SUPREME COURT, ACCRA
FRANCOIS, WUAKU, OSEI-HWERE, AIKINS AND EDWARD WIREDU JJ.S.C.
Francois J.S.C. On 10 November 1975 the plaintiff entered into a tenancy agreement with the defendants in respect of house No 33/5, Onyaa Crescent, Nima, Accra. The defendants were the personal representatives of the deceased owner.
The plaintiff was let into immediate occupation of the Nima house which was a three-storeyed building with a completed ground floor ready for occupation and two other floors in various stages of completion.
The first floor required very little, while the second which had only a structural shell in place, required considerable development.
The lease (exhibit 1) signed by the parties in 1975 was for a term of ten years at ¢600 rent a month. Three years rent-free occupation was a concession granted to the plaintiff, while three years rent advance, to take effect from 1978, was stipulated to be paid to the defendants. The plaintiff through his agent Peters, the first plaintiff witness, put tenants into the demised premises from whom he collected rents for the three-year period.
The significance of this three-year grace period has provoked debate. The defendants claim it was to enable the plaintiff complete the construction of the house. The plaintiff denies this and avers that the completion of the house was rather the duty of the defendants on which account moneys had been advanced them. No reasons however are offered for the three years rent-free enjoyment of the premises. We shall return to this again.
Sometime later, the defendants became hard-pressed for funds and decided to sell the Nima house to meet their financial exigencies. It was then urged on them by Peters, the first plaintiff witness mentioned above, that the plaintiff as a tenant in occupation should be given the first
refusal. Thus persuaded, the defendants addressed exhibit B to the plaintiff. The material part of exhibit B is as follows:
''… I am prepared to offer the house to you for sale. The selling price is ¢75,000. If this is acceptable to you, please confirm to enable us hold a meeting with your solicitor on the matter. Hoping to hear from you soon.''
It was clearly recognised that the sale of the house was dictated by extreme financial straits. But the plaintiff never formally responded to the offer. No letter in reply was written, nor did any other token of acceptance proceed from the plaintiff. No arrangement was ever communicated of a meeting with the plaintiff’s solicitor to finalise the purchase as stipulated in exhibit B. This apparent lack of interest on the part of the plaintiff, at a time when the defendants were in dire need of money, must have led them to consider the offer rejected.
Save for a passing expression of interest, nothing further had been done. A mere expression of interest cannot create any binding legal relationship, let alone an enforceable contract. The need for a solicitor, stated in exhibit B, was also an essential element in the arrangement, since important matters like the mode of payment, inspection of documents of title, questions on mortgage payments on the house, the adjustment of rent previously paid in advance as well as valuation in terms of the three-year grace period, were all grave legal matters in the equation requiring the solicitor’s expertise to reduce the coalescing of minds into a document that would meet the approval of all parties and obviate future dispute.
It was however only when the defendants sought the payment of accumulated rent arrears, that they were met with a fait accompli that the Nima house had been purchased and that what the defendants regarded as arrears of rent was rather the balance of the purchase price.
Clearly if the plaintiff was contending that he had concluded a contract, the burden of proving it was on him: see Bank of West Africa Ltd. v. Ackun  1 G.L.R. 176, S.C. It is on this issue of proof that the plaintiff fails: see Fry on Specific Performance (3rd ed.), para. 278, p.126. The burden of proving a concluded contract being on the plaintiff.
We may with profit turn to the pleadings. The plaintiff after stating in paragraphs (5), (6) and (7) of his claim that an offer for the sale of house No. 33/5, Onyaa Crescent, Nima, Accra had been made to him by a letter of 15 October 1976, failed to plead his mode of acceptance of the offer. In paragraph (7), the plaintiff averred that he paid the defendants
Turning again to the authority of Fry, acts of part performance which enable a contract to be withdrawn from the operation of the Statute of Frauds, 1677 must first be referable to the contract alleged and more importantly, referable to no other title: see Wakeham v. MacKenzie  1 W.L.R. 1175 and Kingswood Estate Co. Ltd. v. Anderson  3 All E.R. 593, C.A. Secondly, they must be such as to render it a fraud in the defendant to take advantage of the contract not being in writing; thirdly, the contract in its own nature must be of the kind enforceable by the court; and fourthly, there must be proper parol evidence of the contract which is let in by the acts of part performance. The celebrated case of Chapronière v. Lambert  2 Ch. 356 at 361, C.A. settled these principles.
In my view, as there was an already existing tenancy agreement between the parties, there was a heavier onus on the plaintiff to show how this was transformed into a purchase arrangement for which specific performance could be demanded as a legal remedy. This was crucial to the success of the plaintiff’s action. Simply put, the exclusiveness of a reference to the act of part performance to the contract is impossible if the acts of payment could be subsumed under an obligation to pay rent: that equivocation would be subversive and destructive of any claim to specific performance. Willmer L.J. cited the following passage on the issue from Anson, Law of Contract (21st ed. 1959) at p. 75 in Kingswood Estate
Co. Ltd. v. Anderson (supra) at 599: “The acts of performance relied upon must of themselves suggest the existence of a contract such as it is desired to prove . . .” Later dicta suggest that such acts should be exclusively referable to the contract to remove any ambiguities or uncertainties.
It is also my view that since exhibit 1 described a tenancy relationship in writing, a document was essential to annul that arrangement and create a vendor-purchaser relationship. Where, therefore, the facts urged in support, indeed establish a previous legal relationship, i.e a tenancy agreement, then the plaintiff has failed to prove the exclusiveness the law requires to relate the part performance to the contract.
It was on the basis of the evidence adduced and the applicable law that the trial court found in the defendants’ favour. The Court of Appeal differed. The defendants question the validity of the judgment of the Court of Appeal which reversed the High Court and decreed specific performance in favour of the plaintiff. The appellate court’s criticism of the trial judge’s performance in
scathing language, was as unfortunate as it was unsound. Most of it was based on the difference in perception of the evidence, and regrettably on the law. Where a judge or trial court arrives at a conclusion based on the advantage of seeing and hearing witnesses at first hand, the appellate court should be very slow to form a contrary view. It is trite law that an appellate court, when reviewing the exercise of discretion by a lower court, should not interfere unless the court below had applied wrong principles in arriving at the result or taken into account matters which were irrelevant in law or had excluded matters which were crucially necessary for consideration, or had come to a conclusion which no court properly instructing itself on the law could have reached: see Re Reed (A Debtor); Ex parte The Debtor v. Official Receiver  2 All E.R. 22, D.C. In Gross v. Lewis Hillman Ltd.  3 W.L.R. 787 at 798, C.A. Lord Widgery cautioned that an appellate court:
“… which sees only the transcript and does not see the witnesses, must hesitate for a very long time before reaching a conclusion different from that of the trial judge as to the credibility or honesty of a witness.”
In Adorkor v. Gatsi  G.L.R. 31 at 34, S.C., the Supreme Court summed up appellate powers as follows:
“The law governing this is that while findings of specific facts are within the competency of the trial court alone, a finding of fact which is an inference to be drawn from specific facts found is within the competency of an appeal court no less than the trial court; in other words, an appeal court is in as good a position as the trial court to draw inferences from specific facts which the trial court may find.”
Unfortunately what the Court of Appeal attempted to do was to set aside not inferences drawn from facts but the very findings on specific facts of the trial judge. These factual conclusions were supported to the hilt by the evidence, most of which was supplied by the plaintiff and his witness, Peters. In the circumstances, there was no lawful warrant for the appellate court to differ from the conclusions of the trial court.
Since perception of facts may differ, and the appellate court’s jurisdiction to interfere is strictly within the recognised ambit of error in appreciation of the evidence, and error in inferential deductions as indicated above, it is necessary to pick a few glaring instances where the trial judge is fully vindicated on the evidence and the contrary view of
the appellate court remains replete in mystery.
It must also be stressed that the trial judge’s view that the plaintiff’s perception of truth was as inexact as it was unreasonable was amply supported by evidence even supplied by the plaintiff’s own witness; and it deepens the mystery further that a contrary view could be entertained. In examining the evidence, one is struck by the plaintiff’s complete lack of candour on material issues. I list them below. First, his strenuous denial of being put in possession of the premises in 1975, which perhaps explains his failure to mention the lease, exhibit 1, executed in 1975; a stance also reflected in the total absence in his pleadings of any tenancy relationship with the defendants prior to 1976.
The plaintiff’s witness, Peters, however swore that he secured for the plaintiff two tenants, Kludjeson and Aikins Enterprise, who paid rents to the plaintiff during the three-year grace period, commencing in 1975.
This period of three years wherein the plaintiff collected rents from sub-tenants and paid none to the landlord is only explicable on the basis that the plaintiff would complete the building.
The following responses from the plaintiff’s witness, Peters, to questions make the position clear:
“Q What the defendant told you was they wanted a tenant to take possession of the house as a tenant and use part of the proceeds to complete the house and reimburse himself from the rents accruing.''
A Yes, Kofi Fofie told me this. [The plaintiff however tells a different story.)
Q From 10 November 1975 to 1 October 1978 the rents to accrue within this period, they were not paid to defendant by the plaintiff.
A They were not paid.
Q The plaintiff was to use those rents for the work on the house?
These answers support the defendants’ pleadings in paragraph (4)(e). Further, in my view, that was the only rational explanation for allowing the plaintiff three years rent-free possession of the premises with a power to put in his own tenants. The highly significant term “grace period” could only have been employed to signify such an arrangement. The plaintiff’s contention that the lessor should repair and yet he should pocket the tenants’ rents, essentially captures the character of the
plaintiff in its most unattractive hue.
Another pointer to the rationale behind granting a grace period of three years was the fact that a previous contractor, Nyarko, had roughly estimated that ¢24,000 would be enough to complete the house. Letting the house rent free for three years with an option to the lessee to put in his own sub-tenants, would enable the parties to start out in 1978 with a completed house, and no obligations on either side. The rent advance paid could then truly be applied as the stipulated rent from 1978.
The plaintiff makes a song and dance about paying off the indebtedness of the defendants to the First Ghana Building Society. Though the sum was only ¢16,000 he inflated it to the tune of ¢29,037.34. He was however caught out when he had to agree that payments to the building society were but part of the lease terms. The concession was as follows:
“Q These payments were part of the rent for the ten-year period under exhibit 1?
A Yes, I agree.”
Then follows another credibility test where the plaintiff failed abysmally. The plaintiff swore that the title deeds in respect of the Nima property were handed to him by the building society. The truth turned out to be that the documents were collected by Peters on the instructions of the defendants, and the plaintiff had to seek permission from the defendants to collect them from Peters. Moreover, he obtained the documents not as an owner, but to enable him to “use the document for a loan.” Indeed, his witness, Peters, stated the following: “I was keeping the document myself, but when the plaintiff wanted to raise a loan from the bank, I gave him the documents.”
If the building society had already given the documents to the plaintiff there would have been no need to request the defendants to ask Peters to hand them over to him. But more crucially, if he was the lawful owner of the house no such request would have been necessary, let alone the accompanying excuse of enabling him to borrow from the bank!
The whole passage of the first plaintiff witness’ answers in cross- examination in this area is significant and I make no apology for recapitulating it fully:
“Q You remember going to see the family members of defendant in 1989?
A Yes, I do remember.
Q The title deeds were in your custody?
Q You held them for and on behalf of the first defendant?
Q The plaintiff told the defendant he wanted their permission to use the house in dispute as a security for a loan from his bankers so as to complete the house?
Q The defendant and Elizabeth Oduro then signed exhibit C for him?
Q Following this authorisation you handed over exhibits D1, D2 and D3 to the defendants?
The significance of this passage cannot be missed. Requesting the use of title deeds to the house in 1989 means without any equivocation whatsoever, that at that date, 1989, the plaintiff was aware that he was not the owner of the house. This completely exposes the lie that an offer had been accepted by the plaintiff.
The Court of Appeal perceived the evidence in this case as follows. I quote Lamptey J.A.:
“Sometime in 1976, barely one year after the letting of the uncompleted building to the plaintiff, there was a meeting between the plaintiff, the first defendant and other members of the first defendant’s family at which it was agreed to sell the uncompleted building to the plaintiff. After that meeting, thefirst defendant wrote formally offering to sell the uncompleted building to the plaintiff.”
One wonders where that evidence sprang from. As indicated above, the meeting was only with Peters who suggested that the plaintiff be offered the first refusal; hence exhibit B. With the distortion of the evidence by Lamptey J.A., one sees immediately why he thought there had been a concluded agreement and exhibit B was a mere formality with no legal consequence.
The learned judge also makes an extravagant claim that exhibit B “did not specify any time limit within which the plaintiff should indicate his acceptance of the offer. By June 1986 the plaintiff had paid the total sum of ¢75,000.”
Obviously the significance of exhibit B expecting an early response
was missed. But at law, where no time limit is specified, a reasonable time is intended and applied. A ten-year span is unreasonable by any standard and a court of equity would so hold. Again the urgent circumstances necessitating the sale must have been lost on the learned judge, so also the simple truth that a house worth X cedis would command much more cedis ten years later with the falling value of the cedi and the rising value of property. Besides, as the trial judge rightly pointed out, no one would demand a price for a house and be prepared to receive it in instalments over a ten-year period. It makes nonsense of exhibit 1 which catered for periodic payments in rent.
The appellate court also failed to see the true import of exhibit C, captioned “Consent, Property of late E. Oduro, House No. 33/5 Onyaa Crescent, Nima Residential Area, Accra.” This document authorised the liquidation of Oduro’s indebtedness to the First Ghana Building Society and “to transact business with the said documents with his bankers.” It is dated 12 February 1981 and signed by the defendants as “Executors of E. K. Oduro’s property.” It is also significant that exhibit C was prepared by the plaintiff. It can hardly therefore be controverted that as at 12 February 1981 the Nima property had not changed hands.
Now we come to the most damaging piece of evidence in this case. It involves the making of exhibit E, a receipt for payment of rent arrears according to the defendants, but claimed by the plaintiff to evidence the final payment of the purchase price for the Nima house. There is no dispute about the moneys received; or the identity of the parties to the transaction. Nor can it also be controverted that after the parties had executed exhibit E, the plaintiff unilaterally interpolated the words “For final purchase price payment house No. 33/5, Onyaa Crescent, Nima Residential Area, Accra” and “Total purchase price.”
It was the defendant’s case that the interpolations were fraudulent and made surreptitiously to transform payment of arrears of rent into payment of a purchase price for the house. The interpolation itself generates its own suspicion and is self-impugning. The trial judge saw it as a fraudulent act intended to overreach the defendants and deprive them of the ownership of their house. This is a conclusion of fact.
The Court of Appeal’s resolution of this aspect of the case is interesting. After concluding like the trial judge that the interpolation was the deed of the plaintiff after execution, contrary to the plaintiff’s protestations of innocence, they failed to translate this discreditable episode into any meaningful evaluation of the plaintiff.
No word of condemnation proceeded from their lips. Rather, they
attempted to downplay the effect. They said the interpolated words did not change the content of the document. One disagrees. The receipt before the interpolation, did not exclude full payment of rent arrears. On the other hand nothing prevented the plaintiff from drawing the defendants’ attention to an inadvertent omission if the receipt evidenced a purchase payment, and required mutual correction.
Again, the Court of Appeal significantly failed to draw the unavoidable conclusion following the plaintiff’s witness’ support for the defence: see Tsrifo V v. Dua VIII  G.L.R. 63 and Asante v. Bogyabi  G.L.R. 232, S.C. Indeed, to quote Megarry J. in Woodford v. Smith  1 W.L.R. 806 at 813, “The matter, . . . is not one on which there is conflicting evidence, but one on which there is virtually no supporting evidence.”
The appellate court failed yet again to apply the presumption that the decision of a trial court on the facts is correct, and the appellant consequently undertakes the burden to displace that presumption: see Kisiedu Dompreh (1935) 2 W.A.C.A. 268 and Akesse v. Ababio (1935) 2 W.A.C.A. 264. No effort whatsoever, was made to displace the presumption and the gratuitous exercise by the Court of Appeal demonstrated the disastrous consequences of ignoring this principle.
The award to the plaintiff of ¢5 million, claimed as expenditure, without due authorisation or proof, is another error of magnitude: see Bonham Carter v. Hyde Park Hotel Ltd.  64 T.L.R. 177 and Ghana National Trading Corporation v. Baiden  1 G.L.R. 567, S.C.
An interesting decision with distinctly similar features is the English case of Mills v. Haywood (1877) 6 Ch.D. 196, C.A. There Cotton L.J. stated at 202:
“… well-established principle, . . . that a party cannot call upon a Court of Equity for a specific performance unless he has shewn himself ready, desirous, prompt and eager.
This rule is specially applicable where the subject-matter of the contract is of a somewhat speculative and fluctuating value…”
One should compare this statement with the authoritative one of Fry at p. 515 (op cit):
“Specific performance is a relief which the Court will not grant unless the parties seeking it apply promptly and as soon as the case would permit.”
In Mills v. Haywood (supra) the would-be purchaser was a previous tenant and the court said at 202:
“But possession, in order to obviate the consequence to a purchaser of delay, must be possession under the contract sought to be enforced ... In such a case, as, eg. where the purchaser in possession has no right or title to such possession except as purchaser, his possession is an assertion on his part of his right under the contract of purchase, and acquiescence in his possession is a recognition by the vendor of this right. But where a tenant in possession contracts for the purchase of his landlord’s interest the case is different ... his possession as tenant is not an assertion of right under the contract of purchase. He may be in possession of the property, the house or land which is the subject of the contract of purchase, but, if he is, he is not in possession of, or asserting right to, the benefit or interest secured to him by the contract.”
In the Haywood case (supra) the issue also turned on whether moneys being paid represented rent or a purchase price, the contention of the landlord being that the possession of the plaintiff throughout was as tenant only. Again, the would-be purchaser claimed to have expended considerable sums of money in constructing a vault and did this on the faith of being entitled to the property. The court held that the mere fact of expenditure, even if proved was “not sufficient to show that he was in possession as purchaser.”
The pretended claim failed because, like the instant appeal, when a point arose to establish himself as purchaser he failed to make any such claim. The court held (supra) at 204:
“If the Plaintiff had in fact made the expenditure as owner in equity under a contract of purchase, either he or his solicitor would certainly have insisted on his rights as purchaser as soon as the trustee intimated his intention of selling the property.”
The similarity cannot be overlooked. Here the would-be purchaser of the defendants’ property still implored the defendants to lend him the title deeds to his own property, “to enable him borrow from the bank.” Title deeds that should have been but were not in his possession. No success could enure to any plaintiff in such an impossible situation.
This case also bears some resemblance to Atta v. Adu [1987-88] 1 G.L.R. 233, S.C. decided by this court unanimously on 15 June 1987. There, a claim for specific performance of a contract to sell a house failed because the plaintiffs acted tardily in pursuing the agreement to
purchase. The resemblance ends there. For whereas an initial contract existed in Atta v. Adu (supra), in the instant appeal, there has been no recognisable contract upon which a claim in specific performance can be founded. Indeed, if there had been, time would have been an insuperable disability as was pointed out in Atta v. Adu (supra). The depreciation of the cedi and the corresponding escalation of property values would make time undisputably an essential element.
I am drawn finally to respond to the criticism of harsh language allegedly indulged in by the trial judge, which it is claimed prejudiced an objective evaluation of the evidence. Where judges are faced with glaring injustice and the perpetration of fraud, they have been known to express themselves in the strongest language of condemnation. I give two examples. In Lubovsky v. Snelling  K.B. 44, C.A. the defendant insurance company admitted liability but required a writ to be issued to ascertain quantum.
The writ was issued after the limitation period. The court held that the agreement constituted a contract not to plead the statute of limitations and the plaintiff was accordingly entitled to recover. Lord Justice
Scott at 46 characterised the defendant’s reliance on statute to defeat the claim, as “discreditable if not dishonest.” Justice Harman in Re Shepherd; Public Trustee v. Henderson  2 All E.R. 935 talked of absurdities which stink in the nostrils of the public. But what is rather offensive beyond redemption, is counsel’s insinuation that the trial judge lacked sobriety.
On the evidence, fraud was indeed practised and one cannot help but quote Lord MacNaghten in Reddaway v. Bonham  A.C. 199 at 221:
“. . . fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it. But fraud is fraud all the same, and it is the fraud, not the manner of it, which calls for the interposition of the Court.”
I have no doubt whatsoever that the trial judge arrived at the right conclusion on the evidence and her decision disallowing specific performance should be affirmed. I would consequently allow the appeal, set aside the orders of the Court of Appeal including the award of costs and restore the judgment of the trial court to the extent of dismissing the claim for specific performance.
Wuaku J.S.C. The plaintiff is the respondent to this appeal and the
defendant the appellant. The plaintiff originally sued three defendants but withdrew his action against the second and third defendants and continued the action against the first defendant alone. It would therefore be proper to regard the second and third defendants as not being parties to the suit despite the title of the suit. The plaintiff lost the action before the High Court, Accra presided over by Lutterodt J. (as she then was). The judgment of Lutterodt J. (as she then was) was reversed on appeal in favour of the plaintiff and the defendant appealed to this court against that reversal.
By his writ of summons, the plaintiff claimed:
“An order for specific performance ordering the defendants to execute a deed of assignment in favour of the plaintiff in respect of house No. 33/5, Onyaa Crescent, Nima Residential Area, Accra.”
In a fourteen-paragraph statement of claim that accompanied the writ of summons, the plaintiff averred in paragraphs (5), (6) and (7) as hereunder:
“(5) On or about 15 October 1976 the first defendant, the second defendant, one Ama Fofie, Yaw Achina and Joseph Achina all uterine relatives of the late E. K. Oduro offered for sale the deceased’s uncompleted building, house No. 33/5 Onyaa Crescent through an estate agent, Godwin Seshie Peters, for the sum of ¢75,000.
(6) The said offer was made in writing addressed to the plaintiff, the executive director of Eben’s Complex Agencies, P. O. Box 2354, dated 15 October 1976, and thumbprinted by the first defendant and witnessed by Joseph Achina.
(7) The plaintiff accepted the offer and paid the defendants as per receipt issued in his favour dated 2 June 1986 signed by Joseph Achina witnessed by the estate agent, G. S. Peters.”
It is necessary to reproduce also parts of the defence which I consider important. In this regard, I quote hereunder paragraph’s (4)(e), (f), (i), (j), (5) and (6):
“(4) (e) The plaintiff herein then entered into a tenancy agreement dated 10 November 1975 for a period of ten years with effect from 1 October 1978 at the monthly rent of ¢600 per month, that is to say with a “grace period” of three years
from 1 October 1975 to 1 October 1978, the rents for which period the plaintiff was to use to complete the said house and as stated hereunder.
(f) The first defendant says that during the negotiation which led to the making of the said tenancy agreement, and at which meeting the said contractor, the late Nyarko, was present he (the contractor) estimated and told the meeting that the cost of the work required to complete the said whole house was ¢24,000 which would be roughly three years’ rent payable on the said house, and the first defendant and his family agreed and granted to the plaintiff a three-year grace period, that is from 1 October 1975 to 1 October 1978 so as to enable the plaintiff to utilise or apply the said rents for the said house as agreed upon between the parties.
(i) Sometime in 1976 when the said Peters visited the first defendant and members of his family in Kumasi, the latter proposed to him (Peters) that owing to certain indebtedness on their Kumasi house, they had decided to sell the house to any interested purchaser; thereupon the said Peters said they (the first defendant and his family) should give the first option to the plaintiff who was already a tenant in the said house; and they agreed to do so; thereupon the said Peters made them write a formal offer letter dated 15 October 1976 through the said Peters to the plaintiff.
(j) The first defendant says that although they learnt from the said Peters that the plaintiff expressed interest in the said proposal of sale, yet he was unable to accept, and never accepted the said offer of sale and the said offer lapsed sometime in 1976; the plaintiff however continued to occupy the said house on the basis of the said tenancy agreement dated 10 November 1975.
(5) In specific answer to paragraph (7) of the statement of claim the first defendant says that the plaintiff obtained the signature of the said Joseph Achina onto the said document dated 2 June 1986, that is almost ten years after the said letter of offer dated 15 October 1976, by fraud and roguery which the plaintiff perpetrated on the said Joseph Achina.”
Paragraph (5) of the statement of defence has nine sub-paragraphs which give particulars of the said fraud which the plaintiff perpetrated on
the said Joseph Achina. Those sub-paragraphs give details of how the plaintiff was alleged to have forged the receipt which the plaintiff alleged in paragraph (7) of his statement of claim that Joseph Achina gave him. Paragraph (6) of the defence states:
“(6) The first defendant however asserts or contends that in any event the said forged or fraudulent documents which the plaintiff got the said Joseph Achina to sign by his (the plain- tiff ‘s) fraud, roguery and trickery, does not and cannot bind either the first or the second defendants herein in their said capacities as legal personal representatives of the late E. K. Oduro or bind the first defendant’s said matrilineal family. Again the plaintiff cannot use the processes of this honourable court as an engine of fraud.”
The defendant in paragraph (13) of his defence made a counterclaim and claimed four reliefs. To the defence and counterclaim, the plaintiff merely denied the reliefs claimed in paragraph (13)(a), (b), (c) and (d) of the defence followed by a general denial of the counterclaim.
I am of the opinion that in view of the serious allegations of fraud, roguery and trickery levelled against the plaintiff, the particulars of which were fully given, the plaintiff should have specifically denied those allegations or by way of confession and avoidance. Indeed, Order 19, r. 18 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) provides that:
“18. It shall not be sufficient for a defendant in his defence to deny generally the grounds alleged by the statement of claim, or for a plaintiff in his reply to deny generally the grounds alleged in a defence by way of counterclaim but each party must deal specifically with each allegation of fact of which he does not admit the truth, except damages.”
The plaintiff did precisely what Order 19, r. 18 of L.N. 140A forbids and in his evidence-in-chief made no attempt to admit or deny the defendant’s allegation of a tenancy agreement; or deny even that of fraud.
He limited himself to his alleged purchase.
Perhaps it will be appropriate to refer to the salient parts of the plaintiff’s evidence-in-chief.
“The first defendant offered to sell this house to me at the time it was uncompleted. I accepted the offer . . . I paid for the house.
I paid ¢75,000 for it by means of a cheque and also to the building society to whom he (Oduro) was indebted . . . I was given a final receipt of payment by one Joseph Achina, the customary successor of the deceased.”
The plaintiff bases his claim on an offer for sale as evidenced by exhibit B. Exhibit B is a letter and it is thus:
P. O. Box 2107
15 - 10 - 76
The Executive Director
Eben’s Complex Agencies
Post Office Box 2354
RE: HOUSE NO. 33/5, NIMA RESIDENTIAL AREA, ACCRA
I refer to our previous discussion on the above subject matter and to confirm that on behalf of my entire family, I am prepared to offer the house to you for sale.
The selling price is ¢75,000 only.
If this is acceptable to you, please confirm to enable us hold a meeting with your solicitor on the matter.
Hoping to hear from you soon.
Witnessed (Sgd.) Joseph Achina
The plaintiff also tendered exhibits C, D, D1 -D3, E, F, G and H to support his allegation of purchase. He called Mr G. S. Peters, his only witness. Mr Kom has submitted that the combined effect of the receipts support the plaintiff’s claim of sale of the disputed house to the plaintiff and that the subsequent conduct of the parties to exhibit B were sufficient acts of part performance to entitle the plaintiff to a decree of specific performance.
The defendant says that the plaintiff was only a tenant as is evidenced in exhibit 1, the tenancy agreement, dated 10 November 1975. The defendant however admitted the offer made by him in exhibit B but says that the plaintiff never accepted that offer.
There are two grounds of appeal, namely:
“(a) That the judgment is against the weight of the evidence adduced.
(b) That the Court of Appeal erred very seriously in holding that there was ever any valid contract of sale or at all between the defendants’ family and the plaintiff.”
Lutterodt J. (as she then was) and the Court of Appeal held that exhibit B constituted a valid offer. There is no doubt that the two findings are correct. Lutterodt J. (as she then was) however held that there was no acceptance and therefore no contract of sale was entered into by the parties. The Court of Appeal held otherwise and that the offer was accepted by the plaintiff who had acted upon the acceptance.
My main task now is to find out which of the two courts came to the right conclusion. Was the offer accepted and communicated to the offer by the offeree? This is what Chitty on Contracts (22nd ed.), Vol. 1, para. 62, p. 30 says on acceptance in general:
“Two main rules govern the acceptance of an offer. The first is that there must be positive evidence from which the court may infer acceptance: this may consist in words, in writing or in conduct; it may not consist simply in intention, for a mere mental acceptance is not enough.”
See, eg. Brogden v. Metropolitan Railway Co. (1877) 2 App. Cas. 666 at 692, H.L. The second rule is that the acceptance must be communicated to the “offeror.” Where is the evidence of acceptance in this case? Was there any method prescribed by the offeror for the form the acceptance should take? In this case the offer was made by a letter, therefore one would have thought that the acceptance would be by a letter. Under
cross-examination this is what Joseph Achina who signed exhibit B as a witness and the second defendants witness in the proceedings said: “Q Does exhibit B say he must confirm in writing the acceptance? A Yes, my understanding is that he writes us back.” The plaintiff himself when cross-examined said:
“Q You never accepted the offer from the family?
A I did accept the offer.
Q How did you accept the offer?
A I accepted it by meeting the family and accepted it and we finalised the price.
Q Are you saying you agreed on the price after exhibit B has been written?
The only witness called by the plaintiff was G. S. Peters who delivered exhibit B to the plaintiff. He said:
“I gave exhibit B to the plaintiff. The plaintiff had interest and accepted the offer.” And when he too was cross-examined, this was what happened:
“Q It is correct that the plaintiff merely showed interest in the offer, he did not accept the offer?
A Well, the letter was given to me. I sent it to him and he expressed interest. I do not know what happened thereafter.”
The evidence, if it proved anything at all, it was that it was only a mere mental acceptance; which on the authority of Brogden v. Metropolitan Railway Co. (supra) is not enough. I would have expected the witness to go back to Kumasi to inform the offeror of the offeree’s acceptance. I have no hesitation in saying that the acceptance was, if there was one, never communicated to the offeror. Exhibit B is clear on the face of it without any equivocation. Exhibit B states “if this is acceptable to you, please confirm to enable us hold a meeting with your solicitor on the matter. Hoping to hear from you soon.” Had the plaintiff accepted the offer, the follow up, in my view, would be of two things: (1) the plaintiff would communicate with the defendant to confirm his acceptance; and (2) they would meet the plaintiff’s solicitor on the matter as prescribed in the offer. The meeting that the plaintiff said he had with the family was in 1981 at Nsawam, and had nothing to do with exhibit B.
The defendant is an illiterate farmer and had been blind for 20 years at the time he gave evidence. He is the successor and one of the
administrators of the estate of his late senior brother, E. K. Oduro. The evidence disclosed that the deceased left behind the uncompleted two-storey building which one Nyarko, a contractor, was building for the deceased. Nyarko had estimated that ¢24,000 would be required to complete putting up the building.
The defendant’s case is that through G. S. Peters, an estate agent, who is the plaintiff’s only witness, his family represented by Joseph Achina, let the disputed premises to the plaintiff. A lease agreement, exhibit 1, was entered into on 10 November 1975. The plaintiff immediately entered and took possession of the premises. The lease was for a term of 10 years to start from 1 October 1978, for which three years advance rent was paid to begin on the commencement of the lease on 1 October 1978. The plaintiff was to pay no rent for the years beginning 1 November 1975 to 1 October 1978, which was termed as a “grace period of three years.” According to the defendant, during the “grace period of three years”, the plaintiff was to collect the rents and to use the rents so collected to complete the building. The rents to be collected during the “grace period of three years” would amount to almost the estimated ¢24,000 which would be needed to complete the building.
The state of the building when the plaintiff was let into possession was described by G. S. Peters as follows:
“It is a three-storey building. Ground floor was fully completed with four bedrooms, hall, dining hall, amenities including garage. The first floor has structures and fittings of door and window frames all completed, remaining wiring and painting. The second floor has not been constructed at all. We have only the structures.”
In my opinion, the conditions as above described could easily fetch rent of ¢600 per mensem if not more.
It is a fact that the plaintiff was collecting rents from tenants like Kludjeson and Aikins Enterprises.
Following the witness’ description of the building, he was asked the following question: “Q What was the plaintiff to use the rent for this grace period for?” The witness must have known why the question was asked; he therefore gave this evasive answer; “A That was not the agreement. He had already paid advance to the family but the landlord did not repair the house so the plaintiff took it upon himself to repair the house.” It must be noted that the issue brought out by the evidence was who was to complete the uncompleted building and not who was to repair it. The cross-examination of the witness continued:
“Q One Nyarko introduced you to Fofie and his family?
Q What the defendant told you was, they wanted a tenant to take possession of the house as a tenant and use part of the proceeds to complete the house and reimburse himself from the rents accruing?
A Yes, Kofi Fofie told me this.
Q Nyarko was the contractor who put up the building?
Q The contractor estimated the cost of the work needed to complete the house at ¢24,000?
A Yes ...
Q From 10 November 1975—1 October 1978 the rents to accrue within this period, they were not paid to the defendant by the plaintiff ?
A They were not paid.
Q The plaintiff was to use those rents for the work on the house?
Exhibit 1 was silent on the duties of the parties between 10 November 1975 to 1 October 1978. It would be seen that the witness had not only provided the clue but had also confirmed the version of the defendant. And to counteract the damaging evidence, the plaintiff tendered through the second witness for the defendant, exhibit H which is as follows:
“Dapaah Brothers Ltd.
General Merchants and Importers
Telephone 375 P. O. Box 2107
Residence 3755 Kumasi - Ashanti
Kofi Fofie (Manager)
Kwasi Owusu 7 October 1975
Ghana Commercial Bank
11 Road Kumasi
Mr. G. S. Peters
O. Box 5467
Tel. No. 27540
With reference to our discussion in connection of hiring my uncompleted two-storey building in Accra, the rental fee of ¢600 per month, I have agreed to your offer and you are requested to pay an advance of rent for a period of 3 years for the completion of the building.
That the work on the building will be started immediately you pay the advance to enable you live in the house without delay.
Hoping to hear from you favourably.
(Sgd.) (Joseph Achinah)
For: Dapaah Brothers Ltd.
W/W to sign:-
LIC No. 65849 Ksi/75
Ntornia Road, Adum
Exhibit H was a letter written by Dapaah Brothers Ltd., a limited liability company, and addressed to Mr S. Peters. The letter speaks for itself. It was a letter accepting an offer made by G. S. Peters. The letter in my view had nothing to do with the plaintiff and the defendant. Exhibit H was signed by Joseph Akyina on behalf of Dapaah Brothers Ltd. Exhibit H was not recited in, or referred to in exhibit 1. It is a principle of law that a company is an independent legal person: see Salomon v. Salomon & Co.  A.C. 22, H.L.. A letter written by Dapaah Brothers Ltd. to G. S. Peters was not in law a letter written by either the defendant, Kofi Fofie, or Joseph Akyina.
The plaintiff is not claiming that there was a tenancy agreement between Dapaah Brothers Ltd. and G. S. Peters, and that G. S. Peters had assigned the remainder of the tenancy agreement to him and therefore he, the plaintiff, is entitled to the benefit of the covenant under the said tenancy agreement.
There is the question of payment. Various forms of calculations and
additions were employed to arrive at the figure of ¢75,000 more or less, to be the purchase price. Mr
Kom, learned counsel for the plaintiff, had submitted that ¢75,000 was the selling price of the house and
the amount paid by the plaintiff. He arrived at the figure of ¢75,000 in this way:
“(i) As per exhibit 1 ¢21,600
(ii) First Ghana Building Society ¢29,037.34
(iii) To Achina as per exhibit E ¢24,362.66
Learned counsel explains the payment to First Ghana Building Society in a marginal note that the original loan as per exhibits D2 and D3 was ¢15,000. Mr Kom however did not explain how that amount became ¢29,037.34.
Lutterodt J. (as she then was) accepted the ¢75,000 and held that it was for payment in furtherance of rents and not the purchase price. The Court of Appeal on the other hand arrived at the figure of ¢99,000 and held that it was the total “payments” made and the amount spent in completing the house by the plaintiff.” The ¢99,000 include the estimate of ¢24,000 which was in fact not money paid and the ¢29,037.34 allegedly paid to the First Ghana Building Society. It will be shown in the course of this judgment that the plaintiff himself said that it was a lesser sum that he paid to the said First Ghana Building Society.
The ¢21,600 was clearly rent advance for the three years beginning from 1 October 1978, qv exhibit 1.
The defendant pleaded it, the plaintiff never specifically denied it in his reply. The plaintiff was very clear and precise as to payments which he regarded as payments towards the purchase price. We have to look again at his evidence-in-chief and under cross-examination. First the evidence-in-chief: “I paid ¢75,000 for it by means of a cheque and also to the building society to whom he, Oduro, was indebted.” And in cross-examination:
“Q You know the total indebtedness of the first defendant to the bank was only ¢16,000?
A Yes, it was inclusive of interest.
Q You did not pay directly to the bank?
A I paid.
Q These payments were part of the rent for the ten years period under exhibit 1 ?
A Yes, I agree.”
The subsequent questions and answers show that the bank mentioned is referring to the building society.
If the plaintiff is to be believed then the payments which he made towards the purchase price were payments he made by a cheque, and also to the building society. The only payment made by a cheque and supported by oral and documentary evidence was for ¢23,000. The withdrawn cheque was tendered attached to exhibit E. It bore the date 2 June 1986 and serial number H/OB/10379753. An amount of ¢1,362.66 cash was added to the ¢23,000 to make the ¢24,362.66 covered by the receipt, exhibit E. On the plaintiff’s own evidence he paid ¢24,362.66 plus the amount he paid to the First Ghana Building Society which was ¢16,000 as moneys paid as the purchase price.
Exhibit E reads:
FOR FINAL PURCHASE PRICE PAYMENT H/NO.33/5
ONYAA CRESCENT, NIMA RESIDENTIAL, ACCRA.
I, the undersigned Joseph Achina of P. O. Box 2107, Kumasi have received the amount of ¢24,362.66 made up of cheque No. H/OB/10379753 for ¢23,000 and cash of ¢1,362.66 from Mr E. T. Zanyoh of Accra, being settlement of balance outstanding in full and final payment for my house No. 33/5, Onyaa Crescent, Nima Residential Area off Ring Road Central, Accra.
Total purchase price paid ¢75,000.
Dated this 2 day of June 1986 at Accra.
(Sgd.) (JOSEPH ACHINA)
Witness to signature or mark
Sgd. G. S. PETERS.”
This is the receipt which the plaintiff alleges is the evidence of his having bought and paid for the house. It is the receipt that the defendant had pleaded was forged by the plaintiff.
Joseph Achina who signed exhibit E was the second witness for the defendant. He stated that in 1986 they came to Accra to collect the rent due to them calculated to be ¢24,362.66. The plaintiff gave him cash in the sum of ¢1,362.66 and took him to the Social Security Bank, where the plaintiff withdrew ¢23,000 which was given to him in addition to the ¢1,362.66. Joseph Achina said that it was the plaintiff who prepared the
receipt; the plaintiff too said that it was Joseph Achina who prepared it. Joseph Achina said that he signed the receipt in the absence of G. S. Peters. It is admitted that G. S. Peters signed the receipt sometime later in the absence of Joseph Achina. Joseph Achina said that the plaintiff refused to give him a copy of the receipt but promised to post one to him. A year later, in 1987, the plaintiff sent him a telegram to come to Accra. When he came, the plaintiff asked him whether he, Joseph Achina, knew that he had sold the house to him. He, Joseph Achina, denied selling the house. The plaintiff showed him the receipt and upon examining it, he saw G. S. Peters’, signature on it and also inserted on the receipt the following words: “FOR FINAL PURCHASE PRICE PAYMENT HOUSE NO.33/5, ONYAA CRESCENT, NIMA RESIDENTIAL AREA, ACCRA.” and also. “Total purchase price paid ¢75,000 (Seventy-Five thousand cedis).”
The trial judge held that the words complained of were inserted by the plaintiff in the absence of Joseph Achina and were inserted fraudulently. The Court of Appeal too held that the words were inserted by the plaintiff in the absence of Joseph Achina but found no fraudulent intent by the plaintiff. I agree with the trial judge that it was a gigantic fraud perpetrated by the plaintiff on the defendant and his family and it cannot be allowed to stand. I will say that the plaintiff carefully planned the fraud which he executed, otherwise the words in question could not be so easily typed subsequently into the receipt. I think the maxim fraud omnia vitiate applies to the plaintiff’s conduct. It runs counter to reason that the defendant would allow the plaintiff to occupy the disputed house for a grace period of three years for no consideration but rather to collect rents which he did not account to the defendant.
I have carefully examined the judgments of the High Court and that of the Court of Appeal, and I am of the view that the Court of Appeal made many unfounded and uncalled for attacks and criticisms on the trial judge. Take for example the following statement in the Court of Appeal judgment:
“The plaintiff pleaded and testified in court that it was he who completed the uncompleted building together with building and adding a boys’ quarters at a cost of ¢5 million. The first defendant did not put the plaintiff to strict proof of this serious statement. He was therefore bound to that statement ... clearly and plainly the trial judge failed and/or omitted to discover that the statement made by the plaintiff that he spent the colossal sum of ¢5 million in completing the undertaking was not challenged
nor disputed by the first defendant. . . .”
What the plaintiff pleaded, with regard to the ¢5 million was:
“(11) The plaintiff says that consequent upon the sale agreement he spent not less than ¢5 million in completion of the house and the plaintiff is now operating a hotel in the house known and called EMPEROR HOTEL.”
All that the plaintiff said in proof of the above quoted averment is this. “I have spent about 5 million cedis to complete the house. I am using the house to run a hotel. The hotel is known as Emperor Hotel.”
Contrary to the Court of Appeal’s assertions, this is what the defendant pleaded in paragraph (8) of the defence:
“(8) The first defendant therefore vehemently denies paragraph (11) of the statement of claim and says that the plaintiff has never spent either the amount of ¢5 million or any money of his own, on this (the first defendant’s family) said house. Indeed the plaintiff was under a duty, in terms of the said tenancy agreement to have long completed the said house within the three-year period from 1975 to 1978 when he was to have used the rents accruing from the said house to complete the said house but the plaintiff failed to do so.”
(The emphasis is mine.)
Since the ¢5 million was made a specific issue for trial, the plaintiff should have led cogent evidence in proof of this particular averment by him. He failed to prove it and the defendant need not be called upon even to give evidence in rebuttal. The trial judge never made any finding that the plaintiff spent the “colossal” sum of ¢5 million in completing the undertaking nor did the plaintiff himself say he spent a “colossal” sum of ¢5 million. All that the learned trial judge did in my view was to use the adjective “colossal” to qualify not less than ¢5 million or about ¢5 million which the plaintiff alleged he spent on the house, and if the plaintiff indeed spent any amount of that magnitude he should have offered a better proof than simply saying I spent about ¢5 million. Whether or not the plaintiff spent not less than ¢5 million in the completion of the house was issue “e” in the summons for directions to be resolved. That issue was not resolved by the plaintiff by just saying I have spent about ¢5 million to complete the house.
Thus the learned trial judge’s holding that the burden was on the plaintiff to show that he
spent as much as he claimed was right. The learned judge’s reliance on Majolagbe v. Larbi  G.L.R. 190 at 192 was apposite to the case before her.
Another unfortunate attack on the trial judge is the allegation that she made an unwarranted statement that the family of the first defendant leased the property to the plaintiff and therefore she erred in her judgment. The learned judge never said anything of the sort. What she said but was wrongly quoted was “In 1975 the family leased . . .” The plaintiff himself said so: “Peters is the estate agent who put me into contact with the family whose property I have purchased.” The learned judge held that the property was leased and not purchased. The plaintiff said that the defendant is the head of the deceased’s family and one of the administrators of the deceased’s estate. It was Joseph Achina who signed the lease, exhibit 1, as landlord and also forged the receipt, exhibit B, but it was the defendant that was sued. It would in my opinion be proper had the trial judge indeed said the first defendant’s family.
There is the controversy whether the offer had lapsed or not, in other words, whether time was of the essence and therefore the plaintiff had a limited time within which to accept the offer made in exhibit B. There is a difference between the sale of vacant land simpliciter, as for example in the case of Williams v. Greatrex  1 W.L.R. 31, C.A. where time was held not of the essence; and commercial transactions, such as business premises, where time must be of the essence. In this case, apart from the plaintiff being a tenant (running a hotel), there were also Kludjeson and Aikins Enterprises as tenants. See also Mills v. Haywood (1877) 6 Ch.D. 196, C.A.
The notion that the possession which has been continued by the plaintiff is to be referred to the lease agreement, exhibit 1, or exhibit H, is, in my opinion, wholly without foundation, and is contradicted by the plain facts of the case, and, as said earlier on in this my judgment, not even asserted by the plaintiff in his statement of claim, reply or defence to the defendant’s counterclaim. It sounds absurd that the defendant would agree to wait for ten years to receive the purchase money which is almost equal to the same amount he would have received under the lease for the same period.
Had it been the plaintiff’s case that he was a lessee with the right or option of renewal to be exercised within a prescribed period and he failed to exercise the option within the prescribed time and continued to hold in the same agreement as a tenant, delay will not be fatal to his right to exercise the option, and equity will come to his aid: see Shepheard v
Walker (1875) L.R. 20 Eq. 659.
Finally Mr. Kom raised objections that the appellant had argued two other grounds which never formed part of his grounds of appeal. In my view, the first alleged further ground could conveniently be argued under the two original grounds. In my judgment the second one would not make any difference to the outcome of this appeal.
I agree with the Court of Appeal that the order made by the trial judge in appointing the Lands Valuation Board to assess the monthly rent on the property was uncalled for and should be expunged. Save to that extent I would allow the appeal and affirm the judgment of the trial judge.
Osei-Hwere J.S.C. Edward Kwabena Oduro was the assignee of a lease in respect of a plot of land situate at a place called Akanetso, Accra. He was mindful of erecting a three-floored building on the plot and so, in 1971, he took a loan from the First Ghana Building Society towards that end. He died in 1974 when the projected building had not been completed. His elder brother, Kofi Fofie, and his wife were appointed his personal representatives. It would seem that the personal representatives did not have the means to complete the building. For that reason when one Peters, a property agent, approached them to say that he could find a tenant to rent the building they jumped at his proposal.
In October 1975 one Joseph Achina, a nephew of Kofi Fofie (and his obvious mouthpiece and representative) wrote to Peters dictating the terms upon which he would let out the premises. That letter, exhibit H, ran as follows:
With reference to our discussion in connection with hiring my uncompleted two-storey building in Accra at the rental fee of ¢600 per month. I have agreed to your offer and you are requested to pay an advance of rent for a period of third years for the completion of the building.
That the work on the building will be started immediately you pay the advance to enable you live in the house without delay.
Hoping to hear from you favourably.
Just one month after exhibit H, Peters had found his prospective tenant in the plaintiff who signed a tenancy agreement with Joseph Achina as the landlord on 10 November 1975. By that agreement, exhibit 1, the premises was let to the plaintiff for the term of ten years beginning 1 October 1978 at the yearly rental of ¢7,200. It was stipulated that the first three years’ rent of ¢21,000 was to be paid on or before the signing of the agreement and thereafter three months’ rent in advance. The plaintiff duly paid the first three years’ rent of ¢21,000 as agreed upon.
One year after exhibit 1 had been signed Kofi Fofie, the defendant herein, wrote to the plaintiff and offered to sell the premises to him for ¢75,000. The penultimate paragraph of the letter, exhibit B, indeed stated: “If this is acceptable to you, please confirm to enable us hold a meeting with your solicitor on the matter.”
The next recorded transaction in connection with the premises (now numbered 33/5 Onyaa Crescent, Nima) is exposed by exhibit C, a document executed in favour of the plaintiff by both Kofi Fofie and Elizabeth Oduro on 12 February 1981 and witnessed by Peters. The text of exhibit C thus runs:
“We the undersigned, being the executors of E. K. Oduro’s property, house No. 33 Onyaa Crescent, Nima Residential, Accra, do hereby authorise the lessee, Mr. Ebenezer Tetteh Zanyo to pay any balance of arrears owed by the said late E. K. Oduro to the First Ghana Building Society, Accra and to collect all documents concerning the said property; and to transact business with the said documents with his bankers.”
To complete the final recorded transaction in connection with the house, 1 may as well refer to the controversial exhibit E, a receipt issued, ex facie, under the hand of Joseph Achina on 2 June 1986. I quote the relevant text of exhibit E also as follows:
FOR FINAL PURCHASE PRICE PAYMENT H/NO. 33/5, ONYAA CRESCENT, NIMA RESIDENTIAL, ACCRA
I, the undersigned, Joseph Achina of P. O. Box 2107, Kumasi have received the amount of ¢24,362.66 made up of cheque No H/OB/10379755 for ¢23,000 and cash of ¢1,362.66 from Mr E. T. Zanyoh of Accra being settlement of balance outstanding in full and final payment for my house No. 33/5 Onyaa Crescent, Nima
Residential Accra off Ring Road Central, Accra. Total purchase price paid ¢75,000.”
It is against the background of these recorded transactions, serving as illuminating lamp posts, that the plaintiff brought his action against the defendants which, ultimately, was defended by the first defendant (Kofi Fofie) alone.
By his writ the plaintiff claimed “an order for specific performance ordering the defendants to execute a deed of assignment in favour of the plaintiff in respect of house No 33/5, Onyaa Crescent, Nima Residential Area, Accra.” His supporting statement of claim ventilated the following salient averments:
“(5) On or about 15 October 1975 the first defendant, second defendant, one Ama Fobie, Yaa Achina and Joseph Achina, all uterine relatives of the late E. K. Oduro, offered for sale the deceased’s uncompleted building, house No. 33/5, Onyaa Crescent, through an estate agent, Godwin Seshie Peters, for the sum of ¢75,000.
(6) The said offer was made in writing addressed to the plaintiff, then the executive director of Eben’s Complex Agencies, P. O. Box 2354, dated 15 October 1976 and thumbprinted by the first defendant and witnessed by Joseph Achina.
(7) The plaintiff accepted the offer and paid the defendants as per receipt issued in his favour dated 2 June 1986 signed by Joseph Achina witnessed by the estate agent, G. S. Peters.
(8) The plaintiff avers that before the full payment, the personal administrators of the late E. K. Oduro, i.e. the first and second defendants on 12 February 1981 authorised the plaintiff to pay the deceased’s indebtedness in respect of the building with the First Ghana Building Society and to collect the deceased’s documents of title.
(9) The plaintiff paid off the First Ghana Building Society and collected the deceased’s title deed and deed of surrender which documents are still in his possession up to date.
(10) The documents handed to the plaintiff are:
(i) Deed of assignment, L.R. 1006/69.
(ii) Deed of mortgage, L.R. 626372.
(iii) Deed of surrender, L.R. 8328/86.
(11) The plaintiff says that consequent upon the sale agreement he
spent not less than ¢5 million in completion of the house and the plaintiff is now operating a hotel in the house known and called EMPEROR HOTEL.
(12) The plaintiff says that despite repeated demands the defendants have refused and still refuse to execute a deed of assignment in favour of the plaintiff.”
The plaintiff’s evidence in court appeared rather uncomfortably concise, no doubt trusting to the recorded transactions in hand which he tendered. According to him when the offer to sell the uncompleted house was made to him, he accepted the offer. Later he was authorised by the first defendant and Elizabeth Oduro to pay the indebtedness of the late Oduro to the First Ghana Building Society which he did and collected the title deeds on the property. Thereafter he developed the main building and erected the boys’ quarters and spent about ¢5 million in these developments. The plaintiff tendered exhibit E as the receipt he took from Joseph Achina when he made the final payment for the house.
In the defence filed on behalf of the first defendant, remarkable for its prolixity, paragraphs (5)—(10) of the statement of claim were denied and in answer it was traversed to the following effect: Sometime in 1975 the family of the late Oduro informed one Nyarko, the contractor who had put up the building, that the family was interested in finding a tenant who would occupy the ground floor and use his own money to complete the building and then reimburse himself with the rent proceeds from the house. Following this, Nyarko introduced Peters who promised the family to find such a tenant. Peters subsequently introduced the plaintiff as willing to take up tenancy on those terms. The family entered into the tenancy agreement (exhibit 1) with the plaintiff. Exhibit 1 allowed the plaintiff a grace period of three years, i.e 1 October 1975 to 1 October 1978; the rents for which period the plaintiff was to use to complete the house.
The answer in the defence to the payment of the indebtedness to the building society was that the parties had agreed that the plaintiff was also to use portions of the rent due from him to pay off instalments due on the house. It was traversed that the parties had specifically agreed that the instalment payments should be routed through Peters who was to collect and keep the title deeds on behalf of the first defendant and his family. As to the offer to sell the house to the plaintiff as per exhibit B, it was contended that although the family learned from Peters that the plaintiff had expressed interest in the proposal of sale, yet he was unable to
accept, and he never accepted the offer of sale and the offer lapsed in 1976. It was further contended that notwithstanding the offer which had lapsed, the plaintiff continued to occupy the house on the basis of the tenancy agreement.
As to how the plaintiff came to possess the title deeds on the house, paragraph (4)(e) of the statement of defence stated as follows:
“The first defendant says that soon after the said indebtedness in favour of the First Ghana Building Society had been paid off as aforesaid, the plaintiff, in the company of the said Peters, sought the consent of the first and second defendants herein in their capacities as the legal personal representatives of the said E. K. Oduro to permit him (the plaintiff) to collect the said title deeds on the said house (which are listed in paragraph (10) of his statement of claim) from the said Peters so as to enable him (the plaintiff) use the same as security for a loan to enable him complete the said house as he had originally constructed or undertaken to do as aforesaid; and as the first and second defendants wanted the house completed for them, they consented to the plaintiff using the said documents as security for a loan and they (the first and second defendants) then mandated the said Peters to hand over the said title deeds to the plaintiff.”
It was also pleaded in the defence that the plaintiff obtained the signature of Joseph Achina on the receipt (exhibit E) by “fraud and roguery” which he perpetrated on Achina. The particulars of the alleged fraud on Achina as set down essentially comprised of the allegation that the plaintiff “unduly and improperly rushed Achina and did not give him enough time to study and appreciate the contents of the said receipt before he made him sign the receipt.” Specifically, the particular fraud levelled against the plaintiff was that he made certain insertions in the receipt after Achina had signed it. The first defendant counterclaimed against the plaintiff the following reliefs: that title in the house vested in his family and not in the plaintiff; an order for the ejectment of the plaintiff on account of his fraud; damages for the fraud committed by the plaintiff; and an order of perpetual injunction.
The issues set down for trial, in sum, were:
(a) whether or not the offer of the first defendant’s family for the sale of the uncompleted building was accepted by the plaintiff and the plaintiff paid for the purchase price;
(b) whether or not the plaintiff, consequent upon the sale
agreement, spent about ¢5 million to complete the house;
(c) whether or not the plaintiff has only been a tenant of the house by reason of the relevant tenancy agreement; and
(d) whether or not the plaintiff’s claim that he has bought the house is fraudulent.
At the trial of the action before Lutterodt J. (as she then was) the plaintiff called one witness. He is Peters, the “ property agent’, who was also made the first defendant’s agent in respect of the building. The defendant also called three witnesses, all members of his family with identical interest in the building.
The first defendant witness, Kwasi Owusu, professed to have taken part, along with Achina, the second defendant witness and other members of his family, in the negotiations resulting in the tenancy agreement with the plaintiff.
The trial judge dismissed the plaintiff’s claim and upheld all the reliefs sought by the first defendant in his counterclaim save for the damages claimed. The plaintiff appealed to the Court of Appeal and the court, by its unanimous decision, reversed the judgment of Lutterodt J. (as she then was) and entered judgment for the plaintiff against the first defendant. Additionally, the counterclaim was dismissed and all the orders made by the trial judge set aside. The first defendant has appealed to this court inviting the restoration of the judgment of the trial judge. To bow to that invitation, that judgment demands appraisal against the evidence and the relevant law to decide whether the trial judge was right in giving it and, consequently, the appellate court erred in setting it aside.
In her judgment the trial judge considered that the disposal of the “central and more serious issue was the resolution of the issue as to whether or not the plaintiff had paid for the purchase price of the property “, for as she said, “if we are able to show that indeed he has fully paid the sum of ¢75,000 that would be conclusive proof of the fact that he indeed accepted the offer.” The plaintiff had, indeed, testified blandly that he paid the ¢75,000 by cheque and by payment to the building society. In his address to the court his counsel had broken down the payments as follows:
(i) as per exhibit 1 (i.e, the three years’ advance payment taking effect from 1978)—¢21,600;
(ii) First Ghana Building Society (in 1981)—¢29,037.66; and
(iii) to Achina as per exhibit E—¢24,362.66.
The trial judge found that the plaintiff had, indeed, paid this total sum of ¢75,000 but held that the payments were in furtherance of rents under the tenancy agreement and not the purchase price. She formulated
several reasons for so holding which I itemise hereunder:
(i) The ¢21,600 was paid under the tenancy agreement as three years’ advance rents and not under a sale agreement and it would have been preposterous to expect the first defendant to have agreed to use that amount to offset part of the purchase price. That, according to her, would have meant that the house was being sold for less than ¢75,000 —for ¢53,400 in fact.
(ii) The plaintiff did not testify that the ¢21,600 formed part of the purchase price.
(iii) The plaintiff could not be heard to say that the payment to the building society formed part of the purchase price when he admitted under cross-examination that it formed part of the ten years’ rent.
(iv) The plaintiff had proved himself a most untruthful and unreliable witness because even though he had sworn that he paid the loan directly to the building society and collected the title deeds from the society, the first plaintiff witness (Peters) had said he paid the loan to and collected the documents from the society directly.
Still on the reasons formulated by the trial judge—
(v) Testifying on how exhibit C came to be executed, the first plaintiff witness had said that he could not remember when it was signed but he remembered that they met the family at Nsawam when the plaintiff was looking for the family’s consent to raise a loan from the bank. On cross-examination, the first plaintiff witness had also admitted that the plaintiff had told the defendants that he wanted their permission to use the house as security for a loan from his bankers to complete the house. The judge formed the view that if the payment to the building society at that stage was towards the purchase price that fact would have been made known to the first plaintiff witness and, on top of that, exhibit C, the authority note, would have disclosed that the property had been sold. Rather it described the plaintiff as a lessee.
(vi) The claim put forward on behalf of the plaintiff that as there was no agreement that the plaintiff should complete the house it could not be true that he sought the defendants’ permission to raise a loan for that purpose was contradicted by the first plaintiff witness. The plaintiff did not, therefore, pay off the
mortgage debt as a prospective buyer.
(vii) The mode of payment stretching over a period of ten years was more consistent with the subsistence of a tenancy agreement than outright sale.
In their treatment of the law on acceptance in Cheshire and Fifoot, The Law of Contract (8th ed.) at p. 30 the learned authors have emphasised that:
“the phrase ‘offer and acceptance’ though hallowed by a century and half of judicial usage, is not to be applied as a talisman, revealing, by a species of esoteric art, the presence of a contract.”
They further cautioned at the same page:
“The rules which the judges have elaborated from the premise of offer and acceptance are neither the rigid deductions of logic nor the inspiration of natural justice. They are only presumptions, drawn from experience, to be applied in so far as they serve the ultimate object of establishing the phenomena of agreement . . . [These phenomena] may be collected from the words or documents that have passed between the parties or may be inferred from their conduct.”
Thus it was stated in the headnote in Brogden v. Metropolitan Railway Co. (1877) 1 App. Cas. 666, H.L. that circumstances in the conduct of two parties may establish a binding contract between them although (as happened in that case) the agreement, reduced into writing as a draft, had not been formally executed by either. Accordingly, it is not always safe, in constructing a contract between two parties, for the court simply to look for the precise moment when an offer, for instance, was accepted to determine the existence of the contract.
It must be noted that in considering the obligations of the parties under the tenancy agreement, the trial judge did not even so much as cast a casual glance at exhibit H which, as mentioned before, dictated the terms under which the defendants’ family were prepared to let out the premises. In fact, she completely dismissed exhibit H from her mind. The document was closely linked with exhibit 1 and the trial judge was bound to have considered the two documents together as forming one comprehensive contract from which the essential terms of the tenancy agreement could be discovered. In shutting out exhibit H from her consideration her judgment, in my opinion, was faulted to the very core
since she thereby drew conclusions not permitted her.
Exhibit H did not only make it crystal clear that the obligation to complete the house to enable the plaintiff “live in the house without delay” was on the first defendant but it totally exploded the defence advocated in his pleadings and in court that the obligation to complete the building was on the plaintiff. Indeed, the oral evidence both the first and the second defendant witnesses dared to trumpet in the witness-box to the effect that the plaintiff was to use the rents for the so-called “grace period” to effect the completion of the building (which unfortunately beguiled the trial judge) could not stand up to the cross-examination of the plaintiff’s counsel which miserably, and tellingly, reduced it to smithereens. To exemplify the point, I quote from the cross-examination of the second defendant witness, the very author of exhibit H:
“Q You were authorising the first plaintiff witness to find a tenant for you along the terms in exhibit H?
A Yes, I agree.
Q On the strength of exhibit H the first plaintiff witness found the plaintiff as a tenant?
A Before writing this letter I had discussed the matter with Peters. He found the tenant on the basis of these discussions.
Q When the plaintiff was introduced as the tenant exhibit 1 was produced?
A That is so.
Q Both exhibits 1 and H deal with this house?
A Yes. That is so.
Q The rent you wanted in exhibit H is the rent you got in exhibit 1?
A Yes, I agree.
Q In exhibit H you were prepared to give three years’ grace and exhibit 1 also speaks of a three-year grace?
A That is so.
Q In exhibit H you say you will complete the building when you receive the advance?
A It is true I said that in the exhibit H. [Witness reads the exhibit H aloud and very clearly in court.]
Q Nothing in exhibit 1 says the plaintiff was to complete the building?
A I agree nothing in exhibit 1 says he is to complete the building.”
It is strange that the death blow dealt to the bogus terms which the first and the second defendant witnesses attempted to import into the tenancy agreement should have escaped the attention of the trial judge who rather chose to chase after insubstantial evidence to build up a case for the first defendant. I here refer to the judge’s preference for the oral evidence of the first and the second defendant witnesses (which she found to have been supported by the evidence of the first plaintiff witness) establishing those terms in the tenancy agreement outside exhibits H and 1 which obliged the plaintiff to complete the building. For it is a firmly established principle of law (except perhaps in a few exceptional circumstances, like fraud or to found an estoppel) that parol evidence cannot be admitted to add to, vary or contradict a deed or other written instrument: see Jacobs v. Batavia and General Plantations Trust Ltd.  1 Ch. 287 at 295 and Motor Parts Trading Co. v. Nunoo  2 G.L.R. 195, S.C. That principle is now solidly secured in section 177 of the Evidence Decree, 1975 (N.R.C.D. 323). Accordingly, the oral evidence on the imported terms inconsistent with exhibits 1 and H was inadmissible in law or rendered valueless by reason of exhibit H.
Quite apart from the above reasons, the trial court had no authority to capitalise on the evidence of the first plaintiff witness which was said to support the terms of the tenancy agreement put forward on the first defendant’s behalf. In his evidence-in-chief the first plaintiff witness was quite explicit that the obligation to complete was on the defendants’ family to complete. He testified as follows:
“I was agent of the landlord when exhibit 1 was being signed. I rented this house to the plaintiff in 1975. At the time the building was not completed so the landlord asked him to give advance so that they complete the house. So he gave a total amount of ¢21,000 as three years’ advance. They gave him three years’ grace because of the repair. The house was given to him in 1975, but the tenancy was to take effect from 1978.”
The first plaintiff witness further testified that the plaintiff sent him to Kumasi in 1976 to consult the landlord about completing the construction of the house (after the landlord had obviously failed to carry out any work on the house) and explained how the offer of the sale of the house to the plaintiff (exhibit H) came to be made.
The evidence-in-chief of the first plaintiff witness together with his answers in cross-examination on his first day in court obviously was plain-sailing and gave no cause to the plaintiff for alarm. When asked
in cross-examination what the plaintiff was to use the rent for the grace period he answered:
“That was not the agreement. He had already paid advance to the family but the landlord did not repair the house so that plaintiff took it upon himself to repair the house.”
By the above answer the first plaintiff witness was implying that the question that the plaintiff was to use the rent was not discussed as forming part of the agreement.
On his second day in court, and when still under cross-examination, the first plaintiff witness clearly and patently turned hostile to the plaintiff calling him. A barrage of leading questions were put to him by counsel for the first defendant and, like the cord in a bow, he rendered himself a pliable tool in the hands of counsel. One of the suggestions to him during the cross-examination was that the plaintiff was to use the rents for the three years’ grace period for the work on the house, and he answered “Yes.” Counsel for the plaintiff must have found himself in a dilemma at that stage as he could not have jumped in to treat him as a hostile witness, even if he had the material to do so. This is because it was too late at that stage for counsel to have availed himself of the required notice to the court to attack the credibility of his witness as provided in section 81(2) of N.R.C.D. 323. In some other jurisdictions the court had the discretion to prohibit counsel from leading if on cross-examination the witness appears to be biased in favour of the cross-examining party: see Rush v. French, 1 Ariz 99 (1874). A situation like this should not fetter the inherent jurisdiction of our trial judges to intervene in the manner suggested by the above American decision.
Be that as it may, the evidence of the first plaintiff witness, contradicting what he had said in-chief, was used as the make-weight to the first defendant’s case that the obligation to complete was on the plaintiff.
The trial judge miserably erred in so employing the contradictory evidence of the first plaintiff witness either to defeat the plaintiff’s claim or to bolster the defence. The law, here again, is that where the evidence of a witness in-chief is subsequently contradicted by him in cross-examination, the effect is that the whole of the evidence of the witness on the particular issue should be discredited: see, for instance Okudzeto v. Commissioner of Police  G.L.R. 588, S.C.
Apart from the claim put up by the defence that the plaintiff was under the onerous obligation to complete the building, it was also put forward that the plaintiff was charged with the obligation of paying off
the mortgage debt owed to the building society. Even here both the first and the second defendant witnesses were not of the same mind. The evidence of the first defendant witness that this obligation was imposed on the plaintiff when the tenancy agreement was negotiated was not supported by the second defendant witness who testified to the effect that it was after they had entered into the tenancy agreement with the plaintiff that they introduced the first plaintiff witness, their agent, to the building society as the person who would pay up the loan, presumably from the subsequent rents collected from the plaintiff. In view of this conflict, exhibit C executed on 12 February 1981 must be admitted as the only time the plaintiff was asked (or authorised) to pay off the loan and collect the documents on the house to transact his own business. Indeed, if it had been agreed that the plaintiff should use the rents to pay off the mortgage loan why then did the first defendant, as he testified, try to stop him?
The first defendant himself could not support the evidence freely peddled at the trial that the plaintiff asked the authority to collect the title deeds to raise a loan to complete the building. According to him, when the plaintiff came to Nsawam he asked that he (the first defendant) and Elizabeth Oduro should give him authority to go and raise money to pay for the debt outstanding on the house. Exhibit C clearly states the purpose for which the consent was given and, as a written instrument, parol evidence was not permissible to contradict that purpose, notwithstanding the first plaintiff witness being the proponent of that evidence. In short, the first plaintiff witness and the witnesses for the first defendant could not legitimately be allowed to say in terms of section 177 of N.R.C.D. 323 either that the plaintiff was to raise a loan with the title deeds to complete the house or that he did not collect the title deeds from the building society but from the first plaintiff witness.
The above exposition of the law which disabled the defence from incorporating those extraneous terms into the tenancy agreement and disallowed the defence to hold out exhibit C to be other than what it clearly states, now leaves me free to answer specifically the formulated reasons of the trial judge as itemised before. To answer the reasons in (i) and (ii) it is necessary to reconstruct briefly the position of the parties and their obligations unmistakably evoked by the evidence. The defendant had contracted with the plaintiff to complete his unfinished building, not with his own money but with the plaintiff’s money in the huge sum of ¢21,600 by the standards of those days, and thereafter the plaintiff was to enjoy the full benefit of the rental of the premises. The
defendant squanders the ¢21,600 obviously by reason of his dire need of money (which he seemed to be ever ready to proclaim as a convenient handy tool to win sympathy) and thereby failed to utilise the ¢21,600 for the purpose it was taken. Rather than breach the contract, he offers to sell the premises in the unfinished condition to the plaintiff. If the plaintiff accepts the offer he will surely be entitled to recover his ¢21,600 or set it off against the purchase price. Surely no evidence is required from the plaintiff to say, if he decides to let the defendant hold on to it, that the money formed part of the purchase price.
At this stage it is only necessary to remark that this court must not be led astray by the so-called “grace period” and the rent which was said to benefit the plaintiff. The question is what was the quantum of the rent derived from the firm (Kludjeson and Aikins Enterprises) who seemed to have occupied part of the ground floor. Since the defendant’s counsel elicited from the first plaintiff witness that he put in the tenants for the plaintiff he should, to avoid any untoward speculation, also have found out from him the rent he charged or got out of the house to buttress the defendant’s case. Be that as it may, the evidence was that the contractor, Nyarko, was also in occupation of the ground floor, obviously rent-free. If the three-floored house, when completed, was to be let out at ¢600 per month then it is not difficult to guess that the rent paid by the firm was insignificant and could in no way be employed to complete the house.
Otherwise what stopped the defendant from letting out the completed part of the building and collecting the rents himself to complete it?. There was nothing immoral that the plaintiff should pocket the rents allegedly paid by the firm during the grace period because if he had invested the ¢21,600 which he had consigned to the first defendant for his own purpose, the plaintiff would have profited by it. The reasonings proffered in (i) and (ii) if sustained, will accord judicial benediction for the unjust enrichment of the first defendant’s family.
The answer “yes, I agree” the plaintiff gave to the question in cross-examination that the payment he made to the building society was part of the rent for the ten-year period under exhibit 1 should not have been taken in isolation. The plaintiff was thereafter cross-examined about rents but he denied that those matters referred to rents. Those denials weakened the effect of the affirmative answer mentioned above.
This admission (which seemed rather odd because the plaintiff was emphatic that he had accepted the offer of sale) cannot be used by itself to defeat a sale if a contract to sell existed. It has been stated as a general rule that a party’s testimony, unless intended as unequivocal concession, is not
conclusive against him: see Kanokpa v. Kanokpa, 113 Conn 30 (1931). Accordingly, it is only when the party’s own testimony taken as a whole unequivocally affirms his statement amounting to an admission that the rule of conclusiveness applies; otherwise he is free to contradict, and thus correct, his own statement: see Chaplain v. Dugas, 323 Mass 91 (1948). In view of the plaintiff’s emphatic testimony that there existed the contract of sale out of which he made payments towards the purchase price, his statement in cross-examination that the payment to the building society represented rents reduced itself to a mere opinion rather than an assertion of concrete fact, and the rule of conclusiveness, accordingly, did not apply. This was the more so if it could be shown that on no account could the payments be referable to rents.
Payment of rent under exhibit 1 was premised by the discharge of the landlord’s obligation to complete the house. This was a condition precedent for the effective commencement of the occupation of the house by the plaintiff from 1 October 1978. Oblivious of exhibit H, the first and the second defendant witnesses successfully pulled a fast one on the trial court on this aspect of the tenancy agreement and shifted the obligation to complete on the plaintiff. But, providentially, the plaintiff’s counsel by adroit cross-examination, as demonstrated, manoeuvred the second defendant witness into conceding that he did not only authorise the first plaintiff witness to find a tenant for him along the terms in exhibit H, which the first plaintiff witness in fact did by finding the plaintiff, but he also said in exhibit H that he would complete the building when he received the rent advance. With this concession by the second defendant witness on record, I can hardly present to my mind the point of view from which any person can refuse for any reason to connect exhibit H with exhibit 1 but rather espouse some meaningless excuse on which the first defendant and his family could ride free of their obligation. The undisputed evidence was that as at 12 February 1981 (and thereafter) when exhibit C was executed by the first defendant and his “co-executor” authorising the plaintiff to pay the mortgage loan, they had not added a block to the uncompleted house. The plaintiff in fact paid off the mortgage loan sometime in April 1981 as is evident in the deed of surrender and release in the exhibit D series.
It will be noted that as at 12 April 1981 the term of years granted under the tenancy agreement to the plaintiff and for which term he had paid the three years’ rent in advance had run for two years and six months without the plaintiff enjoying the full profit of his rental contemplated by the tenancy agreement.
Again, as at that date, the
period covered by the three years’ rent advance had even not run out so that if the landlord had completed the building for the plaintiff’s occupation the next rent would not have become due until 1 October 1981; and even so the rent exigible on this date and thereafter was three months’ rent in advance. In these circumstances, it was unimaginable that the plaintiff would have committed the huge sum of money paid to the building society as rent. That sum (upon the calculation of the plaintiff’s counsel and obviously inferred from the plaintiff’s evidence that he paid the purchase price of the house) was said to be ¢29,037.34. It was, however, suggested to the plaintiff in cross-examination that the amount owed to the building society was ¢16,000 and he answered: “Yes, it was inclusive of interest.”
It seems uncertain to me whether the plaintiff had meant to say “exclusive of interest” because the principal loan was ¢15,000 and carried interest for the ten years’ period allowed for repayment. The borrower himself died three years after he had obtained the loan and if there had been no payments made to the building society for the period of seven years after his death, 1 do not believe that the amount owing at the end of the ten years would have stood only at ¢16,000. But we need not prolong the dispute.
From the testimony of the second defendant witness it was Nyarko who informed the family in 1975 that the loan stood at ¢16,000. Time never stops running at the bank. As the debt had not been discharged since the death of Oduro in 1974 up to 1981, it could not have escaped the ravages of interest and, surely, it would have stood far more than ¢16,000. Inspite of the seeming admission by the plaintiff of the ¢16,000, the trial judge found that the amount owing was ¢29,037.34. That finding by the trial judge should for all time supply the quietus to the debate whether the amount owed to the building society was ¢16,000 or ¢29,037.34. The defendant’s counsel, indeed, accepted in his address the ¢75,000 (of which the ¢29,037.34 formed part) as it tended to serve the defendant’s purpose. He argued that those payments making up the sum of ¢75,000 were in furtherance of rents but that as the sum exceeded the ten years’ rent by a mere ¢3,000 it should not designate the payments as towards the purchase price.
It was not disputed that the cost of completing the building estimated by Nyarko, the contractor, in 1975 was ¢24,000. That, as per exhibit H, influenced the collection of the three years’ advance rent from the plaintiff. It was not contemplated that the defendant’s family was to erect the boys’ quarters which had not even seen its foundation. The plaintiff significantly put up the boys’ quarters without any opposition
from any quarters, in addition to completing the building himself. If it is accepted (as the trial court was bound to accept) that the defendant was obliged to have completed the building with the money substantially provided by the plaintiff but he failed to do so, then the amount spent by the plaintiff in carrying out that obligation, if he had not accepted the offer, ought to be charged against the defendant as part of the rents. For the purpose of developing the argument that the payments could in no way represent rents, we have to assume that the plaintiff spent the estimated amount of ¢24,000 to complete the house (although it was certainly more than that by 1991 when he undertook the work). Taking into consideration the ¢24,000 spent to complete the house and the suggestion to the plaintiff that the mortgage loan was ¢16,000, the plaintiff would have made the following payments:
Rent advance : ¢21,600.00
Building society : ¢16,000.00
To the second defendant witness as per exhibit E : ¢24,362.66
Estimated expenditure : ¢24,000.00
Total : ¢85,962.66
Substituting the ¢16,000 in the above figures by the ¢29,037.34 found by the trial court to have been paid to the building society, the total payments would have amounted to ¢99,000.
Assuming, however, for the purpose of advancing the disputation of the defendant that the tenancy agreement enjoined the plaintiff to complete the building, then the payments made to the defendant directly or indirectly were: (i) (taking into account the defendant’s suggestion that the outstanding balance to the building society was ¢16,000)—¢21,600, ¢16,000 and ¢24,362.66: totalling ¢61,962.66; and (ii) (taking into account the plaintiff’s figure of ¢29,037.34 as the mortgage loan paid)—¢21,600, ¢29,037.34 and ¢24,362.66: totalling ¢75,000. As the total sum of each of the set of payments above mismatches the total sum of the rents for ten years under exhibit 1 (which is ¢72,000) it is impossible to hold that any of the set of payments can represent rents.
It was not permitted to the defendant to opt for the set of payments totalling ¢75,000 and hold them out as rents but, at the same time, invite the court to disregard ¢3,000 of that total sum so as to conform with the total rents for ten years. To heed that invitation was to bend the admitted facts to suit the rent concept. In the defence delivered, it was pleaded that the amount of ¢24,362.66 was arrived at after the second defendant witness had sat down with the plaintiff and calculated the payments to find the balance of the outstanding rents. In his written address at the
trial court the defendant’s counsel, without any supporting evidence whatsoever, painted the plaintiff as “penny wise” (in addition to the other terms of reproach) by urging that the plaintiff had added to the rents calculated some trifling amounts of money he gave to the second defendant witness to cover transport. It was, of course, the second defendant witness who issued the receipt, exhibit E, which acknowledged (without dispute) that the ¢24,362.66 was for “settlement of balance outstanding in full and final payment for my house No. 33/5, Onyaa Crescent ...”
Contrary to the pleadings the second defendant witness testified that it was rather his illiterate relations, his mother and his uncle, who made the calculations by themselves to arrive at that figure of ¢24,362.66.
This further lie by the second defendant witness was obvious. It was to induce the trial court to imply that any mistake in the calculation was that of his relations and also to give credence to his evidence that he believed the “full and final payment for my house” to relate to rents. The defendant was, of course bound by his pleadings and it was not open to the second defendant witness to contradict the pleaded facts. No one would believe that the second defendant witness who had executed exhibit 1, authored exhibit H, witnessed exhibit B and acted as the representative of the first defendant was specially invited to come down to Accra with his illiterate relations only to stand by whilst they laboured under the arithmetic of finding out the arrears of rent. The mystery of it all was that the second and the first defendant witnesses never told the court how they arrived at the sum of ¢24,362.66 for which the receipt on the final payment was issued. Both the first and the second defendant witnesses impressed the trial court with the standard of their literacy. it cannot be conceived how the second defendant witness and the plaintiff could have erred in the simple addition of the two previous payments and subtracting the result from the ¢75,000.
The claim that the ¢24,362.66 represented the “final payment” of rents on the house was also completely defeated by the terms of payment in exhibit 1. After the three years advance rent was expected to have spent itself by 30 September 1981, the three months’ advance rent was also expected to fall due on 1 October 1981 and thereafter on 1 January, April, July and October of the ensuing years. When the second defendant witness and his family, therefore, met the plaintiff on 2 June 1986, the rent arrears, if any, would have been reckoned up to and inclusive of 1 April 1986. As the rents from 1 July 1986 up to 1 October 1988 were simply not due for payment the defendant had to explain why
the plaintiff would have indulged him by the gratuitous payment of two and a half years’ rent in advance in addition to the arrears already due if the tenancy agreement was still subsisting.
Although the duty of choosing which witnesses to believe is traditionally said to lie within the peculiar province of the trial judge who heard and perceived the witnesses, the correlative rule is that he is not entitled to make his selection out of mere whim or fancy. Section 80 of N.R.C.D. 323 provides some useful guidelines, by no means exhaustive, which may be relevant in determining the credibility of a witness. An appellate court will, accordingly, be free to impugn that selection if there is some evidence on record which goes against the credibility of the particular witness. Exhibit C which authorised the plaintiff to pay off the mortgage loan and collect the documents on the house was witnessed by the first plaintiff witness. In spite of the plain language of exhibit C, the first plaintiff witness testified in his hostile stand that he rather paid off the loan by instalments and collected the documents and even went so far as to admit the impossibility in cross-examination that the title deeds were already in his custody at the time the plaintiff went with him to Nsawam for the authority note, exhibit C. The trial judge believed this testimony of the first plaintiff witness and relied on it to hold out the plaintiff to have proved himself a most untruthful and unreliable witness for saying that he paid off the loan and collected the documents as authorised by exhibit C. The trial judge erred in law in disbelieving the plaintiff and accepting the evidence of the first plaintiff witness as she failed to assess credibility by relating exhibit C to section 80(2)(g) of N.R.C.D. 323.
Indeed, her over-reliance on the evidence of the first plaintiff witness (an agent of the defendant the plaintiff had the misfortune to call) which prompted her readiness to swallow book line and sinker whatever fell from his lips in cross-examination and her failure to give the proper legal evaluation to his evidence led her to give inadequate consideration to the plaintiff’s case. It must be remarked that the much vaunted principle which compels the court to accept the evidence of a party on an issue which is corroborated by the evidence of his adversary’s witness and to reject the evidence of the party’s adversary which is even uncorroborated by his own witness has its legitimacy solely on the ground that the corroborating evidence of the opponent’s witness is itself credible. The evidence is credible when, for instance, it passes all the litmus tests in section 80(2) of N.R.C.D. 323. If it fails any of those tests, it ceases to have any probative value for any purpose whatsoever.
The description of the plaintiff as lessee in exhibit C was used to defeat his claim that he had purchased the property. It was said that if he was a purchaser he would have been so described. The reasoning did not take account of the fact that the property was not a freehold but a leasehold and the interest of E. K. Oduro disclosed in the documents of title was that of an assignor of the lease. Oduro was accordingly a lessee within the meaning of the Conveyancing Decree, 1973 (N.R.C.D. 175). If the property had been sold to the plaintiff then he, in turn, became a lessee. To so describe him in exhibit C was legally acceptable and quite in conformity with his derivative title acquired by purchase. It must be noted that in exhibit 1 the plaintiff was described as a tenant and not as a lessee. His description as a lessee could not therefore be referable to exhibit 1. It is plain that the plaintiff described himself as a lessee in exhibit C by design so as to differentiate his description as a tenant in exhibit 1. He was saying that under the sale agreement he was a lessee but a tenant under the “cancelled” tenancy agreement. At the very beginning of his cross-examination this was made explicit when he said:
“Q You were originally let into possession as a tenant?
A As a lessee.
Q A tenancy agreement was executed between you and the first defendant?
A Yes, but cancelled by the offer for sale.”
The legal significance of the defendant presenting, as it were, a blank cheque to the plaintiff by authorising him to keep the title deeds and use them as a collateral for whatever loan he cared to raise from his bankers, was to demonstrate that a contract to sell the house had been constituted between them.
Besides, the possession by the plaintiff of the defendants’ title deeds, acquiesced in by the defendant, is an interesting application of the doctrine of part performance.
The mode of payment complained of rakes up the question of time being of the essence of a contract. That question was never pleaded and it was wrong for the trial judge to bring up the payments which were spread over a period of ten years to defeat the contract of sale claimed by the plaintiff. As cautioned by Lord Normand in Esso Petroleum Co. Ltd. v. Southport Corporation  A.C. 218 at 238-239, H.L.:
“The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them . . . To condemn a party on a
evidence to the issue disclosed by them . . . To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”
If the plaintiff had been given notice of the case he had to meet, he might have explained the delay in completing the payment of the purchase price. Exhibit F, the letter from the plaintiff’s lawyer suggests that the defendant contributed to the delay.
Be that as it may, the law on delay in contracts may be summed up as follows:
(i) Time is essential at common law even though not expressly made so by the parties.
(ii) Courts of equity, on the other hand, which have had to consider the matter in connection with suits for specific performance have always taken a less rigid view. Their view is that time is not necessarily essential, and if they can do so without injustice they will decree specific performance notwithstanding the failure of the plaintiff to observe the time fixed for completion. But the maxim that in equity time is not of the essence of the contract does not mean that stipulations as to time may always be disregarded.
(iii) In brief, time is essential in equity:
(a) if the parties expressly stipulate in the contract that it shall be so: see Hudson v. Temple (1860) Beav 536;
(b) if, in a case where one party has been guilty of undue delay, he is notified by the other that unless performance is completed within a reasonable time the contract will be regarded as broken: see Stickney v. Keeble  A.C. 386, H.L.; and
(c) if the nature of the surrounding circumstances or of the subject matter makes it imperative that the agreed date should be precisely observed.
(iv) By reason of the provisions in section 41 of the Law of Property Act, 1925 (which have keen assimilated under section 111 (2) of the Courts Act, 1971 (Act 372) where the case is one in which equity would in a suit for specific performance have regarded a stipulation as to time non-
essential, then every court, even in an action for damages, must adopt that attitude. But if the contract is one not capable of specific performance in equity, the common law view that time is essential prevails.
(v) It was decided in Atta v. Adu [1987-88] 1 G.L.R. 233, S.C. that a party cannot unilaterally impose time as of the essence, where it was not initially a term of the contract, without giving reasonable notice and, even so, without impropriety on the part of the other.
(vi) In Smith v. Hamilton  2 All E.R. 928, which the court followed to support the ratio decidendi in Atta v. Adu stated in (v) above, Harman J. at 932 observed:
“Everybody knows, for instance, that on a sale of licensed premises, or a sale of a shop as a going concern . . . time is of the essence because it necessarily must be so. Apart from that, however, it would need very special circumstances to make time of the essence of the contract on a sale of an ordinary private dwelling-house with vacant possession.”
The observation applies more forcefully to an uncompleted house. As none of the conditions making time an essence existed in the contract which the plaintiff sought to enforce by specific performance, it was entirely wrong for the trial court to have taken a cold look at the ten years’ period for completion to make time of the essence contrary to the subjugation of common law to prevailing equity by section 41 of the Law of Property Act, 1925.
The question of the alleged long delay of ten years to complete the contract, gratuitously raised by the trial court, even if time was of the essence, was not fatal, having regard to the leisurely manner the parties approached the contract. If, as claimed on the defendant’s behalf, the offer had lapsed, he should have taken steps to discharge his obligation in completing the house during the “grace period” to signal to the plaintiff that his offer had lapsed or that the plaintiff’s acceptance could not be considered in any form.
The defendant did nothing of the sort during or after the “grace period.” In that state of inertia, when the defendant would not perform his obligation and the plaintiff would not press for it, it was reasonable to infer (even going by the evidence of the first plaintiff witness that the plaintiff only expressed interest in the offer) that the offer had been accepted or, at worst, kept open. The
contract, if kept open, was clinched by their conduct when in 1981 the defendant executed exhibit “C” which enabled the plaintiff to collect the title deeds (after paying off the loan) and carry out the improvements thereafter.
The sluggish manner in paying for the purchase price was quite immaterial because it was open to the defendant to activate the plaintiff by notice stipulating a reasonable time to complete the payment failing which the agreement would be terminated. In the same manner the question of hardship to the defendant, in that the value of the property had increased in the meantime and to enforce the contract would result in the plaintiff buying at an undervalue, will not afford him a valid defence. For, as the authorities stand, to constitute a defence on account of hardship it must have existed at the date of the contract; specific performance will not be refused merely because, owing to events which have happened since the contract was entered into, the completion of the contract will cause hardship. On the non-availability of delay in payment and the rise in value of the property after the contract providing no defence: see the Canadian case of Mathews & Mathews v. McVeigh (1954) 2 D.L.R. 338,.
To conclude, where time has been made an essence of the contract and the failure to obey the express stipulation in the payment of the purchase price is ominous, it is not unknown to equity to relieve the defaulting purchaser by recompensing lapse of time in payment with interest and costs; see Vernon v. Stephens (1722) 24 E.R. 642, L.C. In this case Macclesfield C. ordered the plaintiff to be relieved upon payment of principal, interest and costs.
The trial judge formed the view that the plaintiff wrote all the words in the receipt, exhibit E and that by his conduct he had committed the crime of forgery. She referred to section 13(1) of N.R.C.D. 323 which provides that in any civil or criminal action the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt. She made certain deductions from the evidence and concluded that the plaintiff had committed the crime of forgery. From that conclusion she found that “neither at law (or in equity) is the plaintiff entitled to any benefits under this forged document, let alone the equitable remedy of specific performance.”
The reasonable doubt standard required when a charge of crime is at issue in a civil action has been deliberately maintained by section 13(1) of N.R.C.D. 323 because, as explained by the Commentary on the Evidence Decree, the consequences on the reputation and life of the person against
whom the commission of a crime is alleged are so great that the standard of proof applied in criminal actions to protect those who are accused should equally apply in civil actions. The trial judge was, therefore, duty bound to have kept in view the threatened consequences of sustaining the accusation of forgery and she should have satisfied herself that the required standard of proof had been reached.
The proof offered did not go beyond the bare evidence on oath by the second defendant witness denying that he made the insertions impugned by him. The defendant equally stood to profit by the absence of the insertions just as it was found that the plaintiff stood to gain by their presence. Accordingly, neither the criteria of profit employed against the plaintiff nor the finding against the plaintiff that he was not a witness of truth (although palpably unjustified) could relieve the defendant of proving the alleged forgery beyond reasonable doubt. Looking at the evidence on record the “beyond reasonable doubt” measure of persuasion imposed by section 13(1) of N.R.C.D. 323 was by no means attained and the finding against the plaintiff that he had forged exhibit E was unwarranted in law. By the finding, the floodgate was opened to inflict incalculable harm not only to the pocket of the plaintiff but to his reputation.
A court of equity would refuse relief for specific performance to a plaintiff who had been guilty of bad faith, fraud or any unconscionable act only where that had been “in the transaction” which formed the basis of the suit: see Sang Lee Investment Co. Ltd. v. Wing Kwai Investment Co. Ltd. (1980) 80 L.S. Gaz. 1350, P.C. where Weegham v. Killefer (1914) 215 F 168 was applied. Such conduct which will constitute “fraud in the transaction.” may arise where the plaintiff had made some positive misrepresentation or he had been guilty of fraudulent suppression in the contract or if the particulars or conditions of sale are misleading. The alleged insertions in exhibit E which were said to have constituted fraud (and indeed the execution of exhibit E) were made ex post facto and played no part in inducing the alleged contract of sale. The plaintiff also explained that the insertion sought to amplify the main body of the receipt which acknowledged that the amount received was “settlement of balance outstanding in full and final payment for (the) house.” The second defendant witness and his principal, the first defendant, were bound by the main body of the receipt. I think it was stretching the meaning too far for the trial judge to say that “final payment for the house” could also refer to final payment of outstanding rents on the house.
The trial judge should not have accepted the evidence of the second defendant witness that he was “rushed” to sign exhibit E and also that he understood it to be referring to rents. This is because his own evidence does not support the question of being put under pressure to sign. The evidence disclosed that after signing he showed concern on the whereabouts of Peters who was to witness the transaction and was informed that Peters would sign on his return from Togo. That hardly supported his contention, when cross-examined, that the plaintiff forced him to sign. The evidence of the second defendant witness that he was either “rushed” or “forced” to sign could not in law support either the plea of non est factum or of duress or coercion such as would nullify consent: see Peki Orthodox Secondary School Board of Directors v. Tawlma-Abels  1 G.L.R. 419, C.A.
The trial judge’s finding that Peters, the defendant’s agent who carried the offer to the plaintiff, could not say with certainty whether or not the plaintiff accepted the offer was against the weight of the evidence.
In his evidence-in-chief, the first plaintiff witness had no qualms about the plaintiff’s acceptance when he said: “the plaintiff had interest and accepted the offer.” His further answer in cross-examination that he took the letter to the plaintiff and “he expressed interest” did not create any doubt in the acceptance of the offer, especially as the plaintiff said he subsequently confirmed his acceptance to the defendant when he met the family in Accra. The acceptance was further confirmed by the conduct of the parties, in that: (i) the first defendant released himself from the existing obligation to complete the building upon the estimated expenditure; (ii) the plaintiff refrained from holding the defendant on to his obligation but rather undertook the completion of the building himself, and (iii) the defendant gave the authority in exhibit C.
As the plaintiff had been let into possession of the premises upon the payment of the ¢21,600 (which became a deposit for the purchase price on the acceptance of the offer) he had an equitable interest in the house, before he completed the contract. In Williams v. Greatrex  3 All E.R. 705, C.A. Lord Denning explained the position of the purchaser of land who went into possession before he completed the contract as follows at 708:
“Once the purchaser went into possession of the land, having the contractual right to be there, he had not only an equity to be there. He had more. He had the benefit of a contract to sell him these two plots. That was not only an equity: it was an equitable interest in the land. He was in a sense the equitable owner of the
land. So long as he was in possession of the land, he did not lose his rights simply by not proceeding at once for specific performance.”
In Williams v. Greatrex (supra) the purchaser went into possession of the plots of land after paying the deposit. He failed to complete within the stipulated time of two years. The vendor later announced his repudiation of the contract and asked him to leave the land. The vendor then contracted to sell the plots to a third party. The purchaser sued for specific performance some ten years after the contract was made.
The county court held that the purchaser was entitled to specific performance. On appeal, the vendor’s counsel raised the issue of time as being of the essence of the contract. That was rejected. Hodson L.J. observed that the contract was an ordinary contract for the sale of land and was not subject to the consideration which applied to a commercial contract dealing with a special subject matter and where particular considerations applied. Then it was argued that there had been too much delay in bringing an action when the vendor repudiated to enable the purchaser get specific performance. Lord Denning observed that when the deposit was paid there was a binding contract which was binding on the vendor to let the purchaser onto the land and the purchaser had a contractual licence which the vendor could not repudiate at will. An equity was thereby created and the purported repudiation by the vendor was entirely inoperative. It was held, inter alia, that the vendor was not barred by laches since he had equitable title to the plots.
It is recognised that the delivery or taking of possession under the contract, is the usual act of part performance to order specific performance. It is accepted, however, that possession by itself is not sufficient if it can be explained apart from the alleged contract. Thus where a tenant in possession sued for specific performance of an alleged agreement to grant him a new lease and set up his possession as an act of part performance, it was held not to be such because it was referable to his pre-existing character as a tenant: see Wills v. Stradling (1797) 3 Ves 378. But in the case of an existing tenancy it will be sufficient to set up the continued possession as part performance if the nature of the holding is made different from the original tenancy, as by an unequivocal act referable to some new contract: see Miller & Aldworth Ltd. v. Sharp  1 Ch. 622. The case is even stronger if in addition, the party remaining in possession has expended money on some improvements: see Broughton v. Snook  Ch. 505.
Of such was the position of the plaintiff who, having entered into
possession under the tenancy agreement, continued in possession when the nature of his holding as a purchaser was made different from the original tenancy and spent, on account of the act, his own money in completing and improving the building. In such a situation if the defendant sets up the Statute of Frauds, 1677 then, as Farwell J. said in Broughton v. Snook (supra) at 513:
“... it may be open to the plaintiff to avoid that difficulty by showing that there were acts which were referable only to the contract, which would render it a fraud in the defendant to take advantage of the contract not being in writing, and, if he can show that the defendant has done or stood by and permitted the plaintiff to do acts by which the plaintiff has altered his position, and such standing by and consent can only have been with reference to the oral contract, then the plaintiff has done all that he is bound to do to get himself out of his difficulty.”
To a question whether or not he was “put into possession” as soon as the tenancy agreement was signed, the plaintiff answered “no.” The first plaintiff witness, however, agreed to the question in cross-examination that the defendant gave possession of the house to the plaintiff upon the signing of exhibit 1. The trial judge clutched at the plaintiff’s denial that he was “put in possession” and unjustifiably painted him as a person of marked untruthfulness and thereby disbelieved his evidence that he was not under the obligation to complete the house. It was clear from his further answers that he understood “being put in possession” in the sense that the completion of the house by the defendant must precede his possession and occupation. That indeed was what exhibit H contemplated.
It is for all the reasons above that I, for my part, find the judgment of the trial judge unjust, unreasonable and unsupportable. The statement of the appellant’s case filed on behalf of the defendant has done nothing to convince me of the justness of the judgment of the trial court. All that it does is to overplay the evidence of the first plaintiff witness, just as the trial judge did, and place it on an undeserving pedestal as affording corroboration to the case for the defendant. The betraying aspect of the evidence of the first and second defendant witnesses was that because the first defendant witness was, as he confessed, ignorant of the existence of exhibit H and the second defendant witness also probably never expected the plaintiff to keep in his custody this fifteen years old letter written to the first plaintiff witness, both of them were prepared to alter that
essential condition of the tenancy agreement, i.e the obligation on the first defendant and his family to complete the building. It was also because they had no advance knowledge of the existence of exhibit C that they were prepared to say on oath that the title deeds were kept by the first defendant and also to deny, in effect, the contents of exhibit C.
The sanctity of contracts has been preserved in the hallowed maxim: pacta sunt servanda. It is the function of the courts to see that the reasonable expectations of parties embodied in their agreements are not disappointed. Equity has its correlative maxim which is that it will impute an intention to fulfil an obligation. This means that where a man is under an obligation to do an act, and he does some other act which is capable of being considered as a fulfilment of his obligation, the latter act will be so considered; for it is right to put the most favourable construction on a man’s acts and to presume that he intends to be just before he affects to be generous. I think the equitable maxim can be applied here by analogy and married to the legal maxim to govern the relationship between the plaintiff and first defendant. The union of these two maxims will, in my opinion, result in the formulation of the principle that where a person is under a legal obligation to do an act which he fails to discharge but does another act which can excuse his failure to discharge that obligation then it must be presumed that it was on account of the latter act that he failed to discharge that obligation.
To recapitulate the facts that validly stand out from the evidence on record: we have the first defendant who took three years’ advance rent totalling ¢21,600 from the plaintiff for the plaintiff’s tenancy of his premises. The first defendant was to use the advance rent to complete the house. He failed to carry out this essential obligation to complete. In the meantime he offered to sell the house to the plaintiff. It was said that the plaintiff did not expressly accept the offer. Granted this to be true, the defendant on his part still never fulfilled his obligation to complete after he had deemed his offer to have lapsed. It needs to be emphasised that the completion of the house by the first defendant was a condition precedent for the tenancy agreement to take effect from 1 October 1978. The first defendant, however, was paid moneys (including moneys paid on his behalf) totalling the purchase price by the plaintiff. On top of that the plaintiff (without charging it on the first defendant) completed the building and improved it by adding a boys’ quarters. Prior to that the plaintiff had been given access to the title deeds.
In these circumstances it had to be explained by the first defendant why he should fail in his obligation to complete the house but stand by
situation where the first defendant can breach the tenancy agreement with impunity and at the same time take advantage of it. To permit him to do so (in the manner of the trial judge) is to allow him adopt an attitude which really in colloquial parlance amounts to “heads, I win; tails, I do not lose.”
Looking at all the circumstances of the case, it was quite obvious that the acts and conduct of the parties were referable to a contract of sale and the trial judge should have come to that conclusion and ordered specific performance. The fact that the ingenious minds of the first and second defendant witnesses (supported by the first plaintiff witness), tried to offer some other fantastic and improbable explanation was not fatal to that conclusion. The judgment of the trial court which consigned the completed house with all the improvements to the defendant, lock stock and barrel, at no expense to himself and despite the breach of his obligation to complete it was nakedly inequitable on the grounds of justice and good conscience. I will dismiss the appeal and uphold the general conclusion of the Court of Appeal which dismissed the defendant’s counterclaim and gave judgment for the plaintiff on the claim indorsed on his writ.
Aikins J.S.C. This is an appeal from the decision of the Court of Appeal overturning the judgment of the High Court which had declined to grant the claim of the plaintiff-respondent (hereinafter referred to as the plaintiff) for specific performance of an alleged agreement between him and the first defendant-appellant (hereinafter referred to as the defendant) for the sale of house No. 33/5, Onyaa Crescent, Nima, Accra.
The facts of this case are not all that complex. Simply put, by a letter dated 7 October 1975 Joseph Achina, the second defendant witness, requested Peters, the first plaintiff witness, an estate agent, to look for a tenant to occupy an uncompleted building, No. C 33/5, Nima Residential Area, the subject matter in dispute. The tenant was to pay three years’ rent advance which would be used to complete the building, work to be started immediately the said advance was paid to enable the tenant to live in the house without delay. Peters, the first plaintiff witness, contacted the plaintiff who readily agreed to occupy the building and paid an amount of ¢21,600 as three years’ advance to Achina the second defendant witness through Peters the first plaintiff witness. The plaintiff took the building on a lease of eight years in November 1975 and was let into possession and occupation, but the tenancy was to be effective from
In early October 1976 while the building was in its uncompleted state, the first defendant and his family arranged a meeting with the plaintiff during which the sale of the building was discussed, and the family proposed to sell the building to the plaintiff. On 15 October 1976 the defendant wrote a letter to the plaintiff formally offering to sell to him the uncompleted building, and requested him to confirm his acceptance of the offer to enable the family liaise with the plaintiff’s solicitor on the matter. The letter did not specify any time limit within which the offer should be accepted. According to the plaintiff he accepted the offer and later confirmed it when he met the family and finalised the price with them. Peters, the first plaintiff witness, who conveyed the letter to the plaintiff confirmed the acceptance of the offer when he said in examination-in-chief, “The plaintiff had interest and accepted the offer”, but the acceptance was denied by the defendant.
At the request of the plaintiff who wanted the documents on the building to raise a loan from his bankers, the defendant and one Elizabeth Oduro, the executors of the will of the late E. K. Oduro, owner of the property in dispute, authorised the plaintiff by a note dated 12 February 1981 to pay any arrears owed by the late E. K. Oduro to the First Ghana Building Society and collect all documents from the society with a view to using them as requested by him. The plaintiff thereupon paid the arrears due to the building society and collected the said documents.
On or about 2 June 1986 Achina, the second defendant witness, his mother, Ama Fofe, his uncle, Kwame Boateng and one Kwesi Owusu met the plaintiff in his office and had some discussions with him. The plaintiff then paid an amount of ¢24,362.66, made up of cash ¢1,362.66 and a cheque for ¢23,000 to Achina the second defendant witness on behalf of the family. The exact discussion held in the office is in dispute. The plaintiff’s version is that the discussion centered on the balance of the purchase price of the building, whereas the defendant insists that it was the rent due for the period 1986-88 that was calculated, and this came to about ¢24,000 to be precise “a little over ¢24,000.”
The evidence shows that the building was completed by the plaintiff who later developed the main building and put up the outhouse after he had collected the documents from the building society. He said it cost him about ¢5 million to do this. It was the persistent failure of the defendant to convey the property to the plaintiff that sparked off the issue of the writ in this case.
The Court of Appeal held, first that there was a valid contract of sale between the parties; secondly, that the trial judge erred in finding that
between the parties; secondly, that the trial judge erred in finding that payment of the debt due to the building society was payment of the reserved rent; thirdly, that the explanation and statement of the defendant and his witnesses that each payment by the plaintiff was payment of the reserved rent was a blatant lie and a falsehood put forward to mislead and deceive the trial judge; fourthly, that Achina, the second defendant witness, is bound by the contents of the original receipt, exhibit E, and that the trial judge erred in concluding that all the payments made by the plaintiff were in respect of rents and not the purchase price, including the amount received by Achina, the second defendant witness, on 2 June 1986; and fifthly, that the trial judge erred in holding that the term of years granted to the plaintiff had expired and that the defendant had suffered considerable loss in rents.
The Court of Appeal then set aside the judgment of the High Court, entered judgment for the plaintiff against the defendant and set aside all the orders made by the trial judge. It is against this decision that the defendant has appealed to this court. Two grounds of appeal were filed, namely:
“(a) That the judgment is against the weight of evidence adduced.
(b) That the Court of Appeal erred very seriously in holding that there was ever any valid contract of sale or at all between the defendant’s family and the plaintiff.”
A critical examination of the tenancy agreement, exhibit 1, and the second defendant witness, Achina’s, letter to Peters, the first plaintiff witness, exhibit H shows that the tenant was expected to pay three years’ rent advance of ¢21,600 on or before the signing of the agreement, and this amount was to be used to complete the uncompleted building to enable the tenant to live in the house. This no doubt gives credence to the contention of the plaintiff that the landlord collected the rent advance to complete the building as against the evidence of the defendant that the tenant was to complete it from his own resources. Exhibit H reads:
With reference to our discussion in connection of hiring my uncompleted two storey building in Accra at a rental fee of ¢600 per month, I have agreed to your offer and you are requested to pay an advance rent for a period of three years for the completion of the building.
That, the work on the building will be started immediately you
pay the advance to enable you live in the house without delay.
Hoping to hear from you favourably.
Achina, the second defendant witness, would be telling a blatant lie when he said in examination-in-chief that “We thus decided to give the plaintiff three years grace during which period he would not pay rent but complete the building.” He had to admit this lie when he was cross-examined on the issue:
“Q In exhibit H you were prepared to give three years grace and exhibit 1 also speaks of a three-year grace?
A That is so.
Q In exhibit H you say you will complete the building when you receive the advance?
A It is true I said that in exhibit H [witness reads the exhibit 1 aloud and very clearly in court].
Q Nothing in exhibit 1 says the plaintiff was to complete the building?
A I agree nothing in exhibit 1 says he is to complete the building.”
Even though the three years’ advance was collected by Achina, the second defendant witness, the uncompleted building was never completed by him, nor by the defendant. And barely a year after payment of this advance, i.e. on 15 October 1976, the defendant wrote a letter to the plaintiff offering to sell the uncompleted building to him for ¢75,000. The letter, exhibit B, reads:
Re: House No. 33/5, Nima Residential Area, Accra
I refer to our previous discussion on the above subject matter and to confirm that on behalf of my entire family, I am prepared to offer the house to you for sale. The selling price is ¢75,000 only.
If this is acceptable to you, please confirm to enable us hold a meeting with your solicitor on the matter.
Hoping to hear from you soon.
Kofi Fofic (thumb-printed)”
The defendant’s mark was witnessed by Achina, the second defendant witness. The mode of acceptance of the offer was not indicated, neither was any limit set except that the defendant expected “to hear from the plaintiff soon.” There is not much evidence of what exactly transpired during the course of the discussion mentioned in paragraph (1) of this letter, but the plaintiff says that he accepted the offer when he met the family and finalised the price. Peters, the first plaintiff witness, who conveyed the letter to the plaintiff said in examination-in-chief: “I advised them to put their offer into writing direct to the plaintiff.
That is how exhibit E came into being. The plaintiff had interest and accepted the offer.” When questioned in cross-examination: “It is true that plaintiff merely showed interest in the offer he did not accept the offer.” His answer was: “Well the letter was given to me. I went to him and he expressed interest. I do not know what happened thereafter.”
This answer cannot by any stretch of the imagination be taken to mean that the first plaintiff witness was contradicting himself. He said he did not know what happened thereafter, but the plaintiff himself says that he met the family and accepted the offer and finalised the price.
One wonders for what purpose the defendant’s family intended to contact the plaintiff’s solicitor; but without hazarding a guess the plaintiff himself says:
“Since buying the house, on several occasions I have asked the defendant and the other administrators to execute a deed of assignment. They have refused. At one time I caused my solicitor to write to the first defendant as per this letter dated 3 June 1985.”
The letter was tendered in evidence without objection, and he was not cross-examined on it.
As the Court of Appeal rightly said, the claim of the plaintiff was founded in equity, and fell to be considered according to the principles of equity. The onus was therefore on him to adduce sufficient and credible evidence to prove that he had wholly or in part performed his part of the contract to sell and purchase the property in dispute. In
equity, it is the essence of the transaction that the court is concerned with and will admit extrinsic evidence to satisfy itself of the transaction, and not merely the words used in the instrument. In other words, “Equity looks at the substance of the transaction and not merely at the form”: see Parkin v. Thorold (1852) 16 Beav 59; Harold Wood Brick Co. Ltd. v. Ferris  2 K.B. 198, C.A.; Seton v. Slade (1802) 7 Ves 265 at 273 and United Scientific Holdings Ltd. v. Burnley Borough Council  A.C. 904, H.L. The learned authors of Snell’s Principles of Equity (28th ed.) stress at 592:
“At law, time was always of the essence of the contract . . . Equity, however, discriminated between (i) those terms of a contract which were formal, so that it would be inequitable for either party to insist on them as a bar to the other’s rights, and (ii) those which were of the substance and essence of the agreement.”
On the issue of time the learned authors said at 592:
“The principles which governed the interference of equity in relation to mortgages were applied to contracts, and time was thus held to be prima facie non-essential . . . Equity accordingly granted specific performance of agreements even after the plaintiff had suffered the time for their performance to pass.”
The letter, exhibit B, did not indicate any time limit within which the offer was to remain open, and under such circumstances the offer could be accepted within a reasonable time; and reasonable time is a matter of fact determinable in each particular case. In my view, the Court of Appeal was right when it said that the trial judge “failed and/or omitted to consider facts or factors which should assist her in determining what was reasonable time in the circumstances of the case before her”, and that “she was merely content to look at the factor of payment of rent and no more.”
Snell’s Principles of Equity (28th ed.) at p. 593 and Keeton and Sheridan’s Equity at pp. 504—555 spell out three cases in which time may be regarded as being of the essence of the contract and in which failure to fulfil the specified conditions will be as fatal in equity as it is in law. These cases are (i) where the contract expressly states that time shall be of the essence of the contract: see Rightside Properties Ltd. v. Gray  Ch. 72; (ii) where originally time was not of the essence of the contract but one party has made it so by giving a notice thereof to the other party. Under such circumstances the notice can only be given after the other
party has been guilty of unreasonable delay, in which case the time mentioned in the notice must be reasonable: see Green v. Sevin (1879) 13 Ch.D. 589; Compton v. Bagley  1 Ch. 313; Stickney v. Keeble  A.C. 386, H.L. and Re Barr’s Contract  Ch. 551; and (iii) where the nature of the property involved is such that it may be necessary to consider time to be of the essence of the contract, eg. mercantile contracts or a sale of a house required for immediate occupation.
In Stickney v. Keeble (supra) at 415—416 Lord Parker of Waddington, after pointing out that at law time had always been regarded as of the essence of the contract, stated further:
“In such cases, however, equity having a concurrent jurisdiction did not look upon the stipulation as to time in precisely the same light. Where it could do so without injustice to the contracting parties it decreed specific performance notwithstanding failure to observe the time fixed by the contract for completion, and as an incident of specific performance relieved the party in default by restraining proceedings at law based on such failure.”
In Williams v. Greatrex  1 W.L.R. 31, there had been a delay of ten years, but the purchaser had paid a deposit, had entered into possession, and had performed acts of ownership. The plea of laches was therefore rejected and specific performance was granted. The plaintiff can call upon a court of equity for specific performance if he has shown himself ready, desirous, prompt and eager.
In the instant case, no time limit was indicated in the letter within which the offer was to remain open. No notice thereafter had been given as to make time of the essence of the contract, and the nature of the contract does not fall within the third wing of the three conditions, stipulated above. The plaintiff was positive in his assertion that he conveyed his acceptance to the family and finalised the price. The truth or falsity of this assertion can be gleaned from the conduct of the defendant. It is clear from the evidence that the defendant collected the three months’ rent advance to enable the family to complete the building.
Even long after the offer was made the family failed to undertake this assignment with the result that the plaintiff had to complete it himself from his own resources. The family therefore should be taken to have considered the building sold. Later, when the plaintiff wanted the documents on the building to raise a loan, the family asked him to pay the debt due to the building society. Until this time the family had not
complained about the alleged non-acceptance of the offer. Then finally they called upon him to collect what they termed rent for the last three years, but which the plaintiff was positive was the final instalment of the purchase price. Surely the family could not have called to collect three years rent when the amount stipulated in the tenancy agreement to be collected was only three months rent in advance. Moreover the calculation of the amount due and the payment made by the plaintiff lends support to his contention that the family called upon him to collect the final instalment of the purchase price.
To succeed in his claim the plaintiff must show that he has performed such acts which unequivocally denote the existence of a contract, and these acts would not have been done if he had not reasonably believed that a contract existed between himself and the defendant. It is a well- known principle of law that if the plaintiff has wholly or in part executed his part of the agreement believing that the defendant would also do the same, the court may order specific performance of the agreement for the reason that it would be a fraud on the defendant’s part should he not carry out his part of the bargain. In other words the basis of equity’s intervention is that the plaintiff has prejudiced his position by his conduct, and for that matter has acquired an equity to be protected against the destruction of the agreement upon which he acted.
Thus in Lowry v. Reid  N.I. 142, C.A. where a mother contracted orally to make a will leaving to her son William her two farms in Durnkirk in consideration of William conveying his farm in Ballykeigle to his brother Andrew, the Court of Appeal of Northern Ireland held that the conveyance by William was a sufficient act of part performance to render the mother’s undertaking specifically enforceable. In another case, Kingswood Estate Co. Ltd. v. Anderson  2 Q.B. 169, C.A., an elderly widow, a statutory tenant of a house, agreed to vacate it under an oral agreement by which the landlords undertook to allow her to live for the rest of her life in a flat belonging to them, paying 30 shillings a week. She moved into the flat and paid the rent, but after a while the landlords tried to eject her. The Court of Appeal held that the widow had done such an act of part performance as to make the agreement specifically enforceable, and this was a good defence to the landlords’ claim for possession.
The issue in the instant case is whether the plaintiff has done such acts of part performance as would entitle him to specific performance of the contract between him and the defendant. If he could bring himself within the equitable doctrine of part performance, then this court would
be inclined to come to his aid by decreeing specific performance in his favour.
As the plaintiff is claiming specific performance on the ground that he has wholly performed an oral contract, the question that must be answered is, whether on the facts of this case specific performance of the oral contract can be granted, and also whether any of the acts of part performance done by him were such as would take the case out of the Statute of Frauds, 1677, as preserved by section 19 of the Contracts Act, 1960 (Act 25). To withdraw a contract from the operation of the statute, the conditions to be fulfilled were spelt out in the case of Maddison v. Alderson (1883) 8 App. Cas. 467, H.L.; and Fry on Specific Performance (3rd ed.), para. 580 at p. 269 extracted those conditions as:
“. . . 1st, the acts of part performance must be such as not only to be referable to a contract such as that alleged, but to be referable to no other title; 2ndly, they must be such as to render it a fraud in the defendant to take advantage of the contract not being in writing; 3rdly, the contract to which they refer must be such as in its own nature is enforceable by the Court; and 4thly, there must be proper parol evidence of the contract which is let in by the acts of part performance.”
In Lowry v. Reid (supra) Andrews L.J. said that Maddison v. Alderson (supra) did not decide anything different from the principle of the older cases, viz: “that the act must be of such a nature that if stated, it would of itself infer the existence of some agreement; and then parol evidence is admitted to show what the agreement is.”
Lord Selborne pointed out in Maddison v. Alderson (supra) at 479 that:
“. . . the payment of money is an equivocal act, not (in itself), until the connection is established by parol testimony, indicative of a contract concerning land . . . All the authorities shew that the acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged: Cooth v. Jackson [6 Ves. 38]; Frame v. Dawson [14 Ves. 386]; Morphett v. Jones [1 Swl. 181].”
On the facts in the instant case the conditions laid down in Maddison’s case (supra) are satisfied. The payment of the debt due to the building society amounting to ¢29,075 and the development of the main building extending to the building of the outhouse which cost the
plaintiff about ¢5 million (which figure was not challenged), are all acts done in furtherance of the plaintiff’s belief that there was an existing contract to sell and purchase the house at ¢75,000. So also was the payment of ¢24,362.66, which will be dealt with presently. If all these acts were done, and no doubt they were, it would clearly be a fraud on the plaintiff if the defendant were to deny the existence of the contract or set up the Statute of Frauds in answer to the claim of specific performance. It would seem also clear that a contract to sell and purchase a house is one that the court would enforce, as it does not offend public policy or run contrary to any law; there was also proper parol evidence of the contract which was strengthened to a large extent by the note, exhibit B. In my view, the completion of the building by the plaintiff in the circumstances is no doubt referable to the contract, for there would have been no need for him to complete it since he had paid three years rent advance for the defendant to complete, which assignment the latter failed to undertake.
The last act of part performance made by the plaintiff was the payment of ¢24,362.66 made up of cash in the sum of ¢1,362.66 and a cheque for ¢23,000. This payment was preceded by discussions and calculations in the office of the plaintiff in Accra. Those taking part were Achina, the second defendant witness, his mother, Ama Fofie, his uncle, Kwame Boateng, and one Kwesi Owusu. Different versions of what exactly took place before payment was made were sworn to by the parties. According to the defendant the discussions centred on the rent due for the period 1986—88 and it was Ama Fofie and Kwame Boateng who calculated the rent due which came to a little over ¢24,000. The plaintiff’s contention is that they discussed the final payment of the purchase price of the uncompleted building, and after taking into consideration what had already been paid, they agreed that the balance, i.e. the final instalment, to be paid was ¢24,362.66.
It is not clear from the evidence exactly how much the plaintiff paid to the building society, but when he was questioned: “You know the total indebtedness of the first defendant to the bank was only ¢16,000”, his answer was: “Yes, it was inclusive of interest.” The trial judge, however, accepted the contention of counsel for the plaintiff that the total amount paid by the plaintiff came to ¢75,000, made up of ¢21,600, three months advance payment of rent; the ¢29,075 paid to the building society; and the ¢24,362 paid to Achina, the second defendant witness, but said: “Although these three sums add up to the sum of ¢75,000, I have no doubt in my mind that these payments were made in furtherance of rents
and not the purchase price.”
In my view, the conclusion of the trial judge that all the amounts were paid in furtherance of rents cannot be correct, because if what the second defendant witness and his family had gone to collect was three years rent, that would amount to ¢21,600 and not ¢24,000. On the other hand if rent is calculated from November 1975 to 30 May 1986, a period of ten years and seven months at ¢600 a month, we shall have ¢73,200 and when the two payments of ¢21,600 and ¢29,075 are knocked off, the balance will be ¢22,563.66 and not ¢24,000. If it is taken that the amount paid to the building society is ¢16,000 the balance due would be ¢37,600 and not ¢24,000. On the other hand if the ten years is calculated from 1 October 1978 to 30 September 1988 the rent would be ¢72,000 and this amount less ¢21,600 and ¢29,075 would give us ¢21,363.66 and not ¢24,000. The balance would come to ¢34,400 if ¢16,000 is used in calculating it. This surely makes the evidence of Achina that it was his mother and uncle, both illiterates, who calculated the rent due much more preposterous. The contention, therefore, that the payments made by the plaintiff were in furtherance of the purchase price seems more plausible.
On the evidence, part of the final payment of ¢24,362.66 was made in the office of the plaintiff and the rest, amounting to ¢23,000, by cheque which was issued in the name of Achina, the second defendant witness, and cashed at the bank where Achina issued a receipt for the whole amount to the plaintiff. The original receipt signed by Achina reads as follows:
“I, the undersigned, Joseph Achina of P. O. Box 2107, Kumasi have received the amount of ¢24,362.66 made up of cheque No H/OB/10379753 for ¢23,000 and cash of ¢1,362.66 from Mr E. T. Zanyo of Accra, being settlement of balance outstanding in full and final payment for my house No. 3315 Onyaa Crescent, Nima Residential Area off Ring Road Central, Accra.”
At the trial Achina gave the following evidence on oath:
“In June or July 1986 my mother called Fobi, Kwesi Owusu, the first defendant witness and Kwame Boateng came to Accra. I did not accompany them. They told me they were coming to collect final rents on the house. They came to tell me I was required so I came down to Accra with them to see the plaintiff. My mother and my uncle Kwame Boateng calculated the rent due for 1986—88 and found we were owed a little over ¢24,000. I think
¢24,362. I went with the plaintiff upon his request to the Social Security Bank near Silver Cup. He withdrew and gave me ¢23,000 in addition to a ¢1,000 he has given me in his office. I went with him to the bank alone. My mother and uncle were left in his house. When he gave me the money just at the bank counter he rushed and gave me a receipt to sign. When I read the receipt it said he has paid the final rents for 1986—88.”
(The emphasis is mine.)
The impression given here is that the cheque was cashed by the plaintiff and given to him at the bank counter. His answers to questions put to him in cross-examination depicts him as a glorious trickster. This is what transpired:
“Q Exhibit El is a cheque?
Q Behind it is your signature?
A I see my name and address behind the cheque. I wrote them.
Q You signed the cheque at the bank?
A Yes, I did.
Q Look into the body of the receipt, you see in full final payment’?
A Yes, it is there. I did not understand the words so I was interested in the amount. I thought it refers to the rents only.
Q In the body of the receipt also you see ‘My house No. 33/50 Onyaa Crescent.’
A That is also there.
Q In the receipt you see the cheque No. in exhibit El mentioned?
A Yes it is so.”
It is interesting to note in passing that the trial judge’s assessment of Achina’s knowledge of the English language is “he reads very well in English.” The plaintiff explained why he did not give the money to the family when they first called on him but asked them to let Achina accompany them. He said he sent for Achina with a view to telling him a piece of his mind as the family had refused to execute the deed in his name. He further said he only favoured Achina after issuing the cheque to him by driving Achina to the bank to enable him cash the cheque. If the cheque had been issued in Achina’s name and he had written his name and address at the back of the cheque and signed it, it is difficult to believe his assertion that it was the plaintiff who cashed the cheque for
him at the bank. The court can take judicial notice of the fact that under such circumstances the cashier will call the one in whose name the cheque was issued and pay him the money. Achina would therefore stay on and check whether the amount given him was correct before he left the bank. Since Achina had sufficient time to read the receipt before he signed it, and he had been described by the trial judge that he could read very well in English, it is absurd for him to say that he did not understand the words in the receipt, that he was only interested in the amount and thought it referred to “the rents only.” It is also ridiculous under the circumstances for him to say that the respondent rushed and gave him the receipt to sign, and even go to the extent of saying that when he read the receipt “it said he has paid the final rents for 186-88.” Since there was no mention of rents nor the period 1986-88 in the receipt how could he convincingly say that the receipt said he had paid final rents for 1986—88? Achina cannot be said to be a truthful witness. He can properly be described as an arch-liar. His mother and uncle who could throw light on how they calculated the rent in the office of the plaintiff were conveniently left out and were not called to give evidence.
Counsel for the defendant contends that the statement “in full and final payment for my house” is equally referable to a rental payment as to payment of purchase price, and he criticises the conclusion of the Court of Appeal that the statement leads irresistibly to the finding that it is referable only to a purchase. I cannot agree to that argument. Considering the circumstances leading to the payment of the money to Achina and the events thereafter as stated above, it is difficult to appreciate the force of counsel’s argument. In my view, the statement can only lead to one irresistible conclusion, and that is, it is referable only to a purchase, and I so hold.
It is being argued that by inserting the words “For Final Purchase Price Payment H/No 33/5, Onyaa Crescent, Nima Residential Area, Accra” and “total Purchase Price Paid ¢75,000 (seventy-five thousand cedis)” after Achina had signed the receipt the document has been forged and the alleged forgery is being attributed to the plaintiff. It is necessary to reproduce in extenso the evidence adduced, though at the expense of getting the court bored, before any meaningful finding can be made by this court whether there has been any forgery at all, and if so, by whom? The plaintiff’s evidence on the issue was elicited in cross-examination as follows:
“Q You prepared the whole of exhibit E?
A I did nothing of that nature. He brought the receipt to my
Q You prepared the whole of exhibit E?
A No. When he brought the receipt it was without For Final Purchase Price Payment House No 33/5, Onyaa Crescent, Nima Residential Area, Accra’ and ‘The Total Purchase Price Paid ¢75,000.” I thought these should be expressly stated in the body of the receipt. 1 asked him to state these, and so he went away and came back with these inserted and brought it back.
Q I put it to you these words were put in by you after Achina had signed and gone away?
A That is not true.
Q The main body of the typewritten character in exhibit E are the same as the insertion?
A The characters are the same.
Q But you would agree that the insertions are fainter than the main body?
A I saw it myself.
Q Even the main body you rushed Achina at the bank into signing without giving him the opportunity to read as you wanted to defraud him and the family?
A I deny this, it was not signed in the bank but in my office.
Q The witness is Peters?
Q Peters was not present when Achina signed?
A He was not.
Q You took him later in the house and made him sign?
Q You refused to give Achina a copy?
A We agreed that the receipt be stamped and if I did not take it my purpose would not be served and so I did it and later sent him his copy.
Q You refused to give exhibit E because of the fraud?
A I have done nothing fraudulently.”
The defendant gave evidence as follows:
“I went with him to the bank alone. My mother and uncle were left in the house when he gave me the money; just at the bank counter lie rushed and gave me a receipt to sign. When I read the receipt it said he has paid the final rents for 1986—88. That is all I saw and
then signed. Exhibit E as we have it now is not the document I signed at the bank. The words we have specified in paragraph (g) of paragraph (5), namely ‘For Final Purchase Price Payment ...’ and ‘Total Purchase Price Paid ... ‘were not in the original text I signed. I never made these additions as contended by the plaintiff ... It was the plaintiff who made these additions I have referred to as not being in the original document.”
And under cross-examination this is what he said:
“Q Your allegations that plaintiff tried to get you sign a document to defraud the family is not true?
A This happened. When I came to Accra he had already prepared the document.
Q Exhibit E was prepared by you?
A I did not. The plaintiff prepared it. If I prepared it I would not have sent the case to NIC on the advice of Fordjour.”
Both of them are denying preparation of the document, and each is accusing the other of preparing it.
Whereas the plaintiff is saying that the exhibit was signed in his office, the defendant is alleging that it was signed in the bank. The allegation that the plaintiff prepared the receipt was challenged by the plaintiff, and this was not proved by any credible evidence. The only people who could have thrown more light on this are Achina’s mother and uncle, but both did not give evidence. The third person who was present is Kwesi Owusu, the first defendant witness, but he also was silent on the issue.
It is trite learning that the burden of proof of an allegation lies on the party who asserts it and section 14 of the Evidence Decree, 1975 (N.R.C.D. 323) makes it clear that the burden of persuasion is normally on the party to whose case the fact is essential. As there was no conclusive evidence of the one who prepared the exhibit, it cannot be said that there has been proof beyond reasonable doubt against either of them, more especially against the plaintiff. There was no positive proof of his guilt. The allegation that he forged the document and so intended to defraud the defendant has no foundation either in law or in fact.
What is evident is that the defendant signed the original document and he is bound by what he signed for, namely receipt for the sum of ¢24,362.66 from Mr E. T. Zanyo of Accra, “being settlement of balance outstanding in full and final payment for my house No. 33/5, Onyaa Crescent, Nima Residential Area off Ring Road Central, Accra.” The manner in which the final amount due was calculated, part of the money paid in cash in the office,
the friendly gesture of the plaintiff in taking the defendant to the bank in his car, and the issue of the cheque in the defendant’s name and his indorsement of the cheque belies his allegation that he was rushed into signing the receipt, exhibit E. How he was rushed was not indicated.
In my judgment, the plaintiff has shown that the contract entered into between the parties is one that the court of equity would specifically enforce at his suit, and I cannot think of any plausible reason why he should be denied that remedy. He has as far as I can find not been unfair or dishonest in his dealings with the defendant. I would on my part dismiss the appeal and give judgment for the plaintiff.
Edward Wiredu J.S.C. This is an appeal from the judgment of the Court of Appeal dated 11 April 1991. By that judgment the court set aside a judgment of the High Court, Accra dated 26 June 1990 in favour of the first defendant-appellant (hereinafter referred to as the first defendant) on his counterclaim for title and recovery of possession to house No. 33/5, Onyaa Crescent, Nima Residential Area, Accra and decreed specific performance in respect of the said property in favour of the plaintiff-respondent (hereinafter referred to as the plaintiff).
The facts which have provoked the present appeal may be briefly stated as follows. The property in dispute is one of the properties left by one E. K. Oduro who died sometime in March 1974. Letters of administration of his estate was granted to the first defendant and one other member of the maternal family of the deceased. Following some discussions between members of the deceased’s family spearheaded by the first defendant as head of the family, one Nyarko, a building contractor, and a Mr Peters, an estate agent who testified in this case as the first plaintiff witness, the property in dispute was leased to the plaintiff as a tenant for a term of ten years certain at a monthly rent of ¢600 among other conditions and terms set out in a tenancy agreement tendered as exhibit 1 in the proceedings.
The evidence has shown that during the currency of exhibit 1 and almost a year after its execution, the family run into some financial problems and was minded to sell the disputed property outright to enable the family free itself from such a difficulty. In consultation with Peters, the first plaintiff witness, it was agreed to give preference to the plaintiff as a sitting tenant in the negotiations for the sale. The family therefore made an offer to the plaintiff in exhibit B dated 15 October 1976 in the following language:
“RE: HOUSE NO 33/5—NIMA RESIDENTIAL AREA, ACCRA
I refer to our previous discussion on the above subject matter and to confirm that on behalf of my entire family, I am prepared to offer the house to you for sale. The selling price is ¢75,000.
If this is acceptable to you, please confirm to enable us hold a meeting with your solicitor on the matter.
Hoping to bear from you soon.
(Sgd.) Kofi Fofie
Witness (Sgd.) J. Achina.”
According to the plaintiff he accepted the offer and paid the family the full purchase price of ¢75,000 as per a receipt dated 2 June 1986 and tendered in evidence as exhibit E.
It is the case of the plaintiff that after exhibit E he was facing difficulties in getting the family to perform their part of the contract. He therefore through his solicitor caused exhibit F dated 3 June 1986 to be written to the first defendant and that his present action was the outcome of the family’s failure to respond favourably to the contents of exhibit F which reads as follows:
RE: H/NO. 33/5 ONYAA CRESCENT, NIMA, ACCRA.
We act on behalf of Mr Eben T. Zanyo.
Mr Zanyo informs us that sometime ago he [negotiated] with you on behalf of the family of the late E. K. Oduro to acquire the above-mentioned property for ¢75,000. He informs us further that there is an outstanding balance of ¢24,362.66 which our client is to pay in exchange for the necessary title deed covering the property. We are also told that you have failed on several occasions to execute the said deed to enable our client conclude the transaction.
We are enclosing herewith our client’s cheque for ¢24,362.66 being the outstanding balance in exchange for the said conveyance.
Please take notice and NOTICE IS HEREBY GIVEN that if the said document is not forwarded to us for onward transmission to our client within 28 days from the date of this letter, we shall advise our
client as the next course of action to pursue.
S. Peters, Esq.
Abensona Central Agency
Eben T. Zanyo Esq.
Even though exhibit F talks of an enclosed cheque for the sum of ¢24, 362.66, this amount on the evidence was paid by a cheque issued on 2 June 1986, a year after exhibit F was written. This makes it doubtful whether exhibit F with the enclosed cheque was actually sent to the defendant’s family.
The family, represented by the defendants, deny the existence of any enforceable contract of sale of the disputed property to the plaintiff. Whilst admitting making an offer to the plaintiff in exhibit B, they deny that they ever received any acceptance of the offer from the plaintiff. The family contend that the only enforceable agreement they have with the plaintiff is a tenancy agreement evidenced in exhibit 1. It is the further contention of the family that all payments made by the plaintiff and received by them were to their knowledge received in furtherance of the tenancy agreement they had with him. They deny having executed exhibit E in the form and language tendered in evidence and contend that exhibit E was executed as a receipt covering the final payment of arrears of rent due from the plaintiff to the family, as at the date of issue. They contended further that exhibit E contained false statements added after its execution. They allege fraud on the part of the plaintiff in presenting exhibit E as a receipt for final payment of the purchase price of the disputed property. Such was the state of the pleadings at the time of hearing.
After hearing evidence in the case, in what strikes me as a well considered and reasoned judgment, the learned trial judge Lutterodt J. (as she then was) meticulously examined the evidence and made specific findings on the relevant issues raised for determination between the parties. She preferred the defendants’ version of the case to the
plaintiff’s. Among the findings she made were:
(a) That there was no proof of communication of acceptance of the offer from the defendants to the plaintiff.
(b) That the total payments made to the defendants by the plaintiff were moneys paid to the defendants in furtherance of rents recoverable under exhibit 1.
(c) She found that the period of ten years taken by the plaintiff to settle the total sum of ¢75,000 was consistent with payments of rent and not an outright sale of the disputed property.
(d) She rejected the plaintiff’s case that the alleged ¢75,000 paid to the defendant was in furtherance of any agreement to sell the house to him. She also rejected the plaintiff’s case that the house had been sold to him.
(e) She found that exhibit E on which the plaintiff was resting his case was a forged document.
She, on the above findings, dismissed the plaintiff’s action for specific performance and entered judgment for the defendants on their counterclaim for title and recovery of possession. She also ordered a valuer to assess the monthly rent of the property from October 1988 to the date of judgment.
It is the above judgment in favour of the defendants that the plaintiff, complaining to be aggrieved, succeeded in inviting the Court of Appeal in a unanimous judgment to reverse by allowing the plaintiff’s appeal and decreeing in his favour specific performance of an alleged contract between the parties.
The Court of Appeal in dealing with the matter criticised the learned trial judge unjustifiably and assumed the role of a trial judge by reviewing the whole evidence and setting down its own issues different from those raised and settled for trial by the parties on the summons for directions stage. The court had this to say:
“In my opinion she took a very narrow and limited view of the evidence before her. There were other relevant and important matters before her which were deserving of consideration. Some of these matters I dare state are:
(1) the issue of who should complete the uncompleted building;
(2) the issue of how long it would take to complete the uncompleted building;
(3) what did the ‘previous discussion’ mentioned in exhibit
E deal with;
(4) the actual cost of completing the uncompleted building;
(5) whether or not the ¢21,600 paid by the plaintiff and received by first defendant in 1975 was taken into account in fixing the selling price of ¢75,000;
(6) the payment made by the plaintiff and the circumstances surrounding the payments made;
(7) the course of dealing between the plaintiff and first defendant; and
(8) the course of dealing between the plaintiff and Joseph Achina, the second defendant witness and other members of the family of the first defendant.
The above matters no doubt raised subsidiary issues for further consideration. I shall therefore proceed to examine and consider the evidence before the trial court in the light of the guidelines stated down.”
In my respectful view, the above matters save (1) have little or no relevance to the matters raised for determination between the parties. The real matters raised in controversy between the parties and relevant to the determination of this case are those issues raised by the pleadings and set out and agreed to on the summons for directions which shall be referred to later in this judgment.
Specific performance is a discretionary and supplementary equitable remedy which depended on established principles among which are that, as a general rule, either party to a contract for the sale of land is entitled to sue for specific performance of the agreement and the court ought to consider, among other things, the fairness of the transaction and to refuse; the remedy in circumstances where it would be unjust to grant it.
We shall now examine the legal requirements which a party seeking to enforce an existing contract for the sale of land by specific performance ought to establish in order to succeed. To succeed, the plaintiff had to rest his case either on the provisions of the relevant statute or on the rules of equity.
Under the Statute of Frauds, 1677 (29 Cha. 2, c. 3) the contract must be in writing. There must be a memorandum or an agreement of the contract signed. The memorandum in writing would not be complete unless it contains all the essential terms of the agreement which are (a) the names of the parties; (b) the description of the property to be transferred; and (c) the signature of the party to be charged therewith or
that of some other person he had lawfully authorised to sign. The provisions of the Conveyancing Decree, 1973 (N.R.C.D. 175), s. 2 (a) which have replaced section 4 of the Statute of Frauds, 1677 is in identical language. See also section 19 of the Contracts Act, 1960 (Act 25).
One of the conditions for the grant of specific performance is that there must be a valid contract in writing. This leads us to find out what contract the plaintiff in this appeal is seeking to enforce by specific performance. His case obviously falls outside the provisions of the Statute of Frauds, 1677. The plaintiff’s case is founded on exhibits B, C and E.
As stated above, there will be no justification to find on the evidence a case dependent on the provisions of the statute and the only course open to the plaintiff is to examine his case to find out whether the facts fall to be determined by the rules of equity. Under the equitable doctrine of part performance the court is entitled in certain cases to allow a contract, even though of a kind required to be proved by writing, to be proved by oral evidence when the party seeking to enforce the contract has done acts in performance of his obligations under it. The doctrine is strictly limited and the conditions of its application may be stated as follows:
In order to withdraw the contract from the operation of the statute, several circumstances must occur: (a) the act of part performance must be such as not only to be referable to a contract such as the one alleged, but to be referable to no other title; (b) they must be such as to render it fraud in the defendant to take advantage of the contract not being in writing; (c) the contract to which they refer must be such as in its own nature can be enforceable by the courts; and (d) there must be proper parol evidence of the contract which is let in by the act of part performance: see Chaproniere v. Lambert  2 Ch. 356 at 361, C.A. and Rawlinson v. Ames  Ch. 96 at 114. See also Tekyi alias Mensah v. Ackon  G.L.R. 779.
We shall now examine the case of the plaintiff in the light of the above and to see how the requirements of the law as stated above are satisfied. By paragraphs (5), (6) and (7), the plaintiff pleaded as follows:
“(5) On or about 15 October 1976 the first defendant, the second defendant, one Ama Fobie, Yaa Achiaa and Joseph Achina, all uterine relatives of the late E. K. Oduro offered for sale the deceased’s uncompleted building, house No. 33/5 Onyaa Crescent, through an estate agent, Godwin Seshie Peters for the sum of ¢75,000.
(6) The said offer was made in writing addressed to the plaintiff, then the executive director of Eben’s Complex Agencies, P. O. Box 2354, dated 15 October 1976 and thumbprinted by the first defendant and witnessed by Joseph Achina.
(7) The plaintiff accepted the offer and paid the defendants as per receipt issued in his favour dated 2 June 1986, signed by Joseph Achina witnessed by the estate agent, G. S. Peters.”
The defendants in their defence joined issue with the plaintiff on paragraph (7).
The issues settled for trial on summons for directions were:
“(a) Whether or not on 15 October 1976 the first defendant, the second defendant, Ama Fobie, Yaa Achiaa and Joseph Achina offered for sale to the plaintiff the deceased’s uncompleted building house No 33/5, Onyaa Crescent for the sum of ¢75,000.
(b) Whether or not the plaintiff accepted the offer of sale.
(c) Whether or not the first and second defendants on 12 February 1981 authorised the plaintiff to pay the deceased’s indebtedness in respect of the building with the First Ghana Building Society, and to collect the deceased’s document of title in return.
(d) Whether or not the plaintiff has paid the purchase price of the said property.
(e) Whether or not the plaintiff has consequent upon the sale agreement spent not less than ¢4 million in the completion of the house.
(f) Whether or not the plaintiff is entitled to his claim.”
The following additional issues were set down on behalf of the defendants:
“1 Whether or not the plaintiff has been only a tenant of the said house No. 33/5, Onyaa Crescent, Nima Residential Area, Accra by reason of the relevant tenancy agreement dated 10 November 1975.
2 Whether or not the plaintiff’s claim that he has bought the said house from the defendants is fraudulent.
3 Whether or not the plaintiff is liable to forfeit his tenancy in the said house by reason of the plaintiff’s said fraudulent conduct.
4 Whether or not the defendant is entitled to his counterclaim.”
The evidence produced by and on behalf of the plaintiff as stated above rested on exhibits B, C and E.
A careful examination of the judgment of the High Court against which the present appeal has been brought clearly reveals that the trial learned judge rightly, in my view, directed her mind to all the issues raised for determination and properly resolved each one of them in favour of the defendants by preferring their version to that brought by and on behalf of the plaintiff as recited supra in this judgment.
The plaintiff failed woefully to bring his case within the principles enunciated in the Lambert and Ames cases (supra) and the learned trial judge was right in concluding the case against him. There was therefore no justification whatsoever for the appellate court to have interfered with that conclusion, especially so when the whole case turned on the facts and credibility of the witnesses based on the documents tendered by the plaintiff to support his case. The learned trial judge in my respectful view meticulously analysed, reviewed and examined the evidence, both oral and documentary, in the case and resolved the primary issues of fact in the right way bearing in mind the onus on the plaintiff and applied the law to the facts found. She had not been shown to have been found wanting in any aspect of her judicial duties which would have justified the Court of Appeal taking an exception to her conclusion. There is ample evidence on record to support the findings she made. In exhibit C the plaintiff is described as a lessee and this was in 1981. Exhibit B was sent to him in 1976 so that up to 1981 the family was shown to have dealt with the plaintiff in the terms stated in exhibit 1, the tenancy agreement. They considered the plaintiff as their lessee.
On the issue as to who was to complete the building, I, share the view expressed by my brother Francois J.S.C. in his opinion just read. For it is highly inconceivable for the defendants to have undertaken to complete the building and at the same time to allow the plaintiff immediate occupation and possession on the execution of exhibit 1; and to allow the plaintiff to collect and enjoy rents so collected and not be accountable and to continue to enjoy possession and occupation for the remaining seven years at the same rent of ¢600 per month after completion when the value of the building has been enhanced to fetch higher rents to the advantage of the plaintiff.
In any case the entirety of the evidence of the first plaintiff witness on this issue did not support the plaintiff on whom the burden lay to
prove the existence of the purchase contract in substitution for exhibit 1. Surprisingly, no receipts or receipt was tendered from the building society to show how much actually the plaintiff paid in view of the discrepancy as to the amount actually owed and paid.
I further find justification for the finding by the trial judge that all payments made to the family were in furtherance of the agreement evidenced in exhibit 1 since the events which necessitated the offer contained in exhibit B (financial difficulty) was negated by the alleged final payment in June 1986 (spread over ten years period).
The case for the plaintiff was totally discredited by his own evidence. Exhibit E on which he relied to establish the full payment of the purchase price is dated 2 June 1986 and the cheque issued also bears the same date. In cross-examination he was asked as follows:
“Q You mean you agreed to buy it and paid the price years later in 1986?
A The receipt was issued to cover the full and final payment of the house. It was not paid for in 1986.”
(The emphasis is mine.)
The above betrays the plaintiff; his answer to the question posed is not supported by the documentary evidence referred to above in respect of the matters he was testifying about, as the cheque issued for the alleged final payment and the receipt are all dated 2 June 1986. He proved himself an unreliable witness and the trial court in my respectful view rightly rejected his version of the story. The denial that the payment was made in 1986 is not borne out by exhibit F, which shows clearly on its face that as at 3 June 1986 there was an outstanding balance of ¢24,362.66 due from the plaintiff. Such pieces of evidence apart, the first plaintiff witness did not support him as to his acceptance and communication of the offer to the defendants.
On the evidence that the plaintiff had spent ¢5 million on the building, proof was required. That matter being peculiarly within the knowledge of the plaintiff, he assumed the duty of proving the expenditure within the principle established in Majolagbe v. Larbi  G.L.R. 190 at 192 and Khoury v. Richter, High Court, Accra, 8 December 1958, unreported. It was therefore wrong for the Court of Appeal to accept it as proved merely because it was not challenged in cross- examination.
On the issue of forfeiture and recovery of possession, the conclusion of the trial learned judge, which the appellate court condemned, was right
as a matter of law both at common law and under customary law. It is not open to a tenant to challenge the title of his landlord and to do so justifies an order of forfeiture and recovery of possession.
On the main issue of whether there existed a valid contract which could be specifically enforced, the case presented by the plaintiff was that he accepted the offer. This was denied by the defence. Two rival stories were put up by the parties, the first defendant witness testified as to the events leading to the making of exhibit B. He said:
“... the first defendant ran into some financial difficulty so he decided to sell the house, we invited Peters to Kumasi and told him of our plans so exhibit B was made to be sent to Zanyo. We never heard anything from Zanyo after we wrote exhibit B.”
The trial learned judge as stated above made specific findings on this by preferring the version presented by and on behalf of the family and for valid and justifiable reasons which I have found no fault to interfere with. This finding was her exclusive preserve. It was incumbent on the plaintiff not only to have proved the acceptance of the offer but also its communication to the defendants. In effect he had to prove the contract itself. The rejection of the uncorroborated version of the plaintiff meant that there was no clear and proper proof whether parol or otherwise of the existence of the contract.
Exhibit B enjoined the plaintiff to confirm his acceptance to enable a meeting to be held between the defendants and the plaintiff’s solicitor. In exhibit B the defendants were hoping to hear from the plaintiff soon. According to the learned counsel for the plaintiff, the plaintiff met the defendant at Nsawam and there the offer was accepted. What transpired at the meeting at Nsawam resulted in exhibit C dated 12 February 1981, five good years after exhibit B. In exhibit C the plaintiff is described as the lessee. Exhibit C was proved before the Registrar of Deeds by Peters, the first plaintiff witness, whose evidence negates the plaintiff’s assertion that he accepted and communicated the offer to the defendants. It is clear on its face that the circumstances under which exhibit C was executed is consistent with the case put up by the defendants which was rightly accepted by the trial court.
It is therefore clear from the evidence that the first payment of ¢21,000 was in furtherance of the agreement evidenced by exhibit 1. The second payment was in furtherance of exhibit C and the last payment evidenced by exhibit E were all in furtherance of the agreement in exhibit 1.
On the facts available I can only say that the admitted facts reveal one contract between the parties, and that is the one reduced into exhibit 1. There is no evidence that any subsequent agreement was entered into by the parties as a substitute for the original one. In fact, all the documents tendered in the proceedings and relied on by the parties, namely exhibits C and E relate to events in furtherance of the conditions set out in that exhibit. The insertions admittedly supplied by the plaintiff which altered the nature of that document, i.e exhibit E, making it what it was not, could not have been lawfully glossed over by the learned judge. The plaintiff himself saw the necessity and the importance of making those additions; and the view taken by the Court of Appeal on that score is unjustified for that was the document relied on by the plaintiff to establish complete performance of his obligation to enable him seek the aid of the court to find a suitable cause of action. In this attempt he failed.
Whilst I do not deny the right of an appellate tribunal in appropriate circumstances to interfere with the findings of fact made by a trial court, 1 think that in the instant case the interference by the Court of Appeal with the findings of the trial court was unjustified. The scope and the extent to which an appellate tribunal is permitted to interfere with findings of fact made by a trial tribunal is now too well settled to admit of any dispute. This right is subject to the exclusive preserve of a trial tribunal to make primary findings of fact, and where such findings of fact are supported by evidence on record and are based on the credibility of witnesses when the trial tribunal has had the opportunity and advantage of seeing and of observing their demeanour and has become satisfied of the truthfulness of their testimonies touching on any particular matter in issue, and also where such findings cannot be said to be wrong, it is incompetent for an appeal court to interfere: see Oppong Kofi v. Fofie  G.L.R. 174, S.C.; Praka v. Ketewa  G.L.R. 423, S.C.; Azagba v. Negov  G.L.R. 450, S.C. and Asibey III v. Ayisi  1 G.L.R. 102, C.A.; See also the opinion of Francois J.S.C. at 481 (supra) just delivered.
It sounds unreasonable to accept the plaintiff’s contentions that he had bought the disputed house as offered under exhibit B when on his own showing the payment of the total purchase price took him a period of ten years during which period the defendant under the terms of exhibit 1 would have realised almost the same amount and would have still retained ownership of the house.
It is also my considered view that time was of the essence of communicating the acceptance of the offer in exhibit B for the following
reasons: (a) because exhibit B was emphatic on the defendants’ desire to hear from the plaintiff soon; (b) the financial need of the defendants necessitated the desire to sell the house outright instead of keeping to the lease; and (c) the fast declining value of the cedi due to the high inflationary rate in the country. These factors made the period of ten years taken to pay off the ¢75,000 inordinate and negated the need for the change of the lease to one of an outright sale: see Atta v. Adu [1987-88] 1 G.L.R. 233, S.C.
But before I am done, I will deal with two matters raised by learned counsel for the plaintiff in his submissions. The first concerns admissibility of a material fact not specifically pleaded but admitted in evidence without objection and the second raises the issue of a ground of appeal that has not been raised in the notice of appeal. On admissibility of evidence not pleaded: see Akosah v. Owusu  2 G.L.R. 277, S.C.
There are two classes of evidence: (a) evidence inadmissible per se; and (b) evidence on matters not specifically pleaded to which no objection has been raised. The law as I understand it is that evidence generally described as inadmissible per se must be discarded in its entirety and cannot form the basis of any judicial decision and these are cases falling under (a) above. When however the evidence relates to matters not falling under category (a) above and no objection is taken against it at the hearing, no objection can be raised on appeal, and the trial judge is bound to consider it as properly before him in his overall assessment of the merits of the case: see Abowaba v. Adeshina (1946) 12 W.A.C.A. 18; Ababio IV v. Quartey (1916) P.C. ‘74-’28,40 at 42; and Yartey and Oko v. Construction & Furniture (W.A.) Ltd.  1 G.L.R. 86, S.C.
The other objection taken to this appeal is an appellant’s right to argue a ground not raised in the notice of appeal: see rule 6 of the Supreme Court Rules, 1970 (C.I. 13). The object of this rule is to avoid the tendency of taking the respondent by surprise by not giving him notice thereof to enable him to join issue on that ground in his reply. The rule however does not preclude the court granting leave to the appellant.
This is discretionary and must be granted on such terms as would not prejudice the respondent from answering back in reply. The practice in the courts has been for the appellant to file additional grounds of appeal, asking leave by notifying the respondent of his desire to ask for such leave which are normally acceded to: see rule 7 of C.I. 13. If the points raised in the statement of case of the defendant to this appeal were not covered by the notice of appeal they were brought home to the notice of the plaintiff well in advance of the hearing of the appeal and he has not
in any way been prejudiced by the new points raised. He has rightly in my respectful view taken objection to them; but in order to do justice in this case I think I will overrule this objection and admit the points raised as part of the defendant’s case within the provisions of rules 6 and 7 of C.I. 13.
In the result, I hold in my judgment that the plaintiff failed to make out a case to entitle him to the order for specific performance and the Court of Appeal was not justified in reversing the conclusion of the trial learned judge dismissing the plaintiff’s action and entering judgment for the defendants. In the result, the appeal succeeds and it is accordingly allowed.