MADINA SHOPPING MALL

ATUGUBA, J.S.C:

The facts of the case as stated by the Court of Appeal per Piesare J.A at pages 152-154 of the record of appeal (vol. 1) are as follows:

“The 2nd Defendant/Respondent, E. M. Frimpong, who was the Managing Director of the Rosehill Shopping (Gh) Ltd., acquired a piece of land at Madina, and commenced construction of stores on that land. Some traders, who claimed to be members of the Madina Shopping Mall Association, expressed interest in the stores being constructed, and applied for allocation of such stores through the 3rd Defendant/Respondent, an agent of the 2nd Defendant/Respondent. Traders who applied for such stores were requested to deposit monies ranging from ¢6[Six]Million to ¢40[Forty] Million Cedis, depending on the size of the stores required.

The evidence of the secretary of these traders Mrs. Grace Dede Kleponi was that it was orally agreed that the money deposit made by the traders, would be used for the construction of the stores, for outright purchase to them. The traders were later made to fill application forms. These application Forms were admitted in evidence as Exhibit ‘E’ [1,2,3, etc]

On Exhibit ‘E’, was a portion for the Next of Kin to be filled in. It was the case of the appellants that they were asked to fill in the Next-of-Kin because the stores were for outright purchase. This was denied by the Defendant/Respondents.

The stores were completed in about 2004, and to the surprise of the traders who had deposited money for stores, the Defendant/Respondents presented to them, TENANCY agreement papers, and insisted that the transaction was a lease, and not a sale; that, the deposit paid by each trader was only a “goodwill.”

After failure of all negotiations to resolve the controversy, the appellants issued a Writ of Summons at the Lower court claiming:

[a] A declaration that the monies paid by individual members to the Defendants constituted full and final purchased price for the Stores/Shops occupied by them.

[b] An order for the defendants to provide electricity, water, toilet and other facilities for the Rosehill Height Shopping Mall in accordance with Town and Country regulations.

[c] An order for the Defendants to legally convey the Stores/Shops occupied by them.

[d] Perpetual injunction to restrain the defendants, Agents, servants, Workmen, Assigns etc from interfering in whatever manner with their use of the Stores/Shops.

[e] An order for the Plaintiff/Members to be declared the owners t