TAHIRU vs. MIREKU AND ANOTHER [1987]DLHC684

Date	1987-05-08
Suit No.
Citation No.	[1987]DLHC684

AMPIAH J.A.

AYIKOI OTOO FOR THE PLAINTIFF.

ABANKWA FOR THE DEFENDANT.

AGOZO FOR THE CO-DEFENDANT.

[1987]DLHC684
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													<main id="main" class="content" style="min-height: 60rem" >TAHIRU <o:p></o:p>vs. <o:p></o:p>MIREKU AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 615<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:
8
MAY 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">

AYIKOI OTOO 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 0in 0in">

AMPIAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A<o:p></o:p>Some time
in April 1983 the parties agreed to the sale of the defendant’s house No. E
81/15 at Nima, Accra to the plaintiff for ¢250,000. In pursuance of this
agreement, the plaintiff paid to the defendant a total of ¢125,000. Later the
plaintiff went to pay the balance of ¢125,000 to the defendant but the latter
refused on the ground that the plaintiff had delayed in paying up the purchase
price and that he had subsequently resold the house to another person, namely
the co-defendant. The plaintiff being dissatisfied with the defendant’s conduct
took this action against the defendant claiming specific performance of the
contract to sell the house to him and also damages for the breach. The
defendant denied the plaintiff’s claim and counterclaimed for ejectment and
general damages. On 12 March 1986 the co-defendant was joined in the action so
that all the issues in controversy may be effectually and completely
determined. The co-defendant denied any knowledge of the sale to the plaintiff
and claimed that she was a bona fide purchaser for value without notice.<o:p></o:p>On the
pleadings the following issues arose for determination:<o:p></o:p>(1) Whether or not there was any sale of the house to the
plaintiff;<o:p></o:p>(2) Whether time was of the essence to the agreement;<o:p></o:p>(3) Whether the agreement was enforceable in law;<o:p></o:p>(4) Whether the plaintiff paid or offered to pay fully for
the house; and<o:p></o:p>(5) Whether the co-defendant is a purchaser for value
without notice.<o:p></o:p><o:p>&nbsp;</o:p>From both
the pleadings and the evidence, it cannot be denied that the defendant did
agree to sell his house to the plaintiff and did in fact sell it to him. The
defendant admits in paragraph 4 of his statement of defence that the plaintiff
bargained with him and they agreed on the sum of ¢250,000 as the selling price.
The evidence of the first defendant witness, J. K. Dwira, was that the
defendant told him he wanted to sell his house. He informed the plaintiff who
is his friend about this sale and they went and saw the defendant for the sale.
This piece of evidence supports the plaintiff’s contention that it was the defendant
who had made the approach for the sale of the house. I believe the evidence of
the plaintiff and his witness that it was the defendant who had approached the
plaintiff to sell his house to him. In respect of this, an agreement, exhibit A
(receipts and payments table), was prepared. On this was recorded all the
payments made by the plaintiff to the defendant. Even though the defendant
denies signing the receipts, he admits that a total of ¢125,000 was paid to him
as part of the purchase price. He admits that he sent his son, the second
defendant witness, to collect the payments. Even though the second defendant
witness denies having received more than ¢35,000 from the plaintiff, he admits
that the signature on the document (exhibit A) are his. He was not even sure
how much he had received at any point of time from the plaintiff. I do not find
him a very truthful witness. I find that both the defendant and his son, the
second defendant witness, collected the sums which came to ¢125,000 and that
both signed the document. In any case if the defendant himself did not sign, I
find from the evidence that his son signed as his agent. The second defendant
witness admitted there was a sale of the house to the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>It has
been contended by counsel f</main>