MARIAMA OWUSU, J.A.:

On 26^th Day of September, 2014, the High Court, (Fast Track Division) Accra, dismissed the plaintiff’s claim for specific performance of the Sales Agreement between the parties as not proved.

The Court however ordered the defendant to refund the USD10, 000 paid by the plaintiff by way of doing justice although not asked for.

Dissatisfied with the decision of the trial court, the plaintiff filed the instant appeal at the Court of Appeal complaining about the whole judgment.

The Grounds of Appeal are;

The judge erred in law by admitting extrinsic evidence to contradict terms of the agreement between the parties on the pretext that there was lacunae in the agreement;

The trial judge’s finding of fact that Plaintiff/Appellant failed to prove that he is entitled to remedy of specific performance is erroneous and cannot be supported by the evidence on record;

The trial judge’s finding of fact that Plaintiff/Appellant could not prove any breach of the contract on the part of the Defendant/Respondent is erroneous and cannot be supported by the evidence on record;

The trial judge’s finding of fact that the parties did not set out all the terms of the contract is erroneous and cannot be supported by the evidence on record;

The trial judge’s finding of fact that Defendant/Respondent put up a new two-storey house on the land after the signing of the contract is unsupportable;

The trial judge’s finding of fact that Plaintiff/Appellant’s evidence is unreliable and cannot be supported by the evidence on record;

The trial judge was wrong and unfairly exercised his discretion by refusing to grant the remedy of specific performance to the Plaintiff/Appellant;

The trial judge misdirected himself on the law of specific performance and the misdirection occasioned substantial miscarriage of justice to the Plaintiff/Appellant;

Particulars of Misdirection

The judge misdirected himself on the law of specific performance by believing that in granting a remedy of specific performance, terms of the contract must be exhaustive but not finality and validity of the contract that is important;

The judgment is against the weight of evidence.

The reliefs sought from the Court of Appeal are;

An order reversing the judgment of the Court below and in its place, enter judgment for the Plaintiff/Appellant.

Issue and direct a writ of specific performance at the Defendant/Respondent to perform the contract Defendant/Respondent voluntarily signed with the Plaintiff/Appellant.

Costs.

Before dealing with the arguments canvassed in support and against this appeal, I will give a brief background of this case.

By his writ of summons, the Plaintiff/Appellant in this case (herein referred to as appellant) claimed against the Defendant/Respondent (herein referred to as respondent),

“An Order for Specific Performance of the Sales Agreement between the parties”.

In the 14 paragraph Statement of Claim which accompanied the writ, the appellant averred among other things that, he is a businessman and real estate developer. Whilst the respondent is the owner of an uncompleted one-storey building located at Dzorwulu, Accra and numbered 12 C/389/14. The

appellant averred further that in or around the 7^th of October 2005, the respondent agreed to sell the property mentioned supra to him at the cost of USD150,000 (One Hundred and Fifty Thousand United States Dollars). At that material time, the respondent represented to appellant that he was in the process of evicting squatters from the property by judicial means and demanded that the appellant pay a deposit of USD10,000 (Ten Thousand United States Dollars) which the former needed immediately to finance the court action against the squatters. The appellant paid the USD10, 000 as commitment fees and a ‘Sales Agreement’ was executed by the parties to that effect.

The appellant continued that, following the execution of the sales agreement, the appellant periodically called the respondent to enquire about the eviction of the squatters from the property. The respondent repeatedly told the appellant the case against the squatters was pending at the District Court. It is the case of the appellant that, he kept calling the respondent who stopped answering his calls. The appellant concluded that, more than four years after the parties contracted for the sale of the property in dispute, the sales has not been concluded due to the conduct of the respondent. In particular, the appellant has learnt that the respondent is in negotiation with another person to sell the property to hence this action.

On receipt of the writ of summons and Statement of Claim, the respondent reacted by filing his Statement of Defence denying the appellant’s claim. In particular, the respondent admitted entering into a contract with the appellant for the sale of the property mentioned supra at the cost of USD150,000 and also paid USD10,000 as a commitment fee and for the eviction of the squatters occupying the house. He averred that the parties agreed that the USD10, 000 was to be refunded to the appellant if the litigation to evict the squatters did not end early. The responded further averred that whilst the matter was pending in court he offered to refund the USD10,000 appellant paid him but the latter demanded interest from him (respondent). It is the case of the respondent that, the appellant is aware he has recently put up a house valued USD100,000 on a portion of the property in dispute and lives there with his family. He also admitted attempting to sell the property to the Guinea Embassy but said it was in 2005 when the appellant lost interest in same due to the protracted nature of the litigation. The respondent concluded that he is not selling the property to anyone as the appellant is aware he lives there with his family. He also maintained that, the appellant’s USD10,000 has always been available for collection but the former has refused to accept a Cheque from him. See paragraph 1-11 of the Amended Statement of Defence filed on the 15-5-2014.

At the trial the appellant testified on oath and tendered some documents. The respondent also testified on oath, called one witness and tendered some documents.

As stated supra, the appellant’s claim was dismissed as not proved hence this appeal.

In arguing the appeal, counsel for the appellant argued Grounds A and D together. He then submitted on these grounds that, in giving effect to the intention of parties, a court cannot admit extrinsic evidence into the terms of a written document. He referred to the case of ADDO V. NARTEY [1972] 2 GLR 318, 327 in support of his submission. Counsel continued that, the intention of the parties must be gathered from the written document and the function of the court is to ascertain what the parties meant by the words used in the document. He referred to the case of AKIM AKROSO STOOL & ORS V. AKIM MANSO STOOL & ORS [1989-90] 1GLR 100 which had held that it is not permissible to guess the intention of the parties and substitute the presumed intention for the parties. Counsel for the appellant continued that, the Agreement for which the controversy revolved was tendered in evidence as Exhibit A and the terms were definite, express and final. According to him the Agreement was for the sale of an immovable property and it also stated the total purchase price. It had a term for part-payment of the purchase price and stated how the parties would complete the transaction. Relying on these clear terms of the Agreement, the appellant made part payment of the purchase price to the respondent as commitment fee. In addition, the appellant set aside the remaining balance of the purchase price in a bank account awaiting the respondent to complete the transaction. These clear terms of the contract notwithstanding, the trial judge in his judgment held that Exhibit A was a terse document which does not set out all the terms of the contract.

Secondly, the respondent had alleged that the parties agreed that if the litigation at the District Court delayed he could make a refund of the part payment of USD10,000. This averment was denied by the appellant. The duty was therefore on the respondent to prove his averment which he failed to do. Nonetheless the trial judge assumed the parties indeed agreed for the refund of the part payment. However this issue of the refund of the part payment was not stated in the Agreement Exhibit A. Counsel for the appellant then submitted that, since the transaction was not a financial or a loan agreement, it was wrong for the trial judge to assume that the parties agreed and intended for the part payment to be refunded. He referred to the case of IBM WORLD TRADE CORPORATION V. HASNEM ENTERPRISE LTD [2001-2002] SCGLR 393, 415. He then submitted that, it is trite law that for an agreement to pass for an enforceable contract it must be certain, at least as to its essential terms. He argued that, to grant the relief of specific performance sought by the appellant, a refund clause was not necessary as an essential part of the agreement. In the instant case, counsel argued, the terms of Exhibit A were sufficient to sustain the appellant’s claim for specific performance. He concluded on these grounds that, the trial judge was therefore wrong in law to admit irrelevant extrinsic evidence into the terms of the Agreement without allowing the respondent to prove his allegation that there was such an agreement for the refund of the part payment. Additionally, the trial judge erred in admitting the oral testimonies of the parties as extrinsic evidence to undermine the terms of the Agreement.

Based on the above submissions, counsel for the appellant invited us to set aside the findings of fact made by the trial judge that the parties did not set out all the terms of the Agreement as same is erroneous. He referred to the case of KOKLEX LTD (NO.2) V. FIELD (NO.2) [2000] SCGLR 175 and invited us to allow the appeal on these grounds.

In response to the submissions on grounds A and D of the appeal, counsel for the respondent argued that, counsel for the appellant completely missed the point when he submitted that the trial judge imported other terms into the contract. This is because, the contract did not stipulate what the respondent was required to do in the event that he is unable to complete the transaction or vice versa i.e. what the appellant was required to do if he is unable to pay the balance when called upon to do so. He continued that, the respondent’s case is that, the parties agreed that if he is unable to eject the squatters early, he will refund the USD10,000 to the appellant. Counsel argued that, all that the trial judge did was to evaluate the case of the respondent and made a finding of fact that the contract, Exhibit A, did not set out any terms for a refund of the USD10,000. He therefore submitted that, the above finding of fact by the trial judge is clearly borne out by the pleadings and evidence adduced at the trial. Therefore the trial judge did not import new terms into Exhibit A, as the terms are clear. In the peculiar circumstances of this case, the trial judge had to establish whether or not the equitable relief of specific performance should be granted to the appellant when the character of the property had been completely changed by the respondent to the knowledge of the appellant. Counsel for the respondent concluded on these grounds that, the trial judge would have failed to do justice if those facts subsequent to the execution of Exhibit A were not taken into account. The oral extrinsic evidence counsel for the appellant referred to is only supplemental to the provisions of Exhibit A and do not contradict the terms of the agreement. Consequently, the trial judge was not in error. He therefore invited us to dismiss the appeal on these grounds.

In this appeal, grounds A and D read;

A. “The trial judge erred in law by admitting extrinsic evidence to contradict terms of the agreement between the parties on the pretext that there was lacunae in the      agreement”.

D. “The trial judge’s finding of fact that the parties did not set out all the terms of the contract is erroneous and cannot be supported by the evidence on record”.

So the question is did the agreement in contention contain all the essential ingredients of a valid contract? Osborn’s Concise Law Dictionary 8^th Edition by Leslie Rutherford and Sheila Bone defines a contract as;

“An agreement enforceable at law”.

It goes on to state that;

For a contract to be valid and legally enforceable, there must be;

Capacity to contract;

Intention to contract;

Consensus ad idem;

Valuable consideration.

Legality of purpose;

Sufficient certainty of terms.

See also the case of IBM WORLD TRADE CORPORATION LTD V. HANSEM ENTERPRISE LTD [2001-2002] SCGLR 393 which had held that, for an agreement to pass for an enforceable contract, it must be certain as to its essential terms. In this case, the parties entered into an agreement for the sale of a landed property. This is Exhibit A and it is headed “Sales Agreement”. For purposes of emphasis, we will reproduce same. It states;

“I BAHER FATTAL of P.O. Box 1173, Accra have agreed to      purchase a piece of land Together with the building thereon situate at Dzorwulu- Accra from MR. EMMANUEL OKO TEI (JNR.) also of Accra in the sum of One Hundred and Fifty Thousand United States Dollars (US150,000.00).

However, I have agreed to pay a commitment fee of Ten Thousand United States of America Dollars (US10,000) pending the processing of documents and eviction of squatters in the building after which the balance of One Hundred and Forty Thousand United States of America Dollars (US1140,000.00) will be paid”.

The above agreement was signed by the parties as Purchaser and Vendor and witnessed by K. A. Brown and Herbert Solomon all of Accra North with their respective addresses indicated on the Agreement. Exhibit B is an Ecobank Cheque No. 2101151490229-056946 issued in the name of the respondent, Emmanuel Oko Tei dated 7/10/05. The respondent confirmed the agreement the parties executed, i.e. Exhibit A in his evidence as follows;

“My Lord in October 2005, I met with M. Baher Fattal in relation to my property in Dzorwulu for purchase…. We agreed on 150,000 dollars being the full purchase price for the property. At that time there were squatters on the property and Mr. Baher was well aware. Mr. Baher then committed 10,000 dollars to me being that he was paying the 10,000 dollars until the squatters were out of the property then the balance will be paid (sic)”.

From Exhibit A quoted supra, the agreement stated the total purchase price of the transaction. It also stated the part-payment the appellant made, the description of the property and its location. The trial judge in his judgment found as a fact that Exhibit A was a valid contract between the parties. This is what the trial judge said;

“It is trite learning that for there to be a valid contract, the parties to the contract must have the capacity, there must be an offer and acceptance, there must be a consideration and the terms are legally enforceable. In this case, the contract is put down in writing, duly signed by the plaintiff and defendant and their witnesses. There is no evidence that any of the parties is a minor or of unsound mind or any legal capacity to enter into a contract.

Furthermore, there is an offer and acceptance for the sale and purchase of a defined property. The consideration is stated therein. There is also no illegality of purpose as to render the contract illegal. The contract tendered in evidence as Exhibit A is a valid contract”.

So from the evidence on record, Exhibit A no doubt is a valid contract between the parties in this appeal. Therefore the finding of fact by the trial judge is clearly supported by the evidence on record. However, the trial judge contrary to this finding that Exhibit ‘A’ is a valid contract further found that the said contract is a terse document. This further finding is erroneous and in conflict with his earlier finding on the validity of the contract.

If the trial judge found that Exhibit A is a valid contract, which we agree with, having considered the law on what constitutes a valid contract as stipulated supra, it is erroneous for him to turn round to say in the same breath that, “Exhibit A does not set out the terms of the contract”. If the terms of the contract are not set out it cannot be a valid contract. Alleging that all the terms of the contract were not set up was a vehicle the trial judge rode on to admit extrinsic evidence.

The question therefore is, what constitute extrinsic evidence visa vie a valid contract. Section 177 (1) of The Evidence Act 1975 NRCD 323, deals with Extrinsic evidence affecting the contents of a writing. It provides as follows;

“Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to those terms may not be contradicted by evidence of a prior declaration of intention, of a prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented,

(a) by evidence of consistent additional terms unless the Court finds the writing to have been intended also as a complete and exclusive statement of the terms of the intention or agreement, but a will and registered writing conveying immovable property shall be deemed to be a complete and exclusive statement of the terms of the intention of agreement;

(b) by a course of dealing or usage of trade or by course of performance.”

See also the case of GORMAN & GORMAN V. ANSONG [2012]1 SCGLR 174, 175-176 where their Lordships held in holding (1), (2) and (3) that;

(1) “the general rule regarding the construction of documents was that the court must give effect to the intention of the parties as found in the document and not what was intended to have been written,    so as to give effect to the intention expressed. The courts would be hesitant to construe private documents outside the four corners of the document for good reason. Contracts and other written documents between private individuals were presumed, unless otherwise proven, to represent the intention of the parties. Thus any undue interference by the courts, would fly in the face of the sanctity attached to documents….”                                                

(2) Extrinsic evidence (i.e. evidence of a prior agreement) might be admitted to construe a document in certain circumstances. Thus extrinsic evidence might be employed where there were conflicting or   contradicting terms or where such evidence would elucidate the intention of the parties. But extrinsic evidence could not be admitted if that evidencewas inconsistent with the intentions of the parties as expressed in the document.”

(3) Payment of money, whether in part or full, would render a contract enforceable and the purchaser would be entitled to an order of specific performance. To establish facts amounting to part-performance, what was required of a plaintiff was to show that he had acted to his detriment and that the acts in question were such as to indicate, on the balance of probabilities, that they had been performed in reliance of a contract with the defendants.”

Relating the case cited supra to the case under consideration, the issue of the refund was alleged by the respondent, an averment denied by the appellant. That being the case, the former was under an obligation to prove his allegation. This he failed to do. This is because Exhibit A did not contain such a refund clause. Secondly barely some few weeks after the execution of the Agreement, the respondent attempted to sell the disputed property to the Guinea Embassy and the appellant had to cause his lawyers to write to the said Embassy that he had purchased the property. Thirdly, the respondent in his evidence said the appellant’s part payment of USD10,000 has always been available and that he was not seeing the appellant to pay the refund and or the latter refused to accept same. But from the record of appeal, the writ which had culminated in this appeal was issued on the 7/12/2009. It was not until 21/11/2014 when the respondent paid the USD10,000 into court even after judgment on 26/9/2014. But more importantly, from the respondent’s own showing, the appellant was expecting possession of the disputed property. This is what he said at page 123 of the record of appeal;

“So he called me on several occasions demanding that he has placed his USD140,000 on hold and as such he has not been able to get possession of the property I have to pay interest on that 140,000”.

The respondent continued on the same page as follows;

“Eventually, he said if that be the case then I will have to pay him interest on the 140,000 if that be the issue and I said I will refund his 10,000 back to him until the case is over and that is it” (our emphasis).

From the respondent’s own showing the appellant never asked for a refund of the part payment. The idea to refund the part payment was not mutual. Secondly, it was not meant to abrogate the contract between the parties.

From the forgoing, ground A and D of the appeal succeed and they are hereby upheld.

This brings us to ground B of the appeal. The ground reads;

“The trial judge’s finding of fact that Plaintiff/Appellant failed to prove that he is entitled to remedy of specific performance is erroneous and cannot be supported by the evidence on record”.

The arguments advanced in support of this ground are that, the suit before the trial court being a civil one, the standard of proof was by preponderance of probabilities. He continued that, the appellant’s claim was for specific performance of a contract. He was under an obligation to prove that there was a valid agreement between the parties, which agreement created legal relations. In addition, the appellant must show that he acted on the terms of the agreement to his detriment. After quoting portions of the evidence of the parties, counsel submitted that, the respondent corroborated the evidence of the appellant on the agreement the subject matter of the transaction, i.e. on the total purchase price of the property and the part payment made by the latter. Not to mention the fact that Exhibit A was tendered without objection by the respondent. With these admissions of the material facts by the respondent, counsel for the appellant submitted that, the latter discharged and or proved his case.

The respondent’s case is that, the parties agreed to a refund of the part payment if the litigation to evict the squatters in the disputed property prolonged. Therefore he bore the burden of proof of this allegation. However the respondent failed to prove this. On the contrary counsel argued, from the respondent’s own evidence, after executing Exhibit A, the latter exhibited conduct contrary to fulfilling his part of the agreement. For instance, the respondent attempted selling the property to the Guinea Embassy and it took the appellant through his counsel to curtail that sale by writing to the Guinea Embassy informing them that the disputed property had already been sold to him. This according to counsel constitute breach of the agreement. He referred to the case of NTHC LTD V. ANTWI [2009] SCGLR 117, to buttress his point and therefore invited us to allow the appeal on ground B.

In response to ground B, counsel for the respondent argued that, the appellant paid a commitment fee of USD10,000 to the respondent with the understanding that when the squatters on the land are evicted, he will enter into a transaction with him for the sale of the property. The trial judge was therefore correct in holding that Exhibit A did not indicate what the parties were required to do in the event of a delay in concluding the contract. Consequently, the appellant cannot accuse the respondent of any breach of the contract since the former did not only claim for specific performance but also the alternate relief of general damages for breach of contract. Since the trial judge was duty bound to determine the claim of damages and the appellant could not establish any breach on the part of the respondent that is why he ordered the latter to pay back the USD10,000 to the appellant and nothing more. He therefore invited us to dismiss the appeal on this ground also.

With all due respect to counsel for the respondent, the appellant’s claim was for specific performance simpliciter. The endorsement on the writ of summons states;

The plaintiff’s claim is for:

“An Order of Specific Performance of the Sales Agreement between the parties”.

See page 1 of the record of appeal.

Secondly, in dealing with grounds A and D of the appeal, we came to the conclusion that, there was a valid contract between the parties. This conclusion is supported by the finding of fact by the trial judge that Exhibit ‘A’ was a valid contract. The respondent who alleged that the parties agreed to a refund of the part payment of USD10,000 was not able to prove that allegation for the following reasons. In the first place, Exhibit ‘A’ contain no such clause. Secondly, from the respondent’s own evidence the appellant kept calling him demanding possession. This is what he said in his evidence;

“So he called me on several occasions demanding that he has placed his 140,000 on hold and as such once he has not been able to get possession of the property I will have to pay him interest on that 140,000”.

Under cross examination, the respondent had this to say;

“What actually happened was after I tried physically to evict the squatters from the property it was not possible and at that time the plaintiff was giving me pressure so I said okay the way this issue is going it will have to end up in court and he said he was not interested in court. Then I said okay, let me pay you back your ten thousand so that I can have time to evict the squatters from the property”.

From the evidence of the respondent quoted supra, the latter corroborated the appellant’s evidence that all along the latter had insisted on getting the property he purchased. The law is that;

“where the evidence of one party on an issue is corroborated by witnesses of his opponent whilst that of his opponent on the same issue stood uncorroborated even by his own witnesses, a court ought not to accept     the uncorroborated version in preference to the            corroborated one (unless for some good reasons which must appear on the face of the judgment), the court found the corroborated version incredible or impossible”. See the case of ASANTE V. BOGYABI [1966] GLR 232.

Thirdly, the respondent from the record of appeal exhibited intention not to keep his part of the bargain. This is because after receiving the payment of the USD10,000 in October 2005, he was negotiating for the sale of the disputed property with the Guinea Embassy. Per Exhibit 2, the District Court judgment ordered the squatters to surrender vacant possession of the disputed property to the respondent on or before the 31-1-09. The appellant issued the writ of summons which culminated in the present appeal on the 7-12-2009, eleven (11) months after the District Court litigation ended. Clearly the respondent breached the agreement and the trial judge should have entered judgment for the appellant for the relief of specific performance. See the case of KOGLEX LTD (NO.2) V. FIELD (NO.2) [2000] SCGLR 175, 195 where their Lordships held in holding (4) that;

“The relief of specific performance would lie whenever, as in the instant case, agreement between parties had got to such a stage  that it would amount to fraud on the part of the other party to refuse to perform his side of the bargain…..”.

In the words of ACQUAH JSC (as he then was);

“Indeed, to establish facts amounting to part performance, what is required of a plaintiff is to show that he had acted to his detriment and that the acts in question are as to indicate, on the balance of probabilities, that they were performed in reliance of a contract with the defendant”.

Relating the case cited supra to the case under consideration, the contract Exhibit ‘A’ is one relating to land. Secondly, it was executed between the parties in October 2005 and the appellant made part payment of USD10,000. Thirdly, the balance of USD140, 000 was kept in a bank account to the knowledge of the respondent and lastly, the appellant is a businessman. From 2005 to 2009, the appellant could have done business with his money i.e. the USD 150, 000. Clearly, the appellant relied on Exhibit A to his detriment. The trial judge therefore erred in holding that the appellant failed to prove his claim of specific performance.

Ground B of the appeal succeeds and it is hereby upheld. The analysis in relation to ground B also disposes of grounds C, F and G of the appeal.

This brings us to ground E.

In support of this ground, counsel for the appellant argued that, from Exhibit 5, the respondent refurbished the bath house of the property in dispute. He quoted portions of the cross examination of the respondent to buttress his point. He then submitted that, the finding of fact by the trial judge that the respondent put up a two- storey building on the property is not correct neither did he construct a new building on the property. The respondent only refurbished one of the uncompleted building. Counsel continued that, “refurbishment”, “completion of a building” and “putting up a new building” all carry different meaning and effect. He referred to Exhibits 3, 3A and 4 and submitted that, the proper word to use in the context of this case was “refurbishment”, a word the respondent himself used. Secondly, from Exhibit 5, the structure the respondent refurbished was not a two-storey building. Nonetheless, the trial judge in his judgment said “the [Defendant] put up a new two-storey house”. This according to counsel for the appellant is in contrast to the respondent’s own testimony that he refurbished the bath house of the property in dispute. He concluded on this ground that, the finding of fact by the trial judge that the respondent put up a two-storey building on the disputed property is erroneous. This error led the trial judge to dismiss the appellant’s claim and this occasioned a substantial miscarriage of justice.

In response to ground E, counsel for the respondent argued that, at the time Exhibit A was executed, the three structures on the land were uncompleted. When the appellant commenced the action at the High Court six (6) years after signing Exhibit A, the respondent had completed one of the uncompleted buildings on the land and was living in it with his family. Counsel for the respondent submitted that, the trial judge never held that the respondent constructed a new building. Therefore, this ground of appeal should fail.

In this appeal, ground E of the appeal reads;

“The trial judge’s finding of fact that Defendant/Respondent put up a new two-storey house on the land after the signing of the contract is unsupportable”;

In the particular circumstances of this case, respondent should not be allowed to take advantage of his own wrong doing. The reason being that, he sold his property to the appellant at the cost of USD 150, 000 and was paid USD10,000 as part payment pending the eviction of squatters in the property. The respondent managed to evict the squatters in 2009. See Exhibit ‘2’, the judgment of the District Court Community Centre, Accra at page 197 of the record of appeal. The appellant had to wait for almost one year before instituting the current action. In the peculiar circumstances of this case, i.e. the contract being one in relation to land, we think it is just and equitable for the contract Exhibit ‘A’ executed in October 2005 to be specifically enforced. We are not enthused by the argument of counsel for the respondent that his client refurbished and or completed one of the uncompleted building and is living in same. This is because at the time he did the refurbishment, he knew he had sold the property to the appellant and the latter was waiting to take possession as the balance of the purchase price was sitting in a bank account for the respondent’s collection. See the case of NTHC LTD V. ANTWI [2009] SCGLR 117, 120 holding (2) thereof where their Lordships held that;

“The dominant principle was that equity would grant specific performance of a contract if, under all circumstances, it was just and equitable to do so. In the circumstances of the instance case, the Court of Appeal had rightly ordered specific performance of the contract because it would only be just and equitable for the contract of January 2005 to be specifically ordered (our emphasis). And the effect of ordering specific performance in the instant case was that, the plaintiff as the purchaser, became liable to pay the price at the contractually stipulated date”.

The case cited supra is on all fours with the case under consideration. This ground succeeds and it is allowed.

This brings us to ground H of the appeal which alleged a misdirection on the part of the trial judge on the law of specific performance.

The argument advanced in support of this ground is that a court of law would decree specific performance of a contract if same is valid and its terms are clear, Counsel referred us to the case of IBM WORLD TRADE CORPORATION V. HASNEM ENT. LTD [2001-2002] SCGLR 393. Counsel continued that, the rationale is that equity would not permit a party to a contract to walk away from the contract without lawful justification.

In response to the arguments on ground H, counsel for the respondent argued that, the submissions by counsel for the appellant on the grant of the remedy of specific performance of a contract if same is valid and its terms clear is rather simplistic. This is because the remedy would be granted only if it is just and equitable to do so. He referred us to the case of KOTEY V. KOLETE [2005-2006] SCGLR 368. Counsel continued that, subsequent to the execution of Exhibit A, the trial judge made a finding of fact that the respondent completed one of the uncompleted structures on the land value in excess of USD100,000 to the knowledge of the appellant. Consequently, the trial judge was right in refusing to grant specific performance.

Ground H of the appeal of the appeal is that;

“The trial judge misdirected himself on the law of specific performance and the misdirection occasioned substantial miscarriage of justice to the Plaintiff/Appellant”.

PARTICULARS OF MISDIRECTION                                  

“The trial judge misdirected himself on the law of specific performance by believing that in granting a remedy of specific performance, terms of the contract must be exhaustive but not finality of the contract that is important”

In this appeal, we have already come to the conclusion that there was a valid contract between the parties. We have also held that the subject matter of the contract is in relation to land. Secondly the appellant had relied on the agreement to his detriment. Thirdly, the appellant made part payment of the contract. That being the case the appropriate remedy is specific performance. But more importantly, the parties being businessmen, the respondent should not be allowed to take advantage of his own wrong. See the case of LT. COL. KUURE MULLER V. MESSRS HOME FINANCE COMPANY LTD [2012] 1 SCGLR 1234 where their Lordships held per curium that;

“….It will not be out of place…..for the Supreme Court to reiterate the fact that, if it is desirable for people to use contracts in the business world to regulate and control their dealings with one another, then it is the duty of the law courts to give teeth to these contracts to enable them bite very hard when the contracts are honored in the breach by the parties”.

Ground H succeeds and it is hereby upheld.

The last ground of appeal argued is that the judgment is against the weight of evidence.

On this ground, counsel for the appellant referred to cases like ABBEY & OTHERS V. ANTWI V [2010] SCGLR 17; TUAKWA V. BOSOM [2001-2002] SCGLR and DJIN V. MUSAH BAAKO [2007-2008] SCGLR 688. He then stated what is required of us as an appellate court when an appellant complained on such a ground and also the duty imposed on such an appellant to demonstrate to the appellate court the lapses he is complaining about. Additionally, counsel invited us to review the entire record, both oral and documentary evidence to ascertain whether the conclusions reached by the trial judge is amply supported by the evidence on record. Some of the pieces of evidence on record if applied in favour of the appellant would have changed the decision in his favour are;

That there are several decided cases that part payment of money is sufficient act of part performance of a contract to warrant a decree of specific performance. In the instant case the appellant made part payment of USD10,000 to the respondent.

The appellant acted to his detriment in reliance on the contract. This is because apart from the USD10,000 part payment he also set aside the remaining balance of USD 140,000 in a bank account to the knowledge of the respondent close to six (6) years. These amounts the appellant could have applied to his business.

The respondent contradicted his case set up in his pleadings and that given in his evidence. For instance in paragraph 2 of his Statement of Defence the respondent averred that the parties agreed that the USD10,000 part payment was to be refunded if the litigation to evict the squatters did not end early. However under cross examination he said, when the eviction of the squatters was heading for court the appellant said he was not interested in a court case and an agreement was reached for a refund of the part payment. According to counsel for the appellant this was a material contradiction in the pleadings and evidence and the trial judge should have resolved it in favour of the appellant. But more importantly, the respondent showed bad faith by attempting to sell the property to the Guinea Embassy and it took the intervention of the appellant through his counsel who wrote to the Embassy to stop the said sale.

Lastly, the trial judge held that the evidence of the appellant was unreliable. His reason was that he denied that the respondent refunded the USD10,000 to him and he refused to collect. But under cross examination he gave contradictory answers to questions on the issue. Counsel for the appellant submitted that this was wrong evaluation of the evidence on the issue as the appellant testified that he didn’t refuse to accept a refund as he was not offered a refund by the respondent. Also he did not think of taking back the part-payment because he was interested in the property.

He concluded on this ground that having regard to the fact that there was a valid contract and the appellant had made part payment and also acted to his detriment based on the agreement there was no justification for the trial judge to dismiss the appellant’s claim. Consequently, the trial judge exercised his discretion wrongly in dismissing the appellant’s claim and invited us to allow the appeal on this ground.

In respondent to the submissions on the last ground of appeal that the judgment is against the weight of evidence, counsel for the respondent referred us to the case of AWULAE ATTIBRUKUSU III V. OPPONG KOFI & 4 ORS Civil Appeal No. J4/27/09 and submitted that, when the entire evidence is properly analyzed together with the exhibits tendered in court, the trial judge was right in dismissing the appellant’s case. His reason being that, there is evidence on record that the respondent commenced action against the squatters on the property after taking the part payment and or commitment fee from the appellant. The action travelled a number of years before he recovered possession. There is also evidence that after entering into the agreement, the respondent spent over USD100,000 in completing one of the uncompleted structures on the land where he resides with his family and the trial judge made a finding of fact to that effect. Counsel for the respondent therefore invited us not to disturb the finding of fact made by the trial judge as there is enough evidence on record to show that the contract has long been repudiated. The trial judge was right in refusing to grant the relief of specific performance.

The last ground of appeal is that;

“The judgment is against the evidence”.

In this appeal, both counsel for the appellant and respondent stated the law correctly as to what is required of an appellant court like ours when an appellant appealed on such a ground. By such ground, this court is enjoined to review the entire record, taking into consideration the evidence adduced at the trial, both oral and documentary to ascertain whether the conclusion arrived by the trial judge is supported by the evidence on record. See also Rule 8 (1) of the Court of Appeal Rules CI 19 which provides that, an appeal is by way of rehearing. In the case of IN RE ASAMOAH (DECEASED) AGYEIWAA & OTHERS V. MANU [2013-2014] 2 SCGLR 909, 911 holding (2), their Lordships held that;

“The general principle in determining the omnibus ground of appeal that the judgment is against the weight of evidence, which is by way of re-hearing, is that the appellate court is placed in the same position as if the exercise was the original re-hearing….”

Additionally, the appellant is under an obligation to pinpoint the lapses he is complaining about.

In undertaking this exercise, counsel for the appellant referred to some pieces of evidence if applied in favour of his client would have changed the decision in favour of his client and some pieces of evidence wrongly applied against his client. We as an appellate court will concentrate on just a few. To begin with, the claim of the appellant was for specific performance of the sales agreement the parties executed that is Exhibit A. The trial judge in his judgment found as a fact that Exhibit A was a valid contract between the parties. Secondly, the appellant made part payment of USD10,000 to the respondent. This was not in dispute. Thirdly, to the knowledge of the respondent, the appellant set aside the remaining purchase price of USD140,000 in a bank account awaiting the eviction of the squatters. The appellant thus could not do business with the said amount for about six (6) years. Therefore, the appellant relied on the agreement to his detriment. See the case of KOGLEX LTD (NO.2) V. FIELD supra;

“The relief of specific performance would lie whenever, as in the instant case, agreement between parties had got to such a stage that it would amount to fraud on the part of the other party to refuse to perform his side of the bargain….”

In the words of ACQUAH JSC (as he then was);

“Indeed, to establish facts amounting to part performance, what is required of a plaintiff is to show that he had acted to his detriment and that the acts in question are such as to indicate, on the balance of probabilities that they were performed in reliance of a contract with the defendant”.

Not only these, the respondent exhibited bad faith in his dealings with the appellant right from the word go. He received the part payment of USD10,000 from the appellant on 7/10/2005 for the eviction of squatters and the processing of documents of the disputed house. Then in November or December the same year, he was in negotiation with the Guinea Embassy to sell the same property to them. See the respondent’s evidence at pages 151 to 152 of the record of appeal. The appellant had to cause his solicitors to write to the Guinea Embassy in March 2006 informing the latter that the property in question had already been sold to him. The said letter is at page 86 of the record of appeal.

In evaluating the pieces of evidence on record we have not lost sight of the fact that the respondent in his evidence claimed he had refurbished and or completed one of the uncompleted structures on the disputed property and is living in same. Our reaction to this piece of evidence is that the respondent should not be permitted to take advantage of his own wrong doing. As held by the Supreme Court in the case of MULLER V. HOME FIANANCE CO. LTD supra;

“….It would not be out of place… for the Supreme Court to reiterate the fact that, if it is desirable for people to use contracts in the business world to regulate and control their dealings with one another, then it is the duty of the law courts to give teeth to these contracts to enable them bite and bite very hard when the contracts are honored in the breach by the parties (the emphasis is ours).

The respondent completed and or refurbished one of the uncompleted structures on the disputed property he had sold to the appellant at his own risk. He cannot use this fact to wriggle himself out of the contract he executed with the appellant. He must perform his side of the contract.

It is for these reasons that this appeal succeed and it is hereby upheld.

It is hereby ordered that the respondent convey the disputed property to the appellant by effecting the necessary documentations in the appellant’s name. The appellant should pay the balance of the purchase price being USD140,000 to the respondent.

Appeal allowed accordingly.