BASARE vs. SAKYI AND ANOTHER [1987]DLSC721

Date	1987-06-25
Suit No.
Citation No.	[1987]DLSC721

TAYLOR JSC

FRANCOIS J.S.C.

WUAKU JA

AMUA-SEKYI JA

AMPIAH J.A

NANA AKUFO-ADDO FOR THE APPELLANT.

KOFI ACQUAAH FOR THE RESPONDENT.

[1987]DLSC721
																																						<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" >BASARE <o:p></o:p>vs. <o:p></o:p>SAKYI AND ANOTHER <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1987-88] 1 GLR 313<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 JUNE 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">

NANA AKUFO-ADDO FOR THE APPELLANT. <o:p></o:p>

KOFI ACQUAAH 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">

TAYLOR, FRANCOIS JJ.S.C., WUAKU,
AMUA-SEKYI AND AMPIAH JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.S.C.<o:p></o:p>This is
an appeal from the judgment of the Court of Appeal in which a judgment given by
the High Court in favour of Kofi Basare of Konongo, the appellant herein, who
was the plaintiff in the High Court, was unanimously set aside and his action
was dismissed; a counterclaim set up by the first defendant, Kobina Sakyi, who
is the respondent before us was allowed. The appellant (hereinafter referred to
as Kofi Basare of Konongo) now appeals to this court against the said dismissal
of his action. The second defendant, Kofi Basare of Old Tafo alias Malam Kassim
Basare, a brother of Kofi Basare of Konongo, did not enter appearance in this
action instituted jointly against him and Kobina Sakyi by his said brother.<o:p></o:p><o:p>&nbsp;</o:p>To
establish his case, Kofi Basare of Konongo gave evidence on his own behalf and
called only one witness, his own sister, to apparently support his claim.
Speaking for myself it appears to me on a consideration of the circumstances
and the totality of the evidence led by the parties that Kofi Basare of Konongo
and some members of his family would seem to have embarked on a transparent
ploy to use the machinery of the judicial system to defeat the justifiable
demands of justice. For this reason my initial inclination is to peremptorily dismiss
this appeal summarily, for like the Court of Appeal I am also unable to see any
merit whatsoever in the claim of Kofi Basare of Konongo. I have however
reluctantly resisted the temptation to so dismiss this appeal because Kofi
Basare of Konongo, did succeed somehow in persuading the learned trial High
Court judge to give a decision in his favour. In the circumstances, having
regard to his grounds of appeal, the facts the High Court judge utilised in his
favour deserve to be looked into for the purpose of finding out whether the
said facts are capable of legally sustaining the conclusions which found favour
with the learned judge but which were so unanimously impugned by the Court of
Appeal.<o:p></o:p><o:p>&nbsp;</o:p>In order
to resolve the issues raised by this appeal it is, in my opinion, important to
keep in mind two matters: First, it is necessary to appreciate the substantive
facts of the case as were found by the trial judge including in particular the
apparent case against Kofi Basare of Old Tafo, who is not a party to this
appeal but against whom, as I have indicated herein, his brother Kofi Basare of
Konongo ostensibly obtained a High Court judgment. Secondly, it is essential to
advert to the undisputed and unchallenged facts which the trial judge would
seem to have ignored in his judgment. An analysis of these matters will be
quite useful and since it is trite learning that the plaintiff in an action for
land succeeds by the strength of his own case and not on any weakness in the
defendant’s case, the starting point for the exercise will be the claim which
Kofi Basare of Konongo sought to set up at the High Court and the facts found
by the High Court which he led in evidence in proof of his claim. The statement
of claim indorsed on his writ reads:<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">“The
plaintiff’s claim against the defendants is for 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, 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>The High
Court judge’s findings in the first two paragraphs of his judgment are
pertinent. As he put it:<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">“House
No. 23, Block VII, Old Tafo is the centre of controversy in this case. This
house at the time of sale was an uncompleted swish building which was
originally owned by one Opanin Adade, now deceased. When the late Adade decided
to sell this property the second defendant, admittedly a relation of the
plaintiff, carried the good news to the plaintiff who was at the time resident
in Konongo. The plaintiff claimed he bought the property. He did so allegedly
with the second defendant acting as his agent. The plaintiff said the second
defendant was funded by him to complete the construction and the second
defendant did. Thereafter the second defendant acted as caretaker of the house
for the plaintiff. He collected the rent for him and in return was allowed by
the plaintiff to live in two of the rooms free of rent. About 1968 the
plaintiff had to travel to the north of Ghana from where he hails to treat his
sick wife. This sojourn was long and </main>