RTEY v. BANNERMAN [1972] 2 GLR 438
HIGH COURT, ACCRA
Date: 6 JULY 1972
BEFORE : SARKODEE J.
CASES REFERRED TO
(1) Hills v. Croll (1845) 1 De G.M. & G. 627, n; 14 L.J.Ch. 444; 5 L.T. (o.s.) 493; 9 Jur. 645; 42 E.R
.698.
(2) Flight v. Bolland (1828) 4 Russ. 298; 38 E.R. 817.
(3) Lumley v. Ravenscroft [1895] 1 Q.B. 683; 64 L.J.Q.B. 441; 72 L.T. 382; 59 J.P. 277; 43 W.R. 584;
39 S.J. 345; 14 R. 347, C.A.
(4) Corpe v. Overton (1833) 10 Bing. 252; 3 Moo. & S. 738; 3 L.J.C.P. 24; 131 E.R. 901.
(5) Holmes v. Blogg (1818) 8 Taunt. 508; 2 Moore C.P. 552; 129 E.R. 481.
(6) Basma v. Weekes (1950) 12 W.A.C.A. 316.
NATURE OF PROCEEDINGS
ACTION by the plaintiff against the defendant for specific performance of a contract. The facts are set out fully in the judgment.
COUNSEL
Nii Odoi Annan for the plaintiff.
Dr. Ekow Daniels for the defendant.
[p.440] of [1972] 2 GLR 438
JUDGMENT OF SARKODEE J.
The plaintiff by her writ of summons claims against the defendant:
“(a) An order for specific performance of an agreement to sell the defendant’s premises No. 336 West Korle Gonno Estate to plaintiff. (b) An injunction to restrain defendant from occupying the said premises during the pendency of the suit; and (c) Damages for the breach of the said agreement.”
The defendant was the lessee of house No. 336 West Korle Gonno Estate, Accra. The defendant could not pay the instalments on the lease. He owed the Housing Corporation three-and-a-half years rent and he could not pay city council rates and his electricity bills.
The offer for the sale of the leasehold property was contained in exhibit A, which is in the defendant’s own handwriting. The last two paragraphs read as follows:
“I will agree to accept now the difference in cash after deducting the present arrears-all sources-due and amounting to the figure hereunder viz: Arrears of high purchase instalments £G197 2s.
city council rates 24 10s. Water Corporation dues (App.) 40 Electricity re-connection 17
£G279 10s leaving a cash balance of £G571 to be made available and for payable to me as the outright purchase price and transfer of the property, rather than mortgage same for the proposed loan over a period of years as suggested.
Should you and your connections agree to the terms herein stated now as honourable, I will also concur, and,would request a two months’ grace from 1st September, to 31st October to enable me to vacate the premises for a new abode.”
The letter was addressed to the plaintiff’s father. Subsequently, the plaintiff paid the three-and-a-half
years arrears of rent due to the Housing Corporation. In addition the plaintiff paid to the defendant in cash the sum of ¢400.00 being a refund of rent paid by the defendant to the Housing Corporation; she paid the electricity bill and the arrears of water rates. On 14 August 1971, the defendant signed a declaration, exhibit B. Attached to this is a receipt for ¢750.00 which the defendant had received from Patience Larley Lartey, “being payment in respect of transferring Bungalow No. 336, situate and lying at West Korle Gonno Estate-Mamprobi, a suburb of Accra.” A copy of exhibit B was attached to an application for interim injunction filed by the plaintiff and marked exhibit C. The last paragraph of the receipt showed that a [p.441] of [1972] 2 GLR 438 balance of ¢650 remained to be paid: “On the 31st October, 1971, when the keys, of the said bungalow will be handed to Patience Larley Lartey accordingly.” There is no doubt from the above that the defendant by his conduct agreed to sell house No. 336 West Korle Gonno Estate; further he stated in exhibit B that the subject-matter of the sale was not in any way encumbered and was not subject to any family or tribal claims or disputes whatsoever.
By paragraph (2) of the amended statement of defence the defendant admitted having entered into an agreement to sell the said house to then plaintiff but said that he had resiled from the said agreement on grounds of hardship being encountered by him. At the request of the defendant the plaintiff’s solicitor prepared a deed of assignment, exhibit D, and went with the plaintiff’s father, Blankson Lartey, to the Lands Department and obtain a formal consent to the assignment. The defendant then caused the Lands Department to prepare a formal lease of the premises which the defendant executed on 18 September 1971. This was tendered and marked exhibit C. Despite this contract of sale the defendant refused to execute a formal assignment to the plaintiff and also refused to vacate the premises and give possession to the plaintiff. Then plaintiff however paid the balance of the purchase price to his solicitor who on 6 November 1971 invited the defendant to execute the deed and collect the balance. The defendant refused and the plaintiff therefore instituted this action.
The plaintiff did not herself give evidence but her father Blankson Lartey did so on her behalf. It turned out in the course of his evidence that the plaintiff was an infant. This was a surprise to the court and perhaps to the defendant and his counsel. This is clear from the statement of defence filed on 30 November 1971 and from correspondence between the defendant and the plaintiff. At the close of the plaintiff’s case the defendant asked for and was granted an adjournment. He thereafter filed leave to amend his statement of defence. Leave was granted and the defence was amended accordingly and as was expected it stated that the agreement could not be specifically enforced as it was entered into with an infant. From that stage the case took a different turn, the defendant having substantially abandoned the original defences he put up. The plaintiff also applied for and obtained leave to amend the title of the suit to read that she was suing by her next friend Joseph Blankson Lartey and annexed the consent of Blankson Lartey.
The question is can the defendant be allowed to resile from the said agreement. I think I ought not to
allow him to do so. The plaintiff went to his aid when he was in danger of losing his property by paying three-and-a-half years arrears of rent, by having the electricity supply to the premises which had been cut restored and by paying water and city council rates. Blankson Lartey offered him a loan to be secured by the house. The defendant refused and insisted on selling the house. A formal lease was prepared and consent to transfer house No. 336 West Korle Gonno Estate to the plaintiff was obtained with the knowledge and [p.442] of [1972] 2 GLR 438 concurrence of the defendant. In my view the parties went very far with the agreement and it will be inequitable to permit the defendant to resile from it.
The defendant did not give evidence. Instead his counsel submitted that an order for specific performance was not maintainable against the defendant since the plaintiff was an infant. Specific performance is an equitable remedy and it is in general readily granted to enforce against a defendant the duty of doing what he agreed by contract to do provided certain conditions are satisfied. These are that the contract is valid in form, has been made between competent parties and is unobjectionable in its nature and circumstances (see Halsbury’s Laws of England, (3rd ed.), Vol. 36, p. 264). The remedy will however not be enforced against one party. Where circumstances exist at the date of the contract, such as personal incapacity, that party will not be able to enforce the contract against the other party. Thus specific performance cannot be enforced against a party who has entered into a contract with an infant since the remedy does not lie against an infant. A court of equity will not lend its aid where the remedy is not mutual. It must be possible to give relief to both parties or as Lord Lyndhurst put it in Hills v. Croll (1845) 42 E.R. 698 at p.
699, “The Court will not decree an agreement to be specifically performed unless it can execute the whole of the agreement.”
An infant cannot succeed in an action for specific performance of an agreement to sell land, since the
court cannot enforce his obligation to pay the purchase price. In Flight v. Bolland (1828) 4 Russ. 298 at p. 301 it was stated by Leach M.R. that: “It is not disputed, that it is a general principle of courts of equity to interpose only where the remedy is mutual.” Lumley v. Ravenscroft [1895] 1 Q.B. 683, C.A. was a case where the defendant, an infant, and his sister agreed by their agent to grant the plaintiff a lease of property in which they were jointly interested. The plaintiff brought an action for specific performance of the agreement and applied for an injunction to restrain the defendants till after the trial. It was held that one of the defendants being an infant the plaintiff was not entitled to specific performance.
It may be argued that where an infant enters into a contract for the acquisition of an interest in property of a permanent nature, he may avoid it at his option and that unless he does so avoid it, he is bound by it.
The rule, however, is that money already paid is not recoverable unless the consideration for which it was given has totally failed; that is unless the infant has derived no benefit whatsoever from the contract. The rule is illustrated in Cheshire and Fifoot, Law of Contract (6th ed.), p. 354 as follows: “If for instance, an infant agrees to enter into a future partnership with X., and pays £100 by way of advance, he can recover this sum if he repudiates the agreement before the partnership functions.”
[p.443] of [1972] 2 GLR 438 On the other hand:
“if while still an infant he acts as partner and enjoys the use of X.’s business premises, he cannot upon a later repudiation of the contract recover what he has paid. In the first case he has enjoyed no advantage whatsoever, in the second he has partially enjoyed the consideration.”
See Corpe v. Overton (1833) 10 Bing. 252 and Holmes v. Blogg (1818) 8 Taunt. 508. It may therefore be said that contracts by an infant to purchase land are also binding on him unless and until repudiated. He may, for instance, repudiate the purchase of a leasehold interest and escape liability on the convenants, but he cannot recover the purchase price, since to restore a lease that has already run part of its term is not to restore exactly what was received. See Holmes v. Blogg (supra). It is also true that infancy is a personal privilege but it seems to me that where the aid of equity is sought for the enforcement of a contract the crucial point is one of mutuality rather than infancy. Thus in Basma v. Weekes (1950) 12 W.A.C.A. 316, Mrs. Weekes and two others agreed to sell two houses of which they were tenants in common. Mrs.
Weekes at the time was a married woman. Before 1932 the law of Sierra Leone with regard to capacity of a married woman was the same as the law in England before the Married Women’s Property Act of 1882.
Mrs. Weekes who was married in 1931 had no power to enter into the agreement. The question then was whether the appellant was entitled to have specific performance. It was held that he could not enforce the contract against Mrs. Weekes, because she had no power to make the contract.
I am therefore compelled to hold that specific performance cannot be granted to compel the defendant, Edmund Bannerman, to do what he contracted to do and as specific performance does not lie, the plaintiff is not entitled to an injunction. See Lumley v. Ravenscroft (supra). But for the fact of lack of mutuality specific performance would on the facts of this case have been granted. Indeed the plaintiff has been deprived of the house because of what I term this technical difficulty which could not be overcome and I doubt whether damages would be an adequate compensation. In the case of a contract to sell or transfer property as in this one damages cannot be adequate for the breach and in equity the due performance of the contract was always enforced. However in this case there is no doubt that the plaintiff has suffered substantial damage and the damages to be awarded must therefore be substantial albeit inadequate.
Finally, therefore, the claim for specific performance fails. That for injunction also fails and the order of interim injunction made by this court on 13 March 1972 is therefore discharged. The defendant is hereby ordered to pay to the plaintiff the sum of ¢750.00 with interest at ten per cent from 14 August 1971 to the date of this judgment. [p.444] of [1972] 2 GLR 438
I award damages to the plaintiff assessed at ¢2,000.00. Costs of ¢200.00 to the plaintiff.
DECISION
Claim for specific performance refused.
Damages and costs to the plaintiff.
