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JUDGEMENT

AMPIAH  J.S.C.:

This is an appeal from the decision of the Court of Appeal dismissing an appeal by the appellant herein against the decision of the High Court.

In this judgment, the appellants would be referred to simply as the ‘plaintiff’ and 'co-plaintiff’ and the respondent would similarly be referred to as the '2nd defendant'.

The lst defendant in the action, although served with the courts' processes did not enter appearance and did not take part in the proceedings. I may however have to refer to him occasionally in this my judgment.

In this appeal as it was in both the trial court and the Court of Appeal, references have been made to certain judgments which seem to have influenced the decisions of the Courts one way or the other.  In my respectful view these cases (or judgments) seem to have confused the real issues before the court.

For a clearer view and proper understanding of the case, I think a brief history of the case as could be gathered from the pleadings and evidence may be necessary.

In 1976 or thereabout, one Chief  Seidu, now deceased, decided to sell his house on a plot of land at Madina to the plaintiff. As the land on which the house was, belonged to the La Stool, Chief Seidu took the plaintiff to the La Manche for the necessary transfer to be made.  According to the plaintiff, Chief Seidu informed her that he, "Chief Seidu was only a caretaker for the La Stool and so it was necessary to take me to the La Manche" They met the La Manche and his elders and a lease of the land with the house thereon was granted the plaintiff for a term of 50 years with an option for renewal. This was reduced into writing executed, stamped and duly registered as No. 4446/78. This document was tendered in Evidence as Exhibit A; it was dated 15th March, 1976. There seems to be no dispute with this statement of affairs for, in the 2nd defendant's amended statement of Defence, he averred,

"2. (a) In answer to paragraph 5 of the Statement of Claim 2nd defendant says that at the request of the plaintiff the late Chief Seidu caused the La Mantse to execute the said lease dated 15th March, 1976 in the name of the plaintiff on the mutual understanding and on condition that the plaintiff would use her own money to purchase a vehicle for the deceased. This arrangement fell through and so the lease was latently invalid, ineffectual and passed no interest to the defendant".

Of course, the 2nd defendant did not have any personal knowledge of the transaction between Chief Seidu and the Plaintiff.  He called 3 witnesses but none knew about the transaction.  Consequently whatever he said in Court about this transaction may have come to him through some other person, more so the 1st defendant who neither filed any statement of Defence nor testified in Court.

According to the plaintiff, Chief Seidu asked her to purchase for him a Peugeot 504 car "in view (lieu) of the purchase price of the house"  In pursuance of this, the plaintiff placed an order for the requested car. The car took about a year to arrive.  However, when the car eventually arrived, Chief Seidu refused to take it as, according to the plaintiff, Chief Seidu said the car was not 'so big' and that he preferred rather a Caravan. The first car was therefore sold and another order placed for a 504 Peugeot Caravan. Unfortunately, before this car arrived, Chief Seidu had died. One Chief Mukaila, upon the death of Chief Seidu, invited the plaintiff and informed her that as Chief Seidu had left behind a widow and many children going to school there was no need for the caravan car anymore; rather they needed money to look after the children.  Chief Mukaila was alleged to be the customary successor.  Be that as it may, the evidence is that at the request of the plaintiff, the widow of Chief Seidu, Hajia Hawa and the three children of the late Chief Seidu namely Baba, Seidu and Iduor were invited.  It was agreed at the meeting that an amount of ¢65,000.00 be paid to the widow and children in lieu of the caravan car. It would appear that in the interim, the co-plaintiff had approached the plaintiff for the sale to him of the disputed house at a price of ¢65,000.00. Consequently upon agreement and in the presence of the widow and children, the co-plaintiff paid to the widow and children an amount of ¢65,000.00. The widow and children duly gave a receipt for the amount; this was tendered in evidence as Exhibit B and was dated 21/12/79.  Whereupon, the plaintiff took the co-plaintiff to Nii Anyetei Kwakwranya for the necessary document of transfer to be made for the co-plaintiff.  The document, dated 11/9/79 was duly stamped and registered with the Lands Registry as No. 581/1980. It would appear that the receipt had been prepared long after the transfer.

By a letter dated 9th November, 1979, some of the children wrote to the Police who were then occupying the house to pay rent to the co-plaintiff. – This letter was tendered as Exhibit C.  Also, by a letter dated 28th December, 1979 one Ali Seidu a brother of the late Chief Seidu and Hajia Hawa, the widow of the late Chief Seidu acknowledged the sale of the house to the co-plaintiff; this letter was tendered as Exhibit F. Hajia Hawa followed this up with a Statutory Declaration by way of an affidavit confirming the sale of the house to the co-plaintiff. The Police acknowledged this letter by a letter tendered in evidence as Exhibit G.

Hajia Hawa had on 13/11/79 obtained Letters of Administration to enable her administer the estate of the late Chief Seidu. Unknown to her, Amadu Baba Seidu and Fati Seidu some of the children of the late Chief Seidu, had gone and taken Letters of Administration on 15/6/79 to enable them administer the estate of their late father, Chief Seidu.  On 4/7/79, these two children in pursuance of the grant made to them approached the 2nd defendant and sold the house to him. It would appear that despite the agreement to sell the house to the co-plaintiff and the acceptance of valuable consideration for it, some of the children had agreed earlier to sell the same house to the 2nd defendant who had paid some money for it. An attempt to refund the 2nd defendant's money to him failed and the 2nd defendant took action, against the lst defendant in this action, and one Yaya, Seidu both of whom are said to be the children of the late Chief Seidu and persons who allegedly have sold the property to him, and the co-plaintiff claiming:-

(1) A Declaration that the purported sale of House No. H/MDN/14 situate at Madina by 1st and 2nd Defendants to 3rd Defendant is void ab initio and of no effect.

(2) An order for specific performance namely, that the 1st and 2nd Defendants execute a Title Deed to cover the sale of House No. B/MDN/14 situate at Madina which was sold to Plaintiff and supported by a Memorandum of sale dated the 14th July, 1979.

(3) An order for perpetual injunction restraining the defendants their servants and/or agents from dealing or interfering with the said House in a way affecting the rights of the Plaintiff.

(4) An order for accounts by the Defendants and payment to the plaintiff of all rents collected on the said house from the date of purchase i.e. 4th July, 1979 to the date of judgment.

OR In alternative—

The refund of the purchase price of forty-two thousand cedis  (¢42,000.00) by the 1st and 2nd defendants to the plaintiff for total failure of consideration with interest thereon at the rate 18½% per annum from 4th July,1979 to the date of judgment and ¢10,000.00 general damages for breach of contracts".

This is the suit numbered 174/80. The Writ was filed on 13th February, 1980.

Sometime in 1982 the co-plaintiff herein also instituted action against the 2nd defendant claiming title to the property apparently on the assumption that the property had been sold to him by the same children of the late Chief Seidu. This suit was numbered 626/82.

It is the case of the 2nd defendant that he did all that was required of him to entitle him to specific performance of the sale agreement between him and the late Chief’s children. Judgment was entered against the co-plaintiff subsequently the court ordered that a Deed of Sale be made for him the 2nd defendant by the Registrar of the court. — This Document was tendered as Exhibit 13. There is evidence on record that the co-plaintiff applied to have the said judgment set aside for non-service on him of the Writ of Summons, and for fraud. — See Exhibit 7, filed on 14th January, 1981.  It is not clear what happened to the application, for as is known, the trial Judge, Justice Agyapong was killed on 30th June, 1982.  It was upon this state of affairs that perhaps prompted the co-plaintiff to issue his subsequent Writ of Summons in suit No. 626/82. This action was also dismissed. The Judge however observed, on the grounds that —

"In the interest of justice however, I will grant an order for stay of execution. This is because Gertrude Agyekum has taken action in this Court to determine the more fundamental question of title to the house. This will determine the question whether Adamu Seidu and Baba Seidu had any title which they would convey".

As stated earlier in this my judgment, references have been made to cases which have been decided one way or the other against the co-plaintiff and some children of the late Chief Seidu; the non-collection of rents and not being in possession of the disputed property by the plaintiff and co-plaintiff have been used to nullify whatever agreement they had entered into.  Both the trial court and the Court of Appeal ruled that the co-plaintiff was bound by the default judgment in Suit No. 174/80. This decision was arrived at without considering whether the co-plaintiff’s application to set aside that judgment which according to the co-plaintiff had been obtained without service on him of the court processes was pending; that application may still be pending! Also, an allegation of fraud was made against the children of the late Chief Seidu's children who for reasons best known to themselves never took part in any of the court proceedings including the instant action, though made parties. Be that as it may, I am prepared to consider the lease given to the plaintiff, as Hayfron J. found, as a more fundamental question of title to the house.

In Kwofie vs. Kakraba (1966) GLR 229 at 231 Archer J. (as he then was) observed.

"Registration [under Act 122] does not import guaranteed title. In other words, registration will not confer any legal right or title on any party who took his grant from a person who had no title at all to convey".

I agree, but such registration would give some notice to any person who desires to have the land that there has been some dealing with the land. Until the title of the one who granted it is challenged, any subsequent purchaser would be taking risk in not making the necessary enquiries. If subsequently the grantor's title is found to be proper, the subsequent purchaser could not claim to be a bona fide purchaser for value without notice. What has been said about registration may equally be said of a judgment of the court, for, if it is found that the one who claims to have sold a property for which a court had given judgment has no right to do so, whatever document is ordered to be made under that judgment would be declared invalid. That is why Hayfron J said that the question of the title of the plaintiff was fundamental to title to the house. If indeed the lease to the plaintiff is found to be valid, then notwithstanding the judgment in Suit No. 174/80 and the subsequent preparation and registration of the conveyance, Exhibit 14, Amadu Baba and his brother could not have had any title or right to give to the 2nd defendant albeit on the orders of the court.

In nullifying the title of the plaintiff to the house both the trial court and the Court of Appeal held inter alia that

i     Chief Seidu himself never signed or witnessed Exhibit A,

ii    the transaction between Chief Seidu and the plaintiff was not recited in Exhibit A.

iii   the plaintiff did not give valuable consideration

iv   the plaintiff never took possession of the property and

v    the plaintiff never collected or paid rents.

With regard to the assignment to the co-plaintiff, the courts said:

i     the person who gave him title had none and

ii    the sale to the 2nd defendant was first in time.

The Courts then, to give support to this condemnation of the plaintiff and co-plaintiff’s title relied extensively on inconsistencies in the proceedings and evidence adduced by the plaintiff and co-plaintiff to the extent that, the trial court found answers given by the plaintiff in cross-examination to be evasive; she was said to be an unreliable witness!

But in cases such as the instant one, technicalities and minor inconsistencies must give way to achieving justice in the case. In whatever way one looks at the evidence, there was a question of law on the face of the record to be determined. The plaintiff’s story was simple. She entered into a lease with the land owner and because Chief Seidu had a house on the land it was decided that he Chief Seidu should be compensated. She did; at least she made efforts which were frustrated initially by Chief Seidu himself but in the long run she honoured the promise to the estate.

We are not told what specific right or title Chief Seidu had in the land. None of his relations including his wife and children could tell the court and as none was in court to testify, we can only rely on what the plaintiff told the court Chief Seidu had told her and which statement is supported by the conduct of Chief Seidu himself, no one has denied this statement.  There was inference from the totality of the evidence that Chief Seidu and his people had settled on the land with the permission of the La Stool Manche and that they were mere caretakers for the Stool. Thus, there was evidence that the land was Stool Land. That is why Chief  Seidu in his wisdom took the plaintiff to see the owners of the land. Whatever lease was granted to the plaintiff, Chief Seidu was aware; he did not object to it. In my opinion there was no need for him to sign or witness the leased-document, though that would have been desirable. The agreement to pay him something for the house he had on the land (plot) was only to compensate him. It was not a condition for the sale of the land' as he could not have imposed such a conclusion, he was not the owner of the land and could therefore not have disposed of it. So that if he was not paid or given whatever he had asked for, he could only sue to recover the amount or whatever he was promised; he could not set aside the lease. That is why I believe the children tried to return the 2nd defendant's money to him.

The assertion by the plaintiff that the land is Stool land is very significant.  Unfortunately neither the trial Court nor the Court of Appeal considered this as being material or relevant to the determination of that issue.

Section 8 of the Administration of Lands Act, 1962 (Act 123) states,

“8(1) Any disposal of any land which involves the payment of any valuable consideration or which would, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, and which is made,

(a) by a Stool

(b) by any person who by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in for a nominal consideration,

shall be subject to the concurrence of the Minister and shall be of no effect unless such concurrence is granted.

(2) XXXXXXXX

(3) Nothing in this section shall confer upon any person any right to dispose of any land which such person is not entitled to exercise by virtue of customary law or any other law for the time being in force

(4)  XXXXXX

(5) It shall not be lawful without the concurrence of the Minister to make any transaction affecting land which is a Stool property as defined in Section 52 of the Chieftaincy Act, 1961 (Act 81)

(6) Any transaction entered into in contravention of the provisions of this section shall be void".

The Chieftaincy Act, 1961 (Act 81) was repealed by the Chieftaincy Act, 1971 (Act 370) but the definition of 'Stool Property' as contained in Act 81 has been retained by section 36 of the Chieftaincy Act 370, which provides,

"36 Stool property consists of the following -

(a) the Stool itself and all the insignia of the Stool;

(b) such other movable property and land as was handed over or declared as Stool property to the Chief on his installation;

(b) movable property and land acquired after the installation of the Chief which, under customary law, has become Stool Property …”.

That the land in dispute is Stool property has not been disputed. As stated earlier in my judgment, it is not known what right the late Chief Seidu had in the land. Whatever interest the late Chief Seidu had in the land either under customary law or any other law, he could not have disposed of the land – vide section 8(3) of Act 123.

Exhibit 'A' the lease to the plaintiff is dated 15th March, 1976.  It was executed, stamped and registered as No. 4446/78 with the Land Registry. It was duly concurred in by the Chairman of the Lands Commission for the Minister on 7th July, 1977. That document, as from that date became a valid document and was notice to all who want to deal with the land. The land (including the house on it) became vested in the plaintiff for a period of 50 years. The maxim is, “quicquid plantatur solo, solo cedit" (i.e. whatever is affixed to the soil belongs to the soil).  Therefore, the person who owns the land or in whom title is vested, owns whatever is on the land except that where one has built on the land with knowledge of the rightful owner, who stands by, and suffers the erection to proceed, without giving notice of his own claim, would be compelled by a court of equity in a suit brought for recovery of the land to make due compensation for such improvement. See also the maxim “edificatum solo, solo cedit" — that which is built on the land goes with the land. Thus everything put on the soil, including a house, passes with the soil! So that even if the La Stool had not disposed of the land with the knowledge of the late Chief Seidu, the latter would have been entitled only to compensation for the house he had put up on the land with their knowledge or tacit consent. In the instant case, it was Chief Seidu himself who had taken the plaintiff to the La Manche (the Stool) to dispose of the land. The mere fact that Chief Seidu did not sign or witness the document, or there was no recital covering his house on the land would not, and could not render the grant void ab initio or for that matter void or voidable in any way.  It was therefore wrong for the trial court and the Court of Appeal to nullify the plaintiff’s legally sanctioned grant. Assuming that the 2nd defendant purchased the house, would he be acquiring the land as well without the Stool's involvement, the land being a Stool Land? In the first place the land did not belong to Chief  Seidu or his estate.  Secondly since the purchase was for the house, the land could not have passed with the sale. Such a situation would definitely have made nonsense the maxims referred to above; it is the thing on the land which goes with it and not the land which goes with the thing, unless it is specifically expressed to be so. Did the 2nd defendant buy a house or the land or the house and the land?

It follows then that with the disposal of the land to the plaintiff by the Stool and the agreement by the late Chief Seidu to receive some compensation for his house, there was no longer any interest of the late Chief Seidu, save the promised compensation, in the land; apart from a claim to his compensation, the late Chief Seidu could not have passed any interest in the land to his estate. Whoever sold the house, or for that matter, the land and the house, to the 2nd defendant had no interest personal or inheritable, to give him. The maxims, “nemo dat qui non habet” (no one gives who possess not) and he gives nothing who has nothing (Nihil dat qui non habet) apply.

The estate of the late Chief Seidu was entitled to the agreed compensation of the late compensation from the plaintiff and they could only sue for that. One may even ask what was the agreed compensation? The evidence is that Chief Seidu himself had asked for a car. When the car arrived, he refused to take it and said it was not 'so big'; he asked for a bigger car (caravan) which the plaintiff was prepared to give and placed an order for it. When the caravan arrived, the widow and children of late Chief Seidu in the presence of Chief Mukaila preferred money instead; it was then that they asked for ¢65,000.00 which the co-plaintiff agreed to pay. Which of these was supposed to be the condition for the grant to the plaintiff? I find that the agreement to compensate the late Chief Seidu for the house was not a condition for the grant of the lease to the plaintiff.

The whole action was grounded in equity. It involved the application of equitable principles of justice. Looking at the conduct of the estate of the late chief Seidu, it is clear that the widow and children had not dealt fairly with the co-plaintiff; their conduct borders on fraud. With regard to the conduct of the 2nd defendant, it could be said that he had not acted prudently. He never made a search to see in whom title in the land was. Since registration is notice to all, if he had made a search he would have realised that the land was vested in the Stool which had granted a lease to the plaintiff. He never was in possession of the house. The property was a leasehold, the receipt given him could only have given him a term of years with payment of rent. Is that what he bought? While the courts were critical of the plaintiffs conduct in not paying rent, they never spoke of rent payable by the 2nd defendant and for what term the grant should be. It is true that he (the 2nd defendant) paid ¢42,000.00 for the house, but the lease which the trial court ordered to be prepared for him in Suit No. 174/80 relied on the alleged unlawful grant to the plaintiff.  Was that what the 2nd defendant bargained for? What rent was he to pay under the lease and to whom?

In his action against the co-plaintiff and the children of the late Chief Seidu, the 2nd defendant asked for the return of his money plus interest as an alternative remedy.  He called evidence to show that the children of the late Chief Seidu had agreed to refund the money but he had refused.  Under these circumstances, was it not fair that the court should order the refund of 2nd  defendant's money plus interest if reasonable. As it is the court gave him title or terms he himself had not agreed on. I am sure that if His Lordships had critically examined the evidence, they would have realised that without the Stool no grant could have been made, for, at that stage, the only person with any title in the land to dispose of was the plaintiff. The plaintiff validly disposed of her interest in the land to the co-plaintiff whose grant was subsequently concurred in by the authority whose responsibility it was to do so of all Stool lands, after it had been stamped and duly registered.

The purported grant to the co-plaintiff by the children and widow of the late Chief Seidu was of no consequence since the ownership of the land was not vested in them; the plaintiff had the legal estate.

With regard to the action by the co-plaintiff against the 2nd defendant and the children of the late Chief Seidu, it is obvious that the co-plaintiff had taken the action out of frustration. The 2nd defendant having taken action against him and the children of the late Chief Seidu and judgment having been given against him without service on him and, his motion to set aside not coming up, I think he had resorted to that action against the children and the 2nd defendant.  In my considered opinion, I think that action was unnecessary since those who had purportedly sold the house to him or the 2nd defendant had no interest in the land to sell. As was observed by Hayfron J in the Co-plaintiff’s action (Suit No. 626/82), the title of the plaintiff was fundamental to the whole action.

On the facts and in law, I find that the plaintiff had superior title to the land and that the co-plaintiff having been assigned that title in accordance with law, no matter at what time, he had a better and enforceable title than the 2nd defendant or any other person.

I find also that since the plaintiff had the superior title which he had assigned to the co-plaintiff, she had a duty to defend whatever challenge is made to the title she had disposed of to the co-plaintiff.

I would in conclusion allow the appeal and set aside the judgments of both the Court of Appeal and the High Court. In my respectful view, this was not a case of concurrent findings of fact by the lower courts. Such findings if any could be set aside, if they were not supported by law.  The issue here was mixed facts and law. It would appear that the lower courts did not advert their minds to the position of the law.

Counsel for the appellant had urged the court to exercise its equitable jurisdiction of rectification of Exhibit A. In my opinion this would not apply as the inclusion of the late Chief Seidu's name on the documents, the signing by him of the documents or the recital of whatever interest he had in the house would not change the legal position; these matters were unnecessary to give effect to Exhibit A.  However, in my opinion if such rectification were necessary, the court could order so in view of the circumstances in the case.

(JUSTICE  A.K.B. AMPIAH)

JUSTICE OF THE SUPREME COURT

KPEGAH, J.S.C.:

I agree with the conclusion that the appeal be dismissed.

(JUSTICE F.Y. KPEGAH)

JUSTICE OF THE SUPREME COURT

ADJABENG, J.S.C.:

The plaintiff-appellant sued the defendants in the High Court, Accra, on the 13th day of April, 1981, in respect of a piece of land with building thereon situate at Madina, a suburb of Accra.    It was the property of one Chief Seidu who at the time was said to be the headman and also co-founder of Madina. Later in the course of the action, the co-plaintiff-appellant applied and was joined in the suit as co-plaintiff. They claimed against the defendants the following:

“(a)  A declaration that she (the plaintiff) is the owner of all that piece and parcel of land situate at Madina and known as H/No. B/MDN/14 and fully described in the attached plan and Deed registered as No. 4446/1978.

(b)   That the sale of the said property by the 1st Defendant to the 2nd defendant in June 1979 is null and void.

(c)   General Damages."

The action was fought against the 2nd defendant only as the 1st defendant neither entered appearance to the Writ nor filed a Statement of Defence.

The plaintiff based her case on a lease dated 15th March, 1976, and made between her as lessee and the La Mantse as lessor. This lease was later registered as No. 4446/1978. It is interesting to note here that even though the plaintiff/appellant said in her evidence that the lease was executed after an oral agreement had been concluded between her and Chief Seidu, the owner in possession of the property in dispute, in respect of the property, nothing was said about this in the lease, nor did Chief Seidu sign this lease even as a witness.  There was also no document on the said transaction between the plaintiff and Chief Seidu. The consideration for this oral agreement was said to be a Peugeot saloon car. The plaintiff said in her evidence that she ordered the car and that Chief Seidu took delivery of it in his own name. But that Chief Seidu said the saloon car was too small for him and that he rather wanted a Peugeot caravan. Whereupon she, the plaintiff,

“Sold the saloon car and ordered 504 Peugeot caravan for him.”

According to the plaintiff, three months after making the order for the caravan, Chief Seidu died. He died on 5th August, 1977. Quite some time later, Chief Seidu's family, including his widow and adult children, according to the plaintiff, caused the cancellation of the order for the car as they said they wanted cash instead of the car. Accordingly, she got ¢65,000.00 from the co-plaintiff and paid it to Chief Seidu's family and then sold the property to the co-plaintiff.

It is interesting to note that the receipt which was issued by Chief Seidu's family in respect of the ¢65,000.00 which the plaintiff claimed she paid to the said family does not show that this money was paid by the plaintiff. It rather shows that the money was paid by the co-plaintiff as consideration for the direct sale to him by the Seidu family of the property in dispute. This receipt, received in evidence and marked exhibit "B", is dated 21st December, 1979. Again, the plaintiff said in her evidence-in-chief that she took the co-plaintiff to the La Mantse a week after the issuing of exhibit "B", dated 21st December, 1979, for the making of exhibit "I" by which the plaintiff purported to assign the disputed property to the co-plaintiff. Yet Exhibit "I" which, according to the evidence, was preceded by and based on exhibit"B", the receipt for the payment of the ¢65,000 is rather dated  11th September, 1979. That is to say the assignment which was made after the issue of the receipt rather bears an earlier date.

Contradictions such as the ones mentioned above and many others in the record, including the poor performance of the plaintiff in the witness-box, made the trial judge to find the case of the plaintiff and the co-plaintiff unreliable and therefore unproven.  The trial court accordingly dismissed the action of the plaintiff and co-plaintiff-appellants. They appealed to the Court of Appeal.

In the Court of Appeal, even though the appellants had filed therein as additional grounds of appeal all the additional grounds of appeal filed and canvassed in this Court, their counsel did not argue all of them in that Court. Counsel argued only two of the grounds and more or less abandoned the rest. Yet he repeats here all the grounds he had abandoned in the Court of Appeal. I must say, however, that the judgment delivered in the Court of Appeal, dismissing the ppeal, has fully dealt with all the relevant matters raised in the Court of Appeal and in this Court.

It seems to me that the only new twist that the appellants' counsel tries to give in this Court to the so-called admissions by the respondent in paragraph 2 of his original and amended Statement of Defence is that as a result of those admissions and the evidence of the plaintiff, the plaintiff-appellant is entitled to

“an equity of rectification of Exhibit “A…”

At page 8 of the appellants’ statement of case, counsel submits as follows:—

“Consequently the plaintiff has an equity of rectification of Exhibit "A" so as to reflect the true terms of the sale from Chief Seidu to herself (with the Stool witnessing the deed as a conveyancing device to preserve the Stool's rights to customary services) ... It has been held that negligence on the part of either vendor or purchaser does not affect the right to one for rectification: Wilson vrs. Thomas (1958). IWLR 422, (1958) I ALL ER 871. And above all the Court can at one and the same time not only rectify but also specifically enforce the agreement as rectified: USA vrs. Motor Trucks Ltd. (1924) AC 196 HL at 201 Clarke vrs. Barnes (1929) 2Ch.368. Consequently the present misleading appearance of Exhibit "A" ought not to affect adversely the recognition by both sides that Exhibit "A", however mistaken its form and contents was meant to evidence the sale by Chief Seidu to plaintiff”.

In his answer to the request for rectification, counsel for the respondent submits at page 5, paragraph D4, of the respondent's statement of case, as follows:

"The attempt to evoke the equitable remedy of rectification in paragraph 8 of the plaintiff and co-plaintiff’s statement of case must fail. Exhibit "A" as the instrument by which the plaintiff first and foremost asserts her title to the land and the building thereon suffered the fatal deficiency of not representing or reflecting the transaction by which, according to her own evidence she came to have title thereto. It is submitted that this is a fundamental and fatal deficiency and not merely an 'obvious oddity'. Such deficiency, it is submitted cannot be rectified.

The learned authors of Snell's Equity, 29th Edition at pages 627 to 633 set out the conditions to be satisfied to succeed in a claim for rectification. Two of these conditions are very relevant here, namely that there must be a mistake which if rectified as claimed, the instrument would carry out the agreement. The plaintiff’s evidence was to the effect that there was an agreement that she should give a caravan to Chief Seidu for the land and building. The caravan was not given to him before his death. The plaintiff said she refused to pay the amount of money that the beneficiaries of Chief Seidu's estate demanded and in Exhibit '4' she said she washed off her hands from the building.

It is submitted that in these circumstances Exhibit 'A' cannot be rectified to carry out the agreement between the parties to the transaction - the Plaintiff and chief Seidu. It was held in COUNTESS OF SELBOURNE VRS. EARL OF INCHIOIN (1784) cited at page 632 of Snell's Equity mentioned supra that to succeed in invoking the equitable remedy of rectification, the party who seeks it must establish his case by 'strong irrefragable evidence' which means 'something more than the highest degree of probability'. Green M.R. held in Crane vrs. Hegeman Harris Co. Inc. 1939 4 ALL E.R. 68 at 71 such evidence must establish the mistake with a 'high degree of conviction'. It is submitted that the record is devoid of evidence adequate to support the invocation of the remedy of rectification of Exhibit 'A' ’’.

It must be remarked that the belated recourse to the remedy of rectification by the plaintiff-appellant is a clear admission by her that Exhibit 'A' “tells a lie about itself” as Acquah, J.A. (as he then was), aptly put it in the Court of Appeal judgment.  I quote fully what the learned judge said on Exhibit ‘A’.  He said:

“The plaintiff’s root of title is Exhibit 'A'.  This Exhibit 'A' talks of a lease of land from the La Mantse, Nii Anyetei Kwakwranya, to the plaintiff for 50 years at a yearly rent of ¢36,000.00. Exhibit 'A' does not mention the house in dispute neither does it mention chief Seidu as a party. In her evidence the plaintiff talks of buying the house from Chief Seidu on the consideration that she orders a Peugeot car for him. This evidence is not recited in Exhibit 'A'. There is also no evidence from the plaintiff that she paid the rent mentioned in Exhibit "A". Exhibit 'A' therefore tells a lie about itself, while the plaintiff’s oral evidence on her arrangement with Chief Seidu is not borne out by the contents of Exhibit 'A' nor any document".

Coming back to the issue as to whether the plaintiff can be allowed to avail herself of the equitable remedy of rectification in respect of her Exhibit 'A', it must be said at once that the 2nd  defendant-respondent never admitted that there was a binding oral agreement between the plaintiff and the late Chief Seidu. What he said was that as the Peugeot caravan could not be procured by the plaintiff, the agreement fell through.

It is the contention of the appellants' counsel in his submissions quoted above that the plaintiff has an equity of rectification of Exhibit 'A' so as to reflect the true terms of the sale from Chief Seidu to the plaintiff. The sale mentioned here is the oral agreement the plaintiff talked about in her evidence and which was neither referred to in Exhibit 'A' nor covered by any document. This oral agreement was supposedly concluded between the plaintiff and Chief Seidu by which the plaintiff bought the property in dispute in consideration of the plaintiff providing a Peugeot saloon car to Chief Seidu. That car, according the plaintiff, was delivered to Chief Seidu who said it was not big enough and so he demanded in its place a Peugeot caravan. The plaintiff therefore took back the car, sold it, and placed an order for a caravan which never arrived before Chief Seidu died.

It is important to decide, first, whether that oral agreement was valid and binding on chief Seidu during his life time and, after his death, on his personal representatives or successors. A resolution of this issue will help in reaching a decision as to whether to proceed to tackle the issue of rectification. This is so because if there was no such valid agreement or sale as claimed by the appellants' counsel, there will be no need to go further to determine the issue of rectification. The appellants' counsel, stating the plaintiff-appellant's case in the statement of case, at page 5, paragraph 6, states as follows:

“6.  The gist of the case for the plaintiff and co-plaintiff in this appeal is shortly that

(a) the plaintiff fulfilled her part of the bargain with Chief Seidu by importing at her own expense on his request and tendering the Saloon car to him. Thereupon the agreement for sale of the property became specifically enforceable at plaintiff’s instance".

It is also the contention of the counsel that as the plaintiff’s evidence shows that she did buy the requested Peugeot 504 saloon car and tendered it to Chief Seidu, consideration thereby did move from the plaintiff as promisee to Chief Seidu who accepted the car.  Consequently, argues counsel for the appellants, the plaintiff-appellant became entitled to specific performance by Chief Seidu or his successors of the agreement for the sale of the property. Counsel went further to submit that Chief Seidu used the saloon car from March 1977 until April. That the transaction concerning the ordering of the caravan was “a classic gentleman's agreement binding only in honour" and that the plaintiff could never be required to give double consideration  for one and the same promise of the property.

Even a casual study of the plaintiff’s evidence will show clearly that what the plaintiff said is contrary to what is asserted above. In the first place, it is difficult to glean from the evidence that Chief Seidu used the Peugeot 504 saloon car from March to April, 1977. What the plaintiff said in her evidence-in-chief on the matter is as follows:—

“Chief Seidu asked me to order a Peugeot 504 for him in view of the purchase price of the house. I ordered a 504 Peugeot car for him. It took about a year when I got the car for him. He took delivery of the car in his own name. When it came he said it was not so big for him for he rather wanted a caravan. I sold the saloon car and ordered 504 Peugeot caravan for him. Three months after I made the order Chief Seidu got ill and died".

Then only thing the plaintiff said about "March" was when under cross-examination she said:-

"the car arrived about March, 1977".

Secondly, and more importantly, the plaintiff in her evidence said plainly that the agreement with Chief Seidu "was not completed". The following cross-examination of the plaintiff will illustrate what I am saying.

"Q.  You were not collecting rent from the house because you had not paid the purchase money.

A.    That is so.

Q.   At that time it was Seidu's family who were collecting the rent and were exercising control over the house.

A.    Yes. ...

Q.    You know the Police were paying the rents to the Seidu family.

A.    Yes.

Q.    Will the Seidu family be right to sell the house to the Co-plaintiff

A.    Yes.  I now say No.

Q.    Were the Seidu family collecting the rents for you.

A.    They were collecting for me.

Q.    They paid any rents to you.

A.    They paid to me.

Q.    How much did they pay to you.

A.    I  cannot say.

Q.    They never paid any rent to you.

A.    That is so as the agreement was not completed.

Q.    The Seidu family did not owe you any rent.

A.    That is so". (emphasis mine)..

It is quite clear from the evidence of the plaintiff-appellant in the cross-examination quoted above that the plaintiff’s said oral agreement with the late Chief Seidu had not been concluded as consideration therefor had not yet been provided as the plaintiff herself reluctantly admitted above. The plaintiff’s evidence-in-chief shows that when Chief Seidu said the saloon car was not big enough for him and that he wanted a caravan, the plaintiff sold the car. There is nothing to show that she sold it for Chief Seidu. It is clear that she took the car back and promised to procure a caravan for him. The fact that no effort was made by the plaintiff during the lifetime of Chief Seidu, from 1976 to August, 1977, when Chief Seidu died, and after his death, to take possession of the disputed property confirms the plaintiff’s evidence that “the agreement was not completed". Counsel's contention, therefore, that there was a valid agreement for the sale of the property on the tendering of the saloon car cannot hold.

The evidence of the plaintiff in the cross-examination quoted above also shows how unreliable a witness the plaintiff was. She would not like to tell the truth to the Court until pressed to the wall. It is not surprising, therefore, that the trial court considered her an unreliable witness.  The Court said of her as follows:-

“The plaintiff appears to me very evasive in her answering questions. I find her an unreliable witness".

The Court accordingly did not accept her story and held that "the arrangement between plaintiff and Chief Seidu with regard to the transaction of Peugeot car or caravan fell through".

Having regard to the evidence on record as pointed out above, I agree with the trial Court that there was no valid agreement between the plaintiff and Chief Seidu in respect of the disputed property as claimed by the plaintiff. Accordingly, it is my view that the equitable remedy of rectification cannot avail the plaintiff. If, therefore, the plaintiff did not have title to the land in dispute, she could not validly have sold it to the co-plaintiff.

It must be said, however, that even if the plaintiff’s story were to be accepted, it could only mean that that oral agreement with chief Seidu was concluded only when the ¢65,000.00 was allegedly paid by the plaintiff to the Seidu family. That was on or about the 21st of December, 1979, according to the receipt, Exhibit 'B', issued on the payment, albeit in the name of the co-plaintiff. Unfortunately, before that date, the authors of that receipt, the Seidu family, had validly sold as per exhibit '13', dated 4th July, 1979, the property to the 2nd Defendant-Respondent. He, after unsuccessfully warning the co-plaintiff not to buy the property because it had already been sold to him, made sure that he took the co-plaintiff to Court, and took judgment against him. That judgement was confirmed on appeal.

Having carefully considered all the matters in this case, I am satisfied that the trial court was right in dismissing the action of the plaintiff and co-plaintiff-appellants. I am also satisfied with the confirmation of the judgement by the Court of Appeal. Indeed, the Court of Appeal, in its comprehensive and lucid judgment, per Acquah, J.A. (as he then was), dealt with all the relevant issues raised in this case and I wholly endorse all that they said. The judgment cannot be faulted. I am of the view, therefore, that this appeal must fail and the Court of Appeal decision affirmed.

(JUSTICE  E.D.K. ADJABENG)

JUSTICE OF THE SUPREME COURT

ATUGUBA, J.S.C.:

The issues in this case were primarily factual and were resolved by concurrent findings of fact by two Lower Courts and it is well known that such findings can be upset on further appeal only for compelling reasons.

This heavy onus has not been discharged by the Appellant. I would therefore also dismiss the Appeal.

(JUSTICE W.A. ATUGUBA)

JUSTICE OF THE SUPREME COURT

AKUFFO, J.S.C.:

I also agree that the appeal be dismissed.

(JUSTICE SOPHIA  A. B. AKUFFO (MS.)

JUSTICE OF THE SUPREME COURT

COUNSEL

Mr. Adumua-Bossman (with him Neequaye) for the Plaintiffs/Appellants

Mr. Somua-Asamoah (led by Okai) for the Defendant/Respondents

Mfa*