DARKWA v. KWABENA [1965] GLR 299

DIVISION: SUPREME COURT

DATE: 26 APRIL 1965

BEFORE: MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.

CASES REFERRED TO

(1) Steinberg v. Scala (Leeds) Ltd. [1923] 2 Ch. 452; [1923] All E.R. Rep. 239; 129 L.T. 624. (2) Dominion Coal Co., Ltd. V. Dominion Iron and Steel Co., Ltd. [1909] A.C. 293, P.C.

NATURE OF PROCEEDINGS

APPEAL from a judgment of Bruce-Lyle J., as he then was, delivered at the High Court, Sunyani, on 14 December 1962. Bruce-Lyle J. entered judgment for the plaintiff, granting him an order for specific

[p.300] of [1965] GLR 299 performance and also £G800 damages. The facts are fully stated in the judgment of Siriboe J.S.C.

COUNSEL

Osafo for the appellant. Owusu Yaw for the respondent.

JUDGMENT OF SIRIBOE J.S.C.

This is an appeal from the judgment of the High Court, Sunyani, given in favour of the plaintiff-respondent (hereafter referred to as the plaintiff) on 14 December 1962 by Bruce-Lyle J. (as he then was). By his amended writ and statement of claim, the plaintiff’s claim against the defendant “is for specific performance to convey to the plaintiff two cocoa farms known as (a) Monkumu on Mansing stool land and (b) Abrokyire on Bechem stool land, boundaries whereof are set out in the particulars of claim.” In the alternative, the plaintiff claimed “ the return of his money totalling £G650 (six hundred and fifty pounds) and also £G2,000 for breach of contract.” The statement of claim alleged that some time in 1953, the defendant approached the plaintiff and offered to sell to him the two cocoa farms referred to above, for the sum of £G450, which offer was accepted. The plaintiff paid the purchase price to the defendant in the presence of certain witnesses mentioned in the statement of claim. This done, the defendant promised to despatch to the plaintiff the title deeds together with a deed of conveyance on the defendant’s return to his home town Bechem, but these were not forthcoming when the plaintiff had to leave Ghana for a visit abroad. On his return to Ghana, the plaintiff called for the necessary papers and also for account when he was told by the defendant that one Asiamah had laid claim to the Monkumu farm which had resulted in a case before the court. He therefore requested the plaintiff to assist him (the defendant) financially in fighting out the case. The plaintiff agreed to this, and accordingly gave the defendant various sums of money amounting to £G200. The result of the case was in favour of the defendant, who later instructed one Anto to prepare for the plaintiff the deed of conveyance. On production of the deed, the plaintiff discovered that it did not contain the terms agreed upon, in that, instead of the two farms sold, only one had been conveyed; also instead of the purchase price of £G450, an amount of £G800 had been stipulated in the deed. In the circumstances the plaintiff declined acceptance of the deed of conveyance and asked for a proper one but the defendant refused to give him one, so hence this action was instituted. The defence filed which was amended at certain stages of the trial, and the affidavit sworn to by the defendant in opposition to the

[p.301] of [1965] GLR 299 plaintiff ‘s motion asking for interim injunction, and for the appointment of receiver and manager, were to the following effect: That the farms in question were bought by the defendant at a public auction, but were later resold to the owners (one of whom being the second defence witness, Kwaku Sarfo), after they had sought the intercession of a relative of the defendant for the resale of the farms to them; that those people later mortgaged the two farms together with one other farm to a man called Tweneboa for a loan of; £G800, a brother of the plaintiff (called Poku) being a surety in that mortgage transaction; that one Asiamah later laid claim to the Monkumu farm on the ground that it had been mortgaged to him by one of the owners, and accordingly threatened to sell it, but this was successfully resisted in proceedings before the court by the defendant at the instance of the owners. It was some time after this, that according to the defendant, the plaintiff and his brother Poku purporting to be acting on behalf of the owners of the farms, approached the defendant and asked him to convey the two farms to the plaintiff and Poku as a gift alleged to have been made to them by the owners; but the defendant refused to do so without the consent of the owners. The defendant emphatically denied any sale as alleged by the plaintiff, and ended up by saying that since the resale of the farms as aforesaid, the defendant had ceased to have any interest in them; and that one of the owners by name Kwaku Sarfo (the second defence of witness) is in possession thereof. This was confirmed by Kwaku Sarfo both in his affidavit in support of a motion for joinder as co-defendant which was later withdrawn, and also in his evidence which he gave at the trial on behalf of the defendant. Notwithstanding all this, the learned judge after hearing evidence, entered judgment for the plaintiff, granting him an order for specific performance, and also damages of £G800 together with 80 guineas costs. Dissatisfied with this judgment, the defendant appealed to this court on five grounds, three of which (a), (b) and (c) were abandoned by counsel for appellant, leaving only two being as follows: “(d) The learned trial judge misdirected himself in holding that there was evidence on which he could award damages in addition to an order for specific performance. (e) The judgment is unreasonable and cannot be supported having regard to the weight of evidence on record.” Arguing the two grounds together, Mr. Osafo for the appellant, referred to the following passage in the judgment appealed from: “This court can award damages in addition to an order for specific performance and in this case I consider the circumstances such that as the defendant has deliberately and cunningly

[p.302] of [1965] GLR 299 refused giving title to the plaintiff and I find that the plaintiff is entitled also to damages;” and said, while conceding that the trial court has power to grant the two reliefs (specific performance and damages) in certain cases, he contended, however, that in the instant case, the learned judge was not justified in doing so, because the reliefs sought were in the alternative. On the question of damages, counsel referred to the plaintiff’s evidence that he was once given an amount of £G40 by the defendant as proceeds from the Monkumu farm before Asiamah laid claim to it. Counsel also referred to the evidence of the plaintiff’s fourth witness that he looked after the Monkumu farm for the plaintiff for a period of two years, and rendered accounts to one Akua Addae. In the light of this, counsel submitted that there was no basis for arriving at the damages of £G800 which the learned judge awarded in favour of the plaintiff. Upon consideration of the plaintiff’s evidence and the defence including that of Kwaku Sarfo (the second defence witness) that the latter is in possession of the farms, Mr. Owusu Yaw for the respondent stated that he was not supporting the order for specific performance granted by the trial judge. He conceded that having regard to the circumstances of the case, the proper action which should have been brought was one for damages for trespass. As to the damages of £G800 awarded by the learned judge, counsel was of the opinion that the learned judge might have taken into consideration the purchase price of £G450 and also the plaintiff ‘s evidence that he spent other amounts, for example, the £G200 he said he paid in respect of the litigation between Asiamah and the defendant. That counsel could not have taken any other course than what he did, is better appreciated by reference to the following passages in the evidence given by the plaintiff. After stating that some time in 1953 the defendant approached him and offered to sell to him the two farms in question, the plaintiff continued: “I agreed to buy the farms. Three days later I went with defendant to see the two farms. I went with Kwasi Anim and Akua Addae . . . After seeing the farms I agreed to buy them so I asked the defendant to come to Kumasi to see me. The defendant came with Kwasi Anim . . . I then told those I had called that the defendant had offered to sell two farms which he bought by fi. fa. for £G450. The defendant told me the price of the two farms before I went and inspected them … I then paid £G450 to the defendant and he accepted it. The defendant did not give me a receipt. The defendant promised to bring the relevant

[p.303] of [1965] GLR 299 papers but the defendant and myself paid £G4 and a bottle of schnapps. I paid £G2 and the defendant paid £G2. The money and schnapps were drink for stamping fee.” The rest of his evidence was that he travelled to Kadjebi for about a year to receive treatment, and that on his return the defendant gave him an amount of £G40 as proceeds from the Monkumu farm before the litigation about that farm began. After the completion of the case the plaintiff continued: “I was put in possession of the farm by the defendant and got the proceeds … until I went to Nigeria about two and a half years ago. The Abrokyire farm was also in my possession before I went to Nigeria. When I was in Nigeria, Akua Addae looked after the Abrokyire farm and Kwame Ana (the plaintiff ‘s fourth witness) looked after the Monkumu farm for me. When I returned from Nigeria these people were not in possession. My caretakers told me something.” According to the plaintiff, he contacted the defendant and later the minister of his (plaintiff ‘s) church, following what the caretakers told him, and that it was then that the defendant denied having sold any farm to him hence he instituted this action. In the light of such evidence, assuming the facts alleged by the plaintiff had been admitted at all by the defendant, which they were not, I do not think that this is a proper case in which specific performance could or should be ordered. It is significant to note that in the statement of claim filed, it was nowhere alleged that the plaintiff was ever in possession of the farms, or that he at any time derived, any proceeds therefrom, as his evidence at the trial shows. That perhaps, in fairness to his counsel, accounts for the nature of reliefs claimed in this case. A person who claims to have bought and paid for certain farms, possession of which he says he was given by the vendor after the sale had been concluded, and proceeds of which he has been enjoying for some time (in this case some years, as the plaintiff’s evidence shows), no doubt does so in the exercise of his rights as owner of the farms. Therefore, if his possession is subsequently interfered with, be it the act of his vendor or that of a third person, as appears to be the case under consideration in this appeal, any action brought against such person, should, in my opinion, be for damages for trespass and injunction to prevent further acts of trespass or interference; but certainly not for specific performance. I am also of the opinion that in such a case, a claim for the return of the purchase price as contained in the alternative relief sought by the plaintiff will not lie, because, on his own showing, there has not been a total

[p.304] of [1965] GLR 299 failure of consideration by reason of the fact that he has been enjoying benefit from the farms for some time. Thus in Steinberg v. Scala (Leeds) Ltd.1 it was stated that: “Where a party sold a patent-right and enjoyed a benefit therefrom, but it afterwards appeared that the patent was invalid, it was held that his action could not be maintained by the vendee to recover back the purchase-money.” The turn the argument of this appeal took, as indicated earlier on in this judgment, makes it unnecessary for me to go further than I have done, except to add the following: that the claims of the plaintiff being in the alternative, it is a legitimate criticism by counsel for the appellant that the learned judge erred in granting the plaintiff the two reliefs (specific performance and damages) at one and the same time. In Dominion Coal Co., Ltd. v. Dominion Iron & Steel Co., Ltd.2 where the claim was for specific performance of a contract or in the alternative damages for its breach, it was held that the two reliefs could not be granted at one and the same time. Furthermore, the submission by counsel for the appellant that, upon consideration of the plaintiff’s case, there was no basis for the £G800 damages awarded by the learned judge in favour of the plaintiff is, in my opinion, well founded. For the foregoing reasons, I will allow the appeal and set aside the judgment appealed from, together with the orders made including that as to costs; any costs paid by the appellant should be refunded. For that judgment, I will substitute the following judgment: The plaintiff’s claims are dismissed as misconceived, and judgment is entered for the defendant with costs. The appellant will have his costs in this court fixed at £G62 5s. and his costs in the lower court assessed at 80 guineas (eighty guineas).

JUDGMENT OF MILLS-ODOI J.S.C.

I agree.

JUDGMENT OF OLLENNU J.S.C.

I agree.

DECISION

Appeal allowed.

S. K. D.B