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RULING
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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