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JUDGMENT
ADINYIRA (MRS) J.A.:
The
plaintiffs/appellants (hereinafter referred to as the
appellants) who were former employees of Ghana
Publishing Corporation, began an action in the High
Court against the 1st defendant/respondent Tema
Development Corporation (hereinafter referred to as TDC)
and their former employer the 2nd defendant/respondent
(herein after referred to as the 2nd respondent),
claiming:
a) A declaration of
ownership of houses listed and attached thereto all
being in Tema in the Greater Accra Region of the
Republic of Ghana.
b) Perpetual injunction
restraining the defendants by themselves, agents,
servants or employees from interfering with the peaceful
enjoyment of the said houses by the plaintiffs.
c) Costs.
The facts of their
claim would be sufficiently set out in the course of the
judgment. The 2nd respondent denied the appellants’
claim. They claimed ownership of the said houses and
therefore couterclaimed for—
a) An order setting
aside the lease executed for the plaintiffs by 1st
defendant.
b) A declaration of
title to all those properties referred to in paragraph 1
of the plaintiffs’ Statement of Claim.
c) An order of
possession to all those properties.
d) An order against the
1st defendant to execute leases in respect of the
aforesaid properties to 2nd defendant.
The appellants by their
statement of claim averred that in or about 1968, their
employer, the 2nd respondent herein, applied for a
number of houses from TDC for its employees including
the appellants. The appellants were allocated the houses
listed against their names in the statement of claim. As
a result of the allocation of the said houses the 2nd
respondent withheld their housing allowance of 20% of
their respective salaries. They claimed these allowances
were retained to pay for the acquisition of the houses
acquired from TDC. They claimed that by a directive
dated 24th August 1979 and issued by a housing committee
set up by the erstwhile AFRC regime; the 2nd respondent
was to pay the plaintiffs their housing allowance to
enable them to pay rent directly to TDC. This was
complied with and TDC issued them with rent cards.
The plaintiffs claimed
they had since then paid rent directly to TDC. Between
April 1989 and September 1990 TDC informed them that
they had completed payment of the selling price of the
said houses and requested them to pay ground rents. TDC
had since then granted them leases, which have or are in
the process of being executed. The appellants averred
that the 2nd respondent is claiming ownership of the
houses and had been harassing them to quit and hence
this action.
TDC by its statement of
defence admitted that the 2nd respondent applied for a
number of houses for the occupation of its employees. It
admitted that following the AFRC directives the
appellants were given their housing allowance to
facilitate the direct payment of rent to TDC. It however
claimed this AFRC directives applied to rental units and
not to houses under House Ownership Scheme. TDC
contended that though the appellants made payments in
respect of these houses, these were made in error as the
2nd respondent had already completed payments of the
said houses.
The 2nd respondent in a
rather terse statement of defence denied the plaintiffs
claim and claimed it was the owner of the said houses.
Judgment was given in
favour of the 2nd respondent and the appellants being
dissatisfied appealed on several grounds which I need
not set out herein extenso. I would rather spelt them
out when considered in the course of the judgment.
At the trial the
appellants rested their case on the evidence given by
the 1st and the 20th appellants only. Relevant portions
of the 1st appellant’s evidence was that:
‘‘In July 1969,TDC (1st
defendant herein) allocated a house to me through my
employers, the Ghana Publishing Corporation. The 1st
defendant is the one who erected those houses. In August
1969’ there was an order from the Busia Government …that
the houses be transferred to the occupants. I did apply
in respect of mine but I was denied this- my application
was not accepted. Thus I continued to remain in the
house as a tenant of TDC…In 1979 I appealed through my
employers to the 1st defendant that the house be
allocated to me. It was later allocated to me. This was
after I have appeared before the AFRC ‘‘one man one
house committee.’’…From 1969 I was paying rents and I
continued to do so after appearing before the AFRC
committee in 1979. On 29/3/90 the TDC wrote to me
informing that I had completed payment of the purchase
price and interest thereon…. After this I applied for a
document to bear out my purchase. I have before me a
copy of the leasehold agreement. …. I have been paying
the ground rent in respect of the property.’’
The 20th appellant’s
evidence was slightly different. He said:
‘‘ The said house was
allocated to me by the 1st defendant. When the
allocation was made to me I was given a rent card, which
was issued, to me in 1969. Later on I received a letter
from the 1st defendant saying that I had completed
payment…. Further on I received a lease from the 1st
defendant dated 13/13/88…. I pay the ground rent of the
premises…’’
The 1st appellant’s
evidence shows that before the AFRC directives of 1980
he was living in the house by virtue of an allocation by
TDC through his employer in July 1969. An attempt to
have the house in his name in August of the same year
failed. It was his employer who was paying the rent. It
was only after the AFRC directives that he was given a
rent card to pay the rent directly and also enjoy his
housing allowance, which was obviously higher than the
rent.
The 20th appellant’s
evidence on the other hand created the impression that
he was directly given the allocation in his own right
and given a rent card that same year. He tendered this
rent card as Exhibit ‘D’. A look at this rent card does
not show the date on which it was issued. But it shows
that the record of payment started on 27 August 1980.
This may well be at the time that the AFRC directives
were given. See Exhibit ‘2D2’. So that the 20th
appellant’s evidence that he was allocated the house by
TDC and given a rent card in 1969 cannot be true.
The appellants on the
other hand in their respective evidence given on their
behalf said these houses were in 1969 offered on sale to
the 2nd respondent by TDC. The 2nd respondent paid an
initial deposit and was given 44 houses, which included
those in dispute. The 2nd respondent continued to make
payment by instalment until they finished payment on 19
June 1983. Exhibits 1 and 2 were tendered in evidence as
proof of the offer and the initial payment.
The evidence of the
respondents therefore clearly shows that the said houses
were not rental units but houses which had been offered
to the 2nd respondent and who had accepted the offer and
paid for them by instalments. It is also obvious that
the appellants were not paid any housing allowance
simply because they were living in premises offered by
their employer. The appellants never challenged the 2nd
respondent’s evidence that it had paid for the houses. I
am therefore of the view that it was wrong to apply the
AFRC directives to these houses, as on the evidence they
were not rental units but houses bought and paid for by
the 2nd respondent. For this reasons alone the appeal
fails.
However there are other
issues to be considered. One is the issue faced by the
trial judge of the relevance of the rent card on which
the appellants hinged their case and the present appeal
as well. Counsel for the appellants contended that:
‘‘The rent card Exhibit
‘D’ was a complete contract between the plaintiffs and
the 1st defendants. It sets out the number of the house,
the selling price, monthly instalment and the date of
the commencement of the lease the period of the lease
and period of payment. It is a complete Hire Purchase
Agreement. No offer and acceptance is needed to complete
the agreement of the sale of the said houses by the 1st
defendant to plaintiffs.’’
Upon an examination of
Exhibit ‘D’ which was tendered as the rent card which
counsel claimed was issued as a result of the AFRC
directives of 1980 although the 20th appellant said it
was given him in 1969, I find that it is not a rent card
but rather a hire purchase scheme with the period of the
lease, the selling price of the house with interest and
a record of payments. This in all respects is not a rent
card as envisaged by the said directives. No wonder when
the appellants completed payment based on Exhibit ‘D’,
they were offered leases on the houses.
The trial judge
however, in his judgment found this offer of leasehold
to the appellants to be invalid. This holding gave rise
to one of the additional grounds of appeal that:
‘’The trial judge erred
in law when he stated in his judgment that’ I have no
doubt that they, the plaintiffs, could not at law have a
valid offer made to them except this was acquiesced in
by the 2nd defendant at a time contemporaneous with the
said offer.’’
Counsel’s argument was
that:
‘‘With the issuance of
the rent card by 1st defendants to plaintiffs under the
house ownership of 1st defendants and the creation of a
hire purchase agreement between the plaintiffs and 1st
defendants the question of offer and acceptance does not
arise at all in relation to the purchase of the said
houses by the plaintiffs.’’
It is my candid opinion
that Counsel’s argument does not take into consideration
the evidence of an already existing contract of sale of
the said houses between TDC and the 2nd respondent in
1969 before the issue of the rent cards in 1980. Even if
the 2nd respondent had not finished payment by 1980, yet
as rightly pointed out by the trial judge from the
moment the contract was concluded the 2nd defendant at
equity became the owner and the 1st defendant its
constructive trustee of the properties the subject
matter of the sale. This position is supported in
Snell’s Principles of Equity (27thEd.) at page 188,
which states as follows:
‘‘As soon as a
specifically enforceable contract for sale of land is
made, the purchaser becomes the owner of the land in
equity and the vendor becomes a constructive trustee of
the land for the purchaser subject in each case to their
respective rights and duties under the contract.’’
This being the case TDC
had no right to grant leaseholds to the appellants. The
Supreme Court in the case of Amuzu vrs Oklikah [1998-99]
SCGLR 141 per Aikins JSC at 152 stated that:
‘‘The law is also clear
that upon entering into such clear valid contract for
sale, the court will not allow the vendor to transfer
afterwards the legal estate to a third person, though
such person would be affected by his pendens. The
property is in such a situation (in equity) transferred
to the purchaser by the contract, and the vendor will
not be permitted to deal with the property so as to
inconvenience him.’’
As said earlier
Exhibits 1&2 clearly showed that the houses were sold to
the 2nd appellant and were therefore not rental units.
It was therefore wrong to apply the AFRC directives to
these houses and for TDC to collect rents from the
appellants. The appellants were also not entitled to
housing allowance while living in premises provided by
their employers. The application of these directives in
the instant case is an indication of the over
zealousness of officialdom to comply with revolutionary
measures without considering its legality during that
erstwhile regime, that has led to this action.
The appellants have not
been able to convince this court that the judgment is
wrong. For the reasons given above the appeal fails and
ought to be dismissed.
The appeal is therefore
dismissed.
S.O.A. ADINYIRA (MRS)
JUSTICE OF APPEAL
BENIN J.A.:
I agree.
AKOTO-BAMFO (MRS) J.A.:
I also agree.
COUNSEL |
