FOFIE vs. ZANYO [1992]DLSC2016

Date	1992-06-23
Suit No.
Citation No.	[1992]DLSC2016

FRANCOIS JSC

WUAKU JSC

OSEI-HWERE JSC

AIKINS JSC

EDWARD WIREDU J.S.C.

NANA AKUFO-ADDO (WITH HIM EFUA DICKSON) FOR THE DEFENDANT- APPELLANT.

E. D. KOM FOR THE PLAINTIFF-RESPONDENT.

[1992]DLSC2016
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">FOFIE<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ZANYO<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 475<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>NANA AKUFO-ADDO (WITH HIM EFUA DICKSON) 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">

E. D. KOM FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

FRANCOIS, WUAKU, OSEI-HWERE, AIKINS AND EDWARD WIREDU JJ.S.C. <o:p></o:p>

</div>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>On 10 November 1975 the plaintiff entered into a tenancy agreement
with the defendants in respect of house No 33/5, Onyaa Crescent, Nima, Accra.
The defendants were the personal representatives of the deceased owner.<o:p></o:p>The plaintiff was let into immediate occupation of the Nima house
which was a three-storeyed building with a completed ground floor ready for
occupation and two other floors in various stages of completion. The first
floor required very little, while the second which had only a structural shell
in place, required considerable development.<o:p></o:p>The lease (exhibit 1) signed by the parties in 1975 was for a term
of ten years at ¢600 rent a month. Three years rent-free occupation was a
concession granted to the plaintiff, while three years rent advance, to take
effect from 1978, was stipulated to be paid to the defendants. The plaintiff
through his agent Peters, the first plaintiff witness, put tenants into the
demised premises from whom he collected rents for the three-year period.<o:p></o:p>The significance of this three-year grace period has provoked
debate. The defendants claim it was to enable the plaintiff complete the
construction of the house. The plaintiff denies this and avers that the
completion of the house was rather the duty of the defendants on which account
moneys had been advanced them. No reasons however are offered for the three
years rent-free enjoyment of the premises. We shall return to this again.<o:p></o:p>Sometime later, the defendants became hard-pressed for funds and
decided to sell the Nima house to meet their financial exigencies. It was then
urged on them by Peters, the first plaintiff witness mentioned above, that the
plaintiff as a tenant in occupation should be given the first refusal. Thus
persuaded, the defendants addressed exhibit B to the plaintiff. The material
part of exhibit B is as follows:<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">“... I am prepared to offer the house to you for sale. The selling
price is ¢75,000. If this is acceptable to you, please confirm to enable us
hold a meeting with your solicitor on the matter. Hoping to hear from you
soon.”<o:p></o:p>It was clearly recognised that the sale of the house was dictated
by extreme financial straits. But the plaintiff never formally responded to the
offer. No letter in reply was written, nor did any other token of acceptance
proceed from the plaintiff. No arrangement was ever communicated of a meeting
with the plaintiff’s solicitor to finalise the purchase as stipulated in
exhibit B. This apparent lack of interest on the part of the plaintiff, at a
time when the defendants were in dire need of money, must have led them to
consider the offer rejected.<o:p></o:p>Save for a passing expression of interest, nothing further had
been done. A mere expression of interest cannot create any binding legal
relationship, let alone an enforceable contract. The need for a solicitor,
stated in exhibit B, was also an essential element in the arrangement, since
important matters like the mode of payment, inspection of documents of title,
questions on mortgage payments on the house, the adjustment of rent previously
paid in advance as well as valuation in terms of the three-year grace period,
were all grave legal matters in the equation requiring the solicitor’s
expertise to reduce the coalescing of minds into a document that would meet the
approval of all parties and obviate future dispute.<o:p></o:p>It was however only when the defendants sought the payment of
accumulated rent arrears, that they were met with a fait accompli that the Nima
house had been purchased and that what the defendants regarded as arrears of
rent was rather the balance of the purchase price.<o:p></o:p>Clearly if the plaintiff was contending that he had concluded a
contract, the burden of proving it was on him: see Bank of West Africa Ltd. v.
Ackun [1963] 1 G.L.R. 176, S.C. It is on this issue of proof that the plaintiff
fails: see Fry on Specific Performance (3rd ed.), para. 278, p.126. The burden
of proving a concluded contract b</main>