JOSEPH vs. BOAKYE [1977]DLCA1336

Date	1977-05-26
Suit No.
Citation No.	[1977]DLCA1336

APALOO JA

ANIN JA

FRANCOIS J.A.

JOE REINDORF FOR THE APPELLANT.

E. S. AIDOO FOR THE RESPONDENT.

[1977]DLCA1336
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH <o:p></o:p>vs. <o:p></o:p>BOAKYE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 2 GLR 392<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 MAY 1977<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

JOE REINDORF FOR THE APPELLANT.<o:p></o:p>

E. S. AIDOO FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
appellant was the owner of a leasehold plot of land situated at Christiansborg,
Accra. Two buildings numbered as F.806/1 and F.807/1 were erected on that plot.
The respondent is a businessman resident in Accra. He described himself as
“manufacturer of mattresses and foams.” It would seem that the appellant was
desirous of selling the land and buildings and offered them to the respondent.
The latter was interested. He agreed to buy. Accordingly, on 29 September 1972,
both entered into a contract by which the appellant offered to sell and the
respondent agreed to purchase the land and the buildings for the sum of
¢60,000.00 on certain terms and conditions.<o:p></o:p><o:p>&nbsp;</o:p>The
agreement, which was in writing, was drawn up by lawyer I. K. Boakye who was
then acting for both parties. The contract reserved to either party his common
law remedies in the event of breach by one party (clause 5). Time was said to
be of the essence of the contract and the purchase was agreed to be completed
on or before 28 October 1972 (clause 6). A deposit of ¢20,000.00 was to be paid
which shall be forfeited in the event of the purchaser committing a breach of
the agreement (clause 3) or refunded if the vendor broke the contract. In
actual fact, instead of the cash deposit, the vendor received in lieu thereof,
a Jaguar saloon car belonging to the purchaser. This was valued at ¢10,000.00.
Then comes an important term of the contract on which a large part of this
litigation turned. It reads: “The abstract of the title will be delivered
within seven days from the date hereof” This means that by 5 October 1972 an
abstract of title must have been delivered by the vendor or his agent to the
purchaser or his agent. As lawyer Boakye was acting for both parties, if an
abstract of title was delivered to him by the stipulated time, it would seem
the vendor’s obligation under this clause was met. The latter testified that
such a document was delivered to him and he showed it to the purchaser, that is
the respondent but did not hand it to him. What he handed to him was an
unsigned deed of assignment which shows the vendor’s root of title from 1953 to
1971. This was two days after the contract. Whether this document can also
properly be described as an abstract of title as that term is understood in
conveyancing law, will be considered presently. Although he did not speak with
a clear voice, the judge used expressions which suggest that he considered the
unsigned deed of assignment as such abstract.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent issued in favour of the appellant as balance of the purchase price,
a cheque for ¢50,000.00. This was on 2 October 1972. This cheque was post-dated
to 30 October 1972. The respondent stopped payment of that cheque the same day
and his stated reason was “because I heard about the case and I told the
defendant [meaning the appellant] that I was going to stop payment of the
cheque and the transfer of the car.” The case to which the witness referred was
an action instituted by one J. K. Otoo against the Ghana Federation of Farmers
Association Ltd. (hereinafter called the Farmers Association) who was the
appellant’s assignor for arrears of rent and for possession of the premises in
question. On 14 August 1972, the circuit court gave judgment in default of
appearance against the Farmers Association for ¢360.00 and also for possession.
This judgment ante-dated the date of the contract of sale and there is no
evidence that the appellant knew about it. Apparently, when the appellant
became aware of this judgment, he had it set aside. This was on 24 January
1973. The importance of that judgment in the context of this case lies in the
fact that the judge used it as entitling the respondent to refuse to complete
the sale and to recover his deposit. He said, “there was a failure on the part
of the vendor to disclose an existing material event and the purported abstract
of title had been defective which will entitle the defendant to recover the
deposit paid him.” The correctness of the judge’s holding on this score has
been disputed. I will consider its validity in due course.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent was not entirely consistent in his reason for refusing to complete
the contract. In his letter of 2 October 1972, enclosing the cheque, he said he
was making payment “on condition that the tenants will be removed from the
houses before the 26th instant and also to see that the ground rents and local
tenancy bills are paid up to date . . . to see to transfer the deed agreement
also before 26 October 1972.” He then gave this ultimatum; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Failure
to do all the things mentioned before the date given, I will no more be interested
in the houses again.” This letter drew a protest from the appellant’s
solicitors and a compla</main>