Division: IN THE SUPREME COURT
Date: 30TH JUNE, 1964
Before: MILLS-ODOI, OLLENNU AND ACOLATSE JJSC
JUDGMENT OF MILLS- ODOI JSC
Mills-Odoi J.S.C. delivered the judgment of the court. This is an appeal against the judgment of the High Court, Kumasi, delivered by Apaloo J. (as he then was) on 27 May 1963, allowing the respondent’s claim for damages for breach of contract.
The facts in this case are simple, straightforward and free from any complexity. By an agreement in writing dated 3 June 1958, and made between the appellants and the respondent, the respondent reluctantly allowed her seven-room house to be pulled down by the appellants in order that the site would be used by the Amansie East District Local Council for the purpose of building a market. By the same agreement which was tendered in evidence at the trial as exhibit A, the appellants promised to erect for the respondent, as a substitute, a “new house containing seven rooms in small sizes each” and reserved to the respondent a right of action in the event of default on the part of the appellants. According to the respondent, the house which was pulled down was built with swish and its interior parts were plastered with cement. It was roofed with iron sheets and was decorated inside with blue and red paint.
Shortly after the execution of the agreement, the appellants started building the market on the
respondent’s site and it took them only three months to complete it; but they failed to erect, for the respondent, the house promised by them in the said agreement, notwithstanding her repeated requests to them to implement their promise. After waiting in vain for a period of over three years the respondent brought this action against the appellants claiming damages for breach of contract.
The appellants denied that they had committed a breach of the contract contained in the agreement. They contended that the respondent’s house which was pulled down was “a two-roomed uncompleted swish building” not worth more than £G100; that they had in fact built for her, early in 1962, the house they contracted to erect; and that that house was ready for her occupation. They maintained that their failure to erect the house for the respondent earlier than in 1962 was due to her own inability to select a site or agree with the appellants as to which of the seven plots indicated to her by them was a suitable one on which her building should be erected.
There arose for the determination of the trial court several issues or questions of fact and the learned judge adequately dealt with each and every one of them in his judgment delivered on 27 May 1963, which is now the subject of criticism in this court. In the course of that judgment the learned judge categorically rejected the appellants’ case and held, inter alia, that the respondent’s building which was pulled down was wholly finished and completely roofed with iron sheets; that it contained seven rooms which were habitable; that when the respondent’s house was demolished the appellants gave her one room at the ahenfie, the floor of which was bare earth, as alternative accommodation; that the appellants refused several requests by the respondent to erect the house for her as agreed to in the contract; that they showed a total lack of consideration for her interests; that the respondents’ new building should have been taken in hand and completed not later than six months from the date of the agreement; that the appellants made no attempt to carry out the obligation they voluntarily contracted until the writ was served on them; that the house the appellants have erected is wholly unfurnished and is not the one which they contracted to erect for the respondent; and that appellants had committed a breach of their contract with the respondent and are therefore liable to her in damages.
Being aggrieved by and dissatisfied with this decision the appellants appealed to this court and learned counsel, Mr. Adade, filed on their behalf the following grounds of appeal:
“(a) On the evidence the defendants did not commit any breach of contract.
(b) The judge’s assessment of a reasonable time is not reasonable in view of the evidence that the building was commenced within three months of the completion of the market.
(c) On the face of exhibit A the plaintiff’s action was misconceived and she was not entitled to judgment.
(d) The assessment of the damages is wrong in view of the evidence given by the plaintiff.
(e) There was more than overwhelming evidence regarding the quality of plaintiff’s building. The judge’s finding as to the quality of the premises is against the weight of evidence.
(f) On the face of exhibit A the plaintiff had no cause of action against the defendants personally and her case ought to have been dismissed.
(g) The judgment of the High Court is against the weight of evidence.”
In arguing ground (a) learned counsel for the appellants submitted that the appellants had not committed a breach of their contract because the respondent became aware, after she had filed her writ, that the appellants were complying with the contract and the real issue for the determination of the trial court was, whether the building put up by the appellants satisfied the terms of the agreement. In support of his submission Mr. Adade cited the case of Hoenig v. Isaacs,1 and added that unless the breach goes to the root of the contract the respondent cannot claim for the full value of the contract.
In determining this issue, it is necessary to consider the true construction of the contract (exhibit A) in order to decide whether the two-roomed building put up by the appellants satisfied the terms of that contract. The contract reads as follows:
“MEMORANDUM OF AGREEMENT”
(1) This is an agreement made between the elders of Manso-Akropong hereinafter called the first part and Madam Anane of Akropong hereinafter called the second part.
(2) That it was mutually agreed that, the premises situate at Akropong belonging to Madam Ajoa Anane is to be destroyed by the elders of Akropong to enable them to build a proposed market of Manso (G & A) L/C.
(3) That the said Ajoa Anane has also agreed that her premises should be destroyed and the elders to rebuild new house containing seven-rooms in small sizes each.
That in default on the part of the elders to rebuild seven new rooms in place of the old one, the said Ajoa Anane is fully empowered to sue us jointly for the recovery of seven rooms destroyed.
Dated at Akropong this 3rd day of June 1958.”
The evidence of Kwaku Mensah, the eighth appellant, clearly shows that the memorandum of agreement, exhibit A, was made by the appellants and the respondent was invited to make her mark and affix her thumbprint thereon. His evidence is as follows: “We asked for her consent to pull down the building. She agreed on condition that we build her a new house to be in the same condition as the one we were to demolish. When we obtained her consent, we made a paper to assure her we would build a new house for her.” Therefore, if, on the face of the agreement, there arises any ambiguity or uncertainty as to the construction or interpretation of a clause or a term therein, it must be construed against the maker, namely, the appellants. By clause (3) of the agreement, the appellants undertook the responsibility “to rebuild new house containing seven rooms in small sizes each” as a substitute for the respondent’s house which they had pulled down. The default clause also makes reference to “seven new rooms in place of the old one.” In my judgment, the expression “seven rooms” referred to in the contract, conveys the one and only meaning: seven habitable rooms. If the respondent’s building was an unfinished house containing seven rooms, two of which were habitable, the appellants, upon whom lay the responsibility to erect for the respondent a house similar to the one they had demolished, would obviously have stated in the agreement that the house they had contracted to erect should consist of seven rooms “two of which are habitable.” A careful examination of the agreement clearly shows that it does not contain an attestation clause. Be that as it may, the appellants, the makers of the contract, have not complained that it was not read and interpreted to them. In the statement of defence which was filed on their behalf, the appellants
admitted to the “memorandum of agreement” referred to by the respondent in her statement of claim; they are therefore bound by it.
The first appellant, Obaapanin Akua Praah, Queenmother for Manso-Akropong, gave evidence at the trial and said “She [the respondent] had a lot of persons living with her and her personal effects were numerous.” It is therefore difficult, if not impossible, to accept the contention of the appellants that the respondent and the “lot of persons living with her,” not to mention her numerous personal effects, squeezed themselves up into two habitable rooms. I have not the slightest hesitation in agreeing with the finding of the learned judge, on this issue, that the respondent’s building which was demolished contained “seven habitable rooms.” As the house which the appellants admittedly have erected for the respondent is an “uncompleted swish building” containing seven rooms, only two of which are habitable, it follows, without any shadow of doubt that they have not complied with the terms of the contract. The eighth
appellant admitted at the trial that the floor of the respondent’s building “was plastered with red earth. We had not done that to this one.” The appellants have therefore put up a building totally different from what they contracted to erect for the respondent, a matter which goes to the root of the contract.
The question of law was debated before the court in the case of Hoenig v. Isaacs (supra) was whether the entire performance of a contract is a condition precedent to the payment of the contract price. In that case, the plaintiff, an interior decorator and designer of furniture, was employed by the defendant to decorate and furnish the defendant’s flat for the sum of £G750, the terms of the payment being, “net cash, as the work proceeds, and balance on completion.” The defendant paid £400, by instalments, entered into occupation of the flat, and used the furniture; but he refused to pay the balance of the contract price. On a claim by the plaintiff for the balance of £350, the defendant alleged that the plaintiff had failed to perform his contract, his reason for so alleging being that “the work was done negligently, unskilfully, and in an
unworkmanlike manner.” The defects complained of were as follows: (a) the door of a wardrobe required replacing (b) a bookshelf, which was too short, would have to be re-made, which would require alterations being made to a book case.” The defendant contended that that was an entire contract which had not been performed and, therefore, the plaintiff could not recover. This contention was wholly rejected by the official referee who found that although there were certain defects in the furniture, there had been substantial compliance with the contract.
On appeal by the defendant, the Court of Appeal held that the official referee fell into an error of law and even if the entire performance was a condition precedent to payment under the contract, in taking the benefit of the work by using the defective furniture, the defendant had waived the condition and must pay the contract price, subject to the appropriate deduction. The appeal therefore failed.
It is obvious that in Hoenig’s case (supra), the plaintiff complied with the terms of the contract and the defendant entered into occupation of the flat, the chief complaint by the defendant being the “the work was done negligently, unskilfully, and in an unworkmanlike manner.” In the instant case there is no evidence that the respondent occupied the unfinished building erected by the appellants. The promise which the appellants gave in the agreement is entirely different from the building they had erected for the respondent: (a) an agreement by the respondent to allow her seven-room completed house to be wholly demolished by the appellants, and (b) an agreement by the appellants to erect for the respondent a complete house containing seven habitable rooms in place of what they had demolished. These agreements therefore go to the whole of the consideration on both sides, the one preceding the other. In the course of his judgment in Hoenig’s case (supra), Somervell L.J. had this to say2
“The principle that fulfilment of every term is not necessarily a condition precedent in a contract for a lump sum is usually traced back to a short judgment of LORD MANSFIELD C.J., in Boone v Eyre (1779), 126 E.R 160 . . . LORD MANSFIELD said (1 Hy. Bl. 273):` . . . where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent’.”
In my judgment, the conditions in the agreement are mutual and the respondent, by allowing her house to be pulled down, has fulfilled her part of the agreement. The appellants’ failure to fulfil the obligation imposed on them by the agreement shows a total lack of consideration which, I think, goes to the root of the contract. In delivering the judgment in Hoenig’s case (supra), Denning L.J. made the following pertinent pronouncement3
“It is not every breach of that term which absolves the employer from his promise to pay the price, but only a breach which goes to the root of the contract, such as an abandonment of the work when it is only half done. Unless the breach does go to the root of the matter, the employer cannot resist payment of the price.”
Applying this principle to the instant case, I am of the opinion that the appellants have committed a breach which goes to the root of the contract, therefore the respondent is entitled to claim for the full value of the contract.
Turning now to ground (b) that: “The judge’s assessment of a reasonable time is not reasonable in view of the evidence that the building was commenced within three months of the completion of the market,” I would say that Mr. Adade has given a wrong conception of the evidence adduced in this case. The evidence of the eighth appellant which stood unchallenged, was that “it took us [appellants] three months to build the market,” and not, as stated by learned counsel, that the appellants commenced the respondent’s building “within three months of the completion of the market.” Learned counsel for the appellants contended that the respondent was aware that the appellants were to put up a market and that they were bound to do so before commencing her work; and that the appellants in fact started building for the respondent soon after the completion of the market.
This ground of appeal is now of very little significance in view of my judgment, supporting the finding of the learned trial judge, that the appellants have committed a total breach which goes to the root of the contract and renders them liable in damages. However, I will deal with the matter as the point has been raised in this appeal.
It is true that the respondent had knowledge that the appellants were to build a market on her site; but the memorandum of agreement is silent and the record of proceedings does not show that the appellants “were bound” to complete the market before commencing work for the respondent. On the contrary, on the principles of equity and common sense, the erection of the respondent’s building should have taken precedence over that of the market, since, by the demolition of the house, the respondent had been deprived of the comfort and privacy of her own house. However, the question which this court is called upon to consider is whether the appellants commenced work on the respondent’s house within a reasonable time after the demolition of her house.
According to the appellants, the respondent’s house was demolished “after the execution of exhibit A,” and after they had given her alternative accommodation at the Ahenfie. “After this,” deposed the eighth appellant at the trial, “the market was established at that spot. It took us three months to build the market.” Continuing his evidence, the eighth appellant said:
“Soon after work completed on the market, we saw the plaintiff and asked her to choose a site where we could rebuild her house as promised. The plaintiff said we should wait until her son who had gone to the French Territory had returned… About four years later his son returned to Akropong from French Territory. When her son arrived, the plaintiff came to us and informed us that her son had arrived. Accordingly, she and the son took us to a site which they liked for the new building… We also agreed to build at that site for her… We completed the building about six months ago, but commenced it about two years ago.”
Assuming that everything was done by the appellants timeously, and that it took them about one month to demolish the respondent’s building, then I fix October 1958 as the period within which the market was completed. Four years after that period works out to October 1962. In the appellants’ own estimation, work for the respondent was commenced “about two years ago,” namely, two years prior to the date when the eighth appellant gave evidence at the trial on 17 May 1963, viz. 16 May 1961, a date which it will be difficult to accept, if my calculation is correct; because the evidence on the record of proceedings clearly shows that work on the site had not commenced when the respondent’s writ was sealed on 28 February 1962.
In her evidence at the trial, which shows that the appellants had no intention of fulfilling their promise to erect for her a building in terms of the contract (exhibit A), the respondent deposed, inter alia, as follows:
“The written agreement exhibit A was entered into when the demolition was in progress. At that time, three out of the seven rooms had been demolished…I first approached them and requested them to rebuild the house for me four months after the demolition. I again called on them a second time to rebuild the house for me. The defendants then asked me to show them the site where I would like the new house erected. I showed them seven different sites but they would not agree. I had to show them seven places because any site I showed them was not acceptable to them. When I showed them the seventh site, the defendants told me bluntly that they would not rebuild the house for me as I was not from Manso Akropong. They asked me to
go to my home town Abodom.”
It is difficult to accept the explanation which the appellants gave at the trial, which purported to show that the delay on their part to commence the building for the respondent earlier than 1962 (which period in my judgment I have found not be correct), was due to the respondent’s inability to select a site. The learned trial judge after due consideration of the respective cases of the parties on this issue, rejected the appellants’ version, holding in the course of his judgment as follows:
“In my opinion, the common sense of this matter suggests strongly that the plaintiff’s version of the matter is the one likely to be correct. Her house was demolished against her consent and she was cramped up in one room where she was obviously uncomfortable. It is only natural that she would want the defendants to implement their promise as early as possible so that she could return to the comfort and privacy of her own home. On the undisputed evidence, the plaintiff’s son was not at home when the house was demolished. There is no evidence when he was expected to return and it does not ring true in my ears that the plaintiff would want him to come home however long it takes before an agreement which her son did not witness and
which was intended for her benefit, was implemented. The evidence shows that the plaintiff’s son lived with her and if he returned while the plaintiff still remained at the Ahenfie, she might be hard put to it to accommodate him. It seems to me, her natural wish would be to get the new house ready before he returned so that upon his return, he would not be without a roof over his head. The defendants’ story is improbable and I reject it as false. I find the plaintiff’s version of the facts to be true.”
If, from the appellants’ own showing, it took them “three months to build the market,” then it could have taken them less than three months to erect the respondent’s building. The learned trial judge’s finding that “the new building for the plaintiff should have been taken in hand and completed not later than six months from the date of exhibit A, namely, 3rd December 1958” is amply supported by the evidence. His assessment of a reasonable time is therefore not unreasonable.
In arguing ground (c) “that the plaintiff’s [respondent’s] action was misconceived,” Mr. Adade submitted that the appellants reserved to the respondent a specific right for the recovery of the seven rooms and her right therefore is to request the appellants to erect the seven rooms for her. He referred us to Wolverhampton Corporation v. Emmons4 and Molyneux v. Richard5 and submitted that since the respondent said she had a building of a definite description she should have sued for specific performance. This was a proposition with which learned counsel for the respondent, Mr. Agyepong, did not seem to agree. Mr. Agyepong contended that the two authorities referred to were not applicable to the instant case, because one of the three conditions which must exist in the grant of specific performance is that the plot of land on which the building is to be erected must be accurately defined. But it is not so in this case.
The argument of learned counsel for the appellants, as far as I understand it is, that the respondent’s right if any, was for specific performance of the contract and not damages. This point was canvassed before the learned trial judge who held, rightly in my view, that the respondent had a right at common law to claim damages for the breach of the contract, or, in equity to secure an order for specific performance of the contract where damages are inadequate. The learned judge’s enunciation of the law, which I accept as correct, is stated as follows:
“The breach of a contract normally gives the innocent party a right to damages at common law. Where damages are inadequate he may secure an order in equity for the specific performance of that contract . . . I am very clearly of the opinion that the plaintiff is entitled to be put in the same position as far as money can make it as if the contract (exhibit A) had been duly and properly performed. In other words, I hold that the plaintiff is entitled to damages . . .”
Where the common law remedy exists and is adequate, the court will not interfere by ordering specific performance. In Fry on Specific Performance (3rd ed.) at p.27 it is stated:
“The only remedy at common law for the non-performance of a contract was in damages, that is to say, in the payment of a sum of money by the party who had broken the contract to the party injured by that breach. If money were in all cases a perfect measure of the injury done by this breach, it is evident that an exact equivalent for the wrong might be done, and that the justice done might be complete. But money is an exact equivalent only when by money the loss sustained by the breach of the contract can be fully made good.”
At page 587, para. 1311 of the same book, the learned author gave the following example:
“Where, for instance, a man contracted to pull down an old house, to rebuild, and to accept a lease of the new building, and then made default in rebuilding, Lord Hatherley (then Wood V.C.) held the intended lesser entitled to have damages for the non-building, and also specific performance of the contract to accept the lease.”
I shall now consider whether this case is one in which an order for specific performance can be made. The evidence on the record of proceedings shows that there was a definite contract between the parties whereby the appellants agreed to erect for the respondent a building, particulars of which were given as “seven rooms in small sizes each,” but the contract does not give particulars of the exact nature of the work, for example, the materials which should be used in roofing the building. The building work was therefore not defined in the contract. Furthermore, there is nothing to show on the face of the contract that a particular piece or parcel of land had been acquired on which the respondent’s building was to be erected. “The question, which is not free from difficulty,” propounded by Romer L.J. in the course of his
judgment in Wolverhampton Corporation v. Emmons (supra), “is whether, under the circumstances of this case, an order for specific performance should be made in favour of the plaintiffs.”6 He then continued7
“There is no doubt that as a general rule the Court will not enforce specific performance of a building contract, but an exception from the rule has been recognised. It has, I think, for some time been held that, in order to bring himself within the exception, a plaintiff must establish three things. The first is that the building work, of which he seeks to enforce the performance, is defined by the contract; that is to say, that the particulars of the work are so far definitely ascertained that the Court can sufficiently see what is the exact nature of the work of which it is asked to order the performance. The second is that the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of the contract by damages. The third is that the defendant has by the contract obtained possession of land on which the work is contracted to be done.”
In the case of Molyneux v. Richard (supra), Kekewich J., in the course of his judgment, stated what the tests of the right to specific performance are. He then continued his judgment and stated88
“It is not necessary nowadays to go back to the old cases, because the law is laid down in the plainest possible terms by the Court of Appeal in Wolverhampton Corporation v. Emmons ([1901] 1 K.B. 515). It was there recognised that the general rule in equity was that an agreement to erect buildings could not be specifically performed, although Collins L.J. thought, and I respectfully agree with him, that the Courts of Equity had not always been consistent in following that rule. But it was also recognised that there had been established certain exceptions to that general rule, and those exceptions are clearly stated by A. J. Smith M.R. and Romer L.J., and are also referred to by Collins L.J., and their enunciation of the law may be taken to state accurately the extent of the exceptions. The Master of the Rolls says this ([1901] 1 K.B. 522): `The authorities . . . appear to me to shew that, where there is a definite contract, by
which a person, who has acquired land in consideration thereof, has agreed to erect on the land so acquired a building, of which the particulars are clearly specified, and the erection of which is of an importance to the other party which cannot adequately be measured by pecuniary damages, that is a case in which, according to the doctrine acted upon by Courts of Equity in relation to such matters, specific performance ought to be ordered.’ Romer L.J. also states the three points in his judgment. I will not pause to read his language. The first thing to be considered is whether there is here in the words of the Master of the Rolls `a building of which the particulars are clearly specified.”
The question in the instant case is whether from the evidence on record the case for the respondent can be brought within any of the exceptions above stated. The first question is whether the work, as described in the contract, is sufficiently defined. I think it is not. The other question is, whether the appellants obtained possession of a piece or parcel of land on which the respondent’s building was to be erected by means of the contract for its erection. Clearly they did not. It seems to me therefore that this case cannot be brought within the exceptions laid down in the Wolverhampton case (supra) and an order for specific performance
cannot be made.
In dealing with grounds (e) and (g) which learned counsel for the appellants combined and argued together against the weight of evidence, after he had abandoned grounds (d) and (f), I only have to say that they contained the least merit in the five grounds of appeal argued before us and I shall quickly dispose of them by saying that there was sufficient evidence on the record of proceedings to support the judgment of the learned judge.
In the result I would dismiss the appeal with costs for the respondent fixed at £G39 15s.
DECISION
Appeal dismissed.
T. G. K.
