CARACONSULT vs. JAMES BUTLER-AGGREY [2010]DLCA6675

Date	2010-11-04
Suit No.	SUIT NO. H1/131/10 A.D. 04/11/2010
Citation No.	[2010]DLCA6675

MARIAMA OWUSU J.A. (PRESIDING)

YAW APPAU J.A.

MARFUL SAU J.A.

MR. ROCKSON NELSON DAFAMEKPOR OF HAYIBOR DJABENG & CO FOR THE APPELLANT

MR. AMARKAI AMARTEIFIO FOR DEFT/RESPONDENT

[2010]DLCA6675
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													<main id="main" class="content" style="min-height: 60rem" >CARACONSULT<o:p></o:p>vs.<o:p></o:p>JAMES BUTLER-AGGREY<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. H1/131/10 A.D.
04/11/2010&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;4TH NOVEMBER, 2010<o:p></o:p>

MR.
AMARKAI AMARTEIFIO FOR DEFT/RESPONDENT<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">JUDGMENT IN APPEAL<o:p></o:p>

</div>YAW APPAU, J.A. <o:p></o:p>The
plaintiff in the court below who is the appellant in this appeal and
hereinafter would be referred to as such, sued the defendant now respondent
James Butler-Aggrey for the recovery of the sum of US$10, 000 or its cedi
equivalent, interest on the said sum from October 2006 to date of payment and
damages for breach of contract.&nbsp; The
court below dismissed all three reliefs.&nbsp;
The decision did not please the appellant so it has come before us to
vindicate its case.&nbsp; To succeed, the
appellant has to prove or establish that the trial judge was wrong in
dismissing all the claims. <o:p></o:p>Appellant
filed its notice of appeal on 25th February 2009.&nbsp; In all, there were seven (7) grounds of
appeal numbered a – g. No further or additional ground or grounds were filed as
indicated in the notice of appeal.&nbsp; <o:p></o:p>The
facts in this case are so simple, straight-forward and free from dispute.&nbsp; What happened was that the respondent
contracted the appellant company, through its Managing Director, to find an
investor to lease respondents land for the development of blocks of flats on a
leasehold basis for a period of 25 years. Respondent promised to pay the
appellant US$10, 000 if it succeeded in securing such an investor who would
lease the property under the terms of the respondent. Sometime after assigning
this job to the appellant, the respondent travelled outside the country to the
United Kingdom. <o:p></o:p>While
away, the appellant informed him through series of correspondence that it had
secured an investor in the person of one Capt. Baron Okai who was prepared to
lease the property under the terms of the respondent so respondent should
return home to seal the deal.&nbsp; Respondent
however delayed his stay in the U.K. on grounds of ill health.&nbsp; While still away in the U.K. the appellant
caused its lawyers to write to the respondent requesting for the payment of the
sum of US$10, 000 as agreed in their contract. According to the appellant since
it had performed its part of the contract by finding an investor who was
prepared to lease the property and that it was the respondent who had refused
to return to Ghana from the U.K. in time to finalise the contract, the
respondent was bound to pay the amount to it. <o:p></o:p>On
his return, the respondent refused to pay saying there was no valid enforceable
contract between him and the appellant since the investor the appellant was
referring to could not lease the property as offered. The appellant then sued. <o:p></o:p>The
main issues between the parties in the court below were three; namely, i.
Whether or not there was a contract between the parties; ii. Whether or not the
respondent breached the contract, and if yes, iii. Whether or not the appellant
was entitled to the reliefs claimed. <o:p></o:p>The
appellant took up two positions.&nbsp; One was
that the agreement only required it to find an investor who was prepared to
lease respondent’s property and since it did find one in the person of Capt.
Okai, it had performed its part of the contract. The second position appellant
took was that even if the terms of the contract entitled it to a commission
only after the investor had entered into a lease agreement with the respondent,
it was the respondent who did not make himself available or failed to meet the
said investor in the person of Capt Okai to finalise the lease of the property
so he was entitled to his commission or consultancy/professional fee (no matter
how one chooses to call it). <o:p></o:p>The
respondent denied frustrating the contract and contended that when he finally
returned from the U.K.in December that same year, he met Capt Okai but Capt
Okai could not take the property under the terms he gave.&nbsp; He therefore denied appellant’s claim that he
the respondent refused to meet Capt Okai and challenged the appellant during
the trial whether appellant would call the said Capt Okai to support its case
to which the appellant answered in the affirmative.&nbsp; It is better I quote aspects of what happened
in the court below during cross-examination of the appellant’s Managing
Director Mr. Beasley (who testified for the appellant) by counsel for the
respondent.&nbsp; This was on the 13th day of
June 2008 and appears at pp. 36 and 37 of the Record. <o:p></o:p>“Q. You tendered in evidence Exhibits
A, B and C. These were letters you wrote and let me read the last paragraph of
Exhibit B to you. (Counsel reads out). Did you have and complete a contract
between Mr. James Butler Aggrey and an investor? <o:p></o:p>A. No my Lord, I did not have a
contract prepared on behalf of the investor and the defendant because it was
not requested by the defendant. <o:p></o:p>Q. So there was no completed contract
between the defendant and an investor? <o:p></o:p>A. That is correct because he refused
to meet the investor. <o:p></o:p>Q. Which investor did he refuse to
meet? <o:p></o:p>A. Captain Okai. <o:p></o:p>