The Reverend M. B. Taylor As Attorney For The Methodist Missionary Trust Association V. H. B. W. Russel Arthur Head Of His Branch Of The Anona Tribe Of Cape Coast & Anor (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Contract for sale of land—Specific Performance—Impossibility of compliancewith order for specific performance—Cases where specific performance will not be decreed.

Specific performance cannot and should not be ordered against a party from whom the legal estate in the land has passed, because it would be impossible for him to carry out the order if made.

Specific performance, being a form of equitable relief, will never be granted where it will cause hardship to third parties/ unless it can be shown that such third parties were aware of the existence of the contract of which specific performance is claimed. In such a case a plaintiff should seek his remedy in damages.

Cutts v. Thodey (1) distinguished

Case referred to:

(1) Cutts v. Thodey, 60 E.R. 80.

Appeal from the Supreme Court of the Gold Coast.

Quist and Abadoo for Appellant (plaintiff below).

Bannerman Hyde for Respondents (defendants below).

The following judgment was delivered:

Haryagin, C.J. In this case the appellant claims specific performance of an alleged contract entered into with the respondent.

It is alleged on behalf of the appellant that he entered into an Agreement with the respondent for the sale of a particular parcel of land. Not only has the respondent refused to fulfil the contract, but he has sold the land to a third party who, in turn, has sold it to a fourth party. It should be noted that there is no alternative claim for damages.

The learned trial Judge dismissed the action on the ground that there was no binding contract between the appellant and the respondent. This finding is based on the evidence given before him and the general presentation of the case by Counsel for the appellant, and we are not prepared to hold that there was not evidence upon which he could base his judgment.

Quite apart, however, from the facts of this case which the learned trial Judge has found against the appellant, even assuming that the facts had been found in appellant’s favour, this is not a case in which specific performance could or should be ordered. The legal title has passed from the respondent and it would be therefore impossible for him to carry out the order of the court.

In Fry on Specific Performance, 3rd Edition, p. 454, the matter is put beyond all doubt in the following sentence: ” Where a defendant showed that he had sold the property in question for a valuable consideration to a third party, no performance could be enforced : Denton v. Stewart, 1 Cox, 258 “; English and Empire Digest, p. 204, para. 1701; see also 31 Halsbury’s Laws of England, 2nd Edition, p. 396, where the principle is laid down even more clearly in the following words: ” Impossibility of performance by the defendant is a defence to a claim for specific performance, even though the contract is unconditional both in terms

and in intention, and even though the impossibility is due to the defendant’s own act.”

It should be noted that in the case of Cutts v. Thodey (1) which was cited by the appellant, it would appear that the second purchaser was in exactly the same position as the first (the plaintiff) and that the order of the Court for specific performance could be carried out without difficulty by the defendant for there is nothing to show that the legal title had been transferred to the second purchaser. Here the legal title has passed from the respondent to X and from X to Y who is in possession presumably perfectly innocently, and it would be most inequitable that there should be a possibility of his being ejected. Clearly no finding of this court could be binding on X or Y as they are not parties to the suit, and to grant specific performance could only have the result of fostering two or more actions, whereas the law provides a remedy in damages should the respondent have been guilty of a breach of contract.

The doctrine of specific performance is an equitable relief and will never be granted where it will cause hardship to third parties unless it can be shown that such third parties were aware of the existence of the contract of which the plaintiff is claiming specific performance. There is no evidence that either the second or third purchaser of the land in this case had any knowledge of the appellant’s claim, and this is clearly a case in which the appellant should have sought relief under his common law rights which sound in damages.There are no merits in this appeal either in law or in fact and the appeal is dismissed with costs assessed at 07 is. Od.

Appeal dismissed.