IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
EXCEL OIL COMPANY LIMITED -(Plaintiff/Respondent)
OSIBISA CINEMA PALACE LIMITED -(Defendant/Appellant)
DATE: 21 ST MAY, 2018
SUIT NO: H1/21/2015
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, WELBOURNE (MRS) JA
BARIMA AGYEKUM HENE FOR PLAINTIFF/RESPONDENT
COUNSEL FOR DEFENDANT/APPELLANT ABSENT
ADUAMA OSEI JA:
In its action commenced in the High Court, Sunyani on the 22nd of June, 2006, thePlaintiff/Respondent claimed the following reliefs against the 1st Defendant and the 2ndDefendant/Appellant jointly and severally:
“(a) A declaration that the defendants are bound both in law and equity, by the terms of agreement spelt out in the Memorandum of Understanding (M.O.U.) entered into between the plaintiff and the defendant on the 7th day of July, 2004.
“(b) An order for specific performance compelling the defendants either by themselves, their agents, successors, privies and all those deriving title from them to permit the plaintiff to operate the filling station, which said filling station is lying, situate and being at Sunyani, along the Old Hospital – New Dormaa road, which said filling station was renovated at the expense of the plaintiff with the consent of the defendants by virtue of the M.O.U. entered into between the plaintiff on one hand and the defendants on the other hand and referred to in relief (a) above since the renovations made and monies paid to the defendants and other related acts constitute part performance by the plaintiff of the terms of the M.O.U.
“(c) A declaration that the lease (draft) dated 15/10/05 prepared and signed by the plaintiff and served on the defendants for adoption by the parties and to regulate the operation of the defendants’ filling station referred to in relief (b) above reflects sufficiently and in all material respects the terms of the memorandum of understanding (M.O.U.) referred to in relief (a) above.
“(d) An order compelling the defendants to execute their portion of the said lease referred to in relief (c) above.
“(e) Damages for loss of income.
“(f) An order of injunction restraining the defendants, their agents, servants, privies, etc. from interfering with the right of the plaintiff to operate the filling station until such time that the term covered by the agreement between the parties is exhausted.
“(g) Further order or orders as this Honourable Court may deem fit so to make, by way of exercising her inherent jurisdiction.”
On the 31st of May, 2011, the High Court granted the Plaintiff/Respondent all the reliefs claimed above, except the claim for damages.
Not satisfied with the decision of the High Court, the 2nd Defendant/Appellant has appealed against the same to this Court, and this is our judgment in the appeal. In this judgment, the Plaintiff/Respondent is referred to as “the Respondent”, and the 2nd Defendant/Appellant is referred to as “the Appellant”.
The Respondent is an oil marketing company that carries on business in Ghana with its head office in Tema, and with several outlets in other parts of Ghana. The Appellant is also a limited liability company and it is based in Sunyani.
On or about the 7th of July, 2004, the Respondent and the Appellant signed a memorandum of understanding which stated that the parties had agreed to enter into a leasehold agreement in respect of a filling station situate in Sunyani in the Brong Ahafo Region, belonging to the Appellant. The terms and conditions contained in the memorandum of understanding together with other terms and conditions to be agreed upon were to form the bases of the lease to be executed between the parties.
The Respondent alleged in the statement of claim that in pursuance of the memorandum of understanding, it had performed several acts and deeds including the renovation of the filling station, payment of rent advance to the Appellant and dumping of kerosene, diesel and petrol at the filling station. The Respondent also contended in the statement of claim that the rehabilitation and renovation of the filling station entitled it to operate the filling station in accordance with the terms and conditions spelt out in the memorandum of understanding. The Respondent’s grievance was that the Appellant had prevented it and its agents or representatives from running the said filling station, and had also refused to sign its portion of a draft lease the Respondent had prepared in pursuance of the memorandum of understanding. Again, the Respondent contended in the statement of claim that the acts and deeds it had done or undertaken constituted acts of part performance of the agreement respecting the filling station and they entitled it to an order of specific performance against the Appellant.
The Appellant however alleged fraud against the Respondent in respect of the manner in which the memorandum of understanding was signed and also contended that the parties had not agreed on a final agreement and the question of executing an agreement therefore did not arise.
It was after the trial Court had considered the evidence produced by the parties in support of their respective positions in the dispute that it delivered its judgment of 31st May, 2011, which has given rise to this appeal.
By its notice of appeal, the Appellant is praying this Court to set aside or reverse the judgment of the trial Court, and it is doing so under 13 grounds. Most of the grounds filed question the trial Court’s evaluation of the evidence, and the issues raised under them are issues which, in my view, can be conveniently argued under the general ground that the appeal is against the weight of evidence. Specifically, I think grounds (b) to (k) can be argued under the general ground and I do, in the circumstance, put down the following as the grounds upon which the Appellant is basing its challenge to the judgment of the trial Court:
a) The judgment is against the weight of evidence.
b) The trial Court erred when it failed to make a finding that there was no agreement for a lease, as all the terms had not been agreed upon and especially, as no other terms and conditions were added to the two leases the Respondent sent through EMS on 21st March, 2006.
c) The trial Court erred when it ordered the Appellants to execute the same copy of the lease as Exhibit C presented to the Appellant, failing which the High Court Registrar was to execute same.
The judgment appealed against is at page 375 to page 392 of the appeal record, and the notice of appeal is at page 393 to page 395 of the same record. In arguing the ground that the judgment is against the weight of evidence, Counsel for the Appellant referred to Tuakwa Vs. Bosom [2001-2002] SCGLR 61 and contended that the Respondent could not prove at the trial that the Appellant was bound by the memorandum of understanding. In his view, by tendering the memorandum of understanding, the Respondent only succeeded in establishing that it had flouted its provisions.
Counsel for the Appellant contended that the Appellant discharged its obligation by making the filling station available to the Respondent and, the Appellant having done so, the way was open for the parties to discuss and agree on other terms and conditions to be added to what was in the memorandum of understanding so that they would form the bases of the lease to be executed.
On the issue whether or not the document dated 15th October, 2005 could be acknowledged as a subsisting lease, Counsel for the Appellant submitted that the said document was fraudulent. Counsel contended that the Respondent failed to prove that any draft lease was presented to the Appellant in October, 2005, which the Appellant had failed to execute. He said the document which was sent to the Appellant by EMS on 21st March, 2006, had been backdated.
On the issue of who, by agreement of the parties, was to be the manager of the filling station, Counsel referred to Exhibits 6, 6a, 6b, and 6c and contended that those documents clearly established that it was the managing director of the Appellant company who was to be the manager. Regarding the renovation of the filling station, Counsel contended that the evidence submitted by the Respondent was self-serving and contained inconsistencies. He also observed that the renovation was not mentioned in the memorandum of understanding and was not mentioned in the draft lease of 15 October, 2005 either.
On the issue whether there was an agreement for a lease between the parties, Counsel noted that the parties had agreed in clause 8 of the memorandum of understanding that other terms were to be agreed upon which, together with the conditions in the memorandum of understanding, would form the bases of the lease. Counsel argued that there was no evidence that the parties discussed other terms and conditions and there could therefore be no lease between the parties which called for execution.
Building further on his contention that the draft lease submitted by EMS on 21st March, 2006 had been backdated, Counsel argued that the backdating constituted fraud on the part of the Respondent, and since fraud vitiates all actions and conduct, no lease could be said to exist.
Regarding the 10 years’ rent advance paid by the Respondent, Counsel contended that the
Respondent had reaped its fruits by operating the filling station exclusively from 30th October, 2006 to date. On the order of the trial Court requiring the Appellant to execute a copy of the lease in the terms contained in Exhibit C, Counsel submitted that the right of parties to make their own contracts is a constitutional imperative. Counsel considered that it was an infringement of the Appellant’s constitutional right for the trial Court to order or compel it to enter into an agreement it was not willing to enter into.
At the conclusion of his submissions, Counsel for the Appellant invited this Court to set aside the judgment of the trial Court, noting that the 10 years’ rent paid by the Respondent had been exhausted.
Responding to the submissions of Counsel for the Appellant, Counsel for the Respondent submitted that the judgment of the trial Court was impeccable, having regard to the facts and circumstances of the case as appear in the record of appeal.
In the view of Counsel, the evidence on record established that the parties agreed that the Respondent was to operate the filling station according to the terms contained in the memorandum of understanding. He contended that the terms of the memorandum of understanding were to form the bases of the preparation and execution of a final lease by the parties for the operation by the Respondent of the filling station. He said based on the memorandum of understanding, the Respondent prepared a draft lease, executed its portion and presented it to the Appellant to also execute its portion. He contended that the draft lease, Exhibit C, contained all the terms agreed upon and expressed in the memorandum of understanding to form the terms and conditions of the lease.
Counsel disputed the Appellant’s claim that it had not received the first set of the draft lease and contended that the testimony of the Appellant’s own witness, DW. 2, indicated that the first set of the draft lease dated 15th October, 2005, was served on and received by the Appellant.
On the issue as to who was to manage the filling station, Counsel for the Respondent rejected the claim by the Appellant that the parties had agreed that the station would be managed by the managing director of the Appellant, who would be at liberty to employ his children as attendants at the station and would also be paid a monthly salary as manager. Counsel contended that nowhere in the memorandum of understanding, on which the lease to be prepared and executed was to be based, was it stated that the Appellant’s managing director would be employed as the manager of the station. Counsel said the Appellant seemed to base its claim that its managing director was to be made the manager of the filling station on the signing by him of some fuel delivery invoices which accompanied the dumping of fuel at the station. Counsel contended however, that in the face of the totality of the evidence on record, the Appellant’s conclusion was false.
Counsel noted that from the evidence, apart from the terms contained in the memorandum of understanding, no other terms and conditions were agreed upon by the parties. Counsel contended that no other terms and conditions having been agreed upon for incorporation into the final lease as provided under clause 8 of the memorandum, the Respondent was entitled, under clauses 7 and 8 of the memorandum of understanding, to prepare the draft lease on the terms and conditions already agreed upon in the memorandum of understanding, and the Appellant was bound, under the same provisions, to sign the draft lease. He said the Appellant was unreasonable in failing to execute the lease.
Counsel contended that the memorandum of understanding contained a description of the property in issue, the price and the names and descriptions of the vendor and the purchaser. Counsel submitted that on the authority of Skanska Jenson International Vs. Klimatechnik Engineering Limited [2003-2004] SCGLR 698 (713) therefore, there was sufficient memorandum of the terms in writing to support an agreement for a lease. In the view of Counsel, by preparing the draft lease and serving it on the Appellant, the Respondent showed the requisite commitment to the memorandum of understanding. Counsel argued that the preparation of the draft lease and its submission to the Appellant did not stop the Appellant from suggesting or making amendments if, indeed, there were any terms agreed upon which the Respondent had omitted. According to Counsel, the wording of clause 8 of the memorandum of understanding suggested that there were no other terms and conditions agreed upon by the parties in respect of the lease.
Regarding the Appellant’s claim that its managing director was to be appointed as the manager of the filling station, the response of Counsel for the Respondent was that the said claim lacked evidential support. He observed that the Appellant was expressing nothing more than mere hope. Counsel said Exhibits 6, 6a, 6b, 6c, 11, 12 and 13 did not contain anything suggesting that the managing director was to be appointed as manager of the filling station. Counsel invited this Court not to disturb the trial Court’s finding rejecting the Appellant’s claim that its managing director was to be appointed
On the issue of renovations at the filling station, Counsel contended that the evidence on record left no doubt that substantial renovations had been made. Counsel referred to the testimonies of PW 2 and the Appellant’s DW 2 in support of this contention.
Regarding the order of specific performance made by the trial Court against the Appellant, Counsel for the Respondent argued that the renovations done by the Respondent, the dumping of fuel at the filling station, the preparation of the draft lease and the payment to the Appellant by the Respondent of the sum of ¢420,000.00 constituted more than sufficient acts of part performance to warrant the order.
Regarding the ground of objection that the trial Court failed to appreciate that the parties could not meet to discuss any further terms for incorporation into the final lease because the Respondent took an action against the Appellant, Counsel for the Respondent observed that it is not the case that the parties could not meet to discuss any further terms. The case rather, was that the parties did not meet to discuss any further terms because neither of the parties seemed to have any such terms to be considered for incorporation into the lease. Counsel explained that it had been well over a year, between the signing of the memorandum of understanding on 7th March, 2004 and the service of the draft lease in the first week of October, 2005, and if there were other terms or conditions for consideration, they would have been brought up. Counsel noted that even when the Respondent served copies of the draft lease on the Appellant, the Appellant failed to take the opportunity to propose terms for inclusion, if it had any.
Reacting to the ground that the trial Court erred when it ordered the Appellant to execute the lease under the terms and conditions contained in Exhibit C, Counsel for the Respondent contended that the trial Court was right in so ordering. In the view of Counsel, there was overwhelming evidence that the draft lease had on two occasions been served on the Appellant and that the draft contained all the terms and conditions as freely and voluntarily agreed upon by the parties and contained in the memorandum of understanding. The parties not having subsequently agreed on any other terms and conditions, it was just and proper that the Appellant was ordered to execute the lease as submitted.
From the grounds of appeal filed and the arguments advanced by Counsel for the parties, it is clear that the core issue in this appeal is whether the trial Court’s order granting the relief of specific performance against the Appellant is reasonably justifiable, having regard to the evidence on record.
Specific performance is an equitable relief in which the court orders a party to perform its duty under a contract. Though it is an equitable relief, to be granted it, a plaintiff need not establish the existence of some equitable interest. The court may however want to satisfy itself that in the circumstances of the case, damages will not be adequate as a relief. In Winney Vs. Manford & Others  GLR 494, Sarkodee J expressed the view, which I agree with, that the court should not order the specific performance of a contract unless it is satisfied that there is, in fact, a concluded contract. He explained that the contract may be inconclusive where the parties “have failed to agree expressly or by implication on some essential matter, or by reason that it failed to comply with a statutory requirement relating to contracts”. He also underscored the need for the contract to be precise and certain and suggested that where the contract is so vague in its general terms that the obligations of the parties are not ascertainable, the court should not decree specific performance.
Because it is an equitable remedy, its grant is discretionary. Being discretionary however does not make its grant arbitrary or capricious. As explained in Halsbury’s Laws of England, Fourth Edition Reissue, Volume 44(1), (par. 801), the exercise of the discretion is governed by settled principles which have been shaped by previous authorities. And by the authorities, the relief will be granted as a matter of course once the contract in issue belongs to the category of contracts of which specific performance will be granted. The essentials are that it must be valid in form, it must have been made between competent parties and it must not be objectionable in its nature and circumstances.
In respect of contracts affecting land, sections 1 and 2 of the Conveyancing Act, 1973 (NRCD 175) give us an idea as to which contracts belong to the category of which specific performance will be granted. Section 1 of the Act requires a transfer of an interest in land to be in writing signed by the person making the transfer or by the agent of that person duly authorised in writing. Unless relieved against the need for a writing by section 3 of the Act, a transfer of an interest in land made otherwise than provided in sections 1 to 10 of the Act will not confer an interest on the transferee. Section 2 also renders a contract for the transfer of an interest in land unenforceable unless the contract is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of that person, or unless it is relieved against the need for a writing by section 3 of the Act.
Now, section 3 of the Conveyancing Act is in the following words:
“3. Transactions permitted without writing
“(1) Sections 1 and 2 do not apply to a transfer or a contract for the transfer of an interest in land which takes effect
(a) by operation of law;
(b) by operation of the rules of equity relating to the creation or operation of resulting, implied or constructive trusts;
(c) by order of the Court;
(d) by will or an intestacy;
(e) by prescription;
(f) by a lease taking effect in possession for a term not exceeding three years, whether or not the lessee is given power to extend the term;
(g) by a licence or profit other than a concession required to be in writing by section 3 of the Concession Act, 1939; or
(h) by oral grant under customary law.
“(2) Sections 1 and 2 are subject to the rules of equity including the rules relating to unconscionability, fraud, duress and part-performance”.
Reading the above provisions of the Conveyancing Act in the circumstances of the present case, what emerges is that in an action to specifically enforce a contract transferring an interest in land, the contract sought to be enforced must be evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of that person, and that the rules relating to fraud and part-performance will be applicable in considering this requirement.
So, part performance is among the exceptions to the requirement that, to be enforceable, certain contracts must be in writing. Where there is an oral agreement that is otherwise governed by the Conveyancing Act, by the doctrine of part performance, the court is able to treat partial performance in reliance on the oral agreement and acceptance of such performance as evidence of an enforceable contract.
Part performance is a doctrine of equity and for this reason, questions of part performance usually arise in actions for specific performance. Where the contract is one which the court would specifically enforce, its part performance by a plaintiff may draw from the court against the defendant an order for specific performance where the plaintiff has performed his part of the contract to the extent that if the defendant resiles from it, the plaintiff cannot be restored to his former position, not even by the payment of monetary compensation to him. In that circumstance, it would be a fraud on the plaintiff for the defendant to resile and by the remedy of specific performance, equity will intervene and compel the defendant to perform his part of the contract.
Following Maddison v. Alderson (1883) 8 App.Cas. 467, it used to be among the required conditions that for a decree of specific performance to be made of an oral contract, the acts of part performance must unequivocally be referable to the contract alleged. The position seems to be different now, and in Koglex Limited (No. 2) Vs. Field  SCGLR 175 (195), Acquah JSC, as he then was, declared that “to establish facts amounting to part-performance, what is required of a plaintiff is to show that he has acted to his detriment and that the acts in question are such as to indicate, on a balance of probabilities, that they were performed in reliance of a contract with the defendant.”.
Now, considering the evidence on record, and with some light thrown on the concepts of specific performance and part-performance, how do we regard the trial Court’s decision granting the relief of specific performance to the Respondent against the Appellant? Does the grant unjustifiably compel the Appellant to enter into an agreement it is not willing to enter into, as contended by its Counsel? Or does it provide a just and proper relief to the Respondent against the Appellant, as contended by the Respondent’s Counsel?
The effect of the order of specific performance made by the trial Court against the Appellant was to compel it to execute in favour of the Respondent a lease as contained in Exhibit C. In the view of the trial Court, Exhibit C incorporates Exhibit A, the memorandum of understanding, and captures its essential terms. In ordering the Appellant to execute in favour of the Respondent a lease as contained in Exhibit C therefore, the trial Court was seeking to enforce the memorandum of understanding.
It has been noted above that the Court may specifically enforce a contract transferring an interest in land where the contract to be enforced is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of that person. It has also been noted that the rules relating to part-performance are among the determining factors when considering the enforceability of contracts seeking to transfer interests in land.
In the present case, the Respondent was given possession of the premises the subject matter of the memorandum of understanding and, looking at the memorandum, I notice that it is signed by the Appellant and the Respondent per their respective managing directors. I think I can conclude from this that it has been made between competent parties, whose names and descriptions have been stated. The term is stated, and the rent payable is also stated. On its face, it is valid in form, and by its nature, it does not disclose anything objectionable.
In its clause 8, however, it provides that the terms therein stated “together with other terms and conditions to be agreed upon shall form the basis of the final agreement of the lease to be executed” between the parties. Now, from the evidence, apart from the terms contained in the memorandum, no other terms and conditions were agreed between the parties. The question that arises, in my view therefore, is whether the absence of “other agreed terms and conditions” renders the contents of the memorandum inconclusive as a contract, and therefore incapable of enforcement.
In Opare Yeboah Vs. Barclays Bank of Ghana Limited,  SCGLR 330 (342), Georgina Wood CJ underscored as a fundamental principle of construing contractual documents, the construction of the document “as a whole, in totality, and liberally or generously in a manner that would bring out its subjective purpose”. I think this prescribes a productive and constructive approach to discovering the purpose behind the document being construed, and I have adopted this approach in my reading of the memorandum of understanding.
In this regard, I have read the memorandum as a whole, in totality and liberally and, having done so, I am unable to give to clause 8 a reading to the effect that in the event of “other terms and conditions” not being agreed, the agreements reached in clauses 2 to 7 of the memorandum shall be deemed abandoned. In my view, the agreements reached by the parties by virtue of clauses 2 to 7 are so definite and unequivocal that they cannot be
deemed abandoned when there is no express provision to that effect. Indeed, when the Respondent has, as the evidence shows, performed acts and deeds in pursuance of those agreements, which performance the Appellant has accepted and benefited from, it will be allowing the Appellant to perpetrate a fraud on the Respondent if clauses 2 to 7 are not specifically enforced.
But the Appellant has itself alleged fraud in respect of the memorandum of understanding and the draft lease, and it is necessary to consider this allegation for its effect on the enforceability of the memorandum. As Dotse JSC states in Mass Projects Limited (No. 2) Vs. Standard Chartered Bank & Another (No. 2) [2013-14] SCGLR 309 (320), if proven and sustained, fraud “would wipe and sweep away everything in its trail as if the thing had never existed”. The Meriam-Webster Dictionary defines fraud as “intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right”. Among the definitions entered under “fraud” in Black’s Law Dictionary, Eighth Edition, are:
1. “(a) knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment” and
2. “(a) misrepresentation made recklessly without belief in its truth to induce another person to act”.
Because of the far-reaching consequences fraud may bring about in respect of matters or situations that otherwise appear regular, the courts will hold that there is fraud only when they are satisfied that fraud has indeed been established. They will not hold fraud established merely because fraud has been alleged. In Osei-Ansong & Passion International School Vs. Ghana Airports Company Limited [2013-14] 1 SCGLR 25 (34), the Supreme Court stressed per Adinyira JSC that “fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the courts”. Her Ladyship quoted with approval a statement from the dissenting opinion of Francois JSC in Dzotepe Vs. Hahormene III [1987-88] 2 GLR 681(701) that “(t)he judicial edifice was not constructed to lend a ready ear to every cry of fraud from suitors who had lost on the merits”. Also, in In re Agyekum (Descd.); Agyekum Vs. Tackie & Brown (Substituted by) Adjindah [2005-2006] SCGLR 51 (855), a case involving an allegation of forgery of a will, Dr. Twum JSC not satisfied with the proof offered by the plaintiffs, observed that “(v)ague allegations of uncommon, unusual, or even unconscionable dispositions of his own property by a testator, induced by logic rather than facts properly pleaded should be firmly ignored. The courts have a duty to sustain the disposition of a deceased person made in a will which prima facie, satisfies the statutory requirements of due preparation and execution”.
Now, in the present case, in respect of the memorandum of understanding, the Appellant’s allegation was that the Respondent knew he had a lawyer and yet had caused him to sign it without reference to his lawyer, and in respect of the draft lease, his grievance was that the Respondent had falsely back-dated one of the drafts. I have considered the Appellant’s allegations of fraud in the light of the evidence on record, and I cannot but put them in a class similar to what their Lordships of the Supreme Court have described above. The allegations appear to be aimed more at diverting attention from the real issue in the case than making a serious case of misrepresentation against the Respondent for consideration.
In the judgment appealed from, the trial Court tried to explain that the two copies of the same draft lease, one signed and the other unsigned, must have been intended to give the opportunity to the Appellant to make amendments and return same to the Respondent for a final draft, or alternatively, to sign the copy that had already been signed and dated, if he was satisfied with it. It is however evident from the inclusion, among the grounds of objection in this appeal, the ground that the trial Court erred when it “failed to appreciate the fraud in the service of the draft lease in the light of the earlier suit No. E1/51/06”, that the Appellant found the trial Court’s explanation unacceptable.
By its attitude towards the draft lease that was served on it, the Appellant shows lack of appreciation of the process towards engrossing a document, after the terms of the agreement have been agreed. In respect of land transactions, Cheshire’s Modern Law of Real Property, Twelfth Edition, suggests at page 750 that where the purchaser is satisfied with the title of the vendor, the contract ought to be completed at once. Completion is explained to mean that “the purchaser must at his own expense prepare a proper deed of conveyance which is effectual to pass the interest to be sold and which contains the usual covenants for title by the vendor”. The practice is that after the purchaser has satisfied himself about the vendor’s title, he prepares a draft conveyance and delivers it to the vendor for approval. When it is returned duly approved, the purchaser has the draft engrossed. By engrossment, a fair copy of the agreement is said to be made, and, at this stage, the deed is ready for execution by the vendor.
When in respect of drafts the Appellant quibbles about dates therefore, it only comes across as a suitor not quite certain about its grievance and the basis for the grievance, and who, nevertheless, is unwilling to give in. In my view, there is reasonable justification from the record for the trial Court’s order granting the relief of specific performance against the Appellant. Contrary to what its Counsel says, by the grant, the Appellant is not being unjustifiably compelled to enter into an agreement against its will. Rather, it is being made to conform with the principles of justice and equity by performing its part of an agreement it has voluntarily entered into and benefited from.
I am unable to attach any merit to this appeal, and the same is hereby dismissed. The judgment of the trial Court dated the 31st of May, 2011, is affirmed and within ten days from today, the Appellant shall execute a lease in the terms contained in Exhibit C and deliver same to the Respondent. In the event of the Appellant failing to comply with this order, the Registrar of the High Court shall execute such lease and the lease so executed by the Registrar, shall be deemed to be execution by the Appellant and shall pass to the Respondent such title as the Appellant itself could lawfully pass.