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J U D G M E N T
AKUFFO, (MS), J.S.C.:
The Appellants herein
(hereinafter referred to as the
Plaintiffs), by their writ of
summons issued on 9th
September 1994, commenced legal
action against one Elizabeth
Blankson (hereinafter referred
to as ‘the Defendant) claiming a
number of reliefs which may be
summed up as follows:-
1.
Declaration of title to certain
premises at Lartebiokorshie,
Accra, consisting of one
uncompleted story building and
one completed boys’ quarters
(hereinafter referred to as ‘the
property’).
2.
A declaration that the agreed
purchase price for the premises
was
¢19,000,000.00 (now GH¢1,900.00)
and that full payment thereof
has been paid by various
instalment payments.
3.
A decree of specific performance
of the contract of sale already
executed or partly performed and
an order to the Defendant or the
Registrar of the High Court to
execute the requisite documents
duly conveying the property to
the 2nd Plaintiff
4.
Payment of accumulated rents and
mesne profits by the Defendant
to the plaintiffs.
5.
Refund of amounts paid as
deposit to the Defendant pending
the remittance of the purchase
price.
6.
General damages for breach of
contract.
The brief facts in this matter
are that the 1st
Plaintiff (suing by one Sarah
Chinebuah who describes herself
as his lawful attorney) is the
son of the 2nd
Plaintiff. The 1st
Plaintiff was at all material
times normally resident in the
United States of America and his
declared intention was to
purchase the property for the 2nd
Plaintiff. Sometime in or about
January 1989, the Plaintiffs
expressed to the Defendant an
interest in purchasing the
property and commenced
negotiations with her. According
to the Plaintiffs’ pleadings,
the negotiations resulted in an
agreement that the purchase
price would be
¢19,000,000.00. According to the
Defendant, however, there was a
tentatively agreed price of
¢22,000,000.00 (now GH¢2,200.00),
the final price being subject to
the outcome of a valuation to be
conducted. The agreement was
never reduced into writing and,
whatever the agreed price, the
understanding was that the same
would be completely paid by May
1989. In April 1989, however,
the 1st Plaintiff
sent to the Defendant a tape
recorded message informing her
that, owing to the outbreak of
the Gulf War, he was unable to
complete the payment of the
purchase price as promised and
he then put the Defendant to her
option of either selling the
property to any other person or
waiting till the end of the said
war when the 1st
Plaintiff would be able to remit
the money. As it transpired,
although the Defendant did not
communicate to the Plaintiffs
any particular choice, she did
not sell the property to any
other person and when, in July
1991 the 1st
Plaintiff, through the 2nd
Plaintiff, commenced paying
various amounts to the Defendant
she accepted such payments.
These payments continued,
sporadically, until December
1993; by which time, as admitted
by the Defendant, a total amount
of ¢19,000,000.00 had been
received from the 1st
Plaintiff.
In addition, prior to the
commencement of the aforesaid
payments, the 2nd
Plaintiff also advanced various
amounts of money to the
Defendant, totalling ¢470,000.00
(now GH¢47.00) and US$2,200.00
respectively. It is clear from
the record that both parties to
the transaction regarded these
payments as being unrelated to
the house purchase transaction.
Also, before the payments
commenced in 1991, the Defendant
allowed other children of the 2nd
Plaintiff to occupy the
uncompleted storey building
whilst the Defendant continued
to occupy the completed boys’
quarters.
Subsequently, the 1st
Plaintiff, by a facsimile
transmission (hereinafter
referred to as ‘Exhibit 1’),
headed ‘Re: Said Property on
Link Road in Lartebiokorshie’,
dated March 16th
1994, communicated to the
Defendant as follows:-
“This is a promissory note from
Dr. Penney Smith to Mrs.
Elizabeth Blankson requesting
that my mother, Auntie Akua
Essumamba be permitted to
move into and reside in the
above said property until such
time that all monies paid to
Mrs. Blankson towards the
purchase of the said property
are completely reimbursed to
Auntie Akua Essumamba.
Upon complete payment of the
said amount, Auntie Akua
Essumamba be given a reasonable
time of about two to three
weeks, not to exceed four weeks
to acquire a new place to
reside.
I hope this will guarantee
reassurance to all parties
involved. Thank you for your
consideration in this matter.”
(emphasis mine)
The 2nd Plaintiff
moved into the uncompleted house
in August 1994, evidently
without the agreement of the
Defendant. After considerable
friction between the 2nd
Plaintiff, her children residing
on the property and the
Defendant, the Plaintiffs
instituted the present action.
According to the Defendant, it
was because of the institution
of the action that she did not
go ahead with the refund of the
¢19,000,000.00 as requested.
Although the Defendant by her
Statement of Defence
counterclaimed for certain
reliefs, those are not matters
arising from this appeal and we
will, therefore, not touch upon
them.
In one of the most prolix
Summons for Directions it has
ever been our misfortune to
encounter, counsel for the
Plaintiffs set out no less than
26 issues for trial. We are
deeply grateful to the learned
Quaye JA who, in his judgment on
behalf of the Court of Appeal,
distilled the relevant issues in
the suit to be as follows:-
1.
Whether or not after the
conclusion of the agreement for
the sale of the house the
Defendant sought to increase the
price
2.
Whether or not Ms Sarah
Chinebuah was the 1st
Plaintiff’s lawful attorney in
this case
3.
Whether or not the 2nd
Plaintiff is in possession of
the property
4.
Whether or not a definite
purchase price was conclusively
agreed upon.
5.
Whether or not the
agreement was subject to a
subsequent valuation report
6.
Whether or not the 1st
Plaintiff could rescind the
contract.
The learned trial judge made a
definite finding that the agreed
purchase price for the property
was ¢19,000,000.00.The court,
however, held that the 1st
Plaintiff having, by the message
in Exhibit 1, resiled from the
agreement and asked for a refund
of the monies paid for the
purchase of the property, there
was no contract to be enforced
by the court. The court was
bound to give effect to the 1st
Plaintiff’s clear intentions set
out in exhibit 1. The court,
therefore, ordered the Defendant
to refund the amount to the
Plaintiffs and further directed
that, after receipt of the
money, the Plaintiffs were to
deliver up vacant possession to
the Defendant.
The Plaintiffs appealed against
the judgment. By the unanimous
judgment of the Court of Appeal,
the learned justices of appeal
determined that whether or not a
valid contract remained extant
between the Plaintiffs and the
Defendant depended on the
construction to be given to
exhibit 1, and agreed with the
trial court that ‘the letter
and spirit of Exhibit 1 operated
against any finding that a
contract of sale of the said
premises at Lartebiokorshie
between the 1st
plaintiff and the Defendant was
still valid.’ The court,
however, also held that, the 2nd
Plaintiff was entitled to remain
on the premises occupied by her
until the ¢19,000,000.00 and the
other amount, being
¢2,600,000.00, had been fully
refunded, provided that once the
said refund has been made, she
was not entitled to remain on
the premises beyond 4 weeks.
By a Notice of Appeal, which is
remarkable only in its
incredible prolixity, the
Plaintiffs launched an appeal
against the decision of the
Court of Appeal on no less than
14 grounds. The most cursory
reading of the Notice of Appeal
would show that, in fact, there
are only three grounds of any
import to the resolution of this
matter. Indeed in his Statement
of Case herein, counsel for the
Appellants did focus primarily
on these basic grounds, which
are summed up by grounds (1),
(5) and (9). In the interest of
brevity these may, in turn, be
summarised as follows:-
-
The Court of Appeal erred by
focusing only on the
contents of the fax message
sent by the 1st
Plaintiff to the Defendant
-
The Court of Appeal erred by
failing to appreciate that
time was of the essence in
the fax message and
therefore in ordering a
refund of the money the
court erred in failing to
order payment of interest
thereon and
-
The Court of Appeal erred by
failing to appreciate that,
even if the agreed price was
¢22,000,000.00 (as found by
the court) by the payment of
various sums of money
totalling ¢19,000,000.00,
made by the 1st
Plaintiff to the Defendant,
there had been substantial
part-performance that ought
to have compelled the court
to order specific
performance of the
agreement.
With all due respect to learned
counsel for the Appellant
herein, we find his first ground
extremely surprising. Taking
into account the facts of this
case and the nature of the
Plaintiffs’ claims, the contents
and meaning of the message in
Exhibit 1 formed the centre core
of the dispute before the court.
The Court of Appeal had no
option but to give it primary
focus. This is because, even if
there had been an enforceable
agreement to sell the land, and
even if it was held that there
had been substantial part
performance of such an
agreement, meriting an order of
specific performance, the effect
of the faxed message on such a
partly performed agreement was
crucial. The outcome of this
appeal, therefore, hinges on
whether or not the Court of
Appeal was correct in its
interpretation of the contents
of Exhibit 1. On this point the
learned Justice of the Court of
Appeal (writing on behalf to the
court) expressed himself thus:-
“The rules or principles of
interpretation are a
well-trodden ground. Suffice it
to say that the words
constituting the body of exhibit
1 are unambiguous. The text
suggests that the parties to the
contract had decided, for one
reason or the other, that their
intended relationship of selling
or buying H/No. A. 339.4 would
not travel any further, it had
ended hence the parties had to
retrace their steps to status
quo ante. The phrase “until such
time that”, is suggestive of a
known situation between the
parties. The 1st
Plaintiff was not making a fresh
demand for refund. He was merely
attaching the refund to a
condition. The condition was
that the 2nd
Plaintiff would live in the
house until such time that the
refund would have been fully
completed. If the Defendant did
not want the 2nd
Plaintiff in the house, then she
was well advised to complete the
refund with the minimum delay….
I agree with the trial court’s
finding that the letter and
spirit of Exhibit 1 operated
against any finding that a
contract of sale of the said
premises at Lartebiokorshie
between the 1st
Plaintiff and the Defendant was
still valid.”
It is a well established
principle in the law of
interpretation of deeds and
statutes that a document that
is, prima facie, clear in
meaning does not require
interpretation by the court. We
can only agree with the Court of
Appeal on its above-quoted
conclusions. In the Statement of
Case filed on behalf of the
Appellant herein, counsel sought
to argue that the time-frame set
out in Exhibit 1 amounted to a
time limit stipulated by the 1st
Plaintiff within which the
refund was to be made
(presumably, failing which the
call for refund would be
ineffective). This
interpretation, however, is not
supported by the clear words of
the fax which patently relates
the time-frame to the vacation
of the premises by 2nd
Plaintiff. It is also very clear
from the language of Exhibit 1
that, as at the date thereof,
the 1st Plaintiff was
satisfied that his mother had no
right of any sort to occupy the
premises, hence he was only
seeking the permission of the
Defendant for his mother to
enter into occupation, pending
the full refund of the amount
paid.
Thus by the clear meaning of the
message in Exhibit 1, the 1st
Plaintiff requested the
Defendant to permit the 2nd
Plaintiff to occupy the premises
until the full refund of the
amount, paid towards the
purchase of the property, had
been made to the 1st
Plaintiffs, whereupon the 2nd
Plaintiff would vacate the
premises she was about to
occupy, within a maximum of 4
weeks from the making of such
refund. Whether or not it makes
sense to us for the 1st
Plaintiff to have, at that point
in time, withdrawn from his
purchase arrangement with the
Defendant, the fact remains that
the fax was his deed; its terms
and meaning were unequivocally
clear. Clearly, therefore, the
Plaintiffs, by the date of the
commencement of the action had
no title, whatsoever, to the
property. It is not for the
courts to try to resuscitate a
transaction that had been killed
by a principal party thereto,
i.e. the 1st
Plaintiff.
Consequently, in the
circumstances of this case, the
hereinbefore mentioned 3rd
ground of appeal does not even
arise since, by virtue of the
contents of Exhibit 1, whatever
contract (if any) that had
existed between the parties had
come to an end. Now, section
3(2) of the Conveyancing Decree,
1973 (NRCD 175) provides as
follows:-
“Sections 1 and 2 shall be
subject to the rules of equity
including the rules relating to
unconscionability, fraud, duress
and part-performance.”
Hence, although the entire
transaction between the 1st
Plaintiff and the Defendant was
oral, without any evidence in
writing as is required by
sections 1 and 2 of the Decree,
it could have escaped the
strictures of these provisions
if it could be placed in any of
the named (or similar) rules of
equity, particularly, in this
case, the doctrine of part
performance. Whatever had been
the agreed purchase price,
¢19,000,000.00 is no mean
amount. The payment of that
amount constituted substantial
part performance and might have
supported the Plaintiffs’ claim
for specific performance.
However, the record does not, in
reality, support the application
of any such rules in favour of
the Plaintiffs and an order of
specific performance would be
unjustifiable. It would have
been another matter had the 1st
Plaintiff not sent the fax.
Unfortunately for the
Plaintiffs, the 1st
Plaintiff did send it and its
contents, as has been clearly
demonstrated hereinabove,
effectively brought the
transaction to an end and there
was no more agreement on which
an order for specific
performance could be based.
Having agreed with the Court of
Appeal’s conclusion on the
effect of Exhibit 1, the only
ground remaining for
consideration in this appeal is
the 2nd one set out
above. Counsel, in support of
this ground made a series of
confusing arguments which we
will not bother to rehash in any
detail since they are really not
very relevant to this appeal.
Suffice it to say that the nub
of Counsel’s submissions was
that, since for 10 years the
Defendant failed to make the
refund, it was only fair that
the amount should attract
interest and the Court of Appeal
erred in not ordering that
interest be paid on the amount
due. From our study of the
record of appeal, we have not
come across any claim or prayer
whereby the Plaintiff sought an
award of interest. In all
fairness, therefore, the Court
of Appeal cannot be faulted for
failing to exercise its
discretion to order that
interest be paid on the amount
to be refunded. Be that as it
may, we are, on the other hand
of the view that it is in the
interest of justice to order
that, since the Defendant did
not immediately refund the money
after the receipt of the
message, interest must be paid
on the amount due at the
prevailing commercial bank rate
of interest, from the date of
the judgment of the High Court,
until the date of payment. From
the date the 1st
Plaintiff demanded the refund,
without the Defendant
challenging the validity of the
same, the Defendant had had use
of money which, by rights,
belonged to the 1st
Plaintiff. We, however, notice
from the Respondents’ Statement
of Case herein, that the amount
due has, since the judgment of
the High Court been paid into
court but the Plaintiffs have
failed to collect the same. If
that is so, then the interest
should run until the date of
such payment into court. The
failure of the Plaintiffs to
collect the amount thus paid
cannot affect the calculation of
the interest.
Consequently, except with regard
to the question of interest on
the amount due for refund, the
rest of the appeal herein is
hereby dismissed as being
without any merit.
Before concluding this judgment,
there are a number of
observations we need to make
concerning this appeal. Firstly,
we deplore the prolixity with
which counsel for the Appellants
set out the claims, issues and
grounds of appeal. Many of these
amounted more to legal
submissions than pleadings. It
is not by lengthy words and
paragraphs that a bad case can
be transmuted into a good one.
The only end served by such
protracted pleadings is to waste
the courts’ time and, at times,
confuse the issues; it amounts
to an abuse of the processes of
the court. Counsel for the
Appellants, a very senior member
of the Bar, ought to know
better, and he will be well
advised to desist from such
unnecessarily rambling and wordy
pleadings and submissions in the
future since we intend to
exercise our power of striking
out such pleadings and
submissions with more liberality
henceforth.
Secondly, trial judges will also
be well advised to be more
proactive in the pursuit of
effective case management by
using the summons for directions
proceedings to hone into sharper
definition, and with more
specificity, the issues that are
admitted for trial. Every time a
trial judge admits to trial
issues that are not central to
the litigation, all she does is
to open a floodgate of needless
facts and evidence. In a simple
case such as this one, and on
the deducible fundamental facts,
the admission of 26 issues for
trial is shocking and
unjustifiable; it only affords
to counsel an opportunity to
throw waffle all over the place,
(whether in terms of evidence or
arguments) resulting in
inordinate wastage of the
court’s time and resources.
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
DR. S.K. DATE-BAH
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S.O.B. ADINYIRA
JUSTICE OF THE SUPREME COURT
S.K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Ward-Brew for the Appellant.
Mr. Frempong Boadu for the
Respondent.
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