HIGH COURT, ACCRA
Date: 22 MAY 1975
AMISSAH J A
CASES REFERRED TO
(1) Douglas v. Baynes [1908] A.C. 477; 78 L.J.P.C. 13; 99 L.T. 599; 24 T.L.R. 896, P.C.
(2) Hart v. Hart (1881) 18 Ch.D. 670; 50 L.J.Ch. 697; 45 L.T. 13; 30 W.R. 8.
(3) Chattock v. Muller (1878) 8 Ch.D. 177.
(4) Amakom Sawmills & Co. v. Mansah [1963] 1 G.L.R. 368, S.C.
[p.475] of [1975] 1 GLR 473
NATURE OF PROCEEDINGS
ACTION by the plaintiff for specific performance of an oral agreement whereby the defendant undertook
to convey a portion of a piece of land to the plaintiff. The facts are set out fully in the judgment of
Amissah J.A. sitting as an additional judge of the High Court.
COUNSEL
Asiedu for Puplampu for the plaintiff.
Okine for the defendant.
JUDGMENT OF AMISSAH J.A.
The plaintiff, B.T. M. Ahumah, brings this action for specific performance of an oral agreement he alleges was made between himself and the defendant in Kpong in August 1961, by which the defendant undertook to convey one equal half share of a piece of land with buildings thereon in Kpong to him, an account of all rents, tools and other moneys collected by the defendant from this land as from 25 February 1963 and an order for payment by the defendant to him of one half share of these rents, tolls and other moneys. The defendant denies that there was ever a contract between himself and the plaintiff and accordingly denies liability for the consequential remedies asked for.
The plaintiff is a pharmacist residing in Accra. According to his evidence, in August 1961 he went with his nephew Charles Assem, a policeman, to Kpong to see the defendant as a result of something Assem had told him. The defendant told them on their visit that the Basel Trading Company (hereafter described as B.T.C.) had offered him a piece of land for sale at Kpong. The purchase price for the land together with the buildings was £G1,200. The company required a deposit of £G800 in order to allow the defendant to go on the land. The defendant said if the plaintiff would pay £G400 towards this initial deposit, then upon being permitted to go on the land, the defendant would apply the rents collected therefrom to discharge the remaining balance of £G400. Then upon getting a formal conveyance of the land from B.T.C. it would be divided equally between the plaintiff and the defendant. This conversation took place some time in August 1961. Thereafter he received a letter from the defendant written on 5 September in which the defendant pointed out that he had not heard anything from the plaintiff about the arrangement since they spoke about it. The plaintiff said that he then went with Charles Assem to Kpong on 17 October 1961 to see the defendant. He there asked the defendant to come to Accra the following day to collect the £G400. The defendant said he would send his wife. She duly came that day, accompanied the plaintiff to the bank where the money was withdrawn and given to her. The plaintiff accompanied her to B.T.C. in Accra which is in the same building as the Union Trading Company (U.T.C.) department store and there the money was paid to a Mr. E.T. Ofori, an employee of the company. The plaintiff knew that the payment was part of the £G800 deposit towards the purchase of the land at Kpong.
Two years after this payment, the plaintiff got to know that a conveyance on the land was given by B.T.C. to the defendant. That was on 25 February 1963. Thereafter the plaintiff approached the defendant to give him one half portion of the land but the defendant declined to do so. It
[p.476] of [1975] 1 GLR 473
is on this account that the plaintiff has brought this action claiming the remedies earlier mentioned. The defendant, Joseph Akorli Teye, a sand and stone contractor living at Kpong, does not deny that he bought land situate at Kpong from B.T.C., which he called U.T.C. in his evidence. In fact “B.T.C.” and “U.T.C.” were used interchangeably by the witnesses in the course of the trial. He did not deny that the purchase price for the land was £G1,200. He did not deny that he paid an initial deposit of £G800 for the land in 1961 after which he was allowed entry onto the land and that the formal conveyance was made to him after he had completed paying the purchase price in 1963. He did not deny that of the initial deposit of £G800, £G400 did not come from his own immediate resources. But he stoutly denies the oral contract spoken of by the plaintiff. And he denies that he got the £G400 in 1961 from the plaintiff. According to him, he got this money from his wife originally is an ordinary loan. In this, the defendant is supported by the wife, Maku Yowier, who says that the husband had asked her for the money, she had at first approached her nephew, Charles Assem, for it and Assem had taken her to the plaintiff and had instructed him to give the money to her. The plaintiff later gave her the £400. She had told neither Assem nor the plaintiff about the purpose for which she needed the money. The plaintiff had accompanied her to the B.T.C. office when she paid it in as part of her husband’s deposit.
Now the defendant’s wife, Maku Yowier, is the plaintiff’s first cousin. In fact, with the exception of the surveyor called by the plaintiff, the parties in this case and their witnesses are all related to each other by blood or by marriage. Where does the truth in this family dispute lie? To determine this, I think events subsequent to the payment at the B.T.C. office of the £G400 given must be considered in detail.
The plaintiff said that he went to see the defendant on four occasions after he heard that B.T.C. had conveyed the land to him. On two of these occasions he was with Charles Assem but on all four occasions, he was with his brother Michael Ahumah Ocansey and his uncle J. C. Ahumah Ocansey. On three of the occasions they were accompanied by a surveyor whom he invited to join them. The surveyor measured the land. The defendant gave the plaintiff a third of the land with buildings on it, although the arrangement was for half. Even on the land given to the plaintiff, there was a machine room for which the defendant wanted an extra £G200. The plaintiff did not agree to take the third portion. The surveyor made a plan of the third portion, which was exhibited. That plan is exhibit C and it shows the plot of land which all agree was 300 ft. by 100 ft. That the plaintiff describes this as a third of the land is interesting; its significance will shortly appear.
Michael Ocansey spoke of the visits he paid with his brother, the plaintiff, to Kpong in connection with this transaction. The first occasion was on or about 27 October 1963, when they went with both Charles Assem and Ahumah Ocansey. On this occasion they met the defendant, his wife and some others. The plaintiff related the details of the arrangement between himself and the defendant. The defendant agreed with the
[p.477] of [1975] 1 GLR 473
plaintiff’s narration of the agreement but said that at the time of the meeting, the conveyance had not been received so he could not give the plaintiff his share. He should wait until after the conveyance had been made.
On 10 November 1963, the same people went to Kpong a second time and met the defendant and his wife. The defendant agreed with the plaintiff’s assertion that the conveyance had been made and further said that he was ready to give the plaintiff his portion. But before that a surveyor should be brought to measure that portion. So on 22 March 1964, those involved again visited Kpong, this time with a surveyor. The defendant showed them the land and cut a path 300 ft. by 300 ft. and the surveyor was asked to prepare a plan of the land offered to the plaintiff. That land had an “L” shaped storey building with three rooms up and three rooms downstairs on it. Apparently the defendant asked that the plaintiff should pay £G300 for a machine room on the land. This was later reduced to £G200.
On 19 April 1964, the parties again met at Kpong. On this occasion the defendant is alleged to have said that he was not satisfied with what he had given the plaintiff and that what he should have given him was a plot 300 ft. by 100 ft. After some discussion it was agreed that the plaintiff should no more pay the £G200 for the machine room “as we had agreed to take a lesser portion of land, namely, 300 ft. by 100 ft.” The surveyor who was again present prepared a plan of this area. Michael Ocansey ended his evidence-in-chief by saying that the plaintiff did not accept the plot sized 300 ft. by 100 ft. At this juncture, as he said in cross-examination, they were thinking that the matter would go to court.
How does the evidence of Charles Assem fit in with that of his uncles? He confirms the plaintiff’s evidence that it was at Kpong that the defendant told them about the offer of B.T.C. to sell the property, the purchase price and the deposit required. According to him, “The plaintiff became interested. So the plaintiff and the defendant agreed that the former should contribute £G400 towards the purchase of the property so that the two could share when the balance had been paid from the proceeds of the rent.” A date was arranged for the defendant to come to Accra to collect the money from the plaintiff. Assem merely heard later from the plaintiff that he, the plaintiff, had paid the money. In early 1963, the plaintiff invited him to accompany the plaintiff to the defendant at Kpong. They went together; the plaintiff and the defendant talked over the sharing of the property. There was no agreement between them over the sharing.
Assem was not as specific in his evidence on the subsequent visit as Michael Ocansey had been. Further, there was one point of disagreement between him and the plaintiff. The plaintiff had said in examination-in-chief that at the second meeting with the defendant to come to Accra for the money, the defendant said that his wife would come for it. In cross-examination he agreed with counsel’s suggestion that he paid the £G400 to the defendant’s wife on Charles Assem’s instructions. This he later said in re-examination meant that he paid the money to Maku Yowier on the advice of Assem. But it was really the defendant who instructed him, the plaintiff, to pay the money to his wife. Assem, on the other hand, gave
[p.478] of [1975] 1 GLR 473
the impression that he did not know how the money came to be handed over to the defendant’s wife. And in cross examination he denied that the money was paid to his aunt upon his instruction. But this disagreement may have arisen out of the use of words. No doubt there was some talk about how the money was to be paid. And if Assem had visited Kpong with the plaintiff when the collection of the money was discussed he may have spoken with approval of the handing-over to Maku Yowier which the plaintiff may have interpreted as advice.
The defendant’s version of the events which took place after he had paid the deposit of £G800 and been given possession of the land by B.T.C. was that he had a portion demarcated by a surveyor and given to his wife. The surveyor apparently was the same Mr. Okutu, whom the plaintiff said he had invited to go with him to Kpong. He said the plaintiff had written to him that he, the plaintiff, wanted the land. It was when he received that letter that he got to know for the first time that it was not his wife buying the land but someone else. The defendant maintained that he thought all along that the wife had produced the £G400 from her own resources. Even when, according to him, the wife told him that she had offered to pay back the money to Charles Assem but Assem had refused to accept it, he, the defendant, did not believe that she had received the money from Assem.
I am inclined to disbelieve the defendant and his wife on this issue. I am certain that he discussed the land with the plaintiff before the initial deposit was paid and that he knew that the £G400 had come from the plaintiff on the understanding that he, the plaintiff, should be given a share of the land when it had been conveyed by B.T.C. to the defendant. I believe there was an agreement to this effect. Both the defendant and his wife create the impression in their evidence that neither had had discussions with the plaintiff about the terms upon which B.T.C. was going to part with the property to the defendant before the £G400 was paid by the plaintiff. But the plaintiff’s statement of claim was categorical in his claim in paragraph (2) thereof that:
“The plaintiff and the defendant have been acquaintances for some time, and about the last week in August 1961 the plaintiff went to Kpong and by chance met the defendant who informed him that he had arranged to purchase from Basel Trading Company of Kpong, their parcel of land situate at Kpong, hereunder more accurately described, at the price of £G1,200. Of that amount the sum of £G800 was required immediately, and upon payment of that deposit of £G800, immediate possession of the land would be given, after which, time would be allowed for the payment of the balance of £G400.”
Had the evidence of the defendant and his wife been true on this point, this claim would have been met by a flat denial. Instead, the defendant’s defence on it was that:
[p.479] of [1975] 1 GLR 473
“The defendant admits paragraph (2) of the plaintiff’s statement of claim as a statement made during conversation that he intended to sell a plot of land belonging to the defendant to enable him to make initial deposit for the bungalow.”
I believe the defendant’s evidence on the matters leading up to the purchase of the land by him from B.T.C. was untrue.
Is this, an agreement which the law will enforce? The plaintiff comes asking for specific performance of it. The defendant’s counsel has pointed out that the agreement, if the court holds that there was one, was merely oral and as it affected land, the Statute of Frauds, 1677 (29 Cha. 2, c. 3), required that it be evidenced in writing. In this connection the point has been made that even though the Contracts Act, 1960 (Act 25), in section 11 did away with the effect of the Statute of Frauds in large areas when it provided that:
“Subject to the provisions of any enactment, and to the provisions of this Act, no contract whether made before or after the commencement of this Act, shall be void or unenforceable by reason only that it is not in writing or that there is no memorandum or note thereof in writing,” it nevertheless preserved the effect of the Statute of Frauds in respect of contracts involving land (see the Schedule to Act 25). Against this, counsel for the plaintiff has contended that the Statute of Frauds was not pleaded by the defendant and it was not open to him to raise it at the stage of addresses. And in any case as the statement of claim stated the contract with particularity and the terms averred were not denied, nor the lack of writing raised by the defendant, the court ought not to hold itself debarred from granting the relief sought. On this point, counsel relies on that passage in Snell’s Principles of Equity (26th ed.) at
pp. 651-652 which says:
“If the contract is set out in the plaintiff’s statement of claim, and in the defence either the contract is admitted or the absence of writing is not set up, the court will order specific performance, despite the absence of any written memorandum duly signed. By not pleading the statutory defence, the defendant is deemed to renounce the benefit of it, and once he has done this, he cannot afterwards by amendment revive the objection.”
It is correct that the terms of the agreement were set out with some particularity in the statement of claim. Although the defendant did not admit the contract, indeed on the contrary he specifically denied it, he nevertheless did not raise the memorandum issue. Admittedly the provisions of section 4 of the Statute of Frauds requiring a written memorandum of the contract have been saved by our Contracts Act, 1960 (Act 25), with respect to land transactions, but I think the circumstances of this case justify me in denying the benefit of the statute to the defendant. He had not pleaded it and to take advantage of it he ought to have done so. But another ground on which his claim to the protection of the statute would have been defeated was that the plaintiff had wholly performed his part of
[p.480] of [1975] 1 GLR 473
the agreement already, if there was such an agreement, and according to the well known equitable doctrine of part performance, if the plaintiff has wholly or in part executed his part of a parol agreement on the understanding that the defendant would do the same, the court may order specific performance of the agreement on the ground that it would be a fraud on the defendant’s part not to carry out his side of the bargain. I have no hesitation in holding that in this case the reliance on the Statute of Frauds, 1677 (29 Cha. 2, c. 3), is misconceived.
But what is the agreement arrived at between the parties which this court is asked to enforce specifically? It is an agreement over the transfer of land against the fulfilment of a condition. Agreements involving land have been held to be eminently suitable for enforcement by this equitable remedy, it often being impossible to put the injured party into a comparable position by the award of damages as compensation. Were I to be satisfied of the terms of the agreement as recounted by the plaintiff, this would be a case in
which I would be strongly moved to exercise my discretion in the grant of the remedy in favour of the plaintiff. He has set out his version of the alleged agreement. The defendant has denied it. I have already stated that the defendant has been quite untruthful in his statement of what actually occurred. It is my view that he did so in his anxiety not to disgorge more of the land than he thought the plaintiff ought to get for his contribution to the purchase price. I am not by this saying that all the falsehoods in this case came from the defence side. The Plaintiff’s own denial of a previous land transaction between himself and the defendant which he was at the end of the defendant’s case forced to retreat only because it suited him then to bring forward evidence of that transaction to buttress his case does not mark him out as a model of frankness. That is not to say that this court should deny him relief on the grounds that his hands are unclean. He has as far as I can find not been unfair or dishonest in his dealings with the defendant. I suspect that this lapse before the court was due to surprise. He did not appreciate how the question on the other band would affect his just claim to the land in dispute. In any case as it turned out, the point was not really material to this case. On the material points in issue the defendant’s dishonesty was blatant. But does the lack of candour on the part of the defendant and his wife necessarily make the plaintiff’s version acceptable in its entirety? On this I have spent many anxious moments. There are one or two facts that I cannot consistently explain if the plaintiff’s simple version of an agreed division of the land into two equal shares is correct. If the plaintiff knew all along that he was entitled to half the land conveyed by B.T.C., why did he accept a portion of the land without knowing the total extent of it?
The evidence is that the defendant first marked out an area 300 ft by 300 ft. to him and that this was reduced later to 300 ft. by 100 ft. Whether a portion 300 ft. by 300 ft. represents half the land is not clear. From the conveyance, exhibit D, it seems far more. But certainly 300 ft. by 100 ft. would be less than half the area. And yet there is evidence from
[p.481] of [1975] 1 GLR 473
the plaintiff’s own witnesses that he at first accepted this diminution in his share. With regard to the plaintiff’s lack of knowledge of the actual size of the land, take the evidence of his brother Michael Ocansey for example. Although he went several times to Kpong with the plaintiff he said that at the time they were bargaining over the land “We did not know what half of the full plot would be.” Just before saying that, the witness had said that, “From the onset the plaintiff was asking the defendant to give the actual size of the land sold but the defendant was unwilling to do so.” From clear inconsistencies in his figures, the evidence of this witness on the size of the land cannot be trusted. But his general evidence I find quite sound and it does illustrate the point that he who was so closely associated with the transaction under inquiry did not know the one fundamental fact, namely, the size of the land of which his champion was to take half. And this he confessed to when he finally said that, “Up till today, I do not know the size of the land conveyed by B.T.C. to the defendant.” Assem says more or less the same thing. And the plaintiff himself never said that he knew the extent of the land he was to share before the demarcation took place. His knowledge of the land is derived from the conveyance which was exhibited but which he does not appear to have seen before the sharing. And in any case that parcel of land shown on that conveyance is, according to the defendant, smaller than what B.T.C. agreed to sell to him so now he has an action pending before the court to get the larger size he paid for. I do not, however, raise this point about lack of knowledge of the extent of the land on the plaintiff’s part as indicative of any fault of his. I merely point out that accepting a portion of the land as the evidence shows that he did, without knowing the full extent of it does not seem to me to be consistent with a right to a half share of the land. Obviously, he had tried to find out the size of the land and the defendant had kept the information from him.
What is the evidence that he agreed to accept a particular portion of the land? Here again reference may be made to Michael Ocansey. His evidence earlier recounted of what took place at Kpong on 22 March and on 19 April 1964 is here in point. It will be recalled that he said that on 19 April, after some discussion it was agreed that the plaintiff should no more pay the £G200 for the machine room as “we had agreed to take the lesser portion of land, namely, 300 ft. by 100 ft.” He knew that the surveyor prepared a plan of this smaller area. Although the witness concluded his evidence-in-chief by saying that the plaintiff did not accept the plot sized 300 ft. by 100 ft., it is clear that at some stage this had been agreed to as was earlier stated by the witness and as is confirmed by the fact that the surveyor whom the plaintiff himself had taken there was asked to prepare a plan of this smaller area as the plaintiff’s land and that the surveyor in fact did so. That is the plan put in as exhibit C. The plaintiff in cross-examination admitted that he asked the surveyor to make this plan. According to him, the plan shows that the land given him was a third instead of the half bargained for. How could he have instructed the surveyor to make this plan for him if he had not accepted that size? I do not understand why his own surveyor should have prepared exhibit C and entitled it “Site
[p.482] of [1975] 1 GLR 473
Plan for Mr. B. T. Morkpli Ahumah,” namely, the plaintiff, without the plaintiff accepting that plot. In this connection what can one make of the negotiations for the purchase of the engine-room at an additional sum of £G300 or £G200? With slight variation practically all witnesses spoke of the demand for this additional sum. How could the defendant justifiably ask for this sum or any sum at all in addition from the plaintiff who was according to himself entitled to half the property without protest, that this demand can arise or be met only if the portion allocated to him exceeds his half share by that amount? And how can the plaintiff make this protest without knowledge of the extent of the property? Yet the clear evidence coming from the plaintiff’s own witnesses was that there was this demand made and some negotiation directed to having it reduced. This is borne out by the evidence of Michael Ocansey referred to earlier. It is even more clearly attested to by the evidence of the plaintiff’s cousin Mathias Ayiku Ahumah who claimed to have been present at the original demarcation of the plaintiff ‘s portion. According to Mathias, after surveying the land, the plaintiff, Michael and the defendant in his presence talked about a small building with a machine in it on the land. “The defendant said he would sell that building for £G300. The plaintiff asked for a reduction and it was reduced to £G200. I do not know whether the plaintiff has paid this amount. He agreed to pay.” And they left. I believe that this was what happened then. I believe the plaintiff’s refusal to pay only manifested itself when his land allocation was later reduced to 300 ft. by 100 ft. And this I am sure was due not to a sense of injustice at not receiving his agreed half share which in any case he could never have substantiated on the basis of his knowledge at the time, but on account of a general grievance felt by him arising from the course of events, that he was not being fairly treated having regard to the contribution he had made towards the purchase of the land.
I am satisfied upon a review of the evidence that although there was an agreement between the plaintiff and the defendant that the plaintiff should contribute £G400 towards the payment of the initial deposit of £G800 to be paid to B.T.C. and that for this the defendant and he would share the land, there was no agreement as alleged by the plaintiff that they should share it equally. The proportions at the formation of the agreement were unspecified. The agreement I find was that there should be a sharing of the land
which was reasonable. The portions were otherwise unspecified. There were considerations justifying an unequal sharing. It was the defendant, for example, who had obtained the bargain from B.T.C. and introduced the business as it were to the plaintiff. According to the arrangement, the defendant, who alone was the person B.T.C. knew, was to take possession, manage and discharge the remaining liabilities on the land before it could be formally conveyed and be ready for the apportionment between the parties. These considerations alone were sufficiently weighty to make the defendant the senior partner in the joint venture. That the plaintiff was party to this understanding is borne out by his acceptance of
[p.483] of [1975] 1 GLR 473
the plot 300 ft. by 100 ft. which he said was a third, not half, of the land. And looking at the conveyance, exhibit D, this area does roughly represent a third of what has been conveyed by B.T.C. to the defendant. I am here not concerned with what may or may not come out from the alleged pending action between the defendant and B.T.C. claiming a larger area as that agreed. What the plaintiff was given which he originally accepted is about a third of what the defendant has now got. Where the plaintiff baulked was over the question of paying extra money. While he had been agreeable to such extra payment if the parcel of land he got was 300 ft. by 300 ft., that is, three times what he eventually accepted, he obviously saw no reason why he should pay this same extra charge if his portion of the land should be reduced to a third. The original allocation may have been a mistake. From a look at the conveyance it does seem to leave practically nothing for the defendant himself to take, unless of course the defendant was encroaching upon other people’s property by that demarcation. But the mistake was not the plaintiff’s fault. And whether this mistake was appreciated by the plaintiff or not, his agreement to pay extra money for the engine room must have been upon the understanding that he was getting a much larger portion of land than is represented in exhibit C. There is nothing to show that the plaintiff knew of the defendant’s mistake and conducted himself as if he did not. And I do see his point in declining to pay the £G300 or £G200 for the engine room in these circumstances.
Specific performance will not be granted where the agreement is uncertain. Thus in Douglas v. Baynes [1908] A.C. 477, P.C. the Privy Council refused the remedy in an agreement over the sale of land. The extent of the uncertainty which decided their lordships to take the view they did can be gauged from the following passage at p. 485 of their judgment:
“The case is, in truth, a case of the purchase and sale of land, where the price to be paid for the land—the thing to be given in exchange for it—is uncertain, not only in value, but in nature and character, namely, a given number of shares in a syndicate the nature of whose objects, the extent and character of whose operations, and the adequacy of whose working capital are not defined, or ascertainable with precision, so that, if the construction of the contract contended for by the plaintiff be adopted, it may reasonably be supposed to have an effect which the defendant did not contemplate. In such a case the Court will not enforce the agreement, though the defendant may, himself, be responsible for the ambiguity, on the ground that ‘it is against conscience for a man to take advantage of the plain mistake of another, or, at least, that a Court of Equity will not assist him in doing so:’ Manser v. Buck (1848) 6 Hare, 443 at p. 448. In Calverly v. Williams (1790) 1 Ves. Jun. 210 Lord Thurlow goes the length of holding that, in such cases, there is no contract, the parties misunderstanding one another, the one proposing to buy one thing, the other to sell another: see Clowes v. Higginson (1813) 1 Ves. & B. 524.”
[p.484] of [1975] 1 GLR 473
This is clearly not the case here. The land is known, the terms of purchase are known and the price paid by the plaintiff for a share of this land is known. That there was an agreement between the parties that there should be some form of sharing of the land, seems to me to be beyond doubt. And that in the absence of any fixed proportions to the contrary the sharing should be reasonable and equitable, having regard to all the circumstances of the case, is a matter which a court should not only encourage but ensure. Here the matter is simplified by the fact that there has been an apportionment which but for one detail seemed fair and acceptable to the parties and for that matter to me. The only difference is as to the extra payment on the engine room. And the cases of Hart v. Hart (1881) 18 Ch.D. 670 and Chattock v. Muller (1878) 8 Ch.D. 177 show that where the contract is otherwise certain differences of view by the parties over some provision may be settled by the court itself.
The case before me is similar to that of Chattock v. Muller (supra) in which a defendant purchased an estate, having agreed with the plaintiff, that if he made the purchase he would cede part of it to the plaintiff. There was some uncertainty in the memorandum of agreement between the plaintiff and the defendant as to the exact portion which was to be ceded to the plaintiff. In an action by the plaintiff for specific performance of the agreement, the court directed a reference to chambers to ascertain what proportion the plaintiff was entitled to, and decreed that the defendant should convey that portion to the plaintiff.
In this present case, there is no need for an ascertainment in chambers or otherwise of the portion the plaintiff should get. That point has been settled by the defendant’s offer to convey that portion in exhibit C and the plaintiff ‘s acceptance of it. What the court has to determine is whether in the circumstances the demand for the £G200 for the engine room was reasonable and fair. I have heard all the evidence that I think necessary on it. It strikes me that a demand by the defendant of that sum when allocating a plot 300 ft. by 300 ft. to the plaintiff which is acceptable as reasonable cannot continue to be reasonable or fair when the land area is reduced to 300 ft. by 100 ft. I think it wholly unjust that it should continue to be made and be used by the defendant as the means of frustrating the original agreement between him and the plaintiff. And I think the plaintiff ought not to pay it.
What the plaintiff should get is one third, more or less, of the property and that is fairly represented by the allocation he agreed to evidenced by exhibit C. The plaintiff to my mind exaggerated his claim when he asked for half, but that I think is no reason why his just deserts should be denied him by a court of justice. And in so far as his suit and pleadings are inconsistent with a sharing of the property into the portions I have indicated, I amend them to conform to those portions: see Amakom Sawmills & Co. v. Mansah [1963] 1 G.L.R. 368, S.C. In my view specific performance of the agreement made by the plaintiff and the defendant should be granted limited to the immediate conveyance by the defendant to the plaintiff of the parcel of land in exhibit C without the plaintiff being called upon to pay any extra money. I will further grant the request for an account of
[p.485] of [1975] 1 GLR 473
all rents, tolls and other moneys collected by the defendant from the land in exhibit C as from 25 February 1963. Finally I order that one third of these moneys collected, less the expenditure incurred in respect of that land in exhibit C, be paid over by the defendant to the plaintiff.
DECISION
Judgment for the plaintiff in respect of land in exhibit C.
