BRIGHT-DAVIS vs. SAGOE [1991]DLCA2224

Date	1991-05-23
Suit No.
Citation No.	[1991]DLCA2224

LAMPTEY JA

ESSIEM JA

OFORI-BOATENG JJ.A.

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANT.

OWUSU YEBOAH FOR THE RESPONDENT.

[1991]DLCA2224
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													<main id="main" class="content" style="min-height: 60rem" >BRIGHT-DAVIS<o:p></o:p>vs.<o:p></o:p>SAGOE<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 578<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">

</div>COUNSEL:<o:p></o:p>W. A. N.
ADUMUA-BOSSMAN FOR THE APPELLANT.<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">

OWUSU
YEBOAH FOR THE RESPONDENT. <o:p></o:p>

LAMPTEY,
ESSIEM AND OFORI-BOATENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF OFORI-BOATENG J.A.<o:p></o:p>This is
an appeal from the decision of the High Court, Accra presided over by
Osei-Hwere J. (as he then was).<o:p></o:p>The facts
of the case are that the ex-husband of the plaintiff-respondent (hereinafter
referred to as the respondent) built a house on a piece of land over which
litigation arose between him and the defendant-appellant (hereinafter referred
to as the appellant), A. L. Bright-Davis, regarding its ownership. While the
litigation was going on, the respondent’s ex-husband made a gift of the house
on the land in dispute to the respondent. The appellant won the case. The
respondent in the meantime had moved into the house and started negotiating
with the appellant to sell her the land. She also agreed to pay off the costs
awarded the appellant by the court which the respondent’s husband appeared to
have been unable to pay. All these negotiations were conducted through the
solicitors of the parties and it would appear the two parties never met face to
face. After some negotiations over the price, which appears to be the joint
price of the land and the building, it was agreed that the respondent should
pay ¢15,000. This deal was clinched on 18 October 1977.<o:p></o:p>The
respondent through her solicitor had in the meantime informed the appellant
that she was arranging to pay for the ¢15,000 through an overdraft from her
bank. By the way, the respondent is also a business woman, a contractor, and so
perhaps arranging for an overdraft from a bank would pose no unusual problem.<o:p></o:p>Before
the loan could be paid the appellant unilaterally withdrew the offer which had
in fact been accepted and so had become a full contract in law. The respondent
ignored that withdrawal and on 18 February 1978 her solicitor addressed a
letter to the appellant’s solicitor in which he enclosed a cheque for the sum
of ¢15,000 and an indenture for signature and return.<o:p></o:p>Unfortunately
this cheque was not honoured. The appellant did not inform the respondent of
this disaster until 22 March 1978 when the respondent inquired through her
solicitor about the signing of the indenture attached to the cheque. As soon as
the respondent became aware of the bouncing of her cheque she immediately
offered ¢15,000 cash which the appellant refused. Then the appellant gave
notice to the respondent to quit the house after he had refused the ¢15,000
cash she offered. The respondent refused to quit and sued successfully in the
High Court for specific performance; hence this appeal.<o:p></o:p>The
ground of appeal canvassed is the general ground that the judgment is against
the weight of the evidence. But counsel put emphasis on the argument that in
the particular contract in issue, time for paying the price of the land and the
house was of the essence.<o:p></o:p>Counsel
for the defendant used exhibit 5 to illustrate this point.<o:p></o:p>Exhibit 5
is the letter in which the appellant’s solicitor informed the respondent’s
solicitor of his last price of ¢15,000 and declared the end of July 1977 as the
deadline for the payment. It would appear that five years before that exhibit,
ie in 1972, the appellant demanded the then current price of property in that
area, ie ¢15,000. The respondent then refused. The same property in 1977 was
going for ¢20,000 and ¢30,000. Therefore the sooner the money was paid the
better the chance of the contract holding. In exhibit 5 the respondent’s
attention was also drawn to the devastating effect of inflation if too much
time was wasted on haggling over the sale price. It was also made clear that
the offer was to lapse by the end of July 1977.<o:p></o:p>Although
the appellant insists on time being of the essence, exhibit 5 that proposes
that urgency, at the same time throws cold water on it. Exhibit 5 shows that
five years previously he had offered ¢15,000 to the respondent, but in spite of
inflation and the rising prices of similar property in the area the appellant,
five years later, was still prepared to carry on with the negotiation which he
insists has time as its essence by being prepared to accept the same price. It
has also been argued that after the respondent had sued, it took her three years
before she paid the purchase price money into court thus demonstrating that
urgent payment of the price money was not her concern. I think this question
had better be left to be dealt with when considering all the efforts the
respondent made to demonstrate her anxiety to get the, money paid as fast as
possible.<o:p></o:p><</main>