SAKYI vs. BASARE [1985]DLCA997

Date	1985-05-22
Suit No.
Citation No.	[1985]DLCA997

SOWAH J.S.C.

ABBAN JA

OSEI-HWERE J.A.

KOFI ACQUAH FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE PLAINTIFF.

[1985]DLCA997
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SAKYI <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 638<o:p></o:p>

DATE:
22 MAY 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

KOFI
ACQUAH FOR THE APPELLANT. <o:p></o:p>

NO
APPEARANCE BY OR ON BEHALF OF 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 0in 0in">

SOWAH J.S.C., ABBAN AND OSEI-HWERE JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. delivered the judgment of the court. On 27 March 1985 we allowed this
appeal and set aside the judgment of the trial High Court and in place thereof
we gave judgment to the first defendant on his counterclaim. We reserved our
reasons which we proceed to give now.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s claim indorsed on his writ was for:<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">“an order
of the court setting aside the purported sale of house No 23, Block VII Old
Tafo West, formerly house No 28, Block 2, Old Tafo West, Kumasi, by the second
defendant to the first defendant of which purported sale was without the
knowledge and consent of the plaintiff, the owner of the said house and
therefore unlawful.”<o:p></o:p><o:p>&nbsp;</o:p>His
plaint (as pleaded) was that in 1960 the second defendant, his cousin, informed
him that one Opanin Adade wanted to sell the disputed house which, at the time,
was unroofed and contained six rooms. He provided the money to the second
defendant for the purchase of the plot including the uncompleted house and he
further supplied various sums of money to the second defendant to complete the
house. He put the second defendant in charge of the construction because he
lived at Konongo whilst the second defendant lived at Old Tafo, Kumasi.<o:p></o:p>On
completion of the house he allocated some rooms to the second defendant to take
care of the house and to collect rents from the tenants on his behalf. In 1968
the plaintiff left Ghana to seek medical care for his wife and on his return in
1975 or 1976 the second defendant told him that he had sold the house to the
first defendant. He protested and pressed the second defendant to redeem the
house for him. When he failed to do so he mounted his action against the first
and second defendants.<o:p></o:p><o:p>&nbsp;</o:p>In
paragraphs 12, 13 and 14 of his statement of claim the plaintiff averred fraud
and illegality as follows:<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">“12
Unknown to the plaintiff, the second defendant and the first defendant had
entered into an agreement conveying the house to the first defendant, and in
the execution of the said conveyance the second defendant had used the name of
the plaintiff, which was Kofi Basare, without his knowledge, and then he, the
second defendant, had thumbprinted as if the thumbprint were that of the
plaintiff. 13 Through this fraudulent means, the payment for the house was
effected without the knowledge and consent of the plaintiff who is the owner of
the house, to the second defendant, and under further pretext that the second
defendant had been affected by the compliance order even though he was a
Ghanaian citizen. 14 The plaintiff maintains that at no time did he authorise
the sale of the house in question, nor was he ever consulted in its sale, and
therefore the conveyance is unlawful.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s evidence-in-chief, although brief, followed in substance the
averments in his statement of claim except that he gave the impression that he
dealt directly with Opanin Adade who prepared documents on the land for him.
Again, he testified that he was away for four years eight months. This will peg
the year of his return to about 19</main>