NDOLEY vs. IDDRISU [1978]DLCA1157

Date	1978-12-07
Suit No.
Citation No.	[1978]DLCA1157

APALOO C.J.

ANNAN J.A

BOISON J.

ANNAN FOR THE APPELLANT.

BAWUMIA FOR THE RESPONDENT.

[1978]DLCA1157
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >NDOLEY <o:p></o:p>vs. <o:p></o:p>IDDRISU<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>&nbsp;[1979] GLR 559<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:
27 DECEMBER 1978<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">

ANNAN 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">

APALOO C.J., ANNAN J.A. AND BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo
C.J. delivered the judgment of the court. The appellant is a clerk employed in
the Circuit Court at Tamale. He owns a leasehold premises there. It is house
No. CHE. 41. The lessor is the Government of Ghana and the ninety-nine year
lease contained the usual covenants including covenant not to assign “without
the previous consent in writing of the government.”<o:p></o:p>Some time
in 1972 or thereabouts, the appellant fell into debt and the premises in
question was advertised to be sold by public auction to meet repayment of the
debt. He appeared to be pressed for money and sought the respondent’s financial
assistance to enable him save the property.<o:p></o:p>That
assistance was not forthcoming.<o:p></o:p>The
evidence suggests that rather than having his house publicly auctioned, the
appellant preferred to dispose of it himself. He accordingly returned to the
respondent and offered it to him for sale. The latter was willing to buy and an
agreement was reached between them. This was reduced into writing and signed by
the appellant. In view of the case which the appellant sought to present
unsuccessfully to the court below, it is necessary to set out the terms of that
agreement. It reads:<o:p></o:p>“I
Charles Ndoley owner of house No. CHE. 41 Tamale, have this 10 January 1973
agreed with or entered into a binding contract with Alhassan Iddrisu of house
No........ Tamale to sell my house No. CHE. 41 situated in Tamale to the said
Alhassan Iddrisu. That I Charles Ndoley have this 10 January 1973 received from
the said Alhassan Iddrisu the sum of two thousand six hundred cedis (¢2,600)
being part-payment of the purchase price. It is hereby agreed between us that
the purchase price should be five thousand cedis.”<o:p></o:p>Upon
receipt of the money, he handed his title deeds, that is the lease, to the
respondent. The evidence shows that the appellant received two further
instalments of the purchase price. This litigation arose because the appellant
apparently repented the agreement and refused or neglected to execute an
assignment of the lease to the respondent. He did not seek or obtain the consent
of the government to do this. It is this conduct on the appellant’s part that
led the respondent to seek in the court below specific performance of the
agreement.<o:p></o:p><o:p>&nbsp;</o:p>When the
appellant was served with the writ he entered an unconditional appearance. As he
did not file a defence, leave was sought and granted to enter interlocutory
judgment against him. In due course, evidence was led and Sarkodee J. feeling
satisfied that the respondent had established his claim, made an order of
specific performance in his favour and granted him other ancillary reliefs.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant sought to have that judgment set aside and in his affidavit in
support, he made a number of factual averments which were denied. On 10 July
1975, that judgment was set aside on a purely procedural point of no substance.
As the appellant was a government officer, service of the writ on him should
have been effected through his most senior officer in accordance with Order 9,
r. 8 (4) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). But the
writ was served on him personally, and though he acknowledged receipt and
entered appearance, it was said failure to comply with that rule was
fundamental. The late Ata-Bedu J. accordingly set the judgment aside and
ordered that “service of the writ together with the statement of claim be
served afresh in accordance with the above rule.” This order was obeyed and a
second service was effected on the appellant.<o:p></o:p><o:p>&nbsp;</o:p>