IN THE HIGH COURT, ACCRA

5/28/1976

EDUSEI J.

DJAN v. OWOO AND ANOTHER

(Page 401)

Contract—Breach of Contract—Specific performance—Sale of house—Oral contract—

Receipt for part payment omitting purchase price—Receipt containing names of parties to
sale and identifying property—Purchaser seeking to enforce contract—Whether purchase
price material term in contract of sale—Whether contract enforceable at law—Statute of
Frauds, 1677 (29 Cha. 2, c. 3), s. 4—Conveyancing Decree, 1973, (N.R.C.D. 175) s. 2 (a).

Contract—Sale of house—Registration of receipts—Receipt acknowledging payment of

deposit relied on as evidence of part-payment—Whether receipt “writing” affecting land—
Effect of non-registration—land Registry Act, 1962 (Act 122), s. 24 (1).

Contract—Breach of contract—Specific performance—Sale of house—Oral contract—

Application of equitable doctrine of part-performance—Agreement for sale of house—
Essential facts known—Deposit paid by purchaser and receipt issued—Subsequent payment
of balance of purchase price by purchaser—Vendor refusing to complete sale—Whether court
can decree specific performance of sale of house to purchaser—N.R.C.D. 175, s. 3.

On 10 January 1975 the first defendant orally agreed to sell his house situate at No. 2 West
Loop, Tosano, Accra, for ¢25,000.00 to the plaintiff. The plaintiff paid, inter alia, a deposit to
¢2,500.00 and obtained two receipts signed by the first defendant in which the names of the
parties appeared, and the house to be sold was described. The plaintiff subsequently asked his
bankers to issue two cheques, one to the first defendant in full payment of the balance of the
purchase price, and the second cheque to the second defendants to redeem the property which
had been mortgaged to them by the first defendant. The first defendant refused to complete
the sale and later returned the cheques to the plaintiff's bankers. The plaintiff thereupon
instituted this action against the first defendant for specific performance of the agreement to
purchase the house .

Held:

(1) a contract in writing for the transfer of an interest in land would not be complete in terms
of section 2 (a) of the Conveyancing Decree, 1973 (N.R.C.D. 175), unless the following
particulars were given:

(i) The names of the parties;

(ii) The property to be transferred;
(iii) The purchase price of the property; and
(iv) The defendant must have signed the written contract.

Although in the present case there was written evidence of the existance of three of these
matters, the contract was incomplete and unenforceable because of the omission of the
purchase price which was a material term in every contract of sale. Short v. Morris (1958) 3
W.A.L.R. 339 and Asare v. Antwi [1975] 1 G.L.R. 16, C.A. applied.

(2) Since the two receipts in question were instruments under the land Registry Act, 1962 (Act
122), and they had not been registered as required

(Page 402)

by section 24 of that same Act, the plaintiff could not claim any rights under them.

(3) N.R.C.D. 175, s. 3 (2), however provided that sections 1 and 2 were subject to the rules of
equity including the rules relating to part-performance. When a plaintiff had wholly or partly
executed his part of a parol agreement on the understanding that the defendant would do the
same, the court would order specific performance of the contract on the ground that it would
be fraud on the defendant's part not to carry out his side of the bargain. In the present case,
it was clear from the statement of claim that the house was described with particularity and
the plaintiff performed his side of the contract by making payment of the purchase price,
which was known, and it would therefore be fraudulent and unconscionable on the first
defendant's part to refuse to carry out his side of the contract. There had been sufficient part-
performance by the plaintiff of the contract and specific performance would be granted.
Douglas v. Baynes [1908] A.C. 477 at p. 485, P.C. distinguished. Maddison v. Alderson (1883)
8 App. Cas. 467 at p. 479, H.L. cited.

Cases referred to:

(1) Short v. Morris (1958) 3 W.A.L.R. 339.

(2) Asare v. Antwi [1975] 1 G.L.R. 16, C.A.
(3) Douglas v. Baynes [1908] A.C. 477; 78 L.J.P.C. 13; 99 L.T. 599; 24 T.L.R. 896, P.C.
(4) Maddison v. Alderson (1883) 8 App. Cas. 467; 47 J.P. 821; 52 L.J.Q.B. 737; 49 L.T.
303; 31 W.R. 820, H.L.
(5) Ahumah v. Akorli (No. 2) 1975] 1 G.L.R. 473.

ACTION by the plaintiff for specific performance of an oral agreement evidenced by a written
memorandum whereby the first defendant agreed to sell his house to the plaintiff. The facts
are fully set out in the judgment.

Ohene Ampofo for the plaintiff.

C. A. Lokko for the first defendant.
Col. F. G. Bernasko for Swaniker for the second defendants.

Edusei J. The plaintiff in this case is seeking an order for specific performance against the
first defendant as a result of an agreement made on 10 January 1975 for the sale by the first
defendant to the plaintiff of a house known as house No. 2, West Loop, Tesano, Accra. There
are other reliefs which are not relevant for the purposes of the present application filed by the
plaintiff on 25 February 1976, under Order 25, rr. 2—4 of the High Court (Civil Procedure)
Rules, 1954 (L.N. 140A).

It is the view of the plaintiff that the determination of the two matters raised in the application
will dispose of the case in his favour. The two matters raised are, namely: (a) whether the two
receipts exhibited are sufficient memoranda to decree specific performance of the land in
dispute, and (b) whether specific performance can be decreed on the ground of part-
performance.

(Page 403)

The two receipts are dated 10 January 1975 and 27 January 1975 for the amounts of ¢2,000.00
and ¢500.00 respectively. These sums were part payments of the purchase price the plaintiff
made to the defendant in respect of the house in question which the defendant agreed to sell
to the plaintiff.

Counsel for the plaintiff in his argument relied on section 2 of the Conveyancing Decree, 1973
(N.R.C.D. 175), which states that:

"2. No contract for the transfer of an interest in land shall be enforceable unless —

(a) it is evidenced in a writing signed by the person against whom the contract is to be proved
or by a person who was authorised to sign on behalf of such person; or

(b) it is relieved against the need for such a writing by the provisions of section 3."

In fact counsel's contention is based on section 2 (a) and it is that since the receipts were
signed by the defendant and the description of the property agreed to be sold has been stated
in the receipts together with admission by the defendant in his statement of defence as regards
the purchase price of ¢25,000.00, there was compliance with section 2 (a) of the Conveyancing
Decree, 1973 (N.R.C.D. 175). In his opinion the plaintiff's case has been made out for the
court to decree specific performance of the contract against the first defendant.

There cannot, in my view, be a completed contract in terms of section 2 (a) of N.R.C.D. 175
unless the contract in writing gives (i) the names of the parties, (ii) the property to be
transferred, (iii) the purchase price of the property, and lastly (iv) the defendant must have
signed, the written contract. It is important that there must be written evidence of at least
these matters. There is no dispute that the names of the plaintiff and the defendant appear in
the receipts and the house to be sold has been described as No. 2, West Loop, Tesano, Accra.
It is also correct that the person against whom the contract is to be enforced, i.e. the defendant
herein, has signed the contract. But there is no mention of the purchase price in the written
contract. The receipts only state the part payment made by the plaintiff and there is nothing
in either of the two receipts to show for how much the house was to be sold. It is true that
the purchase price of ¢25,000. 00 has been stated in the statement of claim and this is admitted
by the defendant in his statement of defence but this cannot, in my view be incorporated in
the written contract. In short, the purchase price is not stated in the written contract.
The purpose or rationale underlying section 2 (a) of the Conveyancing Decree, 1917 (N.R.C.D.
175), is not materially different from section 4 of the Statute Frauds, 1677 (29 Cha. 2, c. 3),
which stipulates that:

“no action may be brought upon any contract for the sale or other disposition of land or any
interest in land, unless the agreement upon which such action is brought, or some
memorandum or note thereof, is in writing and signed by the party to be charged or by some
other person thereunto by him lawfully authorised.”

(Page 404)

Indeed, the above provisions 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.

Admittedly the price is a material term in every contract of sale, and unless the price is
ascertained by the contract the contract is incomplete and cannot be enforced. Thus in Short
v. Morris (1958) 3 W.A.L.R. 339, a case decided on section 4 of the Statute of Frauds, 1677
(29 Cha. 2, c. 3), specific performance was not decreed of an agreement which was complete
except the price. There was no agreement as to the price in the written memorandum.

In the instant case no purchase price at all has been stated in the written contract, i.e. the two
receipts relied on by the plaintiff. The case of Asare v. Antwi [1975] 1 G.L.R. 16, C.A. also
failed when specific performance was sought by the plaintiff, on the ground that the price was
not stated in the receipt save the amount of part payment. Again in that case there was no
certainty about the land to be sold. It does seem to me that the requirements of section 4 of
the Statute of Frauds, 1677 (29 Cha. 2, c. 3), are almost the same as section 2 (a) of the
Conveyancing Decree, 1973 (N.R.C.D. 175), and since in the instant case, all the requirements
are present in the two receipts save the purchase price of ¢25,000, 00 it cannot be said that
there is a contract in writing as required by section 2 (a) of N.R.C.D. 175. I cannot therefore
decree specific performance on this ground.

The defendant's counsel however raised another point that the receipts on which the plaintiff
relies for specific performance have. Not been registered in terms of section 24 (1) of the Land
Registry Act, 1962 (Act 122). It does appear, ex facie, that the two receipts have not been
registered under Act 122. Section 24 (1) of Act 122 stipulates:

"24. (1) Subject to subsection (2), of this section, an instrument other than,

(a) a will, or
(b) a judge's certificate,

first executed after the commencement of this Act shall be of no effect until it is registered."

The definition of "instrument" under section 36 of Act 122 is "any writing affecting land
situate in Ghana, including a judge's certificate and a memorandum of deposit of title deeds."
There can be no dispute that the two receipts are instruments under the Land Registry Act,
1962 (Act 122), and they have not been registered as required by section 24 (1) of Act 122. It
follows therefore that the plaintiff cannot claim any rights under them.

I now turn my attention to consider whether there is sufficient act of part-performance by the
plaintiff to warrant the decree of specific performance. It is necessary to preface this part of
my ruling by referring to section 3 (2) of N.R.C.D. 175 which states: "Sections 1 and 2 shall
be subject to the rules of equity including the rules relating to unconscionability, fraud, duress
and part-performance."

(Page 405)

The doctrine of part-performance is the child of equity and it has now, like most rules of
equity, assumed the force of common law. Even though there is no memorandum in writing
to satisfy section 2 (a) of the Conveyancing Decree, 1973, yet if there is an oral agreement
followed by a sufficient act of part-performance the result in equity is in effect to exclude the
operation of the statute. But before this doctrine can be invoked there must be evidence of
part-performance by the party who wishes to sue.

F his house situate on plot No.

In this case the first defendant agreed on 10 January 1975 to sell
2, West Loop, Tesano, Accra, to the plaintiff for the price of ¢25,000. 00; This is stated in
paragraph (1) of the statement of claim and it is admitted in paragraph (1) of the statement of
defence. The important matter here is that the first defendant asked the plaintiff to make a
deposit and he did.

On the strength of this agreement the plaintiff paid a deposit of ¢2,500.00 in January 1975 to
the defendant, and receipts were issued by the first defendant. A part of paragraph (2) of the
statement of defence which, I think, is material states: "The first defendant says that he asked
the plaintiff to make an advance payment without stipulating any definite amount and that the
plaintiff on his own volition paid ¢2,500.00 to the first defendant as deposit.” It cannot be
controverted that the plaintiff in making the deposit of ¢2,500. 00 was relying on the faith of
the contract entered into between himself and the first defendant and the payment of the
deposit was at the request of the first defendant.

The defendant in paragraph (6) of the statement of defence also states:

"the first defendant says he informed the plaintiff that the house was mortgaged to the second
defendants. The first defendant thereupon obtained from the second defendants for the
plaintiff's inspection a signed statement showing the balance still owing by him to the second
defendants."

It does seem to me that the plaintiff on becoming aware of the indebtedness of the first
defendant to the second defendants, which was the outcome of the property having been
mortgaged to the second defendants, asked his bankers to issue a cheque for ¢l8,139.73 to the
second defendants and another cheque for ¢4,360.27 to the first defendant. These payments
concluded the payment of the purchase price of ¢25,000. 00. The payment of the amount of
¢18,139.73 to the second defendants by the plaintiff was to redeem the mortgaged property—
the subject-matter in dispute—so as to enable the first defendant to execute a conveyance of
it to him. The first defendant admits in paragraph (7) of his statement of defence the payment
of the two sums of money to the first and second defendants to conclude the purchase price
of the house.

It is reasonable to say that it was the intention of the parties (the plaintiff and the first
defendant) that the plaintiff should pay to the second defendants the outstanding balance on
the mortgaged house to free it from encumbrance. If this was not the intention of the parties
what was the purpose of the first defendant sending to the plaintiff "a signed statement
showing the balance still owing by him to the second defendants"?

(Page 406)

It is beyond dispute that the plaintiff made full payment for the house relying on the good
faith of the first defendant to convey the property to him. The fact that the two cheques were
subsequently returned to the plaintiff's bankers on the instruction of the first defendant does
not in my view detract from the fact that the plaintiff wholly performed his side of the contract.
Indeed, if the plaintiff has wholly or partly executed his part of a parol agreement on the
understanding that the first defendant would do the same, the court may order specific
performance of the contract on the ground that it would be a fraud on the first defendant's
part not to carry out his side of the bargain.

The only occasion when the court will refuse the relief of specific performance is where the
agreement is uncertain: see Douglas v. Baynes [1908] A.C. 477 at p. 485, P.C. But this is clearly
not the case here. In the case before me the house is known, the purchase price is known and
in fact the plaintiff paid the price to the first defendant. It is true that payment of a part of
the purchase money is not sufficient act of part-performance of a contract for the sale of land
since "the payment of money is an equivocal act, not (in itself), until the connection is
established by parol testimony, indicative of a contract concerning land." See the observation
of Earl of Selborne L.C. in Maddison v. Alderson (1883) 8 App.Cas. 467 at p. 479, H.L. But
in this case, however, the payment of the purchase price related to house No. 2, West Loop,
Tesano, Accra, if reference is made to admitted parts of the pleadings to which I have already
referred, and evidence will therefore be unnecessary.

Equity would decree specific performance if the payment of the price was in pursuance of a
contract as that alleged and it was with the concurrence of the defendant. The attitude of
equity is that it would be fraudulent on the part of a defendant to take advantage of the absence
of a written memorandum if he agreed to sell his house to the plaintiff who relied on the faith
of this promise and made payment to the defendant. The defendant cannot later resile from
the contract by returning the money. The unilateral return of the purchase price by the first
defendant to the plaintiff's bankers does not alter the legal relations between the parties and
he is at liberty to collect it back. Be that as it may in Ahumah v. Akorli (No. 2) [1975] 1 G.L.R.
473 at p. 479, Amissah J.A. sitting as an additional judge of the High Court, granted specific
performance of a contract relating to land and said, "And in any case as the statement of claim
stated the contract with particularity and the terms averred were not denied … the court ought
not to hold itself debarred from granting the relief sought."

From the statement of claim the house is described with particularity and the plaintiff
performed his side of the contract by making payment of the purchase price and it would be
fraudulent and unconscionable on the defendant’s part to refuse to carry out his side of the
contract. There has been sufficient performance by the plaintiff of the contract.

In my view, therefore, specific performance of the agreement made by the plaintiff and the
first defendant should be granted in respect of house No. 2, West Loop, Tesano, Accra, by
means of a conveyance by the first

(Page 407)

defendant to the plaintiff. Costs of ¢200. 00 to the plaintiff against the first defendant. The
second defendants were not interested in the result of the arguments between the plaintiff and
the first defendant and therefore did not take part.

Judgment for the plaintiff.

S. O.