<p class="mb-5" id="contentDlCitation" hidden>[1992]DLCA4972</p> <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" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">OKAI<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">OCANSEY<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif"">[COURT OF APPEAL]<o:p></o:p></span></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="center" style="text-align:center;line-height:115%; border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in; mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">[1992 – 1993] 3 G B R 1028 – 1048 C.A DATE: 20 MARCH 1992<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">COUNSEL:<o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">AGYARE KOI LARBI FOR THE APPELLANT.<o:p></o:p></span></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" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">ODOOM FOR THE RESPONDENT.<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></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" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">AMUAH JA, ADJABENG JA, FORSTER JA<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">ADJABENG JA. <o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The plaintiff-respondent, A K Ocansey, is the son of A J Ocansey, deceased who up to 1955, had the lease of the property known as “Park Cinema”, from the father of the 1st defendant-appellant. According to the plaintiff, when his late father obtained the lease of the land, he built on it the cinema which was at first known as Ocansey Park Cinema. A J Ocansey died when the plaintiff was 12 years of age. In 1955 one Rodger Lutterodt who, the plaintiff claimed, was the manager of his late father’s cinema, took a 25-year lease of the premises in his (Rodger Lutterodt’s) own name. This lease expired in 1980. The machines for the operation of the cinema were however still at the premises although they were not being operated. In May 1982, the plaintiff approached the 1st defendant-appellant who had also succeeded his late father for what the plaintiff termed an extension of the lease granted to his late father. The 1st defendant is said to have agreed to grant him a new lease and collected ten thousand cedis from him, the plaintiff, for which the 1st defendant issued a receipt, exhibit A. Thereafter, the plaintiff said he was given a broken gate by the 1st defendant to fix at the premises. He started to renovate the place; he repaired some electrical wires and broken fixtures, fixed a new machine at the premises and made some painting and re-decoration. He however discovered later that the 1st defendant had executed a 45-year lease in favour of the 2nd defendant with an option for renewal for 5 years at an annual rent of seventy-four thousand cedis. He challenged the 1st defendant on the turn of events and took this action against the defendants seeking an order for specific performance and perpetual injunction.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif""><o:p> </o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The 1st defendant denied that he had concluded any contract for the lease to the plaintiff for the premises in question. According to the 1st defendant, he took ten thousand cedis from the plaintiff as “rent for the machines in the Park Cinema, and to make the plaintiff to show interest for a new lease of the Park Cinema.” He did not discuss the terms of the lease or the rent with the plaintiff. According to the first defendant, the plaintiff did not make any effort to come to him for the details of the lease to be worked out and so he later gave out the premises to the 2nd defendant who paid him “goodwill” of five hundred thousand cedis and agreed to pay a monthly rent of two thousand cedis. The 1st defendant counterclaimed for a daily rent of two thousand cedis from October 1993 to date of judgment, and general damages for trespass.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The trial judge found that the receipt, exhibit A, issued by the 1st defendant for ten thousand cedis paid by the plaintiff, showed that the amount paid was “an advance payment for ground rent on the lease of Park Cinema.” According to the trial judge, “it also shows that details of the lease would be worked out later.” The judge was of the view that “the payment of ten thousand cedis ground rent by the plaintiff to the 1st defendant, going into possession of the Park Cinema, making alteration, carrying out repair works and renovation of the place is sufficient part performance on the part of the plaintiff.” The trial judge therefore held that “there was an agreement for a lease between the plaintiff and the 1st defendant and in pursuance of the agreement for a lease there was sufficient part performance on the part of the plaintiff. I will also hold that this is a case of part performance, and equity will grant specific performance.” The judge cited the case of Rawlinson v Ames [1925] Ch 96 to support his decision. The 1st defendant’s counterclaim was dismissed on the ground that he did not adduce evidence in proof thereof. The judge however made the following order:<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><i><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">“On these facts I will order that the plaintiff should pay the monthly rent which Rodger Lutterodt or Ivy Barnor was paying to the defendant whichever is higher from 26 May 1982 up to the date of judgment until a new lease agreement is entered [into] between the plaintiff and the 1st defendant.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">The 1st defendant appealed to this court on a number of grounds, the main one being ground (c), and this was the only ground argued. This ground charged that the trial judge erred in granting specific performance of an alleged lease, which did not exist. Counsel for the 1st defendant-appellant argued that before the equitable doctrine of part performance could be invoked, there should have been a pre-condition, namely, an agreement or contract between the parties. Counsel submitted that without the existence of a concluded agreement or contract the doctrine of part performance could not have been invoked as the court could not ask the parties to work out the details of the agreement as the judge did in this case. On this, counsel referred us to Gibson’s Conveyancing, 20th edition, page 57, and the Conveyancing Decree 1973 (NRCD 175). According to counsel the trial judge himself found that the terms of the lease in this case had not been agreed upon. Counsel submitted that since the duration of the term and the rent payable had not been agreed upon, and since these matters could not be inferred from the receipt, exhibit A, it could not be said that there was an agreement for a lease. The judge, counsel submitted, was therefore wrong in granting specific performance.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">There is no doubt in my mind that the arguments advanced against the grant by the trial judge of specific performance in this case are quite weighty. In my view, counsel for the respondent has not offered any convincing arguments against those canvassed above. His submission that the receipt, exhibit A, is a sufficient document showing clearly the intention of the appellant to grant a lease to the respondent seems to suggest that counsel for the respondent also fell into the same error that the trial judge had fallen. They both thought that an intention to grant a lease was the same as an agreement for a lease. Exhibit A only states that the ten thousand cedis paid was an “advance payment for ground rent on the lease of Park Cinema. Details to be worked out later.” The 1st defendant-appellant said in his evidence that he was waiting for the respondent to come to him so that they could work out these details, that is, agree on the details, for example the duration of the lease (whether 25, 30, or 50 years), the rent payable, etc. According to the appellant, the respondent did not make the effort to come to him for these important matters in respect of the lease to be discussed and agreed upon. No doubt, without an agreement on the duration of the lease, the time for its commencement, and the rent payable, it cannot be said that “there was an agreement for a lease between the plaintiff and the 1st defendant” as the trial judge held. At page 126, paragraph 2, of Gibson’s Conveyancing, 21st ed is the following passage which</main>
