February 11, 2010
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arose from a High Court judgment concerning Plot 40 in the gated Trasacco Valley community at Adjiringano, Accra. The appellant subleased the plot from Empire Builders Limited and engaged Trasacco Estate Development Co. Ltd., a sister company, to construct a three-bedroom house with boys’ quarters for US$156,000. After moving in, she discovered substantial structural and architectural defects, repeatedly sought repairs, and sued seeking replacement or refund and reimbursement of expenses. At trial, Trasacco submitted to judgment on refunding the purchase price with interest and reimbursing itemized expenses; costs were awarded. The High Court later granted Trasacco’s counterclaim in part, ordering the appellant to pay US$1,000 per month rent for 79 months of occupancy. On appeal, Honyenuga JA’s lead opinion and Marful-Sau JA’s concurrence held the transaction was a sale, not a lease, and the owner-occupier could not be liable for rent; equity and public policy further barred rent recovery where Trasacco’s breach caused the suit. The Court of Appeal set aside the rent order and dismissed out-of-time additional grounds.
JUDGMENT
HONYENUGA J.A.
This is an appeal from the judgment of the High Court Fast Track Division, Accra dated the 17th day of October, 2008.
Sometime in the year 2000, the plaintiff/appellant entered into an agreement with the Empire Builders Limited, a sister company of the defendant/respondent for a sublease of land. Thereafter, the plaintiff/appellant and the defendant/respondent entered into an agreement for the defendant/respondent to build a house on the said land at a total cost of one hundred and fifty-six thousand United States Dollars (US$156,000.00). Upon completion of the house, which is a three bedroom house with a boy’s quarters, the plaintiff/appellant moved into occupancy of the house. The plaintiff/appellant later detected several structural defects and poor architectural works on the building and despite all efforts to get the defendant/respondent to repair those defects, they ended in a fiasco. The plaintiff/appellant being aggrieved instituted action against the defendant/respondent and by her Amended Writ of Summons claimed as follows:-
“1. Replacement of her house situate on plot 40 with another house within the gated Trasacco Valley Community of same or similar specifications as that of plot 40 or in the alternative;
2. A refund of the purchase price of plot No. 40 at current Trasacco Valley price levels; or in the alternative’
3. A refund of the purchase price of US$156,000.00 plus interest from 11th June 2001 to date of final payment; and
4. A refund of all expenses expended by the plaintiff on the said plot as follows:-
(a) Bill of quantities for floor tiles - ¢5,800,000.00
(b) Lightening fittings - €845.00
(c) Installation of underground pop-up sprinklers for lawn - ¢12,000,000.00
(d) Burglar proofing for windows - $4,700.00
(e) Re-tiling cracked walkway - $2,000.00
(f) Landscaping garden - $3,000.00
(g) Lights (dining, external wall and garden) - $1,000.00
5. Cost including legal fees”.
The Amended Writ of Summons was accompanied by an Amended Statement of Claim. The defendant/respondent also filed a Statement of Defence and denied the claim of the plaintiff/respondent.
The plaintiff/appellant filed a reply and the following issues were filed at the application for directions stage:-
(a) Whether the defendant’s Sales Director fraudulently misrepresented to the plaintiff during negotiations to purchase plot number 40 that her house would be enclosed in the gate, which was to be constructed;
(b) Whether the