IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
CHRISTIE BOAMPONG - (plaintiff /Applicant)
CATERING MANAGEMENT SERVICES LTD. & 3 OTHERS - (Defendants/Respondents)
DATE: 19TH JANUARY, 2017
CIVIL APPEAL NO: H1/166/2016
JUDGES: MARFUL-SAU JA (PRESIDING), IRENE LARBI JA, TANKO AMADU JA
SAM KYERE FOR PLAINTIFF/APPELLANT
ZEWU GLOVER FOR THE DEFENDANT/RESPONDENTS
MARFUL- SAU, JA :
This appeal which is taken from the judgment of the High Court sitting at Tema, dated the 9th of January 2013 raises one fundamental issue, which is whether or not the contract for the sale of land between the plaintiff/appellant and the 1st and 2nd defendants/respondents was repudiated by the plaintiff. The brief facts of the case as revealed by the record of appeal is that the original plaintiff one Madam Dora Agyeman and the husband one Mr K. Boampong negotiated to purchase a parcel land that had been allotted to the 1st and 2nd defendants by the 3rd defendant, Tema Development Corporation. The parties agreed on the price of GH₵ 50,000.00 and the said Mr K. Boampong paid a deposit of GH₵ 20,000.00 with the understanding that the balance would be paid after the necessary documentation and ownership of the land was transferred to the plaintiff by the 3rd defendant. Pursuant to this agreement the 2nd defendant executed statutory declarations and forwarded same to the 3rd defendant for the necessary transfer to be effected to the plaintiff.
According to the 2nd defendant, ten days after requesting the 3rd defendant to implement the transfer of the land to the plaintiff, he received a call from the husband of the plaintiff calling for a meeting. At the said meeting plaintiff husband Mr K. Boampong indicated that their architect had advised that the size of the land, the subject matter of the transaction, was too small for the price agreed upon, so Mr. Boampong requested that the price be renegotiated downwards. The 2nd defendant rejected the request and Mr Boampong demanded a refund of the deposit paid. The 2nd defendant indicated that he could only refund the deposit after he had resold the land. In the circumstance, the 2nd defendant requested the 3rd defendant to stop the process of transferring the land to the plaintiff. The 2nd defendant then resold the land to the 4th defendant. The 2nd defendant subsequently, sent the wife to the plaintiff and the husband with a cheque for the refund but same was rejected by the plaintiff and the husband.
On these facts the plaintiff instituted this action praying for the following reliefs:-
(i) A declaration that the transfer of the plot by the 3rd defendant to the 4th defendant upon the instructions of the 1st defendant was void.
(ii) An order of specific performance of the agreement between the plaintiff and the 1st defendant to sell plot No. 3/MKT/A/4 to the plaintiff.
(iii) An order compelling the 3rd defendant to transfer the plot into the name of the plaintiff.
(iv) Perpetual injunction restraining the 4th defendant from dealing or in any way interfering with plot No. 3/MKT/A/4 Community 3, Tema.
The 1st and 2nd defendants who claimed they had been defamed by the plaintiff's Solicitor's letter also counterclaimed as follows:-
(a) Damages for defamation of character
(b) Plaintiff to pay for all defendants legal expenses in defending the case.
The 4th defendant the eventual purchaser of the land in dispute also counterclaimed as follows:-
1. A declaration of title to and ownership of all that piece or parcel of land duly purchased and transferred to the Church of Pentecost, Tema South District by the 1st and 2nd defendants which is situate and lying and being at Community 3, Tema.
2. General damages for trespass.
3. Recovery of possession.
4. Perpetual injunction to restrain the plaintiff, her agents, servants , workmen, privies and assigns from committing any further acts of trespass to the 4th defendant's duly purchased land at Community 3, Tema.
At the end of the trial the Court dismissed the entire claim of the plaintiff as well as the counterclaim of the 1st and 2nd defendants and entered judgment for the 4th defendant on its counterclaim. It is against this judgment that the plaintiff had appealed to this court on the following grounds:-
''a. The learned judge erred in using privileged evidence, which is inadmissible vide section 105 of NRCD 323 as the basis for arriving that the plaintiff/appellant repudiated the contract of sale between the plaintiff/appellant and the 1st defendant.
b. The learned judge erred in holding that the plaintiff/appellant repudiated the contract for the sale of the land, the subject matter of the suit with 1st defendant/respondent.
c. The learned judge erred in holding that the plaintiff/appellant repudiated the contract for the sale of the land, because of the acts of a third party.
d. That the learned trial judge erred in holding that the 4th defendant was a bona fide purchaser of the land, the subject matter of the suit, for value without notice.
At the beginning of this judgment, I did state that the appeal raises a fundamental issue, which is, whether the contract for the sale of the land in dispute was lawfully repudiated. The determination of this fundamental issue will resolve grounds (b), (c) and (d) as stated above. However, I have a problem with ground (a) as formulated. That ground is alleging error of law but no such particulars were provided in accordance with Rule 8 (4) of the Court of Appeal Rules, CI 19. That rule provides that where a ground of appeal alleges misdirection or error of law, particulars of the misdirection or error of law shall be clearly stated. This court has in several decisions indicated the need for parties to comply strictly to the rules that regulates its proceedings, since an appeal is a creature of statute. The said ground (a) offends Rule 8 (4) of the Court of Appeal Rules, CI 19, and same is hereby struck out.
1. Zabrama v. Segbedzi (1991) 1 GLR 221
2. Dahabieh v. S. A. Tarqui and Brothers (2001-2002) SCGLR 498
I shall now address the fundamental issue as identified above. In this judgment the plaintiff will now be referred to as the appellant. The 1st and 2nd defendants will be referred to as the 1st and 2nd respondents. The 3rd and 4th defendants shall retain their descriptions as at the trial. Before I proceed, I shall first deal with an issue raised by counsel for the appellant in his written submission, regarding the parties to the contract for the sale of the land. According to counsel for the appellant the contract for sale of the land was between the plaintiff and the 1st and 2nd respondents. Counsel argued that Mr . Boampong the husband of the appellant, was not a party to the contract and could not have repudiated it. It seems Counsel came to this conclusion because the 1st and 2nd respondents wrote and executed statutory declarations that the land be transferred into appellant's name. I have read the record of appeal carefully and I am of a contrary opinion as to who the parties to the contract were. The record reveal clearly that the contract which was oral was between the appellant and the husband Mr. Boampong on one hand and the 1st and 2nd respondents on the other hand. The appellant, who initiated the sale transaction was also to be the beneficiary of the land the subject of the contract. The unchallenged evidence of the 2nd respondent and the conduct of Mr. Boampong throughout the contract negotiations and thereafter, as revealed by the record of appeal clearly affirm my conviction that Mr. Boampong was a party to the contract, contrary to the assertion by counsel for the appellant.
The 2nd respondent testified at page 163 of the record of appeal as follows:-
I told my wife to tell Dora Agyeman to give us some few days to think about it. Finally we booked an appointment on the 4th of January 2006. So, on the 4th January 2006, together with my wife, I had a meeting with Madam Dora Agyeman, Mr. K Boampong and we were with Mr. Kwesi; where I presented to them the site plan of the plot; and we discussed the price for the plot. It was agreed that they will pay an amount of ₵500million (GH₵ 50,000.00) for the plot. On the same day they issued a cheque of ₵200,000.00(GH₵ 20,000.00) as down payment towards that plot, on condition that, I will prepare the necessary statutory declarations to initiate the transfer of the plot into their name and I promised to do that on the following day the 5th of January 2006.''
The 2nd respondent continued his evidence on page 163 to 164 of the record as follows:-
''When I finished that document, I sent all of them together with the original receipts to the office of Mr. K. Boampong and after that he called Mr. Kwesi, the plaintiff's attorney to come and join us in his office then we went to TDC and we deposited that document at TDC on the 5th January 2006 in the afternoon.''
At page 166 of the record of appeal, the 2nd respondent testified as follows:-
On the 15th of January 2006, my wife got a call from Madam Dora Agyeman, telling her that their architect said that the plot was too small for that amount that I was charging them; so we should come to the office to negotiate the value of the land. We booked an appointment on the 16th of January 2006. On the following day the 16th of January 2006, I went there with my wife to Mr. Boampong and his wife to their house at Community 3. They again said that the plot is expensive so I should reduce it, and I said no, we have already agreed on this amount so I cannot negotiate the value down. In fact Mr. Boampong not with kind words told me, I should shut up and bring his money as fast as possible but I told him that the money he gave me is for a purpose; so unless I sell the plot again in open market before I will be able to pay back the money they have paid as deposit, then we left the office with the intention to look for another buyer.''
Again at page 167 of the record the 2nd respondent testified regarding the refund to the plaintiff and husband after payment for the land had been made by the 4th defendant as follows:-
Then they made first payment on the 10th of February and they made another deposit of ₵100million (GH₵ 10,000.00) on the 15th of February and they made another deposit of ₵115million (GH₵ 11,500.00); then on the 20th of February when the cheque cleared through the Bank, I prepared a cheque of ₵ 200 million (GH₵ 20,000.00) in the name of Mr. K Boampong in a way that I do what he requested that I should bring his money back.''
At page 168 of the record of appeal, the 2nd respondent continued his evidence thus:-
''Then later again in August we noticed that Mr. K. Boampong has cleared the land; that particular plot, without anybody's permission. When I informed Mr. Kwesi about it he came again and talked to me and said I should not worry; the old man would not do anything. On the 1st week of October 2006 we put some pillars on the plot because the Bulldozer has cleared the original pillars of the site and when we put the pillars, then Mr. K. Boampong also went and dumped in the middle of the plot trips of stone and sand.''
Evaluating the above pieces of evidence adduced by the 2nd respondent, which evidence was not challenged by the appellant, I firmly conclude that Mr. K. Boampong the husband of the appellant was indeed a party to the contract for the sale of the plot of land. The said contract therefore had as its parties the appellant and his husband Mr. K . Boampong, on one part as the Purchasers and the 1st and 2nd respondents on the other side, as the Vendors.
Now, having determined the parties to the contract, I now address the issues as to the nature of the contract and whether the contract was properly repudiated by the appellant's husband as claimed by the 2nd respondent. Examining the record of appeal, there is no dispute at all that the original appellant, Madam Dora Agyeman and her husband Mr. Boampong concluded a valid contract with the 1st and 2nd respondents for the purchase of plot No. 3/MKT/A/4, Community 3, Tema. From the evidence the parties to this oral contract agreed on a purchase price of GH₵ 50,000.00 out of which the appellant and the husband deposited an amount of GH₵ 20,000.00. The parties agreed further that the balance would be paid after ownership of the plot had been transferred to the original appellant, Madam Dora Agyeman, who died in the course of the proceedings and had to be substituted by the daughter, Christie Boampong on the 6th of April 2009, by the order of the court.
It is this contract, that the 2nd respondent claim was repudiated by Mr. K. Boampong. The 2nd respondent had to resell the plot to the 4th defendant in order to refund the deposit to Mr. K. Boampong. The claim that the contract was repudiated by Mr. K. Boampong was first made in a letter dated 12th February 2007, which is at page 322 to 323 of the record, from the Solicitor of the 2nd respondent in a reply to a letter dated 16th January 2007, which is at page 320 to 321 of the record, from the Solicitor of Madam Dora Agyeman, which accused the 2nd respondent of breaching the contract of sale of the land. The 2nd respondent had claimed that Mr. Boampong invited him and the wife to a meeting at which Mr. Boampong demanded that the parties renegotiate the purchase price of the land because his architect had advised that the agreed price was high considering the size of the land. According to the 2nd respondent he rejected the request and the said Mr. Boampong demanded a refund of the deposit paid. The 2nd respondent consequently resold the land to the 4th defendant and wrote a cheque to Mr. Boampong, as a refund of the deposit, but as the record indicates, Mr. Boampong and the wife refused to accept the cheque. It is the conduct of Mr. Boampong in requesting for a renegotiation of the contract price that the 2nd respondent treated as a repudiation to the contract. So what is the evidence on record regarding the claim that the contract was repudiated by Mr. Boampong.
The case was contested on pleadings filed by the parties. The 1st and 2nd respondents in their pleadings to rebut the claim by the appellant alleged that the contract was repudiated by Mr. K. Boampong. Indeed, the 1st and 2nd respondent put up the defence of repudiation through paragraphs 6, 7, 8 and 9 of their amended statement of defence. At the trial the original appellant, Madam Dora Agyeman, who was to benefit from the contract and on whose behalf the action was initiated, testified through her lawful attorney ,Mr. Kwasi Amoako. It is pertinent to note that the said Mr. K. Boampong against whom the 2nd respondent had alleged to have repudiated the contract was never called as a witness to deny the assertion that he sought to renegotiate the contract price which was rejected by the 2nd respondent.
The lawful attorney of the appellant under cross-examination confirmed that a meeting was held at which Mr. Boampong requested that the 2nd respondent reduce the contract price. At page 129 of the record of appeal, the said lawful attorney, Mr. Kwesi Amoako testified thus:-
The following day I went to see the old man, when I went to the old man, he said he was not arguing with him, he only pleaded that he should exercise patient and he will pay; at least he should come down small for him that was the only argument he had with him.''
The above evidence is a confirmation by the lawful attorney of the appellant that at the meeting Mr. Boampong who was described as the old man did request for a re-negotiation of the contract price, and he wanted the 2nd respondent to '' come down small on the price''.
However, at page 130 the attorney of the appellant still under cross-examination created the impression that he was not aware of Mr. Boampong's request that the contract price be re-negotiated. He stated thus:-
''Q. I am putting it to you that the plaintiff and the husband wanted to re-negotiate the purchase price to the 2nd defendant and he refused and he was asked to bring back their money.
A. I don't know anything about that.
Q. That is the basis upon which he sent the cheque to them upon getting a new buyer.
A. My Lord; I am not aware of that.
I find the above answers by the lawful attorney as afterthought in that upon a careful examination of his evidence on record appellant's attorney knew that a meeting was held to discuss the contract and at that meeting Mr. Boampong sought to re-negotiate the agreed price of the plot of land and same was rejected by the 2nd respondent and thereupon Mr. Boampong demanded a refund of the deposit.
The evidence of the 2nd respondent on the events leading to the repudiation of the contract, which is corroborated by the evidence of the appellant's attorney, is at page 166 of the record of appeal. As part of his evidence in chief the 2nd respondent stated thus:-
“On the 15th of January 2006, my wife got a call from Madam Dora Agyeman, telling her that their architect said that the plot was too small for that amount that I was charging them; so we should come to the office to negotiate the value of the land. We booked an appointment on the 16th of January, 2006. On the following day, the 16th of January 2006, I went there with my wife to Mr. Boampong and his wife to their house at community 3. They again said that the plot is expensive so I should reduce it, and I said no; we have already agreed on this amount so I cannot negotiate the value down. In fact Mr. Boampong not with kind words told me, I should shut up and bring his money as fast as possible but I told him that the money he gave me is for a purpose; so unless I sell the plot again in open market before I will be able to pay back the money they have paid as deposit, then we left the office with the intention to look for another buyer.''
Clearly, evidence on the record of appeal reveal that the appellant and the husband Mr. Boampong requested a meeting to re-negotiate the contract price of the plot, which was rejected by the 2nd respondent. There is therefore enough evidence on record that the contract was repudiated by the husband of the appellant, Mr. Boampong who was a party to the contract, as I have found in this judgment. The conduct of Mr. Boampong at the meeting was an attempt to re-open the contract which to all intent and purposes had been concluded and partly performed. By that conduct it was clear that Mr. Boampong did not want to continue with the performance of the contract as he demanded the refund of the deposit paid. The 2nd respondent was thus right to treat the contract as having been repudiated and as such had the right to resell the plot to a new buyer, to enable him refund the deposit as demanded by Mr. Boampong.
The evidence on record makes the case of the 1st and 2nd respondents more probable than that of the appellant and in the circumstances, I am of the considered opinion that the trial court committed no error in finding that the contract for the sale of the plot of land was repudiated by the appellant and the husband. The trial court was thus right in dismissing the claim of the appellant and entering judgment for the 4th defendant on its counterclaim.
In Decro-Wall International v. Practitioners in Marketing Ltd. (1971) 1 W.L.R. 361, Buckley L J, dealing with the issue of repudiation of contracts delivered himself at page 380 as follows:-
''Each party to an agreement is entitled to performance of the contract according to its terms in every particular, and any breach however slight which causes damage to the other party will afford a cause of action for damages; but not every breach, even if its continuance is threatened throughout the contract or the remainder of its subsistence will amount to repudiation. To constitute repudiation the threatened breach must be such as to deprive the injured party of a substantial part of the benefit to which he is entitled under the contract. The measure of the necessary degree of substantiality has been expressed in a variety of ways in the cases. It has been said that the breach must be of an essential term or of a fundamental term of the contract or that it must go to the root of the contract.... I venture to put the test in my own words as follows: Will the consequences of the breach be such that it would be unfair to the injured party to hold him to the contract and leave him to his remedy in damages as and when a breach or breaches may occur? If this would be so then a repudiation has taken place.''
In this appeal, as I have demonstrated with evidence on record, the request for re-negotiations of the contract price was a fundamental breach of the price agreed as a term of the contract for the sale of the land, which as observed had been partly performed, by the appellant and the husband, the very parties who wanted to re-open the contract. The breach went to the root of the contract since the agreed price for the plot of land was an essential term of the contract.
In conclusion, I hold the view that the appellant and the husband repudiated the contract for the sale of the plot of land at community 3, Tema and the trial court rightly so held. The appeal therefore fails and same is hereby dismissed.