KOTOKOLI AND ANOTHER vs. SARBAH [1980]DLHC1591

Date	1980-05-22
Suit No.
Citation No.	[1980]DLHC1591

CECILIA KORANTENG-ADDOW J.

GOODHEAD FOR THE APPELLANT.

OPPONG FOR THE RESPONDENT.

[1980]DLHC1591
																																						<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" >KOTOKOLI AND ANOTHER <o:p></o:p>vs. <o:p></o:p>SARBAH<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 496<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:
22
MAY 1980<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">

GOODHEAD 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>The
issues for determination in this case are: firstly whether the first appellant
had title in the house to transfer to the respondent, and secondly, whether or
not the contract for the sale of house No. E 44/15 by the first appellant to
the respondent was rescinded, and if not whether it should be set aside. The
trial court resolved these issues in favour of the respondent and the
appellants have appealed to this court on the main ground that the case of the
appellant was not considered by the trial court.<o:p></o:p><o:p>&nbsp;</o:p>Some time
in May 1970 the first defendant-appellant (hereinafter called the defendant)
offered house No. E44/15 at Nima, Accra, to the plaintiff-respondent
(hereinafter called the plaintiff) for sale at a price of ¢600. The plaintiff
agreed to buy and paid the full purchase price for which a receipt dated 31 May
1970 was issued by the defendant. The defendant asked to be allowed to occupy
two rooms in the house (which would have been let for ¢3 per room) rent-free
for three months from 1 June 1970 to enable the defendant to look for an
alternative accommodation. At the end of the three months’ grace period, the
defendant sold the house to another person for ¢1,200, double the price paid by
the plaintiff. The plaintiff felt this was a double-cross and made a complaint
of fraud against the defendant to the police. The matter was settled and the
defendant was advised to refund the money to the second purchaser.
Subsequently, the plaintiff took this action for ejectment and recovery of
possession of the two rooms occupied by the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
father of the defendant applied and joined in the action as a co-defendant
claiming title to the whole premises, and in a counterclaim he asked for the
sale by his son, the defendant, to be set aside. The defendant conceded to the
sale agreement, but he said he had no authority to sell. He said the house belonged
to his father, the co-defendant, who is a Togolese. On the coming into force of
the Aliens Compliance Order, his father left Ghana for Togo, so he sold the
house for fear that the government might pull it down or seize it.
Subsequently, when the father was allegedly informed about the step he had
taken, the father ordered that he should refund the purchase price to the
purchaser, because he had no intention to sell.<o:p></o:p><o:p>&nbsp;</o:p>On the
evidence presented to the court, the learned magistrate accepted the
plaintiff’s case; he found that the defendant was the owner of the property and
that he had sold it as his own property to the plaintiff. He accordingly gave
judgment for the plaintiff and ordered recovery of possession in his favour.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Goodhead, counsel for the appellant, has assailed the reasons which the learned
magistrate gave for preferring the plaintiff’s case to that of the defendant.
Counsel argued the additional grounds of appeal. The first reads, “That the
trial magistrate erred in holding that the non-production of a site plan to a
land in Nima is fatal to the defendant’s and co-defendant’s case.” He contended
that there was evidence from the land owner who sold the land on which the
house in question was built. This witness was Bede.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
submitted that in view of Bede’s evidence, a finding of fact should have been
made that the co-defendant was the owner of the land, and also the house on it.
Counsel for the plaintiff argued contra. Bede’s evidence was that he was an
agent for the landowner and that he sold the land to the co-defendant and no
receipt or memorandum was issued in evidence of the sale. The evidence on the
side of the plaintiff on this issue was given by Yaya Kotokoli, whose niece was
married to the defendant. He said he accompanied the defendant and introduced
him to Bede for the sale of the land to the defendant. This man had lived in
Nima for 27 years, and be</main>