ZANYO vs. FOFIE [1992]DLSC4982

Date	1992-06-23
Suit No.	[1992 – 1993] 3 G B R 1353 – 1437 S C
Citation No.	[1992]DLSC4982

FRANCOIS JSC

WUAKU JSC

OSEI-HWERE JSC

AIKINS JSC

WIREDU JSC

NANA AKUFO-ADDO (WITH AKUA DICKSON) FOR THE APPELLANTS.

E D KOM FOR THE RESPONDENT.

[1992]DLSC4982
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													<main id="main" class="content" style="min-height: 60rem" >ZANYO<o:p></o:p>vs.<o:p></o:p>FOFIE<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1992 – 1993] 3 G B R 1353 – 1437 S
C&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 23 JUNE 1992<o:p></o:p>

E
D KOM 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 1.0pt 0in">

</div>FRANCOIS JSC. <o:p></o:p>On
10 November 1975, the plaintiff entered into a tenancy agreement with the
defendant in respect of House No 33/5 Onyaa Crescent Nima, Accra. The defendant
was one of the personal representatives of the deceased owner. The plaintiff
was let into immediate occupation of the house, which was a three-storey
building with a completed ground floor ready and two other floors at various
stages of completion. The first floor required very little, while the second,
which was only a structural shell, 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 defendant. The plaintiff, through his agent, PW1,
Peters, 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 defendant
claims 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 defendant, on which account moneys had been advanced them. No
reasons however are offered for the three-year rent-free enjoyment of the
premises. We shall return to this again.<o:p></o:p>Sometime
later, the defendant became hard pressed for funds and decided to sell the
house to meet the financial exigencies of his family. It was then urged on him
by Peters, PW1, that the plaintiff, as a tenant in occupation, should be given
the first option. Thus persuaded, the defendant addressed exhibit B to the
plaintiff. The material part of exhibit B is as follows:<o:p></o:p>“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 of a meeting with the plaintiff's solicitor to
finalise the purchase as stipulated in exhibit B was communicated to the
defendant. This apparent lack of interest on the part of the plaintiff, at a
time when the defendant was in dire need of money must have led him 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 the valuation in money terms of the three-year grace period, were all
grave legal maters 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 defendant sought the payment of accumulated rent
arrears, that he was met with a fait accompli that the house had been purchased
and that what the defendant 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 v Ackun [1963] 1 GLR 176, SC. It
is on this issue of proof that the plaintiff fails. See Fry on Specific
Performance 3rd edition paragraph 278 p 129.<o:p></o:p>We
may with profit turn to the pleadings. The plaintiff, after stating in
paragraphs 5, 6 and 7 of his claim that an offer for the sale of House 33/5,
Onyaa Crescent, Nima, had been made to him by a letter of 15 October 1976,
failed to plead his mode of acceptance of the offer. In paragraph 7, the
plaintiff averred that he paid the defendant on 2 June 1986, implying a
conclusion of the contract by that date. In his sworn testimony, the plaintiff
said he accepted the offer by meeting the defendant’s family “and finalised the
price.”<o:p></o:p>What
stands out clearly is that it took the plaintiff ten years (1976-1986) to
accept an offer which required an urgent response to relieve a financial
crisis. No offer can be held vaguely open for 10 years. An acceptance of such an
offer is vulnerable to the fatal criticism that it was not communicated
timeously. Time would erode its viability.<o:p></o:p>Curiously,
the plaintiff makes no reference to the existence of exhibit 1 entered into
with the defendant in 1975, which made him a tenant of the premises and created
a landlord and tenant relationship. The plaintiff claims the equitable relief
of specific performance on the basis of having paid a purchase price and
executed acts of part performance entitling him to that relief. But it is unconscionable
for a tenant to live in a house for the legal term of his lease, and then to
tot up rents payable, transform them into a purchase price so as to confer
ownership of the house on him. Sullied hands never found favour in a court of
equity. Unless concrete, convincing evidence was forthcoming to counteract,
negate or nullify an early unfavourable impression, one is left with an almost
unshakeable conclusion that something akin to fraud was being perpetrated in
this alleged purchase. Consequently, there was an imperative need to subject
the evidence to critical, dispassionate consideration.<o:p></o:p>The
offer in exhibit B, affected land, therefore a </main>