RICHARD AKWEI vs. IMPERIAL HOMES LIMITED [2017]DLHC11945

Date	2017-06-20
Suit No.	SUIT NO. AC93/2015
Citation No.	[2017]DLHC11945

HER LADYSHIP JUSTICE PATIENCE-MILLS TETTEH

FIONA ASAFU ADJAYE FOR PLAINTIFF

RANSFORD OFORI FOR DEFENDANT

[2017]DLHC11945
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													<main id="main" class="content" style="min-height: 60rem" >RICHARD AKWEI<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p><a name="_heading=h.gjdgxs"></a>IMPERIAL HOMES LIMITED<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: black; padding: 0in 0in 1pt;">

SUIT NO. AC93/2015&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;DATE: 20TH&nbsp;JUNE 2017<o:p></o:p>

</div>COUNSEL&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; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

FIONA ASAFU ADJAYE
FOR PLAINTIFF <o:p></o:p>

</div>CORAM<o:p></o:p>HER LADYSHIP JUSTICE PATIENCE-MILLS TETTEH<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: black; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: black; border-right: none; padding: 1pt 0in;">

JUDGMENT<o:p></o:p>

</div>The
Parties herein undersigned an agreement on May 4th 2012, the terms
under which the defendant was to construct 12 luxury apartments within 20
months from the date of execution thereof. Paragraph 11 of the said agreement
stipulated sanctions against the defendant in the event of failure to complete
the construction within the stipulated 20 months period. The defendant
completed the work in December 2014 instead of January 2014, consequently on
the 23rd of October 2014 when work was about 95% completed, the
plaintiff herein filed this action
against the defendant Company claiming the sum of GHC533,550.73 as money lost
to the plaintiff consequent to the delay of the construction of the apartments.<o:p></o:p><h2 style="margin-top:12.15pt;text-align:justify">&nbsp;</h2><h2 style="margin-top:12.15pt;text-align:justify">CASE OF THE PLAINTIFF<o:p></o:p></h2>It
is the case of the plaintiff that by a joint venture agreement dated 4th
May 2012, he agreed to transfer all his interest in the property situate at no.
5 Mankata Avenue to the defendant who was to construct 12 (two-bedroom) luxury
apartments. The agreed terms between the parties as to the time frame
within which the construction was&nbsp; to
be completed was a critical
issue that went to the core of the agreement between the parties as it
stipulated that the construction must be completed 20 months from the execution
date of 4th May 2012.<o:p></o:p>Under
the terms, the defendant was to settle an amount of $180,000 on execution of
the agreement and upon completion of the work transfer title in four of the
apartments including one pent house to the plaintiff.<o:p></o:p>Under
clauses 10 and 11 of the agreement, time was of essence in the construction and
completion of the luxury apartments and there was a provision of monthly
pre-estimated monetary values as a consequence of delays beyond the 20 months
completion date.<o:p></o:p>It
is the case of the plaintiff that the defendant has breached the terms of the
agreement by failing to complete the construction in 20 months; as a result of
which the plaintiff exercised his contractual rights by issuing a notice and
placing a demand on the defendant for the sum of GHC533, 550.78 as monetary
loss and damages as at 31st August 2014, but the defendant failed
and or refused to settle the said
sum.<o:p></o:p>The
plaintiff has brought the defendant to law and the Evidence Act places a burden
on the plaintiff to adduce sufficient evidence, which on the totality of the
evidence, leaves a reasonable mind to
conclude that the existence of the fact of the liability of the defendant is more probable than its non-existence.<o:p></o:p>To
prove his case therefore, the plaintiff filed a witness statement on 24th
June 2016 and stated that he had a series of meetings with the defendant,
consequent upon which exhibit A was executed. He also was&nbsp; emphatic&nbsp; that&nbsp; Mr.&nbsp; Francis&nbsp; Biney&nbsp; the&nbsp; managing&nbsp; director of
defendant Company made it clear that if the defendant Company does not finish
on the date stipulated, he (the plaintiff) will be given an amount equivalent
to rents which will accrue from the apartments taking into consideration the
going rate of similar types of apartments within the airport residential
enclave. He stated in his witness </main>