ATTA AND ANOTHER vs. ADU [1987]DLSC711

Date	1987-06-15
Suit No.
Citation No.	[1987]DLSC711

ADADE JSC

TAYLOR JSC

FRANCOIS J.S.C.

OSEI-HWERE JA

AMUA-SEKYI J.A

NANA AKUFO-ADDO FOR THE APPELLANTS.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1987]DLSC711
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													<main id="main" class="content" style="min-height: 60rem" >ATTA AND ANOTHER <o:p></o:p>vs. <o:p></o:p>ADU <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 1GLR 233<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
15 JUNE 1987<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">

NANA AKUFO-ADDO FOR THE APPELLANTS. <o:p></o:p>

NO APPEARANCE BY OR 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">

ADADE, TAYLOR, FRANCOIS JJ.S.C.,
OSEI-HWERE AND AMUA-SEKYI JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>Francois
J.S.C. delivered the first judgment at the invitation of Adade J.S.C. The
appellants seek a reinstatement of the decision of the High Court (Anterkyi J.)
which was reversed by the Court of Appeal, in an action against the respondent
for specific performance of a contract for the sale of her house at Chorkor,
Accra.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants have been at great pains to demonstrate their entitlement to
equitable relief, by urging the fulfillment of the their contractual obligation
to pay the purchase price of ¢80,000 while the respondent is portrayed as
exhibiting unconscionable behaviour in retaining the purchase money and
reneging on the agreement. The facts, however, on examination bear a complexion
not entirely favourable to the appellants.<o:p></o:p><o:p>&nbsp;</o:p>The
appellants were tenants of the respondent in respect of premises contiguous to
the house in dispute. They sought and obtained a first refusal to buy the
house. The initial oral agreement envisaged a lump sum payment of ¢80,000 and
not a purchase by instalment or deferred payments, sometimes termed rental
purchase. It cannot be disputed that an immediate lump payment of a sum is of
greater value than the payment of the same sum spread over a period of time. In
commercial circles the measure of depreciation is quantified in interest
payable on the sum or adjusted in its enhancement. The facts in this case
suggest the appellants enjoyed the best of both worlds in seeking indulgences
which postponed payment without bearing any of the burdens which such a
postponement should attract.<o:p></o:p>It
appears the appellants’ unbusinesslike approach to payments almost led to the
rescission of the agreement. The net result was a compromise formulation,
exhibit A, which stated the aforesaid purchase price and acknowledged total
previous payment of ¢15,000 leaving a balance of ¢65,000 to be paid by
instalments with the final payment to be concluded by the end of June 1980.
Exhibit A is dated 30 October 1979.<o:p></o:p><o:p>&nbsp;</o:p>It is an
unfortunate commentary on the conduct of the appellants that they never adhered
to agreed payment schedules. It is not necessary to list the catalogue of the
appellants’ promises to pay faithfully given and consistently broken. They were
not denied or challenged. There is a clear syndrome of persistent requests for
accommodation to reschedule payments. An example however must be given to
illustrate the effect on the respondent of the lackadaisical manner in which
payment was effected, as it has an important bearing on the essence of time.<o:p></o:p><o:p>&nbsp;</o:p>Sometime
in June 1979 and immediately prior to the execution of exhibit A, the
respondent had to visit Britain to straighten out some financial difficulties
which her son was encountering. It was agreed the appellants would in her
absence pay ¢40,000, representing half the purchase price, into the
respondent’s bank account. When the respondent returned some three months
later, she discovered the appellants had not paid in a pesewa towards the house
purchase. They were only content to pay into the account, ¢1,200 which was
legitimately due as rent for their own tenancy. The respondent was furious at
this breach of faith as it affected her mortgage payments and created other
financial problems which she recounted with pathos. This must be set against a
ready deal she had negotiated with a Nigerian who had travelled to Ghana at her
invitation, and which deal was cancelled only because the appellants insisted
on a first refusal. Again, it demonstrates that pressing need for money
necessitated the sale and consequently accommodation in payment could not be
extended interminably.<o:p></o:p><o:p>&nbsp;</o:p>With the
history of desultory and unsatisfactory payments, it is no wonder that the last
two payments</main>