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ACQUAH, J.S.C.:

This is an application for a review of the judgment of the ordinary bench of this court delivered on 20th April 1998. The judgment was by a majority of 3:2 — Adjabeng, Atuguba and Sophia Akuffo JJ.S.C, and Hayfron-Benjamin and Ampiah, JJ.S.C. dissenting.

Under rule 54 of the Supreme Court Rules 1996 (C.I.16) as amended, grounds entitling one to invoke our review jurisdiction are stated as follows:

“(a) exceptional circumstances which have resulted in a miscarriage of justice;

(b) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicants knowledge or could not be produced by him at the time when the decision was given”.

The applicant herein anchors his request under the first limb of the above rule and therefore concludes in paragraph 28 of his statement of case filed on the 18th of June 1998 in the following words:

“28. It is submitted that all the points raised do demonstrate exceptional circumstances which have resulted in a grave miscarriage of justice and therefore a case for review has indeed been made out.”

The burden of an applicant who relies on exceptional circumstances is set out in Quartey vrs. Central Services Co. Ltd. (1996-97) SCGLR 398 at 399 wherein Abban C.J. delivering the opinion of the Court, explained that

“... such an applicant should satisfy the court that there has been some fundamental or basic error which was inadvertently committed in the course of considering its judgment; and which fundamental error has hereby resulted in a gross miscarriage of justice.”

Adade JSC made the same point in Mechanical Lloyd Assembly Plant vrs. Nartey (1987-88) 2 GLR 598 at 603 - 4 thus:

"The review jurisdiction is a special jurisdiction ... to be prayed in aid in the exceptional situation where a fundamental and basic error may have inadequately been committed by the court, which error must have occasioned a gross miscarriage of justice”.

Now a fundamental error is defined in Black's Law Dictionary, 6th edition, as:

“error which goes to the merits of the ... cause of action, and which will be considered on review, whether assigned as error or not, where the justice of the case seems to require it. Error of such character as to render judgment void. Error so grave that, if not rectified, would result in denial of fundamental due process.”

The same Black's Law Dictionary defines miscarriage of justice as:

“decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of party”.

In Barron's Law Dictionary by S.H. Gifis 4th edition, miscarriage of justice is defined as:

“damage to the rights of one party to an action that results from errors made by the court during trial and that is sufficiently substantial to require reversal”.

Indeed section 5(2) of our Evidence Decree 1975 (NRCD 323) setting out some of the factors in determining whether erroneous admission of evidence has lead to substantial miscarriage of justice provide, inter alia,

-  whether the decision would have been otherwise but for that erroneous admission of evidence.

In my view therefore an applicant for a review who alleges that there has been a fundamental error which has lead to a gross miscarriage of justice, must

-   establish that the decision would have been otherwise but for the fundamental error - .

In relation to the instant review, therefore, was there any such fundamental error, forming the basis of the decision, and which, but for it, the decision would have been otherwise?

The applicant says yes, the respondent denies. But first the facts. The parties would be referred to in the manner they appeared at the trial High Court.

One Michael Magid Erawoo, the managing director of Koglex Limited approached Mrs. Kate Field, the defendant herein, for a lease of her property No. C16/5 Ring Road Central, Accra. This was sometime before 4th September 1985. The property was then known as Meridian Industries. Annual rent of one hundred and twenty thousand cedis (¢120,000) together with the payment of five years rent advance were agreed upon. The five years rent advance totalled up to six hundred thousand cedis (¢600,000). On 4th September 1985, Mr. Erawoo made part-payment of ¢100,000.  A receipt to this effect was duly made by the defendant and indeed tendered in evidence as exhibit A. The following day, 5th September 1985, a further ¢100,000 was paid, leaving the outstanding balance at ¢400,000. A receipt from the defendant evidencing this second payment was issued and tendered as exhibit B.

The plaintiff delivered a draft rent agreement to the defendant, and then sent his workmen to the property to commence preparatory work. The defendant maintaining that no agreement between them had been concluded, stopped these workers. Her solicitor then wrote a letter dated 11th September, 1985 inviting the plaintiff to a meeting on 14th September 1985. Attached to this letter was a memorandum in the hand writing of the solicitor, setting out his comments on the plaintiff’s draft agreement.  The letter together with the attached handwritten memorandum, was tendered as exhibit C.

The meeting took place as scheduled. Both parties together with their lawyers were present. The comments raised in the handwritten memorandum together with the draft lease agreement were discussed, terms of agreement were reached, and the defendant instructed her counsel who was with her at that meeting, to draw up a final lease document reflecting the conclusions reached within a week. The week passed without defendant's solicitor producing any such agreement.

Now once the terms of the lease agreement had been concluded at the meeting of 14th September 1985, the plaintiff put back his workmen unto the property. But the defendant sought the assistance of the police and threw out these workmen from the site.  In a letter dated 27th September 1985 (that is, about two weeks after the 14th September meeting) and tendered as exhibit D, the plaintiff’s solicitor wrote to the defendant's solicitor, protesting at the defendant's resort to the police once "all the terms of the lease were agreed upon by all present" at the 14th September meeting. The letter further requested the defendant's solicitor to expedite the completion of the lease document.

In a letter dated 30th September 1985, tendered as exhibit E, the defendant's solicitor reacted to the plaintiff’s letter of 27th September, by denying that all the terms were agreed at the 14th September meeting, and further informed the plaintiff that the defendant was "no longer interested in any further negotiations regarding plaintiff’s offer to take the lease of the said premises".

The letter said nothing about the ¢200,000 rent advance paid by the plaintiff to the defendant. One expects that if the defendant has decided to withdraw from the agreement, at least that ¢200,000 paid as part of the ¢600,000 five years rent advance would be refunded, since the plaintiff had not had the use of the premises for even a day. But this money was not included in the letter, and up to date, the records do not show that the defendant had refunded the said money. Can the defendant repudiate the negotiations and still keep the rent advance?

Not surprisingly therefore, the plaintiff on 15th October 1985 commenced the instant action at the High Court, Accra, claiming against the defendant:

“1.  An order of specific performance

2.  Injunction restraining the Defendant from preventing Plaintiff’s use of the premises for the period of the lease".

The defendant resisted the claim and denied that there was any contract for the lease of the premises in respect of which specific performance could be decreed. And then counter claimed for

i.   General damages for trespass, and

ii. ¢2,000,000 special damages being damage caused to the defendant's property as a result of the trespassery activities of the plaintiffs, their agents and the workmen.

The trial High Court dismissed the claim of the plaintiff on ground that issue 4(ii) on the handwritten memorandum was not discussed and resolved. He said nothing about the defendant's counterclaim, implying that same had been dismissed. The defendant did not however cross-appeal on the failure to grant her counter-claim. The plaintiff appealed. The Court of Appeal by a 2:1 majority affirmed the judgment, while the ordinary bench of the Supreme Court also affirmed the majority decision of the Court of Appeal by a split decision of 3:2. Before us, as the review panel, the applicant relies on the exceptional circumstances resulting in a miscarriage of justice. The particulars of which he summarizes in paragraph 14 of his Statement of Case as:

"it is submitted that the Supreme Court majority decision refused to consider whether or not the trial judge as well as the Court of Appeal dealt with the facts and drew the necessary inferences by applying above principle. Rather it concluded that since it is the lower trial courts duty to evaluate the evidence adduced before it, which it did, and which the Court of Appeal concurred in the confirmation of the finding by the Court of Appeal cannot therefore be faulted".

Obrassiwah II and Ors vrs. Otu & Anor (1996-97) SCGLR 618 at 624 was relied upon.

The respondent in denying the claim of the applicant also relies on the same authority and argues that the application should be dismissed because the applicant was unable to cite any blunder nor produce any evidence of miscarriage of justice arising therefrom.

Now the complaint levelled against the majority judgment is a serious one. Amounting to a failure on their part to perform their duty as a second appellate court.

Briefly, the primary duty for an appellate court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself that the said findings are supported by evidence on record. Where there is no such evidence, that finding ought to be set aside.

However, where such findings of the trial court are based solely on the demeanour and credibility of the witnesses, then the trial court which had the opportunity to see and hear the witnesses is in a decidedly better position than an appellate court. And therefore the appellate court should be extremely slow in interfering with such findings. For as Ollennu J.A. observed in Kyiafi vrs. Wono (1967) GLR 463 at 466:

“... the question of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses. That being so the court of first instance is in a decidedly better position than the appellate Court”.

On the other hand where the findings are based on established facts, then the appellate court is in the same position as the trial court, and can draw his own inferences from those established facts.

A second appellate court like the Supreme Court is bound by the same principles set out above. But it must further satisfy itself that the judgment of the 1st appellate court is justified on the basis of evidence and materials in the record of proceedings.

Where the first appellate court confirmed the findings of the trial court, the second appellate court is not to interfere with the concurrent findings unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice, is apparent in the way in which the lower court dealt with the facts: See Achoro vrs: Ankepfela (1996-97) SCGLR 209.

Instances where such concurrent findings may be interfered with are:

i. The said findings of the trial court are clearly unsupported by evidence on record; or where the reasons in support of the findings are unsatisfactory: See Kyiafi vrs. Wono (supra).

ii. Improper application of principle of evidence: See Shakur Harihar Buksh vrs. Shakur Union Parshad (1886) LR 141 A7; or where the trial court has failed to draw an irresistible conclusion from the evidence: See Fofie vrs. Zanyo (1992) 2 GLR 475 at 490.

iii. Where the findings are based on wrong proposition of law:  See Robins vrs. National Trust Co. (1927) AC 515 wherein it was held that where the finding is so based on erroneous proposition of law, that if that proposition be corrected, the findings disappears.

iv. Where the finding is inconsistent with crucial documentary evidence on record.

The very fact that the first appellate court had confirmed the judgment of the trial court does not relieve the second appellate court of its duty to satisfy itself that the 1st appellate court's judgment is, like the trial courts, also justified by the evidence on record. For appeal at whatever stage, is by way of rehearing.  And every appellate court has a duty to make it's own independent examination of the record of proceedings.

Now the claim of the plaintiff as borne out by the Writ of summons, was for specific performance of an agreement for a lease of the property in dispute.

There was no dispute that no lease agreement had been executed by the parties.

It would therefore be a misappreciation of the plaintiff’s case and indeed the underlying purpose of specific performance to contend, as was done in this case, that because a final contract had not been executed by the parties, the relief of specific performance does not lie.

The relief of specific performance lies whenever agreement between parties have got to such a stage that it would amount to fraud on the part of the other party to refuse to perform his side of the bargain.

The primary duty therefore is to determine whether the findings of the trial court are supported by evidence on record.

Now from the facts as narrated above and the evidence lead together with the exhibits, the trial judge, in his judgment found at page 85 of the record of proceedings:

"From the evidence I am satisfied that there were negotiations between the parties for a lease of the plot on the Ring Road and that the rent was agreed at ¢10,000  a month of which ¢200,000 had been paid by the 5th September 1985; the duration was to be for a term of 20 years, with an option for another 10 years. Agreement had been reached about insurance and property”.

Later down the same page, the judge further found that

"There was agreement to pay the whole of the 20 years rent in advance on the execution of the tenancy agreement".

These findings by the trial judge clearly show that the court found as established the identity of the parties to the transaction, the subject-matter of the transaction, the consideration, and the duration of the lease.

But the trial judge refused to decree specific performance because in his view the point raised in paragraph 4(ii) of the handwritten memorandum attached to the draft agreement "appeared" to him not to have been resolved. For as he said at page 86:

“... If the court is satisfied that there is an agreement for a lease, an order for specific performance of the agreement can be made”.

But, he then continued:

"the point raised by the defendant on the hand written memorandum does not appear to have been discussed or resolved. The following is what is set out in the memorandum paragraph 4(ii). “Our client proposed that the destruction or damage contemplated herein ought to exclude those resulting from any wrongful commission or omission by you or your agents...” There is no evidence that the parties reached an understanding about this point."

To the trial judge therefore if the point in paragraph 4(ii) on the handwritten memorandum had been resolved, he would have granted specific performance.

Thus the sole basis of the trial judge refusing the prayer of the plaintiff was that the point raised in paragraph 4(ii) 'appeared' to him not to have been discussed. And this decision is what the majority of the Court of Appeal and the majority of the ordinary bench of this court confirmed. The question is whether this fundamental finding of the trial judge is supported by evidence on record. For it is by virtue of this finding that the plaintiff lost the action.

Now as the evidence discloses, it was the plaintiff who presented a draft lease to the defendant for her consideration after paying the ¢200,000 rent advance.  The defendant's solicitor set out his comments in handwritten memorandum. And the draft lease and the handwritten memorandum were the subject of the meeting for the 14th September 1985. As said already, the draft lease with the handwritten memo were tendered as exhibit C. On what took place on the 14th September meeting, P.W.1, the managing director of the plaintiff’s company testified as follows at page 25 of the record.:

“At the meeting there was a discussion concerning the contents of exhibit C. There is attached to exhibit C a handwritten memo. We discussed the handwritten memo paragraph by paragraph. Decisions were taken on all the issues raised by exhibit C. The solicitor and our solicitor took notes and the defendants solicitor said he would draw up a final agreement for us to sign. We then all of us shook hands and the defendants suggested that libation should be poured. Mr. Madjoub went to his car and brought ¢10,000 which he put down as libation. We dispersed happily”.

If as alleged by the PW1, all the matters set out on the handwritten memo were discussed paragraph by paragraph and decision taken on them, then paragraph 4(ii) being one of those paragraphs was by necessary implication also discussed.

What is the defendant's version on this matter? At page 58 of the record, where the defendant was under cross-examination, she was asked:

"Q. You asked that there should be a meeting in your house on the 14th September 1985?

A. Yes.

Q. At the meeting the attachment to exhibit C formed the basis of discussions?

A.    Yes."

Thereafter at page 61, the cross-examination of the defendant continued:

"Q.   Did you make a proposal to the plaintiff to insure the premises?

A. Yes.

Q. And they agreed to do so?

A. Yes.

Q. Were all these things which you mentioned in exhibit C discussed?

A.  Yes.

Q. And after that everybody agreed on the issues in the attachment to exhibit C?

A.  Yes with my lawyer's consent...".

Later on, the cross-examination continued:

"Q. After all these things you gave instructions to your lawyer to go and prepare an agreement for signature?

A. Yes. The lawyer said it would take time.

Q.  Where is the agreement?

A.  I have not got any."

The defendant therefore admitted that all the matters raised on the handwritten memo were discussed. Indeed the defendant's only witness D.W.1 Mr. Quartey Rock-Mensah also admitted under cross-examination that all the issues raised in the handwritten memo were discussed and agreed on at the 14th September, meeting. At pages 77 to 78 of the record of proceedings, D.W.1 while under cross-examination testified thus:

"Q. On 14th September 1985 there was a meeting at the defendant's house?

A. Yes.

Q. Was there any discussion about the lease which PWI had submitted?

A. Yes.

Q. You remember the defendant had caused her solicitor to make some comments on the draft lease.

A. Yes

Q. In the attachment to exhibit C. there are proposals about the draft lease which had been submitted earlier by P.W.l.

A. The defendant's lawyer Mr. Owusu Yeboah made the comments appearing thereon.

Q. Were decisions taken on all of them during the meeting?

A. Yes.

Q. After the meeting instructions were given to the defendant's solicitor to do anything as regards the decisions at the meeting?

A. The decision was that our lawyer was to go and put into proper writing what had been discussed. This has not been done before they started to go and work on the land.

Q. Up to this time has your solicitor done what you asked him to do?

A. No. This case has since been before the court".

Later down the cross-examination, in order to establish that the terms of the lease were agreed on at the 14th September 1985 meeting, and that what was left thereafter was to draw up a formal lease setting out the decision arrived at that meeting, it was put to DW1 at page 79:

"Q.  I am putting it to you that the instructions the plaintiff gave to her solicitor was to prepare a formal lease?

A.  I have said so several times".

There is therefore a positive admission by the defendant and her witness that all the issues raised in the handwritten memorandum were discussed and agreed on at the 14th September meeting, an admission completely confirming the version of the plaintiff on this issue.

Accordingly, the trial judge's finding that a paragraph in (that is 4(ii)) the memorandum appeared to him not to have been discussed is false and not even supported by the evidence of the defendant. Indeed in the face of the defendant and her witness admission that all the issues raised on the handwritten memorandum were discussed, the irresistible conclusion that the trial judge ought to have come to was that all the terms of the lease were agreed on the 14th September 1985. For a host of respectable authorities had settled the principle that where the evidence of a party's witness supports the other party on an issue, while that party's version stands unsupported by his own witness, a court is duty- bound to accept the corroborated version unless there are compelling reasons to the contrary, which reasons must be set out: Tsrifo V vrs. Duah VIII (1959) GLR 63; Asante vrs. Bogyabi (1966) GLR 232; and Banahene vrs. Adinkra (1976) 1 GLR 346.

Thus in Fofie vrs. Zanyo (1992) 2 GLR SC, the Supreme Court applied the above principle in setting aside the Court of Appeal's judgment. Francois JSC at page 490 lamented in the following words:

“... the Court of Appeal significantly failed to draw the unavoidable conclusion following the plaintiffs witness support for the defence: Tsrifo V vrs. Dua VIII (1959) GLR 63; and Asante vrs. Bogyabi (1966) GLR 232 SC.”

Since the sole ground by the trial judge in refusing to grant the plaintiff’s relief for specific performance was the finding that paragraph 4(ii) in the handwritten memorandum was not discussed and agreed upon, and since as demonstrated above, this is patently erroneous and unsupported by any evidence on record, it follows that the judgment would have gone in favour of the plaintiff if the trial judge had not committed such a fundamental error. The error has thus occasioned a grave miscarriage of justice to the plaintiff. The majority decision of the Court of Appeal which failed to detect such error, and the majority of the ordinary bench of this Court which likewise fell into the same error, have by their decision occasioned a grave miscarriage of justice to the plaintiff. And the said decisions ought to be reversed.

But before I am done, I think it is necessary to comment briefly on some recent developments in the law of specific performance, since the majority judgment of this court relied on passages from the 2nd edition of Magarry and Wade, Law of Real Property, and indeed cited therefrom at page 556 the following:

“... it is well settled that the mere payment of money is not by itself a sufficient act of part performance”.

The 2nd edition of Megarry and Wade's book was published in 1959. Since then due to ever increasing developments in science and technology, society has become sophisticated and complex, and legal principles are compelled to take cognisance of these developments, so as to afford sufficient protection to victims of such developments.

Accordingly there has been a reappraisal for example of the rule of mutuality. The traditional rule as stated in Fry on Specific Performance 6th edition at page 219 reads:

"A contract to be specifically enforced by the courts must, as a general rule be mutual — that is to say, such that it might, at the time it was entered into have been enforced by either of the parties against the other of them".

Consequently specific performance was refused for want of mutuality in cases like Forrer vrs. Nash (1865) 55 ER 858; Elliot H-Elliot Builders Ltd. vrs. Pearson (1948) Ch 452; Basma vrs. Weeks (1950) 12 WACA 316; and Flight vrs. Bolland (1824) 38 ER 817.

But in Prince vrs. Strange (1977) 2 WLR 943 CA, the English Court of appeal noted that Fry's statement quoted earlier on, was not supported by English case law. At page 955 of the report Goff L J said:

“... the proposition in Fry is wrong and the true principle is that one judges the defence of want of mutuality on the facts and circumstances as they exist at the hearing, albeit in the light of the whole conduct of the parties in relation to the subject matter and in the absence of any other disqualifying circumstances the court will grant specific performance if it can be done without injustice or unfairness to the defendant."

For as Buckley LJ said at page 967 in the same case:

"Considerations of mutuality go to discretion not to jurisdiction". 

Indeed paragraph 372 of the American Restatement of Contract, states:

"372. The fact that the remedy of specific performance is not available to one party is not a sufficient reason for refusing it to the other party".

And in Ghana, our Court of Appeal in Lartey vrs. Bannerman (1976) 2 GLR 461 at 465 per Amissah J.A. stated:

"... where the infant or other person against whom the remedy of specific performance would not have been available, has performed his side of the contract the decree of specific performance ought to be permissible."

Again, there has also been a trend towards accepting that payment of money can be a sufficient act of part performance to support an order of specific performance. The earlier authorities like, the 2nd edition of Megarry & Wade on the Law of Real Property, sought to entrench an inflexible principle that payment of money, be it in part or full, could not by itself be a sufficient act of part performance: Clinan vrs. Cooke (1775-1802) All ER Rep 16; Madison vrs. Alderson (1883) 6 App Cas 467; Thursby vrs. Eccles (1900) 70 LJ QB 91; and Chaproniere vrs. Lambert (1917) 2 Ch 356.

But the House of Lords in Steadman vrs. Steadman (1974) 2 All ER 977 rejected this view and held that it could do so in appropriate surrounding circumstances. The facts of this case, were that there was an oral agreement between a husband and wife, in the course of divorce proceedings, for the wife to convey her interest in the former matrimonial home to the husband. In return, the husband would pay the wife £1,500, the existing order for child support would remain in force, and arrears of maintenance would be remitted, save for £100.  The husband paid the £100, and caused a deed of transfer to be prepared for the wife's signature. But the wife refused to execute the deed of transfer. The question raised on appeal was whether the oral agreement to transfer the house was enforceable. With only Lord Morris dissenting, it was held by the House of Lords that the payment of the £100 by the husband constituted a sufficient act of part performance, and that the agreement was accordingly binding without writing. As to the question of payment of money amounting to part performance, it was explained that the proper criterion should be the possibility of fraud. The House pointed out that if the party opposing enforcement were able to make repayment of the price, and if this amounted to restitutio in integrum, this would remove any "equity" on which the party pleading part performance could have relied. Lord Reid at page 981 said:

"... to make a general rule that payment of money can never be part performance would seem to be to defeat the whole purpose of the doctrine and I do not think that we are compelled by authority to do that".

Lord Salmon, after giving instances to demonstrate the absurdity and injustice of the proposition, said at page 1007 of the report:

"if the proposition that payment in part or even in full can never be part performance is correct, which in my view, it is not, then the circumstances surrounding the payment must be irrelevant ... I believe that the analysis of the proposition which I have attempted demonstrates that the proposition is fundamentally unsound and would lead to grave injustice".

The House of Lords decision in Steadman vrs. Steadman had been referred to an applied in a number of cases: Dualia Ltd. vrs. Four Millbank Norminees Ltd. (1978) 2 All ER 557 CA; Elias vrs. George Sahely & Co. Ltd. (1982) 3 All ER 801 PC; and Sutton vrs. Sutton (1984) 1 All ER 168.

On our local scene, Edusei J. as he then was, in Djan vrs. Owoo (1976) 2 GLR 401, held, without extensive discussion, that payment of part of the purchase price rendered such a contract enforceable and accordingly decreed specific performance in favour of the plaintiff. Commenting on Edusei J's decision, Prof. A.K.P. Kludze in his book: Modern Principles of Equity (1988) at page 72, writes:

"it is submitted, however, that the decision of Edusei J, makes sense. The old rule, that payment of money is such an equivocal act that it cannot constitute a sufficient act of part-performance in the eyes of equity, is illogical. Most acts are equivocal but may amount to a part-performance of a contract".

Prof. Kudze then referred to Steadman vrs. Steadman (supra), examined it in detail and concluded on page 73 thus:

"In the light of the current authorities, the decision of Edusei, J., in Djan vrs. Owoo (supra) may well be good law. If when reviewed in the light of the circumstances, it may amount to part performance of the contract. An authoritative exposition from the Supreme Court of Ghana must be awaited.  It is respectfully submitted, however, that the Ghana Courts should follow the decision in Djan vrs. Owoo which is also the basis of the decision of the English House of Lords in Steadman vrs. Steadman, and hold that, in an appropriate case, payment of money may constitute a sufficient part performance of a contract".

Now although our courts have not expressly stated that they were following Djan vrs. Owoo (supra), yet there have been instances where the courts have unconsciously adopted the reasoning in Steadman vrs. Steadman (supra). In Donkor vrs. Alhassan (1987-88) 2 GLR 253 CA, the court per Ampiah J.A. as he then was, after referring to the old rule, said at page 258:

"... but in instant case, there has been full payment for an identifiable house. All that was left to be done was the execution of an instrument of transfer to the respondent. In the absence of fraud, duress or unconscionability, this was a contract the court could enforce."

Again in Tahiru vrs: Mireku (1989-90) 2 GLR 615, an action for specific performance of an agreement for sale of a house wherein the plaintiff had paid part of the purchase price, Ampiah J.A., as he then was, sitting as an additional judge of the High Court, decreed specific performance.  In so doing he held, as set out in the head note:

"that once the plaintiff had made part-payment of the purchase price, and the defendant had made use of the money to the detriment of the plaintiff, a refusal to enforce the agreement would amount to fraud in the defendant. See also Redco Ltd. vrs. Sarpong (1991) 2 GLR 457 CA."

In the instant case there is no dispute that the plaintiff paid ¢200,000 out of the ¢600,000 five years rent advance demanded by the defendant. And that the said money was paid for no other purpose than as rent for the premises the defendant had agreed to let to the plaintiff.  At page 64 of the record, the defendant was cross-examined on this as follows:

"Q. You also received ¢200,000 from Mr. Erawoc on behalf of Koglex?

A. Yes.

Q.  As far as you know the money was advance payment of rent by the plaintiff?

A.  Yes, till final agreement."

The records further show that the defendant had up to date not refunded the ¢200,000 rent advance paid to her by the plaintiff.

Would it therefore not be fraudulent on the part of the defendant to make use of this ¢200,000 and still refuse to honour her part of the agreement in respect of which she obtained that money?

Furthermore as already pointed out, the plaintiff after paying the ¢200,000 rent advance, incurred extra expenses to secure a draft lease exhibit C for the consideration of the defendant. Now for what purpose did the plaintiff incur such expenses for the draft lease? And assuming the payment of ¢200,000 advance is not sufficient act of part performance, would the rent advance together with the expenses for the draft lease not constitute part performance?

In Steadman vrs. Steadman (supra), apart from the £100 paid by the husband to the wife, the other acts of part-performance relied on by the husband were (1) the intimation of the agreement to the justices and his abandonment of his attempts to have all arrears of maintenance remitted, and (2) the expenses incurred in preparing the deed of transfer. Although, it is generally accepted that preparatory acts such as instructing a solicitor to prepare a lease or conveyance do not on their own constitute part performance, Lord Reid held that the expenses incurred for the deed of transfer did constitute. At page 980 he said:

“... I am inclined to think that the second could be regarded as part performance. It is the universal custom that a deed of transfer of an interest in land is prepared by the solicitor of the transferee, so the wife or her solicitor as her agent must have known that the husband would incur the cost of preparation of the deed in carrying out the agreement."

Indeed to establish facts amounting to part-performance, what is required of a plaintiff is to show that he had acted to his detriment and that the acts in question are such as to indicate on a balance of probabilities that they were performed in reliance on a contract with the defendant. As DW1 made it clear in his evidence at page 81:

"A. The defendant from the onset was prepared to give that place to PW1 and to him only."

And on the basis of this firm promise, she collected rent advance of ¢200,000, caused the plaintiff to incur extra expenses in getting a draft lease, convened a meeting on 14th September, 1985 to discuss and agree on the draft lease and her comments, and sealed the whole agreement with the pouring of libation which was provided by the plaintiff in cash.

If these facts do not establish a concluded agreement, then I do not know what further facts are needed.

As said earlier specific performance would be granted where it would be fraudulent on the part of the defendant to take advantage of the contract not being in writing: Chaproniere vrs. Lambert (1917) 2 Ch. 356 CA; Tahiru vrs. Mireku (supra); and Donkor vrs. Alhassan (supra)..

Consequently our section 3(2) of the Conveyancing Decree 1973 (NRCD 175) provides that sections 1 and 2 thereof requiring some writing to evidence transfer and contracts to transfer an interest in land, shall be subject to the rules of equity. The section reads:

"3(2) Sections 1 and 2 shall be subject to the rules of equity including the rules relating to unconscionability, fraud, duress and part-performance".

In conclusion, it is evident from the record of proceedings, that the parties came to a concluded agreement on the terms of the lease. And that the terms are constituted by the draft lease as amended by the decisions reached on 14th September 1985 in respect of the points raised in the handwritten memorandum.

I am therefore satisfied that the judgment of the ordinary bench of this court ought to be reviewed. In so reviewing, I am not unaware that I am not sitting on appeal over decision of my learned and respected colleagues.  I however, find myself in the invidious position of observing the problems from a fresh outlook.  For in fairness to my conscience and judicial oath I cannot condone the perpetuation of such a glaring fundamental error as it occurred in this case.

I further feel compelled to draw my learned and respected colleagues' attention to recent progressive developments in the law of specific performance so as to enable us offer meaningful protection to unsuspecting tenants against the machinations of dishonest landlords. Rapid developments in science and telecommunication require corresponding reappraisal of legal principles so as to contain the situation.

I would thus allow the application for the review of the majority decision.

ABBAN, C.J.:

I have the advantage of reading before hand the ruling read this morning by my brother Acquah, J.S.C. and I have nothing useful to add.  I agree with the reasons and the conclusions reached; that is application should be granted, the judgments of the High Court, Court of Appeal and the Supreme Court should be set aside.

In substitution thereof, judgment should be entered in favour of the Plaintiff for the remedies sought in the Writ of Summons filed before the High Court.

AMPIAH, J.S.C.:

 I have read before hand, the opinion of my brother Acquah, J.S.C. and I agree that the application should be allowed.

SAPONG, J.S.C.:

I have read the judgment read by my brother Acquah, J.S.C. and I am clear in my mind that the application should be granted.

ADJABENG, J.S.C.:

After studying carefully the application for review, I am not convinced that Applicants have succeeded in making a case for the review of the majority decision of this Court in the matter.   In my view, what the Applicants seek to do in this application is to re-argue the appeal and to invite this panel to make their own findings on the facts contrary to what the trial Court had found and which was affirmed by the two appellate Courts namely, the Court of Appeal and the Supreme Court.

The trial High Court which saw and heard the witnesses made the finding that there was no agreement for a lease as all the terms had not been agreed upon. The trial judge cited "the point raised by the defendant on the handwritten memorandum" and found that the point did not appear to have been discussed or resolved. The trial judge went on as follows:-

“In view of the previous history of the land of which Mr. Erawoc was aware it was necessary to come to a conclusion about this point.

There is no evidence that the parties reached an understanding about this point."

Indeed, there is no specific piece of evidence in the whole record of proceedings which states that the point mentioned above was resolved by the parties. For the applicant to ask us, therefore, to say otherwise is to ask us to, at best, make a finding contrary to what the trial judge had found or, more seriously, to make a finding not based on the evidence. I need not say that this Court cannot and ought not to do such a thing, especially when it is sitting neither as a trial Court nor an appellate Court, but is sitting on an application for review.

Apart from the points discussed above, it is clear from the evidence that the parties did not consider themselves bound by any terms until a written agreement was signed by both parties. This is very clear from the evidence of the Defendant/Respondent. And that was why she continued insisting that no agreement had been signed. So far as the Applicants were concerned, if that position was not at first clear to them, they came to realise later that that was the reality when their workmen were driven from the premises.  And their Solicitor's letter, exhibit "D" confirms this. I quote what the Respondent said in her evidence-in-chief:-

"At the meeting I did not authorise either P.W.1 or P.W.2 to enter the land. My lawyer did not authorise them to do so ...

It was agreed that my lawyer Owusu Yeboah would draw up another agreement. My lawyer gave them one week to draw up the agreement. We were to  meet after that.

I went to visit my house at Ring Road. I saw Madjoub with about 50 labourers. Wofa Yaw was also there. They were breaking and digging all over the place. I asked them to stop work but they refused. I reported the matter to the Police and work was stopped. I reported this to my lawyer.

Exhibit "E" is the letter my lawyer wrote. I therefore decided to discontinue all negotiations." (Emphasis mine).

It is clear from the evidence above and some other pieces of evidence on the record that the Respondent never agreed to or put the Applicants in possession of the land in question as has been wrongly stated in the Applicants' statement of case in this application. The Applicants went onto the land without the knowledge and consent of the Respondent. That was why the Respondent drove them from the land and they had to leave. If the agreement had been concluded by the parties and the Applicants were put in possession by the Respondent why then were they driven out and why did they leave the land, one may ask?  In a case like the present one, it is very important that the Applicants be put in possession of the land to enable them succeed. See the English cases of Smallwood vs. Sheppards (1895) 2 QB 627, and Ungley vs. Ungley (1876) 4 Ch. D. 73 at 76.

But as has been said earlier, the Applicants were not put in possession of the land.

On the whole, therefore, since the trial judge's decision is supported by the evidence adduced at the trial, and was affirmed by the Court of Appeal, and the Supreme Court, two appellate Courts, it would be wrong for this Court sitting on a review application, and not even as an appellate Court, to reverse that decision.

The application ought, therefore, to be dismissed.

ATUGUBA, J.S.C.:

The facts of this Review application have been related in detail in the Ruling of my learned and respected brother Acquah, J.S.C. that has preceded mine and I do not, except where necessary, propose to restate them.

The ground for this application can be found in paragraphs 11-12 of the applicant's statement of case as follows:

"11. The decision against which this Review application has been brought was delivered by His Lordship Mr. Justice Adjabeng and concurred by Justices Atuguba and Sophia Akuffo. In the cause (sic) of the said Judgment Mr. Justice Adjabeng held as follows:-

'It is not clear what the appellants mean when they talk of the failure by their Lordships in the Court of Appeal to adequately evaluate the evidence on record. Is it not normally the trial court which evaluates the evidence adduced before it and makes findings of fact thereon?" (emphasis supplied).

“12. It is submitted that this approach disabled the majority from also evaluating the evidence on record highlighted in Applicant's Statement of Case so as to draw its own conclusions  ........” (emphasis supplied).

This ground for review seems novel and raises the question whether it is a permissible ground for review in this court. As far as relevant to this application, Rule 54 of the Supreme Court Rules 1996 (C.I. 16) provides:

"54. The Court may review any decision made or given by it on any of the following grounds:

(a) exceptional circumstances which have resulted in miscarriage of justice."

The applicant's ground of application for review is after all not res integra.

It is very similar to the ground of application for review in SWANIKER V. ADOTEI TWI II (1966) GLR 151 S.C. In that case the Supreme Court allowed the respondent's appeal on the ground that the reasoning of the trial court on the various controverted matters on which it pronounced its decision was fallacious. It did not however expose the alleged fallacies. The application for review in that case was founded on the then Supreme Court Rules, 1962 (L.I. 218) rule 33 of which provided as follows:—

"The Court shall not review any judgment once given and delivered by it save where it is satisfied that the circumstances of the case are exceptional and that in the interest of justice there should be a review."

The similarity of this provision with that of rule 54 of C.I. 16 is striking. The Court, while pointing out that there could be no fixed rule for determining what could be regarded as exceptional circumstances and that a review should not be treated as an appeal, granted the application on the ground as stated in the headnote that

"(2) The Judgment of the Supreme Court proceeded on the footing that the reasoning of the trial court on the various controverted matters on which it pronounced a decision was fallacious. That being so it behoved the court to show this by its independent reasoning. That clearly was not done and was apparent on the face of the judgment. In the circumstances, ordinary fairness required that the judgment be reviewed." (emphasis supplied)

The applicant's plaint in this case however is not tenable on the facts of this case. My learned and respected brother Adjabeng J.S.C. having made the statement upon which the applicant fastens his complaint, nonetheless proceeded to evaluate the case as follows:

"In the instant matter the trial High Court Judge weighed the evidence adduced before him and made the appropriate findings. He found that all the terms of the lease had not been agreed upon by the parties. The trial judge supported this finding by the comments made in paragraph 4 (ii) of the handwritten memorandum of the respondent's solicitor on the appellants' draft lease, exhibit 'C'.  There is no evidence to show that agreement had been reached on the issue raised in the said memorandum.

Also, as the trial judge found in his judgment, P.W.1 the plaintiff’s chief negotiator, admitted under cross-examination that the defendant's lawyer was after the meeting on 14th September, “to write the final agreement."  Indeed, a careful reading of the evidence in this case cannot fail to convince one that a final agreement on the lease had not been reached by the parties. Exhibit D, the letter from the plaintiff’s solicitor, and Exhibit E, a reply from the defendant's Solicitor, all show clearly that an agreement had not been concluded by the parties. And this state of affairs has forcefully been confirmed by the fact that the defendant would not tolerate the entry on the land by the plaintiffs and their workers. The defendant drove them from the land twice. If an agreement had indeed been reached as the plaintiffs claim, the defendant would not have driven them out. She even went as far as to the Police. See Smallwood Vrs. Sheppards (1895) 2 Q. B. 627.  And Ungley Vrs. Ungley (1876) 4 CH. D. 73 at 76.

There is no doubt in my mind, therefore that the trial judge's finding that the parties had not agreed on all the terms of the lease and therefore there was no enforceable agreement between them is amply supported by the evidence on record. The confirmation of that finding by the Court of Appeal cannot, therefore, be faulted.” (emphasis supplied).

It is clear from this excerpt, without the need for going further, that Adjabeng J.S.C. did evaluate the evidence before reaching his conclusion. Even a trial judge whose duty it is to make primary findings of fact is not bound to go into excessive details in reaching his judgment.

In REINDORF VRS. AMADU (1962) 1 G.L.R. 508 S.C. at 513 appears the following:

"The learned commissioner delivered his judgment in which he said, inter alia:

‘I will say off hand that I am more impressed by the evidence led by the plaintiffs and their witnesses. That they have proved that they are owners of all that land known as Dome land as shown on exhibit C by their possession and occupation, and trespass has been committed. The traditional evidence led by the co-defendants and their witnesses is inconsistent and unreliable and in my view does not show any evidence of possession and occupation. I visited and inspected the land in dispute and the report is exhibit 18 and the physical features as the pillar marks support the case for the Plaintiffs.”

This portion of the judgment was the basis of an appeal. Counsel for appellant urged that it was the duty of the learned commissioner to have made specific findings of fact on all the matters upon which the defendant had adduced evidence, and as that had not been done the case should be remitted to the court below for retrial.

Dismissing the appeal, Korsah C.J. (Sarkodee-Addo) concurring said:

"I am unable to accede to this request, for the simple reason that the passage in the judgment clearly shows that the court accepted the evidence of plaintiffs and their witnesses, and found

‘That they (plaintiffs) have proved that they are owners of all the land known as Dome Land as shown in exhibit C by their possession and occupation, and trespass has been committed. With regard to the defendant's case, the learned commissioner having come to the conclusion that the traditional evidence led by the co-defendants and their witnesses is inconsistent and unreliable, also that it does not show evidence of possession and occupation, there was no need for him to discuss in detail what each witness said.

In my view having found that the plaintiffs are in possession and occupation, and having accepted their traditional evidence he had made the basic findings upon which he came to the conclusion that the plaintiffs are entitled to the declaration sought." (emphasis supplied).

In my view, mutatis mutandis, the complaint of the applicant in this case is not dissimilar to the complaint in that case, which failed. I must also point out that in addition to expressing my concurrence with my brother Adjabeng J.S.C's judgment I did indicate that I would file my reasons. I subsequently did so and in addition to my support for the grounds of decision given by the Court of Appeal I pointed out several matters, too many to restate in this judgment, (though I was at first minded to do so). Since I have shown that the ground relied on by the applicant is not borne out by the record in this case it follows that his application, ought, on this ground alone, to fail.

Quite apart from that, the applicant's application ought to fail even on the merits. It is trite Law as I stated in EDUSEI V. THE REPUBLIC (No.2) CM 21/96, dated 22nd April 1998, that if a judgment is otherwise supportable, an attack on the same ought to fail even though all or some of the reasons as given for it are wrong. Thus in ABAKAH V. AMBRADU (1963) 1 GLR 456 S.C. at 464 Mills-Odoi J.S.C. (Van Lare and Akufo-Addo, JJ.S.C. concurring) said:

"The judgment of the learned trial judge was based on wrong application of the law in Lartey V. Mensah (supra) which cannot be supported. But a Court of Appeal is entitled to uphold a judgment, if proper grounds exist on the record to justify the judgment even though it cannot be supported for the reason given by the court which gave it.” (emphasis supplied).

In this case the defendant had pleaded in paragraph 36 of his Statement of Defence as follows:

“The Defendant will contend that no lease or agreement whatever has been reached or concluded between her and the Plaintiffs to warrant specific performance and that the said two receipts were issued subject to an agreement being subsequently reached and concluded."

The plaintiff joined issue on this in his reply. Accordingly on the summons for directions the issues settled for trial included the following:

"8. Whether or not at the 14th September, 1985, meeting there was any agreement and if so what were the terms of the agreement,"

“11. whether or not there has been any lease concluded between the parties."

It is clear therefore that the trial judge was called upon to determine, in effect, whether there had been any agreed terms for a lease and also whether any such agreement was subject to contract and if so whether that precondition had been satisfied.

The learned trial judge perceived the case before him only in terms of whether there had been an agreement for a lease but not whether any such agreement had matured into a concluded contract. Thus at page 86 of the record, the trial judge stated between lines 25—33:

“if the court is satisfied that there is an agreement for a lease, an order for specific performance of the agreement can be made.

As I have said there is no agreement for a lease for all the terms have not been agreed upon between parties.”

On appeal, the majority concentrated much rather on the issue whether any agreement reached between the parties was nonetheless subject to contract. In ASARE vs. DONKOR (1962) 2 G.L.R. 176 S.C. and BARCLAYS BANK D.C.O. vs. HEWARD-MILLS (1964) G.L.R. 332 S.C. it was held that where there is evidence on record relating to an issue but the trial Court failed to resolve that issue the appellate Court could itself do so. Of course there is much statutory support for this. They held that the parties commenced their negotiations under the umbrella of the subject to contract clause and that that clause persisted even with respect to the famous negotiations of 14th September 1985 at which the plaintiff contended a complete and exhaustive agreement had been reached and concluded between the parties.

A cursory reading of the judgment of Forster J.A. in the Court of Appeal will show that the conclusions that the parties' agreement was subject to contract which had not matured into a final, concluded and enforceable contract are manifestly supported by the evidence on record. I really hope that the judgments of the Court of Appeal would be reported to facilitate the reader's appraisal of this case since it would be invidious to reproduce them here (as I was minded to do).

By way of summary, however, the position in this case is as follows:

The plaintiff who is the applicant in this case has had to rely on exhibits A and B in the proceedings as part of their case for specific performance.  That was the plaintiff’s proof of an act of part performance, a sine qua non for specific performance where the alleged contract is oral as in this case.

Now exhibit A is as follows:

TEMPORARY RECEIPT

Received from Mr. Michel M. Erawoc of KOGLEX LIMITED, the Sum of One hundred Thousand Cedis (¢100,000.00) Being Rent deposit of six hundred thousand cedis (¢600,000.00) for advance of Five years Rent on the Land and Building on the Ring Road formerly known as (Maridian Industries Ltd.) now rented to Koglex Limited.

The Balance of Five years advance rent being Five hundred Thousand Cedis (¢500,000.00) to be paid immediately the agreement is completed and signed. (Emphasis supplied)

Paid and signed in the presence of Mr. Charles Pappoe and Mr. Roc-Mensah, Dated this 4/9/85.

WITNESS:-

1. ROC-MENSAH (SGD)                                                   MRS. KATE FIELD (SGD)            (ANAKWA)

2. CHARLES PAPPOE (SGD)

And exhibit B is as follows:

I have received a further sum of one hundred thousand cedis (¢100,000,00) to make Two hundred thousand Cedis (¢200,000.00) being advance rent for the lst 5 years rent of (¢600,000.00) on my building at Ring Road Accra formerly known as Maridian Industry LTD.

Total Balance to be paid is now Four Hundred Thousand Cedis (¢400,000.00). On the signing of the lease of the agreement between Michel Erawoc, Managing Director of KOGLEX Limited and me Mrs. Kate Field also known as (Kate Anakwa). Dated this Thursday 5th September, 1985.

In the presence of Mr. Charles Pappoe and Roc-Mensah.

1st WITNESS

ROC-MENSAH (SGD)

RECEIVER

MRS. KATE FIELD (SGD)

(ANAKWA)

2ND

CHARLES PAPPOE (SGD)  

(Emphasis supplied)

It is pertinent that the minority in the decision of this court dated the 20th day of May 1998 also took the view that these exhibits raised the issue of the parties' agreement being subject to contract but held that that issue could not hold because everything had been concluded at the 14th September 1985 meeting. But reliance on exhibits A and B as they stand was placed by the plaintiff (the applicant herein) even after the said meeting of 14th  September 1985!

I must remark that the parties can expressly or impliedly discharge a subject to contract clause, but until that is done once negotiations commence under its umbrella the parties' negotiations are affected by it, even if protracted. This is demonstrated by the English case of COHEN Vs. NESSDALE LTD. (1982) 2 All ER 97 C.A. The Headnote states:

"The tenant occupied a flat as a statutory tenant holding over on the expiry of a long lease. His Landlords entered into negotiation with him for the sale of a long lease by offering, in March 1977, to sell a long lease of the flat to him for £20, 000 subject to contract.' Negotiations ensued between the parties without agreement until May, when the tenant broke them off on discovering that the landlords had applied to the rent officer to increase the rent. In July and August the tenant wrote on other matters to the estate agents appointed by the landlords to collect the rent but suggesting that the question of the new lease be resolved. On 2 November the landlords wrote to the tenant referring to the negotiations and then suggesting further consideration of the sale and purchase of leasehold interest. The letter was expressed to be 'without prejudice; but not' subject to contract'. On 18 November the landlords and the tenant met and orally agreed the sale of 99 year lease for £17,000. No reference was made to the agreement being subject to contract, and it was mutually understood that documentation would be completed by their respective solicitors by the end of the year. On the same day the landlords confirmed the agreement in writing. The landlords later informed the tenant that they did not intend to proceed with the sale. The Plaintiff brought an action against the landlords, seeking specific performance of the contract on the ground, inter alia, that the landlord's letter of 18 November was evidence of a final contract which had been agreed by the parties without being subject to contract and which the tenant had part performed by making the first payment of rent under the new lease. The judge dismissed the tenant's action on the ground that the negotiations in November were not new negotiations and were still covered by the ‘subject to contract’ qualification which had applied to the earlier negotiations.  The tenant appealed.

Held – ‘A ‘subject to contract’ qualification, once introduced into negotiations, could only cease to apply to the negotiations if the parties expressly or by necessary implication agreed that it should be expunged. There had been no express agreement that the discussions in November 1977 were not to be subject to contract, nor could such an agreement necessarily be implied, because, in view of the facts that the tenant had broken off the discussions in May 1977 not over the terms of the lease but as a result of the landlords’ attempt to raise the rent and that he thereafter continued to make overtures to the landlords through the estate agents, the meeting in November was not the commencement of new negotiations but merely the resumption of existing negotiations which had been interrupted and which continued on the basis that the previously existing ‘subject to contract’ qualification still applied. Furthermore, even if the parties had entered into new negotiations in November 1977, it was not necessarily to be implied that they had done so on a completely different basis from that on which they had hitherto conducted negotiations and that their negotiations were no longer to be subject to contract. Accordingly, the judge had been right to refuse the tenant specific performance because the landlord's letter of 18 November did not constitute a final contract. The tenant's appeal would therefore be dismissed.”

The plain truth of the matter is that there was nothing at all said about exhibits A and B at the 14th September 1985 meeting of the parties which is said to be so conclusive and final. They therefore still stamp those negotiations with the character of being subject to contract. But assuming that the famous 14th September 1985 meeting did throw off the said exhibits A and B and that a valid enforceable contract was then concluded. One may ask what is the act of part performance to support the action for specific performance? There would be none and that is why the Plaintiff had, as I earlier said, to rely at the trial on the said exhibits "A" and "B" as evidence of part performance. The effect conveyed by these exhibits was quite appreciated by the plaintiff who testified at p.37 of the record between lines 6-7 as follows:

"Q. Exhibits A & B state that the agreements had not been completed?

A. Yes"

It is plain on the face of exhibits A and B that the agreement could only be completed when it is written and signed by the parties. Since this has not been done, even putting aside technical notions of "subject to contract", where is the contract in respect of which the sum of ¢200,000.00 evidenced by those exhibits can be a part performance to support the action for specific performance? None, whatsoever and there being none how could the Plaintiff’s said action for specific performance have succeeded?

But even the said famous negotiations of 14th September 1985 themselves show that they were subject to contract. Thus at page 25 of the record between lines 30-31 the plaintiff through its Managing Director (PW1) testified in examination-in-chief as follows:

"The defendant's solicitor and our solicitor took notes and the defendant's solicitor said he would draw up the final agreement for us to sign. We ......... all of us shook hands and the defendant suggested that libation should be poured. Mr. Madjoub went to his car and brought ¢10,000 which he put down as libation. We dispersed happily." (Emphasis supplied)

Then at page 40 of the record PW.1 further testified under cross- examination as follows between lines 35-36 and page 41 between lines 1 - 10 as follows:

"Q. The upshot of your 14th September meeting was that the defendant's lawyer was to write the final agreement?

“A. Yes.

Q. If by the 27th September the allegedly final agreement embodying the allegedly agreed terms has not appeared what basis do you have for claiming that there is an agreement?

A. After the payment of ¢200, 000. 00 and the drink at the 14th September meeting, I had all the right to enter.”

Even though the 14th September 1985 meeting had stipulated that the whole 20-year rent advance was to be paid to the defendant, P.W.2 “the chairman” of the plaintiff company testified at page 44 of the record between lines 3 - 4 as follows.

“As soon as the agreement was signed then we would pay defendant the 20 years rent in advance.” (emphasis supplied)

And at page 94 of the record the plaintiff’s own solicitor stated in exhibit "D" what was to happen pursuant to the 14th September 1985 meeting as follows:

“Thereafter the parties were to sign the final tenancy agreement." (emphasis supplied)

The defendant also testified at page 53 lines 22 - 24 and page 64 lines 29 - 35 as follows:

“53. It was agreed that my lawyer Owusu Yeboah would draw up another agreement. My lawyer gave them one week to draw up the agreement. We were to meet after that.”

"64. Q. As far as you know the money was advance payment of rent by the Plaintiffs?

A. Yes, till final agreement.

Q. You are also aware that the plaintiffs company had gone on the land and done some work which involved their expending some money?

A. They were trespassers.

D.W. 1 also testified at page 77 lines 33 - 37 and 78 lines 1 - 20. as follows:

"77. Q. Were decisions taken on all of them during the meeting.

A. Yes.

Q. After the meeting instructions given to the defendant's Solicitor to do anything as regards the decisions at the meeting?

“78. A. The decision was that our lawyer was to go and put into proper writing what had been discussed. This has not been done before they started to go and work on the land.

Q. Up to this time has your Solicitor done what you asked him to do?

A. No. This case has since been before the Court.

Q. Was it not because you and your Solicitor was not bringing the document to be signed that has occasion this trial?

A. No

Q. At the meeting of the 14th September, 1985 P.W. 1 and P.W.2 agreed with the defendant for a lease of 20 years with an option of renewal for 10 years?

A. There was no agreement.

Q. I also put it to you that the rent of the lease was agreed at ¢10,000 a month.

A. It could be when it is confirmed by the agreement.

The courts have held that expressions such as “subject to formal contract”, [See SHERBROOK E Vrs. DIPPLE (1980) 41 P & CR 173 and RAINGOLD Vrs. BROMLEY (1931) 2 Ch 307] or "subject to the terms of a format agreement to be prepared by their solicitors," or "subject to the terms of a lease," or "subject to .... a lease to be drawn up by our client's solicitors," etc.

(See SPOTTIS WOODE V. DOREEN APPLIANCES LTD. (1942) 2 All E R 65 C.A,) amount to rendering the agreement in question subject to contract. The legal consequence of that expression is too well known to require restatement  here. In ALPENSTOW vs. REGALIAN PROPERTIES PIE (1985) 2 ALL ER 545, Nourse, J. however pointed out at p.252 that

“the position is that the words "subject to contract" have a clear prima facie meaning, being in themselves merely conditional. But there might be a very strong and exceptional context which would induce the Court not to give them that meaning in a particular case.”

Megarry and Wade, in their treatise, The Law of Real Property, 3rd Edition, states at page 571 as follows:

"Evidence of the contract" The court requires clear evidence, whether parol or otherwise, that there was a contract "certain and definite in its terms" between the parties. The court will not assist the plaintiff if there was no final contract, matters being still in the stage of negotiations. No amount of what would otherwise be part performance will... make into an agreement that which is not an agreement at all, such as agreement "subject to contract." (emphasis supplied)

It is therefore quite clear that the expressions, some of which I have extracted from the record in this case, and the surrounding circumstances concerning the agreement reached on the famous 14th day of September 1985 rendered that agreement subject to contract. As no final contract was ever prepared and executed by the parties before the plaintiff launched his suit, the same was rightly dismissed from the High Court through to the Court of Appeal and this Court. The parties' right to make their own contract is reinforced by the 1992 Constitution's provisions on the fundamental human rights and must be protected.

The applicant’s application for review of this court’s judgment dated the 20th day of May 1998 is therefore, if I may say so without disrespect, merely and act tending to disturb the peace of that judgment and I would dismiss the same.

SOPHIA AKUFFO, J.S.C.:

I agree that the application be dismissed.

COUNSEL

Mr. Ayi Koi Otoo for the Applicant

Mr. Ray Kakraba Quarshie for the Respondent

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