DR. SMUEL PENNY SMSITH, MADAM AKUA ESSUMANBA vs. MADAM ELIZABETH BLANKSON [2008]DLSC2454

Date	2008-01-30
Suit No.	CIVIL APPEAL NO. J4/10/2007
Citation No.	[2008]DLSC2454

MISS AKUFFO J.S.C. (PRESIDING)

DR. DATE-BAH J.S.C.

ANSAH J.S.C.

MRS ADINYUIRA J.S.C.

ASIAMAH J.S.C.

MR. WARD-BREW FOR THE APPELLANT.

MR. FREMPONG BOADU FOR THE RESPONDENT.

[2008]DLSC2454
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													<main id="main" class="content" style="min-height: 60rem" >DR. SMUEL PENNY SMSITH, MADAM AKUA ESSUMANBA<o:p></o:p>vs.<o:p></o:p>MADAM ELIZABETH BLANKSON<o:p></o:p>[SUPREME COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/10/2007<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">

DATE: 30TH JANUARY 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
WARD-BREW 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">

MR.
FREMPONG BOADU FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

MISS
AKUFFO J.S.C. (PRESIDING), DR. DATE-BAH J.S.C., ANSAH J.S.C., MRS ADINYUIRA
J.S.C., ASIAMAH&nbsp; J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>AKUFFO, (MS), J.S.C.:<o:p></o:p>The
Appellants herein (hereinafter referred to as the Plaintiffs), by their writ of
summons issued on 9th September 1994, commenced legal action against one
Elizabeth Blankson (hereinafter referred to as ‘the Defendant) claiming a
number of reliefs which may be summed up as follows:-<o:p></o:p>1. Declaration of title to certain
premises at Lartebiokorshie, Accra, consisting of one uncompleted story
building and one completed boys’ quarters (hereinafter referred to as ‘the
property’).<o:p></o:p>2. A declaration that the agreed
purchase price for the premises was ¢19,000,000.00 (now GH¢1,900.00) and that
full payment thereof has been paid by various instalment payments.<o:p></o:p>3. A decree of specific performance of
the contract of sale already executed or partly performed and an order to the
Defendant or the Registrar of the High Court to execute the requisite documents
duly conveying the property to the 2nd Plaintiff<o:p></o:p>4. Payment of accumulated rents and
mesne profits by the Defendant to the plaintiffs. <o:p></o:p>5. Refund of amounts paid as deposit
to the Defendant pending the remittance of the purchase price.<o:p></o:p>6. General damages for breach of
contract. <o:p></o:p>The
brief facts in this matter are that the 1st Plaintiff (suing by one Sarah
Chinebuah who describes herself as his lawful attorney) is the son of the 2nd
Plaintiff. The 1st Plaintiff was at all material times normally resident in the
United States of America and his declared intention was to purchase the
property for the 2nd Plaintiff. Sometime in or about January 1989, the
Plaintiffs expressed to the Defendant an interest in purchasing the property
and commenced negotiations with her. According to the Plaintiffs’ pleadings,
the negotiations resulted in an agreement that the purchase price would be
¢19,000,000.00. According to the Defendant, however, there was a tentatively
agreed price of ¢22,000,000.00 (now GH¢2,200.00), the final price being subject
to the outcome of a valuation to be conducted. The agreement was never reduced
into writing and, whatever the agreed price, the understanding was that the
same would be completely paid by May 1989. In April 1989, however, the 1st
Plaintiff sent to the Defendant a tape recorded message informing her that,
owing to the outbreak of the Gulf War, he was unable to complete the payment of
the purchase price as promised and he then put the Defendant to her option of
either selling the property to any other person or waiting till the end of the
said war when the 1st Plaintiff would be able to remit the money. As it
transpired, although the Defendant did not communicate to the Plaintiffs any
particular choice, she did not sell the property to any other person and when,
in July 1991 the 1st Plaintiff, through the 2nd Plaintiff, commenced paying
various amounts to the Defendant she accepted such payments. These payments
continued, sporadically, until December 1993; by which time, as admitted by the
Defendant, a total amount of ¢19,000,000.00 had been received from the 1st
Plaintiff. <o:p></o:p>In
addition, prior to the commencement of the aforesaid payments, the 2nd
Plaintiff also advanced various amounts of money to the Defendant, totalling
¢470,000.00 (now GH¢47.00) and US$2,200.00 respectively. It is clear from the
record that both parties to the transaction regarded these payments as being
unrelated to the house purchase transaction. Also, before the payments
commenced in 1991, the Defendant allowed other children of the 2nd Plaintiff to
occupy the uncompleted storey building whilst the Defendant continued to occupy
the completed boys’ quarters. <o:p></o:p>&nbsp;Subsequently, the 1st Plaintiff, by a
facsimile transmission (hereinafter referred to as ‘Exhibit 1’), headed ‘Re:
Said Property on Link Road in Lartebiokorshie’, dated March 16th 1994,
communicated to the Defendant as follows:-<o:p></o:p>&nbsp;<o:p></o:p>“This is a promissory note from Dr.
Penney Smith to Mrs. Elizabeth Blankson requesting that my mother, Auntie Akua
Essumamba be permitted to move into and reside in the above said property until
such time that all monies paid to Mrs. Blankson towards the purchase of the
said property are completely reimbursed to Auntie Akua Essumamba.<o:p></o:p>Upon complete payment of the said amount,
Auntie Akua Essumamba be given a reasonable time of about two to three weeks,
not to exceed four weeks to acquire a new place to reside.<o:p></o:p>I hope this will guarantee reassurance
to all parties involved. Thank you for your consideration in this matter.”
(emphasis mine)<o:p></o:p>The
2nd Plaintiff moved into the uncompleted house in August 1994, evidently
without the agreement of the Defendant. After considerable friction between the
2nd Plaintiff, her children residing on the property and</main>