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JUDGMENT
ESSILFIE-BONDZIE J.A.
The action which has
led to this appeal was commenced on the 8th of January,
1997 at the Circuit Court Odumase Krobo by the
plaintiff/respondent before this court (who will be
referred to henceforth shortly as the plaintiff) and by
his writ of summons he claimed as follows
“........... for
specific performance of the agreement for the sale of a
plot of land at AHIAWOM at Somanya Zongo opposite to
SSNIT office, at Somanya being on area measuring 100 x
100 feet where plaintiff has been moulding cement blocks
for sale. Defendant has given possession but refuses to
execute an indenture in favour of plaintiff.”
The defendant/appellant
before this court (who is henceforth referred to shortly
as the defendant) also counter claimed against the
plaintiff as follows.
(1) Declaration of
title to the land described in paragraph 3 of the
statement of defence.
(2) Damages for breach
of contract.
(3) Damages for
trespass by the plaintiff into the piece of land
described in paragraph 3 of the statement of defence.
(4) Recovery of
possession.
(5) Perpetual
injunction restraining the plaintiff, his workman
servants assigns and agents from entering or remaining
on the said land.
The trial judge gave
judgment in favor of the plaintiff declaring inter alia
“I therefore enter
judgment for the plaintiff against the defendant and
order the defendant to perform his side of the contract
by executing a deed of conveyance covering the disputed
land measuring 100 feet by 100 feet and situate at
AHIAWON SOMANYA and hand over same to the plaintiff
forthwith.”
The trial judge also
dismissed the counter-claim. It is against the judgment
of the Circuit Court that the defendant now appeals to
this court on a number of grounds of which the following
are those which are of substance to wit:
(a) The trial circuit
judge erred in his failure to realise that the alleged
sale of the disputed land was a customary sale and
thereby failed to apply the incidents of a customary
sale to the transaction between the plaintiff and the
Defendant.
(b) The trial circuit
judge erred in relying on Exhibit “A” a temporary
receipt which does not define the extent and boundaries
of the part of the plot and wrongly gave judgment for
the plaintiff when the document was also not registered
as required by Section 24 of the Land Registry Act,
1962.
(c) The trial judge
failed to consider the Defendant's case in particular
his counter-claim and dismissed the same without
assigning reason or reasons.
In order to appreciate
the relevancy and force of these grounds I will write
down, the plaintiff statement of claim filed on the 10th
January, 1997 verbatim and in extension. It reads:
“'STATEMENT OF CLAIM
(1) By a Lease
Agreement in writing dated 30th January, 1985 made
between the Defendant and Plaintiff, the leased plot of
land in dispute, to plaintiff for 3 years for use by
plaintiff to mould cement block for sale. The land is
described in the writ.
(2) Plaintiff was given
possession of the plot and has been moulding the cement
blocks for sale.
(3) On 22nd August 1986
the defendant sold the said plot of land to plaintiff
for the sum of 50,000.00.
(4) The plaintiff
continued to live on the land mould his blocks for sale
and has put up a house on the plot where he is living
with the knowledge of the defendant.
(5) Plaintiff has
repeatedly requested Defendant for an indenture of sale
in respect of the land and the Defendant after
procrastinating for a long time, finally told plaintiff
to bring an indenture for him (defendant) to sign.
(6) Plaintiff prepared
the Indenture but Defendant has repeatedly refused to
sign”.
The relevant portions
of the defendant defence to the plaintiff's statement of
claim are contained in paragraphs 5, 6, and 7 of the
defendant statement of defence. They are:
“(5) Paragraph 3 is
denied and in answer the defendant says that there was
discussion on 22nd day of August 1986 to sell part of
the Defendant's piece of land to the plaintiff after the
expiration of the Lease Agreement on the 4th day of
April 1989, that was after the expiration of the term of
3 years and 4 months.
(6) In further answer
to paragraph 3 the Defendant says that what portion of
his land was to be sold to the plaintiff, was not
discussed and agreed upon nor did the defendant, show to
the plaintiff which area of his said piece of land the
Defendant would sell to the plaintiff.
(7) In further defence
to paragraph 3 the Defendant says that what took place
between the plaintiff and the Defendant on 22nd August
1986 in respect of the selling of part of the said land
to the plaintiff was not a binding Agreement since the
subject matter of the alleged sale was not defined and
agreed upon by the parties. The Defendant only gave the
plaintiff a right of pre-emption to an undefined portion
of his said land.”
The plaintiff in the
course of his evidence tendered in evidence the receipt
covering the sale of the plot the defendant sold to him.
This was accepted without objection and marked as
Exhibit A. He also tendered in evidence the said lease
agreement and same was admitted and marked as Exhibit B.
It is pertinent to look
closely at the contents of Exhibit A to ascertain its
proper legal effect. Exhibit A reads as follows:
“TEMPORAL RECEIPT
I Peter Kofi Kolete of
House number B 59/3 Sra—Somanya have this day the 22nd
August 1986 received an amount of fifty thousand cedis
(¢50,000.00) as full payment of a part of a plot which I
have sold to one Mr. Joseph Kottey of Somanya.
Dated 22nd August 1986
Peter Koletey signed”.
I propose to deal with
grounds (a) and (b) (Supra) together.
Learned counsel for the
defendant has argued that the alleged sale was a
customary sale and therefore the trial judge failed to
apply the incidents of a customary law sale to the
transaction between the plaintiff and the defendant.
Now there are two forms
of contract for the sale of land in Ghana. They are
contract under customary law. In this case the
Receipt—Exhibit A and the pleadings overwhelmingly
pointed to the common law as the mutually intended
determinant system of law for the transaction. Apart
from the fact that writing is unknown to our customary
law under the customary law of sale of land the
following essential elements must be established (1)
Competent contracting parties (2) Mutual assent of such
parties (3) The marking out or the identity of the land
and its boundaries (4) Valuable consideration (5)
payment of frama (earnest money) to the vendor see
Sarbah’s Fanti Customary Law (2nd ed) p.p. 86 - 87. On
the facts of this case, I find that not all the
ingredients of a valid customary sale of land took place
between the parties I therefore do not share the view
that the transaction was based on customary law sale of
land.
In the light of this I
hold that the determination of the rights of the parties
in this case under Exhibit A must be based upon the
principles of the common law. Now the principles at
common law is that a contract for the sale of land will
not be complete unless the contract is in writing and
(1) gives the names of the parties (2) the identity of
the property to be transferred (3) the purchase price of
the property and (4) the defendant must have signed the
written contract see Section 2 of the Conveyancing
Decree (N.R.C.D. 175.)
As to the identity of
the land sold, Exhibit A (SUPRA) failed to give specific
description of the land from which the land the
plaintiff was buying can be identified. It is to be
noted that Exhibit A was tendered in evidence to prove
sale to the plaintiff of the defendant’s land but
Exhibit A only said “a part of a plot which I have sold
to one Mr. Joseph Kottey (ie the plaintiff)” Exhibit A
did not describe the portion of the total land of the
defendant sold nor its location of the part sold. The
plaintiff's writ of summons also reveals that while in
the Writ the plaintiff is claiming a piece of land
measuring 100 x 100 feet, in Exhibit A which is the
basis of the alleged transaction the measurement or the
extend of the land sold is conspicuously absent.
Furthermore PW1 the
plaintiff's first witness gave the following answer
under cross-examination
“Q. You know that the
plaintiff is occupying the whole land of the defendant.
A. The defendant sold
the whole land to the plaintiff and so the plaintiff is
occupying the whole land.”
This means that while
the plaintiff by his writ is claiming a piece of land
measuring 100 x 100 feet, Exhibit A the basis of the
contract which is binding on the plaintiff talks of a
part of a plot of the defendant's land, the plaintiff's
witness (PW1) said the defendant sold the whole land to
the plaintiff. I consider these as material
contradictions in the plaintiff's evidence. These do not
establish the extend of land or the identity of the land
the defendant allegedly sold to the plaintiff.
The rule is that the
court does not decree specific performance of an
agreement unless its terms are certain and unambiguous
so that the obligation of the parties are clearly
ascertained see Douglas vrs. Baynes (1908) AC 477 P.C.
and Asare vrs. Antire (1975) 1 G.L.R. 16 C.A..
From the foregoing, it
is evident that the parties to this action merely
negotiated for the sale of an undefined plot of land
which did not mature into a binding concluded and
definite contract. I hold that there was no concluded
contract capable of being enforced by a decree of
specific performance and that the learned trial judge
erred in holding otherwise. The plaintiff’s claim for
specific performance ought to have been dismissed.
In the case of Djan
vrs. Owoo and Another (1976) 2 GLR. 404 at p. 404 Edusei
J. (as he then was) in dealing with the registration of
document affecting land, said
“it does not appear
ex-faie, that the two receipts have not been registered
under Act 122. Section 24 (1) of Act 122 stipulates.
24 (1) Subject to
subsection (2) of this section an instrument other than,
(a) a will or
(b) a judge’s
certificate first executed after the commencement of
this Act shall be of no effect until it is registered”.
The definition of
instrument under section 36 of Act 122 is “any writing
affecting land situated in Ghana, including a judge’s
certificate and a memorandum of deposit of title deeds.
There can be no dispute that the two receipts are
instruments under the Land Registry Act, 1962 (Act 122)
and they have not been registered as required by
Section 24 (1) of Act 122. It follows therefore that the
plaintiff cannot claim right under them”
I endorse this decision
as still a valid law and I approve and apply it to this
case. In this case it has been admitted and it is not
refuted that Exhibit A was tendered by the plaintiff as
the basis of his claim for specific performance. Now
since Exhibit A, (a receipt) is an instrument under the
Land Registry Act, 1962 (Act 122) and it had not been
registered by section 24 of that same Act, the plaintiff
could not claim any rights under it and I so hold. It is
my judgement therefore that since the parties merely
negotiated for the sale of undefined plot of land which
never matured into a definite contract capable of being
enforced by a decree of Specific Performance and as
Exhibit A relied on by the plaintiff to establish his
claim never conferred any right. The plaintiff’s claim
for specific performance fails and is dismissed.
Of the counter-claim,
the defendant gave evidence to show how, he acquired the
land. He said.
“While my father was
alive he sold the land to Juliana Yowehe at Kosinye
Teiko. He sold the land to her on the 7th September,
1964. When my father died, one day, I was in house when
madam Kosinye Teiko sent Shiante (a) Billy at to me.
Billy is dead now. I went to see her. In fact I
accompanied Billy to Madam Juliana Yowehe. When we met
her Juliana Yowehe told me that she wanted to sell the
land she purchased from my father to me. I accepted the
offer and so bought the land at ¢1800.00, and one live
sheep and a bottle of schnapps. I paid the purchase
price. Madam Juliana Yowehe gave me a document to
evidence the sale of the land to me. I wish to tender
the document in evidence. (No Objection). It is not
true that the plaintiff helped to purchase that land”.
The document was marked
as Exhibit 2.
It must however be
observed that the above evidence as to how the defendant
came to buy the land in dispute was not challenged under
cross-examination and therefore it stood admitted by the
plaintiff. By Exhibit 2 the piece of land was purchased
on the 16th December 1978 and this was registered as No.
3701/1985. The defendant's evidence that he leased the
land to the plaintiff for 3 years and 4 months at a
monthly rent of ¢100.00 was evidenced by Exhibit B which
was tendered in as evidence by the plaintiff. This piece
of evidence is supported by the plaintiff himself in his
evidence and in paragraph 1 of the statement of claim.
Under cross examination
the plaintiff also gave the following evidence
“Q You tendered in
evidence Exhibit B which says that you were leasing the
land for three years and four months.
A That is what I said
Q. You were to pay
monthly rent of ¢100.00.
A. It is correct.
Q. Did you pay the rent
for the whole three years and four months.
A. I did not pay the
rent for three years and four months.”
The plaintiff also
testified that the reason why he did not pay his rent
was that he gave a loan of ¢3,000 to the defendant to
buy the land. He tendered in evidence Exhibit C to
evidence the loan transaction. The plaintiff gave the
date of this transaction for the loan as 1st June 1980.
It is however significant to point out that Exhibit 2,
the purchased deed between the Defendant and his vendor
is dated 16th December, 1978. This revelation convinces
me that the defendant was speaking the truth when he
denied in his evidence that the plaintiff assisted him
with a loan of ¢3,000.00 to purchase the land. It is not
possible to give a loan to someone (see Exhibit C) in
1980 to buy property in 1978. It is my judgment
therefore that the trial judge was in error when he made
the following finding in his judgment:
“The defendant’s
evidence that he did not receive any loan from the
plaintiff cannot be true. I reject it as an after
thought. I accept the evidence of the plaintiff on this
issue as the truth. I find as a fact that the plaintiff
gave the defendant a loan of ¢3,000.00 and the defendant
used that money to purchase the disputed land from Madam
Kosinye Teiko”
A cursory look at
Exhibit C the basis of the said loan transaction
discloses that it is not genuine. The numerous
unexplained cancellations on it, re-enforces my belief
that Exhibit C was forged. The trial judge ought to have
rejected the claim of the plaintiff that he assisted
defendant with a loan of ¢3,000.00 in 1980 to buy land
in 1978. Besides I do not see how such a financial
assistance can create a right in the property purchased
with the loan.
Regarding Exhibit A,
the defendant reacted as follows
“On 22nd August 1986
the plaintiff asked me to sell a portion of the land to
him. He said he was going to mould blocks on that land.
I told him to wait for the lease agreement to expire and
after expiration of the lease agreement he should bring
the agreement for us to destroy it after which he should
bring his elder to enable me........................
Negotiate and sell that portion to him. The plaintiff
gave me ¢50,000.00 as payment for the part of the land I
will sell to him.”
Again he went on “After
the expiration of three years and four months the
plaintiff continued to be on the land. I asked him to
vacate the land.” These pieces of evidence were not
challenged.
The plaintiff's reply
to the defendant’s statement of defence also did not
make an attempt to deny the defendant allegation that
after the period of three years and four months as
contained in the lease Agreement—Exhibit B—the plaintiff
continued to be on the land. This conduct of the
plaintiff was clearly in breach of the lease
agreement—Exhibit E—which states inter alia
“That the tenant is
entitled to use the said ground for the purpose intended
for until the stipulated time when he will vacate the
land subject to renewal at the discretion of the
landlord”
In paragraph 18 of his
statement of defence the defendant pleaded:
“18 From 1st May, 1989
to date the plaintiff is in wrongful occupation. The
defendant later noticed that the plaintiff had started a
fence wall around the whole piece of land and was
commencing constructing a house thereon. The defendant
said he took pictures of the development being carried
out. In May 1992 he took pictures of these development
(see Exhibits 3 and 4) and reported matter to the GPRTU
of which both parties were members. The plaintiff
himself gave the following evidence.
“The defendant sent me
to the GPRTU Office at Somanya in respect of this land.
The officials of GPRTU Somanya decided to go into this
disputed land. I raised an objection and told them that
GPRTU does not deal in land cases but that it deals only
in motor cases”.
He also said under
cross-examination that:
“The matter could not
be gone into because most of the GPRTU officials at the
meeting were illiterates, the place became (SIC) Osdy.”
Under cross-examination
the plaintiff own witness (PW1) also said
“Q You know that GPRTU
sat on this matter?
A The Union went into
the matter. I was among the panel which went into the
matter.”
These pieces of
evidence indicate that the plaintiff and his witness
admitted that the defendant made a complaint to the
GPRTU in respect of the disputed land.
It is my finding that
there is sufficient evidence on record to demonstrate
that when the defendant noticed the plaintiff's
trespassing on his land after the expiration of the
leased period of three years and four months, he took
steps to protect his property. The trial judge therefore
went wrong when he said that the defendant never raised
a finger when he saw the plaintiff trespassing on his
land.
By continuing to be on
the land after the expiration of the lease period and
developing the land inspite of the defendant's
objection, the plaintiff not only breached the lease
agreement but also committed trespass on the land in
dispute and I so hold. Again since the plaintiff
admitted that the title in the disputed land resided in
the defendant before the lease agreement and the
abortive sale of the land I hereby make a declaration of
title to the land as described in paragraph three of the
plaintiff's statement of claim in favour of the
defendant and also make an order for recovery of
possession and perpetual injunction against the
plaintiff.
Regarding damages, it
is pertinent to note that the lease Agreement—Exhibit
B—stipulated in clauses 2 and 4 as follows.
“(2) That the landlord
had agreed and hired the said land to Mr. Joseph Kotey
to use the said plot of land for moulding cement blocks
for sale”.
“(4) That the tenant is
entitled to use the said land ground for the purpose
intended for until the stipulated time when he will
vacate the land subject to renewal at the discretion of
the landlord.”
The evidence is
unquestionably plain that since the 1st May, 1989 when
the lease agreement—Exhibit B—expired to date the
plaintiff has continued to be on the land. In further
breach of the agreement according to his own admission
the plaintiff has planted sugar-cane, plantain, fenced
the land, constructed a building and a washing bay on
the defendant’s land. On the evidence therefore I am
satisfied that the defendant’s counter-claim for damages
for breach of contract succeeds. Again on the evidence
the plaintiff committed trespass of the land when after
the expiration of the three years and four months prayed
he refused to vacate the land after repeated demands. I
award the plaintiff ¢500,000.00 damages for the breach
and for the trespass he is ordered to pay the arrears of
rent from the date of the expiration of the lease
agreement to the date of judgment with interest at the
current bank rate. The appeal is allowed.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
TWUMASI, J.A.
I agree.
P. K. TWUMASI
JUSTICE OF APPEAL
ARYEETEY, J.A.
I also agree.
B. T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL
DJABANOR FOR
PLAINTIFF/RESPONDENT.
AWERE AWUKU FOR
DEFENDANT/APPELLANT. |
