KWETEY vs. BOTCHWAY AND ANOTHER [1979]DLHC1081

Date	1979-10-25
Suit No.
Citation No.	[1979]DLHC1081

CECILIA KORANTENG-ADDOW J.

OPPONG FOR THE PLAINTIFF.

KUDJAWU FOR THE FIRST DEFENDANT.

DR. A. K. FIADJOE FOR THE SECOND DEFENDANT-COUNTERCLAIMANT.

[1979]DLHC1081
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													<main id="main" class="content" style="min-height: 60rem" >KWETEY <o:p></o:p>vs. <o:p></o:p>BOTCHWAY AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1978] GLR 722<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:
25 OCTOBER 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">

OPPONG FOR THE PLAINTIFF.<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 1.0pt 0in">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>This is a
counterclaim filed at the instance of the second defendant, Cecilia Kwetey. She
claims as follows:<o:p></o:p>“(i) A
declaration of title to fishing boat No. T.F. 298. <o:p></o:p>(ii) An
order for the recovery of possession of the said boat. (iii) An order for
perpetual injunction against the plaintiff and the first defendants, their
servants or agents from interfering with the said boat in a manner inconsistent
with the plaintiff’s title. <o:p></o:p>(iv) An
order for specific performance and/or damages for breach of contract of sale
against the first defendants.<o:p></o:p>&nbsp;(v) Damages for the wrongful detention of the
said boat against the first defendants. <o:p></o:p>(vi)
Damages for loss of use of the said fishing boat.”<o:p></o:p><o:p>&nbsp;</o:p>Some
salient points in the facts of this case are buried in the records of the first
defendants, the Agricultural Development Bank, and in the secret corners of the
minds of the officials of the bank. Some documents which would have shed light
on the case were not tendered, and top officials of the bank called at the
instance of Kwetey and who could have given some information about this
transaction were evasive and tried to be as non-committal as they could be in
the delivery of their evidence. It was obvious that they deliberately withheld
as much information as they could. Nor were they forthright in the little they
were prepared to divulge. The circumstances whereby the second defendant
secured the alleged sale of the boat T.F. 298 to herself are curious, and the
reticence of the bank officials who actively aided her to secure the contract
should excite anybody’s curiosity. The bank did not call any evidence. The
managing director and the operations manager of the bank were both called at
the instance of Kwetey.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The facts
culminating in this case so far as I can gather from the evidence and
undisputed parts of the pleadings are these: By a hire-purchase agreement dated
30 June 1966, the plaintiff in the original suit, Otema Botchway, hired the
vessel, which was registered as No. T.F. 298, from the Boatyard Division of the
Ghana Industrial Holding Corporation. After some time the engine broke down,
and she took a loan from the Agricultural Development Bank, the first
defendants, for the purchase of a new engine. The terms of that loan transaction
could not be gleaned from the evidence because the borrower, Otema Botchway, an
elderly woman of 65, and who is illiterate, could not remember all the terms
but she did remember that she secured the loan with her house; the managing
director of the Agricultural Development Bank who was subpoenaed by the second
defendant was just evasive. In a case in which he had been subpoenaed and asked
to produce the mortgage deed on the vessel, he said that he did not remember
anything “off-hand.” Dr. Agyekumhene, who was in charge of the operations
department which dealt with matters of this kind deposed that his knowledge of
the vessel T.F. 298 “centres only around the rehabilitation exercise.” The
engine which the plaintiff purchased was second-hand, and it broke down in no
time. It would appear that the Agricultural Development Bank had financed
similar projects which had broken down so the ba</main>