VICTOR KPOGOH & ANOTHER vs MAGNA TERRIS (GH) LTD

The Plaintiff claims against the Defendants the following reliefs: “(1). An order for specific performance for Defendant to hand over the house Heaven’s Cottage Oshiokpo, Dawhenya near Community 25, Tema to the Plaintiff.

2). An order for the Defendant to pay 5% penalty to the Plaintiff from February, 2010 to the date of handing over the house for not completing the project on schedule. ”PLAINTIFFS’ CASE The Plaintiffs are Ghanaians and ordinarily resident in Canada.

They contracted the Defendant Estate Development Company to put up a house for them as per an agreement signed on 2nd January, 2009. This was after they had been introduced to the Defendant by a friend and expressed interest in buying a 2 bedroom detached expandable (Deluxe) house from the Defendant.

The cost of the house was Forty-Nine Thousand United States Dollars (US$49, 000. 00) and Defendant undertook to put up the house upon the initial payment of Thirty-three Thousand United States Dollars (US$33, 000. 00). The balance of Sixteen Thousand United States Dollars (US$16, 000. 00)was to be paid upon completion.

Plaintiffs on 2nd January, 2009 paid Thirty-three Thousand United States Dollars (US$33, 000. 00) with a Buick Car which they had for sale for Thirty-Five Thousand United States Dollars (US$35, 000. 00) (but reduced) so same was exchanged or battered for the initial deposit of Thirty-three Thousand United States Dollars (US$33, 000. 00). Plaintiffs contend that a term of the contract is that as found in clause 7 of the offer agreement “The offeree shall make payment and if any payment falls due and is unpaid for a month, shall attract a 5% penalty. ” Also in clause 8 “The house shall be constructed and be ready for occupation one (1) year from the date of commencement…”It is the case of the Plaintiffs that since the project began on 2nd January, 2009 the work remained uncompleted and the Defendant failed to comply with specification as agreed under clause 3 of the Agreement and found in paragraph 13 of their amended statement of defence.

According to the Plaintiffs even though the house remained uncompleted they have made full payment for the house by paying the balance due after all deductions of materials bought for the project by them were considered and deducted by the Administrator of the Defendant one Mr. Botchway.

They were therefore entitled to be paid 5% penalty for the failure on the Defendant’s part to complete the project as scheduled and as stipulated in clause 5