EBENEZER YEBOAH (PLAINTIFF) vs. NICHOLAS ARHIN (DEFENDANT) [2006]DLHC7408

Date	2006-10-19
Suit No.	SUIT NO. AC 143/06
Citation No.	[2006]DLHC7408

HIS LORDSHIP E. K. AYEBI J.

[2006]DLHC7408
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													<main id="main" class="content" style="min-height: 60rem" >EBENEZER YEBOAH<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>NICHOLAS ARHIN<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (FAST TRACK), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. AC 143/06&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:
19TH OCTOBER 2006<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP E. K. AYEBI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>In
this suit, the plaintiff endorsed the writ of summons with a claim for: <o:p></o:p>(a)
Recovery of the sum of ¢273,550,000.00 being part of the purchase price of the
land paid to the defendant and cost of constructing the fence wall. <o:p></o:p>(b)
Interest from July 2005 to the date of final payment <o:p></o:p>(c)
Damages for breach of warranty of title to the land. <o:p></o:p>On
19th June 2006, the court entered final judgment in favour of the plaintiff on
reliefs (a) and (b) in default appearance by the defendant. The suit was then
adjourned to 29/06/06 for assessment of damages. But it was not until 27/07/06
that the plaintiff gave evidence. <o:p></o:p>Incidentally,
rather than prove damages as claimed in relief (c), the plaintiff proved relief
(a), that the is ¢273,550,000,00 upon which judgment had already been given.
Plaintiff tendered the receipt for the payment for the land in the sum of ¢200
million in two instalments as Exhibit A. Exhibits B and B1 are receipts for the
materials plaintiff bought for the construction of the fence wall. Those
exhibits included miscellaneous expenses on transportation, mason's fee and
filing of papers and documents at Land Department. That was the evidence of
plaintiff. <o:p></o:p>As
for damages for breach of warranty of title, plaintiff said nothing about it.
Is any damages recoverable at all? The plaintiff has sued for the return
expenses he had made and interest thereon. The general rule is that the
plaintiff (purchaser) is not entitled to recover any loss on the bargain. That
is the rule in Bain vrs. Fothergill (1873-74) LR 7 HLC 158, or (1930) 1 Chan.
224. <o:p></o:p>The
rule is stated by Lord Hatherley that "It is recognized on all hands that
the purchaser is not to be held entitled to recover any loss on the bargain he
may have made, if, in effect, it should turn out that the vendor is incapable
of completing his contract in consequence of his defective title". But
then damages in tort where the vendor made fraudulent misrepresentation is
available to the purchaser. <o:p></o:p>In
this case, the plaintiff told the court that a police investigation has
revealed that the defendant, his vendor is not the real owner of the land in
question. Investigation has also shown that defendant forged the documents he
gave to the plaintiff. As at now defendant is being prosecuted at the Circuit
Court. Defendant therefore has defrauded the plaintiff. That being the facts of
the case, the rule in Bain vrs. Fothergill (supra) is excluded. Plaintiff is
thus entitled to damages for loss of bargain. <o:p></o:p>

Plaintiff
himself having failed to give any such evidence on the quantum, I assess it at
10% of the total purchase price paid to the defendant. Cost of ¢5million to the
plaintiff.<o:p></o:p></main>