AGYEMANG vs. WIREKO AND ANOTHER [1979]DLHC1022

Date	1979-07-31
Suit No.
Citation No.	[1979]DLHC1022

APATU-PLANGE J.

ASANTE-TANNOR FOR THE PLAINTIFF.

ASHER FOR THE FIRST DEFENDANT.

NO APPEARANCE BY OR FOR THE SECOND DEFENDANT.

[1979]DLHC1022
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													<main id="main" class="content" style="min-height: 60rem" >AGYEMANG <o:p></o:p>vs. <o:p></o:p>WIREKO AND ANOTHER<o:p></o:p>[HIGH COURT, KOFORIDUA]<o:p></o:p>&nbsp;[1980] GLR 478<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:
31 JULY 1979<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">

ASANTE-TANNOR FOR THE PLAINTIFF.<o:p></o:p>

NO APPEARANCE BY OR FOR THE SECOND DEFENDANT.<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">

APATU-PLANGE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ROGER KORSAH J.<o:p></o:p>The
plaintiff by his writ of summons seeks an order for specific performance of an
agreement made between him and the defendant for the sale to him of the
defendant’s house. This property is known and styled house No. A.F. 5, and is
situate at Ahenfie Street, Bekwai in Ashanti. He also claims in the
alternative, damages for the breach of the said agreement by the defendant.
With leave of the court, the said writ and statement of claim were served on
the defendant together with a notice of an application for interim injunction
on 7 February 1978. The application for interim injunction was for an order to
restrain the threatened sale of house No. A.F. 5 in breach of the agreement
between the parties. It is this application for interim injunction which is now
under consideration.<o:p></o:p><o:p>&nbsp;</o:p>It
appears that in or around August 1977, the defendant, who was in urgent need of
money, agreed to sell, and the plaintiff agreed to buy, house No. A.F. 5,
Ahenfie Street, Bekwai, for the sum of ¢30,000. On 30 August 1977, the
plaintiff paid to the defendant a sum of ¢4,000 in part-performance of this
agreement. Subsequent payments were made by the plaintiff to the defendant in
performance of the agreement, and by the end of October 1977, the defendant
issued to the plaintiff a receipt as follows:<o:p></o:p>“Receipt
I, the undersigned William Kwasi Donkor acknowledge the receipt of ¢16,000
(Sixteen thousand cedis) being part-payment of the purchase price of (Thirty
thousand cedis) ¢30,000 in respect of house No. A.F. 5, Ahenfie Street (Old
C.F.A.O.), Bekwai. This sale of the entire building and its surrounding plot
will not include the portion presently occupied by the vendor’s nephew Mr.
Dominic Ofosu. However, in the event of Mr. Dominic Ofosu offering his property
for sale the said Mr. Ofosu shall give the purchaser Mr. Agyei-Acheampong the
first option to buy the said land including the property thereon. It is our
understanding that the present measurement of the land now occupied by the
vendor’s nephew is 60 feet by 80 feet, the exact dimension would be delineated
by a site plan yet to be drawn up. W. K. Donkor.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>This is
the only written memorandum of the agreement extant. It is common ground
between the parties that the property was the subject of a mortgage debt of
which ¢7,411 was still outstanding.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant contends that it was a condition of the agreement that the sale was
to be completed when the property had been redeemed and the title deeds could
be handed over to him upon full payment of the purchase price. The respondent,
on the other hand, asserts that completion of the sale was subject to the
applicant going to the bank, either alone or in the company of the respondent,
to pay off the outstanding mortgage debt. Therefore, when by 18 November 1977,
the applicant had failed or neglected to pay off the outstanding bank loan of
¢7,411 he, the respondent, commenced negotiations with other persons for the
sale of the property.<o:p></o:p><o:p>&nbsp;</o:p>It would
indeed be premature and wrong for me to pronounce, without hearing evidence,
that the one or the other version was the agreement between the parties.
However, an averment in paragraph (9) of the plaintiff ‘s statement of claim
that the respondent said, “.. . unless the plaintiff was prepared to pay an
additional sum of ¢10,000 over and above the agreed purchase price he would not
perform his side of the said agreement,” coupled with the admission by the
defendant that he had entered into a second agreement with a Mr. J. P. Cobbina
to s</main>