TAGOE vs. IDUN [1987]DLCA810

Date	1987-11-26
Suit No.
Citation No.	[1987]DLCA810

ABBAN JA

WUAKU JA

AMPIAH J.A

NII ODOI ANNAN FOR THE APPELLANT.

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT

[1987]DLCA810
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													<main id="main" class="content" style="min-height: 60rem" >TAGOE <o:p></o:p>vs. <o:p></o:p>IDUN <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 583<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 26
NOVEMBER 1987<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">

NII ODOI ANNAN FOR THE APPELLANT. <o:p></o:p>

W. A. N. ADUMUA-BOSSMAN FOR THE RESPONDENT<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">

ABBAN, WUAKU AND AMPIAH JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WUAKU J.A.<o:p></o:p>In about
January 1971 the plaintiff who is the respondent before this court bargained
with the late Emmanuel Okai Tagoe to purchase from the said E. O. Tagoe his
house No. B. 598, Nii Okai Koi Street, Kaneshie, Accra. The purchase price in
those days was for ¢3,000. There was a dispute whether or not the ¢3,000 was to
be paid in a lump sum. There is however evidence that on 15 February 1971 and
20 May 1971, the amounts of ¢400 and ¢1,100 were respectively paid to the late
E. O. Tagoe who accepted them and gave receipts covering the said payments: see
exhibits A and B. The plaintiff said that she attempted making a further
payment of ¢1,000 but found the late E. O. Tagoe too ill at the time to receive
the payment, and not long thereafter he died on 18 September 1971.<o:p></o:p><o:p>&nbsp;</o:p>On
hearing of the death, the plaintiff went to see one Mr. Hammond whom she
described as a relation of the deceased. As a result of what Mr. Hammond had
told her, the plaintiff accompanied by one Mr. Otoo attended the laying in
state of the deceased and there, as custom demands, presented a bottle of
schnapps to the deceased’s relatives to inform them about the transaction
between her and the deceased. Present at the laying in state was Mr. Hammond.
According to the plaintiff the elders agreed to accept the bottle of schnapps,
but were prevented by two young men. The two young men were the sons of the
deceased vendor. These two young men later promised to refund the amounts paid
by the plaintiff. They defaulted, so the plaintiff complained to the Gbese
Mantse. Before the Gbese Mantse the two young men asked for time to pay and
were given up to 8 February 1972. The plaintiff says that on 8 February 1972,
the two young men brought ¢400, with a promise to refund the balance by monthly
instalments of ¢40; this she refused to accept and therefore resorted to this
action.<o:p></o:p>The
plaintiff says that she has brought the action against the defendant, a
paternal half-brother to the deceased E. O. Tagoe, because at the laying in
state, the defendant sat at the head of the table with the other relatives of
the deceased and had by his conduct put himself forward as the head of the
family. By her writ of summons she claims:<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">“(1)
Specific performance of a verbal contract made in or about February 1971 for
the absolute sale or assignment to the plaintiff of the defendant’s late father
Emmanuel Okai Tagoe’s house No. B. 598, Nii Okai Koi Street, Kaneshie Estate,
Accra (The emphasis is mine.) <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">(2) Mesne
profits at the rate of ¢40 per month until execution of deed of conveyance or
assignment in favour of the plaintiff. <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">(3) Such
further or other relief as in the circumstances may be just.”<o:p></o:p><o:p>&nbsp;</o:p>In
paragraph (1) of the statement of claim, the defendant was described as the
head and lawful representative of the late Emmanuel Okai Tagoe’s family of Asere
division, Accra and was sued as such.<o:p></o:p>In
paragraph (5) of the statement of claim the plaintiff pleaded 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">“(5) On
18 September 1971 the said deceased died intestate and at a meeting of the said
family (to which he had belonged) held at Gbese Mantse’s palace under the
chairmanship of Nii Okai Pesemaku III, Gbese Mantse, the plaintiff and the
defendant assisted by witnesses in accordance with the applicable Ga Mashie
custom presented a bottle of liquor and introduced herself to the said family as
a debtor of the said deceased with respect to the balance of the said price of
the said house.”<o:p></o:p><o:p>&nbsp;</o:p>