MAXWELL OPPONG vs. COMMERCIAL INVESTMENTS LIMITED. [2018]DLHC3345

Date	2018-02-23
Suit No.	CIVIL APPEAL NO.OCC/38/2015
Citation No.	[2018]DLHC3345

SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT

NO LEGAL REPRESENTION FOR PLAINTIFF.

R.O. SOLOMON ESQ. FOR DEFENDANT.

[2018]DLHC3345
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													<main id="main" class="content" style="min-height: 60rem" >MAXWELL OPPONG<o:p></o:p>vs.<o:p></o:p>COMMERCIAL INVESTMENTS
LIMITED.<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO.OCC/38/2015&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 23RD
FEBRUARY, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NO LEGAL REPRESENTION FOR
PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>By
a writ of civil summons issued on the 11th May 2015, the plaintiff
claims against the defendant: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;&nbsp;&nbsp; a.&nbsp;&nbsp;&nbsp;&nbsp; Immediate and unconditional transfer of
ownership and title of the house to the Plaintiff as per the master Agreement
executed.<o:p></o:p>&nbsp;&nbsp;&nbsp; b.&nbsp;&nbsp;&nbsp;&nbsp; Cost
for bringing this action including solicitor fees.<o:p></o:p>The
writ was accompanied by a statement of claim. After entry of appearance, the
defendant filed a statement of defence in which it also counterclaimed against
the plaintiff for<o:p></o:p>Damages for loss suffered by the defendant arising from the plaintiff
unilaterally taking possession of and completing the building the subject
matter of this suit.<o:p></o:p>After
the failure of pre-trial settlement, the parties filed their respective witness
statements, whereupon, the matter was set down for trial at which each party gave
evidence per a witness and closed their case.<o:p></o:p>From
the pleadings, the court finds that the defendant does not dispute the fact
that in January 2006, the parties entered into an agreement in respect of a
home ownership scheme which the defendant company was operating at its estate
development site at a place called Fair Havens, East Legon Hills for the sale
and purchase of a three (3) bedroom house at a cost of $58,179.00. Indeed, by
this agreement, which was tendered and received in evidence as exhibit MOB, the
defendant agreed to build and sell to the plaintiff a three bedroom house
situate at Fair Haven, East Legon Hills at an ultimate price of $58,179.00.<o:p></o:p>The
court finds that it was a term of the agreement that the plaintiff pays 2% of
the purchase price as a commitment fee and, thereafter, an amount of $237.66
was to be paid every month for a period of twenty four (24) months after which
the plaintiff shall be entitled to enter into possession of the house. From
exhibit MOB, the parties also agreed that after the plaintiff has been put into
possession, he would continue to pay the monthly installmental payment until
the cost of the house was fully defrayed.<o:p></o:p>The
court finds from exhibit MOC that on the 9th January 2006, the
plaintiff paid an amount of $1,200.00 to the defendant which was far in excess
of the commitment fee required to be paid and so the excess amount of $36.42
was reckoned against the installmental payment due in respect of February 2006.
Exhibit MOC is a receipt issued by the defendant in acknowledgment of the
payment of the $1,200.00 by the plaintiff.<o:p></o:p>The
court finds from clause H of the agreement, exhibit MOB herein, that the
parties agreed that between 36 and 72 months from the date of payment of the
commitment fee and upon consistent payment of the monthly installmental
payments, the plaintiff’s house will be made available to him for his
occupation so however that the plaintiff would continue to pay the monthly
installments until the price was fully paid.<o:p></o:p>There
is evidence to the effect that as a result of the prompt payment of the sum of
$1,200.00 by the plaintiff to the defendant, the defendant company wrote to
inform the plaintiff that his house will be completed by June 2007 for the
plaintiff’s occupation and that the part of the agreement, exhibit MOB,
specifically, the part of clauses G and H which states that the plaintiff shall
be entitled to enter into possession after 24 months and that his house will be
ready for occupation between 36 and 72 months, were no longer applicable to the
plaintiff. The defendant has asserted that even if it made that offer to waive
the terms of clauses G and H of the agreement, the same is not binding on the
plaintiff because the plaintiff gave no consideration therefor. <o:p></o:p>The
court is however of the view that the p</main>