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Agreement -
Property - Joint ownership -
Contract of sale - Specific
performance - Recovery of
possession - Interpretation and
construction of documents -
General damages and costs -
Whether or not there was a valid
contract between the appellants
and the respondent - Whether or
not parol or extrinsic evidence
could be admitted to alter in
any way the written contract, if
it existed - Whether or not the
remedy of specific performance
availed the respondent - Whether
2nd Defendant was
party to the sale of the house,
the subject matter to the
Plaintiff - Evidence Act 1975,
NRCD 323. Section 177 of NRCD
323 reads -
Constitution
1992
i.e. articles 1 (1) and (2), 125
(1), (3), (5) and 126 (4)
HEADNOTES
The parties a
married couple are the
joint
owners of a house the
subject matter of the dispute.
The respondent claimed that he
entered into negotiations with
the appellants for the sale of
their house. He further claimed
that the terms of the sale were
reduced into writing in the form
of a receipt issued to him by
the 1st appellant,
upon the payment of the first
instalment of the agreed price.
The said receipt was signed by
the first appellant only,
purportedly on behalf of himself
and his wife. The respondent
then claimed a few days later
after he had paid the final
instalment for the house, the 1st
appellant brought back the money
he had paid and indicated that
they were no longer interested
in selling the house. Several
attempts were made to pay back
the money to the respondent to
no avail. Eventually, the money
was paid back into court. The
respondent then brought an
action in the High Court seeking
specific
performance of the agreement
of sale of the appellants’
house,
recovery of possession of
same,
general damages and costs.
The High Court gave judgment in
favour of the respondent in
respect of all his reliefs. On
appeal, the Court of Appeal
dismissed the appellants’ appeal
unanimously. Dissatisfied with
the Court of Appeal’s decision,
the appellants have appealed to
this court
HELD
In the
instant case, the respondent was
in the process of making full
payment of the purchase price
when the appellants pulled out
the agreement. The respondent
had relied on the terms of the
contract and the conduct of the
appellants to his detriment. In
such circumstances, it was
appropriate for the trial High
Court to make an order for
specific performance to compel
the appellants to execute the
terms of he contract. There is
a long line of cases to the
effect that an appellate Court
should be slow to set aside the
concurrent findings of facts by
two Courts unless the findings
are so perverse and unsupported
by the evidence on record.
For all the reasons
already stated herein, it is
clear that the trial Court’s
ruling was supported by evidence
on record Accordingly, I would
dismiss this appeal and affirm
the concurrent decisions of the
High Court and the Court of
Appeal
STATUTES
REFERRED TO IN JUDGMENT
Conveyancing
Decree, 1973, NRCD 175
Evidence Act
1975, NRCD 323
Constitution
1992
CASES
REFERRED TO IN JUDGMENT
Tahiru v
Mireku [1989-90] 2 GLR 615
Akim Akroso
Stool & others v Akim Manso
Stool and others [1989-90] GLR
100, CA
Shore v
Wilson 1842 9 Cl. & Fin 355
P.Y. Atta &
Sons Ltd v Kingsman Enterprises
Ltd. [2007-2008] SCGLR 946.
Kwarteng v
Addow [1991] 1 GLR 247
Smith v
Blankson [2007-2008] SCGLR 374
Koglex Ltd.
(No 2) v Field [2000] SCGLR 175.
Obrasiwah II
v. Out (1996-97) SCGLR 618,
Achoro v.
Akanfela (1996-97 SCGLR 209,
Adu v. Ahamah
(2007-2008) SCGLR 143
Fosua &
Adu-Poku v Dufie (Deceased) &
Adu-Poku Mensah (2009) SCGLR 311
Stickney v
Keeble [1915] A. C. 386
GIHOC
Refrigeration and Household
Products Ltd. (No.2) v Hanna
Assi (No.2) [2007-2008] SCGLR 16
Rt. Hon.
Rotimi Chibueke Amaechi v
Independent National Electoral
Commission & 2 others [2008] 5
N.W.L.R 227
GIHOC v Hanna
Assi [2005-2006] SCGLR 458
Gregory v
Tandoh and Anr [2010] SCGLR
971
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England (3rd
edition), Vol. II, 381
Bondzi-Simpson,
“The Law of Contract”
da Rocha and
Lodoh “Ghana Land Law and
Conveyancing”
DELIVERING
THE LEADING JUDGMENT
ANSAH JSC;
COUNSEL
KWADWO OWUSU
AGYEMENG FOR THE DEFENDANTS/
APPELLANTS.
CHARLES ANDOH
FOR THE PLAINTIFF/RESPONDENT.
______________________________________________________________________________________
J
U D G M E N T.
______________________________________________________________________________________
ANSAH
JSC;
This is an
appeal against the decision of
the Court of Appeal affirming
the judgment of the trial High
Court. The appellants rely on
the following grounds of appeal,
namely,
-
“The
Court of Appeal erred in
affirming the judgment of
the trial court because the
pleaded
contract of sale is
inchoate, invalid and
unenforceable since the
subject matter
properly is jointly
owned, but the pleaded
contract of sale is between
respondent on the one hand
and 1st Appellant
on the other hand only.
-
The Court
of Appeal erred in affirming
the judgment of the trial
court and dismissing appeal
because even if the pleaded
contract of sale of the
subject-matter property were
between respondent and 1st
and 2nd
Appellants jointly since the
parties decided no longer to
sell the house rescinded
whatever agreement and
returned the purported part
payment there was no longer
a subsisting agreement on
which an order of specific
performance could be based
and there was no
circumstances as would have
rendered it a fraud for
appellants to have rescinded
the contract.
-
The Court
of Appeal erred when
although it found that the
contract of sale herein was
in writing and not oral, it
went outside the written
contract and admitted parol
evidence to vary the written
contract of sale and rewrote
the contact of sale for the
parties.
-
Further
grounds of appeal would be
filed upon receipt of
proceedings.”
The facts of
this case are not complicated.
The
parties a married couple are the
joint owners of a house the
subject matter of the dispute.
The respondent claimed that he
entered into negotiations with
the appellants for the sale of
their house. He further claimed
that the terms of the sale were
reduced into writing in the form
of a receipt issued to him by
the 1st appellant,
upon the payment of the first
instalment of the agreed price.
The said receipt was signed by
the first appellant only,
purportedly on behalf of himself
and his wife. The respondent
then claimed a few days later
after he had paid the final
instalment for the house, the 1st
appellant brought back the money
he had paid and indicated that
they were no longer interested
in selling the house. Several
attempts were made to pay back
the money to the respondent to
no avail. Eventually, the money
was paid back into court. The
respondent then brought an
action in the High Court seeking
specific performance of the
agreement of sale of the
appellants’ house, recovery of
possession of same, general
damages and costs. The High
Court gave judgment in favour of
the respondent in respect of all
his reliefs. On appeal, the
Court of Appeal dismissed the
appellants’ appeal unanimously.
Dissatisfied with the Court of
Appeal’s decision, the
appellants have appealed to this
court for the following
reliefs:
-
“That the
judgment of the Court of
Appeal dated 21st
October 2010, and the Orders
contained therein affirming
the judgment of the trial
court dated 25th
October 2007 and dismissing
the appeal to be set aside
and judgment entered for
Defendants/Appellants
together with cost.
-
A Order
that the
Plaintiffs/Respondents
retrieve the amount of ¢410
million cedis (four hundred
and ten million cedis),
being the purported part
payment paid into court by
Defendants/Appellants”.
The facts
above call for the resolution of
the following issues:
-
Whether
or not there was a valid
contract between the
appellants and the
respondent.
-
Whether
or not parol or extrinsic
evidence could be admitted
to alter in any way the
written contract, if it
existed.
-
Whether
or not the remedy of
specific performance availed
the respondent.
I will deal
with the first two issues
together.
Valid
Contract.
The
appellants raised the issue of
the propriety of the agreement
of sale between them and the
respondent. They claimed that
since the house was jointly
owned by the appellants the
receipt, which was pleaded as
the written contract of sale was
inchoate because the sale was
between the respondent on one
hand and the 1st
appellant only on one hand and
the only on the other hand. The
trial judge at the High Court
and the Court of Appeal had both
relied on the decision in
Tahiru v
Mireku [1989-90] 2 GLR 615
and held that the receipt
satisfied the requirements of
sections 1 and 2 of the
Conveyancing Decree, 1973, NRCD
175. The appellants
therefore contended that that
the pleaded contract should have
been construed strictly and if
it had been construed strictly,
the court would have come to the
conclusion that there was no
valid contract because the 2nd
appellant who owned the house
jointly, was not a party to the
contract.
The general
rule with regard to the
construction of documents is
that the court must give effect
to the intention of the parties
as found in the document. The
decision of the Court of Appeal
in the case of
Akim
Akroso Stool & others v Akim
Manso Stool and others [1989-90]
GLR 100, CA, is instructive
on the point
At page 106,
the Court held thus:
“the
intention of the parties must be
gathered from the written
instruments. The function of the
court is to ascertain what the
parties meant by the words which
they have used: …The court is to
declare the meaning of what is
within the instrument and not
what was intended to have been
written so as to give effect to
the intention expressed.”
The courts
are hesitant to construe private
documents outside the four
corners of the documents for
good reason. Contracts and other
written documents between
private individuals are
presumed, unless otherwise
proven, to represent the
intentions of the parties. Thus
any undue interference by the
courts flies in the face of the
sanctity attached to such
documents.
The general
rule is not in any way absolute.
Ultimately,
interpretation of contracts
or documents of any kind must
give effect to the true intent
of the parties. The courts are
in duty bound to give effect to
the parties written intentions.
But the courts must also
consider, in appropriate cases
surrounding circumstances which
go to elucidate the intentions
of the parties. For
interpretation must always be as
near as possible to the mind of
or intent of the parties as the
law permits. See
Halsbury’s Laws of England (3rd
edition), Vol. II, 381. Thus
in Shore
v Wilson 1842 9 Cl. & Fin 355,
at 565 Tindal CJ held thus:
“The true
interpretation however, of every
instrument being manifestly that
which will make the instrument
speak the intention of the party
at the time it was made, it has
always been considered an
exception, or perhaps to speak
more precisely, not so much an
exception from, as corollary to,
the general rule above stated,
that where any doubt arises upon
the true sense and meaning of
the words themselves, or any
difficulty as to their
application under the
surrounding circumstances the
sense and meaning of the
language may be investigated and
ascertained by evidence dehors
the instrument itself; for both
reason and common sense agree
that by the other means can the
language of the instrument be
made to speak the real mind of
the
party.”
Indeed this
court came to similar
conclusions in the case of
P.Y. Atta
& Sons Ltd v Kingsman
Enterprises Ltd. [2007-2008]
SCGLR 946. The facts as set
out in the head-notes provide
thus,
“The
plaintiff company held a lease
from the Government of Ghana in
respect of a plot of land at the
Ring road south Industrial Area,
Accra, for a term of 50 years
from 11 May 1972. PYA put up
buildings on the land and
carried on its business there.
In 1993, pursuant to the request
of the defendant-company,
Kingsman, for a lease of a
portion of the land to construct
stores for its business, the
parties executed a document,
exhibit B. Though as stated in
the habendum of the document),
PYA conveyed to Kingsman, “all
the residue now unexpired of the
said term of 50 years granted by
the headlease,” the terms of the
agreement indicated among, that
the Kingsman would pay rent,
give two of the stores to be
constructed to PYA and Kingsman
could not assign or underlet any
part of the stores without the
prior consent of PYA. Between
1993-97, the parties dealt with
the terms of the Exhibit B as if
it was a sublease and Kingsman
complied with its terms, paid
rents and the two stores to PYA.
Subsequently, ie, in November,
1997, Kingsman wanted to
construct another building on
top of the stores for use as
offices but PYA refused to give
its consent as required under
the agreement. Kingsman in
response then alleged that it
did not need the consent of PYA
after all because by the
habendum in the agreement, it
was an assignment that was
conveyed to it and not a
sublease; and that consequently,
it has never been a tenant of
PYA. Kingsman therefore started
the construction. PYA sued at
the High Court for, inter alia,
a declaration that Exhibit B,
the agreement was a sublease and
not an assignment; and for an
order of rectification of the
agreement by addition to the
habendum the words less one day
or less such other period as
would make the agreement reflect
the true character of a
sublease. Kingsman
counterclaimed for a
declaration, inter alia, that,
on its true and proper
construction, the agreement
constituted an assignment and
not a sublease. The High Court
found for Kingsman and the Court
of Appeal affirmed the decision
of the trial; court. PYA further
appealed to the Supreme Court.”
Brobbey JSC
adopted a purposive approach in
the
construction of the
document. At page 664, of the
report, he held thus:
“Indeed in
construing every agreement the
paramount consideration is what
the parties themselves intended
or desired to be contained in
the agreement. The intentions
must prevail at all times….The
general rule is that a document
should be given its ordinary
meaning if the terms are clear
and unambiguous.”
The learned
justice continued on page 965:
“No one can
really tell the intentions of
parties. Even the devil it is
said, does not know the state of
mans mind. In conflicting
situations, … the process of
determining the intentions of
the parties should be objective.
“Objective approach” in this
context implies the meaning that
the words in the document will
convey to a reasonable person
seised with the facts of the
case. In such exercise, the
entire document, the effect it
has on the parties, the conduct
of the parties and the
surrounding circumstances will
have to be taken into account.”
From the
foregoing it is clear that
extrinsic evidence may be
admitted to construe a document
in certain circumstances. The
question to answer is whether
the facts of this case invite
this court to consider evidence
dehors the written intentions of
the parties.
Extrinsic
evidence may be employed where
there are conflicting or
contradictory terms or where
such evidence will elucidate the
intention of the parties. But
extrinsic evidence cannot be
admitted if that evidence is
inconsistent with the intentions
of the parties as expressed in
the document. In my view, in
order for the true intention of
the parties to be uncovered in
this case, extrinsic evidence
was rightly admitted by the
trial court. The purpose or
intent at the core of the
agreement was the sale of the
house.
Considering
the case as a whole, on a
balance of probabilities, it is
clear that the second appellant
was very much aware of the sale
of their house. The evidence on
record showed that she was
present at the negotiations and
made no objections when the sale
of the house came up for
discussion and the title deeds
were given to the respondent.
Counsel for
the appellants was not able to
refute this piece of
evidence.//// To this end I
would agree with the Court of
Appeal in the case of
Kwarteng
v Addow [1991] 1 GLR 247 in
which the owner of a company in
Accra had contracted to sell the
property to the defendant.
However the owner subsequently
revoked his offer to sell the
property to the plaintiff and
the defendant sued for specific
performance. The owner then sold
the property to the plaintiff.
The plaintiff then went into
possession of the property and
to the knowledge of the
defendant proceeded to carry out
substantial improvement to the
property. When an out-of-court
settlement broke down between
the owner and the defendant the
defendant obtained judgment
against the owner. The
defendant then went into
execution and took possession of
the property. The plaintiff
sued the defendant successfully
for declaration of title and
recovery of possession and the
defendant appealed the judgment
to the Court of Appeal. Essiem
JA dismissing the appeal, held
as per the head-note thus:
“the
defendants’ conduct in standing
by without any protest would
have encouraged any reasonable
person to believe that he had
either abandoned his interest in
the property or that he had no
interest in it. The defendant
was consequently estopped from
laying adverse claims to the
property because as soon as the
defendant became aware that the
plaintiff was renovating the
existing property and
constructing the uncompleted one
he should have warned her that
he still maintain his interest
in the land.”
Putting all
the circumstances together, a
reasonable man would come to the
conclusion that the 1st
appellant signed the contract
with the blessing of the 2nd
appellant. It would therefore
not lie in the 2nd
appellants’ mouth to allege that
the sale was concluded without
her prior knowledge. She would
be estopped by her own conduct
from making such a claim.
This parol
evidence does not contradict the
written intention of the
parties. It rather goes to show
the identity of the real parties
to the sale. Therefore, even
though on the face of the
document the 1st
defendant was the only signatory
to the contract, the surrounding
circumstances and the conduct of
the 2nd appellant
showed that the 1st
and 2nd Appellants
were acting in concert.
Specific
Performance.
Having held
that there was a valid contract,
the next issue was whether or
not the remedy of specific
performance avails the
respondent. The appellants have
argued in the alternative that
even if there was a valid
contract, the Court of Appeal
erred in affirming the trial
court because any agreement
between the appellants and the
respondent had been rescinded
since the appellants decided not
to sell the house. In effect,
there was a subsisting contract
on which to base an order for
specific performance. The
appellants relied on
Smith v
Blankson [2007-2008] SCGLR 374.
In that case,
Sophia Akuffo JSC, delivering
the judgment of the court, held
that since the plaintiff had
already sent a fax message which
sought to end the contract of
sale, its contents had
effectively brought the
transaction to an end and there
was no more agreement on which
an order of specific performance
could be based.
It is
important to put the courts
decision into the correct
perspective. In the Smith case
supra, the first plaintiff had
agreed to purchase property
belonging to the defendant. He
subsequently informed the
defendant of his inability to
advance the purchase price. He
therefore gave the option of
either selling the property to
another person or waiting till
the first plaintiff was able to
make payment. Nevertheless, the
first plaintiff commenced
payment of various amounts of
money in part payment of the
purchase price and the defendant
accepted these payments. The
first plaintiff however sent a
fax message asking the defendant
to allow the second plaintiff to
occupy the said property until a
full refund of moneys paid for
the purchase had been made to
the plaintiff. It was in this
context that the court held that
in view of the fact that the
first plaintiff terminated the
agreement, there was no
agreement in the first place, on
which to found a remedy of
specific performance.
In my view,
the facts of the Smith case are
clearly distinguishable from
this case. In the Smith case, it
was the purchaser who ended the
agreement. In such
circumstances, the court
reasoned that a specific
performance would be
unjustified. Simply put. It
would have been unreasonable for
the court to order specific
performance when the plaintiff,
in whose favour the remedy was
being sought had himself
repudiated the contract, by the
fax message. But in the instant
case, it is the vendors, the
appellants who sought to
terminate the contract after
part payment of the agreed price
had been made. I find it
difficult to subscribe to the
appellants claim that the remedy
of specific performance cannot
avail the respondent in this
case. Indeed in the Smith case,
the court noted the key role of
the first plaintiffs fax message
vis-à-vis part performance on
his part. At page 384, Sophia
Akuffo JSC noted:
“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 such rules in
favour of the plaintiffs and an
order of specific performance
would be unjustifiable. It would
have been another matter had the
first plaintiff not send the fax
message. Unfortunately for the
plaintiffs the first plaintiff
did send it…..”
The above
notwithstanding, the court must
consider whether or not the
respondent is entitled to the
remedy of specific performance.
The rule on specific performance
vis-à-vis payment as part
performance was extensively
discussed by Acquah JSC (as he
then was) in
Koglex
Ltd. (No 2) v Field [2000] SCGLR
175.
After
considering several authorities,
His Lordship concluded that the
current position of the law is
that payment of money, whether
in part or in full, renders a
contract enforceable and
specific performance would avail
the purchaser. As earlier
mentioned, this position find
support in the Smith case,
(supra). Acquah JSC then laid
down the requirements for
establishing part-performance:
“ …to
establish the fact amounting to
part-performance, what is
required of a plaintiff is to
show that he had aced to his
detriment and that the acts in
question are such as to
indicate, on a balance of
probabilities, that they were
performed in reliance of a
contract with the defendant.”
It must be
noted at this point, that
specific performance is an
equitable remedy and it is
granted at the discretion of the
Court. It may be granted
especially with regard to sale
of landed property, as in the
case, because there is no other
remedy which puts the plaintiff
in the same position as thought
eh contract was performed.
However, it trite law that
specific performance will not be
granted in certain situation: if
damages will be an adequate
remedy, where there is want of
mutuality, where performance
requires the Court’s
supervision, if it will be
pointless to grant it, if the
contract cannot be enforced in
its entirety, if the order will
cause severe hardship to the
defendant and if eh defendant’s
personal freedom will be
retrained by it. In essence,
the Court will only exercise its
discretion in grant of specific
performance only if it is
appropriate in the circumstances
of the case to do so.
In the
instant case, the respondent was
in the process of making full
payment of the purchase price
when the appellants pulled out
the agreement. The respondent
had relied on the terms of the
contract and the conduct of the
appellants to his detriment. In
such circumstances, it was
appropriate for the trial High
Court to make an order for
specific performance to compel
the appellants to execute the
terms of he contract. There is
a long line of cases to the
effect that an appellate Court
should be slow to set aside the
concurrent findings of facts by
two Courts unless the findings
are so perverse and unsupported
by the evidence on record.
For all the
reasons already stated herein,
it is clear that the trial
Court’s ruling was supported by
evidence on record. It goes
without saying the Court of
Appeal rightly affirmed the High
Court’s decision. See
Obrasiwah
II v. Out (1996-97) SCGLR 618,
Achoro v. Akanfela (1996-97
SCGLR 209, Koglex (No. 2) vs.
Field, supra, Adu v. Ahamah
(2007-2008) SCGLR 143 and Fosua
& Adu-Poku v Dufie (Deceased) &
Adu-Poku Mensah (2009) SCGLR 311
Accordingly,
I would dismiss this appeal and
affirm the concurrent decisions
of the High Court and the Court
of Appeal.
J.
ANSAH
JUSTICE OF
THE SUPREME COURT
CONCURRING
OPINION
DOTSE JSC:
I have had
the prior privilege and
advantage to have read the
reasons proffered by my brother
Ansah JSC why this court on the
21st day of December
2011 dismissed the appeal herein
lodged by the
Defendants/Appellants (who will
hereafter be referred to as
Defendants) against the Court of
Appeal decision of 21st
October 2010 which was in favour
of the Plaintiffs/Respondents/
(hereafter referred to as the
plaintiffs).
Even though I
am in full agreement that the
said appeal be dismissed for the
reasons which have been stated
with particular clarity of
thought in the opinion of my
brother Ansah JSC, I am
compelled to add the following
as my reasons mainly for the
development of the law.
The facts of
this case have very well been
stated by my brother Ansah JSC
that it is pointless to repeat
them again. I will only refer to
the facts if need be when there
is the need to elucidate and
support a particular reason with
evidence on record.
Dissatisfied
with the unilateral decision of
the defendants to rescind the
contract of sale of the house,
the subject matter of this
appeal, the Plaintiff took the
matter to the High Court seeking
the following reliefs
1. Specific performance
of the Agreement for the sale of
the Defendants house
2. Recovery of
possession of the house
3. General damages
The High
Court entered final judgment for
Plaintiff for specific
performance. On 21st
October 2010, the Court of
Appeal affirmed the trial
court’s judgment and dismissed
the Defendants’ appeal.
Dissatisfied with the Court of
Appeal judgment the Defendants
have again appealed to this
court with the following as the
grounds of appeal.
GROUNDS OF
APPEAL
1.
The Court of Appeal erred in
affirming the judgment of the
trial court because the pleaded
contract of sale is inchoate,
invalid and unenforceable since
the subject matter property is
jointly owned, but the pleaded
contract of sale is between
Respondent on the one hand and 1st
Appellant on the other hand
only.
2.
The Court of Appeal erred in
affirming the judgment of the
trial court and dismissing the
appeal because even if the
pleaded contract of sale of the
subject matter properly were
between Respondent and 1st
and 2nd Appellants
jointly, since the parties to
the contract decided to no
longer sell the house, rescinded
whatever agreement and returned
the purported part payment,
there was no longer a subsisting
agreement on which an order for
specific performance could be
based, and there was no
circumstances as would have
rendered it a fraud for
Appellants to have rescinded the
contract.
3.
The Court of Appeal erred when,
although it found that “the
contract of sale herein was in
writing and not oral”, it went
outside the written contract and
admitted parole evidence to vary
the written contract of sale and
rewrote the contract for the
parties.
4.
Further grounds of Appeal would
be filed upon receipt of
proceedings.
ISSUES PRESENTED ON APPEAL
The following
issues stand out as emerging for
determination in this appeal.
The three
outstanding issues presented in
this appeal are:
1.
Whether 2nd Defendant
was party to the sale of the
house, the subject matter to the
Plaintiff;
2.
Whether the trial court and the
Court of Appeal properly
admitted parole evidence to vary
an essential term in the sale
relating to the parties thereof;
3.
Even assuming for the sake of
argument that 2nd
Defendant knew and understood
all that took place at the
signing of the deed of sale and/
or was a party to the deed of
sale, whether there is an
enforceable contract of sale
extant to ground an order of
specific performance when it was
admitted that Defendant ended
the sale transaction by resiling
from the agreement and returned
the part-payment thereof.
The issues
enumerated supra bring to the
fore the discussions on areas of
law relating to specific
performance, parole
evidence rule and
estoppel by conduct. In this
opinion, I will deal only with
specific performance and parole
evidence.
SPECIFIC PERFORMANCE
An order of
specific performance is a
discretionary remedy purely
equitable in origin. In
Stickney v Keeble [1915] A.
C. 386, 419, the court held
that the dominant principle is
that equity will only grant
specific performance, if
considering all the
circumstances, it is just and
equitable to do so.
According to
Bondzi-Simpson in his book, “The
Law of Contract”, in
determining whether specific
performance will be ordered the
court considers a number of
factors including the following:
1.
Whether there is a contract at
all in the first place;
2.
Whether damages will be an
adequate remedy;
3.
The uniqueness of the subject
matter;
4.
Whether time is of the essence;
5.
Whether the plaintiff has
performed his part or is himself
guilty of breach of the contrac;
6.
Whether the plaintiff has sought
the order in a timely manner;
7.
Whether the conduct of the
plaintiff makes it equitable and
just for him to be granted the
order of specific performance;
and
8.
Whether the third party
purchaser has, in good faith,
acquired a right or interest in
the subject matter without
notice of any defect.
On specific
performance related to the sale
of land, the learned authors
da Rocha
and Lodoh in their book “Ghana
Land Law and Conveyancing”
write that by an order of
specific performance, a party to
a contract of sale of land who
attempts to repudiate it is
compelled to carry out his
obligations under the contract.
Thus a vendor can be compelled
to convey the land and a
purchaser can be compelled to
pay the unpaid purchase-money.
Section 2 and
10 of the Conveyancing Act,
1973, (NRCD 175) provides that a
contract for the sale of land
must be in writing signed by the
person against whom the contract
is to be enforced or his duly
authorised agent. In discussing
the signature requirement, the
learned authors da Rocha and
Lodoh write that the memorandum
must be signed by the party or
his agent, and the party who
signs can be sued.
From the
available evidence, it is quite
clear that there is definitely a
contract of sale in respect of
the house the subject matter of
this appeal. The contents of
exhibit A, and B really confirm
the intentions of the parties.
Even though the principle of law
is well settled that in such
circumstances it is desirable to
confine oneself to the four
corners of the contract,
however, in this particular
case, on the principle of doing
substantial justice to the case,
this court will affirm the
decisions of the two lower
courts that there is an
enforceable contract of sale. I
will return to this matter of
doing substantial justice later
on.
It is also to
be noted that, damages however
excessive in this case cannot
adequately compensate the
plaintiff. This is because the
subject matter of the property
is a house which the plaintiff
has contracted to purchase and
part performed. Damages will not
restore the plaintiff adequately
as specific performance of the
contract would. In this case,
the available oral and
documentary evidence indicates
that time is of the essence of
the contract and that the
plaintiff had performed his part
of the contract and it was when
he was in the process of paying
other instalments agreed upon
that the Defendants’
unilaterally rescinded the
contract. In all these matters,
the plaintiff must be deemed to
have acted timeously in seeking
the reliefs from the court.
The plaintiff
having performed all his
obligations under the contract,
he must be deemed entitled to
the equitable relief of specific
performance. What must be noted
here is that, equity is not a
warlord that is determined to do
battle with the law.
Both equity
and the law (statutory and
common) are to be considered as
part of a legal system which has
mixed with each other so nicely
that the result is aimed at
achieving justice.
Using this
admixture it is my considered
view, that the Court of Appeal
properly held that applying all
the available evidence, the 2nd
Defendant ought to be considered
as a party to the contract for
the sale of the house and that
the plaintiff is entitled to the
relief of specific performance
against both Defendants.
Looking at
the case in its entirety, it is
clear that to allow the
Defendants to rescind would
entitle them to be restored to
the position they would have
been had the contract not been
made. However, the Defendants
kept the plaintiff’s money for a
period and after that,
unilaterally exercised the right
to rescind. This is inequitable,
and a court of law must frown
upon such conduct, which as it
were would result into
absurdities if the defendants
are allowed to rescind.
To me, the
justice of the case, considering
the conduct of the Defendants,
i.e. in openly advertising the
sale of their house and
encouraging the plaintiff to
proceed with negotiations
towards the purchase of the
house which culminated in
Exhibit A and B, in which the 2nd
Defendant was visibly present
demands that the Defendants be
held strictly by their conduct
and be stopped from unilaterally
rescinding the contract of sale.
This is what
a court of law is mandated to
do, by ensuring that parties
before it get real substantial
justice.
In my humble
opinion, since the 2nd
Defendant knew all along about
the transaction that went on at
the 18th February
2007 meeting and did not object
to the transactions, she cannot
now be heard to say that she did
not agree to the contract of
sale. As the trial judge rightly
established in his judgment, the
wife was privy to the
transaction that took place in
the home of the plaintiff, and
did not object to the
transaction. She had an
obligation to object to the sale
at the time that Nana Owusu,
DW2, asked all the people
present if anyone had views to
express on the proposed contract
of sale. 2nd
Defendant who remained quiet and
raised no objection and thus
induced plaintiff to go through
the sale cannot now be heard to
say that she objected to the
contract of sale.
The learned
trial Judge captured this part
of the matter in the following
words in the judgment as
follows:-
“So clearly
the 2nd defendant,
wife of 1st
defendant, saw and understood
all that went on at that meeting
of the 18th of
February, 2007. It was that she
kept quiet and when they got
home before she decided to
object. I think I have
sufficient evidence to find that
the 2nd defendant
knew all along about the
property put on sale and the
sale to the plaintiff. I do not
see the evidence concluding
anything else that that she
agree, consented to the husband
selling their property and that
is exactly what the husband
sought out to do. I will say
that she authorised the husband
to transact the sale of their
property and that is what the
husband did. Indeed there is
evidence on record that the
Defendants put up a notice on
their house offering it for sale
to the general public. Secondly,
the 1st Defendant
himself testified that because
they were in hard times, they
told a few friends that they
wanted to sell their house. All
these meant that both couple, 1st
and 2nd Defendants
were aware of the sale of the
house.” emphasis
The Court of
Appeal also affirmed the
findings of the trial judge
because every part of the
evidence established by the
trial judge showed that the 2nd
Defendant took part in the
transaction and authorised the
sale of their house. She is
therefore stopped from denying
her representations to the
plaintiff which induced the
latter to go through with the
sale.
Also, since
plaintiff had performed his part
of the obligation by paying the
deposit and was ready to pay the
second instalment(which was
refused by the defendants),
evidencing an intention to
complete the contract of sale,
the defendants must be compelled
with an order of specific
performance to fulfil their
obligation. Specific performance
must be ordered and the
defendants cannot seek to
repudiate the contract.
PAROLE
EVIDENCE RULE
Parole
evidence rule as a general rule
is to the effect that where
parties have formally recorded
the whole of their agreement in
writing, the written document is
prima facie taken to be the
whole contract and everything
dehors the written document is
excluded. Thus, no extrinsic
evidence is allowed to add to,
vary or contradict the terms of
the written contract. Some
exceptions however may be
applied by the courts, in which
case the court may admit
extrinsic evidence. Even so, the
courts will not admit extrinsic
evidence for the purpose of
re-writing the contract for the
parties but only for the purpose
of explaining the contract.
This rule is
explained further by the
Evidence
Act 1975, NRCD 323. Section 177
of NRCD 323 reads:
(1)
Except as otherwise provided by
the rules of equity, terms set
forth in a writing intended by
the party or parties to the
writing as a final expression of
intention or agreement with
respect to those terms may not
be contradicted by evidence of a
prior declaration of intention,
of a prior agreement or of a
contemporaneous oral agreement
or declaration of intention, but
may be explained or
supplemented,
(a) by evidence of
consistent additional terms
unless the Court finds the
writing to have been intended
also as a complete and exclusive
statement of the terms of the
intention or agreement, but a
will and a registered writing
conveying immovable property
shall be deemed to be a complete
and exclusive statement of the
intention of agreement; and
(b) by a course of
dealing or usage of trade or by
course of performance.
On the issue
of parole evidence, defendants’
argument as contained in their
statement of case is untenable.
In their statement of case, the
defendants write:
“The Court of
Appeal erroneously affirmed this
wrong conclusion of the trial
court (R.p. 382), when the
extrinsic evidence admitted by
the court varied the terms of
the written contract by adding 2nd
Defendant as a party thereto.”
What the
trial court did by adding the 2nd
Defendant as a party, which was
affirmed by the Court of Appeal,
in my opinion did not seek to
alter the terms of the written
contract as wrongly pontificated
by the defendants. What the
trial judge did is justified by
the rules of contract,
specifically as an exception to
the parole evidence rule,
supported by Section 177 of NRCD
323.
Under the
exceptions to the parole
evidence rule, Bondzi Simpson in
explaining the effect of Section
177 of NRCD 323 writes as
follows:
“It therefore
follows that though evidence is
not allowed of prior or
contemporaneous intentions or
agreements to contradict a
written document that contains
the final intentions or
agreement of the parties,
evidence is allowed if its
purpose is not to contradict to
but to explain or supplement the
final written document, not to
contradict it. Such explanations
or supplements may be by
evidence of consistent
additional terms (emphasis
mine) or by a course of dealing,
or usage of trade, or by a
course of performance.”
What the
trial judge sought to do which
was affirmed by the Court of
Appeal, and in my opinion,
rightly so, was to answer the
issue whether 2nd
Defendant was a party to the
contract (since she did not sign
the contract of sale, but only
her husband did) based on the
totality of the evidence
available. What the trial judge
did was not to alter the terms
of the contract as argued by
defendants but to explain the
final document by a consistent
additional terms, based on the
available evidence which showed
that 2nd Defendant
indeed was a party to the
contract, had agreed to the
contract of sale and the sale of
their property to the plaintiff.
Indeed as was stated earlier,
oral and documentary evidence
confirmed the rightness of the
trial and Court of Appeal
decisions.
PRINCIPLE OF
SUBSTANTIAL JUSTICE
One other
ground upon which the defendants
must fail in their bid to hold
onto their property is by use of
the principle of substantial
justice which has been mentioned
supra.
This court,
and indeed all courts in Ghana
have a duty which flows directly
from a power granted by the
Constitution 1992 i.e. articles
1 (1) and (2), 125 (1), (3), (5)
and 126 (4) of the said
Constitution which is to ensure
that citizens of Ghana, get the
justice which their case
deserves.
The powers of
the court flow from the
Constitution 1992 and the courts
should not hesitate to use the
powers available to it in order
to do justice in the cases that
come before it.
The Supreme
Court has given tacit approval
to this principle of doing
substantial justice when
appropriate to do so in the
landmark case of
GIHOC
Refrigeration and Household
Products Ltd. (No.2) v Hanna
Assi (No.2) [2007-2008] SCGLR 16
where the Supreme Court by a
majority decision of 6-1 allowed
a review application and in the
words of Prof. Ocran JSC held as
follows:-
“The basic
concern is that reviews should
be motivated by a desire to
do justice in circumstances
where the failure to intervene
would amount to a miscarriage of
justice. The question was
asked at some point in our last
hearing, “What is justice”. I
would refer to justice in this
context not simply in the
Aristotelian sense of
commutative or rectifiable
justice, but more importantly
to justice as an external
standard by which we measure the
inner quality of law itself.”
emphasis
Using such
philosophical principles, the
majority of 6, held granting the
application to review the
earlier majority decision on the
basis as was stated by Georgina
Wood JSC as she then was:-
“I hold the
view, respectfully, that the
ordinary bench committed a
substantial error when it ruled
that the applicant was not
entitled to those reliefs.”
And by those
reasoning the applicant was
granted a relief which he did
not counterclaim for in the
trial court because the justice
of the case demanded that he be
entitled to them.
The Nigerian
Supreme Court, had the
opportunity to comment and
approve this principle of
substantial justice in the
celebrated case of
Rt.
Hon. Rotimi Chibueke Amaechi v
Independent National Electoral
Commission & 2 others [2008] 5
N.W.L.R 227 where the
court unanimously held on this
and other issues as follows:-
“In the
interest of justice and fair
play, the Supreme Court cannot
shy away from doing substantial
justice without any undue regard
to technicalities. In this case,
there was no doubt that it was
the appellant and not the 2nd
respondent who was the P.D.P
candidate for the 2007
gubernatorial elections in the
Rivers State. In matters of this
nature, the court will not allow
technicalities to prevent it
from doing substantial justice.”
And by so
holding, the Nigeria Supreme
Court further declared the
appellant, Amaechi as the duly
P.D.P elected governor even
though he did not contest the
election because of gross abuse
of judicial process by the
respondents therein.
Giving the
rationale for the courts
decision, Oguntade JSC, who
delivered the lead judgment
stated thus:-
“The sum
total of the recent decisions of
this court is that the court
must move away from the era when
adjudicatory power of the court
was hindered by a constraining
adherence to technicalities.
This often
results in the loser in a civil
case taking home all the laurels
while the supposed winner goes
home in a worse situation than
he approached the court.”
I think the
time has definitely come for
courts such as this Supreme
Court to think likewise.
Thankfully, the views of Sophia
Akuffo JSC and Prof. Modibo
Ocran JSC of blessed memory, in
the original decision of the
ordinary bench in this court in
the case of
GIHOC
v Hanna Assi [2005-2006] SCGLR
458, espoused such views
as per their dissenting opinions
pages 483-495 which opinions
crystalised into the majority
decision in the review decision
referred to supra.
Using the
above principle, there is a lot
to be argued that the plaintiff
as against the defendants must
succeed in this case. This is
because contending that the 2nd
defendant is not a party to the
contract by the use of parole
evidence rule on the basis of
the Evidence Act will work a lot
of injustice to the plaintiff.
However, this principle of
substantial justice will enable
the court to do justice to the
plaintiff’s case.
Finally, it
must be noted that, both the
trial and the first appellate
court made definite findings of
fact against the defendants. The
principles upon which this 2nd
appellate court can set aside
concurrent findings of fact made
by two lower courts have been
clearly stated in the lead
judgment delivered by me in the
case of
Gregory v Tandoh and Anr
[2010] SCGLR 971
holding 2 thereof.
The
Defendants have not succeeded in
convincing this court as to why
we should depart from those
concurrent findings of fact and
set them aside.
For these and
the other compelling reasons, so
ably set out in the reasoned
opinion of Ansah JSC, this
appeal fails and is dismissed
accordingly.
J. V. M. DOTSE
JUSTICE OF THE
SUPREME COURT
G. T.
WOOD (MRS)
CHIEF JUSTICE
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
V.
AKOTO BAMFO (MRS.)
JUSTICE
OF THE SUPREME COURT
COUNSEL:
KWADWO OWUSU
AGYEMENG FOR THE DEFENDANTS/
APPELLANTS.
CHARLES ANDOH
FOR THE PLAINTIFF/RESPONDENT.
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