KOOMSON VRS. AMOATEY AND ANOTHER (GJ/0037/2024) [2024] GHAHC 410 (31 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION DIVISION, COURT 12) ACCRA, HELD ON THE 31ST DAY OF OCTOBER 2024 BEFORE HIS LORDSHIP JUSTICE AYITEY ARMAH- TETTEH SUIT NO: GJ/0037/2024 EMMANUEL KOOMSON - PLAINTIFF VRS 1. TSUIANAA AMOATEY - DEFENDANTS 2. FRANCIS NYAKOTEY --------------------------------------------------------------------------------------------------------------------- -------------------------------------------- PARTIES: - PLAINTIFF ABSENT REPRESENTED BY JESSE IDUN 1ST DEFENDANT ABESENT 2ND DEFENDNAT PRESENT COUNSEL: - NUMO SAKA FOR PLAINTIFF ALEXIS NII ARMAH FOR THE ANDREW VORTIA FOR THE DEFENDANTS ----------------------------------------------------------------------------------------------------------- JUDGMENT ---------------------------------------------------------------------------------------------------------- 1 | P age INTRODUCTION [1] The parties entered into an agreement (1st Property Purchase Agreement) for the Sale and Purchase of a house located at Ogbojo, in the Adenta Municipal Assembly (the property). The Agreement was dated 6th June, 2022. By that agreement, Plaintiff will purchase the property from the Defendants at USD175,000. The property belonged to the 1st Defendant. The agreement included terms upon which the purchase price would be paid. Pursuant to the Agreement, the Plaintiff made an initial payment of US$25,000.00, and the Defendants executed a Deed Assignment dated 15th June, 2022 in his favour. The parties subsequently executed two more agreements in respect of the same transaction. The subsequent agreements were a Payment Plan Agreement dated 24th October, 2022 and a Property Purchase Agreement (2nd Property Purchase Agreement) dated 25th October, 2022. The Payment Plan Agreement varied the terms and conditions of the original Property Purchase Agreement dated 6th June, 2022. The plaintiff made further payments towards the purchase. Defendants have not given vacant possession of the property to the Plaintiff. The Defendants by a letter dated 28th August, 2023 written by their lawyer, gave intention to resile from the Sale and Purchase Agreement of the property on the allegation that the Plaintiff has failed to fulfil his obligation under the agreements. The 2nd Defendant during the transaction acted as the Lawful Attorney for the 1st Defendant who owned the property. PLAINTIFF’S PLEADINGS [2] The Plaintiff in his pleadings avers that he needed a property to buy and was led to the Defendants who were selling the property. According to Plaintiff, he engaged the Defendants through the 2nd Defendant who had been introduced to him as the 1st 2 | P age Defendant’s Lawful Attorney with the mandate to act for and on behalf of 1st Defendant particularly in respect of the sale of the property by 1st Defendant to Plaintiff. [3] According to Plaintiff, after negotiations, the parties entered into the 1st Property Purchase Agreement on 6th June, 2022. The agreement was executed between Plaintiff and Defendants with 2nd Defendant signing for and on behalf of the 1st Defendant as the attorney for the 1st Defendant. Per the agreement, the purchase price of the property was put at US$175,000 and the Plaintiff was to make an initial payment of US$25,000 after which Defendants would be required to execute a Deed of Assignment of the property in favour of the Plaintiff. [4] It is the further case of the Plaintiff that pursuant to the agreement he made the initial deposit of US$25,000 after which the Defendants executed the deed of Assignment in his favour on 15th June, 2022. [5] According to Plaintiff, after the execution of the deed of Assignment, a Payment Plan Agreement was also executed between the parties for Plaintiff to make periodic payments towards liquidating the entire purchase price for the property with Plaintiff required to make payments between 24th October, 2022 and 3rd November, 2023 to cover the entire purchase price of US$175,000.00 [6] According to the Plaintiff, it was further agreed that Defendants shall give peaceful and vacant possession of the property to him once he pays 50% of the agreed purchase price and as of 24th February, 2023, he had made payments in total of US$88,000.00 to the Defendants which was more than the 50% but in breach of the terms of the agreement, the Defendants refused to deliver vacant possession of the property to him. [7] It is the case of the Plaintiff that on 15th August, 2023, he offered to make the final payment covering the entire purchase price of US$175,000.00 to Defendants which final 3 | P age payment was US$57,000.00 but the Defendants refused to accept the final payment and caused their lawyer to write to him purportedly resiling from the agreement. [8] The Plaintiff claims against the Defendants the following reliefs: 1. A declaration that Plaintiff is entitled to specific performance of the Property Purchase Agreement entered between him (Plaintiff) and Defendants, particularly 1st Defendant sometime on 6th June, 2022. 2. An order directed at Defendants, particularly 1st Defendant herein, to specifically perform their (Defendants) obligations under the Property Purchase Agreement by delivering to Plaintiff peacefully yet vacant possession of the property in dispute. 3. An order of perpetual injunction restraining Defendants either by themselves, their assigns, associates, privies, workmen and/or and/all persons who derive authority through them from selling off, transferring and/or creating an encumbrance in whatever form or nature over the property subject matter of plaintiff’s action against Defendants. 4. An order of perpetual injunction restraining Defendants either by themselves, their assigns, associates, privies, workmen and/or any/all persons who derive authority through them from interfering with Plaintiff’s peaceful enjoyment of possession of the property subject matter of Plaintiff’s action against Defendants. 5. General damages against Defendants for breach of the Property Purchase Agreement dated 6th June, 2022. 6. Cost on full indemnity basis. IN THE ALTERNATIVE i. An order directed at Defendants, especially 1st Defendant herein, to refund to Plaintiff the cumulative sum of one hundred and eighteen thousand 4 | P age United states dollars (US$118,000.00) being the cumulative sum received by Defendants from Plaintiff for the sale of the property in dispute to Plaintiff pursuant to the property purchase Agreement dated 6th June, 2022. ii. Interest on the said one hundred and eighteen thousand United states dollars (US$118,000.00) at the prevailing, commercial banks forex exchange rate from August, 2022 until date of final payment. iii. Cost on full indemnity basis. DEFENDANTS’ PLEADINGS [9] In their pleadings and in response to the claim of the Plaintiff, the Defendants admit entering into the transaction for the sale of the Property to the Plaintiff. They however deny the Claim of the Plaintiff. According to Defendants after the payment of the initial payment of US$25,000.00, Plaintiff failed to make further payments in furtherance of the performance of his obligations under the 6th June, 2022 agreement. [10] It is the case of the Defendants that the Deed of Assignment was prepared to enable Plaintiff to obtain a loan within 45 days to arrive at a minimum payment of US$125,000.00 out of the purchase price of US$175,000.00. According to Defendants Plaintiff paid only US$25,000.00 out of the US$175,000.00 and could not fulfil the minimum payment requirement of US$125,000.00 agreed between the parties. [11] It is the case of the Defendants that the minimum payment of US$125,000.00 was a condition precedent for the transfer of 1st Defendant’s interest in the property to Plaintiff. The Defendants contend that Plaintiff failed to fulfil a condition precedent for the transfer of all the interest in the property to the Plaintiff. 5 | P age [12] According to Defendants, having failed to pay the minimum payment of US$125,000.00 within 45 days upon the execution of the deed of assignment, Plaintiff started making payments ranging between Ghs2,000 and Ghs20,000.00 and on some occasions payments of US$5,000.00 were made. The Defendants contend that the Plaintiff failed to honour his obligation under the agreement and submits that the Plaintiff having failed to honour his obligations under the contract, the Defendants cannot hand over the property to the Plaintiff. [13] According to the Defendants they resiled from the agreement after the Plaintiff failed to honour his obligation under the Property Purchase Agreement. [14] Defendants alleged that the Plaintiff perpetrated fraud on them when he initially deceived the Defendants to transfer the title deed into his name in order to go for a loan of US$125,000.00 which he later back tracked to convince the 2nd Defendant to accept the payment plan. [15] The Defendants counter claimed as follows: 1. Damages for breach of contract. 2. General Damages for fraud. 3. Costs on a full indemnity basis. [16] By way of reply and defence to counter claim, the Plaintiff denied the claim of the Defendants. ISSUES FOR DETERMINATION [17] The Court settled on the following issues for determination after the close of pleadings. 6 | P age 1. Whether or not Defendants were mandated under the Property Purchase Agreement dated 6th June, 2022 to execute in Plaintiff’s favour the Deed of Assignment together with all necessary documents covering the disputed property including title and authorization documents in Defendants possession in order to facilitate the registration of Plaintiff’s interest in the disputed property at the Lands Commission upon receipt of the US$25,000.00. 2. Whether or not 1st Defendant’s interest in the disputed property was fully transferred to Plaintiff following the execution of the Deed of Assignment dated 15th June, 2022 by Defendants in favour of Plaintiff. 3. Whether or not the Defendants agreed to give Plaintiff peaceful vacant possession of the disputed property upon receipt of 50% of the agreed price for the disputed property. 4. Whether or not Defendants breached the Property Sale Agreement by neglecting, failing and/or refusing to deliver to Plaintiff the necessary transfer documents covering the subject property together with vacant yet peaceful possession of the disputed property. 5. Whether or not as of 24th February, 2023 Plaintiff had paid to Defendants the sum of US$88,000.00 representing more than 50% of the purchase price and therefore entitled to peaceful and vacant possession of the disputed property as at that date. 7 | P age 6. Whether or not as at 15th August, 2023 Plaintiff offered to pay to Defendants the remaining balance of US$57,000.00 for the disputed property but Defendants neglected, failed or refused to accept same. 7. Whether or not Plaintiff has fully and finally paid to Defendants the outstanding balance for the purchase of the disputed property from 1st Defendant and therefore entitled to vacant possession of the disputed property together with the registration of the title to the disputed property in Plaintiff’s name. 8. Whether or not the Defendants can resile from the Agreement. 9. Whether Plaintiff perpetrated fraud on the Defendants. [18] I will discuss issue 9 first. ISSUE 9: Whether Plaintiff perpetrated fraud on the Defendants. [19] The Defendants alleged that the Plaintiff perpetrated fraud on them. The law if that fraud vitiates everything (Fraus Omnia Vitiat in Latin ), and when a court of law in the course of its proceedings, has cause to believe that fraud was committed, it is duty bound to quash whatever has been done on the strength of that fraud, be it a judgment, contract or a transaction. In Frimpong v Nyarko [1998-99] SCGLR 734 at 743, Acquah JSC (as he then was) stated thus: Fraud is well-known, vitiates everything, and when a court of law in the course of its proceedings, has cause to believe that fraud was committed, it is duty bound to quash whatever has been done on the strength of that fraud. 8 | P age [20] Again, in Mass Projects Ltd (No. 2) v Standard Chartered Bank (No. 2) [2013-2014 1 SCGLR holding 4 of the headnotes, it was held as follows: Because fraud vitiates every conduct, and allegation of fraud, if proven and sustained, would wipe and sweep away everything in its trial as if the thing had never existed. [21] In this regard, I think it will be prudent to discuss the issue of fraud first, because if the Defendants who allege fraud are able to prove it, it will vitiate the whole transaction between the parties and there will be no need to proceed further in this delivery. [22] The law is that fraud must be pleaded and proved. Order 11 rule 8(1) of the High Court (Civil Procedure) Rule, 2004 (C.I. 47) provides as follows: 8.(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise. [23] It is pleaded at paragraphs 29 and 30 of the Statement of Defence as follows: 29. 2nd Defendant in response to the entire statement of claim says that the Plaintiff does not possess the financial clout to purchase the property at the agreed price of $175,000.00 within the specified period of time but rather resorted to payments by peanuts which with all intent and purposes defeated the reason for which the property was put up sale. 30. PARTICLULARS OF FRUAD 9 | P age i. Plaintiff sent documents via Whatsapp message to the 2nd Defendant purporting to be a loan of $125,000.00 upon which the 2nd Defendant prepared a deed of assignment to the Plaintiff which turns (sic) out to be false. ii. Plaintiff by that misrepresentation succeeded in convincing the 2nd Defendant to sign the agreement which he well knew to be false Plaintiff knowing that he has never contracted. [24] Since it is the Defendants who alleged that the Plaintiff perpetrated fraud on them, a claim the Plaintiff denies, it is the Defendants that have the burden of proof on that allegation and even though this is a civil matter, the proof is not the balance of the probabilities of the evidence but one of proof beyond reasonable doubt. This is provided for by sections 13(1), 14 and 15 of the Evidence Act 1975 (NRCD 323). [25] Section 13(1) of the Act provides as follows: In a civil or criminal action, the burden of persuasion as to the commission of a crime by a party of a crime which is directly in issue requires proof beyond reasonable doubt. Section 14 also provides as follows: Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting. Section 15 Unless it is shifted, (a) The party claiming that a person has committed a crime or wrongdoing has the burden of persuasion on that issue. 10 | P age [26] In Aryeh & Akakpo v. Ayaa Iddrisu [2010] SCGLR 891 at 903 Brobbey JSC held as follows: “It is provided by the Evidence Act, 1975 (NRCD 323), s.13(1) that: In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond reasonable doubt. This rule in section 13(1) of the Evidence Act 1975 emphasis that where in a civil case a crime is pleaded or alleged, the standard of proof changes from the civil one of balance of the probabilities to the criminal one of proof beyond reasonable doubt.” See also the case of Sasu Bamfo v. Sintim [2012] 1 SCGLR 136 at 148 [27] In the instant case, on the evidence, were Defendants able to discharge the evidential burden placed on them? I do not think so. The Defendants pleaded that Plaintiff sent documents via WhatsApp message to the 2nd Defendant purporting to be a loan of $125,000.00 upon which the 2nd Defendant prepared a deed of assignment to the Plaintiff which turned out to be false. And that by that misrepresentation succeeded in convincing the 2nd Defendant to sign the agreement which he well knew to be false Plaintiff knowing that he has never contracted. [28] The 2nd Defendant in his testimony, did not mention that the Plaintiff perpetrated fraud on. No evidence was led in proof of the allegation of fraud pleaded at paragraph 30 of the Statement of Defence and made against the Plaintiff. The law is that Pleadings are not evidence. [29] In GIHOC Refrigeration & Household v Jean Hanna Assi (2005-2006) SCGLR at 476 Dr Date-Bah JSC had this to say on averments made in pleadings but no evidence led on those averments at the hearing: 11 | P age What was pleaded is not necessarily proof of the truth of the matter pleaded. I am content to limit myself to the evidence on record in this case. See also Adjetey Adjei & Others v Nmai Boi & Others [2013-2014] 2 SCGLR 1474 where SOPHIA ADINJIRA opined as follows: It is trite that pleadings are not evidence. To hold otherwise negates the requirement of proof provided in the Evidence Act, 1975 NRCD 323 and the well- known case of Mojalagbe v Larbi [1959] GLR 190 and Zabrama v Segbedzi [1991] 2 GLR 221 CA [30] In the present case, the defendants did not lead any evidence in proof of their allegation of fraud made against the Plaintiff and the Defendants would be deemed not to have proven their allegation of fraud against the Plaintiff. [31] I will discuss issues I and 2 together as they are related. 1. Whether or not Defendants were mandated under the Property Purchase Agreement dated 6th June 2022 to execute in Plaintiff’s favour the Deed of Assignment together with all necessary documents covering the disputed property including title and authorization documents in Defendants possession in order to facilitate the registration of Plaintiff’s interest in the disputed property at the Lands Commission upon receipt of the US$25,000.00. 2. Whether or not 1st Defendant’s interest in the disputed property was fully transferred to Plaintiff following the execution of the Deed of Assignment dated 15th June, 2022 by Defendants in favour of Plaintiff. 12 | P age [32] The principle of party autonomy in contract is to the effect that parties have the freedom to enter into a contract and when they so enter into the contract, their freedom is restricted by the terms of the contract and they are bound by the terms of the contract unless the contract permits them to amend it or they mutually agree to amend it. [33] Lord Sumption in Rock Advertising Limited (Respondent) v MWB Business Exchange Centres Limited (Appellant) [2018] UKSC 24 on party autonomy stated as thus: Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows. Nearly all contracts bind the parties to some course of action, and to that extent restrict their autonomy. [34] It is also the law that the Court would not rewrite an agreement entered into by parties and would hold them accountable for what they bargained for. No extraneous matters would be allowed to defeat the clear intention of the parties and the Court should uphold and respect the parties’ commercial bargains. See the case of Allan Sugar (Products) Ltd v. Ghana Export Company Ltd (1982-83) GLRD 91. [35] In the present case, the parties out of their freedom entered the various agreements and would be bound to the terms and conditions of Sale and Purchase Agreement dated 6th June, 2022 up until the time it was amended by the Payment Plan Agreement dated 22nd October 2022 and the second Sale and Purchase Agreement dated 25th October 2022. [36] PRINCIPLES OF CONTRACTUAL INTERPRETATION Before returning to the analysis of the terms of the Sale and Purchase Agreement and the subsequent agreements, it is useful for me to outline the principles of interpretation that should be applied when undertaking such an analysis. 13 | P age [37] The well-known general principles of contractual construction are to be found in the recent case of Network Rail Infrastructure Ltd v ABC Electrification Ltd [2020] EWCA Civ 1645 ("Network Rail") where Carr L.J in applying the legal principles in construing a contract, at paras [18] and [19] stated as follows: "18. A simple distillation, so far as material for present purposes, can be set out uncontroversially as follows: i) When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions; ii) The reliance placed in some cases on commercial common sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the 14 | P age surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision; iii) When it comes to considering the centrally relevant words to be interpreted, the clearer the natural meaning, the more difficult it is to justify departing from it. The less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning; iv) Commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made; v) While commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Accordingly, when interpreting a contract a judge 15 | P age should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party; vi) When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties. 19. Thus, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. This is not a literalist exercise; the court must consider the contract as a whole and, depending on the nature, formality, and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. The interpretative exercise is a unitary one involving an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences investigated." [38] It is also the case that, the function of the court is to ascertain what the parties meant by the words they used. The court is to declare the meaning of words that is written in the instrument and not what was intended to have been written so as to give effect to the intention expressed. See Akim Akroso Stool & Others v Akim Manso Stool and Others [1989-90] GLR 100 CA. [39] Before I proceed further, I must comment that the quality of the drafting of the agreements is poor but nevertheless, a critical look at the whole of the agreement provide 16 | P age the intentions of the parties to the agreements. Having considered the evidence, I do not think there can be any doubt about what the terms of the agreements were even though the drafting was poorly done. The 6 June 2022 Sale and Purchase Agreement [40] TERMS 1. The total sales amount for the property located at Opposite Ogbojo Manet Estate East Legon 80 x 100 4-bedroom is $175,000. 2. The purchaser Emmanuel Koomson to make initial payment of $25,000 by June 6th 2022 to solidify interest in the property and begin the process to complete the sale. 3. The power of attorney Francis Nyakotey or the owner of the property Tsuinaa Amoatey will allow Emmanuel Koomson to register the property at (house address) under his name Emmanuel Koomson after the initial payment of $25,00 is made. 4. Once the title has been issued to Emmanuel Koomson, he may only use this title to obtain a bank loan to complete the sale for the property at opposite Ogbojo Manet Estate East Legon. 5. Once the title is issued Emmanuel Koomson will have 45 days to acquirer(sic) the loan from the bank and make a minimum payment of $125,000. 6. After the minimum payment of $125,000 has made, the purchaser has six months to complete payments(sic) of the full sale price of $175,000 [41] CONDITIONS: 17 | P age 1. Terms ≠ 2- Once initial payment has been made of $25,000 by purchaser, the power of attorney nor the owner of Opposite Ogbojo Manet Estate, East Legon will not market, sale(sic) or request a loan on this property. 2. Terms ≠ 3 – The power of attorney Francis Nyarkotey will hand over any necessary documents (indenture, deed, etc) and authorisation to complete the land title registration for Emmanuel Koomson. 3. Terms ≠ 4 – If the title is not able to be issued to Emmanuel Koomson due to issue or conflict found at Lands Commission then Emmanuel Koomson will be refunded the initial payment of $25,000 and any other payments made towards the property or issuing the title. 4. Terms ≠ 4 – If the title is used for to resale (sic) Francis Nyakortey has a valid claim for the remanding (sic) agreed sale amount for the Property of Opposite Ogbojo Manet Estate, East Legon. 5. Terms ≠ 5 – If payment is not made within 45 days , a 10% penalty will be required to pay for an additional extension of 15 days. 6. Terms ≠ 5 – If minimum payment of $125,000 is not received after 60 days with the title being registered to Emmanuel Koomson, then power of Attorney will be assigned to Francis Nyarkotey to sell or request a loan for (house location) and any payments made towards the property or title will be kept. [42] By this agreement, the Plaintiff was to make a payment of US$25,000 to solidify his interest in the property. And the clause is as follows: 1. The purchaser Emmanuel Koomson to make initial payment of $25,000 by June 6th 2022 to solidify interest in the property and begin the process to complete the sale. [43] My understanding of this clause is that the Plaintiff will make the initial payment of US$25,000 to show his commitment to the transaction and not as an initial deposit. I agree 18 | P age with the Defendants position on this point when they said the payment of $25,000.00 was for the deed of assignment to be prepared for Plaintiff to secure a loan within 45 days to enable him make the minimum payment requirement of $125,000.00 [44] The Defendants after the initial payment of US$25,000 will allow the Plaintiff to register the property in his name to enable Plaintiff use the title to acquire a loan to make the minimum payment of US$125,000 for the acquisition of the property. The clauses on these are as follows: 3. The power of attorney Francis Nyakotey or the owner of the property Tsuinaa Amoatey will allow Emmanuel Koomson to register the property at (house address) under his name Emmanuel Koomson after the initial payment of $25,00 is made. 4. Once the title has been issued to Emmanuel Koomson, he may only use this title to obtain a bank loan to complete the sale for the property at opposite Ogbojo Manet Estate East Legon. 5. Once the title is issued Emmanuel Koomson will have 45 days to acquirer(sic) the loan from the bank and make a minimum payment of $125,000. [45] My understanding of these clauses is that after the initial payment, the Defendants will permit the Plaintiff to register the property in his name to enable him, the Plaintiff, to use the title to obtain a loan to enable him make the minimum payment to complete the sale of the property. If the sale of the property is not complete there cannot be acquisition of the property by these terms. My position is supported by some words in clauses 3 and 4. In clause 3 the owner of the property or his attorney was to allow the plaintiff to register the title in his name. If indeed the intention of the parties was that, the execution of deed of assignment was for the 2nd Defendant to assign his interest in the property to the Plaintiff on the payment of the $25,000.00, Plaintiff would not have 19 | P age needed the permission of the Defendants before he could register his interest in the property. [46] Further when you look at clause 4, the Plaintiff was to use the registered interest to only acquire a loan to be able to make the minimum capital. Again, if the parties intended that the Defendants by the execution of the deed of assignment was for the Defendants to divest their interest in the property to the Plaintiff, the Defendants would not have had any right to restrict the use of the property by the Plaintiff, in this instance to use it only for loan to complete the sale. [47] Again, the Deed of Assignment is dated 15th June 2022 and the consideration clause provides as follows: IN PURSUANCE of the said Agreement and in consideration of the sum of ONE HUNDRED AND SEVENTY-FIVE THOUSAND DOLARS(US$175,000.00) paid by the Assignee on or before the execution of these presents ( the receipt of whereof the Assignor hereby acknowledges) the ASSIGNOR as BENEFICIAL OWNER hereby assigns unto the Assignee all that piece or parcel of land and hereditaments comprised in and demised by the said Lease TO HAVE AND TO HOLD the same unto the Assignee for the residue of the unexpired term granted by the said Lease subject to the payment of part of the rent thereby reserved and performance and observance of the covenants on the part of the Lesse therein contained.(bold italics mine) [48] This provision is to the effect that at the time of the execution of the Deed of Assignment, Exhibit C, the Assignee (Plaintiff) had paid the whole purchase price of US$175,000 to the Assignor (1st Defendant) which payment he acknowledged receipt. However, by the agreement, after the execution of Exhibit C, the Plaintiff was have it 20 | P age registered and registration and after registration use it to acquire a loan to enable him make the minimum payment of US$125,000. [49] Again, on the evidence at the time of execution of Exhibit C, the Plaintiff had paid only US$25,000.00 and not US$175,000 as found in the consideration clause. What is therefore found in consideration clause of Exhibit C was not the intention that the Plaintiff has paid the full purchase price of US$175,000. [50] In my view, reading the 6th June, 2022 Sale and Purchase Agreement and the Deed of Assignment as a whole, the intention of the parties was that the Defendants will execute the Deed of Assignment in respect of the property in favour of the Plaintiff for purpose of the Plaintiff to use it to acquire a loan to enable Plaintiff make the minimum payment requirement of $US125,000 towards the acquisition of the property. It was not the intention of the parties that upon the execution of the deed of assignment, Exhibit C, in pursuance of the 6th June, 2022 Sale and Purchase Agreement the Defendants fully transferred 1st Defendant’s interest in the property to the Plaintiff. As it turned out in the events that followed, the property was not registered in Plaintiff’s name and he could not obtain the loan for him to make the minimum payment requirement of US$125,000 to complete the sale of the property. [51] I find and hold that Exhibit C executed in pursuance of the terms and conditions of the 6th June, 2022 Sale and Purchase Agreement did not of itself transfer the interest of the 1st Defendant in the property to the Plaintiff as Plaintiff failed obtain the loan to enable him make the minimum payment requirement of US$125,000 to complete the sale of the property for him Plaintiff to acquire the interest 1st Defendant in the property [52] However, the parties entered into subsequent agreements which would be the subject of the discussions of issues 3,4 and 5. By the terms of those agreements the Plaintiff met the conditions for the execution of a deed of assignment and by that exhibit C would 21 | P age deemed to have transferred the interest of the 1st Defendant in the property to the Plaintiff. [53] Issues 3, 4 and 5 as they are related. 3.Whether or not the Defendants agreed to give Plaintiff peaceful vacant possession of the disputed property upon receipt of 50% of the agreed price for the disputed property. 4.Whether or not Defendants breached the Property Sale Agreement by neglecting, failing and/or refusing to deliver to Plaintiff the necessary transfer documents covering the subject property together with vacant yet peaceful possession of the disputed property. 5.Whether or not as of 24th February, 2023 Plaintiff had paid to Defendants the sum of US$88,000.00 representing more than 50% of the purchase price and therefore entitled to peaceful and vacant possession of the disputed property as at that date. [54] In spite of the non- performance of some of the terms of the 6th June, 2022 Agreement, the parties entered into subsequent agreements that varied the terms of the 6th June, 2022 Property Purchase Agreement. They entered into a Payment Plan Agreement dated 24th October, 2022 and a second Property Purchase Agreement dated 25th October, 2022. The Payment Plan and the second Property Purchase agreement sought to amend portions of the 6th June, 2022 Property Purchase Agreement. [55] The law is that an amendment of an agreement by a subsequent deed supersedes the previous deed in respect of terms in the new deed which are inconsistent with the new deed. A variation of an existing contract is itself a contract and the parties are bound by the varied agreement which agreement is the subsequent agreement. Cardozo J in a well- 22 | P age known passage from his judgment in the New York Court of Appeals in Beatty v Guggenheim Exploration Co (1919) 225 NY 380, 387-388: Page 3 stated thus: “Those who make a contract, may unmake it. The clause which forbids a change, may be changed like any other. The prohibition of oral waiver, may itself be waived. ‘Every such agreement is ended by the new one which contradicts it’ (Westchester F Ins Co v Earle 33 Mich 143, 153). What is excluded by one act, is restored by another. You may put it out by the door; it is back through the window. Whenever two men contract, no limitation self-imposed can destroy their power to contract again ...” [56] The parties in the present suit on 24th October, 2022 entered into a Payment Plan Agreement which sought and did amend or varied the 6th June, 2022 agreement. The Payment Plan Agreement executed on 24 October 2022 Total amount paid $28,000 1. Payment 1: $10,000 by Oct 24th 2022 (total $38,000) 2. Payment 2: $ 30,000 by December 1st 2022 ( total $68,000) 3. Payment 3: $10,000 by January 13th 2023 ( total $78,000) 4. Payment 4: $10,000 by February 24th 2023 ( total $88,000) 5. Payment 5: $7,000 by March 24th 2023 (total $95,000) 6. Payment 6: $30,000 by April 28th 2023 (total $125,000) 7. Payment 7: $5,000 by May 19th 2023 ( total $130,000) 8. Payment 8: $5,000 by June 16th 2023 ( total $135,000) 9. Payment 9: $5,000 by July 14th 2023 (total $140,000) 10. Payment 10: $5,000 by August 11th 2023 (total $145,000) 11. Payment 11: $10,000 by September 22th (sic) (total $155,000) 12. Payment 12: $20,000 by November 2nd 2023 ( total $175,000) 23 | P age Terms : 1. The total sale payment for the property located at Opposite Ogbojo Manet Estate, East Legon 80 x 100 4 bedroom home is $175,000. 2. The Power of Attorney Francis Nyakortey or the owner of the property Tsuinaa Amoatey will allow Emmanuel Koomson to register the property at (Opposite Ogbojo Manet Estate, East Legon) under the name “Emmanuel Koomson” after the initial payment of $38,000 is made. 3. If 50% of the total sales(sic) amount ($175,000) is not made by April 1st 2023, then Emmanuel Koomson must add Tsuinaa Amoatey or Francis Nyarkotey (sic) name on the title and further action can be taken to obtain or to sell the property. 4. If full payment of $175,000 is not made within 90 days of the due date of November 3rd 2023 they(sic) will be a penalty of 10% of the remaining amount that would be incurred monthly until the full payment is made. [57] The parties will be bound by the subsequent agreements executed between them. By the 24th October, 2022 Payment Plan Agreement, the parties varied the terms of payment of the purchase price of the property. By the terms of the new agreement, the Plaintiff was to pay the purchase price of the property in twelve instalments beginning 24th October, 2022 with the last instalment to be paid by 2nd November, 2023. [58] By the Payment Plan Agreement the parties also varied the minimum payment requirement. By the agreement it was agreed per Clause 2 that, the Plaintiff shall have the property registered in his name after the payment of USD 38,000.00. On the evidence the Plaintiff has paid more than USD38,000 and the execution of Exhibit C by the new agreement i.e. payment plan will transfer the interest of the 1st Defendant in the property to the Plaintiff. 24 | P age [59] By the Payment Plan Agreement, the minimum payment was pegged at 50% of the purchase price which was to be paid by 1st April, 2023, and if by 2nd November, 2023 the Plaintiff was unable to pay the full purchase price of $175,000.00, the only cause of action available to the Defendants was an imposition of a 10% penalty on the remaining balance till the final payment is made. The relevant clauses are in the following terms: If 50% of the total sales(sic) amount ($175,000) is not made by April 1st 2023, then Emmanuel Koomson must add Tsuinaa Amoatey or Francis Nyarkotey (sic) name on the title. And further action can be taken to obtain or to sell the property. If full payment of $175,000 is not made within 90 days of the due date of November 3rd 2023 they(sic) will (sic) be a penalty of 10% of the remaining amount that would be incurred monthly until the full payment is made. [60] On the evidence, by 24 February 2023, the Plaintiff in pursuance of the Payment Plan Agreement which revised the 6th June, 2022 Property Purchase Agreement had paid in total, an amount of US$88,000.00 which is more than the 50% of the purchase price. This amount was paid before 1st April, 2023 date. [61] It is pleaded at paragraphs 14 and 15 of the Statement of Claim as follows: 14. Plaintiff avers that he (Plaintiff) has since complied with the agreed payment plan about which he (Plaintiff) avers in the immediately preceding paragraph such that as at 24th February, 2023 he (Plaintiff) had made payments totalling Eighty- Eight Thousand United Staes Dolars (US$88,000.00) to Defendants in discharge of his (Plaintiff’s) payment obligations to Defendants which sum amounts to more than 50% of the agreed purchase price of the property in dispute. 15. Plaintiff avers therefore that as at 24th February, 2023 he (Plaintiff) was entitled to vacant possession of the property in dispute from Defendants but Defendants 25 | P age neglected, failed and/or refused to give him(Plaintiff) vacant possession of the disputed property. [62] The Defendants in response to the above averments made by the Plaintiff pleaded at paragraph 18 of the Statement of Defence as follows: Paragraphs 14 and 15 of the Plaintiff’s statement of claim are denied to the extent that the Defendants shall say that the Plaintiff has woefully failed to go strictly by the payment plan when he initially deceived the Defendants to transfer the title deed into his name in order to go for a loan of $125,000.00 which he later back tracked to convince the 2nd Defendant to accept the payment plan. [63] Having denied the averments of Plaintiff in paragraphs 14 and 15 of his Statement of Claim, it behoves Plaintiff to lead evidence in proof of those averments. Plaintiff in proof of the above averments then testified as follows: I (Plaintiff) have since complied with the agreed payment plan about which I (Plaintiff) have stated here above such that as at 24th February, 2023 I (Plaintiff) had made payments totalling Eighty-Eight Thousand United States Dollars (US$88,000.00) to Defendants in discharge of my (Plaintiff’s) payment obligations to Defendant towards acquisition of the disputed property which sum amounts to more than 50% of the agreed purchase price for the property in dispute. [64] The Defendant in his testimony tendered in evidence Exhibit 1 series. Exhibits 1(A) 1(E) . Exhibit 1A is a receipt dated 16th February, 2023 issued by the 2nd Defendant in respect of an amount $10,000.00 received by 2nd Defendant from the Plaintiff as payment of the purchase price. Exhibit 1A is in the following terms: OFFICIAL RECEIPT 16th February , 2023 26 | P age I Francis Nyakortey of house no. 660 of Madina Estates received an amount of Ten Thousand Dollars(USD10,000) FROM Emmanuel Koomson of 77 Pawpaw St. East Legon, Accra Ghana in connection with my four-bedroom house purchasing agreement opposite Ogbojo Manet. This will sum up the total payment of Eighty-Eight Thousand Dollars (USD88,000.00) (Sgd) Francis Nyakortey [65] Exhibit 1(E) is also in the following terms: OFFICIAL RECEIPT 30TH MARCH , 2023 I Francis Nyakotey of house no. 660 of Madina Estates received an amount of five Thousand Dollars(USD5,000) FROM Emmanuel Koomson of 77 Pawpaw St. East Legon, Accra Ghana in connection with my four-bedroom house purchasing agreement opposite Ogbojo Manet. This will sum up the total payment of Ninety three thousand dollars (USD93,000.00) (Sgd) Francis Nyakortey [66] Again, under cross examination of the 2nd Defendant, he testified that as of 30th March, 2023, the Plaintiff had paid more than 50% of the purchase price of the property. This is what ensued: 27 | P age Q. Look at your 1(e) . It is a receipt dated 30th March 2023, issued by you to Plaintiff. am I correct. A. That is so. Q. The payment which you’re your Exhibit 1(e) represents was for the sum of $5,000.00 A. Yes. Q. In your Exhibit 1(e) you the acknowledged that this sum adds up to make total of $93,000.00 paid by Plaintiff as at that time. Am I correct. A. That is so. Q. We know that the total cost of the property was agreed to be $175,000.00. A. That is correct Q. And 5% of this sum will come up to $87,500.00 A. Yes Q. So, you will agree with me that as at 30th March, 2023 Plaintiff had paid to the Defendant more than 50% of the agreed purchase price for the property. A. That is so. [67] Defendants Exhibits 1A and 1E corroborates the evidence of the Plaintiff that as of 30th March 2023, the Plaintiff had fulfilled his obligation under clause 3 of the terms of the Payment Plan Agreement and had paid more than 50% of the purchase price. The law of evidence is that when a party leads evidence favourable to the case of his opponent, the opponent does not have to lead any further evidence in proof of that claim. See the case 28 | P age of Nikoi Olai Amontia IV (Substituted by Tafo AmonII) V Akotia Oworsika III (Substituted by Laryea Ayiku III where the court held that: Where an adversary had admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct. It is the rule whereby a party is precluded from denying the existence of some state of facts which he had formerly asserted. That type of proof is a salutary rule of evidence based on common sense and expediency.” [68] Also in Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey &Ors [2003- 2004] I SCGLR 420 holding 5 the supreme court held that : Under the Evidence Act 1975 (NRCD) 323), the burden of producing evidence in any given case was fixed but shifted from party to party at various stages of the trial depending on the issues asserted and or denied. In assessing the balance of probabilities, the Court will consider all the evidence adduced at the trial and the party in whose favour the balance tilts is the person whose case is more probable that that of the rival claims.” The Commentary on the Evidence Decree, 1975 (NRCD 323) which contains an explanation of section 11 (4) of NRCD 323 provides as follows: “The party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency. It is for this reason that the phrase ‘on all the evidence’ is included in each of the tests of sufficiency.” 29 | P age [69] In the present case, both the documentary and oral evidence the 2nd Defendants helps the Plaintiff to prove his claim that as at 1st April 2023, he had performed his obligation under the Payment Plan Agreement by paying 50% and more of the purchase price of the property. [70] On the evidence I am satisfied that as of 1st April, 2023 the Plaintiff had paid US$93,000.00 representing more than 50% of the purchase price of the property to the Defendants. [71] Clause 3 of the Payment Plan Agreement provides that if 50% of the total sales(sic) amount ($175,000) is not made by April 1st 2023, then Emmanuel Koomson must add Tsuinaa Amoatey or Francis Nyarkotey’s name on the title. And further action can be taken to obtain or to sell the property. [72] In my view, the converse of this clause is that if 50% of the total purchase price of ($175,000) is made by April 1st 2023, then Plaintiff will not add Defendants name the title and no further action can be taken to obtain or to sell the property. The effect of the clause is that after the payment of the 50% purchase price Plaintiff acquire absolute title in the property and Plaintiff was entitled to vacant possession of the property. Defendant’s refusal to give vacant possession of the property to the Plaintiff after receipt of the 50% and more of the purchase price will amount to a breach of the agreement between the parties. [73] The parties willingly entered into a contract that culminated in the Payment Plan Agreement and the general law is that everyone is bound by a contract he signs and he will be precluded from introducing extrinsic evidence to vary, modify or change the terms of the agreement and the court will enforce such contracts between the parties unless provisions of the contract are contrary to law, good morals, public order or public 30 | P age policy. In IP E-Game Ventures, Inc., Petitioner, vs. George H. Tan, Respondent (G.R. No. 239576, June 30, 2021) Lopez, J., J It is basic that a contract is the law between the parties. Obligations arising from contracts have the force of law between them and should be complied with in good faith. Unless the stipulations in a contract are contrary to law, morals, good customs, public order, or public policy, the same are binding as between the parties. [74] The Parties willingly entered into the agreement and they are bound by the terms of the agreement. Plaintiff has discharged his obligation under the agreement by paying more than 50% of the purchase price of the property by 1st April, 2023. The Defendants are to perform their side of the bargain. I resolve issues 3, 4 and 5 in favour of the Plaintiff and hold that having paid 50% of the purchase price of the property as of 1st April, 2023, the Plaintiff is entitled to vacant possession of the property and the title documents on the property. [75] ISSUE 6: Whether or not as at 15th August 2023 Plaintiff offered to pay to Defendants the remaining balance of US$57,000.00 for the disputed property but Defendants neglected, failed or refused to accept same. [76] It is the case of the Plaintiff that on 15th August, 2023 it offered to USD 57,000 being the remaining balance of the purchase price of the property but the Defendants refused to accept it and rather instructed their lawyer to resile from the Property Purchase Agreement. [77] I have made a determination that of as 1st April, 2023, Plaintiff had discharged his obligation under the Payment Plan Agreement that entitled him acquire the interest of the 1st Defendant in the property. As of 15th August 2023, the Defendant had assigned his interest in the property after the Plaintiff had paid met the minimum payment 31 | P age requirement of $38,000.00 in accordance with clause 2 of the payment plan and the deed of assignment executed to enable the Plaintiff to have the property registered in his name. The interest of the Plaintiff became absolute in the property after the payment of 50% of the purchase price by 1st March, 2023. Per the payment plan after the payment of 50% of the purchase price and the execution of the deed assignment, the Defendants’ interest in the transaction was for the recovery of the outstanding balance of the purchase price as provided under clause 4 of the Payment Plan Agreement. Any outstanding balance as of 3rd November, 2023 was to attract a penalty of 10%. The said clause provides as follows: If full payment of $175,000 is not made within 90 days of the due date of November 3rd 2023 they (sic) will be a penalty of 10% of the remaining amount that would be incurred monthly until the full payment is made. [78] It is pleaded at paragraph 14 of the Statement of Defence as follows: It is worthy of note in further response to paragraphs 10 and 11 that as of the time of the issuance of this writ, the Plaintiff has(sic) paid a total of $118,000.00 over a period of spanning one year and over a complete departure from the property Purchase Agreement. [79] The 2nd Defendant repeated this averment in his testimony as follows: The Plaintiff had at the time of issuance of this writ, paid a total sum of One Hundred and Eighteen Thousand Dollars ($118,000) out of One Hundred and Seventy-Five Thousand Dollars ($175,000) purchase price agreed and over a period spanning one year and over, a complete and total departure from the Property Purchase Agreement properly executed between the Parties. See “EXHIBIT TA2” dated 16th June, 2023(sic). 32 | P age [80] I have concluded that by entering into the Payment Plan Agreement on 24th October, 2022 and where parties to an agreement varies or amend the agreement, the new terms and provisions that are inconsistent with the previous agreement prevails. In this regard, the provisions of the Property Purchase Agreement dated 6th June, 2023 became ineffective and no longer governed the parties' conduct regarding their respective obligations under the transaction for the sale of the property. This is particularly so with respect to the terms of payment for the purchase price of the property. It will therefore be wrong for the Defendants to still refer to the provisions of the Property Purchase Agreement dated 6th June, 2022 as a basis for determining the Plaintiff’s obligations under the sale transaction. [81] The 2nd Defendant however further testified as follows: A payment plan Agreement was prepared and signed by the parties on 24th October 2022, with some terms and conditions but the Plaintiff was not able to adhere strictly to the payment terms for which the Plaintiff was in breach. [82] Was the Plaintiff in breach of the payment Plan Agreement? The evidence shows that, there were instances where the Plaintiff breached the Payment Plan Agreement. For instance, by the agreement, the Plaintiff was to have made a total payment of $78,000.00 by 13th January, 2023 but the Plaintiff fulfilled this obligation on 16th January, 2023. See Exhibit 1B. Again, by 28th April, 2023, the Plaintiff was to have made a total payment $125,000 but this was not done. Also, by 16th June 2023, Plaintiff should have made a total payment of $135,000 but the Plaintiff failed to meet this obligation. By 14th July, 2023 Plaintiff should have made a total payment $140,000 and by 11th August, 2023 Plaintiff should have made a total payment of $145,000 but the Plaintiff was unable to make those payments. 33 | P age [83] The evidence shows that as of 16th June, 2023 the Plaintiff had made a total payment of $118,000 which was short of the $135,000 he should have paid by 16th June, 2023. By the time the Plaintiff came to court in October 2023, he had not met his obligation of making a total payment of $155,000 by 22nd September, 2023. It is the case of the Plaintiff that on 15th August, 2023 he offered to pay the outstanding balance at the time which was $57,000 but the Defendants refused to accept it. This $57,000 outstanding balance was the balance as of 16th June, 2023 when the Plaintiff had made a total of $118,000. This claim of the Plaintiff he offered to pay the outstanding balance of $57,000 on 15th August, 2023 was denied by the Defendants and no evidence was led on this apart from the repetition of the averment on oath when the Plaintiff mounted the witness box. I take the view that the Plaintiff was not able to prove this claim. The effect is that the Plaintiff breached the terms of payment of the purchase price at a certain point but the Defendants’ only right available to them was a 10% penalty on the outstanding amount after 3rd November, 2023. [84] I will now discuss issue 7 which is whether or not Plaintiff has fully and finally paid to Defendants the outstanding balance for the purchase of the disputed property from 1st Defendant and therefore entitled to vacant possession of the disputed property together with the registration of the title to the disputed property in Plaintiff’s name. [85] In spite of these breaches of the payment plan by the Plaintiff the Plaintiff on 23rd December, 2023 paid the outstanding balance of the purchase price of the property being $57,000 to Lawyer for the Defendants. The receipt for the payment of the said money was tendered in evidence as exhibit J. The lawyer for the Defendant with no objection acknowledged receipt of the said payment. The $57,000 was received and acknowledge as being the full and final payment of the purchase price of the property. This this acknowledgement the Defendants cannot be heard to complain that the Plaintiff has not fulfilled its obligations of the payment of the purchase price of the property sold by the Defendants to the Plaintiff. 34 | P age [86] In any case if the Plaintiff was in breach of the payment terms outlined in the Payment Plan Agreement. As I have said parties who enter an agreement out of their freewill are bound by the terms of the said agreement except where the agreement is tainted with fraud or its performance will be against public morals or public policy. What were the rights of the Defendants under the said agreement. The rights of the Defendants under the said Payment Plan Agreement were two. [87] First, if 50% of the total purchase price of $175,000 was not made by April 1st 2023, then the Defendant will add their name on the title. And further action can be taken to obtain or to sell the property. The evidence showed that as of 30 March 2023 the Plaintiff had paid $93,000 which was more than 50% of the purchase price so that right was not available to the Defendants to exercise. [88] Second, if full payment of $175,000 is not made within 90 days of the due date of November 3rd 2023 the Defendants would be entitled to a penalty of 10% of the remaining amount that would be incurred monthly until the full payment is made. [89] The right of the Defendants under the agreement if any was the 10% penalty on the outstanding amount of $57,000 90 days after 3rd November, 2023. I find that the breach of the payment terms of the agreement after the payment of 50% of the purchase price by 1st April, 2023 did not entitle the Defendant to resile from the sale. [90] I find and hold that the Plaintiff has fully and finally paid to Defendants the outstanding balance for the purchase of the disputed property from 1st Defendant and therefore entitled to vacant possession of the disputed property together with the registration of the title to the disputed property in Plaintiff’s name. [91] Plaintiff is entitled to specific performance of the agreement for the sale of the property to the Plaintiff. “Specific performance is a decree of the court, in exercise of its 35 | P age equitable jurisdiction directed at a particular person or persons, to compel the discharge of an obligation lawfully undertaken”. See Morden Principles of Equity by A.K.P. Kludze page 57. [92] Again, in his book LAND LAW, PRACTICE AND CONVEYANCING IN GHANA (3rd Edition), the author Dennis Dominic Adjei at page 196 had this to say on the subject: Specific performance is granted in land case where a person has either made a partial performance or complete performance of a contract of sale of land and if the other person is not ordered to dispose of the land to him or her damages would not be adequate to compensate him/her. Specific performance is an equitable remedy decreed by the courts to ensure that justice is meted out to persons who have either partly, substantially or exactly fulfilled or performed the essential terms of the contract for the sale of land. [93] In the circumstances of this case. I think it will be unjust and unfair for the Defendants not to dispose the property to the Plaintiff and I will order specific performance for the Defendants to give vacant and quiet possession of the property to the Plaintiff. [94] By refusing to deliver vacant possession of the property to the Plaintiff the defendants were in breach of the agreement between the parties are liable to pay damages to the Plaintiff. [95] This brings me to the last issue which is Whether or not the Defendants can resile from the Agreement. By the terms of the Payment Plan Agreement by 1st April 2023, the Plaintiff had acquired the entire interest of the 1st Defendant in the property after the payment of more 50% of the purchase price before the 1st April, 2023 date. As have been said after the payment of the 50% of the purchase price the only right available to the Defendants was for the recovery of the money and a penalty of 10% on any outstanding 36 | P age amount 90 days after 3rd November, 2023. Title in the property has passed to the Plaintiff and the Defendants did not have right to resile from the agreement from 1st April, 2023 and they cannot resile from the agreement. [96] In conclusion, I dismiss the counter claim of the Defendants and enter judgment for the Plaintiff as follows: 1. A declaration that Plaintiff is entitled to specific performance of the Property Purchase Agreement entered into between the Plaintiff and 1st Defendant. 2. An Order for specific performance of the obligations under the Property Purchase Agreement by Defendants delivering to Plaintiff peaceful yet vacant possession of the property described in paragraph 1 of Plaintiff’s Statement of Claim as all that piece or parcel of land situate, lying and being at OGBOJO-ACCRA containing an approximate area of 0.184 acre more or less bounded on the North-East by Proposed Road measuring 78.0 feet more or less on the South East by Assignor’s land measuring 100.3 feet more or less on the South West by Assignor’s land measuring 82.0 feet more or less and on the North West by Assignor’s land measuring 100.2 feet more or less together with the building thereon. 3. Perpetual injunction against Defendants and their agents, assigns and all those claiming through them from interfering with the Plaintiff’s interest in the property describes in paragraph 1 of Plaintiff’s Statement of Claim. 4. General damages of GH¢100,000.00 in favour of the Plaintiff and against the Defendants for breach of contract. 5. I will award Plaintiff costs of GH¢50,000.00 and against the Defendants 37 | P age (Sgd) Ayitey Armah-Tetteh J. (Justice of the High Court) 38 | P age