PATRICK BARKERS-WOODE v. NANA FITZ

DR. DATE-BAH, J.S.C: The Plaintiff’s story, as set out in his statement of claim, was that he owned a piece of land near Achimota, Accra, and, around 1991, agreed with the Defendant that he should construct a building for the Plaintiff on that piece of land. The agreed price for this service was 17 million cedis. The Plaintiff paid, in 1991, through his father, 14 million cedis out of this agreed price to the Defendant. The Plaintiff claimed that by 1994 the building had been roofed and he put a caretaker into it, pending the final completion of the construction. When at this point the Defendant demanded payment of 3 million cedis, being the balance of the agreed contract price, the Plaintiff rejected the demand, arguing that by the terms of the agreement the balance was to be paid when the building had been completed and the keys handed over to him. The Defendant then threatened to sell the building, started showing prospective purchasers around the property and harassed the Plaintiff’s caretaker.

The Defendant’s version of events was different. He averred that the land near Achimota belonged to him and that he was developing it into a dwelling house when the Plaintiff requested to buy it through his father. He averred further that the building was completed in 1994, but the Plaintiff failed to pay the balance of the contract price, namely the 3 million cedis referred to above, in spite of repeated demands. Therefore, after waiting for a long period without receiving payment, he agreed with the Plaintiff’s father, who acted as agent for the Plaintiff in the transaction, to rescind the contract and refund the Plaintiff’s money to him. In accordance with this agreement, he refunded 4 million cedis by cheque to the father on 12th September 1994. The Defendant had subsequently offered to refund the balance of 10 million cedis to the Plaintiff’s father. Although, he was willing to accept the refund, he had been prevailed upon by the Plaintiff’s mother, who was the Plaintiff’s lawful attorney in this suit, to refuse the refund.

This was a classic example of conflicting stories by the parties to a suit and, in our adversarial judicial process, it was for the trial judge to make findings of fact from the pleadings and the evidence adduced at the trial. This he did, but some of his determinations were reversed on appeal by the Court of Appeal and the central issue in this case is whether the Court of Appeal was right to reach a conclusion on the facts that was d