IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: PWAMANG JSC (PRESIDING)
ASIEDU JSC
DARKO ASARE JSC
DZAMEFE JSC
BARTELS-KODWO JSC
CIVIL APPEAL NO. J4/26/2024
18TH MARCH, 2026
M. J. STEEL (GHANA) ………. PLAINTIFF/APPELLANT/RESPONDENT
VRS
A. LANG LIMITED .……… DEFENDANT/RESPONDENT/APPELLANT
JUDGMENT
DARKO ASARE JSC:
1. My Lords, this appeal pertains to salient issues germane to the law of contract, entailing the proper construction of contractual terms, performance obligations, repudiatory breaches, and attendant remedies. The key question raised for determination in this appeal is whether a defaulting purchaser of land can resist termination of the contract by relying on part performance of obligations, notwithstanding his failure to settle the full payment price on time.
2. The appeal emanates from a judgment of the Court of Appeal, Accra dated the 28th of January 2022, reversing the trial court’s decision, which had dismissed the Plaintiff/Appellant/Respondent’s claim against the Defendant/Respondent/Appellant for an order for a more perfect assurance and transfer of title, and for injunctive relief.
3. For purposes of convenience, the Parties shall bear the same designation as in the trial court and accordingly, the Plaintiff/Respondent herein shall simply be referred to as the Plaintiff, whilst the Defendant/Appellant shall be referred to as the Defendant.
FACTS
4. The Defendant, a limited liability company, was the owner of two leasehold properties and described as Kumasi Plot No. 17, Block “J” (S.5117/TJ) and Kumasi Plot No. OI Block XVIII (K.16568) Suame. The Plaintiff also a limited liability company, was a tenant in the said premises whereon it operated its businesses. The Defendant was desirous of disposing its interests in the said properties and offered them to the Plaintiff. The latter was interested, and agreed to buy. Accordingly, on the 13th of August 2009, both Parties entered into a contract by which the Defendant offered to sell and the Plaintiff agreed to purchase the said properties for the sum of USD$350,000.00, on certain terms and conditions.
5. Two instruments of conveyances were prepared to embody the terms and conditions of the Parties’ agreement, first a Contract of Sale tendered into evidence at the trial as Exhibit “H”, dated 13th August 2009, and a Deed of Assignment also dated 13th August 2009 tendered as Exhibit “E”.
6. On the 14th of August 2009, the Defendant wrote a letter Exhibit “A” addressed to the Plaintiff requesting the latter to (i) undertake an immediate settlement of the outstanding mortgage debt on the properties, in the amount of Ghc74,268.22 due to the Ghana Commercial Bank, Suame Branch, deduct it from the sale proceeds, and also release a cheque for payment of commitment fee (ii) provide details of monies owed, including overpaid rent, and finally (iii) propose a final settlement of the outstanding amount.
7. In response to Exhibit “A”, the Plaintiff authored Exhibit “B” dated the 18th of August 2009, addressed to the Defendant company, setting out a number of stipulations. First it set out that an amount of GHc74,268.22 out of the purchase price was at Defendant’s request, being paid to the Ghana Commercial Bank (GCB) to redeem the disputed properties from mortgage, and secondly, it also set out an account of how much was owed the Plaintiff by the Defendant out of the rental of the disputed premises for the period and which was to be deducted from the balance of the purchase price.
8. It was common ground between the Parties that the first two stipulations were uncontested, merely specifying payment modalities. But then comes the third important stipulation in Exhibit ”B” which is quite significant and on which as will presently become evident, this litigation largely turned. It reads:
“We also hereby confirm that the final settlement of the outstanding purchase consideration would be made the moment we obtain the consent from the Land Commission on the property”
9. On its part, the Plaintiff interpreted the clause as a precondition, with payment of the balance being contingent on Defendant obtaining Lands Commission consent to effect a valid transfer of title. Plaintiff averred that despite assuming the responsibility under the contract to obtain the requisite consent before final payment was made, the Defendant defaulted. It was further averred that Defendant’s default notwithstanding, the Plaintiff was constrained to make full payment of the outstanding balance at a later date, on the 26th of March 2010. Plaintiff stated that inspite of full payment having been made, the Defendant still neglected to secure the necessary consent and rather sought to terminate the contract of sale, a situation which compelled the Plaintiff to institute the instant action for redress and for an order to perfect title transfer.
10. The Defendant disputed the Plaintiff’s claim, arguing the stipulation in Exhibit “B” was not a precondition for payment, and did not impose any obligation to obtain consent. According to the Defendant, the obligation was only limited to submitting an application to the Lands Commission for its statutory consent, which was done. In spite of that, the Plaintiff refused to settle the payment price, insisting that the liability to pay only arose upon the Defendant actually securing the Lands Commission consent. The Defendant construed the Plaintiff’s stance as a repudiation of the contract of sale and therefore exercised the right of termination.
11. After issues were settled, the trial opened before the High Court, with the Parties presenting evidence that largely reiterated their respective pleadings.
DECISION OF THE HIGH COURT
12. The learned trial judge resolved the issues in controversy against the Plaintiff and held that its failure to timeously settle the outstanding balance on the purchase price constituted repudiatory conduct justifying termination and rescission by the Defendant.
13. The Plaintiff promptly lodged an appeal against the trial court’s judgment, contending that the decision was wrong both on the facts and the law.
COURT OF APPEAL’S DECISION
14. The Court of Appeal overturned the trial court’s judgment, holding that Defendant’s failure to obtain consent, a contractual pre-condition to Plaintiff’s full payment, precluded it from terminating the contract. The Court of Appeal determined that as Plaintiff had partly performed by making part payment, Defendant’s refusal to obtain consent and effect a valid transfer of title was wrongful, rendering the termination invalid.
15. Being aggrieved and dissatisfied with the Court of Appeal’s judgment, the Defendant has filed the instant appeal inviting this Court to reverse the decision on the following grounds:-
a) The Honourable Court of Appeal erred when it held contrary to statutory provisions that it was the duty of the Defendant/Respondent/Appellant to obtain the consent which issuance was the preserve of the Lands Commission.
b) The Honourable Court of Appeal erred when it failed to hold that the issue of obtaining consent was not a term of the sale agreement.
c) The Honourable Court of Appeal erred when it failed to hold that the Defendant/Respondent/Appellant had rightly resiled from the contract of sale which terms were never complied with or fulfilled by the Plaintiff/Appellant/Respondent.
d) The Honourable Court of Appeal erred in holding that the Plaintiff/Appellant/Respondent having, relieved the Defendant from its indebtedness, the Defendant cannot rescind, resile or abrogate the contract.
e) The Honourable Court of Appeal erred in granting the reliefs sought by the Plaintiff Appellant/Respondent when the evidence on record shows that the contract was breached by the Plaintiff/Appellant/Respondent
f) The Honourable Court of Appeal erred when it held that the Defendant/Respondent/Appellant hindered the obtaining of the consent when it duly resiled from the contract.
g) The Honourable Court of Appeal erred in it finding that the Defendant/Respondent/Appellant hindered the obtaining of the consent is not supported by the facts and evidence as the Defendant/Respondent/Appellant had written twice to the Lands Commission for it to issue the said consent
h) The Honourable Court of Appeal erred when it held that there was a valid and enforceable contract of sale which the Defendant/Respondent/Appellant could not resile from when in fact it was the Plaintiff/Appellant/Respondent who had breached the terms of the contract by not paying the outstanding balance in fulfilment of its part of the agreement.
i) The Honourable Court of Appeal erred when it applied the equitable doctrine of part performance to the instant case and decreed same in favour of the Plaintiff/Appellant/Respondent
j) The Honourable Court of Appeal failed to consider the case of the Defendant/Respondent/Appellant in its judgment and sought to solely rely on the case of the Plaintiff/Appellant/Respondent.
k) The Judgment is against the weight of evidence on record.
16. Before disposing of the merits of the appeal, two preliminary matters call for brief consideration.
17. In the first place, learned Counsel for the Plaintiff invites the Court to strike out the Defendant’s Statement of Case contending that the filed process deviates materially from the draft Statement of Case annexed to the Defendant’s application for an extension of time to file. We find this submission to be misconceived. A plain reading of the Supreme Court Rules, 1996 C.I. 16, reveals no requirement that a filed Statement of Case must exactly mirror the draft version attached to an application for extension of time, thereby precluding amendments in the intervening period. Such an interpretation would unduly fetter the litigative process. The attempted analogy by Plaintiff’s Counsel, with joinder applications is inapt and without merit. This issue warrants minimal discussion. We dismiss the invitation, finding it devoid of legal basis.
18. The second preliminary issue relates to the long list of grounds of appeal, a perusal of which gives the clear impression that the Defendant over reacted to the decision of the Court of Appeal, as borne out by the many and repetitive grounds of appeal filed, which in the result were mostly duplicative, superfluous, and unnecessarily overlapping. We make this observation in view of our thinking that all eleven (11) grounds of appeal could easily have been conveniently condensed under a few grounds, for purposes of judicial economy and clarity of thought.
19. From the above grounds of appeal referred to supra, it is quite evident that, the main allegations germane to this appeal essentially turn on four central issues. For example, grounds (a) and (b), are all related to the issue whether the Court of Appeal fell into error by holding that the consent stipulation in Exhibit “B” was a term and condition of the Parties’ agreement of sale; grounds (f) and (g) relate to whether the Court of Appeal fell into error by holding that it was the Defendant rather than the Plaintiff which had breached the contract of sale; grounds (c), (d),(e), (h) and (i) relate to the issue whether the Defendant was not entitled to terminate the agreement of sale; and finally, grounds (j) and (k) relate to allegations of wrongful evaluations of the evidence on the record.
20. Given the above antecedents, we take the view that four main issues are dispositive of this appeal, namely:
(i) whether the Court of Appeal erred in finding that the Lands Commission consent stipulation in Exhibit “B” governed payment obligations under the Parties’ agreement of sale;
(ii) whether the Court of Appeal erred in finding no implied timeframe for completion, making time of no essence for payment;
(iii) whether Court of Appeal erred in finding that the Plaintiff’s refusal to pay was not repudiatory breach; and finally,
(iv) whether Court of Appeal erred in finding that the Defendant was not entitled to terminate the contract of sale due to Plaintiff’s alleged breach.
ANALYSIS OF GROUNDS OF APPEAL
Grounds (a) and (b)
21. At this re-hearing, the Defendant’s arguments impugning the Court of Appeal’s judgment may briefly be summed up as follows: The Court of Appeal erred by failing to find that the consent condition in Exhibit “B” was not a contract term, but a fraudulent ruse used by the Plaintiff to avoid timely payment. Again, the Court of Appeal fell into error when it held that the Plaintiff’s failure to settle the purchase price within three days did not constitute repudiatory breach, especially given the Plaintiff’s awareness that the Defendant urgently needed funds to settle debts, with the Defendant’s repudiatory intent further manifested by its stoppage of a cheque for payment of commitment fee. It was next argued that the Court of Appeal erred in applying the doctrine of part performance, thereby improperly striking down the Defendant’s termination rights. Learned Counsel further argued that having done all that was required to be done under the agreement of sale, the order sought by the Plaintiff for perfect assurance of title was untenable and ought to fail and that the Court of Appeal erred in holding otherwise.
22. In brief summary, the Plaintiff’s response was that the Court of Appeal correctly found that the consent precondition in Exhibit “B” governed the terms of payment and that it was the Defendant which was in breach by failing to discharge that obligation. The Plaintiff argues it performed substantial acts of part performance by paying the mortgage debt on the properties and at a later date, settling the full balance of the price, despite Defendant’s breach, justifying the Court of Appeal’s refusal of Defendant’s termination rights. The Plaintiff therefore urges this Court to dismiss the appeal, saying the Court of Appeal’s judgment aligns with facts and law.
23. We have critically reviewed the evidence on the record and carefully considered learned Counsel’s arguments in their written briefs.
24. At the outset of our evaluation, it is crucial to recognize that the Plaintiff’s contentions proceeded from the undisputed premise, that the Parties’ Contract of Sale and Deed of Assignment did not explicitly contain any precise terms, making payment contingent on procuring Lands Commission consent.
25. Plaintiff’s case rather relied heavily on a correspondence dated the 18th of August 2009 (Exhibit “B”) written by the Plaintiff and addressed to the Defendant, in which the Plaintiff purported to confirm its proposals that the final settlement of the outstanding purchase price would be made the moment the consent to effect a valid transfer of title is received from the Land Commission
26. The Plaintiff’s contentions therefore raise for this Court’s primary consideration, two key issues: the proper interpretation of the transfer instruments executed by the Parties on the 13th of August 2009, namely the Deed of Assignment and the Contract of Sale, (Exhibits “E” and “H”), and the legal position on extrinsic matters contained in the letter dated the 18th of August 2009, Exhibit “B”, claimed to form part of the agreement.
Whether on a proper interpretation of the written agreements (Exhibits “E” and “H”), the stipulation regarding Lands Commission consent in the letter dated 18th August 2009, Exhibit “B”, forms part of the contract, governing payment obligations?
27. It is often the case that where negotiations have been held leading to the conclusion of a contract, it may be necessary to ascertain which representations form part of the concluded contract.
28. In ascertaining which representations form part of the contract, it has long been held that when the contract has been reduced to writing as in this present case, the parol evidence rule applies to exclude evidence which would add to, vary or contradict the terms of the written document. See Orion Insurance Co Plc v Sphere Drake Insurance Plc [1992] 1 Lloyds Rep 239 at 273. See also Mouganie v Yemoh [1977] 1 GLR 163. In Donkor v Maye Kom Mehwe Onyame Association (2007-2008) SCGLR 179 the Supreme Court held per its holding 2 that: “it is well settled that a written document which is properly authenticated cannot be varied or contradicted by oral evidence”.
29. It must be stressed that the operation of the parol evidence rule is not confined to oral evidence alone; it has been taken to exclude extrinsic matters in writing such as drafts, (National Bank of Australasia v Falkingham & Sons [1902] A.C. 585); preliminary agreements (Henderson v Arthur [1907] 1 KB 10; and Youell v Bland Welch [1992] 2 Lloyd’s Rep. 127;) and letters of negotiations (Mercantile Bank of Sydney v Taylor [1893] A.C. 317).
30. In Ghana the rule has been codified in the Evidence Act 1975 (NRCD 323) at section 177, which provides thus:-
Extrinsic Evidence Affecting the Contents of a Writing;
(1) Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to such terms as are included in the writing may not be contradicted by evidence of any prior declaration of intention, of any prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented—
(a) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the intention or agreement, provided that a will and a registered writing conveying immovable property shall be deemed to be a complete and exclusive statement of the terms of the intention or agreement; and
(b) by a course of dealing or usage of trade or by course of performance.
(2) Nothing in this section precludes the admission of evidence relevant to the interpretation of terms in a writing.
31. Of course, the parol evidence rule admits of exceptions and it has been severally held in a litany of cases that the rule will cease to apply in cases of mistake, illegality, fraud and misrepresentation or where the evidence led is not to contradict but to explain or supplement the final written document. See the illuminating concurring views of Pwamang JSC in the case of Duodu Sakyiama v Tema Development Corporation C.A No J4/25/2015 dated 6th June 2016
32. Learned Counsel for the Plaintiff posits in his Statement of Case that the Defendant’s letter, Exhibit “A”, evidences an antecedent oral agreement, extrinsic to the deeds of transfer, whereby final payment was contingent upon obtaining consent from the Lands Commission. This, Counsel argues, is corroborated by Exhibit “B”, which confirms this understanding. Furthermore, Counsel contends that the Defendant’s unqualified acceptance, without any objection, of part payment, which was effected through a cheque attached to Exhibit “B”, reinforces the existence of this prior agreement, thereby rendering the Defendant’s allegations of unilateral imposition unfounded. Consequently, so argued learned Counsel, the stipulation in Exhibit “B”, linking payment to prior consent, forms an integral and binding part of the Parties’ contract of sale.
33. Having however given thoughtful consideration to learned Counsel’s submissions, we are left in no doubt that they fall far short of invoking the exceptions to the parol evidence rule, as examined in Orion Insurance Co Plc v Sphere Drake Insurance Plc (supra) and Duodu Sakyiama ν Tema Development Corporation. (supra). We accordingly dismiss the submissions as unfounded. The rationale is straightforward.
34. To begin with, we are not satisfied from an examination of the record that either of the Parties’ primary concern in exchanging the letters, Exhibit “A” and “B”, extended beyond addressing mere modalities of payment for the purchase price of the properties in dispute. In fact, we find nothing in the said correspondence to suggest an intent to introduce new terms, or fix preconditions affecting contract completion or payment timeframes, beyond the terms and conditions embodied in the title transfer documents, Exhibits “E” and “H”.
35. Reading the two letters, Exhibits “A” and “B” together, it is plain that Plaintiff was merely confirming or offering its proposals for payment modalities, not committing to a binding agreement. The word “confirm” in this context certainly does not imply prior agreement on payment terms; rather, it indicates Plaintiff was putting forward its proposals for the first time. In effect, the contents of Exhibit “B” did not stipulate concluded payment terms.
36. We agree with Defendant’s Counsel that had the Defendant at the time thought that Exhibit “B” was introducing a fresh term of making Lands Commission consent a pre-condition for full and final payment of the purchase price, it would have doubtless refused to pledge itself to such an undertaking. Simple logic dictates that given that the Lands Commission consent is a statutory requirement beyond the Defendant’s control, it is implausible that the Defendant would assume responsibility for this process, much less tie final payment to such a contingency. In conclusion, we are persuaded, having regard to the character of the contents of Exhibit “A” and “B”, that the Defendant’s focus was on simple payment procedures or modalities, other than substantive matters seeking to introduce pre-conditions for payment.
37. The Court of Appeal appears to have accepted the Plaintiff’s argument that Defendant’s failure to object to the consent stipulation in Exhibit “B” implied acceptance, thereby elevating it to a contractual term. The lead judgment observed thus:-
“Furthermore, it is my considered view that if the Defendant was not agreeable to the condition in the confirmation for the final settlement, it ought to have returned Plaintiff’s cheque or communicated its disagreement on the condition precedent for the final settlement of the outstanding purchase consideration for the two properties to the Plaintiff.”
38. We think, with all due deference, that the Court of Appeal fell into grave error in reaching the conclusion above. We are unable to appreciate how the Defendant’s failure to object to the consent stipulation in the letter dated the 18th of August 2009, (Exhibit “B”) can retroactively incorporate unilateral terms into a concluded contract dated the 13th of August 2009 (Exhibits “E” and “H”), given that the sanctity of written contracts must invariably prevail.
39. We are therefore satisfied, and we think it worth reiterating, that the proposed pre-conditions for payment stipulated in the letter dated the 18th of August 2009 (Exhibit “B”), cannot as a matter of law, be interpreted as forming part of the contractual terms, the Defendant’s omission to object to that stipulation notwithstanding.
40. Over and above the matters discussed supra, it is also plain that the parol evidence rule, gains added significance in this present case, where agreements relating to transfer of interests in land are required by statute to be in writing.
41. Section 2 of the erstwhile Conveyancing Act 1973 (NRCD 175) which governed this instant transaction, mandated that transfers of land interests be evidenced by a written memorandum signed by the Party to be charged or his agent. This statutory requirement therefore envisages that the memorandum must state the material terms of the contract. Instructively, the language of this provision is mandatory, and the Courts have shown no reticence in striking down transactions which offend this statutory regime. See for instance the views of Apaloo CJ (as he then was) in the case of Acquah v. Oman Ghana Trust Holdings Ltd. [1984–86] 1 GLR 157 at page 167
42. Extrinsic evidence is consequently not admissible to prove that the Parties agreed material terms, which ought to have been, but were not included in the memorandum, since the admission of such evidence would plainly not satisfy the statute. See Holmes v Mitchell [1859] 7 C.B. N.S. 361. See also Chitty on Contract, 32nd Ed, vol. 1 para 13-105 at page 1074.
43. Our analysis afore-said leads us to agree with Defendant Counsel’s submissions that the Court of Appeal fell into grave error in accepting the payment proposals in Exhibit “B” as determinative, leading to a flawed conclusion that the Plaintiff’s payment liability arose only after the Lands Commission’s consent was obtained by the Defendant.
44. Apart from falling foul of the parol evidence rule, we further note that the Plaintiff’s contention that the Lands Commission consent was a condition precedent to payment, borne exclusively by the Defendant, appears inconsistent with this Court’s established jurisprudence, as seen in Western Hardwood Enterprises Ltd v West African Enterprise Ltd [1998-99] SCGLR 104 at 105. There, this Court emphasized that Ministerial consent follows completion of disposition processes, not precedes them. It then observed as follows:-
“It is therefore in the interest of the Lessee to secure the Minister’s concurrence; the vendor need not bother himself with that”
See also Schandorf v Zeini [1976] 2 GLR 418 at 440 – 441
45. The foregoing analysis harshly exposes the inherent infirmity plaguing Plaintiff’s consent precondition, not only by its irreconcilable inconsistency with the express terms of the Parties’ transfer instruments, but also by its stark disregard for established legal precedent. No court of law, in our considered opinion, will lend its aid to a stipulation, so lacking in merit.
46. The principle that consent follows completion of disposition processes and not precedes them, also aligns with the principles adumbrated in such cases as Pym v Campbell [1856] 6 E & B 370, and Hargreaves Transport Ltd v Lynch [1969] 1 W.L.R. 215, which highlight the dangers of making performance contingent on prior third-party approval, due to risks to contractual validity.
47. A further consideration undermining Plaintiff’s reliance on the consent pre-condition is its intrinsic indefiniteness, being an event outside the Parties’ control and susceptible to delay.
48. As Lord Denning MR aptly observed in Hargreaves v Lynch [1969] 1 W.L.R. 215, at 219, a case with parallels to this one, where payment obligations under a land sale agreement were similarly contingent on securing local authority permissions, “….there is many a slip between cup and lip…..”, thereby highlighting the risks of intervening matters leading to delays. Given the risks of delays, the Defendant’s rejection of the consent stipulation as a payment precondition, resonates with persuasive force, and we so hold.
49. The learned Justices of Appeal, in our considered opinion, would likely have reached a different outcome had they adverted their minds to the principles articulated in the authorities examined above. They failed to do so, and in consequence fell into error.
50. Upon meticulous examination of the record therefore, we conclude that the stipulation in Exhibit “B”, conditioning payment on Lands Commission consent, represents extrinsic evidence of a contemporaneous or post-contract proposal, impermissibly seeking to alter the terms of the Parties’ deeds of transfer. This attempted variation falls squarely within the prohibition of the parol evidence rule, as it introduces novel payment terms inconsistent with the lump sum payment structure envisaged by the contract of sale. More significantly, it is also juridically unsound, being contrary to precedent like Western Hardwood Enterprises Ltd v West African Enterprise Ltd (supra).
51. In light of the analysis above, we hold that the Defendant is entitled to succeed on grounds (a) and (b) of the appeal, and we conclude that as with other land sales agreements governed by Section 2 of the erstwhile Conveyancing Act 1973, the Parties’ transfer documents, to wit, the Deed of Assignment (Exhibit “E”) and the Contract of Sale (Exhibit “H”) must be this Court’s sole guides for determining the purchase price payment terms.
52. This leads us to consider whether the Parties’ said deeds of conveyance stipulated a time frame for completion and payment and whether time was the essence of the contract.
Whether the Parties’ conveyancing documents stipulated a time frame for completion and payment and if time was of the essence for payment
53. A close examination of the contents of both the Deed of Assignment, Exhibit “E” and the Contract of Sale, Exhibit “H” reveal that they were equally silent on the specific time for payment of the purchase price; neither did the instruments of transfer stipulate any express provision making time of payment to be of the essence.
54. Learned Counsel for the Defendant invites this Court to hold that even though time was not initially embodied in the written contract of sale as an essential component, time for payment of the full purchase price was of material consequence, as a time element was either contemplated by the Parties or was inherent in the nature of the agreement. He contended that the Plaintiff was aware of the fact that the sale of the disputed properties was intended to liquidate pressing debts owed to financial institutions, and this circumstance necessitated full settlement of the balance within three days of executing the deeds of transfer.
55. Having carefully considered the submissions, we find nothing that commends itself to the contentions pressed on this Court by Defendant’s Counsel. We are not satisfied that any evidence exists on the record to suggest that the Plaintiff knew or should have known the sale proceeds were intended to settle unspecified liabilities owed to unidentified financial institutions. Nor does the record contain evidence supporting the Defendant Counsel’s claim of a three-day payment schedule, a submission the trial Judge found unconvincing and which we similarly dismiss.
56. The question which then suggests itself is whether the absence of any time component embodied in the instruments of transfer, imply that the time for payment should be left indeterminate, making time of no essence? We think not.
57. To begin with, it is important to recall the settled position restated as far back as the 19th century by Sir John Romilly MR in the case of Parkin v Thorold [1852] 16 Beav 59 at page 65 that “……at law time is always of the essence of the contract…” See also Chitty on Contract 32nd Ed. vol. 1, para 21-011, where the same legal position is reaffirmed
58. Even in the absence of express stipulation in a contract for sale of land, equity may imply time to be of the essence. For instance, if one party delays unreasonably, the other can make time of the essence by giving notice for future performance. See Quadrangle Development and Construction Co. v. Jenner [1974] 1 W.L.R. 68, C.A.
59. If the delay is severe and it is clear the other party will not proceed, no notice is needed as seen in In re Stone and Saville’s Contract [1963] 1 All ER 353, where a purchaser rescinded due to the vendor’s inability to show good title. At page 357 of the report, Upjohn L.J with whom Diplock L.J concurred, stated as follows:-
“……..the only reasonable inference, accordingly, that could be drawn was that the vendor was not going to answer the requisition concerning the restrictive covenant; therefore, it was unnecessary for the purchaser to give any notice making time the essence and fixing a period within which the vendor must answer the requisition, before she, the purchaser, rescinded the contract”
See also Agyei-Acheampong v. Donkor [1980] GLR 108
60. Again as was said in Koglex v. Katefield (Mrs.) (1998-99) SCGLR 451 at p. 459, by Hayfron-Benjamin, JSC:-
“And even if no time was agreed upon, the nature of the contract would imply reasonable time into it since the contract could not be expected to run “ad infinitum”.
61. We have tested the facts on record against the above principles, which yield clear and unchallenged evidence that the Defendant promptly demanded payment of the outstanding balance post-conveyance, which the Plaintiff trenchantly refused, citing non-procurement of Lands Commission consent as a condition precedent, thereby demonstrating a clear unwillingness to complete the contract.
62. Under the circumstances, we are satisfied that this case falls squarely within the principles adumbrated in such authorities as In re Stone and Saville’s Contract (supra), as the Plaintiff’s unwillingness to proceed was clear, relieving the Defendant of giving notice to make time of the essence. Consequently, we hold that time became of the essence, in this case, with the result that the Plaintiff assumed the obligation to promptly settle the purchase price, following the August 2009 conveyance.
63. The above notwithstanding, as late as December 2009, the Plaintiff persisted in its refusal to pay, citing the procurement of the Lands Commission consent as a pre-condition for payment, as well as the non-completion of a rezoning exercise by the Town & Country Planning Department.
64. At the trial evidence was adduced by the Plaintiff through its representative, one Ashok Balani who testified at paragraphs 14-15 of his Witness Statement as follows:-
14. Both parties agreed that the final payment would be made when the requisite consent had been obtained to ensure a perfect assurance of the assignment of the properties to the Plaintiff…..”
15. The Plaintiff denies that there was any delay on its part in making the final payment and even if there was, same was occasioned by the Defendant whose transactions with Adcof Ventures/English Garden Ltd resulted in the need for re-zoning to be effected.
65. The Plaintiff’s refusal to pay the outstanding balance for the reasons cited, prompts a consideration of the question whether the Plaintiff’s default is repudiatory in nature and if so, the consequent remedies available to the Defendant.
Grounds (f) and (g)
66. Grounds (f) and (g), of the appeal, address the above issue focusing on the question:
Whether the Plaintiff’s refusal to pay the purchase price was repudiatory in nature
67. Now in what circumstances will a Party’s conduct be repudiatory? A renunciation of a contract occurs when a Party shows an intention not to perform or declares inability to perform essential obligations, explicitly or through conduct. This can happen before or at the time of performance. The test is whether a reasonable person would conclude the Party no longer intends to be bound, including actions inconsistent with obligations or refusal to perform unless extra conditions are met. See Chitty on Contract 32nd Ed. vol. 1, paragraph 24-018 at page 1750.
68. It bears emphasis that in the above exposition, the learned author directly addresses critical issues raised for determination in the present appeal, highlighting that repudiation may occur, when a party in default refuses to:-
“…….perform the contract unless the other party complies with certain conditions not required by its terms. In such a case, there is little difficulty in holding that the contract has been renounced.” (emphasis)
See Chitty on Contract 32nd Ed. vol. 1, paragraph 24-018 at page 1750.
69. In relating the above principles to the facts of this present case, it is important to stress from the outset that the nature of the Parties’ contract, an open agreement for sale, envisaged a singular, lump sum payment of USD$350,000, inherently implying that punctual payment was a fundamental aspect, a breach of which would strike at the contract’s foundation, constituting repudiatory breach.
70. The above notwithstanding, the Plaintiff as earlier indicated, adopted a rather recalcitrant posture on payment, for reasons which, as would presently become apparent, were clearly aberrant, and frankly cynical.
71. We have already determined that the Parties’ contract of sale did not incorporate any term or condition making the procurement of consent by the Defendant from the Lands Commission a pre-condition for payment of the purchase price or any portion thereof. Besides, we have also established that such consent precondition does not align with established precedent.
72. Neither could it be said that it was within the Parties’ contemplation as borne out by the express terms of the contract of sale, that payment of the purchase price would be contingent upon the completion of a re-zoning exercise by the Town & Country Planning Department.
73. What the Plaintiff then did, by refusing to pay, citing the reasons set forth above, was to unilaterally import new terms into the Parties’ contract, tied to extraneous factors not originally contemplated, thereby altering its essential nature. That we find to be rather striking
74. This attempted variation is plainly unacceptable, as it introduces novel payment terms inconsistent with the lump sum payment structure envisaged by the contract of sale.
75. In the case of Withers v Reynolds (1831) 2 B & Ad 882, 1 LJKB 30, 109 ER 1370, 39 Digest (Repl) 517, 588) there was an instalment contract of sale which called for cash on delivery of each instalment. The time came when the buyer refused to pay cash but insisted on credit for each instalment until the next was delivered. The Court held that the seller was not obliged to go on with the contract on the terms which the buyer sought to dictate. This decision is explicable on the basis that the stipulation as to time of payment was intended by the parties to be of the essence of the contract, alternatively that the buyer was seeking to alter the nature of the transaction by turning a cash into a credit transaction.
76. In the end, what really stands out from a consideration of the reasons assigned by the Plaintiff for the delay in payment, is that they were alien to the Parties’ agreement, were legally flawed, contextually nebulous in scope, and were also lacking in time specificity. No wonder the Defendant inferred, and rightly so, that the Plaintiff could not or would not fulfil its obligations within a reasonable time.
77. The Plaintiff’s manifestly wrongful conduct is starkly underscored by the fact that it subsequently purported on the 26th of March 2010, to effect full payment of the outstanding balance, in the amount of Ghc245,079.76, notwithstanding the non-fulfillment of the same self-imposed preconditions, it had earlier trenchantly invoked.
78. The Plaintiff’s volte-face is glaring, having regard to the fact that no justifiable reason was offered for this sudden change in course. We consider the Plaintiff’s belated attempt at payment all the more striking, in light of its prior refusal to pay, even notwithstanding receipt of the Defendant’s termination notice dated 11th December 2009, which instructed the Lands Commission to halt processing of the transfer consent. This leads to an irresistible finding that there was a clear absence of candour surrounding Plaintiff’s default, reflecting a pattern of absence of genuine intent to effect timely payment. In our judgment, one can hardly conceive of a more cynical stance.
79. There were some suggestions by the Plaintiff that it had acted on the advice of its Solicitors, but that defence is squarely met by Lord Denning MR’s instructive observation in the case of Federal Commerce Navigation Co. v. Molena Alpha Inc [1978] 3 All ER 1066 at 1082 where he posited thus:-
“I have yet to learn that a party who breaks a contract can excuse himself by saying that he did it on the advice of his lawyers; or that he was under an honest misapprehension. Nor can he excuse himself on those grounds from the consequences of a repudiation”
80. We gratefully adopt this passage which seems to be particularly apt in the present case.
81. Further review of the record reflects a more concerning absence of genuine intent on the part of the Plaintiff to meet its contractual obligations.
82. From the record, the Plaintiff stopped the cheque it had previously issued for payment of the commitment fee, citing the Defendant’s Managing Director’s passing, a reason we find unconvincing, as the Defendant is a separate entity from its Director. See the reasoning exemplified in a long line of cases beginning with Salomon v. Salomon [1897] A.C. 22, H.L, and also Morkor v. Kuma (East Coast Fisheries Case) [1998-99] SCGLR 620. The Plaintiff’s actions suggest artifice and a lack of seriousness in completing the transaction. Given the critical role commitment fees or deposits, play in securing land sale transactions, the Plaintiff’s failure to discharge this obligation could easily justify avoidance of the sales agreement altogether. Although the commitment fee was later paid, as we are told, the initial stoppage raises doubts about the Plaintiff’s readiness to fully discharge all of its contractual obligations in a timely manner, reflecting poorly on its conduct in the transaction.
83. Based on our examination of all the evidence on record therefore, we agree with the trial Judge that the Plaintiff’s breach was sufficiently serious to amount to repudiatory conduct. Without doubt the Plaintiff’s conduct falls squarely within the category of cases where repudiation occurs in situations of refusal to “…….perform the contract unless the other party complies with certain conditions, not required by its terms.” See Chitty On Contract 32nd Ed. vol. 1, paragraph 24-018 cited supra.
84. The trial Judge in the present case, was best placed to evaluate the true import of the Plaintiff’s proven breaches within the factual context of this instant case. The trial Judge’s firsthand observation of the Parties’ demeanor gave him a significant advantage in determining the nature and gravity of the Plaintiff’s repudiatory conduct during trial. The law is that provided sufficient evidence existed on the record to support the trial Judge’s conclusions, and we think there was, the Court of Appeal should have been hesitant in interfering with his findings. See cases like Obeng v Assemblies of God, [2010] SCGLR 300, Akuffo-Addo v Cathline [1992] 1 GLR 377; Fosua & Adu Poku v Dufie (Deceased) & Adu Poku Mensah [2009] SCGLR 310 at 313, and Gregory v Tandoh IV & Hanson [2010] SCGLR 971. The Court of Appeal departed from the considerable weight of judicial thinking on this proposition of the law, and in so doing, respectfully fell into error.
85. In our considered view, the Court of Appeal’s flawed determinations are further exacerbated by its failure to appreciate the extent to which the Plaintiff’s repudiatory breach was cynical, persistent, and substantial.
86. In the case of Alan Auld Associates v Rick Pollard Associates [2008] EWCA Civ 655, it was held that a court may infer that a failure to pay, amounts to a repudiatory breach, especially in the case where the failure to pay on time are substantial, persistent and cynical. (see Chitty vol. 1 para 21-013 note 87).
87. Having thus determined the Plaintiff’s breach to be repudiatory in nature, it is now necessary to address the issue as to what remedies were open to the Defendant.
Grounds (c), (d),(e), (h) and (i)
88. Grounds (c), (d),(e), (h) and (i), of the appeal, address the issue of available remedies, directed at the question:
Whether Defendant is relieved from further performance of the contract of sale by the Plaintiff’s breach
89. Two remedies were available to the Defendant in the face of the Plaintiff’s repudiatory breach: first (i) the Defendant was entitled to treat itself as discharged from its liability further to perform its own un-performed obligations under the contract and from its obligation to accept performance by the Plaintiff, if made or tendered. See Total Oil v Thompson Garages (1971) 3 All ER 1226, and second (ii) the Defendant could waive its right of discharge, accept the Plaintiff’s defective performance and content himself with damages.
90. By law, an innocent party faced by a repudiatory breach is therefore given a choice: he can either treat the contract as continuing or he can bring it to an end. In all cases however he must elect or choose between the two options. There is no other option or “middle way” open to the innocent party. See Fercometal SARL v Mediterranean Shipping Co (1989) AC 788 at page 801.
91. The Court of Appeal in its judgment under appeal took the view that the only option available to the Defendant under the circumstances of this case, was to affirm the contract, keep it alive and sue for monetary relief.
92. The Court of Appeal reasoned that to allow the Defendant to renege on the performance of its obligations, after acts constituting substantial part performance on the part of the Plaintiff, would amount to lending the Court’s aid to fraud.
93. We have thoughtfully examined the conclusions reached by the Court of Appeal and verified them against the established evidence on the record and we are unable to agree with their conclusions. It is clear why.
94. In the first place the Court of Appeal applied the doctrine of part performance to uphold the Plaintiff’s claim, being in the nature of a claim for specific performance, without adverting its mind to the fact that the Plaintiff’s hands were not clean, as it was itself in brazen breach of its own obligations.
95. In this case the Plaintiff’s conduct was far from innocent, as it demonstrated a clear intention to disregard its contractual obligations, for reasons that were, as noted above, entirely tenuous. The Court of Appeal’s decision was contrary to the settled legal principles articulated in such cases as Owusu v Akomah [2007-2008] SCGLR 525, at 529, and was therefore flawed.
96. In the case of Schandorf v Zeini and Another [1976] 2 GLR 418 at page 443, Kingsley-Nyinah JA expressed the same sentiments, in the following manner, which we find to be relevant and adopt:-
“In this appeal, the appellants have cried illegality! and they have sought to be favoured with equity and justice when the circumstances surrounding their transaction with the respondent clearly show that they are, themselves not only readily contemptuous of what is just and right, but also that to them the solemn sanction of an oath means absolutely nothing. They need to be told that he who comes to equity must not only come with clean hands, but he must also be prepared to do what is fair, honest and right.”
97. Prof. A. K. P. Kludze in his authoritative Book, Ghana Law of Landlord and Tenant (page 147) highlights an identity of reasoning in relation to specific performance, citing Tildesley v Clarkson [1862] 30 Beav. 419; 54 E.R. 951. He writes:-
“If the Plaintiff, though having part performed the contract, is unable to fully perform his part of the bargain, or does so in an incompetent manner, he is not entitled to relief”
98. Comparable views informed Lord Denning MR’s reasoning in Federal Commerce Navigation Co. v. Molena Alpha Inc (1978) 3 All ER 1066 at 1082, where he distinguished earlier authorities on the basis of the innocent conduct of the party in those cases, and stated:-
“In those three cases, the conduct of the party concerned was entirely innocent. It did not evince any intention to break his contractual obligations. I would go by the principle as I have always understood it that if the party’s contract, objectively considered in its impact on the other party, is such as to evince an intention no longer to be bound by his contractual obligations, then it is open to the other party to accept his repudiation and treat the contract as discharged from that time onwards.”
99. Consistent with established authority therefore, and judging from the Plaintiff’s lack of genuine intent to promptly settle the purchase price, we do not think we are able to lend the authority of this Court to any proposition that denies the Defendant’s entitlement to terminate in this case. Indeed, it would be a regrettable development of the law of contract to hold that a Party who suffers such cynical repudiation should be compelled to keep the contract alive and sue only for monetary relief. See Alan Auld Associates v Rick Pollard Associates (supra)
100. It follows therefore in our judgment that, the conclusion reached by the Court of Appeal that the only remedy available to the Defendant on the facts on record in this case was to sue for the outstanding balance of the purchase price and not to terminate, was wrong and should be set aside.
101. That being so, the only conclusion in our considered opinion, which the proved facts warrant is that the Defendant was within its legitimate rights when it pursued the remedy of termination rather than continuing with the contract of sale.
102. From the evidence on record, the Defendant terminated the contract through clear unequivocal acts, showing no intent to affirm. This it did by writing to the Lands Commission on the 11th of December 2009, to halt further processing of the application for consent, a necessary prerequisite for title transfer
103. From that date onwards therefore, the Defendant considered itself as completely discharged from its liability further to perform its own un-performed obligations under the contract and from its obligation to accept performance by the Plaintiff, if made or tendered. See Total Oil v Thompson Garages (supra)
104. It was pointed out for the Plaintiff that as late as the 26th of March 2010, it had kept the bargain open and made payment of the full outstanding balance in the sum of Ghc245,079.76 to the Defendant. But that was about three months after the date on which the Defendant had unequivocally marked its decisive intention to be relieved from further discharge of the contract of sale.
105. In our view, once the Defendant clearly indicated its intention to exercise its right to terminate the agreement following the Plaintiff’s repudiatory breach, there is no justification for compelling the Defendant to relinquish or reverse its legitimately exercised right merely because the Plaintiff unilaterally chose to keep the contract open. It is an elementary principle that a contract, once validly terminated, cannot be unilaterally revived by one party.
106. Chitty on Contract 32nd Ed. vol 1 para 24-002 note 11 underscores the same proposition, when it states, referring to such cases as Bournemouth University Higher Education Corp v Buckland [2010] EWCA Civ 121, [2010] I.C.R. 908, that the:-
“….. law does not permit a contracting party unilaterally to cure a repudiatory breach once it has been committed. The party in breach can attempt to persuade the innocent party to affirm the contract. But the choice whether to affirm or not is the choice of the innocent party. It cannot be taken away from him by the party in breach making an offer of amends”
107. The learned authors continue at para 24-013, page 1747, to explain that once a repudiation has been accepted, the acceptance cannot be withdrawn. If the Parties thereafter resume performance of the contract, their rights are governed by a new contract, even if the terms remain the same. Cases cited in support of the above proposition include Scarf v Jardine (1882) 7 App Cas 345 at 361, and Aegnoussiotis Shipping Corp of Monrovia v A/S Kristin Jensen Rederi of Bergen[1977] 1 Lloyd’s Rep. 268 at 276.
108. This means that notwithstanding the Plaintiff’s assertions, the Defendant’s purported acceptance of the post-termination payment of the balance of the purchase price, quantified at Ghc.245,079.76, does not operate to resuscitate the antecedently terminated contract of sale. Rather, such payment and acceptance, even if true, are properly referable to a novated agreement, as indeed the Defendant rightly posits in its Statement of Case. The law is clear: a terminated contract requires fresh consideration to be revived, and a mere payment of an outstanding balance does not suffice to reinstate the original agreement.
109. As was aptly said on similar facts by Lord Denning MR in the case of In re Stone and Saville’s Contract (supra) at page 355:-
“…..the contract having come to an end on any view, it could not be revived except by a new contract, which there never was.”
110. Faced with a similar situation where a purchaser decided to unilaterally keep the contract going even though the vendor had rescinded the contract following the purchaser’s failure to fully settle the purchase price by the completion date, Apaloo JA (as he then was) in the case of Joseph v. Boakye [1977] 2 GLR 392 delivered himself at page 401 as follows:-.
“I do not see why the vendor should be obliged to withhold his right of rescission because the purchaser unilaterally chose to keep the contract open. The vendor did nothing to suggest he was not going to exercise his right to rescind the agreement if completion was not made on the contractual date…….. Accordingly, as I said, the purchaser having defaulted, the appellant as vendor, was entitled to repudiate and in my judgment, did so repudiate the contract.”
111. Consistent with established principles, we conclude that the Plaintiff’s purported settlement of the outstanding balance post-termination could not revive the terminated contract. Consequently, the Plaintiff’s rights under the contract remained effectively extinguished, depriving it of a viable cause of action for a claim implying specific performance of transfer obligations.
112. That is the position of the law established in a long line of cases traced to such celebrated decisions as Letang v. Cooper [1965] 1 Q.B. 232, which decision was famously cited with approval by Azu Crabbe CJ (as he then was) in the case of Spokesman (Publications) Ltd. v. Attorney-General [1974] 1 GLR 88 CA (Full Bench) at page 91 as follows:-
“…a party had a cause of action when he was able to allege all the facts or combination of facts necessary to establish his right to sue”.
113. As the Plaintiff was bereft of any facts or combination of facts necessary to establish any right to sue under the extinguished contract of sale, its instant suit was still born from the very inception. Its endorsed claim for an order for a more perfect assurance and transfer of title therefore lacked legal foundation and must be rejected. In the premises grounds (c), (d),(e), (h) and (i), of the appeal succeed and are allowed.
114. We next consider the grounds of appeal which assail the manner the Court of Appeal evaluated the evidence on record and drew factual inferences from its findings. This brings into focus ground (j) and the omnibus ground (k)
Grounds (j) and (k)
115. In exercising our appellate jurisdiction, we have re-heard the appeal, scrutinizing the record to determine if the Court of Appeal’s decision aligns with the evidence and applicable law. Our review has focused on whether the Defendant has shown material errors in the judgment that would alter the outcome. See Akufo-Addo v Catheline [1992] 1 GLR 377; Tuakwa v. Bosom [2001-2002] SCGLR 61.); Djin v Musah Baako [2007-2008] SCGLR 686, and also Aryeh & Akakpo v Ayaa Iddrisu [2010] SCGLR 891.
116. Having re-heard the appeal, we are satisfied that the Defendant has successfully demonstrated that the Court of Appeal’s decision, with all due deference, was based on a grave misapprehension of the evidence and a misapplication of relevant legal principles, rendering it unsustainable.
117. Notably, our review has revealed that the Court of Appeal’s conclusion that the Lands Commission consent was a prerequisite for payment was flawed. We have further determined that the Court of Appeal’s characterization of the Plaintiff’s breach as non-repudiatory was faulty, as was its finding that the Defendant was not entitled to terminate the contract.
118. Consequently, we hold that the Defendant has successfully established that the judgment of the Court of Appeal was against the weight of the evidence on record. In the result, grounds (J) and (k) succeed.
CONCLUSION
119. All said, we are of the considered view that our reasonings and conclusions as set out above, are sufficient to dispose of this appeal in favour of the Defendant, the result of which is that the appeal hereby succeeds and the judgment of the Court of Appeal Accra, dated the 28th of January 2022, is hereby set aside.
(SGD.) Y. DARKO ASARE
(JUSTICE OF THE SUPREME COURT)
(SGD.) G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) S. DZAMEFE
(JUSTICE OF THE SUPREME COURT)
(SGD.) J. BARTELS-KODWO
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ENOCH KWABENA AMOAH ESQ. FOR THE PLAINTIFF/APPELLANT/
RESPONDENT WITH HIM A. A. SOMUAH ASAMOAH ESQ.
SEAN POKU ESQ. FOR THE DEFENDANT/RESPONDENT/ APPELLANT
WITH HIM KAREN OPPONG PEPRAH ESQ.
