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Property - Contact - Sale -
Agreement - Purchase - Specific
performance - Whether the Court
of Appeal wrongly granted
immunity to defendant to breach
a tenancy agreement which had no
attesting witnesses and date of
execution -
HEADNOTES
The plaintiff’s case was that
she rented the house in dispute
in August 1999 from Mrs. Esther
Caroline Augustus Later a
daughter of the landlady
introduced the defendant to her
as having bought the house.
When her tenancy with Mrs.
Esther Caroline Augustus ran out
she wrote to the defendant that
she would rent the premises.
Subsequently she agreed to
purchase the house from the
defendant. According to the
plaintiff they agreed that the
purchase price will be paid in
installments and due to a
friendship which had developed
between them they agreed that
the receipt on the part payment
towards the purchase of the
house should be described as
rent. after reading the receipt
he asked why the receipt did not
express the intended sale and he
was assured that the documents
for the sale of the house will
be prepared after the full
purchase price had been paid.
she became the owner of the
house and so she did not pay any
rent to the defendant. According
to the plaintiff the defendant
sued her at the District Court,
Madina, for non-payment of rent
and obtained an order for her
ejection. The defendant’s case
was that the plaintiff became
his tenant when he purchased the
house from Annette Augustus He
decided to sell the house, so he
gave the plaintiff, the sitting
tenant, the first option to
purchase. Negotiations for the
sale were through their
respective lawyers but it became
apparent that the plaintiff was
not in the position to purchase
the house and his lawyer wrote a
letter to revoke the offer.-
HELD :-
We will therefore vary the mesne
profit awarded by the court to
reflect that of the valuation
from the Lands Commission.From
the foregoing we affirm the
decision of the Court of Appeal
subject to the variation of the
mesne profit which is to be
assessed at GH˘24.60 with
interest calculated at the
current bank rate at simple
interest from 1st
July 2004 till when the
plaintiff vacates the premises.
The appeal is dismissed
subject to variation of the
mesne profit.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
Achoro v Akanfale [1996-97]
SCGLR 209 at 214 to 215
Thakur Harihur Buksh v Thakur
Union Parshad (1886) LR 151A7;
Robins v National Trust Co
[1927] AC 515,
Allen v Quebec Warehouse Co
(1886) 12 App Cas 101. “
In Re Okine (Decd); Dodoo and
Another v Okine and Ors
[2003-2004] SCGLR 582
Obrasiwa v Otu [19976-97] SCGLR
618 at 624
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
ADINYIRA, JSC:-
COUNSEL.
AGYABENG G. AKRASI FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
ADBREWS DANIELS FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
ADINYIRA, JSC:-
This is an appeal against the
judgment of the Court of Appeal,
Accra, dated 17 March 2016 which
affirmed the decision of the
High Court Accra in a dispute
over the sale and purchase of
House No. 10 Nii-Owoo Street,
Green Hill (Kisseman) West Legon,
and now House No. 15 Westlands
Boulevard, West Legon, Accra.
Theresa Haligah, the
Plaintiff/Appellant/ Appellant
[Plaintiff]] is an hotelier and
Duke Banson, the Defendant/
Respondent/Respondent
[Defendant] is a businessman.
The plaintiff issued a writ at
the High Court Accra on 28/1/05
claiming:
1.
A declaration that the defendant
is estopped from acting
differently from his
representations and offers to
sell a house which was accepted
by the plaintiff and duly relied
upon.
2.
A declaration that the purported
tenancy agreement is null and
void as same is a forgery.
3.
Specific performance of the
terms of the agreement entered
into between the plaintiff and
the defendant for the sale and
purchase of House Number 15
Westland Boulevard, West Legon,
Accra the subject matter of this
suit.
4.
Perpetual injunction restraining
the defendant, his agents,
assigns successors and agents
from harassing and or
interfering with the plaintiff’s
rights to occupation,
possession, enjoyment and use of
her property.
The defendant denied the
plaintiff’s claim and
counterclaimed for:
a)
A declaration that the defendant
is the legal and beneficial
owner of the disputed premises.
b)
An order for the recovery of
possession of the premises.
c)
Payment of mesne profits from 1st
July 2004 to date of judgment
together with interest thereon.
d)
Perpetual injunction restraining
the plaintiff from advertising
and or renting out the premises
during the pendency of this
action.
e)
Costs and such further order or
orders as the Honourable Court
may deem fit.
The plaintiff’s case was that
she rented the house in dispute
in August 1999 from Mrs. Esther
Caroline Augustus at a rate of
˘350,000 [GH˘35] per month.
Later a daughter of the landlady
introduced the defendant to her
as having bought the house.
When her tenancy with Mrs.
Esther Caroline Augustus ran out
she wrote to the defendant that
she would rent the premises from
the defendant at ˘500,000.00 [GH˘50]
a month. She tendered the
letter dated 11th
October 2001 in evidence as
Exhibit E. Subsequently she
agreed to purchase the house
from the defendant for $60,000
which was later reduced to
$50,000. According to the
plaintiff they agreed that the
purchase price will be paid in
installments as a result of
which she paid $10,000 to the
defendant and due to a
friendship which had developed
between them they agreed that
the receipt on the part payment
of the $10,000 towards the
purchase of the house should be
described as rent. She tendered
this receipt dated 8 July 2002
in evidence as Exhibit A. The
plaintiff said that Joe Aboagye
Debrah, a lawyer, (who gave
evidence as PW1), attested to
her signature on Exhibit A and
after reading the receipt he
asked why the receipt did not
express the intended sale and he
was assured that the documents
for the sale of the house will
be prepared after the full
purchase price had been paid.
The plaintiff continued that
after the part payment of the
$10,000 in June 2002, she became
the owner of the house and so
she did not pay any rent to the
defendant. According to the
plaintiff the defendant sued her
at the District Court, Madina,
for non-payment of rent and
obtained an order for her
ejection. The plaintiff said
the tenancy agreement that the
defendant relied on at the
District Court was a forgery as
the signature on the agreement
is not hers. She tendered this
tenancy agreement in her
evidence at the High Court as
Exhibit G5. The plaintiff thus
contended that the defendant
fraudulently obtained Exhibit A
and G5 from her. She therefore
asked for specific performance
of the agreement for the sale
and purchase of the house.
The defendant’s case was that
the plaintiff became his tenant
when he purchased the house from
Annette Augustus in the year
2000 and tendered three
documents Exhibits 1, 2 and 3 in
proof of his title. He decided
to sell the house, so he gave
the plaintiff, the sitting
tenant, the first option to
purchase. Negotiations for the
sale were through their
respective lawyers but it became
apparent that the plaintiff was
not in the position to purchase
the house and his lawyer wrote a
letter dated 16 November 2000 to
revoke the offer. He said when
the plaintiff’s term as a
sitting tenant expired; they
entered into a tenancy agreement
of the premises for two years at
a rent of $10,000 which was
evidenced by the receipt. He
said later they executed a
tenancy agreement, Exhibit 4.
The defendant testified that the
plaintiff did not abide by the
terms of the lease because
whilst the premise was let as a
residential property, the
plaintiff was using it for
commercial purposes. The
defendant tendered in evidence a
newspaper advertisement placed
by the plaintiff offering hotel
facilities in the said
premises. As a result he caused
his solicitor to write to the
plaintiff and her solicitor and
they replied admitting the
landlord tenant relationship
between them but denied the
plaintiff had changed the use of
the premises. The defendant
sued the plaintiff at the
District Court, Madina in 2004
and obtained an order of
injunction restraining the
plaintiff from using the
property as a hotel. The
defendant denied that he
defrauded the plaintiff into
signing Exhibits A and 4 and
that the agreement for sale of
the premises to the plaintiff
was revoked by a letter tendered
by the plaintiff as Exhibit D7.
The defendant prayed the court
to dismiss the claims of the
plaintiff and uphold his
counterclaim.
The main issue for determination
before the trial court was
whether there existed an
agreement for the sale of House
No. 15 Westland Boulevard, West
Legon, Accra to the plaintiff
for which she made a part
payment of $10,000, or whether
there was a tenancy agreement
between the parties as contended
by the defendant; who relied on
Exhibits A and 4 to support his
claim that the transaction he
had with the plaintiff was
solely for the rental of the
property in dispute.
We summarise the primary
findings made by the learned
trial judge on the strength of
the record, which were affirmed
by the Court of Appeal as
follows:
i)
The defendant is the owner of
the house No. 15 Westlands
Boulevard, West Legon, Accra the
subject matter of the dispute.
ii)
That there was no contract of
sale of the said house between
the parties
iii)
That the amount of US $ 10,000
was for rent for a two year
period from 1 July 2002 to June
31, 2004
iv)
That the plaintiff was a
statutory tenant and has to pay
the least rent at a mesne profit
of ˘3, 333,000.00 [GH˘333.00]
per month with interest from 1
July 2004 till the time that
Plaintiff vacates the said
house.
v)
The defendant was entitled to an
immediate recovery of possession
of the house No. 15 Westlands
Boulevard, West Legon, Accra,
from the plaintiff.
It is settled law that an
appellate court such as this
ought not to disturb findings of
fact by two lower courts unless
the findings are perverse. In
Achoro v Akanfale [1996-97]
SCGLR 209 at 214 to 215,
per Acquah JSC (as he then was):
“Now in an appeal against
findings of facts to a second
appellate court such as this
court, where the lower appellate
court had concurred in the
findings of the trial court,
especially in a dispute, the
subject matter of which is
peculiarly within the bosom of
the two lower courts or
tribunals, this court will
therefore not interfere with the
concurrent findings of the
lower courts unless it is well
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, is apparent in the
way in which the lower tribunal
dealt with the facts.”
The Court proceeded to mention
three such blunders as:
“Error in the face of a crucial
documentary evidence, or that a
principle of evidence had not
properly been applied, or that
the finding is so based on
erroneous proposition of the law
that if that proposition be
corrected the finding
disappears. In short it must be
demonstrated that the judgments
of the court below are clearly
wrong.” The cases of Thakur
Harihur Buksh v Thakur Union
Parshad (1886) LR 151A7; Robins
v National Trust Co [1927] AC
515, Allen v Quebec Warehouse Co
(1886) 12 App Cas 101. “
See also In Re Okine (Decd);
Dodoo and Another v Okine and
Ors [2003-2004] SCGLR 582
In as much as the two courts
below are agreed on the findings
of facts itemized above it is
not pertinent to set out the
evidence produced at the trial
in much detail but to proceed to
consider the grounds of appeal
to determine whether there is
any justification in the
submissions by counsel for the
Plaintiff that, there has been
some blunders or errors on the
part of both the trial court and
the Court of Appeal in dealing
with facts of the case which has
resulted in a miscarriage of
justice to warrant a reversal of
the decision of the Court of
Appeal.
The grounds of appeal
are:
i)
The judgment is against the
weight of evidence.
ii)
The Court of Appeal wrongly
granted immunity to defendant to
breach a Parliamentary Act by
its reliance on exhibit 4, a
tenancy agreement which had no
attesting witnesses and date of
execution, in a patent
miscarriage of justice against
plaintiff.
iii)
The learned Justices of the
Court of Appeal erred in law by
failing to hold that the
monthly payments of GH˘50.00
which plaintiff made to
defendant, pursuant to exhibit
“E” and determination of the
tenancy agreement created by
exhibit “B” were statutory rent
payments.
iv)
The Honourable Court further
erred in law by failing to fully
consider plaintiff’s case,
including the history and
circumstances of exhibit “A”.
v)
The awards of mesne profits and
costs to the defendant were too
excessive and unsupported by the
evidence on record
The crux of the submissions
before this Court by counsel for
the plaintiff is against the
findings by the lower courts in
relation to Exhibits A, E, 4 and
the determination of the mesne
profit and costs due to the
defendant. We will consider the
appeal in this order while
reviewing the whole record of
proceedings since the plaintiff
alleges the evidence is against
the weight of evidence. If the
totality of the evidence on
record sufficiently support the
conclusions reached by the Court
of Appeal, it is our duty to
affirm their lordships’
decision.
Exhibit A
Exhibit A is a receipt on which
the plaintiff relied as proof of
part payment of $10,000 out of
$50,000 of the agreed purchase
price of the house. Counsel for
the plaintiff submits that: “the
two courts below did not
consider the degree of certainty
of existence of evidence adduced
by the plaintiff that the
payment of her entire end of
service benefits from her former
employers, as a deposit against
the purchase of the subject
matter as being more probable
than the defendant’s case that
the plaintiff agreed to pay a
monthly rent of GH˘333.30 a time
when plaintiff had given up her
job and was not expected to
receive any interest as she was
out of job and was not working.”
Counsel submitted further that:
“The courts did not also
consider that on the eve of
Exhibit A, the plaintiff had
been paying a monthly rent of GH˘50
as a statutory tenant for the
same property and that it would
have taken something very
substantial for plaintiff to
have agreed to pay a new rent
per month of GH˘333.30”
This submission by counsel has
agitated our minds a bit and we
have given due consideration to
it and examined the whole
record, including exhibits and
submissions by both counsel
before the courts below as it is
trite law that an appeal is by
way of rehearing.
We have examined Exhibit A and
it does not show it was a
receipt for the payment of
$10,000 as part payment for the
purchase of the house. Exhibit A
on the face of it is a receipt
for the payment of $5,000 and GH˘2,000
for rent for a two year period;
and the balance of $ 2,500 to be
paid later. For purposes of
clarity we reproduce Exhibit A:
RECEIPT
“This is to acknowledge receipt
of an amount of Five Thousand
United States Dollars
(US$5000.00) and Twenty Million
Cedis (˘20,000,000.00)
[GHC2,000] being part payment
of rent for House numbered 15,
Green Hill, off Westlands
Boulevard, West Legon for the
period July, 1, 2002 to June
31[sic], 2004 on the
understanding that the
outstanding balance of Two
Thousand and Five Hundred United
States Dollars
(US$2,500.00)shall be payable by
Ms Theresa Haligah (The Tenant)
on or before August 16, 2002.
DATED AT ACCRA THIS 8TH
DAY OF JULY, 2002
SIGNED: DUKE BANSON (LANDLORD
WITNESSES:
1.
SIGNED JOE ABOAGYE DEBRAH
2.
SIGNED DAVID BANSON
3.
SIGNED THERESA HALIGAH”
We find that the trial judge,
Owusu- Arhin J. (Mrs.)
painstakingly examined the
evidence led by both parties on
the circumstances that led to
the execution of Exhibit A. Her
findings were that PW1’s
evidence did not corroborate the
Plaintiff’s evidence that there
was a sale of the house for
which she made a part payment of
$10,000 to the defendant in his
presence. The trial judge held
that PW1 witnessed the payment
of only $5,000.00 US dollars and
GH˘2,000 on the 8th
July 2002 and his evidence did
not cover the alleged meetings
and terms of the contract of
sale that the plaintiff said she
had with the defendant.
The trial judge did not find the
Plaintiff’s evidence reasonably
probable when she expressed her
view on the issue thus:
“[T]he plaintiff herself
admitted typing Exhibit A and
signing it voluntarily. The
plaintiff stated in evidence
that at the time of the signing
of Exhibit A she knew the
subject matter was about the
sale and purchase of the
defendant’s property in dispute.
As a matter of fact the
plaintiff is literate and given
her status, it is doubtful she
will throw all caution to the
wind and sign Exhibit A which
was clearly not in her interest.
An act which calls into play the
legal maxim of ‘volenti non fit
injuria’.”
The trail judge went on to say
that:
“ Furthermore, the plaintiff’s
witness a lawyer by profession
stated in evidence that he
cautioned the parties,
especially the plaintiff about
Exhibit A because its contents
did not reflect what she (the
plaintiff) had discussed with
him that she was buying the
property in dispute from the
defendant.”
We do not think it is
appropriate for counsel for the
plaintiff to urge on us that
Exhibit A was “not by all
standards authentic” when same
was prepared and signed by his
client, against the advice of
PW1. This smacks of lack of
candour on the part of counsel.
Weighing the preponderance of
the probabilities of the
evidence adduced before the
court; we do not think both the
trial judge and the Court of
Appeal erred in coming to the
conclusion that Exhibit A was a
receipt for rent paid. We
therefore affirm this decision.
Exhibit 4
Exhibit 4, a tenancy agreement
was neither attested to nor
dated. Counsel for the plaintiff
submits that: “wrongly believing
that Exhibit 4 was a valid
agreement enforceable at law,
the Court of Appeal fell into
error of law in purporting to
assign weight to it.”
Even if we discount Exhibit 4,
it does not advance the
plaintiff’s case in any way as
it does not affect the primary
finding of facts by the trial
court and as affirmed by the
Court of Appeal that the house
in dispute is the property of
the defendant and that there was
no contract of sale. We do not
find any evidence of miscarriage
of justice as we find on the
evidence that the defendant’s
lawyer wrote on 16 November 2000
(Exhibit D7) to the plaintiff‘s
lawyer to revoke the offer of
sale as the plaintiff failed to
pay the purchase price within
the agreed period. After the
revocation, the plaintiff’s
lawyer wrote to the plaintiff to
vacate the premises and she
replied her tenancy with Mrs.
Augustus has not expired. See
Achoro v Akanfela supra and
Obrasiwa v Otu [19976-97]
SCGLR 618 at 624 where it was
held that it is important for
the appellant to point out and
establish that the said error
has led to a miscarriage of
justice.
.Mesne profit
Mesne profit is usually based on
the least rent payable in a
dispute such as this where the
plaintiff was unable to purchase
the house and continued to live
in it without paying rent from
July 2004 as established by the
court. Counsel for the plaintiff
made extensive submission on
Exhibit E, a letter dated 11
October 2001 written by the
plaintiff offering to remain in
the house in dispute for six
months when her tenancy
agreement with Mrs. Augustus
expired and offering to pay GH˘50.00
a month as rent while hoping to
raise money to purchase the
house. Counsel concluded that
the plaintiff became a statutory
tenant after the expiration of
her lease in September 2001.
This submission is misconceived
as after the term of the
plaintiff as a sitting tenant
expired, it can be reasonably
inferred from her letter,
Exhibit E and the receipt,
Exhibit A that she made a part
payment of rent to the defendant
as his tenant. Counsel tried to
link Exhibit E with Exhibit A to
demonstrate the plaintiff’s
intention to pay for the house,
but this was a fruitless effort
as the offer to sell the house
has been revoked months earlier
and there was no evidence that a
fresh offer for sale was made by
the Defendant.
Before the trial court the
plaintiff disputed the payable
rent and the matter was referred
to the Land Valuation Division
of the Lands Commission, which
assessed the rent as
˘246,000.00 [GH˘24.60]. We take
note that the trial court did
not rely on the monthly rent
assessed by the valuer but chose
to rely on the rent of GH˘333.30
per month as stated in Exhibit
4. The trail judge’s reasoning
that “the rents arrived at must
not have effect on the tenancy
voluntarily contracted between
the defendant and the plaintiff
as evidenced by Exhibits A and
4” is in error in view of our
finding on Exhibit 4.
Taking into consideration all
the surrounding circumstances of
this case, we see no
justification for the trial
judge in disregarding the least
rent of GH˘24.60 assessed by the
court witness, as the valuation
was based on the sale and rental
of properties in the area where
the house was situated. We find
the amount of GH˘ 24.60 to be
reasonable.
We will therefore vary the mesne
profit awarded by the court to
reflect that of the valuation
from the Lands Commission.
From the foregoing we affirm the
decision of the Court of Appeal
subject to the variation of the
mesne profit which is to be
assessed at GH˘24.60 with
interest calculated at the
current bank rate at simple
interest from 1st
July 2004 till when the
plaintiff vacates the premises.
The appeal is dismissed subject
to variation of the mesne
profit.
S. O. A. ADINYIRA
(MRS.)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AGYABENG G. AKRASI FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
ADBREWS DANIELS FOR THE
DEFENDANT/RESPONDENT/RESPONDENT. |
