DR NANA ADU AKUMIA vs ANGEL ESTATES & CONSTRUCTION
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2019
DR NANA ADU AKUMIA - (Plaintiff)
ANGEL ESTATES AND CONSTRUCTION - (Defendant)

DATE:  11TH MARCH, 2019
SUIT NO:  OCC 74/2018
JUDGES:  HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS:  E. ANAGLATE FOR MATHIAS GOLLO FOR THE PLAINTIFF
JUDGEMENT

On 13th February, 2018, the plaintiff herein issued a writ of summons against the defendant herein seeking the following reliefs:

1. An order for specific performance of the contract entered into with the Defendant on or about the 15th day of August 2011, for the Defendant to construct a three-bedroom house for the Plaintiff, performance of which the Defendant failed and/or refused to carry out.

2. Any other reliefs that this Honourable Court might deem just and equitable in the circumstances.

3. Costs including Counsel’s fees.

 

On 16thMarch, 2018 the defendant entered an appearance through its lawyers. However, it failed or refused to file a statement of defence. In view of this, interlocutory judgment in default of defence was entered against the defendant on the 19th of June, 2018 upon an application by the plaintiff. Costs of GHC 5,000.00 was awarded against the defendant. The matter was adjourned for hearing relating to the order for specific performance and for assessment of damages. When the plaintiff testified, he told the court that he entered into a house purchase agreement with the defendant in August, 2011. Under the terms of the agreement, the defendant was expected to construct a three-bedroom house for him at the cost of Seventy-Five thousand Ghana Cedis (GHC 75,000.00). He stated that he filed an application form which he purchased from the defendant at the price of GHC 50 and also paid a 40 percent deposit of GHC 30,000.00 in conformity with the terms of the agreement on 15th August, 2011. He also stated that on 7th October, 2013 he paid the next installment of 30 percent of the total cost in the amount of GHC 25,000.00 which was more than the required 30 percent. According to him, he subsequently made payments of GHC 5,000.00 on two different occasions i.e. 22nd May, 2015 and 6th July, 2015. The final payment of GHC 10,000.00 was made on 1st March, 2017. The plaintiff tendered all the receipts relating to the payments as well as the receipt issued for the payment of the application forms. He also tendered the application forms in evidence. He stated that the defendant showed him an uncompleted house numbered E28 as his property. He stated that after the full payment, the defendant has failed or refuse to complete the house and hand over the same to him. He prayed the court to order the defendant to complete the house and hand it over to him.

 

No party is entitled to a decree of specific performances as of right. It is a discretionary remedy and subject to well established rules and principles. The Supreme Court, in the case of KWAKU BONSU v AMA AGYEMANG Civil Appeal No J4/10/2012, stated as follows:

“…though the grant of specific performance is never automatic and the courts have always preserved the integrity of their discretion to grant or refuse the remedy. The discretion is however exercised according to well established rules. Specific performance cannot be whimsically denied”.

 

The rules and principles governing specific performance are as follows:

1. There must be a binding contract.

2. Damages must be inadequate.

3. It must be possible for the defendant to comply with the order.

4. There must be an element of mutuality.

 

In the instant case the plaintiff has demonstrated that there is a binding contract between him and the defendant. Per the interlocutory judgment entered in default of defence, the defendant has been held to be in breach of the contract, as it has failed to deliver the three-bedroom house to the plaintiff despite the fact that he has made full payment for the construction of the house. Indeed, the court will not order a contract to be specifically performed if the contract is incomplete or if its terms are uncertain. Thus, in the case of ASARE V ANTWI [1975] 1 GLR 16–24 where the plaintiff expressed interest in buying one of the plots owned by the defendant provided the price was right and the said plot was never identified, the court held that specific performance could not be granted as there was no effective contract between the parties which could be specifically enforced since (a) there was no agreement as to the purchase price and (b) the parties were not ad idem about the subject-matter of their inchoate agreement.

Also, in the case of DJAN v OWOO (1976) 2 GLR 401, there was an oral agreement between the parties for the purchase of the house in dispute. The plaintiff made two advance payments amounting to 2,500 cedis. It was held that the payment of part of the purchase price was a sufficient act of part performance. Accordingly, a decree of specific performance was granted on the basis of the part performance.

 

Specific performance has been the primary remedy for breach of contract to sell land. This is because the law presumes that damages are inadequate remedy in relation to land. The rationale behind this presumption is that land is considered to be inherently unique and therefore specific performance is responsive to this attribute of it ensuring that a purchaser gets what he contracted for and not an inadequate monetary substitute. In SUDBROOK TRADING LTD v EGGLETON [1983] 1 AC 444 at 478, Lord Diplock explained this rationale as follows:

“Since if they do not acquire the fee simple they will have to pay that price, then damages for loss of such bargain would be negligible and, as in most cases of breach of contract for the sale of land at a market price by refusal to convey it would constitute a wholly inadequate and unjust remedy for the breach. That is why the normal remedy is by decree of specific performance by the vendor of his primary obligation to convey, upon the purchaser’s performance or being willing to perform his own primary obligations under the contract”.

Amissah JA sitting in the High Court of Ghana expressed the same view in AHUMAH V AKORLI (No. 2) [1975] 1 GLR 473 at 480, where he stated:

“But what is the agreement arrived at between the parties which this court is asked to enforce specifically? It is an agreement over the transfer of land against the fulfilment of a condition. Agreements involving land have been held to be eminently suitable for enforcement by this equitable remedy, it often being impossible to put the injured party into a comparable position by the award of damages as compensation.”

 

The inadequacy of damages principle can be applied in this case since it involves the purchase of landed property. From the circumstance, the plaintiff will not be adequately compensated by the award of damages alone. Hence specific performance is an effective remedy.

From the evidence on record, the property is at an advance stage of completion. Therefore, the defendant company being a going concern can comply with the order for specific performance. It is also apparent that there is mutuality among the plaintiff and defendant as each party to the agreement is entitled to the relief. The remedy could be obtained against the plaintiff if he had failed to fulfil his obligation to pay the defendant under the contract.

For the foregoing reasons, the application for an order for specific performance is granted. Is the plaintiff entitled to the award of damages?

 

The law is that general damages lie for every infringement of an absolute right. The Supreme Court held in the case of Delmas Agency Ghana Ltd vrs Food Distributors International Ltd [2007/2008] SCGLR 748, 760 thus:

‘‘General damages is such as the law will presume to be the probable or natural consequences of the defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only general damages are awarded.

Where a plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not he is not entitled to anything unless general damages are also appropriate.’’

 

In the instant case, the plaintiff failed or refused to lead evidence to establish specific losses. However, general damages are appropriate in the circumstance as of right.

I hereby enter final judgment in favour of the plaintiff. I award general damages of GHC 15,000.00 in favour of the plaintiffs. I also order the defendant to complete the property and deliver the same to the plaintiff within three (3) months from today. Additional costs of GHC 4,000.00 awarded against the defendant for the prosecution of the case subsequent to the entry of interlocutory judgment.

 

SGD. 

DR. RICHMOND OSEI-HWERE 

JUSTICE OF THE HIGH COURT

 

                                                                                

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