COLLINS APPIAH - (Plaintiff)
EYIA KYEI BAFFOUR - (Defendant)
DATE: 29TH JULY, 2016
SUIT NO: E1/109/2015
JUDGES: ALEXANDER OSEI TUTU J. SITTING AS JUSTICE OF THE HIGH COURT
KWAME DEI TUTU FOR THE PLAINTIFF
STEVE GRAY FOR THE DEFENDANT
I believe the Plaintiff might have learnt some lessons from the above as he approaches this court for a remedy. Apparently, the defendant was in dire need of funds to pursue his political ambition and the Plaintiff was prepared to buy his uncompleted building at Mateheko near Afienya to enable him raise the funds. Believe it or not, the facts of this case are far from complex. After the plaintiff has paid the initial installment, the defendant decided not to sell the house again. Apparently, defendant’s wife had found out about the sale and objected to it. Defendant informed the Plaintiff that he was no longer selling the house and was prepared to refund the sum paid with reasonable interest. It is at the heels of these facts that the Plaintiff initiated his writ in this court on 3rd June 2015 for the following reliefs:
a. An order of specific performance for the defendant to yield vacant possession and hand over the uncompleted 8 bedroom house situate and lying at Mateheko, near Afienya as agreed upon.
b. An order of perpetual injunction restraining the defendant, his agents, assigns, or servants, from selling, alienating, transferring or dealing in any way with the said property.
c. An order directed at the Defendant to formally execute an assignment in favour of the plaintiff in respect of the uncompleted 8 bedroom house situate and lying at Mateheko, near Afienya as agreed upon within a time frame stipulated by the court.
d. Any further orders as the honourable court may deem fit.
Defendant entered an appearance pursuant to service by substitution of the writ on him. In defending the suit, he later amended his statement of defence. At the close of pleadings, the issues set down for determination by the court were:
i. Whether the sale agreement in respect of the property was rescinded by the defendant for prompt payment by the plaintiff in accordance with the parties prior’ agreement or upon the objection to the sale by the defendant’s wife.
ii. If it was, whether the payment of the second installment was consequent to or prior to the rescission of the agreement.
iii. Whether the purported contribution by the defendant’s wife to the property could render the agreement impeachable.
iv. Whether the plaintiff is entitled to his claim.
At the directions stage, the court asked the parties to file their witness statements. This was duly complied with. The plaintiff testified personally without calling any witness in support of his case. When it got to the turn of the defendant, he also testified and called his wife as his only witness. Plaintiff’s decision not to call any witness is not strange to the law. It is trite that a trial of fact can decide an issue or a case upon the evidence of one party. See Takoradi Floor Mills v. Samir Faris [2005-2006] SCGLR 882; Clipper Leasing
Corp. v. A.G. & Anor. , Civil App. No. J4/40/2015, dated 9th March 2016, S.C. (Unreported) and Attorney General & 10 Ors. v. Anthony & 2 Ors.  86 G.M.J. 192, C.A. @ 196.
What plaintiff mainly canvassed in his evidence was that the defendant offered the uncompleted building to him for GH¢130,000.00 and it was agreed he paid in three installments. He applied to his Bankers for a loan to buy the property. He contends that the defendant after benefitting from the money in funding his political campaign, which he eventually won, started frustrating the sale. Defendant on his part claimed he did not consult his wife before he decided to sell the property to the Plaintiff and the sale of the building could threaten his marriage. He asserted that though he personally acquired the land, the construction on it was done with the support of the wife. His wife appeared in court to confirm that she jointly owns the property with the defendant.
The following facts were undisputed:
i. That the Defendant has his sole name on the title deed in respect of the land in dispute.
ii. That the defendant sold the property at a time he was hard pressed financially to raise money for his political campaign.
iii. That the parties agreed on the sum of GH¢130, 000.00 as the price for the sale of the disputed property at Mateheko.
iv. That the plaintiff did not pay the last installment before coming to this court.
WHO OWN (S) THE PROPERTY IN DISPUTE?
It is the case of the defendant that although he solely acquired the land, his wife contributed to the construction and so has an interest in the property. The contribution of his wife was in the form of the purchases of the building materials like cement, iron rods etc. and her general supervision of the project. It was further his case that his wife paid the artisans who constructed the building. In support of his assertion, he called the wife as a witness to corroborate his evidence. Because the Plaintiff denied that the uncompleted building in dispute belongs to the two couple, the defendant and his only witness, DW1 were expected to lead evidence to demonstrate that indeed the two owned the property. Unfortunately, their assertion was just bare. A court of law requires proof and not a mere assertion or denial, once, a party assumes the legal burden. In the case of Majolagbi v. Larbi  GLR 190, it was held that:
“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some way e.g. by producing document, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence and circumstances from which the court can be satisfied that what he avers is true.”
Similarly, in Marian Obeng Mintah v. Francis Ampenyin; Civil App. No. J4/18/2013, dated 25th March 2015, S.C. (Unreported), Akamba JSC could not understand why a woman claiming to have contributed to the construction of a building could not lead convincing evidence in support of her claim. The learned Judge held:
“… that all the works she claimed to have undertaken in contribution to the building such as plastering the outer building and the floor, ceiling works, electrical wiring and provision of electricity, provision of water into the premises are all work items capable of proof either by receipts of specific purchases or by corroborative testimony of artisans who carried out the works and what charges or payments were made.” See also: Bonsu v. Kusi  26 G.M.J. 20, S.C. @ p. 70, per Anin Yeboah JSC and R.T. Briscoe (Gh.) Ltd. v. Preko  GLR 322.
Adducing evidence to prove that the couple jointly owns the property becomes even more crucial when the presumption seems to be against them. The defendant having admitted that he solely acquired the land and has his sole name on the title deeds, he is seen by the law to be the sole owner of the property. The law generally is that he who owns the land owns anything on it and almost all the definitions given by statute, text writers and judges emphasize the point. In the case of Dugbenu & 3 Ors. v. Presbyterian Church  85 G.M.J. 184 @ 200, Acquaye JA held:
“Land is described as bare and anything which stands on it.”
Land is defined by section 45 of the Conveyancing Act, 1975 (NRCD 175) to include “land covered by water, any house, building or structure whatsoever, and any interest or right in, to or over land or water.”
Black’s Law Dictionary defines land as “An immovable and indestructible three dimensional area consisting of a portion of the earth’s surface, the space above and below the surface and everything growing on or permanently affixed to it.”
Dennis Adjei in his book, Land Law, Practice and Conveyancing in Ghana @ pages 16 also notes: “Land as defined …, includes the earth and developments on it such as buildings as well as farmlands …….The owner of land is deemed to be the owner of the things and chattels on it unless he has divested himself of ownership …”
Ollenu and Woodman in their book, Ollenu’s Principles of Customary Land Law in Ghana wrote about land: “The term ‘land’ as understood in customary law has a wide application. It includes the land itself, i.e. the surface soil, it includes things on the soil which are enjoyed with it as being part of the land by nature, e.g. rivers, streams … or as being artificially fixed on it like houses, building or any structures whatsoever….”
It is for this reason that under customary law, land which was developed by a member of a family on a family land does not change the family character or nature of the property. See the cases of Ansah v. Sackey  3 WALR 325 & In Re Yalley (dec’d); Yalley v. Kells [2001-2002] SCGLR 762.
In circumstances like that, a strong proof of DW1’s contribution is required before the presumption that defendant solely owned the property could be rebutted. Regrettably, the attempt at doing that was as weak as a kitten. Defendant claimed the receipts for the items were missing. What about the copies of the receipts in the receipt books of the alleged sellers? DW1 in an answer to a question posed by the court insisted that she purchased the building materials from sellers at their area. Could she not have invited some of them as witnesses, since her evidence showed they were still available? Could they not have invited some of the artisans DW1 supervised during the construction also as witnesses? The court finds that DW1 played no substantial role in the building and it was not surprising she could provide no details of her assertion. Her financial base to be able to help her husband construct a building appeared weak. She claimed to be a trader who goes to Togo to buy clothes and footwear and has the financial wherewithal to support her husband financially.
Meanwhile, when she got to know that her husband had financial challenges, she could not step in to help. The couple claim to be very intimate, yet when the husband was financially strapped, he chose to seek help from an outsider of the matrimonial home instead, in the person of Joseph a.k.a. Joe. Does it not sound odd for the defendant to seek help from an ‘outsider’ to the extent of selling his valuable property for which he had spent years to acquire, if his own wife was capable of supporting him financially? DW1’s own words during cross-examination by counsel for the plaintiff betrayed them. When she found out that her husband was in need financially, she kicked against the sale and advised him to raise monies from sources other than selling the property in dispute. As to which sources she was referring to, she had none in mind.
When pressed hard by counsel for the plaintiff, she could only mention defendant’s treasury bills - treasury bills she had no idea how much it worth. And when the plaintiff’s lawyer did not relent in asking that if the defendant had any such treasury bill, he would not have sold his asset, DW1 then conjectured that her husband could raise monies from family members and friends. Is it not surprising that she could not mention any financial support she could personally raise or offer to his beloved husband but to completely pray for the intervention of only outsiders and her own husband’s investment? Granted she contributed financially to property investments of her husband, how come even with the house they are currently residing in at Devtraco at Community 25, Tema, the property is solely in her husband’s name? I noticed from the demeanor of DW1 that she had been coached to come and tell lies “to rescue” her husband. The way she fumbled and contradicted herself was enough affirmation of my opinion.
Micheal Jackson is credited with this wise saying: “Lies run sprints, but the truth runs marathons.” She had thought it was going to be quick and short, but after being stretched under cross-examination, I sincerely believe she told her inner self, why at all did I come here to embarrass myself?
I know Defendant may have felt pity for her poor wife in the laborious process of cross-examination and I am not surprise he sought explanations from the court after the discharge of his wife, why the questions were so perplexing? He reminded me of Gary Hopkin’s quote: “Questions are only offensive to those who have something to hide.”
Before the parties entered into the contract, the defendant had made the plaintiff to believe that he was the sole owner of the property and had the capacity to dispose of same. Does the doctrine of estoppel now allow him to say otherwise? I do not think so! Section 26 of the Evidence Act, NRCD 323 (1975) is clear on that.
It provides that except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively presumed against that party or his successors in title in any proceedings between the party or his successor in title and such relying person or his successors in interest.
The law is clear that not only would the defendant be bound in like circumstances by the representations he made, but his successors in title, including his wife. The principle is not lacking in judicial pronouncements. See Africana Mission Church v. Seba
Construction Ltd.  59 G.M.J. 176 @ P.204-205, per Dordzie JA; Ago Sai & Ors. v. Kpobi Tetteh Tsuru III  SCGLR 762 @ 797, per Rose Owusu JSC and Assemblies of God Church, Ghana v. Ransford Obeng  32 G.M.J. 132 @ p. 154, per Dotse JSC.
DID THE DEFENDANT NEED THE CONSENT, KNOWLEDGE AND APPROVAL OF HER WIFE TO BE ABLE TO SELL THE PROPERTY IN DISPUTE?
It should be clarified here that although in the matrimonial set up, properties acquired generally belong to the two couple, nothing however stands the way of one spouse to solely acquire property for himself or herself. In the case of Felicia Obuobi v. Joseph Obuobi, Civil App. No. 32, 2002, C.A. (Unreported), the Court of Appeal per Korang JA held that property acquired by a spouse with his or her own money belonged to that person only. See also Bentsil-Enchill v. Bentsil-Enchil  2 GLR 303, holding 1. Counsel for the Defendant argued that per the decision in Mensah v. Mensah  1 SCGLR 391, DW1 has an interest in the property. Counsel need to be reminded that, subsequent to that decision the Supreme Court in Fynn v. Fynn & Osei reported in Volume 1 of the [2013-2014] edition of the SCGLR at page 72 has held that a person does not need the consent and concurrence of his or her spouse before he or she could dispose off his personal assets during the pendency of a marriage. Though lengthy, let me still reproduce what the Court said at holding 3 of the headnotes:
“During the existence of the marriage union, it would be most desirable for the couple to pool their resources together to jointly acquire property for the full enjoyment of all members of the nuclear family in particular. However, there could be situations where within the union, parties might acquire property in their individual capacities as, indeed, was their guaranteed fundamental right as clearly enshrined under article 18 of the 1992 Constitution; in which case they would also have the legal capacity to validly dispose of individually-acquired property by way of sale, for example, as happened in this instant case. No court in such clear cases would invalidate a sale transaction on the sole ground that the consent and concurrence of the other spouse had not been obtained. In the instant case, it was not proven that the plaintiff-appellant, the wife of the first defendant-respondent, had made some direct financial contribution to the acquisition of the disputed property; nor was it proven that the second defendant, the purchaser of the disputed property, had known that the property had been jointly acquired by the couple as family property.”
That case is in all four with the present case. Going by that principle, the defendant had no business obtaining the consent and concurrence of his better half before he could dispose of the disputed property which ownership stands only in his name.
DID THE DEFENDANT REPUDIATE THE CONTRACT BEFORE THE PLAINTIFF PAID THE SECOND INSTALLMENT AND IF SO, IS HE DISCHARGED UNDER THE CONTRACT?
Christine Dowuona-Hammond in her book, The Law of Contract in Ghana at page 282 states:
“Repudiation occurs when a party by his word or conduct demonstrates that he does not intend to perform his obligation under the contract. It is an absolute refusal to perform, communicated either by words or conduct. Such repudiation amounts to anticipatory breach where the party in default renounces his obligations under the contract even before the time fixed for performance. Repudiation may be explicit or implicit.”
So from the above, the defendant’s notice to the plaintiff that he was no longer selling the house amounted to a repudiation of the contract. But was it done before the payment of the second installment? I am not too sure about that. Nonetheless, whether it preceded the second payment or not is not so important to the determination of the core issues in this case.
At page 283 of Dowuona Hammond’s book supra, repudiation by one party to a contract does not of itself terminate the contract, until the other party has agreed to it. The defendant claimed to have rescinded before the plaintiff made the second payment. He claimed to have called the plaintiff on phone to tell him that his wife has kicked against the sale of the house, so he was no longer selling it. It was just a bare assertion. Plaintiff had denied that the repudiation preceded the payment of the second installment. Could that not have been proved better by the defendant?
Plaintiff was not prepared to accept the repudiation. What was the best course? Defendant could have come to court for the rescission of the contract. Why did he have to wait till the plaintiff has brought him to court before he talked about repudiating the contract? He claimed he was prepared to pay the money received with interest. As to how much interest, he only knows. After making a representation, which any reasonable person was likely to be swayed, and the plaintiff having relied on that representation, it was too late in the day for him to control the future of the transaction, unless he had sought a judicial remedy of rescission timeously.
Let me point out that although rescission is available when there is an operative mistake, it may not be granted where the party seeking to set the contract aside was himself at fault. On this see the case of Solle v. Butcher  1 K.B. 671;  2 All E.R. 1107. Again, the learned Law of Contract Lecturer at the University of Ghana, Duwuona-Hammond notes at page 211 thus:
“Generally, the courts have applied the principle that in equity a contract is liable to be set aside or rescinded if the parties were under a common misapprehension either as to facts or as to their relative and respective rights, provided that the misapprehension was fundamental and the party seeking to set it aside was not himself at fault.”
It is clear from the above that rescission is available only at the option of the innocent party. How can defendant be justified in this case as an innocent party? If the property indeed belonged to him and the wife, which is not believed though, and he misrepresented to the Plaintiff that it solely belonged to him; can such a person be deemed as a party not at fault? He must have himself to blame.
Rescission is an equitable remedy and it lies only at the instance of a party whose hands are clean. In the present case, had the wife of the defendant have a true interest in the property which plaintiff initially did not know and later got to know, he rather could have been assisted by the court to rescind from the contract and not otherwise.
DOES THE PLAINTIFF HAVE CAPACITY OR WAS THERE A CONSENSUS AD IDEM ON THE PART OF THE PARTIES?
Counsel for the defendant in his address indicated that the Plaintiff had under cross-examination admitted that the transaction was entered into by his company, Home Rent Advisors. And because a company is a separate entity in law, there was no consensus ad idem between the parties. He referred to various portions in the plaintiff’s evidence that suggested that it was the company that dealt with the defendant and not the plaintiff in person. If that argument is accepted, it would mean the defendant had impeached the capacity of the plaintiff and also the validity of the contract, since there was no lawful contract. I agree with counsel for the defendant that the plaintiff did not discharge himself too well when he mounted the box.
He did not distinguish the company from himself as the law sees them separately. The inconsistencies notwithstanding, the court is warned to ignore such inaccuracies and inconsistencies where there are other evidence on record to sustain the plaintiff’s case. See Osei (substituted by Giliard v. Korang [2013-2014] 1 SCGLR 221 at holding 3; Great Commission Church International v. Acolatse & Anor.  75 GMJ 39 @ 46 and Yamak v. Yawson  2 GLR 465. Nowhere did the Defendant attack the capacity of the plaintiff in his pleadings. The law provides that the plaintiff is required to prove his capacity if the defendant challenged it. In Sarkodie I v. Boateng II  2 GLR 343 @ 346, Azu Crabbe C.J. held: “It is trite learning that where the capacity of a plaintiff or complainant or petitioner is put in issue he must if he is to succeed, first establish his capacity by the clearest evidence.” See also Republic v. High Court, Accra, Ex parte Aryeetey (Ankrah-Interested Party) [2003-2004] 1 SCGLR 398 @ 405. Where the defendant did not challenge it for plaintiff to prove, it would be immaterial if he led no evidence in accord with that.
Adinyira JSC in Muriel Vaughan-Williams (per her lawful attorney Mrs. Alice Acquaye) v. B.K. Oppong (substituted by Mrs. Cecilia Oppong)  84 G.M.J. 171 @
“As a court we must not dwell upon insignificant or non-critical inconsistencies to deny justice to a party who has substantially discharged her burden of persuasion.”
Where such technicalities can defeat the ends of justice, the Court is empowered to amend the capacity of the Plaintiff. See Assemblies of God Church v. Obeng  32 G.M.J. 132, S.C. Likewise, the capacity of the plaintiff can be amended even on appeal to determine the real issues in controversy. See Ghana Ports & Harbour Authority v. Issoufu [1993-94] 1 GLR 24, S.C.
The issue that there was no consensus ad idem is in my view misplaced. Throughout the evidence of the defendant, he was clear as to who he contracted with - the plaintiff. He never stated anywhere in his pleadings or his evidence that he got confused with the identity of the other contracting party, which could have occasioned an injustice to the defendant. Had he made that assertion, the court could have considered it. As it stands now, counsel for defendant is only attempting to use technicalities to suffocate the ends of justice, but we are reminded as a court not to sacrifice justice on the altars of such technicalities. Acquah JSC (as he then was) decided in the case of Republic v. High Court, Kumasi, Ex Parte Atumfuwa & Anor.  SCGLR 72 @ 91 that:
“Our procedural rules have gone a long way in freeing this court from pointless technicalities. The tendency now is to look at the substance of the case and ensure that substantial justice is done on the merits …”
I consider the submission by counsel for the defendant as a mere technicality which does not help in resolving the issues between the parties and to that extent I disregard it.
SHOULD THE REMEDY OF SPECIFIC PERFORMANCE BE GRANTED IN THE CIRCUSMTANCE?
Specific Performance is an equitable remedy granted at the discretion of a court to compel a party who had undertaken to perform an act to do so. The payment of money; whether in part or in full, may render a contract enforceable and for specific performance to avail the purchaser. See Koglex Ltd. (No. 2) v. Field  SCGLR 175, per Acquah JSC (as he then was). The remedy is granted upon established principles, primarily among them is where damages will not be able to compensate the applicant. BJ da Rocha and CHK Lodoh at page 375 of their book, Ghana Land Law & Conveyancing (Second edition) wrote: “[Specific performance] is a remedy available to both the vendor and the purchaser. By an order of specific performance, a party to a contract who attempts to repudiate it, is compelled to convey the land and the purchaser can be compelled to pay the unpaid purchase money…. Specific performance to sell land will almost invariably be granted at the suit of the
purchaser as a matter of course, for in the case of such a contract, damages are generally insufficient to compensate the disappointed purchaser.”
The above quote suggests that land is one of the rare and uncommon commodity in respect of which the courts readily grant an order of specific performance. The Supreme Court in the case of Bonsu v. Agyemang  1 SCGLR 978 affirmed the position of the English law when it held that land is considered to be inherently unique and therefore specific performance is responsive to this attribute of ensuring that a purchaser gets what he contracted for and not an inadequate monetary substitute. See also Lartey v. Bannerman  2 GLR 438.
It is the contention of counsel for the defendant that the plaintiff did not comply with the terms of the payment and he delayed in the payment of the second installment. It is the law that delay per se is not a ground to refuse the grant. The learned Land Law experts and lecturers; da Rocha & Lodoh in their book, supra, state at page 378 as follows:
“Where a contract for the sale of land is not completed on the date stated in the contract for completion, specific performance may still be available, even at the instance of the delaying party.”
They explain that at common law, time was of essence, but equity took a different stance “which now prevails in all courts” that specific performance should be decreed notwithstanding the failure to observe on the exact date fixed by the parties. And that “If completion does not occur on the contractual date, the delaying party is liable to pay damages as, for example, where the innocent party incurs hotel expenses as a result of the breach.” In the English cases of Phillips v. Lamdin  2 KB 33  1 All ER 770 and Raineri v. Miles  AC 1050;  3 All ER 763, it was held that the contracting duty of the parties is not merely to complete on that date but also within a reasonable time thereafter.
It has now been established that after the date fixed for completion has passed, one party may serve a notice on the other party requiring completion within a reasonable time. See Smith v. Hamilton  Ch 174;  2 All ER 928. In Ajit v. Sammy  1 A.C. 255;  3 W.L.R. 983, six days notice was held to be reasonable where the purchaser had no money and no prospect of raising it. At what stage can the innocent party give notice to the other party to perform within a reasonable time? The question was answered in the case of British and Commonwealth plc v. Quadrex Holdings Inc.  QB 842;  3 All ER 492, where the English Court of Appeal assumed that the guilty party must not merely be late but be unreasonably late before the notice can be given.
Sections 1 & 2 of our Conveyancing Act, 1975 (NRCD 175) provide that a contract that is not evidenced in writing is unenforceable. In this case the transaction was only verbal so there is the possible argument that it is unenforceable. A receipt was however given by the defendant. The courts have in time past considered it useful to give effect to receipts issued to a party and have proceeded to grant the order of specific performance without fail. See the cases of Donkor v. Alhassan [1987-88] 2 GLR 254 @ headnotes 1;
Kotey v. Kolete [2005-2006] SCGLR 368 and Koglex Ltd. (No. 2) v. Field  SCGLR 175 @195. On the totality of the evidence adduced, the court finds that the plaintiff has been able to prove his case on the balance of probabilities.
Consequently, I hereby decree as follows:
a. That the defendant yields unto the plaintiff vacant possession of the 8 bedroom uncompleted house situate and lying at Mateheko, near Afienya,
b. That the defendant formally execute an assignment of all his interest in the 8 bedroom uncompleted house at Mateheko, near Afienya aforementioned within forty-five days from today.
c. That the plaintiff pays the final installment of GH ¢30,000.00 agreed upon under the contract within 30 days from today.
d. That Defendant, his wife, assigns, agents, servants, privies etc. are perpetually retrained from having anything to do with the disputed subject-matter.
I award cost of GH¢10,000.00 for the plaintiff against the defendant.