MADINA SHOPPING MALL
April 28, 2010
SUPREME COURT
GHANA
CORAM
- ATUGUBA, J.S.C. (PRESIDING)
- AKUFFO (MS), J.S.C.
- ANSAH, J.S.C.
- OWUSU (MS), J.S.C.
- BAFFOE-BONNIE, J.S.C
Areas of Law
- Contract Law
- Property and Real Estate Law
- Civil Procedure
- Evidence Law
April 28, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Atuguba JSC (presiding) with concurrences from Akuffo (MS) JSC, Ansah JSC, Owusu (MS) JSC, and Baffoe-Bonnie JSC, dismissed the appeal by the Madina Shopping Mall Association and its 88 traders against Rosehill Shopping (Gh) Ltd., its managing director E. M. Frimpong, and their agent. The traders had paid deposits and completed allocation forms (Exhibit E), believing an oral promise of outright sale of shops in the Rosehill Heights Shopping Mall. When presented with tenancy agreements, defendants characterized the deposits as “goodwill.” The Court held there was no enforceable contract for sale because essential terms, notably price or “full cost,” were not agreed, and fraud was not proved. On capacity, the Court criticized the Court of Appeal’s technical approach and recognized representative suits without a power of attorney. Exercising inherent jurisdiction, the Court ordered restitution with simple interest if appellants persist in rejecting tenancy. A concurrence clarified that demanding “goodwill” premiums from prospective tenants is illegal under the Rent Act.
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