|
ANINAKWA, J.S.C:
This is an appeal from the
judgment of the Court of Appeal
dated 7th June, 2001.
On 4th October, 1993 the
Plaintiff/Respondent/Appellant,
whom we will hereafter refer to
as "the plaintiff" filed this
action at the High Court, Kumasi
claiming against the Defendant!
Appellant/Respondent (hereafter
referred to as the Defendant)
the following reliefs: 1
"1. A Declaration that by
a contract in writing dated and
executed by the defendant and
the Plaintiff in the presence of
a common witness on 6th July,
1987, all the rights powers
privileges and interests of the
defendant in property plot No.
30 Block "K" Kaasi, Kumasi
became vested in the plaintiff.
2. A declaration that it
is wrongful for the defendant to
fail refuse or neglect to
perfect the plaintiff's title to
the said property, plot No. 30,
Block "K" Kaasi, Kumasi despite
repeated demands by the
plaintiff on the defendant so to
do.
3. General damages for
financial loss and inconvenience
suffered by the plaintiff as a
result of the defendant's said
wrongful failure, refusal or
neglect to perfect the
plaintiff's title to the said
property plot No. 30 Block "K"
Kaasi, Kumasi.
4. An order of specific
performance compelling the
defendant to do all things
necessary for the perfection of
the plaintiff's title to the
said property Plot No. 30 Block
"K" Kaasi, Kumasi.
5. Any other order or
reliefs, as this Honorable Court
would seem fit to make or give
in the interest of equity and
justice in this suit”.
The Defendant, by her statement
of Defence denied the existence
of the written agreement.
By paragraphs 3 and 4 of the
Statement of Defence she set up
on oral agreement made in 1986,
and went on to claim by way of
Counter-claim thus:
"( a) A declaration that the
contract between the plaintiff
and defendant for the sale of
the premises H/No. 30 Block "K"
Kaasi, Kumasi has lapsed or
fallen through by reason of the
failure on the part of the
plaintiff to fulfill his part of
the agreement.
(b) A declaration that the
alleged deed of assignment
executed by the plaintiff and
defendant and dated the 6th day
of July, 1987 was procured in
fraud and same is null and void.
(c)
An order for the recovery of
possession of portions or part
of the said
premises House Number K 30,
Kaase Kumasi." The plaintiff in
his reply denied the existence
of an oral agreement as alleged
by the defendant.
The trial Court after a full
trial made the following
findings of fact:
(i) The deed of
assignment on which the
plaintiff relied for his
title was not executed by the
Defendant.
(ii) The
plaintiff made ˘2.9 Million as
part payment of the purchase
price of ˘4 Million as contended
by the defendant, and not
˘3.5million as full payment as
contended by the plaintiff.
(iii) The
plaintiff has moved into
occupation of the property.
The trial Court also held that:
(a)
Time was not of the essence of
the contract.
(b) The Plaintiff was
entitled to specific
performance.
. In the result the trial Court
gave judgment for the Plaintiff
for his claims 2 and 4 and for
the Defendant on her claim
(b).The trial Court ordered the
Defendant to prepare within
three months a deed of
assignment for the Plaintiff to
better his title to the
property.
The Defendant being dissatisfied
with the judgment and order of
the trial Court appealed to the
Court of Appeal.
On 7th June 2001, the
Court of Appeal by a unanimous
decision allowed the Defendant's
appeal and entered judgment for
her on all the relief's she
sought.
This Court is completely in
agreement with the conclusions
reached by the Court of Appeal
as well as the reasons, which
led them to those conclusions.
There will be no need to repeat
what they said.
We will, however, contend
ourselves with a few words on
the questions of specific
performance and time as an
essence of the contract.
In this action the Plaintiff
relied on a written assignment
in 1987 for his case. The
Defendant denied that
assignment. The defendant did
set up an oral agreement in
1986.
The plaintiff denied this oral
agreement in his Reply.
In these circumstances it will
be of some help to call to mind
what Acquah JSC (as he
then was) said in the case of -
BARCLA YS BANK GHANA LTD.
VRS. SAKARI (1996-97) SCGLR
639 at page 650 thus;
"The importance of pleadings in
circumscribing the scope and
nature of the party's case
cannot be under-estimated. The
function of pleadings is to give
fair notice of the case, which
has to be met and to define the
issues on which the court will
have to adjudicate in order to
determine the matters in dispute
between the parties. For this
reason, a party is not permitted
to set up a case inconsistent
with his pleadings. Neither is
the Court competent to decide
the claims of the parties in a
manner inconsistent with what
the parties themselves have put
forward in their pleadings………”
Acquah JSC
(as he then was) supported his
said statement with a reference
with approval to a quotation by
the Supreme Court in the case of
Harmmond vrs. Odoi 1982-83
GLR 1215 act 1234, from an
article by Master I.H. Jacobs
titled "The present
Importance of pleadings" thus;
"The Court itself is as much
bound by the pleadings of the
parties as they are themselves.
It is no part of the duty or
function of the Court to enter
upon any inquiry into the case
before it other than to
adjudicate upon the specific
matters in dispute, which the
parties themselves have raised
by their pleadings. Indeed the
Court would be acting contrary
to its own character and nature
if it were to pronounce upon any
claim or defence not made by the
parties. To do so would be to
enter the realms of
speculation…….”
For specific performance there
must exist a contract which
should be carried out to the
letter. In the instant case, the
trial Court found that the deed
of assignment pleaded was not
signed by the Defendant. The
Court went on to declare that
assignment null and void. In Law
the assignment did not exist.
The oral agreement pleaded by
the Defendant was denied by the
plaintiff in his Reply.
The plaintiff did not put
forward any other agreement. The
question then is this:- What was
the contract which the plaintiff
says should be performed for
him? The clear and only answer
is that there is no contract
whatsoever.
The trial Court's finding that
Exhibit "A" i.e. the assignment
relied on by the plaintiff, had
been procured in fraud and,
therefore null and void, has
exposed the plaintiff and his
witness, i.e. the Lawyer who
allegedly prepared the said
assignment as rogues and or
crooks, - Courtesy-Dr. Date -
Baah JSC in the yet to be
reported Supreme Court case of
SIMON BOBI NTRI VRS.
JOSEPH WILLIAMS. CA 11 2001
delivered 22 06 2005.
Specific performance is a claim
in equity, and the plaintiff's
lack of clean hands renders him
undeserving of the said
equitable relief.
The trial Court ought not to
have speculated and should have
dismissed this claim of the
plaintiff.
Now as to time for payment being
or not being of the essence of
the agreement, the unchallenged
evidence was that the
Defendant's said oral agreement
contained a term to the effect
that the whole purchase price
should be paid within three
months of the making of the
agreement. This term was put in
to minimize the effect of
inflation.
A court is entitled to take
notice of what is known by the
well-informed persons in the
society. At the time the oral
agreement was made it was well
known that inflation had started
running at a high rate. See the
case of FOFIE VRS. ZANYO
(1992) 2GLR 475: where the
Court took into account the high
rate of inflations in the
country .
Six (6) years after the making
of the oral agreement the
plaintiff was saying he was not
prepared to pay anything beyond
the ˘3.5 million he said he had
paid. To accept this will mean
that payment under the contract
may be made at an infinite time
and it will be all right as
payment was then not completed.
To hold that in such a situation
the payment will comply with
having been made "within 3
months" will amount to ignoring
that term in the agreement. A
strange result will then be
achieved.
IN KOGLEX VRS. KATEFIELD (MRS.)
(1998 - 99) SCGLR 451 at p. 459,
Hayfron - Benjamin, JSC
stated thus; - "And even if no
time was agreed upon, the nature
of the contract would imply
reasonable time into it since
the contract could not be
expected to run "ad infinitum".
" To state that time is not of
essence will not make good
sense. We accept that in
this case time was of the
essence of the oral agreement
put forward by the defendant.
This appeal is also against the
costs awarded by the Court of
Appeal. The appellant failed to
argue it in his Statement of
case. It has not been shown that
the Court of Appeal exercised
its discretion wrongly. In the
circumstances this appeal is
dismissed.
R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Ahenkorah for Appellant.
Mr. Somuah-Asamoah for
Respondent.
gso*
VRS.
AKUA AKOMAH
…..
DEFENDANT/APPELLANT/RESPONDENT
ANINAKWA, J.S.C:
This is an appeal from the
judgment of the Court of Appeal
dated 7th June, 2001.
On 4th October, 1993 the
Plaintiff/Respondent/Appellant,
whom we will hereafter refer to
as "the plaintiff" filed this
action at the High Court, Kumasi
claiming against the Defendant!
Appellant/Respondent (hereafter
referred to as the Defendant)
the following reliefs: 1
"1. A Declaration that by
a contract in writing dated and
executed by the defendant and
the Plaintiff in the presence of
a common witness on 6th July,
1987, all the rights powers
privileges and interests of the
defendant in property plot No.
30 Block "K" Kaasi, Kumasi
became vested in the plaintiff.
2. A declaration that it
is wrongful for the defendant to
fail refuse or neglect to
perfect the plaintiff's title to
the said property, plot No. 30,
Block "K" Kaasi, Kumasi despite
repeated demands by the
plaintiff on the defendant so to
do.
3. General damages for
financial loss and inconvenience
suffered by the plaintiff as a
result of the defendant's said
wrongful failure, refusal or
neglect to perfect the
plaintiff's title to the said
property plot No. 30 Block "K"
Kaasi, Kumasi.
4. An order of specific
performance compelling the
defendant to do all things
necessary for the perfection of
the plaintiff's title to the
said property Plot No. 30 Block
"K" Kaasi, Kumasi.
5. Any other order or
reliefs, as this Honorable Court
would seem fit to make or give
in the interest of equity and
justice in this suit”.
The Defendant, by her statement
of Defence denied the existence
of the written agreement.
By paragraphs 3 and 4 of the
Statement of Defence she set up
on oral agreement made in 1986,
and went on to claim by way of
Counter-claim thus:
"( a) A declaration that the
contract between the plaintiff
and defendant for the sale of
the premises H/No. 30 Block "K"
Kaasi, Kumasi has lapsed or
fallen through by reason of the
failure on the part of the
plaintiff to fulfill his part of
the agreement.
(b) A declaration that the
alleged deed of assignment
executed by the plaintiff and
defendant and dated the 6th day
of July, 1987 was procured in
fraud and same is null and void.
(c)
An order for the recovery of
possession of portions or part
of the said
premises House Number K 30,
Kaase Kumasi." The plaintiff in
his reply denied the existence
of an oral agreement as alleged
by the defendant.
The trial Court after a full
trial made the following
findings of fact:
(i) The deed of
assignment on which the
plaintiff relied for his
title was not executed by the
Defendant.
(ii) The
plaintiff made ˘2.9 Million as
part payment of the purchase
price of ˘4 Million as contended
by the defendant, and not
˘3.5million as full payment as
contended by the plaintiff.
(iii) The
plaintiff has moved into
occupation of the property.
The trial Court also held that:
(a)
Time was not of the essence of
the contract.
(b) The Plaintiff was
entitled to specific
performance.
. In the result the trial Court
gave judgment for the Plaintiff
for his claims 2 and 4 and for
the Defendant on her claim
(b).The trial Court ordered the
Defendant to prepare within
three months a deed of
assignment for the Plaintiff to
better his title to the
property.
The Defendant being dissatisfied
with the judgment and order of
the trial Court appealed to the
Court of Appeal.
On 7th June 2001, the
Court of Appeal by a unanimous
decision allowed the Defendant's
appeal and entered judgment for
her on all the relief's she
sought.
This Court is completely in
agreement with the conclusions
reached by the Court of Appeal
as well as the reasons, which
led them to those conclusions.
There will be no need to repeat
what they said.
We will, however, contend
ourselves with a few words on
the questions of specific
performance and time as an
essence of the contract.
In this action the Plaintiff
relied on a written assignment
in 1987 for his case. The
Defendant denied that
assignment. The defendant did
set up an oral agreement in
1986.
The plaintiff denied this oral
agreement in his Reply.
In these circumstances it will
be of some help to call to mind
what Acquah JSC (as he
then was) said in the case of -
BARCLA YS BANK GHANA LTD.
VRS. SAKARI (1996-97) SCGLR
639 at page 650 thus;
"The importance of pleadings in
circumscribing the scope and
nature of the party's case
cannot be under-estimated. The
function of pleadings is to give
fair notice of the case, which
has to be met and to define the
issues on which the court will
have to adjudicate in order to
determine the matters in dispute
between the parties. For this
reason, a party is not permitted
to set up a case inconsistent
with his pleadings. Neither is
the Court competent to decide
the claims of the parties in a
manner inconsistent with what
the parties themselves have put
forward in their pleadings………”
Acquah JSC
(as he then was) supported his
said statement with a reference
with approval to a quotation by
the Supreme Court in the case of
Harmmond vrs. Odoi 1982-83
GLR 1215 act 1234, from an
article by Master I.H. Jacobs
titled "The present
Importance of pleadings" thus;
"The Court itself is as much
bound by the pleadings of the
parties as they are themselves.
It is no part of the duty or
function of the Court to enter
upon any inquiry into the case
before it other than to
adjudicate upon the specific
matters in dispute, which the
parties themselves have raised
by their pleadings. Indeed the
Court would be acting contrary
to its own character and nature
if it were to pronounce upon any
claim or defence not made by the
parties. To do so would be to
enter the realms of
speculation…….”
For specific performance there
must exist a contract which
should be carried out to the
letter. In the instant case, the
trial Court found that the deed
of assignment pleaded was not
signed by the Defendant. The
Court went on to declare that
assignment null and void. In Law
the assignment did not exist.
The oral agreement pleaded by
the Defendant was denied by the
plaintiff in his Reply.
The plaintiff did not put
forward any other agreement. The
question then is this:- What was
the contract which the plaintiff
says should be performed for
him? The clear and only answer
is that there is no contract
whatsoever.
The trial Court's finding that
Exhibit "A" i.e. the assignment
relied on by the plaintiff, had
been procured in fraud and,
therefore null and void, has
exposed the plaintiff and his
witness, i.e. the Lawyer who
allegedly prepared the said
assignment as rogues and or
crooks, - Courtesy-Dr. Date -
Baah JSC in the yet to be
reported Supreme Court case of
SIMON BOBI NTRI VRS.
JOSEPH WILLIAMS. CA 11 2001
delivered 22 06 2005.
Specific performance is a claim
in equity, and the plaintiff's
lack of clean hands renders him
undeserving of the said
equitable relief.
The trial Court ought not to
have speculated and should have
dismissed this claim of the
plaintiff.
Now as to time for payment being
or not being of the essence of
the agreement, the unchallenged
evidence was that the
Defendant's said oral agreement
contained a term to the effect
that the whole purchase price
should be paid within three
months of the making of the
agreement. This term was put in
to minimize the effect of
inflation.
A court is entitled to take
notice of what is known by the
well-informed persons in the
society. At the time the oral
agreement was made it was well
known that inflation had started
running at a high rate. See the
case of FOFIE VRS. ZANYO
(1992) 2GLR 475: where the
Court took into account the high
rate of inflations in the
country .
Six (6) years after the making
of the oral agreement the
plaintiff was saying he was not
prepared to pay anything beyond
the ˘3.5 million he said he had
paid. To accept this will mean
that payment under the contract
may be made at an infinite time
and it will be all right as
payment was then not completed.
To hold that in such a situation
the payment will comply with
having been made "within 3
months" will amount to ignoring
that term in the agreement. A
strange result will then be
achieved.
IN KOGLEX VRS. KATEFIELD (MRS.)
(1998 - 99) SCGLR 451 at p. 459,
Hayfron - Benjamin, JSC
stated thus; - "And even if no
time was agreed upon, the nature
of the contract would imply
reasonable time into it since
the contract could not be
expected to run "ad infinitum".
" To state that time is not of
essence will not make good
sense. We accept that in
this case time was of the
essence of the oral agreement
put forward by the defendant.
This appeal is also against the
costs awarded by the Court of
Appeal. The appellant failed to
argue it in his Statement of
case. It has not been shown that
the Court of Appeal exercised
its discretion wrongly. In the
circumstances this appeal is
dismissed.
R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Ahenkorah for Appellant.
Mr. Somuah-Asamoah for
Respondent.
gso*
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