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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. |
