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Contract -
Agreement - Specific performance
- Sale of land - Awarded of
damages – Whether or not
Justices of the Court of Appeal
erred in law when they failed to
grant an order for the specific
performance of the contract for
the sale of the said land
HEADNOTES
The plaintiff
in this case sued the defendant,
claiming an order of specific
performance of an agreement
reached between him and the
defendant on or around 3rd
October 2007 in respect of land
situated at Achimota, next to
the Accra Motorway Extension.
He also claimed an injunction
restraining the defendant from
selling the land in dispute to
any third party pending the
final determination of the suit.
After a full trial, the learned
trial High Court Judge, , upheld
the claim of the plaintiff and,
in a judgment of 5th
November, 2010, granted him an
order for specific performance
of the contract for the purchase
of the land in dispute which she
held had been proven on the
evidence. The defendant appealed
to the Court of Appeal, which
set aside the order for specific
performance and instead awarded
the plaintiff damages. The
plaintiff, being dissatisfied by
that outcome, has appealed to
this court for redress
HELD
In our view
the decision of the Court of
Appeal to reverse the decision
of the learned trial judge to
grant an order of specific
performance and to substitute an
award of damages in its place
was erroneous and should be
overturned. We would restore
the order of the learned trial
judge that the contract held by
both her and the Court of Appeal
to exist between the plaintiff
and the defendant should be
specifically enforced. To sum
up, we would reverse the
decision of the Court of Appeal
to deny the plaintiff the
specific performance ordered by
the learned trial judge and to
find that he had not made an
additional payment of $2,000
beyond the payment evidenced in
writing. We would thus restore
in full the judgment of the
learned trial judge.
From my
examination of the evidence on
record, I am of the considered
view that there being no
justification for the Court of
Appeal to depart from the said
findings, and none whatsoever
have been given, the decision of
the Court of Appeal to
nonetheless depart from those
findings in the face of
overwhelming evidence to the
contrary is mind boggling.It is
therefore clear that the
decision of the Court of Appeal
to set aside the order for
specific performance and instead
award damages in the sum of
GH¢3000.00 has not been well
made out.It must therefore be
noted that, appellate courts
must be very circumspect in
departing from the findings of
fact made by trial courts and
unless the said findings are
perverse or are manifestly
outrageous and cannot be
supported having regard to the
evidence on record, the safest
route is to abide and accept the
findings made by the trial Court
In the instant case, it is
difficult to appreciate why the
learned Judges of the Court of
Appeal decided to go off at a
tangent and brought in
extraneous matters like
considerations of fraud, undue
influence, unfairness and
hardship when it was clear from
the record that all these had
not been proven.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Adderley v. Dixon (1824), 1 Sim.
& St. 607, 57 E.R. 239,
Sudbrook
Trading Ltd. v Eggleton [1983] 1
AC 444
Ahumah v
Akorli (No. 2) [1975] 1 GLR 473
Achoro v
Akanfela [1996-97] SCGLR 209
Fosua & Adu
Poku v Dufie (Deceased) and Adu
Poku Mensah [2009] SCGLR 310 at
313
Gregory v
Tandoh IV and Hanson [2010]
SCGLR 971
BOOKS
REFERRED TO IN JUDGMENT
Fry on
Specific Performance, 5th
ed. p. 19:
The Principle
of Equitable Remedies, 3rd
Edition by ICF Spring
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
J. K AGYEMENG
WITH HIM KWAME AKUFFO BOAFO FOR
THE APPELLANT.
DAVID BOAFO
FOR THE RESPONDENT.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
DR. DATE-BAH
JSC:
The issues
raised by this appeal are
principally those of law,
although there are also some
issues of fact. The principal
legal issue raised is: when may
the remedy of
specific
performance, which is
usually available in relation to
contracts for the purchase of
land, be withheld from a
purchaser of land? The settled
conventional position of the law
is that, upon breach of a
contract for the
sale of
land, the primary remedy
available to the innocent party
is specific performance,
although this is a discretionary
equitable remedy. The facts of
this case require this court to
inquire into the circumstances
in which this settled view of
the law will be departed from.
Courts in common law countries
have relied on a limited range
of grounds in the exceptional
cases where the remedy of
specific performance has been
denied to a purchaser of land.
The judgments in the Court of
Appeal in this case raise the
issue whether any of these
grounds is applicable on the
facts here.
The facts
The plaintiff
in this case sued the defendant,
claiming an order of specific
performance of an agreement
reached between him and the
defendant on or around 3rd
October 2007 in respect of land
situated at Achimota, next to
the Accra Motorway Extension.
He also claimed an injunction
restraining the defendant from
selling the land in dispute to
any third party pending the
final determination of the suit.
After a full
trial, the learned trial High
Court Judge, her Ladyship Novisi
Aryene J, upheld the claim of
the plaintiff and, in a judgment
of 5th November,
2010, granted him an order for
specific performance of the
contract for the purchase of the
land in dispute which she held
had been proven on the evidence.
The defendant
appealed to the Court of Appeal,
which set aside the order for
specific performance and instead
awarded the plaintiff damages.
The
plaintiff, being dissatisfied by
that outcome, has appealed to
this court for redress. In
his Notice of Appeal, the
plaintiff states that his
complaint is in respect of:
“That part of the judgment
reversing the High Court’s
judgment for a decree of
specific performance and thereby
substituting an award for
damages.” The plaintiff’s
original grounds of appeal are
as follows:
I.
“The part of the judgment
complained of is against the
weight of the evidence on
record.
II.
Further grounds of appeal will
be filed upon receipt of the
record of appeal.”
The plaintiff
has subsequently filed the
following additional grounds of
appeal:
(a)
“Having found that a valid
enforceable contract existed
between the Appellant and the
Respondent for the sale of the
specific parcel of land which is
the subject of litigation
between the parties, the Learned
Justices
of the Court of Appeal erred in
law when they failed to grant an
order for the specific
performance of the contract for
the sale of the said land
although in all the
circumstances of the case the
Respondent’s failure to convey
the land could, contrary to the
position of the Learned
Justices, not be adequately
compensated for in damages in
favour of the Appellant.
(b)
The Learned Justices of the
Court of Appeal erred in law by
not taking into consideration
certain relevant portions of the
Record of Appeal especially the
Notice of Payment Into Court
which appears at page 367 (T) of
the Record of Appeal and even
before the Defendant filed her
Appeal against the Judgment of
the High Court on 12/11/2010 as
appears at page 368 of the
Record of Appeal and thereby
disabled themselves from giving
the
Plaintiff/Respondent/Appellant
the Relief of Specific
Performance he had sought for in
his action against the defendant
and which Relief he properly
deserved; that the Learned
Justices of the Court of Appeal
also erred in law by failing to
observe and give due weight to
the Notice of Payment made into
Court by the Plaintiff/Appellant
as appearing at Page 367(U) of
the Record of Appeal, and
thereby further disabled
themselves from doing justice to
the Plaintiff/Appellant herein.
(c)
The learned Justices of the
Court of Appeal erred in law
when they glossed over the
crucial fact that at all
material times, the
Defendant/Respondent in this
Appeal who had pleaded
illiteracy and undue influence
and absence of contract between
her and the Plaintiff/Appellant
herein was not entitled to rely
on the alternative plea, if any,
with respect to the adequacy or
sufficiency of consideration,
and accordingly she did not and
could not have given any
credible evidence as to the
adequacy or sufficiency of
consideration, and the learned
Justices erred further in
treating the admitted payment
made by the Plaintiff as
inadequate or insufficient when
the Plaintiff never denied the
price of the land or refused to
pay same at any time.”
On appeal,
the Court of Appeal confirmed
the main findings of fact of the
learned trial judge. Both the
judgments of Ofoe and Dzamefe
JJA accepted the finding by
Aryene J. that there was a
written contract between the
parties in terms of a written
receipt that the defendant had
given the plaintiff and rejected
the defendant’s testimony whose
purpose was to resile from the
deal. A review of the record of
appeal reveals that there was
adequate evidence on record to
support this concurrent view of
the courts below and their
findings should be accepted by
this Court as well.
However, the
Court of Appeal denied the
plaintiff the remedy of specific
performance. Ofoe JA said (at
p. 557 of the Record):
“Should we
impute fraud to the defendant
such that the court will be
promoting fraud if we do not
order specific performance of
the contract looking at the
circumstances of each case? It
is worth noting that
jurisdiction of the court in
specific performance is based on
the inadequacy of the remedy of
damages at common law and so it
follows that as a general
principle of equity will not
interfere where damages at law
will put the plaintiff in a
position as beneficial to him as
if the agreement for the sale of
the property had been
specifically performed.
Recognizing highly that the
remedy of specific performance
is discretionary and this
discretion is to be exercised
judicially according to well
settled rules or principles, and
guided by the facts and
circumstances of this case we
come to the conclusion that it
would not be fair and just to
grant the decree of specific
performance in favour of the
plaintiff. We think that an
award of damages will be
sufficient and full compensation
in lieu of the order of specific
performance.”
Ofoe JA
reaches this conclusion as a
result of his earlier thinking
aloud on this issue as follows
(at p. 553 of the Record):
“It has
always been a dominant principle
that equity will only grant
specific performance if under
all the circumstances it will be
just and equitable so to do.
Land it has been recognized
because it is of fixed location
and that no two lands are the
same is of special and unique
value and therefore ordinarily
damages are not regarded as an
adequate substitute for the
right to acquire it. In the
NTHC case His Lordship Date-Bah
recognized this principle when
he stated at page 130 that
“however, the question is
framed, though, there is little
doubt that contracts for the
sale of land qualify for the
remedy, ceteris paribus”. This
recognition I believe is because
of the accepted principle that
land is of special value. What
has been agitating my mind in
application of this principle of
specific performance, as it
relates to land, is this special
attribute that is given to land
such that remedy in damages is
found not satisfactory
compensation to a plaintiff who
has entered into a contract for
the purchase of land and the
defendant seeks to resile from
the contract. Damages are found
not adequate remedy specific
performance is normally ordered
against the defendant. Why
should land be given such
special value and uniqueness as
to invoke a rule that in all
cases reasonable damages as
compensation cannot be
satisfactory where the defendant
evinces the intention not to
perform his part of the contract
specific performance would have
to be ordered? Shouldn’t each
case be examined within its
circumstances whether damages
should not be an adequate remedy
in such land transactions?”
It is thus
Ofoe JA’s challenge of the
orthodox legal position which
leads him to the conclusion
expressed in the earlier
quotation from his judgment.
The issue is whether the
position he takes is justified
in law. Equally, there is need
to determine whether Dzamefe JA
was also right when he agreed
with him in the following terms
(at p. 575 of the Record):
“The trial
judge exercised her discretion
to order the decree of specific
performance. However I think in
fairness and with the greatest
respect to the trial judge that
discretion was not just since
damages in this case could
adequately compensate the
respondent in the
circumstances.”
We will
accordingly next examine the law
on specific performance of
contracts for the sale of land
in order to determine whether
this position of the learned
Justices of Appeal is correct or
erroneous.
The law on
specific performance of
contracts for the sale of land
The position
of English law which has been
adopted and followed in this
jurisdiction as well is that
specific performance is the
primary remedy available for
breach of a contract to sell
land. The courts will not
refuse to grant the remedy in
relation to land simply because
it is claimed damages would be
an adequate remedy. Although
more generally in relation to
the remedy of specific
performance, there is a
requirement that damages must be
inadequate before an order for
it is granted, the law presumes,
in relation to land, that
damages are an inadequate
remedy. This position of the
law is in part the result of
history. Early in the history
of equity, most petitioners who
sought the exercise of this
equitable jurisdiction claimed
specific performance of
contracts to sell land. As
these petitions succeeded, they
became the building blocks for
the legal proposition that
specific performance, although a
discretionary remedy, is usually
available to enforce contracts
for the sale of land. This
presumptive availability of
specific performance in relation
to contracts for the sale of
land is often expressed in terms
of the uniqueness of land as a
subject-matter of a contract and
therefore the inappropriateness
of monetary compensation as a
remedy for breach of such a
contract.
In Adderley v. Dixon (1824), 1
Sim. & St. 607, 57 E.R. 239,
Sir John Leach, V.C., stated (at
p. 240):
“Courts of Equity decree the
specific performance of
contracts, not upon any
distinction between realty and
personality, but because damages
at law may not, in the
particular case, afford a
complete remedy. Thus a Court of
Equity decrees performance of a
contract for land, not because
of the real nature of the land,
but because damages at law,
which must be calculated upon
the general money value of land,
may not be a complete remedy to
the purchaser, to whom the land
may have a peculiar and special
value.”
The
traditional English view on this
matter would appear to be that
land is deemed to be unique and
there is no need to inquire into
the uniqueness of specific
parcels of land. The English
courts have, therefore, tended
to grant specific performance of
contracts for the sale of land
as a matter of course, unless
there is a reason for denying
equitable relief. The rationale
for this approach is that land
is considered to be inherently
unique and therefore specific
performance is responsive to
this attribute of it in ensuring
that a purchaser gets what he
contracted for and not an
inadequate monetary substitute.
In
Sudbrook Trading Ltd. v Eggleton
[1983] 1 AC 444 at 478, Lord
Diplock explained this approach
of the law as follows:
“Since if
they do not acquire the fee
simple they will not have to pay
that price, the damages for loss
of such a bargain would be
negligible and, as in most cases
of breach of contract for the
sale of land at a market price
by refusal to convey it, would
constitute a wholly inadequate
and unjust remedy for the
breach. That is why the normal
remedy is by a decree of
specific performance by the
vendor of his primary obligation
to convey, upon the purchaser’s
performing or being willing to
perform his own primary
obligations under the contract.”
In Ghana,
Amissah JA, sitting in the High
Court, expressed a view to the
same effect in
Ahumah v
Akorli (No. 2) [1975] 1 GLR 473
at 479, where he stated:
“But what is
the agreement arrived at between
the parties which this court is
asked to enforce specifically?
It is an agreement over the
transfer of land against the
fulfillment of a condition.
Agreements involving land have
been held to be eminently
suitable for enforcement by this
equitable remedy, it often being
impossible to put the injured
party into a comparable position
by the award of damages as
compensation.”
Thus,
specific performance is the
usual remedy where a purchaser
of land proves breach of a
contract for the sale of land,
though the grant of specific
performance is never automatic
and the courts have always
preserved the integrity of their
discretion to grant or refuse
the remedy. The discretion is,
however, exercised according to
well-established rules.
Specific performance cannot be
whimsically denied. On this
point, an English judge, Astbury
J., said, in Holliday v Lockwood
[1917] 2 Ch 47 at 56-57:
“The next
question is whether I ought to
allow the defendant’s
counterclaim for specific
performance. The result of the
authorities is stated in
Fry on
Specific Performance, 5th
ed. p. 19: “If the
defendant [to a specific
performance action] can show any
circumstances dehors,
independent of the writing,
making it inequitable to
interpose for the purpose of a
specific performance, a Court of
Equity, having satisfactory
information upon the subject,
will not interpose…. But of the
circumstances calling for the
exercise of this discretion, the
Court judges by settled and
fixed rules; hence the
discretion is …. judicial ….
The mere hardness of the results
will not affect the discretion
of the Court.”
Accordingly,
what this Court needs to examine
is the legitimacy of the grounds
on the basis of which the Court
of Appeal denied the remedy of
specific performance to the
plaintiff on the facts of this
case.
The Court of
Appeal’s reasons for departing
from the traditional perception
of the law.
Ofoe JA
expressed his grounds for
departing from the law expounded
above as follows (at p. 554 of
the Record):
“Whether
damages are an adequate remedy
should be a question of fact in
each particular case.
ICF
Spring, in his book,
The
Principle of Equitable Remedies,
3rd Edition at
page 1 said:
“The
principles of equity should be
widely understood and that they
should not ossify, but as in the
past, should be fruitful and
receive new applications where
appropriate.”
It is this
thinking that in my view should
be guiding the courts in the
grant or refusal of equitable
reliefs and support reviewing of
the rules that govern grant of
specific performance in land
purchase transactions. Whether
land should be given such
special attribute as to defy
damages as adequate compensation
and therefore demand for the
order of specific performance
should be granted should be
governed by the evidence and the
circumstances of the case. Each
case should be examined within
its circumstances whether
specific performance should be
ordered in such breaches of
contracts relating to land
purchases. It should be a
matter of evidence whether the
land in dispute should be
accorded that uniqueness such
that damages may not be an
adequate compensation.”
Ofoe JA’s
view of the law is profoundly
subversive of a settled area of
the law that impinges on the
proprietary rights of many. His
view would make the equitable
title that purchasers of land
are usually presumed to acquire
after contract but before
conveyance very precarious. The
notion of an equitable title
after contract is predicated on
the availability of the remedy
of specific performance and the
maxim “equity regards as done
that which ought to be done.”
To remove the right of
purchasers of land, subject to
the usual limits and factors
affecting equitable relief, to
the remedy of specific
performance would be quite
radical and, in our view,
unjustified. The replacement of
the qualified entitlement to
specific performance with a
factual investigation each time
as to the uniqueness or not of a
particular parcel of land would
generate great uncertainty in
land purchase transactions, in
our view quite unnecessarily.
The desirability of ensuring
that the principles of equity
should not ossify cannot justify
overturning a settled rule that
has provided predictable
guidance for decades to
purchasers of land.
Ofoe JA in
fact admits that the land the
subject-matter of this suit had
a special value when he said (at
p. 555 of the Record):
“Now in the
case before us the evidence is
clear that the plaintiff was
clear in his mind where he
wanted the land and the purpose
why he wanted this particular
land. In such a situation to
give this land its special value
because there can be no two such
lands should be non
controversial.”
In spite of
admitting this traditional
justification for the grant of
specific performance, he argues
against its grant, contending
that the decision whether or not
to grant the remedy is subject
to other equitable
considerations such as fraud,
undue influence, unfairness or
hardship. The learned Justice
of Appeal does not find any of
these factors to be established
on the facts of the case. He
nevertheless continued that (at
p. 556 of the Record):
“Where none
of these equitable discretionary
matters prevail then even if
there is inadequate
consideration, specific
performance may be granted by
the court. The parties agreed
to the price of one Billion
cedis for this land. A total of
4,000 dollars (1000, 1000 and
2000) and 2m cedis were paid in
installment. What did the
defendant use this money for?
The plaintiff in his evidence
said she said she was going to
use it for some documentation
and for his son who had been
involved in an accident with a
Mercedes Benz. The trial judge
found that she used it for
documentation at the lands
commission. I have looked at
the price of the land and the
payment in driblets of this
4,000 dollars and further read
the receipt whether there was
any agreement on how the one
Billion Cedis should be paid and
when it was supposed to be
paid. Clearly absent was when
and how the money was to be
paid. And there was no evidence
throughout the trial that the
plaintiff was ready and willing
to honour his part of the
agreement i.e. pay the balance
of the 1 billion. Indeed there
is no evidence the defendant had
fulfilled or substantially
fulfilled his side of the
contract. Would it be fair to
order this land to be given to
the plaintiff only because he
has paid this fraction of the
selling price?”
We believe
that the learned Justice of
Appeal fell into error in this
passage of his judgment. Once
the trial court and the Court of
Appeal accepted that a valid and
enforceable written contract had
been entered into for the sale
of the land at an ascertained
price, specific performance
became available in relation to
it. Although the contract was
executory, in the sense that
neither party had yet performed
his or her obligations under it,
the mere exchange of promises
was enough to make the agreement
binding, according to standard
common law doctrine. It was not
necessary for the contract to
have spelt out how the purchase
price was to be paid. The
effect of an order of specific
performance would not be to hand
over the land to the purchaser
for only a fraction of the
selling price. The order would
compel the parties to fulfill
their obligations under the
contract. Thus the purchaser
would have to pay the purchase
price in full in exchange for a
conveyance of the interest in
the land to him by the vendor.
Indeed, as the
plaintiff/appellant points out
in his Statement of Case and
which seems to have escaped the
attention of the Court of
Appeal, the appellant had
already paid the full purchase
price into court before the
hearing of the appeal by the
Court of Appeal. Furthermore,
since the case of the
defendant/respondent, which was
disbelieved by the courts below,
was to deny that she ever
entered into a contract with the
plaintiff, the issue of whether
the plaintiff was ready and
willing to honour his part of
the agreement was not one which
loomed large in their
relationship.
In the
appellant’s Statement of Case,
he makes the following cogent
points:
“The Court of
Appeal had not found any fraud
or undue influence on the part
of the plaintiff. It was not
the case that the defendant had
demanded full payment of the
price of the land and the
plaintiff had refused or failed
to pay. Under normal
conveyancing, full payment for
land is settled at the execution
of the Deed of
transfer/Completion of the sale
and purchase or as agreed by the
parties. Since the defendant
had changed her story as to how
the agreement had come about and
the Court had found her
untruthful and unreliable, it
would be wrong to use the
non-payment of the full amount
as a basis for refusing to grant
specific performance as if the
fault was that of the
plaintiff. In any case, the
Plaintiff made it clear in his
Pleadings and evidence that the
Defendant having informed him of
the offer letter from the Lands
Commission, he stood ready to
make good the outstanding
payment. The Defendant chose to
avoid the Plaintiff. When the
trial Court gave its judgment
the plaintiff did pay the amount
into Court. Indeed the Court
had found that inadequacy of the
amount paid for the land was no
ground for refusing to order
specific performance. In fact,
that issue did not arise on the
facts of this case.”
Accordingly,
we find that the reasons
preferred above by Ofoe JA for
refusing to grant the order of
specific performance are not
persuasive.
The final
reason given by Ofoe JA for
denying the grant of the remedy
of specific performance was that
it would not be fair and just to
do so. He appears to link the
fairness and justice to the
adequacy of damages as an
alternative. The passage in
which he makes this linkage (at
p. 557-8 of the Record) has
already been quoted above.
Dzamefe JA (supra) relied on a
similar ground of unfairness
linked to adequacy of damages to
deny the remedy. This issue of
the adequacy of damages as an
alternative to specific
performance has already been
dealt with above, where we have
endeavored to demonstrate that
reversing the presumption that
specific performance is the
normal remedy for breach of a
contract for the sale or
purchase of land is likely to
cause turbulence in a settled
area of the law and undermine
the orthodox learning that
between contract and conveyance
the purchaser of land has an
equitable title.
Conclusion on
specific performance
In our view
the decision of the Court of
Appeal to reverse the decision
of the learned trial judge to
grant an order of specific
performance and to substitute an
award of damages in its place
was erroneous and should be
overturned. We would restore
the order of the learned trial
judge that the contract held by
both her and the Court of Appeal
to exist between the plaintiff
and the defendant should be
specifically enforced.
The rejection
by the Court of Appeal of the
further payment of two thousand
dollars
In arguing
his original ground of appeal,
that the judgment of the Court
of Appeal was against the weight
of evidence, the plaintiff
asserts that the rejection by
the learned Justices of Appeal
of a payment of two thousand
dollars he had made to the
defendant had occasioned him a
miscarriage of justice. The
passage in Ofoe JA’s judgment
complained of by the plaintiff
is the following (at p. 441):
“There is
dispute how much was paid and
when. The trial judge found
that in all 6,000 dollars and GH
200 was paid to the defendant of
which 4,000 dollars was
receipted. She rejected the
defendant’s claim that she was
given 4,000 dollars and not
6,000 dollars. Exhibit A is the
receipt for the 4,000 dollars.
She rejected the defendant’s
evidence that the sale was
conditional on the consent of
some named family members of
hers. With these pieces of
evidence she concluded that
there was a contract between the
parties for the sale of land to
the plaintiff. Reading the
record of appeal there is no
evidence that will entitle us to
interfere with these findings of
the trial court, except as to
that relating to the 6,000
dollars. It is the plaintiff
who on the pleadings has the
duty to prove the total payment
of 6,000 dollars as he alleged.
His evidence on this payment
found at pages 63 and 64 of the
appeal record, in my view fell
short of establishing such
payment. In his evidence he
testified to first payment of
1,000 dollars, a second payment
of 1,000 dollars, followed by
payments in cedis. Then a
subsequent payment of 2,000
dollars. Simple arithmetic adds
these up to 4,000 dollars. His
witness, Mr. Koomson’s evidence
was not consistent he could only
establish his knowledge of
payment of 1,000 dollars. We
will therefore set aside the
trial courts finding of the
payment of the 6,000 dollars and
in its place accept 4,000
dollars.”
The finding
of the learned trial judge which
was thus set aside was expressed
as follows by her (at p. 354 of
the Record):
“The fourth
installment was paid to the
defendant in her house.
Plaintiff testified that on
receipt of the offer letter from
the Lands Commission, Defendant
invited him to her house on 1st
November, 2007 and after
informing him about the offer
letter, demanded a further sum
of $2,000 which he paid. This
evidence was confirmed by
Koomson. It is significant to
note that neither plaintiff nor
PW1 was challenged on the
payment of the additional
$2,000.
On authority
of Fori v Ayirebi [1966] GLR
627, that when a party had given
evidence of a material fact and
was not cross-examined upon, he
need not call further evidence
of the fact, I find that
defendant demanded and was paid
an additional $2,000.”
The
plaintiff, his Statement of
Case, complains that the Court
of Appeal should have deferred
to the trial court which had
observed the demeanour of the
defendant and her witnesses
before making the finding of
fact which the Court of Appeal
purported to disturb.
There was
certainly evidence on record on
the basis of which the trial
court could reasonably have made
the finding that it made. The
plaintiff points out in his
Statement of Case the following
testimony. In the plaintiff’s
examination-in-chief, he
answered his lawyer’s question
as follows (at p. 92 of the
Record):
“A: My
lord I had already given her
Four thousand and after she had
received the offer letter from
the Lands Commission it was then
that she called me together with
her Agent that we should meet in
her house and that I should
bring Two Thousand Dollars
because after all she had the
Offer Letter so I should bring
some more money to her and that
was Two Thousand Dollars that I
added in her residence in the
presence of her Agent Kojo
Koomson.
Q: Now
this Two Thousand Dollars I
assumed was paid after the
preparation of the receipt?
A: Yes
my lord.”
Under
cross-examination by Counsel for
the defendant, the plaintiff had
the following to say (at pp.
104-5 of the Record):
Q: Mr.
Bonsu you told this court that
the defendant was being evasive
after the offer letter had been
made, is that not so?
A: Yes
my lord.
Q: I
am suggesting to you that the
defendant was never evasive
because there was no need to be
evasive.
A: My
lord the last time that I went
to the residence she called me,
the defendant called me together
with her Agent Koomson, so we
went there, in fact when I went
there Koomson was already there,
so it was there that she
informed the two of us that she
had received the offer letter
and that she needed money as she
called me on the phone, so when
I was going I went there with
two thousand dollars that was
what she demanded and I sent it
to her in the presence of her
agent Mr. Kojo Koomson.”
In the
evidence-in-chief of Mr.
Koomson,PW1, he said at
(pp.114-115 of the Record):
Q: Now
are you good enough to tell the
court the sum of money or the
various sums of monies, if any,
that Mr. Bonsu paid to Ama
Agyemang?
A: My
lord right before me Mr. Bonsu
gave her an amount of One
thousand Dollars. So my lord
later he paid some by
instalments and the whole amount
came to Four Thousand Dollars.
Q:
Apart from these Four Thousand
Dollars was there any amount
which was to pay to your
knowledge?
A: My
lord on 1st November
Ama Agyemang called me and told
me that she had got the Premium
Letter and that I should inform
Mr. Bonsu to come and see her.
Q: Now
did you inform Mr. Bonsu?
A: Yes
I told him.
Q: And
what did Mr. Bonsu do?
A: My
lord, Mr. Bonsu and I went to
Ama Agyemang’s house.
Q: Did
you meet Ama Agyemang?
A: Yes
my lord
Q:
When you got there what
happened?
A: My
lord, she told us that God has
been gracious to us and God has
answered her prayers and that
she has got the premium letter
and Mr. Bonsu should give her
some amount of money so right
there Mr. Bonsu gave her Two
Thousand Dollars.
Q: Now
do you know whether these monies
were receipted?
A: My
lord for the first four thousand
dollars Mr. Bonsu took a receipt
but with the later payments he
receive no receipt because I was
there as a witnesses.”
The above
extracts from evidence given by
the Plaintiff and his witness
indicate that there was evidence
on record to support the finding
of fact made by the learned
trial judge on the issue of the
payment of the additional
$2,000. The Court of Appeal was
thus not justified in reversing
her finding of fact. We would
accordingly restore her finding
of fact on the issue of whether
a further $2,000 was paid by the
plaintiff to the defendant.
General
Conclusion
To sum up, we
would reverse the decision of
the Court of Appeal to deny the
plaintiff the specific
performance ordered by the
learned trial judge and to find
that he had not made an
additional payment of $2,000
beyond the payment evidenced in
writing. We would thus restore
in full the judgment of the
learned trial judge.
DR. S. K. DATE-BAH
JUSTICE
OF THE SUPREME COURT
CONCURRING
OPINION
DOTSE JSC:
I have been
privileged to have read the
scholarly judgment of my
respected brother Dr. Date-Bah
JSC. Even though I agree in the
conclusion that the Court of
Appeal judgment be reversed and
set aside and the High Court
judgment be affirmed and
restored, I make the following
observations of my own.
It is
instructive to note that the
learned Justices of the Court of
Appeal did not differ with the
learned trial Judge on her
findings of fact. Infact, the
Court of Appeal agreed with all
the findings of fact made by the
learned trial Judge on the
substantial issues germane to
the case.
There are
settled legal principles upon
which an appellate court which
seeks to depart from findings of
fact made by a trial court must
follow. These have been stated
in a litany of cases such as:
1.
Achoro v Akanfela [1996-97]
SCGLR 209
2.
Fosua & Adu Poku v Dufie
(Deceased) and Adu Poku Mensah
[2009]
SCGLR 310 at 313
3.
Gregory v Tandoh IV and Hanson
[2010] SCGLR 971
From my
examination of the evidence on
record, I am of the considered
view that there being no
justification for the Court of
Appeal to depart from the said
findings, and none whatsoever
have been given, the decision of
the Court of Appeal to
nonetheless depart from those
findings in the face of
overwhelming evidence to the
contrary is mind boggling.
It is
therefore clear that the
decision of the Court of Appeal
to set aside the order for
specific performance and instead
award damages in the sum of GH¢3000.00
has not been well made out.
It must
therefore be noted that,
appellate courts must be very
circumspect in departing from
the findings of fact made by
trial courts and unless the said
findings are perverse or are
manifestly outrageous and cannot
be supported having regard to
the evidence on record, the
safest route is to abide and
accept the findings made by the
trial Court.
In the
instant case, it is difficult to
appreciate why the learned
Judges of the Court of Appeal
decided to go off at a tangent
and brought in extraneous
matters like considerations of
fraud, undue influence,
unfairness and hardship when it
was clear from the record that
all these had not been proven.
It is for the
above and other reasons stated
in the lead judgment of my
respected brother Dr. Date-Bah
JSC that I agree that the
decision of the learned trial
Judge be restored and same is
accordingly affirmed for the
grant of the remedy of specific
performance.
[SGD]
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
[SGD] S. A. B. AKUFFO
(MS.)
JUSTICE OF THE SUPREME COURT
[SGD] J. ANSAH
JUSTICE
OF THE SUPREME COURT
[SGD] V.
AKOTO-BAMFO (MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL:
J. K AGYEMENG
WITH HIM KWAME AKUFFO BOAFO FOR
THE APPELLANT.
DAVID BOAFO
FOR THE RESPONDENT
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