MAMAVI v. WEST AFRICAN BUILDING LTD. [1965] GLR 216

DIVISION: HIGH COURT, ACCRA

DATE: 29 MARCH 1965

BEFORE: APALOO J.S.C.

CASES REFERRED TO

(1) Standing v. Bowring (1884) 27 Ch.D. 341.

(2) Re Rose (Deceased); Rose v. Inland Revenue Commissioners [1952] Ch. 499; [1952] 1 T.L.R.

1577; [1952] 1 All E.R. 1217, C.A.

(3) Re Anstis; Chetwynd v. Morgan (1886) 31 Ch.D. 596; 54 L.T. 742; 34 W.R. 483; 2 T.L.R. 335,

C.A. [p.218] of [1965] GLR 216

(4) Re Plumptre’s Marriage Settlement; Underhill v. Plumptre [1910] 1 Ch. 609; 79 L.J.Ch. 340; 102

L.T. 315; 26 T.L.R. 321; 54 S.J. 326.

(5) Boakye v. Broni (1958) 3 W.A.L.R. 475.

NATURE OF PROCEEDINGS

ACTION for the return of the full purchase price paid by the plaintiff for a house belonging to defendant company before Apaloo J.S.C. sitting as an additional judge of the High Court, wherein the defendants counterclaimed for specific performance of the agreement to purchase the house. The facts are fully set out in the judgment.

COUNSEL

E. N. Moore for the plaintiff.

J. B. Quashie-Idun for the defendant.

Dr. de Graft-Johnson for the third party.

JUDGMENT OF APALOO J.SC.

In this action the plaintiff claims from the defendant company the sum of £G2,400 which he admittedly paid to the company for the purchase of a house described as No. 4 Main Street, Tesano. The plaintiff seeks to recover the purchase price on the ground that the defendant company (which I shall hereafter refer to as the company) refused to complete the sale by the execution of a conveyance or assignment in his favour. The substance of the company’s reply is that on the express instructions of the plaintiff, the receipt for the purchase price was made out in favour of one Miss Evelyn Amarteifio who was subsequently joined to this suit as a third party and that the plaintiff further instructed that the assignment be executed in the name of the third party.

The company also say that before the assignment could be completed, the plaintiff countermanded his instructions and both the plaintiff and the third party set up rival claims to the house. Accordingly, the company say they were and are willing to convey the house to whoever is adjudged to be the owner. That being the stand they took, the company sought and obtained an order joining the said Miss Evelyn

Amarteifio as a third party. Against her they claim indemnity or contribution to the extent of the plaintiff’s claim. On being joined to the suit, the third party entered an appearance and filed a defence which, as subsequently amended, was to the effect that the house in question was bought for her in pursuance of a promise which the plaintiff made to her. The third party’s answer amounts to no more than that the house was gifted to her by the plaintiff. This was seriously controverted by the latter.

Counsel for the company argued that they were merely stakeholders and are not interested as such in the dispute between the plaintiff and the third party. I think on the pleadings and the way

[p.219] of [1965] GLR 216 in which the case was fought that is a correct description of their role, although this seems to have been blurred by the way in which the writ was framed. I do not wish to emphasize the form of the matter as I propose to decide this case on its merits not on its form. In any case, questions about form are out of fashion nowadays. There are also issues of law, depending of course, as issues of law ever do, on the facts proved and to the facts I now turn.

The plaintiff, who I should judge to be in his middle forties, comes from Dahomey. He says, and I have no reason to doubt it, that he has been living in Ghana since 1942. He was lawfully married to a Ghanaian in 1959 under the Marriage Ordinance, Cap. 127 (1951 Rev.). He is and was, at the date material to this case, employed by a company called Umarco. In 1963, he was in receipt of salary at the rate of £G65 per month and a car allowance of £G20 per month. That does not seem in present-day economics, a generous salary but the evidence which I have heard in this case satisfies me that he is a man of some substance. In addition to English which he writes and speaks very well, he also writes French. Two of the letters which he admitted writing to the third party were commenced “Ma Chere Eve” which I believe is the French for

“my dear Eve.” So much for the background of the plaintiff in so far as the evidence enables me to form any picture of it.

The plaintiff said some time towards the close of 1962 he visited the offices of the defendant company.

His object was to inquire about some of the buildings which the company erected for sale. He said he met a Mr. Asare who is one of the two directors of the company. The latter showed him plans of the buildings which the company had and their respective prices. According to the plaintiff, he decided to buy one the price of which was given as £G2,400. Accordingly, he took to the offices of the company the sum of

£G2,400 in cash to pay for the one of those houses. This was on 8th January, 1963. The plaintiff said he met Mr. Akoto the other director of the company but the latter declined to accept the case but expressed willingness to receive payment by cheque. The plaintiff said on 11 January 1963, he sent a cheque for this amount made out in favour of the company.

According to the plaintiff, he sent this cheque to the company by the hand of the third party and in the following circumstances: He said the third party was a good acquaintance to whom he rather frequently gave lifts to school. On 11 January while running her to school, he mentioned to her that he had to go to the company’s offices to pay in a cheque. The third party said as he appeared to be in a hurry, she could visit the company on his behalf. The plaintiff said he agreed to this and delivered to the third party a cheque for

[p.220] of [1965] GLR 216

£G2,400 which he had already made out in favour of the company. He understood from the third party the next day that she had duly paid in the cheque but the latter declined to hand him the receipt, but promised to let him have it at a later date. He said some time later, he learnt from Mr. Asare that the receipt for the payment was issued in favour of the third party. That was, he said, without his authority. The plaintiff said when he learned this, he wrote to the company, in effect, to protest. That letter was dated 18 April

1963 and was tendered in evidence by the plaintiff. The latter also said the keys of the house were handed to the third party without his knowledge. Upon hearing this, he went to the house and walked out the third party’s brother whom he met there and took possession of the keys. He denied that the third party was a girl-friend of his and that he had promised to buy her a house.

The third party’s version of the facts was wholly different and cannot possibly be reconciled with the plaintiff’s. She gave her age as 32 and said she first met the plaintiff about 1959, when she was a receptionist at the airport. According to her, she and the plaintiff became friends some time before the

Easter of 1962. She and the plaintiff, to quote her own words, were very dear to each other and often went out together to parties, beaches and paid visits to friends. They also exchanged presents and of course letters, a batch of which she tendered in evidence. She said some time in 1962, the plaintiff offered to buy her a house. The reason for this offer is best expressed by a quotation from her evidence, that is, the plaintiff said “he was very much in love with me and wanted to do something great for me.” She said the plaintiff asked her to look round for a suitable house. She complied and visited the offices of the C.F.C. where she met Mr. Akoto for the first time. The latter took her in a car to a place behind the Police Depot and showed her two types of building. She took a fancy to one whose price was quoted as £G2,400. She told the plaintiff of this and together they visited the site. This was on 10 January 1963. Later that day, they returned to the site, this time her father was with them because the plaintiff had apparently made his intentions known to her father.

According to the third party, on the following day, she and the plaintiff called at the company’s offices and met Asare. The latter took them to the offices of Mr. Akoto and in the latter’s presence, the plaintiff then issued a cheque for £G2,400 in favour of the company. But before this, she handed to Mr. Asare, an application offering to purchase the house. This was typed out by the plaintiff but signed by herself

(exhibit 15). At the plaintiff’s request the receipt for the purchase price was made out in her name as well as the receipt for the sum of £G34 which the plaintiff paid in cash

[p.221] of [1965] GLR 216 for ground rent and legal charges. These receipts were handed to her but the two set of keys for the house were handed to the plaintiff. On their way home, the plaintiff recovered these receipts from her as he said he wanted to show them to her father. The plaintiff in fact handed these receipts as well as the keys to her father. Thereafter, the third party said she entered into possession of the house and she and the plaintiff often pleased themselves in that house. At present, the house is in occupation of a tenant to whom she rented it.

I have seen both the plaintiff and the third party and have listened to their evidence and to the answers they each gave in cross-examination. If I had to decide this case only by the rather fallible guide of demeanour, I should have felt the greatest difficulty in deciding which of their accounts is the truth because both struck me in the witness-box as cool and collected witnesses. But in my opinion, the common sense of this case and the rest of the evidence wholly and decisively support the third party. Her evidence that the plaintiff was her boyfriend is supported by five letters which the plaintiff admitted writing to her. I have read and re-read all these letters. They were couched in very affectionate language, and were invariably ended with “Ever your devoted C.” The plaintiff did not then envisage a possibility of their falling apart for he promised against this in two of his letters.

In his letter exhibit 12 for instance, he wrote as follows: “Please darling, I can assure you that not all the legions of hell grouped together can separate us or swerve my attention one jot from you. On 23 February

1963, just over a month after the purchase of the house in question he again wrote (exhibit 4): “May I here reiterate my previous promise that neither hell nor Lucifer can separate us.” I cannot see how the plaintiff can promise the third party against their separation unless they were previously united. All this may be sentimental nonsense, but it does go to support the third party that she and the plaintiff were united in love. Indeed in his letter of 7 January 1963, written four days before the purchase of the house

(exhibit 7) the plaintiff put their relationship bluntly, for he wrote, “I admit our love for each other is so fierce as to be tyrannical.”

That the plaintiff places a great value on this love, is shown by the way in which he ended this letter, namely. “To conclude no sacrifice will be too high a price to pay for your love.” Yet the plaintiff would have me believe that the third party was no more than his acquaintance. The third party said in cross-examination with admirable candour that the plaintiff was treating her as his second wife. I think this association can have had no pretension to chastity. The plaintiff himself must have been considering this aspect of their relationship when in his letter of 14 December, exhibit 5, he wrote “Even though we may cease conjugal relations you can depend upon it, my love for you

[p.222] of [1965] GLR 216 will ever be greater than merely platonic.” But I do not think the plaintiff succeeded in of imposing upon himself this restraint because the third party said and I think truly, that she and the plaintiff some time spent week-ends in the house in dispute. At other times, they went there to eat, drink and relax. It is really unnecessary for me to go into any further details. The third party is an attractive young woman and I am satisfied the plaintiff was enamoured of her. I find that she was his paramour. That seems to me the raison d’etre for the promise to buy a house which I am satisfied he made to her. In my judgment, it was in the fulfilment of that promise that the house in dispute was purchased.

I accept without hesitation the evidence of the third party that she in fact looked for and selected the house in dispute. Her evidence on this part of the case was convincingly supported by the independent testimony of Mr. Akoto one of the directors of the company. The plaintiff was in such hurry to redeem his promise to the third party and perhaps also to impress her, that he took the enormous sum of £G2,400 to

Mr. Akoto in cash and told him that he wanted the house urgently for the lady. That lady can have been none other than the one to whom he promised never to be parted. As to what happened on what has become the “great day” of this case, namely, 11 January 1963, the third party’s evidence was fully clinched by the obviously truthful evidence of Messrs. Akoto and Asare. I feel no doubt at all that these two gentlemen are honest witnesses and that I can believe everything they say.

Their oral testimony is supported by such documents as were made at the time. There is, for example, the third party’s application form (exhibit 15), there are the two receipts issued in the name of the third party

(exhibits 13 and 14). There is the letter which Mr. Asare wrote in the disinterested course of his duty to the company’s solicitors instructing them to make out a lease in the name of the third party (exhibit 16).

There is also the letter which the plaintiff wrote to the company on 18 April 1963 (exhibit A), requesting apologetically, that the title deeds on the house be changed from the third party’s name to his own. In so far as the plaintiff suggests that the title deeds were not ordered by him to be made in the name of the third party, that letter (exhibit A) shows him up as a contemptible liar. To cap it all, there is the evidence of Mr. Amarteifio, the third party’s father, to whom the plaintiff communicated his intention and to whom he delivered the keys when he translated his words into deeds. I need hardly say his evidence was ineffectively challenged. I have listened to an exhaustive canvassing of this case for several days and on the facts before me, I am certain of one thing, namely, that the plaintiff has no merit whatsoever.

[p.223] of [1965] GLR 216

Accordingly, I find that the plaintiff and the third party met for the first time some time in 1959. On a date prior to Easter 1962, they became friends. I think this friendship grew with time and certainly by

December of that year, both became lovers in the full sense of that word. I find it proved that the plaintiff and the third party often went out together to parties and other places of amusement and that the three photographs (exhibits 9, 10 and 11) tendered in evidence were taken at such places. I find that by

December 1962, the third party and the plaintiff were living together in great affection if such a thing can properly be said of a married man and his paramour. It was indeed about this time that the plaintiff wrote his most endearing letter to the third party. I am satisfied that it was also at this time that he offered to buy her a house. I think his object was to requite her favours and presumably also to provide a suitable rendezvous for their amorous activities. I find that he mentioned this offer to the third party who gladly accepted it. It was in pursuance of this offer that the third party visited the offices of the company and met

Mr. Akoto and was taken by him to the site. I find it established that it was the third party who selected the house in dispute and subsequently took the plaintiff to see it. I accept the evidence that the plaintiff confided in the third party’s father and told him of the projected purchase of the house for the third party and at his invitation, also went with him and the third party to view the house.

I find it proved that on 11 January 1963, the plaintiff ran the third party in his car to the offices of the company and met Mr. Asare who took them both to Mr. Akoto’s office. I am satisfied that the third party then handed to Mr. Asare an application for the purchase of the house (exhibit 15). The plaintiff, I find then issued a cheque of £G2,400 in favour of the company and directed that the receipt for this be made out in favour of the third party and also paid cash £G34 for ground rent and incidental expenses and gave the same instructions. These instructions were duly carried out and the receipts were accordingly made in favour of the third party (exhibits 13 and 14). I find positively that the plaintiff then instructed Mr. Asare to make out an assignment in favour of the third party. I accept the evidence that the receipts were handed to the third party while the keys of the house were delivered to the plaintiff. The plaintiff subsequently recovered these receipts from the third party and a few days after 11 January 1963 delivered these to the third party’s father. He must have delivered these keys to him as agent for the third party. I think his object was to impress it upon the third party’s father that he was as good as his word. I find that the third party then entered into possession of the house and took some of her personal effects there and has remained in possession ever since. She called at the

[p.224] of [1965] GLR 216 offices of the company on a number of occasions to obtain the title deeds and was informed on each such visit that these documents were not ready.

The evidence shows that about March 1963, the plaintiff’s wife saw the third party in the plaintiff’s car and there was an incident between them resulting in a police case. It is unclear what happened in court but the events which followed this enable me to infer that the plaintiff must have had cause to be displeased with the third party he professed to love so much. The plaintiff himself told me that it was after this that he found out that the receipt for the £G2,400 was made out in favour of the third party. It would seem that about this time the plaintiff paid a visit to Moscow. He mentioned his impending trip in his letter to the third party dated 23 February 1963, and said he would be leaving the following Tuesday. He did but I think he did not stay long and was in Ghana about March when the fracas between his wife and his sweetheart occurred.

I think it was as a result of this fracas that the plaintiff decided to bring his association with the third party to an end. The latter seems to have thought that the plaintiff’s affection for her cooled off since his return from Russia. I do not believe that the cold winds of Moscow had anything to do with the rupture of their association or that the plaintiff learnt any virtues there. I think that the plaintiff must have been angered by what happened between his wife and the third party in March and decided that it was time they separated. I believe it was after this that he began to have second thoughts about the house which he bought for the third party and took steps to recover not only its physical possession, but also to have the title deeds changed into his name.

To achieve his objective, the plaintiff called on the third party’s father at his offices and asked to have the keys of the house to supervise the installation of electricity. He was told that the third party’s brother was then in the course of cleaning the house and had the keys. The plaintiff drove there and had the doors locked and gave the third party’s brother a lift home but kept the keys. It was by this ruse that he recovered the keys. He also called on the company and instructed Mr. Asare to change the documents of title from the third party’s name to his own. Fortunately for him even at this time, the company’s solicitors had not completed the making of the assignment. The plaintiff was asked to bring a written request for this purpose. I find that it was in compliance with this request that he wrote his letter of 18

April (exhibit A) to the company. But before this, I find that he asked Mr. Asare to sell the house and give him back his money. Mr. Asare refused. When Mr. Asare received the letter instructing him to alter the title deeds to the name of the plaintiff, he in turn relayed this instruction to the company’s solicitors. [p.225] of [1965] GLR 216

As a result of advice they gave him, he asked the plaintiff to get the approval of the third party to the proposed alteration. Consequent upon this, the plaintiff took to Mr. Asare, a letter purporting to come from the third party authorising the alterations (exhibit 19). I have no doubt whatsoever that that letter did not come from the third party nor was in any way authorised by her. In due course the difference between the plaintiff and the third party came to the knowledge of Mr. Asare. As these one-time lovers failed to resolve their differences, the assignment has, to date, not been executed. These are facts which I find in so far as they are necessary or relevant to the eventual determination of this case. Indeed the evidence is not susceptible to any other findings and counsel for the plaintiff has not invited me to make any findings of fact in his client’s favour. On the evidence in this case, he could not have done so with the slightest prospect of success. He relies for the success of the plaintiff’s case on submission of law and with these I now deal.

It was submitted for the plaintiff that the contract for the purchase of the house in dispute was entered into between the plaintiff and the company. It was said that even if the case of the third party and defendant company were true, an assignment had not been executed at the time the plaintiff countermanded his instructions and that the company was obliged to proceed to make out the title deeds in the altered name.

It was said as they failed to do this, they had repudiated the contract and this entitled the plaintiff to treat it as at an end and to seek to recover his money. Counsel said a principal can always countermand his instructions to an agent.

As a bare proposition of law, that contention is broadly right but it shows, if I may say so with respect, little appreciation of the legal position which resulted in the company’s offices on 11 January 1963.

Admittedly, the house was bought by the plaintiff who paid the purchase price. The company handed to him the keys of the house and enabled him to enter into possession. The company itself is known to have a leasehold interest. The position seems to me to be that the beneficial interest in the house was transferred to the plaintiff. All that was left was the bare legal title which the company were obliged to transfer to him by the deed of assignment. The company had reason to think that the plaintiff in his turn transferred the beneficial interest he himself acquired to the third party or was going to do so. Before the purchase, the plaintiff as I have found, told Mr. Akoto one of the directors of the company that he wanted the house for the third party.

The plaintiff instructed the company to issue receipts for the purchase price in the name of the third party and directed them to convey the legal estate to her. If, as the company may well have thought, the beneficial interest in the house

[p.226] of [1965] GLR 216 became vested in the third party, it would be an act of folly on their part to proceed to carry out the plaintiff’s altered instructions without ensuring that it had the approval of the third party. When they tried to obtain this, they came face to face with a serious conflict between the plaintiff and the third party as to the ownership of this house. What were they to do in those circumstances? Reason and common sense alike suggest that they should stay their hands until this dispute has been resolved. That is precisely what they did. Yet counsel submitted that that conduct amounted to a repudiation of the contract. I see nothing like it.

I cannot of course acquit the company of some culpable delay in not getting an assignment ready from 11

January to about mid-April and this delay was unexplained. If the company felt themselves harassed by an action such as this, regarding property in which they claim no interest, it is in part their own fault or perhaps more accurately, the fault of their solicitors in delaying the preparation of an assignment but I entirely reject the argument that the plaintiff is entitled only on that score to treat the contract as at an end and to recover the purchase price of a house whose possession and enjoyment he had had.

It was next contended on behalf of the plaintiff that had there been an actual execution of an assignment in the third party’s favour, there would have been, by operation of law, a resulting trust in favour of the plaintiff on the ground that he purchased the property in the name of a person who was a stranger to him.

But the evidence satisfied me that the plaintiff intended to make a gift, albeit an improvident one, of the house to the third party and I reject that argument as indeed Pearson J. in 1884 rejected a similar contention on somewhat similar facts in Standing v. Bowring.1

Counsel for the plaintiff next submitted that the third party could only rebut the presumption by proof that there was a valid gift of the house to herself. It was said equity would not perfect an imperfect gift and that inasmuch as the deed of assignment was not actually executed in the name of the third party, the gift was incomplete and could be properly revoked. Counsel then cited and relied on in Re Rose (Deceased);

Rose v. Inland Revenue Commissioners.2 I have read that case and have done my best to extract its ratio decidendi. As I understand it, that case decides that an intending donor must do all in his power to divest himself of his beneficial interest in the subject-matter of the gift; and the circumstances that the donee may not acquire a legal title to the gift without some other legal requirement would not make the gift of the beneficial interest incomplete. In my opinion, this case decides

[p.227] of [1965] GLR 216 the contrary of what is contended for by the plaintiff. The facts of this case show plainly enough that the plaintiff did all in his power not only to divest himself of the beneficial interest in the house in dispute, but the legal title as well. Not only did he promise to buy a house for the third party but actually got her to select a house and to apply in writing for its purchase. The plaintiff saw to it that such documents as could be made instanter to evidence the sale, for example, the receipts of the payment of the purchase price, were, on his instructions, made in her name. He gave definite instructions for the legal title to be made in her name and the cases of Re Anstis; Chetwynd v. Morgan3 and Re Plumptre’s Marriage Settlement;

Underhill v. Plumptre4 show that as the plaintiff could enforce the contract to assign to his nominee against the company in equity, the assignment could be looked on as having in fact been executed that very day, that is, 11 January 1963.

Furthermore, the plaintiff delivered the keys of the house to the third party’s father, obviously as her agent, and enabled the third party to enter into possession and enjoyment of the house. In my opinion, a valid gift of the house was made by the plaintiff to the third party and I reject the argument that the gift was in any way incomplete. If that finding is right, it follows that the gift is irrevocable and the plaintiff cannot countermand his instructions to the company to effect indirectly the same purpose: see Boakye v.

Broni.5 Inasmuch as the defendant company has, to date, not executed an assignment in favour of the third party, they hold the legal estate in trust for her. Accordingly, I decide that it is the third party and not the plaintiff who is entitled to an assignment of the house in dispute.

The defendant company themselves counterclaim against either the plaintiff or the third party for specific performance of the agreement to purchase the house. In view of my finding, the plaintiff is out of reckoning as far as that remedy is concerned. The only real question is: Are the company entitled to this order against the third party? If they should succeed in obtaining this equitable remedy, they must show that the third party has evinced an intention not to go ahead with the purchase, or that she did any act which entitles them to this relief against her. In my opinion, all the equities of this case are in favour of the third party and are against the company.

The third party became entitled as early as 11 January 1963 to have an assignment of the legal estate executed by the company in her favour. She has, on the undisputed evidence, called on the company on numerous occasions to have this done. The company failed to do this from January to mid-April and gave nothing like a satisfactory

[p.228] of [1965] GLR 216 reason for this unreasonable delay. Had they in fact executed such an assignment at least by mid-March, this litigation would in all probability not have seen the light of the day. Had the third party counterclaimed against them for this relief, I should not have scrupled to accede. But in my judgment, the company who are in default, are not entitled to this order against the blameless third party. Exercising, as

I hope I am, the equitable jurisdiction of this court, I conceive it my duty to refuse the company’s prayer for an order of specific performance and it is accordingly refused.

It would not, I think, be right to conclude this case without expressing to counsel my great indebtedness to them for the considerable assistance they gave me in this interesting case and the fact that I have not found it necessary to refer to the many legal authorities cited to me, is no indication of my want of appreciation of the industry which they all put into the preparation of this case. In view of what I have said in the foregoing paragraphs of this long judgment, my conclusion must be that the plaintiff fails in this action and there must be judgment for the defendant company against him with costs. As no liability has been established by the plaintiff against the defendant company, no question of contribution or indemnity as between them and the third party arises. Accordingly, there must be judgment for the third party against the defendant company with costs.

I have given some consideration to the question of costs in this matter and have thought it right to exercise the discretionary power conferred on this court by rule 10 of Order 16A of the Supreme [High]

Court (Civil Procedure) Rules, 1954,6 to order that the plaintiff shall bear the costs not only of the defendant company but also of the third party. Both the defendant company and the third party must have put in a comparable amount of work both in the preparation of this case and in actually fighting it and in ordinary circumstances, I would have awarded them an equal amount of costs. But in the view that I take that the defendant company unreasonably delayed the preparation and execution of the deed of assignment and thus unwittingly aided the plaintiff in launching this litigation, I think they ought to have a little less than the third party in costs.

Accordingly, I order that the defendant company shall recover from the plaintiff inclusive costs of 150 guineas and the third party shall recover from the same person inclusive costs of 175 guineas.

DECISION

Action and counterclaim dismissed.

E. A.-A.