ALHASSAN TONY ADAMS AND EKOW BENTIL vs. CEMONIT GHANA LTD, BASSAM ZAKOUR AND OCCUPANTS/SQUARTTERS [2017]DLCA4526

ALHASSAN TONY ADAMS AND EKOW BENTIL vs. CEMONIT GHANA LTD, BASSAM ZAKOUR AND OC... [2017]DLCA4526

Date	2017-06-01
Suit No.	CIVIL APPEAL: H1/216/2015
Citation No.	[2017]DLCA4526

P. K. GYAESAYOR JA (PRESIDING)

I. C. LARBI (MRS.) JA

M. M. AGYEMANG (MRS.) JA

N. T. WARD BREW FOR APPELLANTS

KWASI AUSTIN FOR RESPONDENTS

[2017]DLCA4526
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													<main id="main" class="content" style="min-height: 60rem" >ALHASSAN TONY ADAMS AND
EKOW BENTIL<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>CEMONIT GHANA LTD,
BASSAM ZAKOUR AND OCCUPANTS/SQUARTTERS<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), 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">

CIVIL APPEAL: H1/216/2015&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: 1ST JUNE, 2017<o:p></o:p>

KWASI
AUSTIN FOR RESPONDENTS<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<o:p></o:p>

</div>AGYEMANG JA:<o:p></o:p>In
this appeal against the judgment of the High Court, Accra, dated 12th November
2012, the plaintiff/appellants (referred to hereafter as the plaintiffs), pray
this court for an order setting aside the judgment of the High Court and
thereafter, entry for judgment in their favour.<o:p></o:p>These
are the matters that have given rise to the present appeal.<o:p></o:p>The
first plaintiff is a Ghanaian ordinarily resident in Japan. The second
plaintiff is his lawful representative in Ghana. <o:p></o:p>Sometime
in 2006, the said representative (who is second plaintiff/appellant herein),
having received information that the second defendant/respondent (referred to
as the second defendant) had land to sell, went to see him at his office at
Osu. The second defendant was at that time working as the Deputy Managing
Director of the first defendant/respondent (referred to alternately as the
first defendant, or the respondent), an asbestos manufacturing&nbsp; company, whose Managing Director had left
Ghana for Lebanon in the turbulent times in Ghana referred to commonly as “the
revolutionary days”.<o:p></o:p>In
pursuance of the first plaintiff’s desire to acquire land to put up a hotel,
the second plaintiff acting on behalf of the first plaintiff, entered into an
agreement with the first defendant through its representative andDeputy
Managing Director, the second defendant -reputed to be in charge of the company
at the material time. The land the subject of this inquiry and subsequent
agreement, was acquired in 1977 by Kataneh Ltd, the predecessor in title to the
first defendant: Cemonit Ltd. The agreement which was reached and recorded in a
document described as a Memorandum of Understanding (referred to hereafter as
the MOU), was entered into when the second plaintiff and his lawyer met with
the second defendant as well as the accountant of the first defendant, in the
offices of the first defendant. <o:p></o:p>It
was the case of the plaintiffs that the agreement for the sale of land
described as containing an approximate area of 6.8 acres, situate at South
Labadi, Accra registered at the Lands Registry as No.4310/1977 was entered into
there.<o:p></o:p>It
was recorded in the MOU - which was said to contain the entire agreement
between the parties, that the first defendant, acting by the second defendant
had in consideration of the sum of USD350,000, agreed to sell the land
described therein to the first plaintiff. Payment therefor was to be effected
in the following manner: USD100,000 was to be paid immediately upon the signing
of the agreement. Another tranche of USD100, 000 was to be paid after the first
plaintiff had cleared the land of squatters and delivered up vacant possession
to the first plaintiff. The last tranche of USD150,000 was to be paid upon the
execution of a Deed of Assignment by the first defendant&nbsp; acting by the second defendant, to the first
plaintiff acting by the second plaintiff.<o:p></o:p>The
MOU also set out the following as the circumstances under which it could be
terminated: <o:p></o:p>“i. The Assignee defaults in payment
of balance of purchase price on the completion date;<o:p></o:p>ii. The other party commits a breach
of its/his obligations under this Memorandum of Understanding and in a case of
breach being remedied, such remedy is not effected within three (3) months of
that party being specifically required to do so;<o:p></o:p>iii. The other party ceases to be
empowered to perform its obligation under this Memorandum of Understanding.”(my
emphasis).<o:p></o:p>This
was followed by a paragraph designated “Effect of termination” in the following
terms:<o:p></o:p>“i. In the case of Assignor, the
Assignee shall either recover the deposit together with interest at the prevailing
Commercial Bank rate in USA and without prejudice to seeking redress from any
suitable forum;<o:p></o:p>In the case of Assignee, he shall
recover only his deposit and the Assignor shall be entitled to rescind the
agreement and without prejudice to resorting to any suitable from of redress”.<o:p></o:p>Following
the signing of the MO</main>