DR NANA ADU AKUMIA vs. ANGEL ESTATES AND CONSTRUCTION [2019]DLHC6869

Date	2019-03-11
Suit No.	SUIT NO. OCC 74/2018
Citation No.	[2019]DLHC6869

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

E. ANAGLATE FOR MATHIAS GOLLO FOR THE PLAINTIFF

[2019]DLHC6869
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													<main id="main" class="content" style="min-height: 60rem" >DR NANA ADU AKUMIA<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ANGEL ESTATES AND
CONSTRUCTION<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH
COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. OCC 74/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 11TH MARCH, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">E. ANAGLATE FOR MATHIAS GOLLO
FOR THE PLAINTIFF<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE DR. RICHMOND
OSEI-HWERE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<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:
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</div>On
13th February, 2018, the plaintiff herein issued a writ of summons
against the defendant herein seeking the following reliefs:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
An order for specific performance of the contract
entered into with the Defendant on or about the 15th day of August
2011, for the Defendant to construct a three-bedroom house for the Plaintiff,
performance of which the Defendant failed and/or refused to carry out.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Any other reliefs that this Honourable
Court might deem just and equitable in the circumstances.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Costs including Counsel’s fees.<o:p></o:p>On
16thMarch, 2018 the defendant entered an appearance through its
lawyers. However, it failed or refused to file a statement of defence. In view
of this, interlocutory judgment in default of defence was entered against the
defendant on the 19th of June, 2018 upon an application by the
plaintiff. Costs of GHC 5,000.00 was awarded against the defendant. The matter
was adjourned for hearing relating to the order for specific performance and
for assessment of damages.<o:p></o:p>When
the plaintiff testified, he told the court that he entered into a house
purchase agreement with the defendant in August, 2011. Under the terms of the
agreement, the defendant was expected to construct a three-bedroom house for
him at the cost of Seventy-Five thousand Ghana Cedis (GHC 75,000.00). He stated
that he filed an application form which he purchased from the defendant at the
price of GHC 50 and also paid a 40 percent deposit of GHC 30,000.00 in
conformity with the terms of the agreement on 15th August, 2011. He
also stated that on 7th October, 2013 he paid the next installment
of 30 percent of the total cost in the amount of GHC 25,000.00 which was more
than the required 30 percent. According to him, he subsequently made payments
of GHC 5,000.00 on two different occasions i.e. 22nd May, 2015 and 6th
July, 2015. The final payment of GHC 10,000.00 was made on 1st
March, 2017. The plaintiff tendered all the receipts relating to the payments as
well as the receipt issued for the payment of the application forms. He also
tendered the application forms in evidence. He stated that the defendant showed
him an uncompleted house numbered E28 as his property. He stated that after the
full payment, the defendant has failed or refuse to complete the house and hand
over the same to him. He prayed the court to order the defendant to complete
the house and hand it over to him.<o:p></o:p>No
party is entitled to a decree of specific performances as of right. It is a discretionary
remedy and subject to well established rules and principles. The Supreme Court,
in the case of KWAKU BONSU v AMA AGYEMANG Civil Appeal No J4/10/2012, stated as
follows:<o:p></o:p>“…though the grant of specific
performance is never automatic and the courts have always preserved the
integrity of their discretion to grant or refuse the remedy. The discretion is
however exercised according to well established rules. Specific performance
cannot be whimsically denied”.<o:p></o:p>The
rules and principles governing specific performance are as follows:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
There must be a binding contract.<o:p></o:p>