Thousand Eight Hundred US Dollars (US$1,800.00), or its equivalent in Ghana Cedis as rent of US$300.00 per month for her occupation of the disputed property from February 2013 to August 2013. 4. An order for the payment of Mesne Profits at the market rate of Seven Hundred US Dollars (US$700.00) for the Defendant’s unlawful occupation of the property from September 2013 to the date of the Defendant’s actual eviction from the property. 5. An order for the Defendant to return/replace all materials and equipment, as was found in the Plaintiff’s property, in a good tenantable state and to pay for any missing/damaged item at the existing market rate.  6. General damages for trespass.  \r\n2  \r\n7. Interest on all sums found liable and payable by the Defendant at the prevailing commercial rate from the date of payment to the date of final payment. 8. Costs.  \r\nThe defendant counter claimed as follows: \r\nA. A declaration that she is the beneficial owner of the property in dispute. B. A declaration that the writ of summons discloses not reasonable cause of action and is a nullity in law.  C. Legal fees and costs.  \r\nThe plaintiff claims ownership of the property in dispute, House No. C5 Manet Palms Estate, as a gift from his late brother, David Lamptey. He contended that the defendant, through an agent Robert Darko, rented the said property from his late brother, David Lamptey, and was to have vacated the premises in February 2013 but she is still in occupation of same. The defendant’s case is that she initially entered into a tenancy agreement with the late David Lamptey to rent the property in dispute and later purchased same from him so she is a beneficial owner of it.    \r\nThe issues for trial are the following: \r\n1. Whether or not the subject matter in dispute belongs to the Plaintiff or David Lamptey. 2. Whether or not David Lamptey had any title to pass to the defendant. 3. Whether or not the subject matter in dispute was fully furnished by David Lamptey for the Plaintiff before the Defendant moved in.  4. Whether or not the tenancy of the defendant has lapsed.  5. Whether or not the Plaintiff is entitled to his claim. 6. Whether or not the Defendant is entitled to her counterclaim.  7. Any other issues arising out of the pleadings.  \r\nThe following additional issues were filed on 6th June, 2014. \r\nA. Whether or not the Defendant is the owner in equity of the building in dispute.  B. Whether or not the Defendant is entitled to her counterclaim.  \r\n3  \r\nOn the issue of whether or not the subject matter in dispute belongs to the Plaintiff or David Lamptey, the plaintiff and his witnesses, PW1 Robert Asante Darko, an employee of Manet, and PW2, Kwabena Samuel Boateng, the Sales and Marketing manager of Manet Housing Limited led evidence to support their claim that it belongs to the plaintiff. The defendant disputed the plaintiff’s claims and contended that the disputed property belonged to the late David Lamptey  \r\nLearned counsel for the defendant submitted in her written address that the disputed property was not gifted to the plaintiff and that assuming without admitting that it was indeed gifted to him, he did not accept the gift as he did not give aseda which is the customary law requirement to substantiate the acceptance of a gift. She submitted that in effect there was no gift and cited the Supreme Court case of Yoguo and Another v. Agyekum and Others (1966) GLR 482 in support of her submission. Learned counsel for the defendant stated that from the evidence of the plaintiff no aseda was given to the late David Lamptey as the plaintiff merely went to his house and said thank you. She contended that it can be inferred that the property was not actually gifted to the plaintiff and so the late David Lamptey retained title in same. She added that there are laid down principles or conditions to be satisfied to constitute a gift and quoted the Second Edition of Ghana Land Law and Conveyancing by B.J. Da Rocha and C.H.K. Lodoh at page 138 which listed the four requirements as follows: \r\n(1) The donor is the owner of the property (2) The donor expresses a clear intention to make a gift. A clear intention to make a gift is signified by divesting himself of all rights of ownership of the property, the subject matter of the gift.  (3) The subject matter of the gift must be delivered to the done during the lifetime of the donor (4) The donee must accept the gift during the lifetime of the donor by exercising rights of ownership of the subject matter of the gift.  \r\nLearned counsel for the defendant contended that from the evidence on record none of the above stated conditions were fulfilled. She asserted that the late David Lamptey did not divest himself of all right of ownership of the property and this was evident from his conduct with regards to his dealings with the said property. She said, for example, he dealt with it as his own, the said property was not delivered to \r\n4  \r\nthe plaintiff during the lifetime of the David Lamptey and the plaintiff had no control nor did he exercise any right of ownership over the property during the lifetime of the late David Lamptey. She concluded that it can be assumed on the balance of probabilities that the late David Lamptey had no intention of gifting the disputed property to the plaintiff. She cited Sese v. Sese and others [1984-86] 2 GLR 166, Kwantreng v. Amassah (1962) 1 GLR 241 and Section 12 (2) of the Evidence Act, NRCD 323 in support of her submissions.    \r\nLearned counsel for the plaintiff submitted in his written address that the plaintiff’s case is that he acquired the property sometime in 2011 after his brother the late David Lamptey bought the property for him as a gift and tendered exhibits A, B and D to support his case. He stated that PW2 corroborated the plaintiff’s evidence. He submitted that the concept of ownership of landed property entails possession of and title to the property. He stated that Section 2(a) of the Conveyancing Act 1973 (NRDC 175) provides that a contract for the transfer of an interest in land is not enforceable unless it is evidenced in writing and signed by the person against whom the contract is to be proved or by a person who was authorized to sign on behalf of that person. He submitted that exhibit A evidence the contract for the transfer of Manet (former owner of the property)’s interest in the disputed property to the plaintiff and serves as a proof of his title to the property. He added that by Clause C(1) (c) of exhibit K the executors of the estate of David Lamptey acknowledge the fact that the plaintiff was gifted with a three bedroom house at Manet Estate in Nsamapowmu by David Lamptey.   \r\nIt is a fact that the plaintiff led evidence and tendered exhibits in support of his case. Exhibit A is a sublease between the plaintiff and Manet. Exhibit B is a receipt from Manet to the plaintiff for payment of ground rent 2013 for C5-Palms. Exhibt D is a receipt issued to Mary Lamptey by ADMA for the payment of property rate for house numbers C5 and C6 at Manet Palms. Plaintiff tendered exhibit K the terms of settlement in Suit No. BPD 778/2103 in which it was stated that the property in dispute was given to the plaintiff by his late brother when he was alive. Under crossexamination the Plaintiff stated that to show appreciation, he and his sister and the family went and thanked his late brother in his house. This is evidence to support the satisfaction of the requirement of aseda for a valid gift. Under cross-examination the plaintiff said his late brother gifted the property to him, so he asked his permission before renting out the premises hence he called him on phone to tell him. This \r\n5  \r\nevidence was corroborated by PW1. PW1 said he persuaded David Lamptey to rent out the place to the defendant and he said he would tell the plaintiff and later told him that the plaintiff had agreed and he told the defendant.  The plaintiff said the total rent for the 18 months was $5,400.00 and his late brother added some money to that and bought a vehicle for him. PW1 testified that he got to know the plaintiff through his late brother David Lamptey. PW1 said the late David Lamptey came to Manet and purchased three houses for his siblings and paid for them. PW1 stated that David Lamptey called his siblings in his presence and asked them to meet them at the site and the following week they came. He said they were two ladies and a man and David Lamptey introduced the older sister as Naomi, the other as Mary and the man as Isaac the plaintiff herein. PW1 said David Lamptey gave C6 to Mary, C5 to the plaintiff and L1 to Naomi. This evidence was corroborated by PW2. PW2 said C5 Manet Palms Ogbojo the property in dispute is owned by Manet and sub leased to the plaintiff herein as indicated in exhibit A. He said exhibit A is dated 16/07/13 but the property actually acquired earlier. He said when the property was acquired they were notified that the sibling in whose name the property was acquired would come for the document with identification and plaintiff came in 2013 with identification to show that he had been given C5. PW2 stated that the property was acquired by the late David Lamptey who acquired three properties for his siblings and paid for them in full in May 20122 and they proceeded to hand over the property since they had all been completed. He stressed that the late David Lamptey was clear about the name of the siblings and which house should go to whom, Mary Lamiokor Lamptey C6 and Naomi Lamiley Aryee L1. PW2 tendered exhibit L a search report dated 02/03/15 with plaintiff as the enquirer and exhibits M and N with respect to Mary and Naomi. PW2 said he knows PW1 and knows he had dealings with the property in dispute as he was assigned by their CEO to make sure the property was okay for the client after the late Lamptey paid for the property.   \r\nFrom an evaluation of the totality of the evidence adduced, I find as a fact that the property in dispute belongs to the plaintiff herein.    \r\nWith respect to the issue of whether or not David Lamptey had any title to pass to the defendant, the plaintiff and his witnesses led evidence to establish that the late David Lamptey did not have title to the property so could not have passed same to the defendant whilst the defendant maintained that David Lamptey was the owner and so had title to pass to her.  \r\n6  \r\nLearned counsel for the defendant in her address said David Lamptey had title to pass to the defendant because the gift was not accepted by the plaintiff hence title in the property did not pass to the plaintiff but remained in the late David Lamptey and therefore he could transfer it to the defendant. \r\nLearned counsel for the plaintiff in his address stated that the defendant claimed that the late David Lamptey was the owner of the disputed property before his demise and that he sold the property to her but she failed to present any evidence to the court to support her claims. \r\nThe defendant did not tender any documentary evidence neither did she call any witness in support of her case and claims. I have considered the evidence led and come to the conclusion that the late David Lamptey did not have any title in the disputed property to pass to the defendant.  \r\nConcerning the issue of whether or not the subject matter in dispute was fully furnished by David Lamptey for the Plaintiff before the Defendant moved in, the plaintiff and his witnesses testified that the property was furnished before the defendant moved in but this was disputed by the defendant. \r\nAccording to the plaintiff he stayed three (3) months in Accra for the items to be brought and out of happiness he took pictures of the furnishing to show his wife and tendered some as exhibit E, E1-E7. Plaintiff also tendered exhibit F, a list of the furniture given to him by his late brother and explained that the list was prepared when the defendant was going to live in the house. According to PW1 David Lamptey worked on the houses and had curtains fixed and furniture brought into the rooms. Under cross-examination PW1 said he opened the door for the company to bring the curtains into the premises because the keys were with him. He added that a company brought the furniture and asked that he packs them into the house and he did, according to him they brought the items for the plaintiff and his sister’s homes. He said the sounds systems and TV were from Samsung Company and the TV is plasma and large Samsung home theatre. According to PW1 the late David Lamptey ordered the items through the company and sent his errand boy called Kwame. Under cross-examination PW1 insisted that it was the late David Lamptey who purchased the items in the disputed premises and not the defendant and stated that he handed over the keys to the defendant with all the items fixed in the rooms. According to \r\n7  \r\nPW1 David Lamptey, the defendant and he met in March 2011 and David Lamptey told the defendant to enter the house with only her bag because the house had been furnished. He said the property was furnished with chairs, sound system etc., when the defendant moved into the property in August 2011. PW1 said the items in exhibit F were brought by the late David Lamptey to the premises in dispute. PW2 said the property was sold without furnishing but they added optional additions i.e. air conditions and a water tank at the client’s request. The defendant said she moved into the premises in June 2011 and the tenancy was supposed to expire in June 2013 but it was not documented. According to the defendant, when she was moving into the premises, it was newly built and air conditioners and a generator were being installed but it was not furnished, and there was no TV, fridge or sound system. The defendant said she asked the late David Lamptey for an agreement and he said he will have it prepared for her to sign neither did he give her a receipt as he said he was going to furnish her with that later. Under cross-examination the defendant said she furnished the property before she moved in and that she bought the furniture at Furniture City at about GH¢10, 000.00 but cannot find the receipts. She said she spent about GH¢25,000.00 on appliance and furniture and went to Samsung head office to try and retrieve the receipts but they said they had changed their system and computerized it.  \r\nLearned counsel for the plaintiff in his written address stated that the plaintiff led evidence that his brother, the late David Lamptey, furnished all the three properties he acquired for his siblings at Manet and presented exhibit E series as pictures he took on the 4th May 2011 as digitally imprinted on the said exhibits of the furnished property in dispute. He said the plaintiff also tendered exhibit F as the list of the equipment /furnishings in the property before it was rented to the defendant. He submitted that PW1 the former caretaker of the disputed property testified that the property was furnished with the items in exhibit F before the defendant rented it and said one of the considerations he suggested to Mr. Lamptey to rent out the property was to safeguard the furnishings against burglary. He added that PW2 testified that certain equipment like air conditioners and water tank were added to the property at Mr. Lamptey’s request giving credence to the fact that Mr. Lamptey furnished the property and not the defendant. He contended that the defendant claimed she personally furnished the disputed property but did not substantiate her claims. \r\n8  \r\nIt is obvious from the evidence adduced that the subject matter in dispute was fully furnished by David Lamptey for the Plaintiff before the Defendant moved in. \r\nThe issue of whether or not the tenancy of the defendant has lapsed will be determined together with the issue of whether or not she should be ejected from the disputed property as they are related.  \r\nTo determine the issue of whether or not the plaintiff is entitled to his claim, the plaintiff adduced evidence with supporting documents and it was corroborated by his witnesses. \r\nLearned counsel for the defendant said the plaintiff has no title in the property as he claims that it was gifted to him by the late David Lamptey but proffered no evidence in support. She stated that it is bizarre that the plaintiff claims US$1,800.00 or its equivalent in Ghana Cedis as rent of US$300.00 per month for her occupation of the disputed property from February to August 2013, as he was not able to establish or ascertain the actual rent value agreed between the late David Lamptey and the defendant. It was contended that the plaintiff relied on PW1 who testified that he was not privy to the discussion between the defendant and the late David Lamptey. It was submitted that from the evidence of the plaintiff and his witnesses he has not demonstrated the basis for arriving at the figure he claims and it makes the defendant’s story more probable than that of the plaintiff. It was also submitted that the Rent Act, Act 220, as amended by the Local Government Act 1993, Act 462 provides for the assessment of the rent to be done by the rent Magistrate under Section 10 of the said Act. It was stated that the jurisdiction to assess rent lies within the jurisdiction of the rent Magistrate and as such the plaintiff has come to the wrong avenue in respect of this particular claim. \r\nLearned counsel for the defendant submitted that on the issue of Mesne profits the plaintiff has failed to address the court on how he arrived at the figures he is seeking to recover and that it appears from the evidence on record that the figures were arrived at arbitrarily. It was stated that the plaintiff has not been able to show cause as to why the court should grant him this remedy. It was asserted that the authorities are clear on the circumstances under which such a remedy will be granted one of which is where the party had been able to demonstrate that a person has trespassed onto his property or that there has been a wrongful occupation of his property which \r\n9  \r\nwrong has caused him to suffer and from which he is seeking that remedy. It was submitted that the plaintiff has not been able to demonstrate or prove any of these so he is not entitled to this relief.      \r\nThe plaintiff prayed for a declaration that he is the owner of the disputed property. Learned counsel for the plaintiff stated that the plaintiff presented credible evidence to show his root of title and establish his ownership of the disputed property. Plaintiff request an order for the ejection of the defendant from the disputed property. The plaintiff said the defendant should have vacated the premises in February 2013 but did not and when he went to see her in February 2013 she told him to give her some time to vacate the premises so he gave her six (6) more months that is to August 2013 and told her to pay rent.  The plaintiff stated that the defendant did not pay the rent neither did she vacate the property so on 14/09/2013 he wrote to her to vacate the premises and leave the items in the property (exhibit G) but she is still in the premises. The plaintiff tendered exhibit H dated 02/12/13, his summons of the defendant at the Rent Control for her to be evicted and exhibits J and J1 letters from the defendant’s lawyer asking that the matter be discontinued and taken to court. He said the defendant did not refer the matter to the court as advised in exhibit J1.  \r\nLearned counsel for the plaintiff stated in his address that the plaintiff is the owner of the disputed property and the defendant is an unlawful occupant of same because her tenancy agreement for the use of the property has lapsed and she has challenged her landlord’s ownership of the property. He submitted that from the defendant’s case she was required to move out of the disputed premises in June 2013 and she paid rent for that period. He argued that since the said payment of rent for June 2013, the defendant has not atoned tenancy to the plaintiff and she has not paid rent for her use or occupation of the property. It was submitted that the law is well settled that a tenant who denies the title of his landlord is liable to an immediate forfeiture of the lease or tenancy as held in Safo & Ano. V. Badu [1977] 2 GLR 63.  Learned counsel for the plaintiff asserted that the defendant after challenging the title of the plaintiff and not paying rent is liable to an order for ejectment from the property.  \r\nI have evaluated the evidence led and declare that the plaintiff is the owner or has title to the property in dispute. \r\n10  \r\nThe plaintiff requested an order for the defendant to pay to him an amount of One Thousand Eight Hundred US Dollars (US$1,800.00), or its equivalent in Ghana Cedis as rent of US$300.00 per month for her occupation of the disputed property from February 2013 to August 2013. Learned counsel for the plaintiff submitted that the plaintiff’s case is that the defendant’s tenancy was from August 2011 to February 2013 and she paid rent for that period, whilst the defendant claims it was from June 2011 to June 2013 and she paid rent for that period. The plaintiff’s counsel stressed that the tenancy agreement was unwritten and the only other person besides the defendant who was part of the whole discussions on the agreement was PW1 testified that the tenancy was for 18 months at a rent of US$300.00 per month and he was paid a month’s rent of US$300.00 as agency fee for his role in getting the property for the defendant. He stated that exhibit G supports the plaintiff’s testimony that he went to see the defendant in February 2013 and gave her six months grace period to move out of the property. He stressed that that letter indicated that the defendant had been given and earlier notice to quit and that the letter was a reminder to that earlier notice. He said the defendant gave evidence that she received exhibit G. The plaintiff’s counsel contended that the defendant did not reply to the letter to challenge the plaintiff’s demands or correct the grace periods given in the letter and submitted that exhibit G and PW1’s evidence corroborates the plaintiff’s evidence that the tenancy was for 18 months and expired in February 2013. He stated that the defendant did not pay any rent for the six months grace period at US$300.00 a month so the plaintiff is entitled to the US$1,800.00 or for any such period as the court may determine.  The plaintiff’s claim is that the defendant’s tenancy lapsed in February 2013. The defendant contended that it was to end in June 2013 and she made full payment for that period. According to the plaintiff he did not move into the property immediately because he was in Adukrom working. He tendered exhibit C a tenancy agreement to prove that he lived at Adukrom, and said it was made 20/01/2010 and expired on 20/01/2013.  \r\nPW1 said he got to know the defendant in 2001 when she came to the site with a man and said she wanted a house to rent and expressed interest in a house like C5. PW1 said the defendant said she would pay $300.00 per month as rent but could afford one and half years advance payment instead of the usual two years advance normally paid.  According to PW1, David Lamptey, the defendant and he met in March 2011 and David Lamptey told the defendant to enter the house with only her \r\n11  \r\nbag because the house had been furnished. PW1 said the next day the defendant made him call David Lamptey and she paid $5,400.00 for the one and half years rent at $300.00 a month. PW1 said the defendant gave him $300.00 because he had negotiated for the rent. He said David Lamptey did not give the defendant a receipt and said he will ask his lawyer to draw up a tenancy agreement but he cannot tell whether or not the tenancy agreement was given to the defendant. Defendant gave evidence that PW1 showed her the house she lives in presently and introduced the late David Lamptey to her and they came into a tenancy agreement to rent the place. The defendant said she paid $300.00 to PW1 as fees he charged for introducing the late David Lamptey to her. The defendant said the agreed rent was $250.00 a month for a period of two years and she paid rent advance of $6,000.00 for 24 months. The defendant said her friend Gifty Quarm was present at the negotiation for the rent on the disputed property.  She said at the meeting the late David Lamptey asked PW1 to get out of the room so he was not present during the negotiation. Under crossexamination PW1 admitted he does not speak Ga and that he did not understand the conversation that went on between the late David Lamptey and the defendant. He also admitted that after he had introduced the defendant, the late David Lamptey asked that he leaves them alone so he was not privy to the discussion between them. He stated that he cannot remember the exact date the defendant’s tenancy commenced but he handed over the keys to her in August 2011 and the tenancy was to expire in February 2013 thereabouts.   \r\nI have considered the evidence led and come to the conclusion that it is in the interest of justice to grant the plaintiff the relief sought herein. \r\nThe plaintiff claimed an order for the payment of Mesne Profits at the market rate of Seven Hundred US Dollars (US$700.00) for the Defendant’s unlawful occupation of the property from September 2013 to the date of the Defendant’s actual eviction from the property.  \r\nPW1 asserted that at the time of giving evidence (April 2015), if a house is furnished at Manet the rental will be $800.00 and in 2013 the rental of such premises was around $750.00 a month. PW2 said he knows the property in dispute. PW2 said the rental rates are market driven and said for the property in dispute, a three bedroom house, unfurnished would fetch not more than $400.00 but a furnished one will cost \r\n12  \r\nbetween $600.00 and $650.00 in 2011 and in 2013 the furnished property would cost about $800.00 a month at most.  \r\nLearned counsel for the plaintiff submitted that the plaintiff is entitled to claim for any specified loss he suffered as a result of the defendant’s trespass to his land. He stated that the plaintiff lost rent for the unlawful period the defendant occupied the property and he is entitled to claim for mesne profits in addition to general damages for trespass and he cited Badu v. Adampa (1976) 2 GLR 450. He asserted that PW1 and PW2 said the rental value for the disputed property in 2013 was US$750.00 and US$ 800.00 per month respectively. He said that based on their evidence the plaintiff’s claim for US$ 700.00 per month as mesne profit for the defendant’s unlawful use of the property from September 2013 is very reasonable and urged the court to grant same.  \r\nI have considered the evidence led and come to the conclusion that it is in the interest of justice to grant the plaintiff the relief sought herein. \r\nThe plaintiff requested an order for the defendant to return/replace all materials and equipment, as was found in the Plaintiff’s property, in a good tenantable state and to pay for any missing/damaged item at the existing market rate. Learned counsel for the plaintiff stated that the defendant rented the property with furnishings as depicted in exhibits E series and F so the plaintiff is entitled to the return of the property with the furnished items. It was submitted that, besides normal wear and tear, the property and its furnished items are required to be returned in good tenantable state. It was asserted that the plaintiff is entitled to a contingent order for the defendant to pay for any missing or damaged items from the list of furnishing as depicted in exhibits E series and F. \r\nHaving evaluated the evidence adduced I grant the plaintiff this relief as it is warranted by the evidence led. \r\nThe plaintiff claimed general damages for trespass. Learned counsel for the plaintiff submitted that the defendant has unlawfully occupied the disputed property from September 2013 to date and the unauthorized occupation of the property by the defendant will fall as trespass and the plaintiff is entitled to general damages for trespass. He stated that trespass is actionable per se and general damages for trespass follow as a matter of course. He asserted that the plaintiff testified that he has been \r\n13  \r\nseparated from his family for the past two years as a result of the defendant’s unlawful occupation of his house and submitted that this fact should play a consideration in the award of any damages for trespass.  \r\nIn Attorney-General v. Faroe Atlantic Co. Ltd[2005-2006] SCGLR 271 at 290, the Supreme Court, per Dr. Seth Twum JSC stated: \r\n  “….a claim for damages for breach of contract will entitle the plaintiff to nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damages are ever ordered…General damages are such as the law will presume to be natural or probable consequence of the defendant’s act. They arise by inference of the law and need not therefore be proved by evidence.  \r\nAs the Supreme Court per Twum JSC held in Delmas Agency Ghana Ltd. Vrs. Food Distributors International Ltd. [2007-2008] 2 SCGLR 748, holding (3): \r\n “General damages is such as the law will presume to be the natural or     probable consequences of the defendant’s act. It arises by inference of law and therefore need not to proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages as are also appropriate.”     \r\nI have evaluated the totality of the evidence led, the facts and circumstances of this case and consider GH¢ 1,000.00 as adequate as general damages and I award same to the 1st defendant herein against the plaintiffs.  \r\nThe plaintiff requested interest on all sums found liable and payable by the defendant at the prevailing commercial rate from the date of payment to the date of final payment. Most of the claims made by the plaintiff have been quoted in US$ for the Ghana Cedi equivalent to be paid. This takes care of the issue of inflation with respect to the Ghana Cedi for which a claim for interest would be justified. In view of that I do not think it is fair to claim interest on the amounts claimed. The claim for interest is therefore denied and dismissed.  \r\nThe issues of whether or not the defendant is entitled to her counterclaim and that of whether or not the defendant is the owner in equity of the building in dispute will be \r\n14  \r\ndetermined together. According to the defendant about eight months of living in the premises the late David Lamptey told her about his intention to dispose of the property and she expressed interest in purchasing it so they agreed at the price of $100, 000.00 and she paid $30, 000.00, $35,000.00 and $22, 500.00 to him but it the agreement was not documented and he did not give her any receipt. She said the transaction was not documented because the Late David Lamptey said he was going to prepare a document and receipt and ask Manet to prepare a formal transfer after she had paid the outstanding balance. The defendant said she never had an agreement with the plaintiff but with the late David Lamptey and paid him over $80, 000.00 so if the plaintiff wants the house then he should refund the amount paid to her. Under cross-examination the defendant said when they came to see her at the property she told them if they were ready to pay her the money she had paid towards purchasing the house she would move out. Under cross-examination the defendant said she paid the $30,000.00, $35,000.00 and $22,500.00 to the late David Lamptey between March 2012 and July 2012. The defendant said she and the late David Lamptey were lovers. She explained that she was in a relationship with the late David Lamptey and he gave her a lot of money, every week he gave her at least GH¢10,000.00 so she had a lot of money. She stated that the money she paid to the late David Lamptey came from the money he gave her and she put some of the money into her account.  \r\nThe defendant’s case is that the late David Lamptey sold the property to her for US$100,000.00 and she paid a total of US$93,000.00 leaving an outstanding balance of US$7,000.00 which the late David Lamptey’s estate is entitled to so she counterclaimed against the plaintiff for a declaration that she is the beneficial owner of the property. She did not tender any documentary evidence nor call any witness to corroborate all or any aspect of her evidence.  \r\nFrom exhibit A the disputed property was bought at US $120,000.00. The plaintiff stressed that his brother bought the property in 2011 at US $120,000.00 and it was empty and he could not have offered it for sale at US $100,000.00 after furnishing it as houses appreciate and do not depreciate in value. PW1 said the late David Lamptey never told him he wanted to sell the property and he could not have sold same because at Manet if one wants to sell his property he has to go the office to see the Marketing officer for the transaction to be completed and those of them at the site would be informed of the new ownership. PW2 stated that he knows both parties herein. He said he first met the defendant in September 2014 when she came to his \r\n15  \r\noffice looking for property to buy in that area and said she already lives there but did not indicate that she owned s property there but stated that her current abode was the subject matter of a dispute in court. PW2 said the defendant did not tell him she had bought the property in dispute from the late David Lamptey neither did she ask that Manet prepares any documentation for her in relation to the property in dispute.  PW2 said the defendant indicated her willingness to take up a property for sale, DH7 but she did not revert to them on it. According to PW2, the second time he met the defendant was in 2015 when she came to his office to enquire about a different property which belonged to somebody else who was interested in selling. Under cross-examination PW2 said if the defendant purchased the property from the late Lamptey, he would have come to Manet for the documentation for the third party.      \r\nLearned counsel for the plaintiff in his written address submitted that the plaintiff wrote a letter titled “Reminder Notice” dated 14th September 2013 (exhibit G) to the defendant demanding her to give vacant possession of the property to him by December 2013. He said the defendant had an opportunity then to write back to the plaintiff to assert her claim of ownership to the property but she did not reply to the letter to do so. He contended that a person who pays US$93,000.00 for a property and is being asked to relinquish possession of same will very much likely raise issues of her interest in the property at the earliest opportunity to do so. He stated that the content of exhibit J1 also undermines the defendant’s claim of ownership to the disputed property. He stated that in December 2013, the plaintiff attempted to eject the defendant through the Rent Control Department, but her lawyer, Tawiah Yoyowah, by a letter dated 9th December 2013 (exhibit J1) wrote to Rent Control and informed the Rent Officer that the disputed property formed part of the estate of the late David Lamptey and that he had advised his client to institute civil proceedings to the court where the estate matter had been determined. He said exhibit J1 did not disclose any claim of ownership on the part of the defendant. It was stressed that exhibit J1 contradicts the defendant’s pleading in paragraph 3 of the Statement of Defence that Mr. Lamptey was the former owner of the disputed property. He stated that it is a well-established principle that where a party’s evidence is substantially inconsistent with his pleaded case while that of his opponent is consistent with his pleadings, the opponent’s case is preferable to the one who substantially departs from his pleadings as held in Appiah v. Takyi [198283] GLR 1.   \r\n16  \r\nLearned counsel for the plaintiff added that the provision in Clause C (1) (c) of exhibit K proves that the Executors of the estate of Mr. Lamptey do not claim any interest in the disputed property for Mr. Lamptey but rather acknowledge the fact that the plaintiff was gifted with a 3 bedroom house at Manet Estate in Nsamapowmu by David Lamptey and this evidence rids the defendant’s claim of any merit.  \r\nIn his written address learned counsel for the plaintiff submitted that the defendant failed to show any evidence of her purported contract with Mr. Lamptey for the sale of the property. He asserted that her purported contract for the sale of an interest in the disputed property was required by Section 2 (a) of the Conveyancing Act 1973, (NRCD 175) to be in writing or remain unenforceable. He said the defendant failed to prove any receipt for her said payments to Mr. Lamptey and there is no evidence of the said payment to the deceased person. It was submitted that Section 3 of NRCD 175 cannot avail her and save her from the strict requirement in Section 2 of the said Act to document such transactions. He cited the case of Deegbe v. Nsiah and ano. [1984-86] 1 GLR 545 where the Court of Appeal held that a contract for the sale of a house, which did not comply with Section 2 (a) of the Conveyancing Act, could not be enforced. He concluded that defendant’s claim of ownership to the disputed property is a nullity and baseless and the plaintiff has a better claim of ownership and title to the disputed property.  \r\nAn evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on her as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiff against the defendant herein for all the reliefs sought except relief (g) on interest. The defendant is ordered to pay the Ghana Cedis equivalent of all the amounts claimed and granted in US dollars.    \r\nA counter claim is a separate claim in which the defendant becomes the plaintiff or the party with the burden of proof with respect to the reliefs sought. The evidence of both parties and the submissions made by their counsel with respect to the counterclaim has been discussed above in this judgment and I do not wish to repeat same. From the totality of the evidence adduced I have no option than to find that the defendant has not established her counterclaim and therefore same is dismissed.    \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and \r\n17  \r\ncircumstances of this case and award costs of GH¢5,000.00  to the plaintiff  against the defendant herein.    \r\n     (SGD.) \r\nGEORGINA MENSAH-DATSA \r\n(JUSTICE OF THE HIGH COURT)    \r\nCounsel:  \r\n1. Mr. Godwin Mensah Sackey for Plaintiff. \r\n2.  Ms. Crystle Asa Eck for Defendants. \r\n                 ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BMISC 370/2014', '', '', '', '2016-01-27', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(654, 'JOSEPH SIAW BOATENG  VRS.  MICHAEL OHENE NYARKOH DAZI', '', 'links/cases/JOSEPH SIAW BOATENG v. MICHAEL OHENE NYARKOH DAZI.pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T The plaintiff claims against the defendants the following reliefs: (a) Refund of the sum of US$12,200.00.   \r\n(b) Interest on the said sum at the prevailing commercial bank rate from August 21, 2012 till the date of final payment.   \r\n(c) Costs.   \r\n(d) Any other order(s) the court may deem fit. \r\nThe plaintiff is a dealer in second hand (used) vehicle spare parts at Abossey Okai, Accra. The defendant is a trader who sells second hand (used) vehicle spare parts at Abossey Okai, Accra.  \r\nThe plaintiff’s case is that he travelled to South Korea in August 2012, on a business trip and realized that he needed extra money to transact the business he went for. He said a friend informed him that someone called Wofa, was scheduled to visit South Korea from Ghana around that time and his telephone number was given to the plaintiff as 0244694462. It is the plaintiff’s case that he transmitted the information to his shop assistant (agent) to call him on the given cell phone number, identify the said Wofa and give him an amount of twelve thousand two hundred United States dollars $12,200.00 to be sent to the plaintiff in South Korea. It was submitted that in transmitting the telephone number orally, one digit was misquoted making the \r\n2  \r\nnumber 0244894462 instead of 0244694462. It was asserted that the wrong number 0244894462, was the defendant’s cell phone number. It was stated that the plaintiff’s agent called the telephone number 0244894462 which the defendant responded to and went to the plaintiff’s agent on 21st August, 2012, to collect the twelve thousand two hundred United States dollars $12,200.00 but he failed to send to the plaintiff. On the plaintiff’s return to Ghana, he made a complaint to the Ghana Police Service and the defendant was charged, prosecuted, convicted and sentenced to a fine of one thousand two hundred Ghana Cedis GH¢1,200.00  by the Circuit Court 8, Accra on 20th January 2014. It was stated that the defendant paid the fine but did not refund the plaintiff’s money.  \r\nThe defendant case is that the plaintiff lodged a complaint at the Achimota Police Station against him and he was invited. He told the police that on the date in question his shop was robbed and his cell phone was stolen, so he went for a new sim card having caused the original phone line to be blocked. Defendant said he does not agree with the judgment of the Circuit Court but decided to put the matter to rest as an appeal would also consume much of his business time. So he decided to refund the money and has since refunded a total of GH¢5,000.00.       \r\nThe issues for trial are as follows: \r\na. Whether or not the defendant was charged, prosecuted, convicted and sentenced to a fine of 100 penalty units by the Circuit Court over the said US$12,200.00? b. Whether or not the defendant has refunded the sum of US$12,200.00 dollars to the plaintiff? c. Whether or not the defendant is indebted to the plaintiff?  \r\nThe issue of whether or not the defendant was charged, prosecuted, convicted and sentenced to a fine of 100 penalty units by the Circuit Court over the said US$12,200.00 is not in dispute as the facts, evidence led and exhibit B establish that beyond any doubt.  \r\nThe issues of whether or not the defendant has refunded the sum of US$12,200.00 dollars to the plaintiff and that of whether or not the defendant is indebted to the plaintiff would be determined together as they deal with the same issue. The \r\n3  \r\nplaintiff’s attorney Sandice Boadi tendered a Power of Attorney (exhibit A) and testified on behalf of the plaintiff. He said he sells spare parts and the plaintiff is his boss.  The plaintiff’s attorney gave evidence that he knows the defendant. According to him on the 21/08/2012 the plaintiff called him from Korea and said he needed $12,200.00 to be transferred to him. He said the plaintiff gave him the telephone number 0244894462 to call one ‘Wofa’ and he did. He stated that when the person picked the telephone he asked him if he was ‘Wofa’ and he said yes. He added that he asked him if he was the person who had been asked by the plaintiff to send the money to him and he said yes and showed the plaintiff’s attorney where he could find him at the Kingsby roundabout at Achimota. The plaintiff’s attorney said he showed the defendant the shirt he was wearing and he identified him. The plaintiff’s attorney testified that he called the plaintiff who said he had also spoken to the defendant. He said he gave the defendant the $12,200.00, he counted or checked it, and they parted ways. The plaintiff’s attorney contended that after he had parted ways with the defendant, the plaintiff called him from Korea and asked if he could identify the person to whom he had given the money. He said he became apprehensive and the plaintiff said he suspected that the money had been given to the wrong person. The plaintiff’s attorney said he went back to the person who gave him the telephone number and he said the plaintiff had mixed up the numbers and that the correct number is 0244694462. He asserted that he reported to the Achimota police and they tried tracing the number but to no avail until the plaintiff came back from Korea. He said when the plaintiff returned to Ghana, they assisted the police and the person was arrested after Christmas, prosecuted, found guilty and asked to refund the money. The plaintiff’s attorney said the defendant did not pay the money and tendered a copy of the judgment as exhibit B.      \r\nUnder cross-examination the plaintiff’s attorney admitted he gave the money to one ‘Wofa’. He admitted that before giving the money to ‘Wofa’, he had confirmation from the plaintiff that the person he gave the money to was indeed ‘Wofa’. He said he did not know the defendant’s name was not ‘Wofa’. Under cross-examination it was suggested to the plaintiff’s attorney that he could not have given the money to the defendant who is not called ‘Wofa’, and he answered that the plaintiff gave him the number and added the name ‘Wofa’ and when he met the defendant, he asked if he was ‘Wofa’ and he said yes. Under cross-examination the plaintiff’s attorney said prior to giving the money to ‘Wofa’ he did not know him and did he did not take any \r\n4  \r\nreceipt. Under cross-examination the plaintiff’s attorney stated that he does not have anything to indicate that indeed he gave the money to ‘Wofa’, except that when he gave the money to ‘Wofa’ he spoke to the plaintiff and the plaintiff confirmed that the person he gave the money to was ‘Wofa’. Under cross-examination the plaintiff’s attorney said ‘Wofa’ was not alone when he gave the money to him, but was with a group of people in the vehicle. Under cross-examination the plaintiff’s attorney insisted that he was able to identify the person he gave the money to, and that it was the defendant. He stated that it was in court that he realized that the defendant was not the Wofa that he should have given the money to.  \r\nPW1 Seidu Yussif, Registrar, Circuit Court, Accra tendered exhibits in respect of case no. D4/106/2013; The Republic v. Michaeal Ohene Nyako. They are the telephone calls of the defendant herein and accused therein as exhibit C and the request for assistance, exhibit D. Under cross-examination PW1 said what he knows about exhibit C is that, the prosecution tendered it in the criminal trial on 07/10/2013. He disagreed that exhibit C was manufactured by the plaintiff herein and complainant therein.  \r\nThe defendant in his pleadings contended that he has refunded a total of GH¢5,000.00 to the plaintiff, but led no evidence to prove same. He also did not tender any receipt in support of his claim. The plaintiff insists that the defendant has made no payment of the amount he owes him.    \r\nI have deliberately reproduced the evidence adduced, as it speaks for itself. Evaluating the totality of the evidence adduced, I come to the conclusion that the defendant has not made any payment of the amount owed to the plaintiff. I therefore find as a fact that the defendant owes the plaintiff US$12,200.00. \r\nFrom the proceedings the defendant was present in court and had a lawyer representing him. Despite several notices to the defendant to open his defence, neither he nor his lawyer attended court. The defendant is therefore deemed to have waived opening his case or giving his version of the case.  \r\nExhibit B is the judgment of H/H Judge Seyram Tsatsu Yao Azumah dated 20th January 2014, in The Republic v. Michael Ohene Nyarko. It is important to note that the lawyer for the accused person in the said criminal case Mr. Robert Allotey is the same lawyer for the defendant in this present case. In the said judgment the \r\n5  \r\naccused was found guilty, sentenced to pay a fine of 100 penalty units or in default 36 months IHL. The accused was also directed to pay the 12, 200.00 dollars to PW1. PW1 therein is Joseph Siaw Boateng, the plaintiff herein.  \r\nThe defendant did not appeal the decision of the said court. It is therefore binding on him. \r\nAn evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on him as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiff against the defendant herein for all the reliefs. The defendant is ordered to pay the Ghana Cedis equivalent of US$12,200.00 to the plaintiff. The defendant is also ordered to pay the Ghana Cedis equivalent of the interest on the said sum at the prevailing bank rate from August 21, 2012 till the date of final payment.   \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case and award costs of GH¢8,000.00  to the plaintiff against the defendant herein.   \r\n      (SGD.)                                       GEORGINA MENSAH-DATSA  (JUSTICE OF THE HIGH COURT)   \r\nCounsel:                                                                                   \r\n1. Mr. Kweku Nyamekye Aidoo for Plaintiff. \r\n2. Mr. Robert Davies Allotey for Defendant.   ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BC 336/2014', '', '', '', '2016-02-26', ''),
(655, 'MAXWELL OSAFO MARFO  VRS.  1. KOJO YEBOAH  2. SETH NEGURO    ', '', 'links/cases/MAXWELL OSAFO MARFO v. KOJO YEBOAH & ANOR..pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T \r\nThe plaintiff claims against the defendants the following reliefs: \r\n“a) An Order directed at the defendants to replace the plaintiff’s vehicle with a similar Chevy Prism Saloon Vehicle or in the alternative pay for the prevailing market value of the vehicle at the time of the accident.  \r\nb) Loss of income at GH¢30.00 per day from 13th July, 2013, up to date of judgment.  \r\nc) General damages for loss of use of the vehicle.  \r\nd) Costs.” \r\nThe defendants counter-claimed as follows: \r\n“i. Damages for mental stress, hardship and harassment. \r\n ii. By reason of the matters narrated in the Statement of Defence, the  defendants have suffered loss and damage, both special and general.” The facts of this case are that the plaintiff is a taxi driver resident in Accra. The 1st defendant is a mechanic and the owner of a garage vehicle fixing workshop situated at Ofankor Barrier along the Asofa road, Accra. The 2nd defendant is an apprentice mechanic and works under the direct supervision of the1st defendant and was in the course of employment of the 1st defendant at all material times to this suit. Sometime in July 2013, the plaintiff sent his vehicle a Chevy Prism Saloon Vehicle with \r\n2  \r\nregistration number GT 6493 -09 to the 1st defendant’s workshop for repairs after the vehicle developed a fault. The 2nd defendant drove the plaintiff’s vehicle, had an accident with it and it has still not been repaired. \r\nThe issues for trial are as follows: \r\n“(a) Whether or not the defendants agreed to repair the plaintiff’s vehicle?  (b) Whether or not the GH¢100.00 was paid to the 1st defendant through the 2nd defendant? (c) Whether or not the 2nd defendant repaired the plaintiff’s vehicle on the instructions of the 1st defendant in the course of his employment? (d) Whether or not the 1st defendant agreed to replace the plaintiff’s vehicle after the accident.  (e) Whether or not the plaintiff instructed 2nd defendant to drive the vehicle with his consent?  (f) Whether or not the plaintiff and the 2nd defendant went to Abossey Okai and bought the necessary parts of the vehicle?  (g) Whether or not the 1st defendant informed the plaintiff to look for a similar vehicle so that the 1st defendant would buy same for the plaintiff as replacement for the plaintiff’s damaged vehicle?” \r\nBoth learned counsel for the plaintiff and the defendants were to file addresses but only counsel for the plaintiff did as at the time of reading this judgment.  \r\nWith respect to the issue of whether or not the defendants agreed to repair the plaintiff’s vehicle, the plaintiff, PW1 Richard Osafo, the plaintiff’s elder brother and the defendants all testified that the defendant’s agreed to repair the plaintiff’s vehicle after the 2nd defendant had an accident with it. The plaintiff said at the meeting the 1st defendant did not admit that he had taken delivery of the vehicle in order to repair it so they went away. He added that the next day the 1st defendant called him and admitted that the incident occurred in his shop so they should have a second meeting. Plaintiff said at the second meeting the 1st defendant admitted liability and said he will repair the vehicle and he agreed. The 1st defendant stated that he agreed to the advice of the police inspector because the 2nd defendant is his apprentice and he wanted to help him. This issue is therefore not in dispute. \r\n3  \r\nOn the issue of whether or not the GH¢100.00 was paid to the 1st defendant through the 2nd defendant, the plaintiff stated that the 1st defendant asked him to deposit GH¢40.00 towards the repairs with the 2nd defendant and he did. He said later the 1st defendant requested an additional GH¢60.00 and on 10th July 2013, plaintiff gave it to the 2nd defendant who gave it to the 1st defendant. According to 2nd defendant the plaintiff gave him GH¢100.00 to facilitate the repairs of his vehicle but the 1st defendant was not aware of it. From the evidence adduced the GH¢100.00 was given to the 2nd defendant. He stated that the 1st defendant was not aware of the said amount. The plaintiff did not admit receiving the said amount. It is therefore difficult to say that the said amount was ultimately given to the 1st defendant. I am persuaded to accept the 1st defendant’s evidence that he did not give the money to the 2nd defendant because he was given the money and he has nothing to gain by saying that he did not hand over the said money to the 1st defendant. Concerning the issue of whether or not the 2nd defendant repaired the plaintiff’s vehicle on the instructions of the 1st defendant in the course of his employment, according to the plaintiff, on 8th July 2013, he took his taxi Chery Prism with registration no. GT 6493-09 for repairs at the 1st defendant’s workshop. He said the 1st defendant said he could not work on it then so he should bring it the next day and leave it with the 2nd defendant which he did on the 9th July 2013. PW1 said the 1st defendant contended that the plaintiff did not give the vehicle to him but rather negotiated with the 2nd defendant and stressed that he was not responsible for the damage. PW1 claimed that the plaintiff stated that that was the third time he had gone to the shop and the 1st defendant made him deal with the 2nd defendant after which the plaintiff paid the money to the 1st defendant. Under cross-examination, the plaintiff denied that he had direct transaction with the 2nd defendant without the knowledge of the 1st defendant. The plaintiff disputed counsel for the defendants assertion that in an attempt to resolve the matter between the plaintiff and the 2nd defendant, the 1st defendant said because the 2nd defendant is his apprentice he will help to repair the vehicle. The 1st defendant gave evidence that on the 13th July 2013, the plaintiff brought his car for him to repair and he told him he was busy so he cannot work on it so he left with his car. According to the 1st defendant, the next day his apprentice the 2nd defendant, told him he had been involved in an accident with the plaintiff’s car. The 1st defendant said before the accident he was not aware that the plaintiff had given his car to the 2nd defendant. He said after the accident the 2nd \r\n4  \r\ndefendant told him, he worked on the plaintiff’s car in a house behind the plaintiff’s shop.  The 1st defendant stated that he told both the plaintiff and the 2nd defendant that he, the 1st defendant was not responsible for the car. The 1st defendant said he got a telephone call from the Mile 7 police station that a case had been made against him so he reported there. According to the 1st defendant, the inspector at the police station advised him that as he was in a situation to repair the car on behalf of the 2nd defendant he should do so and report back to the inspector so he commenced with the repairs on the car. Under cross-examination the 1st defendant said the 2nd defendant is the most senior apprentice in his shop. He stated that the 2nd defendant has ever worked on the plaintiff’s vehicle. He said he is the owner of the shop and supervises the 2nd defendant. He stated that after the accident the 2nd defendant towed the plaintiff’s vehicle to the shop. He admitted that the 2nd defendant cannot work on any vehicle that is brought to the 1st defendant’s shop without the 1st defendant’s consent. The 2nd defendant gave evidence that on the day the plaintiff brought his vehicle to the shop for repairs, they were very busy working and because his master the 1st defendant was not present, the plaintiff left his vehicle under the 2nd defendant’s care. He said the plaintiff gave the vehicle to him to repair but he did not repair it in the 1st defendant’s shop. He stated that he repaired the said vehicle behind the plaintiff’s workshop but the 1st defendant was not aware of it. Under cross-examination the 2nd defendant admitted he works under the supervision of the 1st defendant and takes instructions from him. He admitted that he has no authority to work on any vehicle that comes to the workshop without the 1st defendant’s consent. He stated that the 1st defendant does not know that he, the 2nd defendant has been working on the plaintiff’s vehicle for a long time. From the evidence led it is clear that the 2nd defendant did not repair the plaintiff’s vehicle on the instructions of the 1st defendant in the course of his employment before he had the accident with it.  \r\nWith regards to the issue of whether or not the 1st defendant agreed to replace the plaintiff’s vehicle after the accident, the evidence adduced indicates that is the case. Exhibit B is the demand for replacement of the plaintiff’s vehicle by his lawyers dated 20th December 2013 and addressed to the 1st defendant. I find as a fact that the 1st defendant agreed to replace the plaintiff’s vehicle after the accident and the engine in the plaintiff’s vehicle was stolen.   \r\n5  \r\nOn the issue of whether or not the plaintiff instructed 2nd defendant to drive the vehicle with his consent, the 2nd defendant contended that after he had finished repairing the vehicle the plaintiff told him to meet him somewhere with it and on the way he was involved in an accident. Under cross-examination the 2nd defendant said he does not have a driving license. He stated that at the time he drove the plaintiff’s vehicle he had no authority from the 1st defendant to do so. Under cross-examination the 2nd defendant also said he did not report the accident to the police. He stated that because he does not have a driving license he did not drive the vehicle on his own authority but it was the plaintiff who instructed him to meet him with the vehicle. The 1st defendant said the 2nd defendant told him it was the plaintiff who gave him the car and asked him to drive it. The evidence led indicates that the 2nd defendant drove the plaintiff’s car with the knowledge of the plaintiff but without the knowledge or consent of the 1st defendant.  \r\nRegarding the issue of whether or not the plaintiff and the 2nd defendant went to Abossey Okai and bought the necessary parts of the vehicle, no evidence was led on this so it is presumed that they did not go. This is more so, as from the evidence led, the plaintiff is not aware of the parts of the vehicle that were allegedly bought by the defendants.   \r\nWith respect to the issue of whether or not the 1st defendant informed the plaintiff to look for a similar vehicle so that the 1st defendant would buy same for the plaintiff as replacement for the plaintiff’s damaged vehicle, the plaintiff said that at that meeting the 1st defendant told them the engine he had removed from the vehicle had been stolen, so, the plaintiff and the 1st defendant should look for a new vehicle to buy to replace the plaintiff’s vehicle. The plaintiff stated that he found a similar vehicle and told the 1st defendant of the price but the 1st defendant said he would no longer buy the plaintiff a vehicle because he was going to clear his vehicle from the harbour. This evidence was corroborated by PW1. The plaintiff disputed counsel for the defendants suggestions that he brought this action to force the hand of the defendants to buy him another vehicle and he wants to reap where he has not sown. PW1 stated that the 1st defendant decided that they should look for a similar vehicle to that of the plaintiff so that he the 1st defendant will pay for it. According to PW1 they found a car at Kata Hotel for GH¢7,000.00 and told the 1st defendant. He added that at their third meeting with the 1st defendant, he showed the plaintiff and PW1 \r\n6  \r\nan Opel Vectra parked in front of his workshop and said if the plaintiff was interested he would replace the damaged vehicle with it but the plaintiff told him that vehicle was not in good condition so he would not accept it. Under cross-examination, PW1 said that when the 1st defendant showed the plaintiff the Opel Vectra and he refused it, the 1st defendant suggested that they go to the market to look for a similar car to replace the damaged vehicle and they did as he suggested. Under cross-examination the 1st defendant denied that he said he will replace the plaintiff’s vehicle with a new one. An evaluation of the evidence led makes it beyond dispute that the 1st defendant informed the plaintiff to look for a similar vehicle so that he, the 1st defendant would buy same for the plaintiff as replacement for the plaintiff’s damaged vehicle.  \r\nIn his written address learned counsel for the plaintiff submitted that the plaintiff has sufficiently established his case to entitle him to judgment and relied on the cases of Ackah vrs. Pergah Transport Ltd &Ors. [2010] SCGLR 728, Manu vrs. Nsiah [2005-2006] SCGLR 25, Takoradi Flour Mills vrs. Samir Faris [2005-2006] SCGLR 882, Majogbe vrs. Larbi [1959] 192, In Re Ashalley Botwe Lands; Adjetey & Ors vrs. Kotey & Ors. [2003-2004] SCGLR 420 and Section 11(4) of the Evidence Act 1975, NRCD 323.  He stated that the plaintiff tendered exhibits A, A1 and A2 to support his claim that the vehicle is damaged beyond repairs. He said this evidence is corroborated by the evidence of the court expert. He added that as at the date the plaintiff issued the Writ, the vehicle has still not been repaired. Learned counsel submitted that the engine on the vehicle was stolen whilst in the custody of the defendants and admitted by them. He said the 2nd defendant admitted that the accident was his fault. He asserted that even though counsel for the defendants sought to suggest that no agreement to replace the plaintiff’s vehicle was reached, no evidence was tendered by the defendants to dispute that allegation  by the plaintiff which was admitted in the pleadings of the defendants.  \r\nLearned counsel for the plaintiff contended that the evidence also demonstrates that the conduct of the defendants with respect to the plaintiff’s vehicle amounts to conversion. He stated that the Supreme Court case of Nelson vrs. Standard Bank [1999-2000] 366 at 368 has facts which are similar to the present case. According to him it was held in that case that conversion was the wrongful possession of goods or chattel belonging to another and use thereof by the other. \r\n7  \r\nLearned counsel for the plaintiff stated that the 1st defendant averred that he was repairing the vehicle but led no evidence in support of the assertion. He said proof in law is the establishment of an averment by admissible evidence which the defendant failed to discharge.    \r\nThe plaintiff gave evidence that he is a taxi driver. He said the 1st defendant is a mechanic who repairs his vehicle and the 2nd defendant is a senior apprentice of the 1st defendant. The plaintiff said the 2nd defendant’s telephone was used to call him and a different person told him the vehicle had been involved in an accident and he tendered exhibits A, A1 and A2 in support of his claims. Exhibits A, A1 and A2 are pictures of the plaintiff’s car. Under cross-examination, the plaintiff admitted that the defendants’ workshop is where he regularly repairs his vehicle. The 1st defendant said he started repairing the plaintiff’s car when the engine was stolen. He stated that he had completed with the body works on the car. He added that all the car parts (apart from the engine) are there but are not fitted to the car. He explained that he removed them so that they do not get missing. He tendered pictures of the plaintiff’s car parts as exhibit 1. The 1st defendant said he intends to buy the lost engine for the plaintiff. He said the car is not damaged beyond repairs. Under cross-examination the 1st defendant denied that the plaintiff’s vehicle is damaged beyond repairs. He insisted that they are in the process of repairing the plaintiff’s vehicle and that exhibit 1, is his proof.  It must be stated that exhibit 1 is a picture of parts of the car only and does not have a picture of the car itself. During cross-examination the 1st defendant said he has not found the missing engine. He alleged that he has bought a new engine and paid a deposit for it but has not yet made final payment for it so he has not gone for it. He admitted that at the time the engine was stolen the car was in his custody and that the defendants are responsible for it. He maintained that after three years, they are still repairing the plaintiff’s vehicle. He stressed that he has all the parts of the said vehicle but because of this matter in court he suspended the repairs on the vehicle. Under cross-examination the 2nd defendant said they are almost done with the repairs of the plaintiff’s vehicle. He said it is his fault that the plaintiff’s car engine is missing. He added that the 1st defendant promised to buy the missing engine and has done so. He stated that the court has to believe their evidence that they are still repairing the plaintiff’s vehicle.   \r\n8  \r\nThe plaintiff said the defendants called and told him they will finish working on the car on the 13th July 2013 so he went there on that date but found out that the vehicle had been involved in an accident and was a wreck. PW1 said at the second meeting the 1st defendant admitted liability because the 2nd defendant was his apprentice and said he will repair the vehicle in a short period because it was the plaintiff’s sole means of survival. The 1st defendant gave evidence that the plaintiff brings his vehicle to him to repair. Plaintiff said on 15th July 2013, he went with his brother Richard Osafo to the workshop and they had a meeting with the defendants. Plaintiff said he told him if it was repaired well that would be the end of the matter but if it was not repaired satisfactorily, the vehicle would be sold and the top up made by the 1st defendant.  \r\nCW1 Augustine Yaw Kyeremeh, an engineer and a valuation officer with State Transport Corporation (STC) testified that the plaintiff’s vehicle is damaged beyond economic repair and tendered exhibits CE1 and CE2. Under cross-examination by the plaintiff’s counsel CW1 said the vehicle was inspected on the 8th October 2015 in the presence of the plaintiff and a gentleman form the workshop. He said he does not know the defendants. Under cross-examination by the plaintiff’s counsel CW1 said the meaning of the vehicle being damaged beyond repairs is that the cost of the damage is higher than the pre-accident value of the vehicle. He admitted that it means the vehicle cannot be repaired. Under cross-examination by the defendant’s counsel CW1 stated that he has been an engineer with the STC for 15 years. He stated that it is not necessary to have all the parties present before inspection of a vehicle. He denied that he deliberately left out the defendants and went with only the plaintiff to inspect the vehicle. He also denied that his report was influenced by the plaintiff. He stressed that the court requested them to have the vehicle inspected and bring a report and that is their only business in the case. He added that they are a professional body and present reports as the object is and do not do anybody a favour. He explained that the vehicle is damaged beyond economic repairs because due the impact that the accident caused the vehicle, there is no repair that one can do that can make the vehicle motorable.  \r\nExhibit CE1 dated 13th October 2015 by Intercity STC coaches Ltd. states that the pre-accident value of the plaintiff’s vehicle is GH¢5, 100.00, the cost of repairs of the vehicle is GH¢8, 420.00, and attached the motor engineers report for the residue \r\n9  \r\nvalue. The motor engineers report states that the present condition of the plaintiff’s vehicle is as follows: “No engine and gear box. No both front tyres and nubs. No front shafts. No steering tyre rods and links. No front suspension system. Bend rear off side dead axle and trailing arm. Electrical system requires overhauling Burst air bags. Shattered front windscreen. Broken and bend famrnes. Torn frame panel. No front finders and bumper. Vehicle damaged beyond economic repairs. (Scrap).  Value not less than GH¢150.00.” Exhibit CE2 is the list of the items vehicle parts and their cost the estimated total cost of repairs on plaintiff’s vehicle is stated as GH¢8, 740.00.  \r\nI have deliberately given the details of the evidence of the parties and CW1 so that the totality of the evidence can be easily adduced and explain the reasons for the judgment.  \r\nThe plaintiff requested an Order directed at the defendants to replace the plaintiff’s vehicle with a similar Chevy Prism Saloon Vehicle or in the alternative pay for the prevailing market value of the vehicle at the time of the accident. From the evidence led it has been impossible for the defendants to replace the plaintiff’s vehicle with a similar one. The principle in law is that the court does not give orders it has to supervise to ensure enforcement. Considering the facts and circumstances of this case, it will be more practical and easy to enforce the alternative relief sought, that is, for the defendants to pay for the prevailing market value of the vehicle at the time of the accident. Exhibit CE1 states that the pre-accident value of the plaintiff’s vehicle is GH¢5,100.00. Since this is what the plaintiff requested, it is granted and judgment is entered for the plaintiff against the defendant’s for this amount. \r\nThe plaintiff claimed loss of income at GH¢30.00 per day from 13th July, 2013, up to date of judgment. From the evidence adduced the plaintiff’s vehicle herein is his source of income and the defendants are aware of this. He has been deprived of its use and the income accruing from it since July 2013. It is therefore fair or just that the plaintiff is granted this relief. I have taken note of the amount claimed and it is very reasonable considering the economic realities in the country. Judgment is therefore entered for the plaintiff against the defendants for this relief sought.  \r\nThe plaintiff also claimed for General damages for loss of use of the vehicle. From the evidence adduced I find as a fact that the defendants breached the contract with \r\n10  \r\nthe plaintiff to repair his vehicle. Having so found the plaintiff is entitled to damages. It is trite knowledge that general damages flow from the breach of contract or tort.  \r\nIn Attorney-General v. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 at 290, the Supreme Court, per Dr. Seth Twum JSC stated:   “….a claim for damages for breach of contract will entitle the plaintiff to nominal damages only unless the plaintiff gives particulars of special damage. No particulars of general damages are ever ordered…General damages are such as the law will presume to be natural or probable consequence of the defendant’s act. They arise by inference of the law and need not therefore be proved by evidence.  As the Supreme Court per Twum JSC held in Delmas Agency Ghana Ltd. Vrs. Food Distributors International Ltd. [2007-2008] 2 SCGLR 748, holding (3):  “General damages is such as the law will presume to be the natural or     probable consequences of the defendant’s act. It arises by inference of law and therefore need not to proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages as are also appropriate.”     I have evaluated the totality of the evidence led, the facts and circumstances of this case and consider GH¢6,000.00 as adequate as general damages. I therefore award GH¢6,000.00 as general damages to the plaintiff against the defendants herein. An evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on him as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiff against the defendants herein for all the reliefs sought as stated above.   The defendants counterclaimed against the plaintiff herein. A counterclaim is a separate claim in which the defendant becomes the plaintiff or the party with the burden of proof with respect to the reliefs sought. The defendants counterclaimed for: \r\ni. Damages for mental stress, hardship and harassment. ii. By reason of the matters narrated in the Statement of Defence, the defendants have suffered loss and damage, both special and general. \r\n11  \r\nThe 1st defendant said they counterclaimed because the plaintiff has wasted his time and money so he should be compensated. Under cross-examination the 1st defendant stated that they counterclaimed because when he was repairing the plaintiff’s vehicle he received the Writ of Summons. He added that he has suffered stress. Learned counsel for the plaintiff submitted in his written address that the defendants counterclaim has no basis in law and same should be dismissed.  \r\nNo other evidence was adduced by the defendants to establish the basis of their counter-claim. From the totality of the evidence adduced I have no option than to find that the defendants have not established their counterclaim and therefore same is dismissed.    \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case. I have considered the efforts it took the plaintiff to have his vehicle repaired and the litigation and its related expenses. I have also taken into account that the pre-accident value of the vehicle at the time of the accident as claimed by the plaintiff cannot purchase the same vehicle today due to inflation. I have considered all the above and think it is in the interest of justice to award costs of GH¢10,000.00 to the plaintiff against the defendants herein and I so order.     \r\n      (SGD.) GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)   \r\nCOUNSEL: \r\n1. George Agbeko for the Plaintiff. \r\n2. Abraham Amaliba for the defendants.  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BMISC 524/2014 ', '', '', '', '2016-07-28', ''),
(656, 'NII PAPA-ASA III  VRS.  1. CHIEF EXECUTIVE, LANDS COMMISSION  2. REGIONAL LANDS OFFICER', '', 'links/cases/NII PAPA-ASA III v. CHIEF EXEC, LANDS COMMISSION & ANOR. 2.pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T  \r\nThe Plaintiff claims against the Defendants the following reliefs: \r\n1. An order to compel the two Defendants to nullify and or cancel the registration of all titles to lands which violate the decision of the Supreme Court dated 19th October, 1988. \r\n2. Costs.  \r\nOn the 8th day of May, 2015, Her Ladyship Justice Hafisata Amaleboba (Mrs.) entered Interlocutory Judgment in favour of the plaintiff and against the defendants in default of appearance and ordered that the case be adjourned             for the plaintiff to lead evidence in proof of the reliefs.  \r\nThe defendants did not enter an appearance. A motion to set aside the judgment in default of appearance by the defendants was stuck out for want of prosecution. Although served the defendants did not appear in court, neither did they testify in the matter.   \r\nThe plaintiff’s case is that he is the Chief of Papase and brings this action on behalf of himself, the Papase Stool and on behalf of the Gbese Stool, owners of Papase lands. His contention is that he brought the defendant companies to \r\n2  \r\ncourt because they have stolen his land, the Gbese Papase stool lands, and sold it and registered the land in the name of those people. He tendered a copy of the plan of their stool land as exhibit A to indicate the demarcation of their land.  \r\nHe testified that around 1983-1984, there was a litigation between him, his father and siblings on one side and Ayi Quarshie Solomon on the other side which was finally decided by the Supreme Court on the 19th October, 1988. He contended that the Supreme Court ruled that the land belongs to the Gbese Stool, and was not under the jurisdiction of the Ga Mantse nor Nii Amoah of Adjei Kotoku and tendered the said Supreme Court judgment as exhibit B. He asserted that during the pendency of the above mentioned suit, their land was under Eastern Region and they registered the land under Eastern Region and it is still under the Eastern Region. According to him the land is under the Greater Accra Region and now Papase is under the Greater Accra Region. He claimed that the 1st defendant stole part of their land and registered it in the name of the Adjen Kotoku in the Greater Accra, so their lawyers wrote letters to the Lands Commission that the registration they have done in the name of Adjen Kotoku should be cancelled and he tendered exhibits C and C1 in support of his claim. He stated that the defendants did not respond to the said letters hence they came to court. He stressed that although the Supreme Court judgment referred to above as exhibit D said Papase lands belong to Gbese stool, Lands Commission has registered some lands for Adjen Kotoku people without reference to the Gbese stool. He said Nii Kwei Tsuru family, Nii Amarkai, Asafotse Okpoti III, Nii Klotia family of Adjin Kotoku, Mohammed Jebri, Alhaji Issa Salifu and one Doctor Muniru Zakaria are the beneficiaries of the registration by the Lands Commission. According to him Alhaji Issa Salifu and Muniru Zakaria have registered the land in Accra and not Koforidua or Eastern Region. He tendered exhibit D in the name of Alhaji Issah Salifu in support of his contentions. \r\nThe plaintiff’s evidence is unchallenged. An evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on him as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered for the plaintiff against the defendants herein for the reliefs sought.  \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and \r\n3  \r\ncircumstances of this case and award costs of GH¢5,000.00 to the plaintiff  against the defendants herein.    \r\n                                                          (SGD) \r\nGEORGINA MENSAH-DATSA \r\n (JUSTICE OF THE HIGH COURT)   \r\nCounsel:                                                                                   \r\n1. Mr. Nkrabea Effah Darteh for Plaintiff. \r\n2.  No representation for Defendants. \r\n                  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'SOL 48/15', '', '', '', '2016-01-27', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(657, '1. RICHARD BENTUM  2. VIVIAN CLOTTEY  VRS.  EUNICE PAPPOE ', '', 'links/cases/RICHARD BENTUM & ANOR. v. EUNICE PAPPOE.pdf', 'Yes', '', '2016', 'High Court', 'J U D G M E N T The plaintiffs claim against the defendant the following reliefs:  \r\ni. An eviction order against the defendant from House No. WL 369/1, Kasoa (forming part of the estate of the late William Appiaenim Appiah).  ii.  A declaration that the said house belongs to the estate of the late William Appiaenim Appiah. iii. An order directed at the defendant to pay to the estate GH¢3,000.00 as cost of legal fees in defending the action against the burial ceremony.  iv.  An order for recovery of possession in favour of the administrators for the interest of the beneficiaries (children). v. An order directing the administrators to manage the disputed property and lease same for the best interest of the beneficiaries.  vi. Costs of legal fees.  vii. General Damages. viii. Costs.  ix. Any other reliefs that the court may deem fit in the circumstances. \r\nThe defendant counterclaimed the following reliefs: \r\ni. The said Letters of Administration granted to the Plaintiffs be declared illegal and same declared a nullity. \r\n2  \r\nii. She as the surviving wife of the deceased is entitled to a grant of Letters of Administration in respect of the estate of her late husband.  iii. Declaration that the said House is the property of my (sic) late husband and our marital home.  iv. Cost. \r\nThe facts of this case are that the plaintiffs are the administrators of the estate of the late William Appiaenim Oko Appiah (hereinafter the deceased). The 1st plaintiff is the uncle of the deceased and the 2nd plaintiff is his wife/widow. The defendant’s case is that she was married to the deceased and was living with him until his death so she is the surviving spouse.  \r\nThe plaintiffs called three witnesses. PW1, Grace Abiuw, the 1st plaintiff’s cousin, that is, PW1’s mother’s brother’s son. PW2, Irene Akweley Afriyie Appiah, a niece of the 1st plaintiff, and the twin sister of the deceased. PW3, Margaret Aba Kwaeba Anoful, a sister of the 1st plaintiff and mother of the deceased.  \r\nThe defendant called two witnesses. DW1 Zane Acquaye the jeweler from whom the deceased bought three marriage rings and DW2 Nii Shippi David Amon Ashie, the foster father of the defendant.   \r\nThe following are the issues for trial: \r\n1. Whether the defendant was/is a wife of the late William Appiaenim Appiah (either under customs or law). 2. Whether the grant of Letters of Administration to the deceased’s wife (Vivian Clottey) and representative of the deceased’s family (Richard Bentum) was lawful.  3. Whether it is reasonable and in the interest of justice and educational needs of deceased’s children to rent out his only landed property.  4. Whether the disputed property is a matrimonial home of the deceased and the defendant.  5. Whether the said property falls within the estate of the late William Appiaenim Appiah’s estate.   \r\n3  \r\nThe defendant added the following as additional issues: \r\n1. Whether the deceased had the capacity to select a wife of his choice without resort to the plaintiffs. 2. Whether the 2nd plaintiff was married to the deceased at the time of his death. 3. Whether the 2nd plaintiff was married to the deceased under the Ordinance CAP 127. 4. Whether the deceased stayed with the defendant for eight years under the same roof in a rented premise. 5. Whether the defendant took care of the deceased’s medical bills when he was hospitalized until his death.  6. Whether the deceased and the defendant moved their marital home at Kasoa and stayed there till his death.  7. Whether the deceased had the intention to convert their marriage into an ordinance marriage.  8. Whether the deceased contributed to the funeral of the deceased.  9. Whether the plaintiffs have the capacity to select a wife for the deceased. \r\nOn the issue of whether or not the defendant was/is a wife of the late William Appiaenim Appiah (either under customs or law), the 1st plaintiff stated that he knows the defendant and she was a girlfriend of the deceased. He said the defendant and the deceased had a child. He stated that the defendant is known to the deceased family. The 1st plaintiff asserted that the when the child between the defendant and the deceased was born, his family and he went to name the child but that cannot mean they are married by Fante Custom. According to the 2nd plaintiff she saw signs of the defendant’s relationship with the deceased in 2002 but when she asked the deceased he said there was nothing. Under cross- examination the 2nd plaintiff said it came to her attention that the defendant was the deceased’s girlfriend about seven (7) years ago.  PW2 gave evidence that sometime ago the deceased told her, he had had a child with a lady called Eunice and that she should visit her at the maternity ward and she did. She stated that when the deceased wanted to name the child, he gave her drinks to bring the baby from Sakaman. She said she went for the child at Sakaman for the naming ceremony. PW3 said the 2nd plaintiff her in-law as she was married to the deceased. PW3 said she knows the defendant. PW3 said she does not know whether the deceased married the defendant but as a mother to the deceased she would know if he did. She added that it would not be proper in their custom for \r\n4  \r\nthe deceased to get married without her knowledge. PW3 said she is called Aba Kwaaba which is also the name given to the daughter the deceased and the defendant have. Under cross- examination PW3 said she is not on speaking terms with the defendant. Under cross- examination PW3 admitted that Mr. Mensah led their family to the defendant’s family to present a drink to accept the pregnancy.  \r\nThe defendant stated that she was not the deceased’s girlfriend but his wife. She explained that she cooked for him, washed his clothes and did everything with him including going to church. She said they went out as husband and wife and have a daughter called Wilhemina Esi Kwaaba Appiah. She said the deceased’s family and his friends knew them as man and wife. The defendant stated that the deceased’s family members are saying she was not his wife because they are not on good terms with her. The defendant said her father and the deceased were members of the Men’s Fellowship of the Wesley Methodist Church, Asafoatse Nettey road. She stated that when her father died, the deceased and his friends assisted her in the burial. The defendant said when she got pregnant the deceased sent an elder of the family with a drink to her father and family members to indicate that his family had accepted the pregnancy as theirs. The defendant said the plaintiffs and their witnesses know that she was the wife of the deceased. She said she attends church with one of the deceased’s sisters, Grace Abbiw (PW1). Under cross- examination the defendant said she never accompanied the deceased to family and other functions because his family members did not like her. She said the deceased family members resisted their relationship. She contended that the deceased told her his mother said he should not marry her but he added that he had married her so they should move on. Under cross- examination the defendant said her father is deceased. She stated that before his death, her father was a member of the Men’s fellowship at their church. She added that the deceased herein was also a member of that fellowship. She said when her father died the deceased herein and some of his friends who were also members of the fellowship attended her father’s funeral. She contended that the deceased told her two of his aunties had performed the necessary customary rites on the deceased behalf as required of a son-in-law, but she did not see any relative of the deceased at her father’s funeral. Under cross- examination the defendant denied that the deceased and his friends attended her father’s funeral because they all belonged to the Men’s fellowship and stressed that it was because he was her husband.   \r\n5  \r\nDW2 said that the defendant was married to the deceased and they were all attending Methodist Church, Asafoatse Nettey road. According to DW2 there was a marriage ceremony between the defendant and the deceased. He said when the defendant got pregnant the deceased sent a drink, an amount of money, and two pieces of cloth to inform the family that the defendant is now his wife.  DW2 said when the deceased died, his family sent for them to come to Apam and four people from their family went. He said two of the said four people were in court and named them as Joseph Ayi Hammond and Yakuby Larbi. DW2 at Apam they were told the deceased was married and they gave the defendant’s family GH¢5.00 as a stamp to officially inform them that their in-law had passed on. DW2 said they were called to Zongo Junction, Russia in Accra by the deceased aunt and when they went they met the 1st plaintiff. He stated that they were asked to provide GH¢200.00 which they did and the deceased family also provided the same amount. DW2 insisted that the defendant and the deceased were man and wife and lived together. He said he used to visit them when they were at IBE around Mamprobi. He said the members of the men fellowship, elders and the then Presiding Bishop of the church knew the defendant was the deceased wife.   \r\nLearned counsel for the plaintiffs submitted in her written address that there was no ordinance marriage between the deceased and the defendant herein as she the defendant admitted same. \r\nShe cited Yaotey v. Quaye [1961] GLR 573 at 574, which laid down the ‘essentials’ of a valid customary marriage as follows: \r\n(a) Agreement by the parties to live together as man and wife; (b) Consent of the families of the man and woman to the marriage. Such consent may be implied from the conduct, e.g. acknowledging the parties as man and wife, or accepting drink from the man or his family; (c) Consummation of the marriage, i.e. the parties living together openly as man and wife.  \r\nPlaintiffs’ counsel cited Essilfie v. Quarcoo [1992]2 GLR 180 where Lutterodt J. (as she then was) now Georgina Wood C.J. held as follows: \r\n   “ On the authorities, there are two forms of valid marriage known to the customary law; first the ordinary case when a man sought the hand of a woman from the family \r\n6  \r\nand with their consent performed customary ceremonies of payment of drinks, customary fees and dowry; and secondly where although the customary marital rites had not been performed, the parties had consented to live in the eyes of the world as man and wife and their families had consented that they should do so and the parties actually lived as man and wife in the eye of the world as man and wife.” \r\nLearned counsel for the plaintiffs cited the Court of Appeal case of Irene Gorleku v. Justice Pobee & anor [2012]42 GMJ 53 which held that there are two major forms of customary marriages; one involves the presentation of drinks and the other is devoid of formalities like the presentation of drinks.  \r\nPlaintiffs’ counsel submitted that from the facts and evidence there was no formal customary marriage between the deceased and the defendant herein. She stated that the defendant, and DW2 confirmed same and it was corroborated by the defendants lawyers WiLDAF in a letter (exhibit K) dated the 12th June 2013. Paragraph 10 of exhibit K stated that “under the laws of Ghana, Ms Pappeo (sic) accepts that because the deceased did not complete the customary marriage rites, that she is not his spouse. She stressed that the first kind of customary marriage which involves the presentation of drinks and the acceptance of same by the woman’s family was absent in this case.    \r\nPlaintiffs’ counsel asserted that in the second kind of customary marriage the consent of the families is implied by their conduct. She stated that at page 76 of the Irene Gorleku v. Justice Pobee & anor case cited supra, the Court held that such includes but not limited to the following;  \r\n   “attending funerals involving families of either party together and making donations in the eye of the public as man and wife without any hindrance, paying visits to relatives on both sides during occasions and other festivities, acquiring properties in joint names as man and wife, attending public functions together in the eye of the world as man and wife, attending public functions together in the eye of the world as man and wife, long co-habitation with or without children in the eye of the public as man and wife without any interference from any quarters (including both families) and express written statements acknowledged by both parties to that effect.”   \r\n7  \r\nCounsel for the plaintiffs contended that the defendant cannot claim to have been living as man and wife with the deceased in the eye of the public because the evidence adduced shows that she was never seen together with the deceased in any family or public functions including funerals, naming ceremonies, outdoorings or weddings except for a common church which they both belonged to even before the alleged marriage. She stated that there is evidence that there was a lot of interference and displeasure from the deceased’s family which cannot constitute implied consent from the family or amount to living as man and wife in the eye of the public. She commented that the defendant’s evidence that whenever the deceased attended funerals at Apam or Winneba, he tells her to remain at home and he will go alone because the deceased said if they both went to the funerals there would be nobody in the house is ridiculous. She invited the court to take judicial notice of our Ghanaian setting where whole families including children attend funerals of very important family members and it does not matter at all whether anybody remains in the house or not. She said the deceased attended the funeral of the defendant’s father together with other members of the church who belonged to the Men’s fellowship because the defendant’s late father was a member of that fellowship and not because he was the defendant’s husband. She emphasized that the deceased’s family including his mother (PW1), twin sister, uncle (1st Plaintiff) and aunt (PW1) all denied any knowledge or consent to any marriage between the deceased and the defendant.  She relied on Sections 11(1) and 17 of the Evidence Act, 1975 (NRCD 323), Faibi v. State Hotels Corporations [1968] 471; Yaotey v. Quaye, supra at headnote 2 that “the question whether the relationship between a man and a woman is one of marriage or of concubinage is a question of law to be determined from the facts and circumstances of the relationship.” \r\nPlaintiff’s counsel contended that the defendant seemed to be under a misapprehension that merely cohabiting with someone and performing domestic chores for the deceased made her the wife of the deceased. She cited In Re Caveat by Clara Sackitey [1962] 1 GLR 180, Badu v. Boakye (1975) 1 GLR 283 and Mintah v. Ampeyim (Civil Appeal No. J4/18/2013 dated 25th March 2015) which held that a concubinage relationship does not constitute or equate a valid customary marriage. She asserted that what existed between the deceased and the defendant was a concubinary relationship. She submitted that whatever drinks and cloth the deceased presented to the defendant’s family was to acknowledge the child he had \r\n8  \r\nwith the defendant and it was because of that the defendant’s role during the deceased’s funeral was limited to those roles undertaken on behalf of her daughter. She concluded that there was no marriage whatsoever exiting between the deceased and the defendant so she was not his wife. \r\nLearned counsel for the defendant submitted in his written address that in the book “Contemporary Principles of Family Law in Ghana” by Frederica Ahwireng-Obeng, Chief Justice Osborne was quoted in Re Sapara [1919] REN 605 at 607-608 “ I am unable to accept the proposition…..That the consent of a man’s family is  a legal essential to his marriage.” Defendant’s counsel submitted that the only essential element to validate a customary law marriage is when the man and the woman have agreed to live as husband and wife and so hold in the eyes of the world. He quoted an article “Essentials of a customary law marriage: A new approach” 1980 Vol XII RGL 40-52 which states inter alia that family consent is a mere ratification of the agreement between a man and a woman to live as husband and wife. It is desirable but not a condition precedent to the creation of a valid customary law marriage. The defendant’s counsel submitted that too much emphasis on family consent could lead to disastrous results, for example, a valid customary law marriage albeit informal could be declared invalid by a family and thereby prevent a legitimate widow or widower from benefiting under the Intestate Succession Law 1985, PNDCL 111. He cited Gorleku v. Pobee & Anor [2012] 42 GMJ and submitted that the Court of Appeal held that there was a valid customary law marriage (informal) even though no marriage ceremony had taken place between the deceased and the widow.   \r\nThe defendant stated that the deceased promised to perform the traditional marriage and ordinance marriage. Under cross- examination the defendant admitted that the customary and ordinance marriages promised by the deceased could not come off before he died. This puts the issue beyond doubt that there was no formal marriage ceremony between the defendant and the deceased. The issue to determine now is whether or not the informal kind of customary marriage existed between the deceased and the defendant. In Essilfie v. Quarcoo [1992]2 GLR 180, it was held that the consent of the family could be either actual and express or implied and constructive. From the evidence adduced the deceased and the defendant and the deceased lived together but did not have the consent of the deceased’s family with respect to their relationship. The evidence of the defendant and the deceased’s mother, PW3 all confirm that the defendant and the deceased’s family members were \r\n9  \r\nnot on good terms. The deceased’s family till date insist that the 2nd plaintiff is the only wife of the deceased they know and accept.  \r\nThe defendant maintained that she was doing everything for the deceased and they lived as man and wife. It is important to state that marriage is a Status and not a Role. This means that one is married because the law or custom says so and not as a result of the role the person plays. It is possible to have a married person who does not perform any of the roles expected of a married person but that alone will not make the person an unmarried person. In the same vein, one may be performing all the roles expected of a married person but that in itself or alone does not make one a married person. This is a big misconception people have and may account for the belief of the defendant that she was married to the deceased. The problem with the informal kind of customary law marriage is that because it depends on the people consenting to live in the eyes of the world as man and wife and their families consenting that they should do so, it is subject to all kinds of interpretations, for example, how long should the people be leading such a life for it to qualify as a valid customary marriage? It is therefore decided on a case by case basis depending on the peculiar facts of the case.  \r\nI have deliberately reproduced at length the evidence of all the parties in this case and the detailed submissions made by both learned counsel herein on this issue because it forms the main issue on which most of the others issues relate. In fact this whole case turns on this one issue. I have evaluated the totality of the evidence adduced as it relates to the case law on informal customary marriage and come to the conclusion that the defendant was not the wife of the deceased. She is therefore not the surviving spouse of the deceased.    \r\nWith regards to the issue of whether or not the grant of Letters of Administration to the deceased’s wife (Vivian Clottey) and representative of the deceased’s family (Richard Bentum) was lawful, the 1st plaintiff stressed that the defendant could not have gone for Letters of Administration because she was the deceased’s girlfriend. He said they pasted notices for the Letters of Administration on the walls of the deceased building where the defendant lives. He asserted that it was the head of their family who gave them the authority to apply for Letters of Administration and tendered a copy of it as exhibit F. The 1st plaintiff prayed that the Letters of Administration should not be declared null and void.  \r\n10  \r\nThe defendant said because she was the wife of the deceased who looked after him until his death, the Letters of Administration granted to the 2nd plaintiff should be granted to her. She said she will ensure that the beneficiaries of the deceased estate, his children and his mother are catered for.  \r\n Learned counsel for the plaintiffs submitted in her written address that the defendant was not the surviving spouse of the deceased and could therefore not be entitled to be granted Letters of Administration in respect of the deceased’s estate. She stated that the 2nd plaintiff was the wife of the deceased at the time of his death. Plaintiffs’ counsel submitted that Order 66, rule 13 of C.I. 47 provides that any surviving spouse is entitled to a grant of Letters of Administration when a person dies interstate, so the 2nd plaintiff as the surviving spouse of the deceased at the time of his death, was entitled to apply for Letter of Administration in respect of his estate and prayed that the court so hold. She states that the 2nd plaintiff was the proper person entitled to the grant of Letters of Administration.  \r\nLearned counsel for the defendant submitted in his written address that the defendant was the surviving spouse of the deceased at the time of his death and she more than anybody else was entitled to the grant of the Letters of Administration. He stated that in the book “Law of Wills in Ghana” by Samuel Azu Crabbe, at Chapter 16 under the heading Revocation of Grant of Probate (or Letters of Administration) the eminent Jurist quoted In Re Agyepong (decd: Abosi v. Poku) (1982-83) GLRD 32 where the Court of Appeal held that “A grant obtained by fraud, malafide or by concealing information which should have been disclosed to the court might also be revoked.  \r\nConsidering the facts of this case and the evidence led, I am satisfied that the grant of Letters of Administration to the deceased’s wife (Vivian Clottey), the 2nd plaintiff and  a representative of the deceased’s family (Richard Bentum), the 1st plaintiff was lawful as it was in accordance with law.  \r\nConcerning the issue of whether or not it is reasonable and in the interest of justice and educational needs of deceased’s children to rent out his only landed property, the 1st plaintiff asserted that they have decided to rent out the house so that they will use the proceeds to settle the debts. Under cross- examination the 2nd plaintiff said the indebtedness incurred after the deceased’s funeral was GH¢6,000.00, she said \r\n11  \r\nshe could not remember exactly how much it cost to organize the deceased’s funeral but the amount was huge. She stated that the deceased’s estate is indebted to the tune of GH¢21,157.00, and the funeral cost over GH¢14,000.00. She said she and the 1st plaintiff have not made any payment with respect to the indebtedness of the estate of the deceased. Later she changed her evidence to say she had forgotten how much of the indebtedness of the deceased’s estate is left to be paid. The 2nd plaintiff stated that nobody apart from the caretaker lives in the Kasoa property.     \r\nLearned counsel for the plaintiffs submitted in her written address that the deceased remained married to the 2nd plaintiff and was never married to the defendant, so the disputed house is the matrimonial home of the 2nd plaintiff and it is only fair and just that the said property be rented out to cater for the needs of all of the deceased children especially where is includes the defendant’s child.   \r\nThe plaintiffs case is that the deceased left behind four children all of school going age and neither the estate nor their mother is able to see them through their education. The estate is in serious debt as the deceased left no property except a four bedroom apartment which plaintiffs are desirous of renting/leasing out so that proceeds there from can be used to settle the indebtedness of the estate as well as most importantly, continue the education of the children of the deceased.  \r\nFrom the evidence adduced, presently there is only a caretaker living in the Kasoa property. Although the defendant lived with the deceased in the said house, it is not the matrimonial home of the deceased. It is also a fact that the 2nd plaintiff never lived with the deceased in the said house. Since the deceased had a wife, the 2nd plaintiff and four children which includes the defendant’s daughter with the deceased (Wilhelmina), it is best for them to decide what to do with the said house (whether to live in it, rent it out and share the rent or sell it and share the proceeds) as all the parties stated have an interest in the said house and their interest must be protected by the administrators of the deceased estate.   \r\nWith respect to the issue of whether or not the disputed property is a matrimonial home of the deceased and the defendant, under cross- examination the defendant said she lives at Mamprobi. She stated that the deceased family members sacked her from the Kasoa house and said they were performing custom and the doors will be opened on the 1st anniversary of the funeral of the deceased for her to return and she \r\n12  \r\nis still waiting. She said all her personal effects are in the Kasoa house. Under cross- examination the defendant said her personal effects are in the room in which she and the deceased lived. DW2 said the defendant was living with the deceased at Kasoa. \r\nLearned counsel for the plaintiffs submitted in her written address that since the defendant was not the spouse of the deceased, the Kasoa house could not have been ‘a marital home’. She said the disputed house is the matrimonial home of the deceased and the 2nd plaintiff.   \r\nFrom the reasons stated earlier in this judgment, I find as a fact that the Kasoa house is not a matrimonial home of the deceased and the defendant. \r\nRegarding the issue of whether or not the said property falls within the estate of the late William Appiaenim Appiah’s estate, the 2nd plaintiff stated that the deceased built a house on a plot she purchased at Kasoa. She said they used the money they received as gifts at their 1st child’s outdooring to purchase the plot. She contended that the deceased told her to take care of the home whilst he took care of the building of the house. She said she visited the site from time to time when he was constructing the house. She added that the deceased did not quite finish with the house before his death but it is habitable. \r\nLearned counsel for the plaintiffs submitted in her written address that the disputed property falls within the estate of the deceased. She stated that neither the 2nd plaintiff nor the defendant has claimed that the said house is her personal property as they both said it was built by the deceased. She contended that 2nd plaintiff said as the wife of the deceased he built the house with her support.  \r\nThe totality of the evidence led makes it beyond dispute that the said property is part of the estate of the deceased herein. \r\nOn the issue of whether or not the deceased had the capacity to select a wife of his choice without resort to the plaintiffs, learned counsel for the plaintiffs submitted in her written address that the deceased had the capacity to select a wife of his choice without resort to the plaintiffs but the facts and evidence led is that he did not select a wife apart from the 2nd plaintiff who he chose/selected with the knowledge and consent of his family.      \r\n13  \r\nIt is a fact which cannot be disputed that the deceased being an adult of sound mind had the capacity to select a wife of his choice without resort to the plaintiffs herein. This is because the deceased had a customary marriage with the 2nd plaintiff and that marriage is potentially polygamous so he could have married other wives apart from or in addition to the 2nd plaintiff herein.  \r\nWith regards to the issue of whether or not the 2nd plaintiff was married to the deceased at the time of his death, the 1st plaintiff testified that the 2nd plaintiff was married to the deceased customarily and their marriage was not dissolved. He said they had three children. The 2nd plaintiff gave evidence that the 1st plaintiff is her inlaw. She said she and the deceased were customarily married in 1990 in the presence of both families including the 1st plaintiff at Mamprobi, Bamboi in her father’s house. The 2nd plaintiff stressed that she never ceased to be the wife of the deceased. Under cross- examination the 2nd plaintiff said lawyer H. B. Apparten Plange is her uncle but he did not perform any legal services for her. She denied the contents of the letter, exhibit 1 that as at 10/09/200, the deceased had nothing to do with the 2nd plaintiff as a wife. She denied taking the deceased to court. Under cross- examination the 2nd plaintiff denied summoning the deceased per exhibit 2, a suit at the Family Tribunal, Community Centre. She also denied that as a result of the said suit the deceased was made to pay maintenance to her and the children into court. She denied never receiving any such monies paid into court. Under cross- examination the 2nd plaintiff said the deceased was hospitalized on Thursday, 22nd January, 2013 at Winneba. She said she did not take him to hospital but gave money to his mother who added some to pay for his medical expenses. \r\nPW1 said she was the “Okyeame” who led her family to perform the marriage rites of the deceased and the 2nd plaintiff and tendered pictures of the ceremony as exhibits G-G6. She stressed that the marriage between the deceased and the 2nd plaintiff was not dissolved and that if it was, she would have known because the items she presented on behalf of the family would have been returned to her. She stated that she was not aware whether the deceased married another woman but if he did her sister, the deceased mother would have informed her.  \r\nAccording to PW2 the deceased married the 2nd plaintiff in 1990. She said she is in the photographs that is, exhibit G series. She contended that the marriage between the deceased and the 2nd plaintiff was not dissolved before his death. She said when \r\n14  \r\nthe deceased died, the 2nd plaintiff performed the customary rites as a wife and provided the items customarily required for bathing the corpse, and provided an ambulance and the coffin.  PW2 said the family and her still regard the 2nd plaintiff as the deceased’s widow.  \r\nPW3 said the 2nd plaintiff her in-law as she was married to the deceased. PW3 said she knows the defendant. PW3 said in Fante tradition the mother of the groom does not attend her son’s traditional marriage so she delegated Grace Abbiw (PW1). PW3 said the marriage between the deceased and the 2nd plaintiff was not dissolved.    \r\nDefendant tendered exhibits 9, 10 1nd 11notice of payment to court, receipts and hearing notice respectively as documents given to her by the deceased to indicate that he has no longer married to the 2nd plaintiff since 2001. Under cross- examination the defendant said she lived with the deceased as husband and wife for 10 years before he died. Under cross- examination the defendant stated that the deceased told her because he was no longer married to the 2nd plaintiff he paid maintenance into court. \r\nLearned counsel for the plaintiffs submitted in her written address that this issue could also be rephrased as “whether the marriage between the 2nd plaintiff and the deceased was ever dissolved.” She stated that the defendant contended that she was the wife of the deceased and not the 2nd plaintiff and tendered exhibits 8, 9 , 10 and 11 which are a letter headed “Re Your Marriage With Miss Vivian Clottey” dated 10th September, 2001, a notice of payment into court, receipts and a hearing notice respectively. She stated that these exhibits do not provide proof of the fact that the marriage between the deceased and the 2nd plaintiff had been dissolved. She relied on Sections 10 (1), 12 (1) and 12(2) of NRCD 323,   Barkers-Wood v. Nana Fitz [2007-2008] SCGLR 879 and  Tuakwa v. Bosom [2001-2002] SCGLR 61.  \r\nPlaintiff’s counsel said counsel for the defendant sought to suggest that since the 2nd plaintiff and the deceased were not cohabiting, their marriage had ceased to subsist. She asserted that this argument is untenable in law. She cited In Re Amarteifio (Dec’d): Amarteifio v. Amarteifio [1999-2000] 2 GLR 781 CA which held that long separation does not constitute dissolution of the marriage especially where no steps were taken in that direction unless the couple clearly intended it to be so and did acts inconsistent with the marriage relationship. Learned counsel for the \r\n15  \r\nplaintiffs stated that the witnesses for the plaintiffs testified that the marriage between the deceased and the 2nd plaintiff was never dissolved.  She said when the deceased died the 2nd plaintiff performed the customary rites as a wife. She asserted that the defendant has not discharged the burden of proving that the deceased and the 2nd plaintiff were not married at the time of the deceased’s death and submitted that the 2nd plaintiff had a subsisting marriage at the time of the deceased’s death. \r\nLearned counsel for the defendant submitted in his written address that the 2nd plaintiff has not been truthful to the court. He asked how a woman enjoying her marriage with her husband with whom she was living under the same roof be collecting her maintenance money from the court? He asserted that the 2nd plaintiff claimed under cross-examination that she left her husband’s residence at IBE in 2007 but before then she was collecting money in court. He submitted that the 2nd plaintiff was no longer in the marriage even though no formal ceremony has been done signifying that the marriage was over.  \r\nHe added that under cross-examination the 2nd plaintiff said she was not the one who took the deceased to hospital at Winneba and that she gave money to the deceased mother who added some at pay for the deceased’s medical expenses. The defendant’s counsel said it is curious that a woman who claimed she was in a marriage would send her alleged contribution to the mother of the deceased to cater for hospital bills. He concluded that the 2nd plaintiff was not the surviving spouse of the deceased at the time of his death.  \r\nFrom the evidence adduced including exhibits tendered it is obvious that the 2nd plaintiff was not living with the deceased and they had serious marital issues which took them to lawyers and even to court for resolution. It is also a fact that their marriage was never formally dissolved. Learned counsel for the defendant’s submission that the 2nd plaintiff was no longer in the marriage even though no formal ceremony has been done signifying that the marriage was over cannot be accepted by the court. This is because marriage is a status and not a role as explained earlier in this judgment. Based on the reasons stated in this judgment, I find as a fact that the 2nd plaintiff was married to the deceased at the time of his death. \r\nConcerning the issue of whether or not the 2nd plaintiff was married to the deceased under the Ordinance CAP 127, under cross- examination the 2nd plaintiff said she \r\n16  \r\nwas not wedded to the deceased but that on the Sunday after the customary rites, they went to church and were blessed. She stated that the customary marriage was on the 30/11/1990 at her father’s residence in Bamboi, about 25-26 years ago. Under cross- examination PW2 said the deceased and the 2nd plaintiff had a traditional marriage. \r\nLearned counsel for the plaintiffs submitted in her written address that this issue was struck out on the 28/04/2014 at the application for direction stage. She stated that the 2nd plaintiff never alleged that she was married to the deceased under CAP 127. \r\nThe facts and evidence adduced by all the parties indicate clearly that the 2nd plaintiff and the deceased were not married under CAP 127. \r\nWith respect to the issue of whether or not the deceased stayed with the defendant for eight years under the same roof in a rented premise, the defendant gave evidence that she lived with the deceased at IBE (St. Mary’s) for eight (8) years before they moved to the house at Kasoa on the 15/05/11, 01/05/11 a Sunday, where he lived till he died. The defendant said the 1st plaintiff who is the deceased’s uncle, used to visit the deceased and her when they were at IBE. The defendant stated that she lived with the deceased from 2003 and had their daughter Wilhelmina in 2006 in the IBE (St. Mary’s) house so the 2nd plaintiff’s evidence that she left the said house in 2007 cannot be true. Under cross- examination the defendant denied that during her stay with the deceased none of his relatives’ saw her in the house. She said when they lived at IBE, the 1st plaintiff used to come to the house for visits but never greeted her. She stated that the deceased told the 1st plaintiff that she the defendant was his wife so if he, the 1st plaintiff would not greet her, he should not come to the house again. She added that the deceased told the 1st plaintiff that it was the defendant who took care of him to enable him go to work and get money to give them when they visited. According to the defendant since 2009 when the deceased said that to the 1st plaintiff, she never set eyes on him until when the deceased was admitted at Winneba.  Under cross- examination the defendant said by 2001, the 2nd plaintiff had left the deceased house, before she went to live with the deceased.  \r\nThe 1st plaintiff said he does not know how long the defendant lived in the house with the deceased nor how long she lived with the deceased. He asserted that the family did not have the right to ask the defendant anything whilst she lived with the \r\n17  \r\ndeceased. PW2 said she used to visit the deceased twice a week when he was at St. Mary’s but never saw the defendant there. \r\nLearned counsel for the plaintiffs submitted in her written address that the deceased’s twin sister Akweley and other family members who testified denied that the defendant lived together with the deceased in the same house for ten years.  She said the defendant failed to prove that she had lived with the deceased in the same house. She stated that the defendant’s evidence was discredited by the plaintiffs and their witnesses. She said the fact that the defendant had a child with the defendant alone did not satisfactorily prove that they were man and wife or that they lived under the same roof for as old as the child was. \r\nThe evidence led indicates clearly that the defendant was living with the deceased for a period of time until his death but the court is not in a position to make any finding of fact as to whether or not the deceased stayed with the defendant for eight years under the same roof in a rented premise. \r\nTo determine the issue of whether or not the defendant took care of the deceased’s medical bills when he was hospitalized until his death, the defendant tendered the receipts of the medications bought for the deceased as exhibits 5, 5A-5H. Under cross- examination the 1st plaintiff said he did not know that throughout the hospitalization of the deceased it was the defendant who took care of him at the hospital and in the house. He stated that they got to know through a relation who informed them that the deceased had been admitted to the hospital. It asserted that it was when they went to visit the deceased at the hospital that they met the defendant. Under cross- examination the 1st plaintiff admitted that the defendant took care of the deceased when he was hospitalized but added that their relations at Winneba also assisted by taking the deceased clothes home to wash amongst others. \r\nLearned counsel for the plaintiffs submitted in her written address that the defendant tendered some exhibits to show that she paid some medical bills during the period the deceased was hospitalized before his death. She added that the 2nd plaintiff and the deceased family also took care of the deceased when he was sick.   \r\nThe evidence led is that the defendant took care of the deceased’s medical bills when he was hospitalized until his death. \r\n18  \r\nOn the issue of whether or not the deceased and the defendant moved their marital home at Kasoa and stayed there till his death, the 2nd plaintiff stated that she never lived in that house because of her work but the children moved in and out. She said she could not tell whether the defendant lived with the deceased for some uninterrupted years or not. She asserted that she had no idea that the defendant lived with the deceased for two years in the house at Kasoa.   \r\nLearned counsel for the plaintiffs submitted in her written address that since the defendant and the deceased were not married there could not have been a marital/ matrimonial home. I agree with learned counsel for the plaintiffs’ submission herein.  \r\nThe next issue is whether or not the deceased had the intention to convert their marriage into an ordinance marriage. The defendant stated that the deceased promised to perform the traditional marriage and ordinance marriage. She tendered in evidence the receipts for the marriage rings and the rings as exhibits 6, 7, 7A, 7B and 7C. According to the defendant, the deceased and she put the ring on each other’s fingers in their room and she asked whether the 2nd plaintiff would not be a problem and the deceased said no and gave her a letter dated 10/09/2001 tendered as exhibit 8. Under cross- examination the defendant said the deceased paid GH¢1,080.00 for the said rings. DW1 testified that the deceased came to his shop to buy a set of wedding rings at GH 1, 080.00 as per exhibit 6. He said the deceased brought his wife, the defendant and he took their ring size. He said exhibit 7 is exactly the ring he made. Under cross-examination DW1 said the deceased and defendant did not tell him anything when they came to the shop and the deceased said they wanted rings. Under cross-examination DW1 said parties who are already engaged buy just the wedding bands but those not engaged buy a third one.  \r\nAccording to DW2 the defendant told him she and the deceased had agreed to have an ordinance marriage and when everything is ready she will tell him to inform the family but did not know whether the arrangement were set before the deceased died.   \r\nLearned counsel for the plaintiffs submitted in her written address that the deceased may have had an intention to convert their relationship into a marriage, customary or ordinance but he never did. She said there was never a marriage of whatever form to have been converted into an ordinance one.   \r\n19  \r\nThe evidence adduced indicates that the deceased may have wanted to perform the formal marriage ceremonies with the defendant but he did not until his death. \r\nOn the issue of whether or not the deceased contributed to the funeral of the deceased, the 1st plaintiff said two days before the funeral of the deceased they received an order of injunction restraining them from the burial and tendered exhibits B and B1 as the Writ of Summons and motion on notice for an Order of Interlocutory Injunction, both filed on 17/4/13. The 1st plaintiff testified that the injunction was not granted and the court asked them to bury their dead. He said he incurred GH¢ 3,000.00 to defend that action and tendered exhibit C.  He contended that he took a loan and the GH¢ 3,000.00 from friends. He asserted that they decided to pay for the loan from the estate of the deceased. The 1st plaintiff said they invited the defendant, upon the death of the deceased since she was his girlfriend or concubine. The 1st plaintiff asserted that the defendant did not contribute in any way towards the funeral. He said the family spent GH¢21,159.00 on the funeral, on drinks, food, chairs, canopies etc. The 1st plaintiff said he had receipts on hospital bills and the lawyers’ fees as exhibits D and E.  Under cross- examination the 1st plaintiff admitted the family collected money from the defendant for the funeral and explained that in Fante custom there is a practice called “Adakansidu” that is an acceptance to bury one’s father and that was what the defendant paid. He stated that if one pays the “Adakansidu” it means the person has agreed to bury her son’s father. \r\nThe 2nd plaintiff contended that upon the death of the deceased, she performed custom, bought the coffin at GH¢500.00, paid for half of the cost of the hearse and was given a list of items expected from the widow. She said she bought all of them and added GH¢500.00.  She said the defendant was part of the funeral celebration. She said the defendant was not assigned any role in the celebration and explained that where she and the deceased hail from, girlfriends do not perform any function in the funeral of a deceased man. \r\nPW2 gave evidence that when the deceased died, the defendant also performed the customary rites. She said the family demanded GH¢200.00 from the defendant on behalf of the child for her father’s burial. PW2 tendered a copy of the obituary prepared by the family as exhibit 2. PW2 said the defendant was not present at the deceased funeral ceremony.  \r\n20  \r\nUnder cross- examination PW3 said the defendant had a child with the deceased so she had to contribute towards his funeral. She explained that the defendant paid as a girlfriend and not as a wife.  \r\nThe defendant said she contributed to the deceased funeral. She said she was told the coffin cost GH¢400.00 and the three children of the 2nd plaintiff paid GH¢200.00 whilst she paid GH¢200.00 on behalf of her daughter. She explained that she went to court for an injunction on the deceased funeral because as her husband she took care of him when he was ill at the hospital and paid the hospital bills but when he died the family excluded her name from the obituary.  \r\nUnder cross- examination DW2 said the misunderstanding that caused them not to attend the deceased funeral was that the deceased had divorced his wife and gotten a new woman who had stayed with him for 13 years and when he died the family did not put the name of the current wife on the obituary. DW2 said the defendant paid the said GH¢200.00 when the deceased died on behalf of her daughter Wilhelmina for the funeral. DW2 said at Zongo Junction the 1st plaintiff told them, the deceased family was only going to use the 2nd plaintiff’s name in the obituary and he refused hence he and the defendant took the matter to court to restrain the deceased family from carrying out the funeral. DW2 admitted that their attempt to restrain the funeral of the deceased failed in court, and they were upset hence they did not attend the deceased funeral. \r\nLearned counsel for the plaintiffs submitted in her written address that the defendant made no contribution towards the funeral of the deceased. She stated that the defendant only paid GH¢200.00 on behalf of her daughter to prove that her father had died and she had agreed that her father be buried. She stressed that the defendant took steps to prevent the deceased funeral so she could not have contributed positively to something she was against.    \r\nFrom the totality of the evidence led, the deceased contributed very little to the funeral of the deceased and she did not attend the deceased funeral.  \r\nWith regards to the issue of whether the plaintiffs have the capacity to select a wife for the deceased, learned counsel for the plaintiffs submitted in her written address that the plaintiffs have not alleged that they selected a wife for the deceased or had the right or responsibility of doing so.  She stated that the plaintiffs being the wife \r\n21  \r\nand uncle of the deceased, it was only proper in our traditional setting that if he wanted to marry another wife he would seek the assistance and support of the plaintiffs who are his family.  \r\nIt is obvious that the plaintiffs do not have the capacity to select a wife for the deceased. \r\nLearned counsel for the defendant relied on Sections 10(1), 10(2),11(1), 14 of the Evidence Act, Barkers-Wood v. Nana Fritz [2007-2008] SCGLR 879, Bisi v. Tabiri [1987-88] 1 GLR 386, Owusu v. Tabiri &Anor [1987-88] 1 GLR, Zabrama v. Segbedzi [19991] 2 GLR 221, Faibi v State Hotels Corporation [1968] GLR 47, Bank of West Africa Ltd v. Ackun [1963] 1 GLR 176, Ackah v. Pergah Transport Ltd. [2010] SCGLR 728, Mojolagbe v. Larbi [1959] GLR 190, Essilfie v. Quarco [1992] 2 GLR 180, In Re Dickson alias Appiah, Aboagye and anor v. Quayson and anor [1989-90] 1 GLR 147, Gorleku v. Pobee and Anor [2012] 42 GMJ, Ginbuuro and anor v. Kaba [1971] 2 GLR 416 and quoted Sections 16A and 17 of the Intestate Succession Law 1985, PNDCL 111 (as amended) and Order 66 of the Civil Procedure Rules, C.I. 47 (as amended) in support of their counterclaim. \r\nAn evaluation of the evidence adduced indicates that the plaintiffs have discharged the burden of proof on them with respect to some of their reliefs as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiffs against the defendant herein for only the following reliefs sought, i, ii and iv. For the avoidance of doubt the other reliefs, iii,v,vi,vii, viii and ix have not been granted or are dismissed. This is because the evidence led shows that both the 2nd plaintiff and the defendant have been put through much pain and expense with respect to their relationship with the deceased. The administrators of the estate are deemed to know their duties or responsibility and it is not for the court to give them orders as to what to do, unless it is made clear to the court that they have failed to perform their functions as required by law then the court will intervene to protect the interest of the beneficiaries.   \r\nThe defendant counterclaimed the following reliefs: \r\nI. The said Letters of Administration granted to the Plaintiffs be declared illegal and same declared a nullity. \r\n22  \r\nII. She as the surviving wife of the deceased is entitled to a grant of Letters of Administration in respect of the estate of her late husband.  III. Declaration that the said House is the property of my (sic) late husband and our marital home.  IV. Cost. \r\nA counterclaim is a separate claim in which the defendant becomes the plaintiff or the party with the burden of proof with respect to the reliefs sought. The evidence of all the parties and the submissions made by their counsel with respect to the counterclaim has been discussed above in this judgment and I do not wish to repeat same. From the totality of the evidence adduced I have no option than to find that the defendant has not established her counterclaim and therefore same is dismissed.    \r\nI have considered the factors stated in Order 74 rule 2(3) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) as amended by C.I.87 and the facts and circumstances of this case and come to the conclusion that due to the relationship the deceased had with the 2nd plaintiff and the defendant it is in the interest of justice not to award any costs in this case.  There is no order as to costs with respect to both claims herein.   \r\n                                                         (SGD.) \r\nGEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)   \r\nCounsel:                                                                                   \r\n1. Ms. Candy Frimpong Baidoo for Plaintiffs. \r\n2.  Mr. Nii Bi Ayi Bonte for Defendant.  ', 'GEORGINA MENSAH-DATSA, J', 'Civil', '', 'BMISC 595/2014', '', '', '', '2016-04-19', '');
