DARKWA vs. KWABENA [1965]DLSC1795

Date	1965-04-26
Suit No.
Citation No.	[1965]DLSC1795

MILLS-ODOI JSC

OLLENNU JSC

SIRIBOE J.S.C.

OSAFO FOR THE APPELLANT.

OWUSU YAW FOR THE RESPONDENT.

[1965]DLSC1795
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													<main id="main" class="content" style="min-height: 60rem" >DARKWA<o:p></o:p>&nbsp;vs. <o:p></o:p>KWABENA <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 299<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 APRIL 1965.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OSAFO FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

MILLS-ODOI, OLLENNU AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SIRIBOE J.S.C.<o:p></o:p>This is
an appeal from the judgment of the High Court, Sunyani, given in favour of the
plaintiff-respondent (hereafter referred to as the plaintiff) on 14 December
1962 by Bruce-Lyle J. (as he then was). By his amended writ and statement of
claim, the plaintiff’s claim against the defendant “is for specific performance
to convey to the plaintiff two cocoa farms known as<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;(a) Monkumu on Mansing stool land and <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b)
Abrokyire on Bechem stool land, boundaries whereof are set out in the
particulars of claim.” In the alternative, the plaintiff claimed “ the return
of his money totalling £G650 (six hundred and fifty pounds) and also £G2,000
for breach of contract.”<o:p></o:p><o:p>&nbsp;</o:p>The
statement of claim alleged that some time in 1953, the defendant approached the
plaintiff and offered to sell to him the two cocoa farms referred to above, for
the sum of £G450, which offer was accepted. The plaintiff paid the purchase
price to the defendant in the presence of certain witnesses mentioned in the
statement of claim. This done, the defendant promised to despatch to the plaintiff
the title deeds together with a deed of conveyance on the defendant’s return to
his home town Bechem, but these were not forthcoming when the plaintiff had to
leave Ghana for a visit abroad. On his return to Ghana, the plaintiff called
for the necessary papers and also for account when he was told by the defendant
that one Asiamah had laid claim to the Monkumu farm which had resulted in a
case before the court. He therefore requested the plaintiff to assist him (the
defendant) financially in fighting out the case. The plaintiff agreed to this,
and accordingly gave the defendant various sums of money amounting to £G200.
The result of the case was in favour of the defendant, who later instructed one
Anto to prepare for the plaintiff the deed of conveyance. On production of the
deed, the plaintiff discovered that it did not contain the terms agreed upon,
in that, instead of the two farms sold, only one had been conveyed; also
instead of the purchase price of £G450, an amount of £G800 had been stipulated
in the deed. In the circumstances the plaintiff declined acceptance of the deed
of conveyance and asked for a proper one but the defendant refused to give him
one, so hence this action was instituted.<o:p></o:p><o:p>&nbsp;</o:p>The
defence filed which was amended at certain stages of the trial, and the
affidavit sworn to by the defendant in opposition to the plaintiff ‘s motion
asking for interim injunction, and for the appointment of receiver and manager,
were to the following effect: That the farms in question were bought by the
defendant at a public auction, but were later resold to the owners (one of whom
being the second defence witness, Kwaku Sarfo), after they had sought the
intercession of a relative of the defendant for the resale of the farms to
them; that those people later mortgaged the two farms together with one other
farm to a man called Tweneboa for a loan of; £G800, a brother of the plaintiff
(called Poku) being a surety in that mortgage transaction; that one Asiamah
later laid claim to the Monkumu farm on the ground that it had been mortgaged
to him by one of the owners, and accordingly threatened to sell it, but this
was successfully resisted in proceedings before the court by the defendant at
the instance of the owners. It was some time after this, that according to the
defendant, the plaintiff and his brother Poku purporting to be acting on behalf
of the owners of the farms, approached the defendant and asked him to convey
the two farms to the plaintiff and Poku as a gift alleged to have been made to
them by the owners; but the defendant refused to do so without the consent of
the owners.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant emphatically denied any sale as alleged by the plaintiff, and ended
up by saying that since the resale of the farms as aforesaid, the defendant had
ceased to have any interest in them; and that one of the owners by name Kwaku
Sarfo (the second defence of witness) is in possession thereof. This was
confirmed by Kwaku Sarfo both in his affidavit in support of a motion for
joinder as co-defendant which was later withdrawn, and also in his evidence
which he gave at the trial on behalf of the defendant.<o:p></o:p><s</main>