DENNISLAW [1985]DLCA904

DEEGBE

vs.

NSIAH AND ANOTHER

{COURT OF APPEAL, ACCRA}

[1984-86] 1 GLR 545

DATE: 25 JULY 1985

COUNSEL:

AMANEY FOR THE APPELLANT.

DR. PREMPEH FOR THE RESPONDENTS.

CORAM:

EDUSEI, EDWARD WIREDU AND OSEI-HWERE J.J.A.

JUDGMENT OF EDUSEI J.A.

Edusei J.A. delivered the judgment of the court. In this appeal the plaintiff-
appellant who will be referred to hereafter as the plaintiff seeks a reversal of
the judgment of Anterkyi J. sitting in an Accra High Court and dated 21 June
1982. The judgment was in favour of the defendant and co-defendant-
respondents who also will be referred to as the defendant and co-defendant,
respectively.

The plaintiff, a legal practitioner, issued out a writ claiming against the
defendant an order of specific performance in respect of an agreement for the
sale of house No 1, Junction Road, C F C Estates, Tesano, Accra. In his
statement of claim (which will be stated fully later) accompanying the writ the
plaintiff set out, according to him, the circumstances leading to an agreement
for the sale of the house in question by the defendant to him at a price of
¢65,000. All this was an oral agreement. The plaintiff, a tenant in the house,
continued to say in his statement of claim that he had succeeded in procuring
a promise of a loan from the bank and that the bank wanted copies of the
defendant’s title deeds. In a letter attached to the statement of claim, which
the plaintiff had previously sent to the defendant, he requested for copies of
his title deeds. By this same letter the plaintiff contends that he accepted the
offer to buy the house. We shall refer to this letter later for its effect. This
letter was dated 6 April 1977.

The plaintiff averred that since the defendant did not react to the said letter
he filed his writ claiming specific performance of the contract for the sale of
the house in question.

The defendant denied making any offer to the plaintiff; however, in April
1977 he sold the house to the co-defendant, who later applied to join the suit
to protect his proprietary interest in the said house. The deed of conveyance
was however executed on 13 July 1977 between the defendant of the one part
and the co-defendant and his wife of the other part. It has also been stamped
and registered.

When pleadings by all parties had closed the co-defendant filed on 10 June
1982 an application under Order 25, rr 3 and 4 of the High Court (Civil
Procedure) Rules, 1954 (LN 140A), praying the court to dismiss the plaintiff ‘s
claim on the ground that it did not disclose a reasonable cause of action. The
plaintiff also swore to an affidavit in opposition to the application. The
plaintiff, however, had on 9 June 1982 filed an application for leave to amend
his statement of claim. We think it convenient at this stage to set out in full the
plaintiff’s statement of claim which states:
“1 The plaintiff, a legal practitioner, is a tenant in house No 1 Junction
Road, CFC Estates, Tesano and has been so since July 1974.
2 The defendant is the owner and landlord of the said house and has been
so at all times material to this case.
3 In the year 1976 the plaintiff on several occasions discussed the
possibility of buying the said house of the defendant with the defendant,
and the defendant on those occasions promised the plaintiff that if he
decided to sell the house he would give the option of a first refusal to the
plaintiff.
4 About mid March 1977, the defendant called at the house and as the
plaintiff was not in, left word with the plaintiff’s younger brother that the
plaintiff should call to see him at his office at the State Insurance
Corporation, Head Office on his return.
5 Immediately the plaintiff returned from trek to the house and learnt of
the message he went over to the defendant’s office where the defendant
was seen in his room at a meeting with some other men.
6 The defendant left the room, took the plaintiff into the next office and
said to the plaintiff, ‘Lewis, I have now decided to sell the house you
occupy, and as I promised you I am making the offer to sell to you.’
 7 The plaintiff in utter relief, exclaimed ‘thank God’ and before he could
inquire about the price, the defendant continued ‘I have decided to resign
from State Insurance and seek my laurels outside. I would need some
money to settle some bills before leaving. The price is ¢65,000.’
8 The plaintiff then said ‘oh’ and the defendant continued, ‘somebody has
actually mentioned that figure to me but don’t be in a hurry, take time to
consider the offer and let me know your decision.’
9 The plaintiff having thanked the defendant left the office, promising to
get in touch as soon as he discussed the matter with his bankers or
financiers.
10 A few days after leaving the defendant’s office the plaintiff succeeded in
discussing the matter with the management of the First Ghana Building
Society, who promised to advance him ¢50,000 on production of the
vendor’s title deeds, i.e. the defendant’s.
11 The plaintiff then went over and again discussed the matter with Dr A.
K. Appiah, now Commissioner for Finance, but then the Managing
Director of the Social Security Bank, who also promised to have the bank
advance ¢54,000 towards the purchase, again on production of the
vendor’s title deeds.
12 The plaintiff then, knowing that he would be able to produce the rest of
the money, i.e. the ¢15,000 himself wrote to the defendant on 6 April 1977
to irrevocably accept the offer to buy the house, copy of the said letter is
hereto attached.
13 In the letter attached the plaintiff requested for a copy of the
defendant’s title deeds to enable the bank process the loan.
14 Later the defendant indicated to the plaintiff that he had received the
letter, copy attached, but had done nothing since to supply the plaintiff
with the documents necessary to perform the contract of sale.
15 Wherefore the plaintiff claims as per his writ of summons.”

On 14 June 1982, both applications came before the judge and the judge
having listened to arguments adjourned to 21 June 1982 for ruling.

On the adjourned date he disallowed the amendment after the trial judge had
set out the writ and the statement of claim and the proposed amendment
stating that the averment in paragraph 4 of the proposed amendment was a
complete departure from what was contained in the plaintiff ‘s alleged letter
of acceptance. The proposed paragraph 4 reads: “The plaintiff in the same
vein accepted the offer orally.” It is also relevant at this stage to refer to the
letter attached to the statement of claim. This letter reads thus:
“LKD/BAT/31/77 6 April 1977 Dear Mr Nsiah, Re: House No 1 Junction
Road C F C Tesano, Accra This refers to our short discussion in your office
recently when you offered to sell to me the above house owned by you and
which I now occupy as your tenant. You asked me then to take some time
to consider the offer and let you know my interest. I write now to accept
the offer without revocation. I would plead, however, that you do
consider a serious reduction in the price quoted. I believe, as between
friends, this is possible. I am really committed to buy this house as it is an
 absolute necessity. I have already apprised my bankers of same and
papers are being processed accordingly. In the meantime my bankers
would require copies of your title deeds and site plan. Please advise
accordingly. Yours sincerely, (Sgd) L K Deegbe”

(The emphasis is ours.)

In his ruling on the proposed amendment the judge said rightly in our view,
that:
“Where the writ or the statement of claim discloses in toto no cause of
action, there cannot be granted an amendment so as to disclose a cause of
action. In my view the amendment sought is not being made bona fide. If
it is allowed it would open the way for the plaintiff to lead evidence of
perjured invention to bolster his claim. I hold this view because the
plaintiff as a trained lawyer did himself prepare the writ and statement of
claim; all the averments in them must therefore be taken as the true facts
in the alleged agreement.”

We share the same view as the trial judge.

The learned trial judge also ruled in favour of the defendants by dismissing
the plaintiff ‘s claim on the ground that by his letter of 6 April 1977 the
plaintiff rejected the offer of the defendant when he wrote “I write now to
accept the offer without revocation”, but he added to it, “I would plead,
however, that you do consider a serious reduction in the price quoted.” The
addition of these words amounted to a rejection of the offer by the defendant
to sell the house for ¢65,000.

Acceptance must be an absolute and unqualified acceptance of all the terms of

What the plaintiff did by his letter of 6 April 1977 was an invitation to the
defendant to make a fresh offer which he never did. It is clear therefore that
the parties were not ad idem, and there was no contract between the plaintiff
and the defendant. There can therefore be no specific performance unless
there is a complete and definite contract. In short there was not a concluded
contract between the plaintiff and the defendant and the latter was free to sell
his house to the co-defendant.

But there is a more fundamental hurdle in the way of the plaintiff. Section 2 of
the Conveyancing Decree, 1973 (N.R.C.D. 175) stipulates that:
“2. No contract for the transfer of an interest in land shall be enforceable
unless—
(a) it is evidenced in a writing signed by the person against whom the
contract is to be proved or by a person who was authorised to sign on
 behalf of such person.”

(The emphasis is ours.) For the plaintiff to succeed in court he ought to have
produced a document evidencing the contract of sale and such document
ought to have been signed by the defendant or his agent. But there is no such
document; in fact, the agreement, if agreement at all, was oral and by the
section quoted it cannot be enforced in court. In the absence of such an
evidential writing the proposed amendment, even if it had been granted,
would not have improved the plaintiff’s position one jot or a tittle.
Furthermore, in the proposed amendment, the plaintiff still made references
to the letter of 6 April 1977 in some of the paragraphs, thus perpetuating his
rejection of the offer made by the defendant.

Counsel for the plaintiff contended before us that the plaintiff’s counsel in the
High Court was not given an opportunity to present his client’s arguments
when the application to dismiss the action was heard.

The plaintiff’s counsel in the person of Mr. Moore was present in court and
moved his application for amendment, and counsel for the co-defendant after
arguing against the proposed amendment also argued for the dismissal of the
plaintiff’s action but Mr. Moore chose not to say anything in reply. No one
prevented him from putting his client’s case across. We are tempted to
conjecture that counsel might have realised that there was no answer to the
arguments of the co-defendant’s counsel especially when he said that there
was no concluded contract between the plaintiff and the defendant, after
referring in detail to the statement of claim (with the letter attached); and also
counsel made references to sections 2 and 3 of N.R.C.D. 175. What could Mr.
Moore have said in reply? We think he did the right thing in keeping silent. As
an experienced lawyer he did not want to make himself a laughing stock in
open court. Perhaps, he took admonition from Prophet Amos who advised:
And so, keeping quiet in such evil times is the clever thing to do!: Amos, chap
5, verse 13 of the Good-News Edition of the Holy Bible.

When both counsel completed their arguments before us in court, counsel for
the plaintiff sent us a list of authorities. We have taken the trouble to examine
them but they do not assist the plaintiff’s cause in any way, for, at least,
section 2 (a) of N.R.C.D. 175 puts him out of court completely. Be that as it may,
we wish also to add that even if there was a concluded contract, since a third
party, in the person of the co-defendant, 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 to him would have been an action for damages, but the plaintiff did
not claim this relief. The facts in this case, however, disentitle him to any such
damages also. In any case the trial judge’s finding that there was no
reasonable cause of action by the plaintiff against the defendant was justified
by the facts disclosed in his statement of claim. The plaintiff was also caught
squarely by section 2(a) of N.R.C.D. 175. In the result, we find no merit
whatsoever in the appeal and we accordingly dismiss it.

We wish, however, to advise that counsel should from time to time refer to the
rudiments in certain areas of the law, and we feel convinced that if the
plaintiff, a lawyer, who filed his own writ and statement of claim, had
refreshed his memory or knowledge of the law by references to passages on
offer and acceptance of contract in text books like Cheshire & Fifoot’s Law of
Contracts or Sutton & Shannon on Contracts or Anson’s Law of Contract, he
might not have come to court at all, unless he intentionally did take the action
to delay his ejection from the house he occupied as a tenant. For, on 31 May
1977 a firm of solicitors, on the instructions of the co-defendant’s wife, a part
owner of the house, wrote to the plaintiff giving him notice to vacate the
premises on or before 31 August 1977, but on 10 August 1977 the plaintiff
initiated this action. This simple, straightforward case has lasted almost eight
years now, from 10 August 1977 to 25 July 1985. This is an abuse of the court’s
process. It may conjure up in the minds of the public a sort of judicial
phantasy, and this is not good enough for the administration of justice. We
hope that lawyers will help to achieve speedy justice for it is said that “justice
is sweet if it is swift.”