JUDGMENT
1. By amended writ filed
on 20/5/2008 and an accompanying
amended statement of claim
pursuant to the joinder of the 2nd
Defendant herein the Plaintiff
claims as follows:
“(i). Declaration that the
purported transfer of the
property by the 1st
Defendant to the 2nd
is a nullity.
(ii). An order setting aside
the purported transfer of the
property by the 1st
Defendant to the 2nd
Defendant.
(iii). An order compelling
the 1st Defendant to
complete the sales transaction
with the Plaintiff.
(iv). Costs”.
2. PLAINTIFF’S CASE
The Plaintiff’s case is that
being a transport service
company it had required a large
tract of land for use as a
terminal. Plaintiff assets that
through its Managing Director,
it located the subject matter of
this suit at Beguahim near Dome,
Accra. The property belonged to
the 1st Defendant who
when approached by Plaintiff
intimated that he had mortgaged
same to the Ghana Commercial
Bank but could have the property
released if he 1st
Defendant paid off the
outstanding amount on the
mortgage. Upon the receipt of a
site plan from the 1st
Defendant, Plaintiff’s searches
revealed that the land belonged
to the 1st Defendant
subject to the encumbrance
created in favour of the Ghana
Commercial Bank. By agreement
dated 23/3/2007 the Plaintiff
executed an agreement with the 1st
Defendant for the purchase of
the subject matter. A term of
the agreement required Plaintiff
to pay the sum of
¢200,000,000.00 to the 1st
Defendant who was to use same to
facilitate the release of the
original documents by the Ghana
Commercial Bank. Plaintiff paid
the said sum and its Managing
Director followed up to ensure
that 1st Defendant
was discharged of the mortgaged
agreement. The 1st
Defendant subsequently refused
to give effect to the terms of
the purchase agreement even
though Plaintiff alleges it had
at all material times been ready
and willing to pay the 1st
Defendant in accordance with the
agreement aforesaid. Before a
formal conveyance could be
executed to transfer the
interest in the subject matter
from the 1st
Defendant to the Plaintiff, the
1st Defendant
contracted and transferred the
property to the 2nd
Defendant in pursuance of a
contract of sale executed on
29/3/2007 between the 1st
and 2nd Defendants
hence Plaintiff’s action.
3. 1ST
DEFENDANT’S CASE
As per his amended statement of
defence filed on 22/7/2008. The
1st Defendant denies
the allegation by Plaintiff that
it was agreed that Plaintiff
paid the outstanding balance on
the mortgage with the Ghana
Commercial Bank to facilitate a
transfer of the subject matter
to Plaintiff. The 1st
Defendant admitted releasing a
site plan to the Plaintiff to
enable the Plaintiff verify
title and that when he executed
a memorandum of outstanding with
the Plaintiff it was not
understood to be binding on the
parties. 1st
Defendant asserts that upon the
execution of the memorandum of
understanding his receipt of the
sum of ¢200,000,000.00 from the
Plaintiff was part payment of
the purchase price subject to
the execution of a final
agreement between the parties. 1st
Defendant further asserts that
the Plaintiff had requested for
the release of the documents on
the subject matter to enable the
Plaintiff arrange for finance
but that demand of the Plaintiff
was contrary to the
understanding between him and
the Plaintiff. The 1st
Defendant evasively denied
Plaintiff’s allegation that its
Managing Director followed up on
the release of the documents on
the subject matter. He alleges
that contrary to the agreed
purchase price of ¢1,475,000.00
the Plaintiff had forced him to
execute a conveyance quoting a
purchase price of ¢500,000.00. 1st
Defendant asserts consequent
upon Plaintiff’s demand contrary
to their understanding, he
resiled from the contract and
subsequently transferred the
interest to the 2nd
Defendant.
4. 2ND
DEFENDANT’S CASE
The 2nd
Defendant denies Plaintiff’s
claims.
He asserts that in or about
March 2007 the 1st
Defendant agreed to sell the
subject matter to it at a price
of ¢2.2billion. It further
asserts that its investigations
revealed that the property was a
subject matter of a mortgage to
Ghana Commercial Bank for a loan
owed by a company called Abiri
Djan Sandcrete Ltd. The 2nd
Defendant’s case is that it was
agreed between it and the 1st
Defendant that it made part
payment of the purchase price to
enable the 1st
Defendant redeem the said
mortgage in pursuance of which
it paid the sum of ¢1,000,000.00
which 1st Defendant
used to obtain a certificate of
discharge thereof. By deed dated
29/4/2007 1st
Defendant assigned his interest
in the property and handed over
possession and original title
deeds to the 2nd
Defendant. The 2nd
Defendant says it has since
moved into occupation without
let or hindrance and had
remodelled the property by
investing a substantial sum of
money where it operates its
business when it had no notice
of any pre – existing equitable
interest. The 2nd
Defendant claims it is by the
foregoing matters a bonafide
purchaser for value without
notice.
5. 2ND
DEFENDANT’S COUNTERCLAIM
On the strength of the averments
contained in the 2nd
Defendant’s defence it set up a
counterclaim as follows:
(a). A declaration that the
2nd Defendant is a
bonafide purchaser for value
without notice of any equitable
interest in the property subject
matter of this suit described
below.
(b). Declaration of title to
all that piece of land and
structures thereon situate and
being at Hejuahum near Dome,
Accra in the Greater Accra
Region containing an approximate
area of 1.446 acres which
property is particularly
described in the deed dated
10/8/1988 made between Madam
Felicia Dede Addy and the 1st
Defendant herein and registered
in the Land Registry as No.
1904/1988.
6. The Plaintiff did not
file any reply to the pleadings
of the 1st and 2nd
Defendants and it appears from
the record that no defence was
formally filed in reaction to
the counterclaim endorsed by the
2nd Defendant. In my
view the omission cannot be
fatal to the Plaintiff’s case.
As Brobbey JSC held in In Re
Ashalley Botwe lands [2003 –
2004] SCGLR 420 holding 4 as
follows:
“The failure of a party to file
a formal reply to a statement of
defence, did not necessarily
amount to an admission of the
facts pleaded in the statement
of defence; and consequently, it
was also not necessarily fatal
to a Plaintiff’s case. A reply
was not even necessary if its
sole aim was to deny the facts
alleged in the defence, for in
its absence, there was an
implied joinder of issues on the
defence. In other words, in its
absence, all the material
allegations of facts in the
defence were deemed to be
denied. However where the
defence included a counterclaim,
a reply would become necessary
for the purpose of embodying the
defence to the counterclaim in
the reply in………………………..”
7. In the instant suit,
though the Plaintiff has not
formally filed a reply to the 2nd
Defendant’s pleading and
therefore no defence to
counterclaim has been filed, the
endorsement of counterclaim
contain only reliefs 2nd
Defendant is seeking against the
Plaintiff, reliefs which are
directly opposed to Plaintiff’s
reliefs, the grant of which
either way, will be dependent on
the evidence adduced at the
trial and the law.
8. ISSUES FOR TRIAL
At the close of pretrial
conference the following issues
were set down by the pre trial
judge as the issues agreed by
the parties for determination at
the trial.
They are:
(1). Whether or not there
was a contract for sale of land
situate at Beguahim, Dome
between Plaintiff and 1st
Defendant.
(2). Whether or not there
was part performance of the
contract between Plaintiff and
the 1st Defendant.
(3). Whether or not 1st
Defendant’s contract with 2nd
Defendant for the sale of the
said land was prior in time to
Plaintiff’s interest.
(4). Whether or
not the Plaintiff is entitled to
its reliefs.
9. DETERMINATION OF
ISSUES BY THE COURT
In my view the determination of
the above issues will
effectively and completely
determine the dispute between
the parties. In deciding the
dispute one way or the other
each party to the suit must
adduce evidence on the facts and
issues to be determined by the
court in accordance with the
prescribed statutory standards.
Section 14 of the Evidence Act
1975 (NRCD 323) which regulates
the reception and evaluation of
evidence provides.
“Except as otherwise provided by
law, unless and until it is
shifted, a party has the burden
of persuasion as to each fact
the existence or non existence
of which is essential to the
claim or defence he is
asserting”
10. The 2nd
Defendant having endorsed in its
pleadings with a counterclaim
also carries the burden of
proving the facts alleged in its
defence and counterclaim to the
same degree as the burden the
Plaintiff carries in proving its
claim against both Defendants.
11. The burden of producing
evidence as well as the burden
of persuasion is therefore on
both Plaintiff and 2nd
Defendant and the statutory
standard is one on the
“preponderance of the
probabilities” by virtue of
section 12(1) of the Evidence
Act which requires evidence to
“that degree of certainty and
belief in the mind of the
tribunal of fact or the court by
which it is convinced that the
existence of a fact is more
probable than its non existence”.
12. ISSUES DICTATED BY
LAW
An agreement (contract) for the
disposition of an interest in
land is made in the same way as
any other contract. For this
reason, as soon as there is an
agreement for valuable
consideration between the
parties on definite terms, there
is a contract; and this is so
whether the agreement (contract)
was made orally or in writing.
(See Sir Robert Megarry and H.
W. R. Wade (5th ed.).
The Law of Real Property Chapter
12 page 567.
13. Under our statutory
regime, although a valid
contract relating to land may be
made orally, it will be
generally unenforceable through
litigation unless exempted by
the statutory requirements as to
written evidence of the contract
relating to land or in equity
under the principle of part
performance.
14. The issue of law which
flows from the pleadings of the
parties in this suit as set out
by the parties themselves is
(a). Whether there is a
contract for the sale of land
situate at Beguahim, Dome
between the Plaintiff and the 1st
Defendant.
If the answer to the above issue
is in the affirmative, is the
contract enforceable?
In my view, Relief (iii)
endorsed in the Plaintiff’s
amended statement of claim is
without any doubt in the nature
of an order for specific
performance differently
formulated.
15. The statutory
requirements of which should be
satisfied before the relief will
avail a party were stated in the
case of FOFIE VRS. ZANYO [1992]
GLR 475 where it was held that
one of the conditions for the
grant of specific performance in
land cases as required under
section 4 of the Statute of
Frauds (1677) 29chas 2C3 as
saved by Section 19 of the
Contracts Act, 1960 (Act 25) and
replaced by Section 2 (a) of the
Conveyancing Act 1975 (NRCD 175)
was that there had to be a valid
contract in writing but that,
the court could in certain cases
permit a contract to be proved
by oral evidence, even though a
kind required to be proved in
writing when the party seeking
to enforce the contract had “done
acts in performance of his
obligations under it”
16. The Supreme Court
further held that the court
would exercise its discretion to
order specific performance of
the contract where the following
conditions existed;
Where:
(a). the act of part
performance was referable to
only the contract alleged.
(b). they were such as would
render it a fraud in the
defendant taking advantage of
the contract not being in
writing.
(c). by its very nature, the
contract was enforceable by the
court and
(d). there had to be proper
parol evidence of the contract
let in by the act of part
performance.
17. In its review judgment
in the case of KOGLEX LTD. VRS.
MRS. KATE FIELD [2000] SCGLR 175
Acquah JSC in the majority
stated in Holding (4) as
follows:
“The relief of specific
performance would lie whenever,
as in the instant case,
agreement between the parties
had got to a stage that it would
amount to fraud on the part of
the other party to refuse to
perform his side of the bargain.
And, contrary to the decision of
the majority of the Supreme
Court, there had been a trend
towards accepting that, payment
of money could be a sufficient
act of part performance to
support an order of specific
performances…………………………………”
“Indeed to establish facts
amounting to part performance,
what is required of a Plaintiff
is to show that he had acted to
his detriment and that the acts
in question are such as to
indicate, on the balance of the
probabilities, that they were
performed in reliance of a
contract with the defendant”
18. THE EVIDENCE, ISSUES
AND LAW
Plaintiff gave evidence though
its Managing Director Samuel Adu
Gyamfi who testified that the
Plaintiff being a mass transport
service provider of over one
hundred buses, Plaintiff
required a large plot for
parking the buses, and for use
as office apartment, workshop
and for other facilities.
Plaintiff’s witness testified
that the subject matter of this
suit was located whereupon he
had discussions with the 1st
Defendant. Consistent with the
statement of claim, Plaintiff’s
witness testified that 1st
Defendant intimated that the
property was the subject matter
of a mortgage with the Ghana
Commercial Bank and demanded
some money of the Plaintiff for
redemption of the mortgage.
19. Plaintiff’s witness
tendered in evidence Exhibit ‘A’
a deed of conveyance dated
10/8/58 between Madam Felicia
Dede Abbey and 1st
Defendant, photocopies of which
according to Plaintiff’s
witness, 1st
Defendant made available to him
for purposes of conducting
searches to verify 1st
Defendant’s title. A search
report with site plan attached
relating to the subject matter
was also tendered by Plaintiff
as Exhibit ‘B’.
20. Subsequently,
Plaintiff’s witness testified
that Plaintiff entered into an
agreement with 1st
Defendant and based upon an
agreed purchase price of
¢1,475billion old Ghana Cedis,
Plaintiff paid to 1st
Defendant, Plaintiff paid the
sum of ¢200,000,000.00 to
facilitate the redemption of the
subject matter mortgaged with
Ghana Commercial Bank Ltd. The
agreement between Plaintiff and
1st Defendant was
admitted in evidence as Exhibit
‘C’. The evidence of payment of
the sum of ¢200 million and the
receipt issued by the 1st
Defendant were admitted in
evidence as Exhibits ‘D’ and
‘E’.
21. The 1st
Defendant subsequently delivered
to the Plaintiff a photocopy of
the letter from the Ghana
Commercial Bank addressed to the
1st Defendant
indicating the balance on the 1st
Defendant’s account.
22. Plaintiff’s witness
testified that, 1st
Defendant took him to the
bankers who were informed that
Plaintiff would do the follow up
with the branch and the bank’s
legal department for the release
of the 1st
Defendant’s documents on the
subject matter.
23. According to Plaintiff’s
witness, when eventually he
informed the 1st
Defendant that the documents on
the subject matter had been
released to the branch, 1st
Defendant invited Plaintiff’s
Managing Director to a meeting
where in the presence of 1st
Defendant’s wife, nephew and
daughter he announced to the
Plaintiff he was not proceeding
with the sale transaction and
refused therefore to execute a
formal conveyance to transfer
his interest in the subject
matter in favour of the
Plaintiff.
24. Plaintiff’s witness
tendered Exhibit ‘H’ a letter
from 1st Defendant’s
lawyer in which Plaintiff was
informed that 1st
Defendant had no mandate to sell
the property as the property
belonged to a company called
Abiri Djan Mobile Sandcrete Ltd.
a position. I must observe that
the contents of Exhibit ‘H’ are
not consistent with the
pleadings of the 1st
Defendant in which he alleged
that, the reason for resiling
from the contract with the
Plaintiff was that “although
the 1st Defendant was
ready and willing at all times
to deliver the document to the
Plaintiff as already agreed
between them, it was a result of
the Plaintiff’s action in
forcing him to execute a
conveyance transferring his
interest in the land to the
Plaintiff immediately after
retrieving the document from his
bankers contrary to the
agreement which caused him to
resile from the agreement”.
25. It is significant to
state at this stage that Exhibit
‘H’ dated 15/5/2007 was written
by the same lawyer for the 1st
Defendant in this suit who
infact settled 1st
Defendant’s pleadings. It
appears therefore, that the
refusal of the 1st
Defendant to execute a formal
conveyance to transfer the
subject matter in favour of the
Plaintiff was deliberate and
intended to deprive the
Plaintiff of the subject matter
of the contract as per Exhibit
‘C’.
26. The evidence of the
Plaintiff’s witness was not in
anyway contradicted by the cross
examination conducted by both
counsel for the 1st
and 2nd Defendants.
From the evidence adduced, the
element of offer and acceptance
necessary to establish a valid
and binding contract has been
effectively established by the
Plaintiff with the 1st
Defendant. The classic
formulation of the principle for
a discerning offer was stated by
Lord Blackburn in SMITH VRS.
HUGHES [1861 – 73] AER 632 as
follows:
“If whatever a man’s real
intention may be, he so conducts
himself that a reasonable man
would believe that he was
assenting to the terms proposed
by the other party, and that
other party upon that belief
enter into the contract with
him, the man thus conducting
himself would be equally bound
as if he had intended to agree
to the other party’s terms”.
27. From the evidence, that
Plaintiff made an offer for the
purchase of 1st
Defendant’s property subject
mater herein which offer was
duly accepted by the 1st
Defendant is not indispute.
That, in furtherance of the
acceptance which has given rise
to a contract, Plaintiff
advanced to 1st
Defendant the sum of
¢200,000,000.00 to facilitate
the redemption of the property
from a mortgage with the Ghana
Commercial Bank Ltd. is also not
in dispute as an overt act of
part performance by the
Plaintiff.
28. In deciding not to
continue to complete the sale of
the property to the Plaintiff,
the 1st Defendant has
offered two inconsistent
reasons. First, the letter
written by his lawyer. Exhibit
‘H’ dated 15/5/2007 informing
the Plaintiff that the subject
matter did not belong to the 1st
Defendant but belongs to a
company called Abiri Djan Mobile
Sandcrete Ltd. which contains an
admission by the 1st
Defendant that the sum of
¢200,000,000.00 paid by the
Plaintiff and received by the 1st
Defendant represented part
payment of the purchase
price of the subject matter. The
second reason inconsistent with
the earlier is contained in
paragraphs 11 – 16 of the 1st
Defendant’s amended statement of
defence filed on 22/7/2008 more
than one year after Exhibit ‘H’
was written. In my view the two
inconsistent positions clearly
belie 1st Defendant
honest intentions in contract.
29. While under cross
examination by counsel for the 2nd
Defendant, the following
evidence was elicited from
Plaintiff’s witness through
cross examination
“Q. Now you are aware that
the 2nd Defendant
claims to have bought the
property from Mr. Djan (1st
Defendant).
A. My Lord, not until when
we came for pretrial and it had
failed, and it had to go for
trial.
Q. And you discovered that
the 2nd Defendant had
bought it?
A. My Lord, this was when I
got to know there is a second
party in the transaction.
Q. Who claims to have
bought the property?
A. Yes My Lord.
Q. And he bought it
sometime in April 2007.
A. Well, I am not aware of
any date. I am aware a second
party has put in a claim to join
the suit.
Q. And you have heard in
this court that the 2nd
Defendant says he bought it
sometime in April 2007?
A. My Lord I am also not
aware if there is any date. I
had entered into an agreement
with the 1st
Defendant on 23rd
March 2007.
Q. But my question was you
have heard in this court that
the 2nd Defendant is
notwithstanding, in transaction
with Mr. Djan (1st
Defendant) they also bought the
property sometime in March 2007.
A. My Lord, I am aware that
the 2nd Defendant
claims to have entered into an
agreement with the 1st
Defendant on 29th
March 2007. That is what I am
aware of.
30. From the Plaintiff’s
pleading and consistent with the
evidence of Samuel Adu Gyamfi,
the purchase agreement between
Plaintiff and 1st
Defendant in pursuance of which
Plaintiff partly performed by
paying to the 1st
Defendant the sum of
¢200,000,000.00 was executed on
23/3/2007 as per the terms of
Exhibit ‘C’. That it was on
29/3/2007 later in time that 1st
Defendant while in contract with
Plaintiff entered into another
contract to sell the same
subject matter to the 2nd
Defendant as per the terms of
Exhibit 2 at a time when 1st
Defendant was bound by the terms
of Exhibit ‘C’ in pursuance of
which consideration had passed
from the Plaintiff to the 1st
Defendant.
31. In the case of TAMAKLOE
VRS. BABALOLA [2006] 2MLRG 206
at p. 212 Holding 5. Aryeetey J.
A. (as he then was) delivering
the lead judgment of the Appeal
Court held.
“In the instant appeal as
demonstrated above, there was a
valid and enforceable contract
in respect of the sale of the
house in dispute to the
Plaintiff in the light of the
ample evidence on record of part
performance by the Plaintiff.
Also, there was clear evidence
that the Defendant would not
perform his side of the bargain
when he went ahead and sold the
property to the Co – Defendant.
The trial circuit judge was
right when he decreed specific
performance in favour of the
Plaintiff”.
32. It is on the strength of
the foregoing principles and the
evidence before me, that I
hereby determine issues 1 and 2
set down for trial in this suit
in favour of the Plaintiff and I
hold that not only was there a
prior contract of sale of the
land situate at Beguahim, Dome
subject matter of this suit
between Plaintiff and the 1st
Defendant but that there has
been part performance of the
said contract between the
Plaintiff and the 1st
Defendant.
33. The next issue set down
for determination is: Whether or
not 1st Defendant’s
contract with 2nd for
the sale of the said land was
prior in time to Plaintiff’s
interest. The undisputed
evidence before this court is
that whereas Plaintiff’s
contract with 1st
Defendant Exhibit ‘C’ was made
on 23/3/2007, that between 1st
Defendant and 2nd
Defendant Exhibit ‘2’ was made
on 29/3/2007 a period of at
least six clear days in time
between the earlier and the
latter. What this means is that
by 29/3/2007 when 1st
Defendant purported to enter
into Exhibit ‘2’ with the 2nd
Defendant he had created a prior
interest in equity in favour of
the Plaintiff with respect to
the subject matter and having
received part payment of the
purchase price from the
Plaintiff he was in a position
of a trustee with respect to the
Plaintiff a trust which 1st
Defendant betrayed six days
later.
34. Given the documentary
evidence in Exhibits ‘C’ and ‘2’
before me, I have no hesitation
in determining issue 3 in
Plaintiff’s favour and I hereby
find that the Plaintiff’s
contract of sale of the subject
matter with the 1st
Defendant was prior in time than
the contract between the 1st
and the 2nd
Defendant.
35. It is trite law that
where a party withholds
performance i.e. refuses to
perform part or all his
contractual obligations as
stipulated in the contract
between parties, then the party
who withholds performance i.e.
refuses to perform part or all
of his contractual obligations
is in breach of the contract.
36. Before I proceed to
determine the only outstanding
issue i.e. Whether or not
Plaintiff is entitled to its
reliefs, let me say that I have
examined the evidence of the 2nd
Defendant and subjected same to
the standard as prescribed by
law with the view to coming to
the conclusion whether or not by
its pleading and evidence
adduced, 2nd
Defendant is a bonafide
purchaser for value without
notice of any prior interest of
the Plaintiff’s in the subject
matter. From evidence adduced
through the 2nd
Defendant’s witness I am not
convinced that the 2nd
Defendant acquired its interest
bonafide. Not when the 1st
Defendant had at all material
times to this suit known that he
had entered into a binding
contract with the Plaintiff and
the 2nd Defendant’s
witness testifying on oath that
he was not interested in finding
out whether or not there are
other competing purchasers of
the subject matter because at
the material time, 2nd
Defendant was facing ejection
elsewhere and therefore needed
another place to relocate.
Consequently, at the time the 2nd
Defendant purported to offer to
purchase, the subject matter was
under contract with the
Plaintiff holding an interest in
equity from the 1st
Defendant.
37. While under examination
in chief, the 2nd
Defendant’s witness Mr. Teye
answered questions from its
counsel as follows:
“Q. Were you at anytime
aware of any transaction between
Agate and Kwame Djan?
A. No My Lord.
Q. Now in the course of
your possession, of the property
has anybody come to tell you
that the property did not belong
to Kwame Djan?
A. No.
Q. Have the Plaintiffs
apart from this suit at any
point in time challenged you
about your transaction with
Kwame Djan?
A. No.
38. While under cross
examination by Plaintiff’s
counsel the following evidence
was elicited from 2nd
Defendant’s witness.
“Q. Now Mr. Teye at the last
adjourned date you did indicate
that when you found out that a
notice has been posted at the
premises, in dispute, you called
Kwame Djan. Is that right?
A. Yes I did call him.
Q. What did you ask him?
A. I just told him I found
the notice there and he asked
what is it about. Whatever I saw
I made photocopies and sent it
to my lawyer to deal with it.
Because from day one the lawyer
has been dealing with him.
Q. You did not ask him
whether there was any litigation
pending on the land?
A. I think I travelled and
I had gotten back, so as soon as
I saw it the issue was that my
lawyer should go ahead and
handle it……………….”
In my view this is clearly an
evasive answer to a rather
simple and direct question.
To a further question
“Q. When you went to Mr.
Kwame Djan did you find out
whether there had been other
prospective purchasers because
the property was for sale.
2nd Defendant’s
witness answered.
A. I was not interested in
that. At that time I wanted a
property and that time I was
being ejected so what we did was
we went to lands to check as
said earlier.
39. In my view, the answers
to questions under cross
examination by 2nd
Defendant’s witness did not the
least appear to me as the
testimony of a prudent and
truthful witness and if the 1st
Defendant concealed the fact of
a pre existing contract with
respect to the subject matter
from the 2nd
Defendant’s representative that
should clearly give rise to a
cause of action by the 2nd
Defendant against the 1st
Defendant. Any conclusion
arising from the evidence that
the 2nd Defendant is
a bonafide purchaser for value
and therefore is entitled to the
reliefs endorsed in its
counterclaim, would be
tantamount to assisting the 1st
Defendant to overreach the
Plaintiff and succeed in
perpetuating what the
authorities refer to as ‘fraud’
against the Plaintiff to the
advantage of the 2nd
Defendant whose witness in my
opinion has not been truthful
and prudent Consequently the 2nd
Defendant is not entitled to the
reliefs it seeks.
40. The evidence before me
is that at the time 1st
Defendant purported to enter
into the contract of sale with
respect to the subject matter,
it was not available for sale to
the 2nd Defendant
because of the Plaintiff’s
equitable interest in same, a
fact known to the 1st
Defendant who is a party to the
earlier contract. I donot
believe the 2nd
Defendant’s testimony that same
was not disclosed. If it were
so, the 1st Defendant
cannot get away with it to the
detriment of the Plaintiff. As
observed the 2nd
Defendant must have a right of
action against the 1st
Defendant. In consequence, I
shall dismiss the 2nd
Defendant’s counterclaim and the
same is hereby dismissed.
41. Now, with respect to
issue whether or not the
Plaintiff is entitled to its
reliefs which are:
(i). Declaration that the
purported transfer of the
property by the 1st
Defendant is a nullity.
(ii). An order setting aside
the purported transfer of the
property by the 1st
Defendant to the 2nd
Defendant.
(iii). An order compelling
the 1st Defendant to
complete the sales transaction
with the Plaintiff.
42. As already observed,
relief (3) is in the nature a
relief of specific performance
and same has already been
exhaustively discussed in this
judgment. The basic relief for
breach of contract is the right
of the action. In the case of
PRAH VRS. ANANE [1964] GLR 458
the Supreme Court accepted as
correct the statement of the law
that: “The breach of contract
normally gives the innocent
party a right to damages at
common law”.
43. In such an action by the
innocent party to enforce its
right in damages for breach of
contract, it is trite law that
the innocent party is entitled
prior to such award to a
declaration that the contract in
question was breached. The
Plaintiff in the instant suit
has not sought damages for
breach rightly so because its
relief (iii) as endorsed is
clearly a relief for specific
performance and not for damages
for breach which is an
alternative relief if in the
opinion of the court, while a
breach of a contract may have
been proved, the innocent party
ought not be granted the relief
of specific performance which is
discretionary remedy.
44. In the instant suit,
having already resolved issues 1
and 2 endorsed in the settlement
of issues in favour of the
Plaintiff, I have no hesitation
in granting reliefs (1) and (2)
endorsed on the Plaintiff’s
amended statement of claim which
I hereby do by granting:
(i). A declaration that the
purported transfer of the
property by the 1st
Defendant to the 2nd
Defendant is a nullity.
(ii). An order setting aside
the purported transfer of the
property by the 1st
Defendant to the 2nd
Defendant.
45. Plaintiff’s 3rd
relief is for an order
compelling the 1st
Defendant to complete the sales
transaction with the Plaintiff.
In the case of LARTEY VRS.
BANNERMAN [1972] 2GLR 438
Sarkodie J stated succinctly the
rationale for granting the
equitable remedy of specific
performance when he held that;
“specific performance is an
equitable remedy generally
granted to enforce against a
defendant a duty of doing what
he agreed by contract to do
provided the contract is valid
in form, has been made between
competent parties and is
unobjectionable in its nature”
46. This principle was
quoted with approval by the
Supreme Court (ordinary bench)
in KOGLEX VRS. FIELD [1998 –
1999] SCGLR 451 at 458. In the
said case, the Supreme Court
also cited with approval the
case of ADU VRS. ATTAH [1984 –
86] 1GLR 649 where the Court of
Appeal stated the ingredients
which must be satisfied before a
court would ground an order of
specific performance. The Court
of Appeal held at page 651 of
the report as follows:
“The principles which have
always guided the courts of
equity to decree specific
performance, have been clearly
and expressly stated in Snell’s
Principles of Equity (26th
Ed.) page 664 in these words,
for a Plaintiff to obtain
specific performance, he must
have been himself ready,
desirous prompt and eager”
47. I think the instant
Plaintiff from the evidence
before me satisfied the test.
The exhibits tendered
particularly Exhibit ‘C’ is
documentary evidence between
Plaintiff and 1st
Defendant in valid form, made
between competent parties and
never contested by the 1st
Defendant and for that matter
unobjectionable.
48. In the KOGLEX VRS. FIELD
(No. 2 case) the Supreme Court
went further to state per
Hayfron – Benjamin JSC that in
Ghana, in addition to the
requirements stipulated in the
Lartey case (supra) a Plaintiff
ought to satisfy additional
requirements in order to succeed
in an action for specific
performance endorsed by the
instant Plaintiff as “an
order compelling the 1st
Defendant to complete the sales
transaction with the Plaintiff”
in the following words:
“Thus in our municipality, the
issue is whether any agreement
for the sale or transfer of land
satisfies the requirements of
the Conveyancing Decree 1973”
Subsequently in the report, the
court again adopted the
ingredients required, as was
stated in the Lartey case
(supra) as that necessary to
satisfy the conditions
stipulated in the statute
Hayfrom – Benjamin JSC stated
the tests as follows:
“(a). it must be
in writing signed by the vendor.
(b). there must be
agreement as to price and
(c). the parties must be ‘ad
idem’ as to the property, the
subject matter of the agreement”
49. In KOGLEX VRS. FIELD
(No. 2) the review decision of
the Supreme Court Acquah JSC
stated as follows:
“Now the claim of the Plaintiff
as borne out by the writ of
summons, was for specific
performance of an agreement for
a lease of the property in
dispute. There was no dispute
that no lease agreement had been
executed by the parties………….”
“The relief of specific
performance lies whenever
agreement between parties have
got to such a stage that it
would amount to fraud on the
part of the other party to
refuse to perform his side of
the bargain”
50. Under section 3(2) of
the Conveyancing Act 1975 (Act
175) the absence of writing has
been excused by the doctrines of
equity including part
performance which in my view
Plaintiff herein, partly
discharged in pursuance of the
contract between it and 1st
Defendant as per Exhibit ‘C’.
In OKAI VRS. OCANSEY [1992 – 93]
Part 3 GBR 1047 CA at 1050 –
1051 the Court of Appeal
unanimously held to this same
effect even in an oral contract
where there was no evidence in
writing. ADJABENG J. A. (as he
then was) stated the
requirements which must be
satisfied to render an oral
contract specifically
enforceable. It is my finding
that the Plaintiff herein
satisfied all the tests set out
in the two cases cited above.
51. In the instant case of
the Plaintiff and the 1st
Defendant, there was more than
just the oral agreement between
the parties. The Plaintiff and
the 1st Defendant
entered into Exhibit ‘C’ in
pursuance of which Plaintiff
partly performed. The 1st
Defendant’s reasons for
repudiating the contract are
clearly inconsistent. The
evidence of Kwame Djan 1st
Defendant on the issue lacked
credibility and manifestly
unreliable.
52. In the KOGLEX VRS. FIELD
(No. 2) case (Supra) Acquah JSC
held as follows:
“Indeed to establish facts
amounting to part performance,
what is required of a Plaintiff
is to show that he had acted to
his detriment and that the acts
in question are such as to
indicate on the balance of
probabilities that they were
performed in reliance on a
contract with the Defendant”.
53. It is on the strength of
these authorities that I come to
no other conclusion than that,
at the time the subject matter
was purportedly sold to the 2nd
Defendant, the 1st
Defendant knew he had no other
interest in the property except
the balance of his purchase
price hence my dismissal of 2nd
Defendant’s counterclaim.
54. For the same reasons, I
find the address by the 2nd
Defendant’s counsel in this
suit, brilliant as it has been
presented wholly unconvincing to
sway a decision in favour of the
2nd Defendant.
55. In the premises, I hold
that the Plaintiff is entitled
to all reliefs endorsed in its
amended statement of claim.
56. There shall be costs of
¢5,000.00 in favour of the
Plaintiff against the 1st
Defendant and 2nd
Defendants.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
1. KWEKU ASIRIFI Esq.
(FOR THE PLAINTIFF)
2. JOSEPH ACHEAMPONG Esq.
(FOR THE 1ST
DEFENDANT)
3. KIZITO BEYUO Esq.
(FOR THE 2ND
DEFENDANT)
|
