MABANI TWO COMPANY LTD v. FRED OHENE FRIMPONG
2021
COURT OF APPEAL
GHANA
CORAM
- ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING)
- ALEX B. POKU-ACHEAMPONG, J A
- SAMUEL K. A. ASIEDU, J A
Areas of Law
- Civil Procedure
- Evidence Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (per Angelina M. Domakyaareh, JA, with Poku-Acheampong, JA, and Asiedu, JA, concurring) allowed an appeal from a judgment of the Commercial Division of the High Court in Kumasi. The respondent company had paid the appellant, a private legal practitioner, funds to facilitate the acquisition of PLOT NO. 7, Rear Cape Coast Road, Takoradi, and later sued to recover monies when the land was not procured; the High Court awarded GH¢76,000 plus interest and costs. On appeal, the Court dismissed objections to several grounds under Rule 8(4) of C.I. 19, held that the trial judge erred by delivering judgment without permitting cross-examination of PW1 and opening of the appellant’s defence despite prior orders, found the judgment based on uncross-examined evidence and thus void for breach of audi alteram partem, set it aside, and remitted the case for retrial before a different judge.
J U D G M E N T
DOMAKYAAREH (MRS.), JA:
[1] This appeal is against the judgment of the High Court, Commercial Division, Prempeh Assembly Hall, Kumasi dated 17th November, 2016. In the said judgment, the trial court entered judgment in favour of the Plaintiff/Respondent herein for the recovery of the sum of GH¢76,000.00 from the Defendant/Appellant and interest thereon at the Commercial Bank rate from June 2011 to the date of final payment and cost of GH¢4,000.00. In this judgment, for ease of reference, the Plaintiff/Respondent shall be called the Respondent, while the Defendant/Appellant shall be called the Appellant. The facts that culminated in this judgment are as follows:
[2] The Respondent is a company incorporated under the laws of Ghana While the Appellant is a Private Legal Practitioner based in Kumasi. Per its Statement of Claim filed on 30/6/15 the Respondent averred that the Appellant made representations to it of being able to procure a plot known as PLOT NO. 7 REAR CAPE COAST ROAD, TAKORADI for the benefit of the Respondent. Consequent upon the said representations, the Appellant demanded and received an amount of Fifty Thousand US Dollars (US$50,000.00) and signed a receipt for same. The Respondent further averred that the Appellant also demanded and received an amount of Forty Thousand Ghana Cedis (GH¢40,000.00) as facilitator’s fee or commission which the Respondent did not seek to recover through the suit. It is the case of the Respondent that in spite of the payment of these sums of money to the Appellant, as at the date of the filing of the suit, he failed to procure the piece of land for the benefit of the Respondent. The Respondent also averred that from various correspondence between the Respondent and the Appellant, it became obvious that the Appellant was resorting to extraneous reasons and unacceptable excuses for his inability to perform the undertaking that he gave to the Respondent. The Respondent said it conducted a search and realized that the Appellant was simply not in a position to deliver on his promise, as the land was owned by people other than those whom the Appellant claimed were the owners. The Respondent therefore wrote to the Appellant that it was no longer interested in the transaction and demanded a refund of the amount of Fifty Thousand US Dollars (US$50,000.00). The Respondent followed this up with a Demand letter by its in-house Solicitor but the Appellant persisted in the default much to the inconvenie