REDCO LTD. vs. SARPONG [1991]DLCA2295

Date	1991-11-21
Suit No.
Citation No.	[1991]DLCA2295

ESSIEM JA

OFORI-BOATENG JA

ADJABENG JJ.A.

KWAMI TETTEH FOR THE DEFENDANT-APPELLANT.

GEORGE SARPONG FOR THE PLAINTIFF-RESPONDENT.

[1991]DLCA2295
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >REDCO
LTD.<o:p></o:p>vs.<o:p></o:p>SARPONG<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 457<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 21 NOVEMBER 1991<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAMI
TETTEH FOR THE DEFENDANT-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">

GEORGE
SARPONG FOR THE PLAINTIFF-RESPONDENT.
<o:p></o:p>

ESSIEM,
OFORI-BOATENG AND ADJABENG 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 Dove J.
The facts are that sometime in 1980 the plaintiff-respondent agreed to buy a
two-bed-room flat (type C) from the defendant-appellant, a company engaged in
the construction and sale of residential accommodation to interested customers.<o:p></o:p>The
completed flat agreed on cost ¢72,000. In November 1980 the respondent made a
first down payment of ¢19,000 to clinch the deal. The balance was to be paid
only after the flat had been completed.<o:p></o:p>The
appellant, however, by a letter, exhibit A, dated 16 March 1981 informed the
respondent that the flat in question would be ready for conveyance to him on 31
December 1981, and so he should pay a second instalment of ¢31,400. The
respondent promptly agreed and even paid ¢32,000 thus leaving an unpaid balance
of ¢21,000.<o:p></o:p>It may be
useful here to recite some relevant portions of exhibit A:<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">“We
expect to complete the flat by the end of 1981. We expect to receive your
cheque for payment in respect of the remaining amount due on the second deposit
not later than 30 April 1981. If we do not hear from you by the said date, we
will refund your initial deposit to you and reallocate the house to another
applicant”<o:p></o:p>At the
end of 1981 the appellant had not allocated any flat to the respondent. Seven
years later, the appellant wrote to the respondent that if he wanted his flat
he should now pay ¢3,349,000 contrary to the agreed written terms in exhibit A.<o:p></o:p>The
respondent immediately sued on his contract illustrated by exhibit A, and
claimed specific performance on the ground that although ¢21,000 of the ¢51,000
had not been paid, the amount of ¢30,000 received by the appellant constituted
sufficient act of part performance to warrant the grant of specific
performance.<o:p></o:p>The
appellant entered appearance and filed his defence. The appellant did not
dispute the breach of the contract between them. The main defence put up was
that:<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">“The
defendant says that circumstances which could best be described as extraneous
and over which the defendant could not have control militated against the
completion of the said flat by the end of 1981. The defendant took steps to
inform all its numerous clients and applicants on developments affecting the
progress of the project.”<o:p></o:p>Based
upon the statements of claim and defence and the accompanying affidavits, the
respondent moved the court for judgment under Orders 19, r. 29 and 40, r. 6 of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) in that the defence of
the appellant disclosed no reasonable defence and was only to delay and
prejudice a fair and expeditious trial. Judgment was given for the respondent.
Hence this appeal.<o:p></o:p>Counsel
for the appellant argued grounds (a) and (b) together. That is, the learned
trial judge erred in exercising his discretion to strike out paragraph (4) of
the statement of defence which had been considered as frivolous and offending
Order 19, r. 29 of L.N. 140A. Counsel argued that Order 19, r. 29 cannot be
used in affidavit evidence, and even if affidavit evidence were permissible in
this case, the learned trial judge should have called evidence first before
coming to the conclusion that no reasonable defence had been disclosed.<o:p></o:p>To this
point, counsel for the respondent argues that there is no rule of law that
where a statement of defence is to be struck out under Order 19, r. 29 of L.N.
140A for failure to disclose a reasonable defe</main>