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JUDGMENT
BENIN, J.A.:
The brief facts of this
case are as follows. The defendant is the owner of House
No. 30 Block K, Kaasi, Kumasi. The plaintiff claims to
have become the new owner thereof by purchase from the
defendant at a cost of ¢3.5 million. He says that
despite having paid the full purchase price and having
moved into occupation, the defendant is refusing to
perfect the title to the property for him. It was his
assertion that the sale transaction was evidenced in
writing executed by both parties, so he considers the
defendant's refusal to perfect the title a wrongful act.
Hence the reliefs endorsed on his writ, namely:
1. A declaration that
by a contract a writing dated and executed by the
defendant and the plaintiff in the presence of a common
witness on the 6th day of July 1987, all the rights,
powers, privileges and interest 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, 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 that is
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 Honourable Court would deem fit to make
or give in the interest of equity and justice in this
suit.
For her part the
defendant's case was that she agreed to sell the
property in question to the plaintiff at a price of ¢4
million to be paid within three months lest inflation
should whittle down the value of the money. That at the
request of the plaintiff she allowed him to give a room
in the house to his son. That the plaintiff made
payments totalling ¢2.9 million within the first three
months of the agreement in 1986 and that was all. The
plaintiff refused to pay the balance despite repeated
demands. So in 1992 she caused her Solicitor to write to
the plaintiff terminating the agreement. Thereafter she
refunded the plaintiff's money by cheque and re-sold the
house to another person. The plaintiff, however, refused
to take back the money paid. She averred that she never
executed any deed in respect of this property in favour
of the plaintiff so the document pleaded by the
plaintiff was fraudulently procured. She therefore
counterclaimed for these reliefs:
(a) A declaration that
the contract between plaintiff and defendant for the
sale of the premises H/No. K 30 Kaasi, Kumasi has lapsed
or fallen through by reason of the failure on the part
of the plaintiff to fulfil his part of the agreement.
(b) A declaration that
the alleged deed of assignment executed by the plaintiff
and defendant and dated the 6th 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 Kaasi-Kumasi now in
occupation by the plaintiff.
(d) Such further
order(s) as this Honourable Court may deem fit.
The following issues
were set down and agreed upon for trial:
i) Whether or not on
6th July 1987 the defendant and the plaintiff entered
into a written contract whereby the rights, powers,
privileges and interest of the defendant in the property
plot no. 30 Block K Kaasi, Kumasi became vested in the
plaintiff.
ii) Whether or not the
defendant by her conduct has failed, refused or
neglected to perfect the plaintiff's title to the said
property .....................
iii) Whether or not
the purported assignment/sale of the said property
........ by the defendant to Abena Darkowaah on 31st
October 1992 was void.
iv) Whether or not the
plaintiff is entitled as against the defendant to an
order of specific performance for the perfection of the
plaintiff's title to the said property ..............
v) Whether or not the
plaintiff is entitled to the reliefs he seeks by the
writ.
vi) Whether or not the
defendant is entitled to her counterclaim.
vii) Any other issue
raised by the pleadings.
The trial court made
these findings of fact:
i. The deed of
assignment, tendered as Exhibit A, 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
¢3.5 million as full payment as contended by the
plaintiff.
iii. The plaintiff
has moved into occupation of the property.
The court also held
that time was not of the essence of the contract, and
also that the plaintiff was entitled to specific
performance. Following these findings and holdings, the
trial court upheld Reliefs 2 & 4 endorsed on the writ as
well as the second relief of the counter-claim, though
the court carefully avoided the use of the word 'fraud'
to describe the execution of Exhibit A. Judgment was
accordingly entered for the plaintiff. The defendant
who was dissatisfied with the court's decision has
therefore appealed to this court on these grounds:
1. That the judgment
is woefully against the weight of evidence.
2. That the learned
High Court Judge erred in law when after finding that
Exhibit A was a forgery, she proceeded to decree
specific performance to the respondent.
A. Ground 1.
Two main arguments were
advanced in support, namely: lack of writing and time
for performance by the plaintiff. I shall take these
seriatim. The requirement for writing was made an issue
by the plaintiff himself. Indeed his entire case
revolved around what he said was the deed executed by
him and the defendant in the presence of Lawyer
Poku-Amanfo in the latter's office, in July 1987. The
trial Judge found as a fact that this document was not
executed by the defendant, despite the evidence by the
plaintiff and Lawyer Poku-Amanfo to the contrary. What
amazes me is the trial court's total failure to at least
comment on what appears to be the contrived and perjured
story of the plaintiff and Lawyer Poku-Amanfo in this
matter when they lied through their teeth that the
defendant had signed this document in their presence and
in the Lawyer's office when indeed she had not. Why did
they have to lie on such a critical issue as to due
execution of a deed of assignment? It was a serious
misconduct on the part of the Lawyer which is deprecated
in no uncertain terms. Was the resort to this apparent
collusion not suggestive that the plaintiff knew he had
a bad case for failing to pay for the house in full?
Nevertheless let us look at the merits of the case,
especially the effect, if any, that the lack of writing
has on this matter.
It was the plaintiff's
case that the agreement was in writing: he never relied
on an oral contract, the defendant did. So when the
attempt to establish the writing failed for fraud, the
plaintiff was left with no evidence to rely upon in
discharge of the evidential burden that rested on him,
since he could not rely on the weakness in the defence
case to establish a case for himself. The plaintiff
relied on this document to establish the purchase price,
the payment he has made and the change in ownership of
the property to him. So when the document failed he was
bereft of any evidence to prove these matters. So the
writing was a critical piece of material evidence for
the plaintiff. Section 1 of the Conveyancing Decree,
1973 (N.R.C.D 175) - hereinafter referred to as the
Decree - provides that:
'(1) A transfer of an
interest in land shall be by writing signed by the
person making the transfer or by his agent duly
authorised in writing, unless relieved against the need
for such a writing by the provisions of section 3.
(2) A transfer of an
interest in land made in a manner other than as provided
in this part shall confer no interest on the
transferee.'
By these provisions,
the plaintiff could not claim any interest in the
property following the failure of Exhibit A. But he is
not without a remedy so long as he can bring himself
within the provisos under section 3. However, Counsel
for the defendant was of the opinion that since the
plaintiff failed to prove the writing his claim should
have failed. He referred to the English Statute of
Frauds of 1677, which is similar to section 1 of the
Decree in its terms and language and has been superseded
by the Decree. Counsel explained, in reference to s. 4
of the Statute of Frauds, that the person to be charged
in this case is the defendant and then submitted that
"if therefore the appellant has not signed the
memorandum or note then no action shall be brought
against the appellant." He concluded therefore that the
trial court, having found Exhibit A was not executed by
the defendant and was thus null and void, should have
entered judgment for the defendant. For his part,
Counsel for the plaintiff said the requirement for
writing was uncalled for in this matter since the trial
court rightly relied on section 3(2) of the Decree to
conclude that a valid contract of sale existed on
account of substantial part payment made by the
plaintiff who has also exercised acts of ownership over
the property. Section 3(2) of the Decree provides that:
'Sections 1 and 2 shall
be subject to the rules of equity including the rules
relating to unconscionability, fraud, duress and
part-performance.'
The court relied on
part-performance to exclude section 1 of the Decree,
contrary to the case set up by the plaintiff himself. It
is true that sufficient acts of part-performance could
be applied to avoid the requirement of writing, but it
must be referable to the terms and conditions of the
contract. So in our law the requirement of writing is
not 'sine qua non' to success in land transactions, so
long as the party is able to bring himself within
section 3 of the Decree.
On the purchase price
there is sufficient evidence on the record to support a
conclusion that it was ¢4 million. There is also
sufficient evidence to support a finding that the
plaintiff paid only ¢2.9 million out of the agreed
purchase price of ¢4 million. There is also sufficient
evidence to support a finding that the defendant allowed
the plaintiff to move into the house. Infact besides
this house matter, there were other dealings between the
parties herein, an indication of cordiality between
them. The bone of contention is whether time was made an
essential part of the contract of sale. I'll refer to
the relevant pleadings, evidence as well as the trial
court's decision on this issue.
This was introduced by
the defendant in her statement of defence in which she
made these relevant averments:
3.........the defendant
states that sometime in 1986, she .......... arranged to
sell the said property to the plaintiff for four million
cedis.
4.........the defendant
states that it was agreed between her and the plaintiff
that this purchase price of ¢4,000,000.00 be settled
within three months owing to the inflationary rate at
the time.
5. The defendant
states that the plaintiff rather made piecemeal payments
to the tune of ¢2.9 million and then failed to satisfy
the payment of the balance on repeated demands and
against the terms of the contract of sale.
By way of reply the
plaintiff denied these averments quoted above, thereby
putting the defendant to strict proof thereof. In a
situation like this, where the plaintiff only entered
into bare denial, if the defendant succeeds in leading
sufficient admissible, satisfactory evidence the court
would be bound to make a finding in her favour, in the
absence of any other competing claim or story. Let me go
on to examine the evidence adduced at the hearing.
Throughout his evidence
in chief the plaintiff said nothing about the time to
complete payment for the house. It was when he was
questioned during cross-examination that he said no time
was fixed for him to complete payment. This is the
material evidence of the defendant on this issue:
"The agreement was that
he was to pay the ¢4 million within 3 months from June,
1986. We further agreed that I would acknowledge receipt
of the money in the deed of assignment if he was able to
finish paying the ¢4 million within the stipulated
time."
As to why a specific
time was agreed upon, she said it was "because of
depreciating value of the cedis." She went on to say the
defendant did not pay within the stipulated time. She
stated that the plaintiff made the first of four
instalment payments in June 1986 and the last in July
1986, all totalling ¢2.9 million. It is significant to
note that she was not cross-examined at all on this
question of time that the plaintiff was to complete the
payment. And this is the relevant evidence of the
defendant's mother, Adwoa Mansa (DW1):
"The defendant and I
decided to sell the house. The plaintiff offered to buy
it. The defendant and I entered into negotiations with
the plaintiff and agreed on a purchase price of
¢4,000,000.00. The plaintiff was to pay for the house
within
PAGE NINE (9)
MISSING!!!
depends on the
credibility and demeanour of witnesses, this court is
not bereft of the power or discretion to reach a
different conclusion, if, as stated by Lindley, M.R. in
the case of COGHLAND vs. CUMBERLAND (1898) 1 Ch. 704 at
page 705 there are "other circumstances, quite apart
from manner and demeanour, which may shew whether a
statement is credible or not: and those circumstances
may warrant the Court in differing from the Judge, even
on a question of fact turning on the credibility of
witnesses whom the Court has not seen." Thus this court
was able to reach a conclusion different from that of
the trial court even though questions of credibility and
demeanour were raised in the case of ACOLATSE vs.
BULLEY-NEEQUAYE, Civil Appeal No. 14/67, dated 27/1/69,
unreported.
Let me now talk about
what the trial court said on this question. The trial
court said this:
"The contract between
the parties, according to the defendant, was not reduced
into writing. She did not tell the court that the three
months given to the plaintiff to pay the purchase price
was of the essence. In her statement of defence and in
court, she said they agreed that the purchase price
should be paid within three months because of the
inflationary rate at the time. I do not think by this
time was meant to be of the essence. Indeed, the whole
of paragraph 4 of the defendant's statement of defence
was denied by the plaintiff in his reply. Strangely the
matters contained therein were not made issues for trial
i.e. the purchase price and the time within which it was
to be paid ......... The contract which the defendant
purported to rescind was entered into in 1986. It was
not until 1992 that even though the balance of the
purchase price has remained unpaid, she referred the
matter to her lawyer. After about six years, if she
wanted to repudiate the contract, she should have given
him reasonable notice to pay the balance within a
definite time. The new date so fixed becomes then of the
essence and the court will not have assisted him if he
had failed to pay ...... In Exhibit 1 which the
defendant's Solicitor wrote to the plaintiff, no further
demand was made for the payment of the balance of the
purchase price, if indeed there had been such demands as
the defendant told the court."
Counsel for the
defendant/appellant addressed on this issue and
submitted that the trial court erred when it concluded
that time was not of the essence of the agreement. He
referred to the following passage from the judgment of
the court below: "they agreed that the purchase price
should be paid within three months because of the
inflationary rate at the time and it did not mean that
time became of the essence of the agreement." Counsel
submitted that "this conclusion is . . . .erroneous in
that time is inherent in the concept of inflation.
Inflation is the behaviour of a currency whereby its
value depreciates over time vis-a-vis the purchasing
power of that currency. Hence the measurement of the
rate of inflation has always been relative to time."
Rather surprising to re-call, Counsel for the respondent
did not say anything at all in response to his friend's
argument on the time element. And as I shall presently
show, both the facts of this case and the legal
authorities justify that the question of time be
considered by the court in relation to the performance
of the contract.
First of all, the trial
court said the defendant did not make time for payment
an issue for trial and expressed an opinion that this
was strange. I thought this remark was ironic in view of
the trial court's own finding that the defendant pleaded
the fact that the plaintiff was given three months to
pay for the house and also testified on it. The trial
court had also said the plaintiff denied this averment
in his reply. In practice, once the averment on an issue
was denied by the plaintiff in his reply, an issue was
joined thereon as I pointed out earlier. Thus even if
there was no specific issue set down in the summons for
directions, the omnibus clause 'any other issue/s
arising on the pleadings' would take care of it. It is
equally untenable for the trial court to say that even
though defendant pleaded and also testified about time
for payment, she did not think that "by this time was
meant to be of the essence". If time was not of the
essence then one wonders what purpose the averment and
evidence thereon was intended to achieve.
The trial court's
further assertion that the agreement as to the price of
the house was not made a triable issue was rather
strange in the sense that if that be the case then there
was no contract of sale at all; for an agreement as
regards the price was a necessary ingredient in giving
validity to a sale contract and make same enforceable:
see KOGLEX v. KATEFIELD (MRS.) (1998-99) SC GLR 451 at
p. 459, per Hayfron-Benjamin, J.S.C. So these two
matters, namely, the sale price and time for completion
of payment were necessary ingredients for the sale
contract. 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.' Be that as it may, the defendant's averments
and relief 1 of the counterclaim were clearly referable
to the time for payment which she said the plaintiff did
not respect. It could be seen that when the defendant
claimed in Relief 1 of her counter-claim that the
plaintiff had failed to perform his side of the bargain,
it was referable to nothing but the failure to pay the
purchase price within the stipulated time which the
plaintiff denied by his reply.
Let me at this stage
refer to two relevant authorities on this question of
time both decided by the Supreme Court. First is the
case of ATTA and Another vs. ADU (1987-88) 1 G.L.R.
233. In that case the defendant agreed to sell her
house to the plaintiff because she needed the money to
assist her son who was in financial difficulties. The
plaintiff defaulted in paying the price as agreed upon,
so the defendant re-sold the house to another person. In
the meantime the plaintiff had, without the knowledge of
the defendant, paid the money into the defendant's bank
account outside the agreed period for the payment. So
when the defendant told the plaintiff she had re-sold
the house the plaintiff brought an action for, inter
alia, specific performance of the contract of sale. The
defence was that since she had been compelled by her
financial circumstances to sell the house, the failure
by the plaintiffs to pay within the stipulated period
did not entitle them to the equitable remedy of specific
performance. Holding that time was not of the essence of
the contract, the trial court gave judgment in favour of
the plaintiff. The Supreme Court held that time was of
the essence of a contract
(a) where time was an
essential element as distinctly spelt out in the
agreement, or
(b) where the
circumstances clearly indicated that time was of
material consequence, or
(c) where the nature of
the land, in that case a grocery shop, made time an
inseparable element; and thereby upheld the defence.
The other case is FOFIE
vs. ZANYO (1992) 2 G.L.R. 475. In that case the court
found that no time was stipulated in the contract of
sale, yet the court was able to conclude that time was
necessarily an element to be considered. Holding 3
states that 'although no time was stipulated by the
defendant in the offer letter to the plaintiff for the
completion of the contract, time would be held to have
been of the essence because (a) the offer letter was
emphatic on the defendant's desire to hear from the
plaintiff soon; (b) financial difficulties necessitated
the defendant's decision to sell the house instead of
keeping the lease; and (c) the high rate of inflation in
the country was depreciating the value of the cedi while
the value of the property kept appreciating. Besides it
was not only unreasonable to expect the purchase price
of a house to be paid by instalments over a ten-year
period but it would also be absurd to expect the
defendant to wait for ten years to receive the purchase
money which was almost equal to the amount he would have
received under the lease for the same period.
The trial court also
said it was for the defendant to give the plaintiff
notice to complete payment. That conclusion could only
be valid or justified if the defendant unilaterally
tried to introduce the element of time into the contract
at a later stage, in which case she would be bound to
give reasonable notice to the plaintiff to pay up. But
the position here is different since the accepted
evidence was that time was made an integral term of the
contract of sale. But the court realised that even when
Exhibit 1 was written in June 1992, the plaintiff's
response contained in Exhibit 2 was not that he owed the
defendant, but that he had fully paid for the house. So
that the plaintiff himself had taken a position whereby
he was not entitled to notice. And even if notice was
necessary at that point in time as stated by the trial
court, it was not until October 1992, some four or more
months after Exhibit 1 that the defendant decided to
refund the plaintiff's money to him. All this while, the
plaintiff had taken the stand that he had fully paid for
the house. So that if indeed the plaintiff was mindful
of paying, he would have taken the opportunity to do so
when the defendant wrote to him that he had defaulted in
paying the balance. The position then was that even if
the defendant had not insisted on time for completion,
she had clearly done so by Exhibit 1. So that the
defendant had no option than to terminate the agreement
when the plaintiff did not honour the time for payment,
and even as at the date of the trial court's judgment
the plaintiff had failed to pay.
The trial court's
reference to the fact that the defendant took no step
between 1986 and June 1992 when the plaintiff failed to
pay is unjustified. The fact that a person sleeps on his
right offers a defence in limitation or laches, if
applicable, to a claim; but it offers no justification
for refusal or failure to pay one's just debt. But no
such defence was raised by the plaintiff in answer to
the defendant's counter-claim. So it was not right to
hold same against the defendant especially as she
explained why she did not take any action apart from
making demands for the money.
Closely following the
foregoing was the trial court's assertion that the
defendant did not make a demand for the money. Yet the
evidence of the defendant and DW1 on this was not
challenged or rebutted in any way so the court was bound
to accept it. At any rate none of the parties is saying
that a prior demand was a requirement of the contract.
Be that as it may, it is the duty of the debtor to seek
his creditor and not vice versa, and he also assumes the
burden of producing evidence to prove he has discharged
his obligations to pay money under the contract. What
the trial court failed to appreciate was that the
plaintiff did not pay the balance then and even now not
because time was not of the essence of the contract but
because he sought to defraud the defendant with the
assistance of Lawyer Poku-Amanfo that he had paid for
the house when in fact he had not. The trial court erred
when she held that time was not of the essence of the
contract since the facts had been pleaded and testified
to without any challenge, and the reason why they agreed
on time was also valid in law as decided in the FOFIE v.
ZANYO case (supra). Surely six years after time for
payment had elapsed, the value of the money was
completely lost thereby defeating the very reason why
time was made a term of the agreement. On the other
hand, the value of the property must have enhanced with
the effluxion of time. And it was thus inequitable to
insist that the plaintiff should continue to withhold
payment whilst at the same time he enjoyed the property.
And as said earlier the plaintiff did not just bother to
pay up, not even after Exhibit 1 had been served on him,
and has not done so to date of the trial court's
judgment in July 1996, some ten years after payment had
been due. At least it took six solid years for the
defendant to act during which time the plaintiff could
have paid up if he was so minded. In my view, therefore,
the defendant was justified in treating the agreement as
terminated.
B. Ground 2.
Counsel for the
appellant's view was that once the trial court found
that the document on which the plaintiff relied for his
title was a forgery, it ought to have entered judgment
against the plaintiff. The case put up by the plaintiff,
as earlier stated, was that there was an agreement in
writing whereby the title to the property in question
was transferred to him by the defendant. It was his case
also that the agreed purchase price was ¢3.5 million and
that he had fully paid for it. These are contained in
paragraph 3 of the statement of claim which is the
bedrock of the plaintiff's case and it reads as follows:
The plaintiff says that
on or about 6th of July 1987 the plaintiff entered into
an agreement in writing with the defendant whereby the
defendant sold her property Plot No. 30 Block K, Kaasi,
Kumasi to the plaintiff for the sum of ¢3.5 million as
consideration. This selling price has been paid by the
plaintiff to the defendant which said payment the
defendant acknowledged in the written agreement.
The trial court found
that this document was not executed by the defendant and
thus upheld relief 2 of the counter-claim which charges
fraud against the plaintiff. The trial court also found
as a fact that the plaintiff had not paid ¢3.5 million
to the defendant as full purchase price. The court was
also unable to find that the purchase price agreed upon
was ¢3.5 million; in effect, the crux of the plaintiff's
case totally failed. But the court went on to find that
there was an oral contract under which the plaintiff was
to pay ¢4 million for the house out of which he had paid
¢2.9 million. This was precisely the case set up by the
defendant. So in effect the court was accepting the
defence case, yet it relied on it to give judgment for
the plaintiff. The trial court, it seems, set up an
entirely different case for the plaintiff from what he
himself, before the writ was sued out, as well as in his
writ and pleadings, and on top of it all in his evidence
to the court, never intended to set up. He did not
intend to rely on any oral contract, nor did he intend
to rely on part-payment of the purchase price, nor did
he intend to rely on a purchase price of ¢4 million. So
the trial court after finding that the Exhibit A was
procured by fraud should have concluded that the
plaintiff had failed to establish his case. For as held
in the case of OLOTO v. WILLIAMS (1944) 10 W.A.C.A. 23,
a court in entering judgment for a plaintiff has to look
at the claim as stated in the writ and statement of
claim. So that if the evidence led by the plaintiff does
not support the reliefs sought by the endorsement on the
writ and his pleadings the court ought to dismiss his
action in so far as the burden of proof rests on him.
And authorities like DAM v. ADDO and Brothers (1962) 2
G.L.R. 200, SC.; ALLOTEY and Others v. QUARCOO (1981)
G.L.R. 208 CA. decide that a court must not 'proprio
motu' substitute a case, nor accept a case contrary to,
or inconsistent with, that which the party himself puts
forward whether he be plaintiff or defendant. So in the
OLOTO v. WILLIAMS case (supra) the court concluded that
when the plaintiff failed to make out his case as
pleaded, the trial court ought to have non-suited him.
That was when the practice of non-suit was available in
the High Court. It was for similar reasons that the
Court of Appeal decision in ESSO PETROLEUM CO. LTD. v.
SOUTHPORT CORPORATION (1956) A.C. 218 was reversed by
the House of Lords. The failure of the plaintiff's
attempt to rely on Exhibit A failed along with all the
other relevant facts as to purchase price and payments
he had made. The defence succeeded in these matters as
well as on the question of time for payment, so the
defendant and not the plaintiff was entitled to the
court's judgment.
However, there was this
question of the plaintiff's occupation of the house,
which was relied upon as an act of part-performance. Yet
we have to consider the circumstances of this case
before coming to any such conclusion. In other words it
should not be considered in isolation. It is on record
that the plaintiff herein was on very good and cordial
terms with the defendant and her mother. The defendant's
mother even gave him her documents of title to another
property to enable him secure a financial facility. The
plaintiff also occupies another property belonging to
the defendant and her mother. The defendant even gave
the plaintiff a power of attorney to represent her in
some proceedings to recover certain documents for her.
In the fact of such cordiality, one should not be
surprised that even though the plaintiff had not fully
paid for the house, yet the defendant would allow him to
occupy the house as though he was the owner thereof. The
defence case which was not challenged was that the
receipt for payment would be issued and a document
prepared only after full payment. That explains why the
plaintiff went the full cycle, albeit through fraudulent
means, to secure a document to show that he had fully
paid for the house. So that the parties knew that not
until full payment had been made, the plaintiff could
not become the owner of the property. So his occupation
of the house was not in reference to the agreement under
which he had not yet become the owner of the property.
Specific performance is
an equitable remedy usually given by a court to compel a
defendant to perform what he has contracted to do. So
the court must look at all the circumstances of the case
in exercising this discretion, which he must not do
arbitrarily or capriciously. But the mere existence of a
valid contract does not per se bring about the court's
intervention to grant an order of specific performance.
The court must examine matters relating to the conduct
of the plaintiff, like delay, acquiescence, breach on
his part, or even circumstances outside the contract,
all or any of which may render it inequitable to enforce
the contract.
In this case, the
plaintiff failed to pay fully for the house as agreed
upon. That notwithstanding, he was allowed to occupy the
house. He did not pay heed to their demands on him to
pay. He has gone ahead to put in tenants from whom he
collects rents and yet still failed to perform his
obligation to pay. And when he was written to, he wrote
back to say he did not owe the defendant. And to add
insult to injury, he used fraudulent means to deprive
the defendant of this property by forging her signature
on a deed with the aid of a lawyer. Clearly this conduct
is not attractive to a court of equity. His hands are
dirty. And he has also not performed his side of the
bargain, despite benefiting financially from the house
through rents. Should a court of equity allow a
plaintiff who has failed to pay for the house as
stipulated in the agreement and who has enjoyed free
occupancy thereof as well as rents, to also have the
property on top? I think not. In such circumstances
Francois J.S.C. would have said "a court of equity
abhors such unjust enrichment." See page 241 of the ATTA
v. ADU case (supra). At the same page this relevant
dictum of Alderson B. in HIPWELL v. KNIGHT (1835) 1 Y &
Ex. 401 at p. 416 appears: "If, therefore, the thing
sold be of greater or less value according to the
effluxion of time, it is manifest that time is of the
essence of the contract and a stipulation as to time
must then be literally complied with in Equity as well
as the law." Thus when his case failed the court was
bound to dismiss his claim without invoking the aid of
equity which he did not deserve on the facts, the law
and circumstances of the case. The appeal will
accordingly be allowed. All the judgment and orders of
the court below are set aside, except relief (b) of the
counter-claim which it found for the defendant. In its
place judgment is entered for the defendant on all the
reliefs sought in her counter-claim.
SIGNED.
A. A. BENIN, J.A.
ADINYIRA (MRS.) J.A:
I agree.
AMONOO-MONNEY, J.A:
I also agree. |
