DEEGBE v.

NSIAH AND ANOTHER

[1984-86] 1 GLR 545

Division: COURT OF APPEAL, ACCRA

Date: 25 JULY 1985
Before: EDUSEI, EDWARD WIREDU AND OSEI-HWERE J.J.A.

Practice and procedure—Pleadings—Amendment of—Pleadings not disclosing any cause of

action—Whether amendment to be granted so as to disclose cause of action—Consequences of any such
grant—Plaintiff, a trained lawyer, to be bound by averments in statement of claim.

Contract—Breach of contract—Specific performance—Sale of house—Oral offer for sale of house by N to

D—D in letter accepting offer requesting reduction in price—Whether any contract concluded between D
and N that can be specifically enforced—Innocent third party meanwhile acquiring house—Whether
specific performance would have been available to D—Whether D entitled to damages.

Land law and conveyancing—Deeds and documents—Contracts for transfer of interest—Specific

performance—Contract for sale of house to be in writing and signed by vendor—Whether oral agreement
for sale of house specifically enforceable—Conveyancing Decree, 1973 (N.R.C.D. 175), s 2 (a).

HEADNOTES
The plaintiff (D), a legal practitioner, was a tenant in the house of the defendant (N). In April 1977 N sold
the house to the co-defendant (A). On 31 May 1977 a firm of solicitors acting on behalf of A gave D
notice to vacate the house on or before 31 August 1977. On 10 August 1977 D brought an action for
specific performance of an alleged contract by N to sell the house to him for ¢65,000. In an
accompanying statement of claim he deposed that N had before the sale to A made an oral offer to sell the
house to him and that he had subsequently accepted the offer by a letter he wrote to N a copy of which he
attached to his statement of claim. In a section of that letter he had implored N to “consider a serious
reduction in the price quoted” for the house. N denied making any offer to D. After close of pleadings D
filed an application for leave to amend his statement of claim. In paragraph 4 of the proposed amendment
he deposed that he had “accepted the offer orally.” A also brought an application under the High Court
(Civil Procedure) Rules, 1954 (LN 140A), Order 25, rr 3 and 4 for an order to dismiss D’s claim on the
ground that it did not disclose a reasonable cause of action. The trial judge disallowed the amendment on
the ground that it was a complete departure from what was contained in the plaintiff’s alleged letter of
acceptance and held that by the plaintiff’s letter he had rejected the offer of the defendant and therefore
dismissed the plaintiffs claim. On appeal.
Held, dismissing the appeal:
(1) where the writ or the statement of claim disclosed in toto no cause of action there could not be
granted an amendment so as to disclose a cause of action. The amendment sought had not been
made bona fide. If it had been allowed it would have opened the way for the plaintiff to lead
evidence of perjured invention to bolster his claim. The plaintiff as a trained lawyer prepared the
writ and statement of claim and all the averments in them must therefore be taken as the true facts
 in the alleged agreement.
(2) Acceptance must be an absolute and unqualified acceptance of all the terms of the offer. A
qualified acceptance operated as a rejection of the offer.

[p.546] of [1984-86] 1 GLR 545

The plaintiff ‘s letter was an invitation to the defendant to make a fresh offer which he never did. It
was clear therefore that the parties were not ad idem and there was no contract between the plaintiff
and the defendant. There could therefore be no specific performance because there was no
concluded contract between the plaintiff and the defendant and the latter was free to sell his house
to the co-defendant. Even if there was a concluded contract, since a third party, in the person of the
co-defendant, without notice had acquired an interest in the house in dispute, the equitable remedy
of specific performance would not have inured to the benefit of the plaintiff; the only remedy
available to him would have been an action for damages but the plaintiff did not claim that relief
and on the facts he would not have been entitled to any. Hyde v. Wrench (1840) 3 Beav 334 cited.
(3) For the plaintiff to have succeeded in court he ought to have in compliance with the Conveyancing
Decree, 1973 (NRCD 175), s. 2 (a) produced a document evidencing the contract of sale and such
document ought to have been signed by the defendant or his agent. There was no such document
and the agreement, if an agreement at all, was oral. Consequently, it could not be enforced in court.

CASE REFERRED TO
Hyde v. Wrench (1840) 3 Beav. 334.

NATURE OF PROCEEDINGS
APPEAL from the judgment of the High Court, Accra dismissing the plaintiff’s action for specific
performance of a contract for the sale of a house. The facts are sufficiently set out in the judgment of the
court delivered by Edusei J.A.

COUNSEL
Amaney for the appellant.
Dr. Prempeh for the respondents.

JUDGMENT OF EDUSEI J.A.

Edusei J.A. delivered the judgment of the court. In this appeal the plaintiff-appellant who will be referred
to hereafter as the plaintiff seeks a reversal of the judgment of Anterkyi J. sitting in an Accra High Court
and dated 21 June 1982. The judgment was in favour of the defendant and co-defendant-respondents who
also will be referred to as the defendant and co-defendant, respectively.
The plaintiff, a legal practitioner, issued out a writ claiming against the defendant an order of specific
performance in respect of an agreement for the sale of house No 1, Junction Road, C F C Estates, Tesano,
Accra. In his statement of claim (which will be stated fully later) accompanying the writ the plaintiff set
out, according to him, the circumstances leading to an agreement for the sale of the house in question by
the defendant to him at a price of ¢65,000. All this was an oral agreement. The plaintiff, a tenant in the
house, continued to say in his statement of claim that he had succeeded in procuring a promise of a loan
from the bank and that the bank wanted copies of the defendant’s title deeds. In a letter attached to the
statement of claim, which

[p.547] of [1984-86] 1 GLR 545

the plaintiff had previously sent to the defendant, he requested for copies of his title deeds. By this same
letter the plaintiff contends that he accepted the offer to buy the house. We shall refer to this letter later
for its effect. This letter was dated 6 April 1977.
The plaintiff averred that since the defendant did not react to the said letter he filed his writ claiming
specific performance of the contract for the sale of the house in question.
The defendant denied making any offer to the plaintiff; however, in April 1977 he sold the house to the
co-defendant, who later applied to join the suit to protect his proprietary interest in the said house. The
deed of conveyance was however executed on 13 July 1977 between the defendant of the one part and the
co-defendant and his wife of the other part. It has also been stamped and registered.
When pleadings by all parties had closed the co-defendant filed on 10 June 1982 an application under
Order 25, rr 3 and 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), praying the court to
dismiss the plaintiff ‘s claim on the ground that it did not disclose a reasonable cause of action. The
plaintiff also swore to an affidavit in opposition to the application. The plaintiff, however, had on 9 June
1982 filed an application for leave to amend his statement of claim. We think it convenient at this stage to
set out in full the plaintiff’s statement of claim which states:
“1 The plaintiff, a legal practitioner, is a tenant in house No 1 Junction Road, CFC Estates, Tesano and
has been so since July 1974.
2 The defendant is the owner and landlord of the said house and has been so at all times material to this
case.
3 In the year 1976 the plaintiff on several occasions discussed the possibility of buying the said house
of the defendant with the defendant, and the defendant on those occasions promised the plaintiff that
if he decided to sell the house he would give the option of a first refusal to the plaintiff.
4 About mid March 1977, the defendant called at the house and as the plaintiff was not in, left word
with the plaintiff’s younger brother that the plaintiff should call to see him at his office at the State
Insurance Corporation, Head Office on his return.
5 Immediately the plaintiff returned from trek to the house and learnt of the message he went over to the
defendant’s office where the defendant was seen in his room at a meeting with some other men.
6 The defendant left the room, took the plaintiff into the next office and said to the plaintiff, ‘Lewis, I
have now decided to sell the house you occupy, and as I promised you I am making the offer to sell to
you.’

[p.548] of [1984-86] 1 GLR 545

7 The plaintiff in utter relief, exclaimed ‘thank God’ and before he could inquire about the price, the
defendant continued ‘I have decided to resign from State Insurance and seek my laurels outside. I
would need some money to settle some bills before leaving. The price is ¢65,000.’
8 The plaintiff then said ‘oh’ and the defendant continued, ‘somebody has actually mentioned that
figure to me but don’t be in a hurry, take time to consider the offer and let me know your decision.’
9 The plaintiff having thanked the defendant left the office, promising to get in touch as soon as he
discussed the matter with his bankers or financiers.
10 A few days after leaving the defendant’s office the plaintiff succeeded in discussing the matter with
the management of the First Ghana Building Society, who promised to advance him ¢50,000 on
production of the vendor’s title deeds, i.e. the defendant’s.
 11 The plaintiff then went over and again discussed the matter with Dr A. K. Appiah, now Commissioner
for Finance, but then the Managing Director of the Social Security Bank, who also promised to have
the bank advance ¢54,000 towards the purchase, again on production of the vendor’s title deeds.
12 The plaintiff then, knowing that he would be able to produce the rest of the money, i.e. the ¢15,000
himself wrote to the defendant on 6 April 1977 to irrevocably accept the offer to buy the house, copy
of the said letter is hereto attached.
13 In the letter attached the plaintiff requested for a copy of the defendant’s title deeds to enable the bank
process the loan.
14 Later the defendant indicated to the plaintiff that he had received the letter, copy attached, but had
done nothing since to supply the plaintiff with the documents necessary to perform the contract of
sale.
15 Wherefore the plaintiff claims as per his writ of summons.”

On 14 June 1982, both applications came before the judge and the judge having listened to arguments
adjourned to 21 June 1982 for ruling.
On the adjourned date he disallowed the amendment after the trial judge had set out the writ and the
statement of claim and the proposed amendment stating that the averment in paragraph 4 of the proposed
amendment was a complete departure from what was contained in the plaintiff ‘s alleged letter of
acceptance. The proposed paragraph 4 reads: “The plaintiff in the same vein accepted the offer orally.” It
is also

[p.549] of [1984-86] 1 GLR 545

relevant at this stage to refer to the letter attached to the statement of claim. This letter reads thus:
“LKD/BAT/31/77 6 April 1977
Dear Mr Nsiah,
Re: House No 1 Junction Road C F C Tesano, Accra
This refers to our short discussion in your office recently when you offered to sell to me the above house
owned by you and which I now occupy as your tenant. You asked me then to take some time to consider the
offer and let you know my interest.
I write now to accept the offer without revocation.
I would plead, however, that you do consider a serious reduction in the price quoted. I believe, as between
friends, this is possible. I am really committed to buy this house as it is an absolute necessity. I have already
apprised my bankers of same and papers are being processed accordingly.
In the meantime my bankers would require copies of your title deeds and site plan.
Please advise accordingly.
Yours sincerely,
(Sgd) L K Deegbe”

(The emphasis is ours.)

In his ruling on the proposed amendment the judge said rightly in our view, that:
“Where the writ or the statement of claim discloses in toto no cause of action, there cannot be granted an
amendment so as to disclose a cause of action. In my view the amendment sought is not being made bona
fide. If it is allowed it would open the way for the plaintiff to lead evidence of perjured invention to bolster
his claim. I hold this view because the plaintiff as a trained lawyer did himself prepare the writ and statement
of claim; all the averments in them must therefore be taken as the true facts in the alleged agreement.”
We share the same view as the trial judge.
The learned trial judge also ruled in favour of the defendants by dismissing the plaintiff ‘s claim on the
ground that by his letter of 6 April 1977 the plaintiff rejected the offer of the defendant when he wrote “I
write now to accept the offer without revocation”, but he added to it, “I would plead, however, that you
do consider a serious reduction in the price quoted.” The addition of these words amounted to a rejection
of the offer by the defendant to sell the house for ¢65,000.

[p.550] of [1984-86] 1 GLR 545

Acceptance must be an absolute and unqualified acceptance of all the terms of the offer. A qualified
acceptance operates as a rejection of the offer: see Hyde v. Wrench (1840) 3 Beav. 334.
What the plaintiff did by his letter of 6 April 1977 was an invitation to the defendant to make a fresh offer
which he never did. It is clear therefore that the parties were not ad idem, and there was no contract
between the plaintiff and the defendant. There can therefore be no specific performance unless there is a
complete and definite contract. In short there was not a concluded contract between the plaintiff and the
defendant and the latter was free to sell his house to the co-defendant.
But there is a more fundamental hurdle in the way of the plaintiff. Section 2 of the Conveyancing Decree,
1973 (N.R.C.D. 175) stipulates 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.”

(The emphasis is ours.) For the plaintiff to succeed in court he ought to have produced a document
evidencing the contract of sale and such document ought to have been signed by the defendant or his
agent. But there is no such document; in fact, the agreement, if agreement at all, was oral and by the
section quoted it cannot be enforced in court. In the absence of such an evidential writing the proposed
amendment, even if it had been granted, would not have improved the plaintiff’s position one jot or a
tittle. Furthermore, in the proposed amendment, the plaintiff still made references to the letter of 6 April
1977 in some of the paragraphs, thus perpetuating his rejection of the offer made by the defendant.
Counsel for the plaintiff contended before us that the plaintiff’s counsel in the High Court was not given
an opportunity to present his client’s arguments when the application to dismiss the action was heard.
The plaintiff’s counsel in the person of Mr. Moore was present in court and moved his application for
amendment, and counsel for the co-defendant after arguing against the proposed amendment also argued
for the dismissal of the plaintiff’s action but Mr. Moore chose not to say anything in reply. No one
prevented him from putting his client’s case across. We are tempted to conjecture that counsel might have
realised that there was no answer to the arguments of the co-defen-

[p.551] of [1984-86] 1 GLR 545

dant’s counsel especially when he said that there was no concluded contract between the plaintiff and the
defendant, after referring in detail to the statement of claim (with the letter attached); and also counsel
made references to sections 2 and 3 of N.R.C.D. 175. What could Mr. Moore have said in reply? We
think he did the right thing in keeping silent. As an experienced lawyer he did not want to make himself a
laughing stock in open court. Perhaps, he took admonition from Prophet Amos who advised: And so,
keeping quiet in such evil times is the clever thing to do!: Amos, chap 5, verse 13 of the Good-News
Edition of the Holy Bible.
When both counsel completed their arguments before us in court, counsel for the plaintiff sent us a list of
authorities. We have taken the trouble to examine them but they do not assist the plaintiff’s cause in any
way, for, at least, section 2 (a) of N.R.C.D. 175 puts him out of court completely. Be that as it may, we
wish also to add that even if there was a concluded contract, since a third party, in the person of the
co-defendant, without notice had acquired an interest in the house in dispute, the equitable remedy of
specific performance would not have inured to the benefit of the plaintiff; the only remedy available to
him would have been an action for damages, but the plaintiff did not claim this relief. The facts in this
case, however, disentitle him to any such damages also. In any case the trial judge’s finding that there was
no reasonable cause of action by the plaintiff against the defendant was justified by the facts disclosed in
his statement of claim. The plaintiff was also caught squarely by section 2(a) of N.R.C.D. 175. In the
result, we find no merit whatsoever in the appeal and we accordingly dismiss it.
We wish, however, to advise that counsel should from time to time refer to the rudiments in certain areas
of the law, and we feel convinced that if the plaintiff, a lawyer, who filed his own writ and statement of
claim, had refreshed his memory or knowledge of the law by references to passages on offer and
acceptance of contract in text books like Cheshire & Fifoot’s Law of Contracts or Sutton & Shannon on
Contracts or Anson’s Law of Contract, he might not have come to court at all, unless he intentionally did
take the action to delay his ejection from the house he occupied as a tenant. For, on 31 May 1977 a firm
of solicitors, on the instructions of the co-defendant’s wife, a part owner of the house, wrote to the
plaintiff giving him notice to vacate the premises on or before 31 August 1977, but on 10 August 1977
the plaintiff initiated this action. This simple, straightforward case has lasted almost eight years now, from
10 August 1977 to 25 July 1985. This is an abuse of the court’s process. It may conjure up in the minds of
the public a sort of judicial phantasy, and this is not good enough

[p.552] of [1984-86] 1 GLR 545

for the administration of justice. We hope that lawyers will help to achieve speedy justice for it is said
that “justice is sweet if it is swift.”

DECISION
Appeal dismissed
M. C. N – N.