IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
DR. MARK D. KANKAM - (Plaintiff/Appellant)
TRASACCO ESTATES DEV. CO. LTD.- (Defendant/Respondent)
DATE: 9TH MARCH, 2017
SUIT NO: H1/122/13
JUDGES: MARIAMA OWUSU J.A. (PRESIDING), WELBOURNE (MRS) J.A., CECILIA SOWAH J.A.
EMMANUEL AMOFA WITH AFIA K. NTIM FOR PLAINTIFFS/APPELLANTS
KWAME A. TANNOR FOR DEFENDANT/RESPONDENT
MARGARET WELBOURNE (MRS.) JA
This is an appeal against the decision of the High Court dated 10th January, 2011. In this appeal, the parties will be referred to as Plaintiffs and Defendants. The Background
The Plaintiffs are husband and wife who are ordinarily resident in the USA. They averred that sometime in 2001, they purchased a piece of land known as Plot No. 109, Trasacco Valley, Adjirigano from the Defendants for the purpose of constructing a dwelling house.
In October, 2007, the Defendants agreed to construct a “Tailor - Made House” (the design of which was provided by the Plaintiffs) for a value in the sum of US$517,000 on the said Plot No. 109.
Pursuant to the said agreement, the Plaintiffs remitted the sum of US$190,000 (inclusive of a non-refundable deposit of US$20,000) in or about November, 2007 to the Defendants towards the construction of the said house. The Plaintiffs stated that the Defendants failed to acknowledge receipt of the remitted sum of UD$190,000 until February 28, 2008.
It is the case of the Plaintiffs that, they negotiated for the second instalment of about UD$90,000 to be put on hold pending Plaintiffs visit to Ghana in the month of June and July, 2008. The Defendants increased the captioned works by 25% on the grounds of delays in the execution of the works which the Plaintiffs disputed.
The Plaintiffs contended that while haggling over the revised price, the Defendants unilaterally terminated the agreement and proceeded to allocate Plot No. 109 to a third party in spite of protest by the Plaintiffs and their lawyer. The Defendant persisted in its action which compelled the Plaintiffs to institute the instant case at the High Court claiming the following reliefs:
“1. Specific performance of an agreement made on/in October, 2007 for construction or erection of “Tailor Made House” on Plot No. 109, Trasacco Valley, Adjiringano, in the Greater Accra Region of Ghana.
2. An injunction restraining the Defendant whether by itself or its servants or agents or otherwise, however from doing any act or erecting any structure or building or otherwise, disposing of Plot No. 109, Trasacco Valley, Adjiringano other than to the Plaintiffs.
3. Alternatively, damages for breach of contract.
4. Further or other reliefs”.
The Defendants’ case was that, initially, the parties agreed to the sale/purchase of a piece of land known as Plot No. 115, Trasacco Valley, Adjiringano, Accra. By mutual consent this agreement was cancelled as result of which by an Offer Letter dated 21st November, 2006, the Defendant offered to sell to the Plaintiff the property known as Plot No. 109, Trasacco Valley, Adjiringano, Accra.
The Defendant denied that the contract sum of the “Tailor Made House” was US$517,000. It contended that the sum was US$628,185 which was made up of the land, architectural fees, and the actual cost of construction of the house. It was the view of the Defendants that the sum of US$517,000 was an invoice for the actual construction of the house and did not constitute the contract for the sale of the property.
The Defendant also denied that the remittance of the said installment was suspended to abide conclusion of negotiations between the parties.
According to the Defendants, the Plaintiffs were bound to comply with their obligations under clauses 4 and 12 of the Agreement despite the decisions of the Plaintiffs regarding the position, colour scheme or modifications of the house.
The Defendant further alleged that it requested for an upward review of 25% of the contract price as a result of the delay occasioned by Plaintiffs failure to confirm construction details.
The Defendants contended that it lawfully terminated the Agreement dated 21st November, 2006 because of the Plaintiffs’ failure to pay the second installment of US$89,180 which fell due on June 15, 2008. Also the Plaintiffs failed to confirm information necessary for commencement of construction of the property.
The Defendants averred that following the termination of the agreement, it advertised the property on the market and subsequently sold it to a third party on November 23, 2008. Construction began in December, 2008 after concluding an agreement with the 3rd party.
The Defendants contended that the Plaintiffs were not entitled to specific performance because the letter of September 23, 2008 terminated the transaction on the sale of the property, therefore there was no agreement upon which an order for specific performance could be made.
The Defendants therefore by way of Counterclaim sought the following reliefs:
1. A declaration that the failure of Plaintiffs to pay 2nd installment in the sum of US$89,180.00 that fell
due on 15th June, 2008 as well as confirm vital information for commencement of construction works amounted to breach of the Agreement dated November 21, 2006.
2. A declaration that the termination letter dated September 23, 2008 rendered the agreement dated November 21, 2006, no longer enforceable.
3. An order for the recovery of the sum of US$51,593.00 representing amount due the Defendant upon termination of the agreement for the sale of property at Trasacco Valley dated November 21, 2006.
4. An order that the sum adjudged to Defendant be set off against the sum paid to Defendants by Plaintiffs.
5. Damages for breach of contract for the sale of property at Trasacco Valley dated November 21, 2006.
After the trial, the Judge dismissed the Plaintiffs Appellants’ claims and ordered the refund of moneys paid in advance by the Plaintiffs to the Defendants less the sum of US$20,000 paid as non-refundable deposit.
The trial Judge dismissed part of the reliefs of the counterclaim and entered judgment for the Respondent as part of the counterclaim. The Appellants have appealed on the following grounds as found on pages 300-301 of the record:
The learned trial judge erred in holding that there was only one contract governing the relationship between the parties.
The learned trial judge erred in placing reliance on a deed whose purported execution had been discredited.
Portions of the judgment were against the weight of evidence.
The leading Judge author, Aharon Barak explains in his book titled; “Purposive Interpretation in
Law”. At page 329, he writes:
“A contract is an integrative framework. Its different parts are intertwined and intermingled. Its various branches influence each other. In interpreting a contract, a judge should, on one hand, view it holistically, as a whole, but on the other hand, evaluate the connections between its various provisions, as part of the attempt to formulate the parties’ joint intent.”
This case calls for the interpretation of the terms of the contract entered into by the parties in this case. Ground (a)
In order to appreciate whether or not there was one contract or more governing the relationship between the parties, a perusal of the records of appeal reveals at pages 302 and 303, that the Defendants offered a piece and parcel of land described as Plot No. 115 for residential purposes. (Exhibits A and A1).
Learned counsel for the Plaintiffs submitted that from the said exhibits particularly paragraphs 4 and 5 of Exhibit A1, the contract for the sale and purchase of Plot 115 was not contemporaneous with the construction of a house. According to him, the construction of a Tailor-Made House design or the Defendant’s house types was a separate transaction divorced from the acquisition of the plot. Counsel cited the case of Banahene vrs Adinkra  1GLR 346 where the Court of Appeal held as follows:
“Where the evidence of one party on an issue in a suit was corroborated by a witness of his opponent, whilst that of his opponent on the same issue remained uncorroborated even by his own witness, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason (which must appear on the face of the judgment) the court found the corroborated version incredible or impossible”
Other cases cited by learned counsel on the same point were Manu vrs Nsiah [2005-2006] SCGLR 25; Twrifo Dua VIII  GLR 63; Osei Yaw vrs Domfeh  GLR 418 at 423; Asante vrs Bogyabi  GLR 232 and Ussher vrs Kpanyili [1989-90] 2 GLR 13.
Learned Counsel for the Plaintiffs further opined that there were two separate and distinct transactions. Interestingly, counsel for the Plaintiffs in his further submissions (at page 9) of his written submission paragraph 23 stated thus:
“While acknowledging receipt of down payment by the Appellants of plot number 115, the Respondent was unsure about the proximity of plot number 115 to the golf course, which was the expectation of the Appellants. In that regard, the Respondent offered to the Appellants two plots which in the estimation of the Respondent were specifically allocated as “Golf Course Frontage plots and they are guaranteed to be adjacent to the golf course” (Please refer to Exhibit D1 in Appeal Record at page 310)”.
Counsel further stated that as a sequel to this information, the Defendant confirmed the rate of the adjacent plots to the golf course in Exhibit ‘E’ (found at page 311 of the record). The Plaintiffs (Appellants), found the latter offer of the Defendant attractive and agreed with the Defendant that payments already made to the Defendant regarding plot number 115 should be credited to the Plaintiffs towards swapping plot number 115 for plot number 109. Therefore, by mutual agreement, the parties cancelled the contract relating to plot number 115 and substituted it with plot number 109.
These events were confirmed by the Defendants’ representative in her evidence in chief at page 215 of the record in the following terms:
“It is our respectful submission that the contract for the purchase of plot number 115 applied mutatis mutandis to plot number 109 except for the location and the rate payable in that regard”
By mutual agreement, the parties cancelled the contract relating to Plot No. 115 and substituted it with Plot No. 109. At page 215 of the record, the following discourse took place during the Defendants’ evidence in chief:
“Q: What happened from that time?
A. Around the year 2006, the Plaintiffs approached us and said that they would like to have their property built on an alternative plot citing they had friends on the adjacent area that was nearer to them.
Q. And what happened when that proposal made?
A. We agreed then that we will terminate that agreement for plot No. 115 and enter into a new agreement for a property on plot No. 109 and we also agreed that we would take any deposit paid up to that time against plot No. 115 and transfer them as deposit against Plot No. 109”.
An examination of the Record of Appeal shows that indeed there were several discussions between the parties on what the subject matter of the agreement was.
There is no dispute from the record that it was initially an agreement to purchase a plot; but in my view the question one may ask which will settle the issue is “What was the objective of purchasing the plot?” the answer is not far-fetched. The purpose of acquiring Plot No. 115 which was mutually exchanged for Plot No. 109; was for the building of a residence near the Golf Course and also to be near to their friends, the Gaisies’ in particular.
There is no gainsaying the fact that the Plaintiffs from their background (their professional status in the USA) had good taste and were quite definite about their choices.
The record also shows that this quest for perfection as exhibited in their professional lives was translated or made to bear in their choices in choosing a design of their choice at the Defendants’ Estate.
The relationship between the parties from the record, commenced as far back as the early 2000’s - (2003 or so) until 2006 November 21 where they had “a provisional contract” in the words of learned counsel for the Plaintiffs.
Therefore from the foregoing we find that all the pieces of evidence on the record culminated into a single contract. Thus this ground of appeal is answered in the affirmative.
In my view, the sale of the plot and indeed any plot sold by the Defendants from the record of appeal is indivisible from the house.
At page 314 of the Record of Appeal, the property is defined as:
“Subject to clause 24, a Tailor-Made House on a piece of land numbered as Plot number 109 covering an approximate area of 2,586 square meters situate at Trasacco Valley Adjiringanor in the Tema District of the Greater Accra Region of the Republic of Ghana, and belonging to Empire Builders Ltd. Who has given us the authority to dispose of the said piece of land in accordance with the terms and conditions of this offer (hereinafter called the “Property”.
Therefore, from the totality of the evidence on the record, the learned trial judge cannot be faulted for concluding that the contract was a single contract namely, an offer made 21st November, 2006 – of a property to be built on Plot No. 109 – which offer was accepted on 8th November, 2007 by the 2nd Plaintiff executing the acceptance.
I shall take grounds (b) and (c) together since they all touch on the weight of evidence.
It is trite that where a party is of the view that the judgment is against the weight of evidence, there is a burden imposed on him to substantiate the allegation. In Tonado Enterprise & ors vrs Chou Sen Lin [2007-2008] SCGLR 135 the court stated ‘’when a party in a ground of appeal states that the judgment is against the weight of evidence he imposes upon himself the onus of satisfying the appellate court that the evidence led in the trial was not such as to warrant the findings made on it”.
In the instant case the Plaintiffs are to adduce sufficient evidence to discharge the burden placed on them. In Tuakwa v Bosom [2001-2002] SCGLR 61 where the court speaking through Sophia Akuffo (JSC) held that: “An appeal is by way of rehearing particularly where the Appellant alleges on his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case, it is incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that on a balance of probabilities, the conclusion of the trial judge are reasonably or amply supported by the evidence”.
It is also well settled that where an Appellant is complaining against the weight of evidence, the Appellant is saying that certain pieces of evidence were wrongly applied or that there are some pieces of evidence if applied properly will result in a different conclusion.
Learned counsel for the Plaintiff in this case referred the court particularly to Effisah vrs Ansah [2005-2006] SCGLR 943 where it was held at holding 5 as follows:
“It was well-settled that an appellate court might interfere with the findings of a trial tribunal where specific findings of fact might properly be said to be wrong because the tribunal had taken into account matters which were irrelevant in law; or had excluded matters which were crucially necessary for consideration; or had come to a conclusion which no court, instructing itself in the law, would have reached; and where the findings were not inferences drawn from specific facts, such findings might property be set aside. As a corollary, a second appellate court had power to restore primary findings of fact and right conclusions which might have been unjustifiably set aside by a first Appellant court”.
What were some of the pieces of evidence that counsel for the Plaintiff alleges were wrongly evaluated or misapplied by the trial judge?
Counsel for the Plaintiffs took issue with Exhibits ‘1’ and ‘1A’; Exhibits ‘M’, ‘F’, ‘L’ among others. In his view, these exhibits were wrongly assessed and evaluated by the trial judge thereby occasioning a miscarriage of justice to the Plaintiffs. I shall closely examine these exhibits complained of shortly.
Exhibit ‘A1’ found on page 303 of the record of appeal is an offer for sale of Real Estate at Trasacco Valley. Particularly the offer is for the sale of Plot No 115 covering 3,528 square metres for US$88,200 to be paid in full by 31st January 2001. It is further stipulated on the Exhibit that: “Subject to completion of the house, the keys to the house shall be furnished upon receipt of full payment for the house and plot. You shall not be allowed to use the house or plot otherwise than for residential purpose” This offer is valid for 30 days from 8th September 2000.
On page 305 of the record, Madam Cinzia Taricone Morris, informed the Plaintiffs, particularly the 2nd Plaintiff, that the offer was still open and that they could pay US$60,000 and defer the US$28,000 for two years when construction begins on the house.” “By purchasing the land now you not only guarantee the plot of your choice but also that you will not be affected by any price increases that occur in the next two years. This was dated June 2001.
Following this, Dr Charity Kankam, 2nd Plaintiff, per Exhibit B on page 306 accepted the offer. Exhibits C and C1 are receipts of the US$60,000 paid by the Plaintiffs to the Defendants (see pages 307 and 308) of the record).
All through the evidence on the record, from Exhibit F found on page 313 to 350 , several emails and documents indicated that an offer for sale agreement as well as professional services agreement were sent to the Plaintiffs by the Sales Director of the Defendant company, Cinzia Taricone Morris.
Exhibit ‘L’ is found on page 361 -362 of the record. This Exhibit depicts the discussions of the Plaintiffs’ comments and request for further clarification by the Defendant’s representative.
Then at page 366 of the record, we find Exhibit ‘M’ which is crucial in this matter is entitled Invoice for a Tailor-Made House. It is dated 19th October 2007. The cost of the house is stated as US$517,000. Structural Engineering and Mechanical scheme at 4% is stated at US$20,680, on site supervision at 2.5% is stated as US$12,925. On this same Exhibit there is a payment plan which is of essence in the contract.
1st instalment of US$190,000 to be paid in full prior to the commencement of the construction.
2nd instalment of US$89,180 to be paid in full by 15th June 2008
3rd instalment of US$271, 425 to be paid in full upon completion, inspection and prior to handing over.
Indeed, a close study of this Exhibit M juxtaposed with Exhibit 1 and 1A show that there are serious discrepancies in the payment plan as well as the purchase price. Whilst Exhibit M states the purchase price of the property as US$517,000., Exhibit 1 states the price at US$628,185.
The paradox which learned counsel sought to unravel was why or how the Plaintiffs accepted and executed the contract with the price of US$628,185 in Exhibit 1A? Learned counsel imputed ill motives on the part of the Defendants in the production of Exhibits 1 and 1A. However, the Plaintiffs themselves agreed that they had the benefit of an attorney before the execution of the acceptance. Therefore could the trial judge be faulted in this instance? The Evidence Act, NRCD 323 section 25 (1) provides that: “Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest”.
Counsel was particularly unhappy with the proposed increase of 25% in the cost of construction by the Defendants. The Defendant referred us to exhibit 6 on page 409 of the record where the Defendant sought to vary the purchase price from US$517,000 to US$628,185. Indeed by Exhibit 7 found on page 414 of the record the Plaintiffs disputed the said increase. At that same page which contains the emails between the Defendant’s sales director and the 2nd Plaintiff, the correspondence reveals that whereas the Defendant was alluding to the delay in payment of the 2nd installment by the Plaintiffs as well as the delay in confirming the construction plans or design by the Plaintiffs, the Plaintiffs on the other hand complained about the increase in the purchase price and also the fact that they had indicated that they would make the payment when they came to Ghana. From all these pieces of evidence one could see that the parties were not ad idem on some aspects of the agreement.
It was in the light of the above that Counsel for the Plaintiffs submitted that this was a fit and proper case for the court to interfere with the conclusions reached by the trial court.
Counsel further referred to the case of Tema Oil Refinery vrs African Automobile Ltd.  2
SCGLR 907 at 921 where Justice Dotse JSC stated thus:
“What should be noted is that, in cases like the instant one, where in addition to the viva voce evidence, a mass of documentary evidence was tendered during the trial, the second appellate court such as this court is virtually in the same position as the trial court. This is because most of the findings of fact have been made through a perusal of the documents and we have been put in the same position as the trial court to assess totality of the evidence”.
Counsel therefore invited the court to appreciate the mass of documentary evidence adduced by the parties to make a final determination of the parties’ rights.
Further, counsel invited the court for the above reasons to reverse the judgment of the court below. Counsel for the Defendant filed a belated submission on 9th February, 2017 pursuant to the order of the court on 6th February, 2017. Counsel for the Defendant argued that Exhibit ‘M’ does not constitute a contract for the sale of the property. The offer for the sale of the property dated November 21, 2006 had been issued to the Plaintiff and it was not until November 8, 2007 that the Plaintiff accepted the offer. The record reveals that, Exhibit ‘M’ was issued (this Exhibit is entitled An Invoice) when the Plaintiffs had received Exhibit ‘1’ and were still considering whether or not to accept Exhibit ‘1’.
Counsel further referred to Section 2 and 10 of the Conveyancing Act, 1973 (NRCD 175), a contract for the sale of land must be in writing signed by the person against whom the contract is to be enforced or his duly authorized agent, Ghana Land Law and Conveyancing, Second Edition by B J Da Rocha and CHK Lodoh page 347. Further, Counsel cited in support of this principle the following cases:
Addo vrs Nartey  2 GLR 318, Djan vrs Owoo  2GLR 401, Asare vrs Antwi  1 GLR 16.
NTHC Ltd. Vrs Antwi  SCGLR page 117, Headnote 1. Deegbe vrs Nsiah & anor [1984-86] GLR page 545, C A Anane vrs Donkor  GLR 188 and Kwame vrs Atuahene  GLR 136
According to Counsel for the Defendant therefore, “It was not surprising, indeed it was to be expected, when Counsel for Plaintiffs in his written address filed on 17th November, 2010 at page 3 paragraph 2 stated as follows: “By October, 2007, the parties had reached a provisional contract price of US$517,000.00 for the construction of their “Tailor-Made House” and remitted US$190,000.00 to the Defendant …”
We find it significant to note from an examination of the record that the initial payment was made on 30th July, 2003. The contract in respect of plot No. 109 is Exhibit ‘1’ dated 21st November, 2006 which was accepted on November 8, 2007. Therefore, as at October 19, 2007, there was no contract whatsoever for either construction of “Tailor-Made House” or the sale of Plot No. 109.
Indeed it is not in dispute that it was on November 8, 2007 when the Plaintiffs accepted the offer for sale of the property that a binding contract was created between the parties.
Counsel further submitted that Before Exhibit ‘1’ was signed by 2nd Plaintiff, Exhibit ‘L’ and this appears at pages 361-365 of the record of appeal, which was a draft copy was delivered to the Plaintiffs for their comments. They delivered their comments to the Defendant and sought clarification as to what the definition of property was. The Defendant further explained to Plaintiff that the property under the offer for the sale of property meant land and the house and that the two were inseparable. The following cross-examination of the 2nd Plaintiff found at pages 186-187 of the Record illustrates clearly what constitutes the subject matter; the property.
Q. I put it to you that the Defendant offered to you sale of property to be built on plot no. 109.
A. Defendant offered us plot to be purchased and paid for which was on plot no. 109.
Q. Could you please look at Exhibit ‘E’. From this correspondence the Defendant made it clear to you that you were not buying plot no. 109 separately from the building of a property for you.
A. That was never the issue; we purchased that plot from Cinzia.
Q. But Dr. Kankam, what you read from Exhibit ‘E’ shows clearly that the plot and house were one and the same transaction.
A. I am sorry that is not correct.
Q. Look at Exhibit ‘L’ and tell this court what it is.
A. It is a letter from Cinzia Taricone Morris to Dr. Mark Kankam headed comments of Contract.
Q. It was a reaction in respect of certain comments you made about the contract for the sale of the property, is that correct.
Q. Look at Clause 1 of Exhibit ‘L’, it is correct that in your comments, you wanted clarifications about what the property consisted of.
Q. And the Defendant addressed the issue in Exhibit ‘L’, is that correct.
A. I see that there is a comment here but…
Q. What did the Defendant tell you about the query about the definition of property?
A. Property defined in this Clause is a Tailor-Made House on Plot No. 109, the house and the plot constitutes the property.
Q. You went into this transaction with the understanding that the house and the land constituted the agreement on the transaction.
A. Initially, yes, but I gave the final paper to an attorney and it was defined that the land was different from the property.
The Defendant has contended at the trial that the Plaintiffs failed to satisfy the payment obligation set out in the Contract for the sale of property and hence terminated same.
The question is, did the parties enter into the contract for the construction of a Tailor – Made House at Trasacco Valley on Plot No. 109 and if so when was the contract executed?
The Defendant’s case is that by an offer for the sale of property dated November 21, 2006, it delivered to the Plaintiffs contract for the sale of Tailor-Made property on plot no. 109. This was after an initial agreement to construct property on plot no. 115 had been cancelled by the mutual consent of the parties.
In G.H Treitel’s “The Law of Contract”, 8th Edition, page 689, a condition is defined as: “A term of a contract which is so essential to the very nature of the contract that its breach entitles the injured party to rescind the contract and sue for damages.”
A breach of contract occurs where a party to the contract fails to perform the contractual terms as agreed by the parties. Page 307 of the Record of Appeal which contains the offer for sale of property at Trasacco Valley, under final instalment term stated “your obligation to pay the purchase price in accordance with the aforementioned payment terms is of the essence of this agreement”.
The failure of the Plaintiffs to make payment for the second instalment on the due date i.e. 15th June
2008, until 23rd September, 2008 (3 months) when the contract was terminated is a clear manifestation of a breach of the contract as agreed upon under clause 30 (found at page 394 of the record) with the heading: Termination of the Agreement. “The agreement shall automatically terminate upon the occurrence of any of the following”.
“(a) You fail to pay any part of the purchase price by the fourteenth day after such amount became due”.
In the instant case, time was of essence to the contract likewise the payment of the purchase price. The default in payment and the delay constituted a breach of the term of the contract, and for that reason the Defendant/Respondent were justified in terminating the contract on the basis of a breach of the contractual terms by the Plaintiff/Appellant.
In Social Security Bank Ltd v. CBAM Services Inc. [2007 -2008] 2SCGLR 894 it was held that a breach of a fundamental or essential term is one of the grounds upon which a contract may be terminated. Where an allegation that a term is essential or fundamental is disputed, a court is bound to determine the issue as a primary fact. A breach of an obligation that would of necessity call for an election on the part of an innocent party to exercise his right of determination in the contract must fit into one of the following: (i) that which goes to the whole root of the contract and not merely part of it; or (ii) that which makes further performance impossible; or (iii) that which affects the very substance of the contract.
(3) Time was of the essence of a contract (a) where time was an essential element as distinctly spelt out in the agreement, or (b) where the circumstances clearly indicated that time was of material consequence, or (c) where the nature of the land, viz a grocery shop, made time an inseparable element. Wherever those three categories did not apply, equity would treat the circumstances as generating a time necessity where it did not occasion substantial injustice thereby, or would allow for reasonable notice to extend the time requirement.
In the instant case, therefore, time became an essential ingredient immediately Exhibit ‘A’ was executed if it had not been so before. The date of completion within a year was liberal and reasonable.
See also the cases of United Scientific Holdings Ltd v Burnley Borough Council  AC 904 at 943-944,  2 All ER 62 at 82-83 HL, per Lord Simon; British and Commonwealth Holdings plc v Quadrex Holdings Inc  QB 842 at 857,  3 All ER 492 at 504, CA summarizes the modern law of contract as far as time is concerned as follows: Time won’t be considered to be of the essence, except in one of the following cases (1) the parties expressly stipulate that conditions regarding time must be strictly complied with; or (2) the nature of the subject matter of the contract or the surrounding circumstances show that time should be considered to be of the essence: or (3) a party who has been subjected to unreasonable delay gives notice to the party in default making time of the essence.
In NTHC Ltd. vrs Antwi  SCGLR page 117, holding 1 states that:
“An offer is an indication in words or by conduct by an offeror that he or she is prepared to be bound by a contract in the terms expressed in the offer, if the offeree communicates to the offeror his or her acceptance of those terms”.
“Accordingly, the offer has to be definite and final and must not leave significant terms open for further negotiation; and by the words “significant terms” was meant terms that were essential to the bargain contemplated”. It is important to emphasize the proposition that the mere acceptance of an offer is sufficient to turn the offer into a contract, if there is consideration for it, together with an intention to create legal relations”.
The contractual term regarding what constituted the property was settled by exhibit L which can be found at page 280 of the record of appeal. In the trial judge’s judgment, he stated that Exhibit ‘L’ contained responses to queries made by the Plaintiffs with respect to the new agreement. It for instance defined Property in clause 1 of the agreement to mean “a Tailor-Made House on Plot 109 - the house and land constitute the building’’.
From the foregoing, it can amply be seen that the terms in exhibit 1 and 1A constituted the only contract pertaining to the purchase of the property which is binding upon the parties.
The following cross-examination of the 2nd Plaintiff confirmed this position as follow:
“Q: Take a look at this document. Did you sign that?
A. Yes, that is my signature.
Q. I wish to tender the agreement through the 2nd Plaintiff.
Q. Prior to the signing of these Exhibits (1 and 1A), you had engaged in a series of correspondence. Is that correct?
A. Yes, and visits as well”.
Further, both parties are ad idem on the point that the Plaintiffs failed to pay the second tranche in the sum of US$89,150.00 to the Defendant on the due date. The Plaintiffs agreed that in the event of their failure to pay on due date as in Exhibit ‘1’, the Defendant had the right to terminate the contract.
The Plaintiffs however, stated that they had conversation with the Defendants to pay same when they got to Ghana in August/September that year.
Following the termination, the Defendants put the property on the market and sold it to a third party
– Definitely that third party’s rights have accrued on the property and this also makes the claim for specific performance out of the reach of the Plaintiffs. The third party acquired interest in Plot No. 109 without notice. In Deegbe vrs Nsiah & anor [1984-86] 1 GLR 545; the court held that when there was no concluded contract between the parties, a court could not grant an order for specific performance.
The court further held that: “Even if there was a concluded contract, since a third party without notice had acquired an interest in the house in dispute, the equitable remedy of specific performance would not have inured to the benefit of the Plaintiff; the only remedy available in him would have been an action for damages but the Plaintiff did not claim that relief and on the facts he would not have been entitled to any”.
In the case of Smith vrs Blackson substituted by Baffour and anor, [2007-08] SC GLR 374; the SC held as follows:
“Even if there had been an enforceable agreement to sell the disputed house, and even if there had been substantial part-performance of such an agreement meriting an order for specific performance, the effect of the unambiguous message as embodied in Exhibit ‘1’, on such a partly performed agreement, was that the parties to the contract had decided, for one reason or the other, that their intended sale of the property should be ended”.
From the fore going, particularly on the issue of third party rights having accrued, we find that the Trial judge was right in denying the Plaintiffs their reliefs for specific performance and ordering the payment of the alternative relief namely refund of their deposits totaling US$267,580,00 paid less US$20,000.00 for the non-refundable deposits.
On the Cross Appeal by the Defendant, we find from the record that the trial judge had referred to the evidence that the Defendants sold the property to a third party and thereby lost nothing from the transaction. Furthermore, the judge awarded them the sum of US$20,00.00, being the non-refundable deposit (treated as an offset). Therefore, the learned judge cannot be faulted in his conclusions on this point and we accordingly affirm it.
The judge stated at page 298 of the record as follows:
“I concede that the Defendants would have been entitled to damages albeit normal under Common Law but any such compensation has been subsumed and taken care of under the restitution provision aforesaid”
We do not see the need for any further damages to be awarded the Defendant against the Plaintiffs, and we refuse that claim.
We entirely agree with that conclusion. The cross appeal is therefore dismissed. No order as to costs