BEN YAW OBENG vs. STATE HOUSING CO. LTD. [2008]DLCA6657

Date	2008-04-17
Suit No.	SUIT NO. H1/148/06
Citation No.	[2008]DLCA6657

ARYEETEY J. A. PRESIDING

MARFUL-SAU J. A

MARIAMA OWUSU J. A.

MR. MOHAMMED SHANEON FOR RESPONDENT.

MR. JOHN AIDOO FOR APPELLANT

[2008]DLCA6657
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													<main id="main" class="content" style="min-height: 60rem" >BEN YAW OBENG<o:p></o:p>vs.<o:p></o:p>STATE HOUSING CO. LTD.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO. H1/148/06&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; DATE: 17TH APRIL 2008<o:p></o:p>

MR.
JOHN AIDOO FOR APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENTS<o:p></o:p>

</div>MARFUL-SAU, J. A. <o:p></o:p>This
is an appeal against the judgment of the High Court Accra dated the 29th
October 2004.&nbsp; The Plaintiff/Respondent
in his writ commencing the action claimed the following reliefs:— <o:p></o:p>a)
An order for specific performance directed at the Defendant to deliver a House
Type SH3 situated at Dansoman, Accra to the Plaintiff by reason of a contract
dated 11th January 1979. <o:p></o:p>b)
In the alternative the recovery of the purchase price for a similar house type
at Dansoman, Accra at its current value. <o:p></o:p>c)
Damages for breach of contract. <o:p></o:p>d)
Cost. <o:p></o:p>The
brief facts of the case are as follows.&nbsp;
The Plaintiff herein called the Respondent in his desire to own a house
applied to the Defendant to acquire house type SH3 at Dansoman, Accra in 1979.&nbsp; The Respondent was made to complete Exhibit 1
which is a form headed “Application for Hire Purchase House”.&nbsp; On this form the Respondent indicated that he
was prepared to pay a deposit of ¢19,000.00.<o:p></o:p>The
overleaf of this form Exhibit 1, are conditions and of particular relevance is condition
(e) which reads as follows <o:p></o:p>“If at any time during the course of
the building operations there is an increase in prices of building materials
and or cost of labour or there are any other changes in circumstances resulting
in an increase in the cost of building, there will be a corresponding increase
in the purchase price of the house and the actual purchase price shall be the
price prevailing when the house is completed”.&nbsp;
<o:p></o:p>Tendered
in evidence by the Appellant is Exhibit A which is dated January 1979.&nbsp; The day Exhibit A was written is not clear,
however from the contents it is clear that it was written after 11th January
1979. <o:p></o:p>Through
Exhibit A, the Appellant was informing the Respondent that due to the shortage
of building materials the Respondent will have to wait for at least three years
before a house will be completed for him.&nbsp;
The letter also stated that during the three years any increase in the
selling price resulting from increase in the price of building materials or
wages would be passed on to him. <o:p></o:p>The
Respondent claims that upon receipt of this letter he inquired from the offices
of the Appellant what the likely increase in the selling price would be.&nbsp; According to Respondent he was told the
increase would not be above ¢3000. Consequently he paid an additional ¢5000 on
4th November 1980.&nbsp; A receipt was issued
in which the payment was described as “Further deposit against house type SH3
at Dansoman Estate”. <o:p></o:p>The
Appellant however contended that the two sums paid by the Respondent were deposits
towards the purchase price and did not amount to the final selling price of the
SH3 house.&nbsp; The Appellant also claimed
that it invited the Respondent for discussions through a letter of 31st January
1991 but he failed to attend the meeting.&nbsp;
For these reasons the Appellant claimed the Respondent was not entitled
to his claims. <o:p></o:p>At
the end of the trial, judgment was entered against the Appellant to pay an
amount of ¢175,000,000 representing the value of the SH3 house.&nbsp; The trial court also awarded general damage
of ¢20,000,000.00 and cost of ¢5,000,000.00.&nbsp;
It is this judgment that the Appellant seeks to reverse. <o:p></o:p>The
following grounds of appeal were formulated in the Notice of Appeal and same
argued by Counsel for the Appellant. <o:p></o:p>a)
The judgment is against the weight of evidence <o:p></o:p>b)
The learned Judge erred in law when she fixed the current value of house when
that value was never specified during evidence or in Counsel’s written address.
<o:p></o:p>c)
The Judge erred when she awarded damages against the Defendant. <o:p></o:p>d)
The costs awarded were excessive. <o:p></o:p>I
shall address these grounds one after the other.&nbsp; The first is the general ground that the
judgment is against the weight of evidence.&nbsp;
In this appeal, the Respondent’s cause of action was founded on a breach
of contract and claimed for specific performance or the cur</main>