AYIKU ASARE vs. TETTEH TOTIMEH & PATRICK ADDO [2004]DLCA6650

Date	2004-04-30
Suit No.	CIVIL APPEAL NO. 112/2002
Citation No.	[2004]DLCA6650

OWUSU J.A. [PRESIDING]

ADDO J.A.

ANIN YEBOAH J.A

AMOS BUERTEY FOR APPELLANT

WILLIAM KOBB-LUMOR FOR RESPONDENT

[2004]DLCA6650
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													<main id="main" class="content" style="min-height: 60rem" >AYIKU ASARE<o:p></o:p>vs.<o:p></o:p>TETTEH TOTIMEH &amp;
PATRICK ADDO<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. 112/2002&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 30TH APRIL, 2004.<o:p></o:p>

WILLIAM
KOBB-LUMOR FOR RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ADDO, J.<o:p></o:p>This
appeal bristles with difficulty in view of the fact that the parties herein are
illiterates. <o:p></o:p>This
is an appeal from the decision of Charlotte Manteaw Circuit Judge, Tema dated
27th July, 1993. The Appellant, dissatisfied with the decision of the court,
has come suppliant to this Honourable court to ask us to set aside the judgment
of the court below and to enter judgment for him.&nbsp; His sole ground of Appeal filed on 23-8-1993
was that the judgment is against the weight of evidence.&nbsp;&nbsp; On 21st June 2002 additional grounds of
Appeal filed are the following:— <o:p></o:p>1.&nbsp;
That the learmed judge erred in holding that the transaction between the
Appellant and the 1st respondent being a sale of house has to conform with the
provisions of the conveyancing Decree 1975 [NRCD 173] and that absence of
writing evidencing the transaction was fatal to the appellant's case. <o:p></o:p>2. That the learned judge erred in
holding that the Appellant's failure to call Kumedzino was fatal to the
appellant's case. <o:p></o:p>3.&nbsp;
That the learned judge erred in holding that the terms and conditions
under which the 1st Respondent put the plaintiff in possession were not clear. <o:p></o:p>4. That the learned judge erred in
holding that even though the plaintiff was in possession of the house, it has
not been undisturbed possession. <o:p></o:p>The
Appellant avers that twenty years before he brought the action the 1st
Respondent approached him for a loan to repair his tractor.&nbsp; The 1st Respondent subsequently sought more
loans from which all came to ¢34,000.00 and the 1st Respondent unable to pay
him offered to sell his house number C46 F at Ashaiman to him.&nbsp; So in all the Appellant paid ¢34,000.00 for the
1st Respondent's house at Ashaiman. The 1st Respondent did not give the
Appellant a receipt but rather gave him a photograph of the 1st Respondent to
evidence the transaction.&nbsp; The 1st
Respondent later introduced the appellant to the tenants in the house as the
new landlord and the appellant had been in possession since the sale of the
house to him.&nbsp; The Appellant put tenants
in the house, gave them rent cards, was collecting rent from them some eighteen
years before the commencement of the action in 1981.&nbsp; The Appellant also paid property rate on the
house to TDC.&nbsp; The 1st Respondent on the
other hand denied the assertion of the Appellant.&nbsp; He said he put the appellant in occupation as
care-taker and to collect rent on his behalf and it is during his absence that
the appellant took advantage and posed as owner of the property and so he
sacked him from the house but in his absence he returned to it.&nbsp; The 1st respondent says that it is trite
learning that all transactions relating to land must be evidenced in writing
and cites sections 1 and 2 of conveyancing Decree 1973 [NRCD 175] to buttress
the point.&nbsp; He said the property was
transferred to the 2nd Respondent in writing and not the Appellant.&nbsp; The Respondents submit that the Appellant's
case that he was introduced to two tenants about the change of ownership can
not be tenable as the said witnesses did not witness the sale and their
evidence cannot be relied on as evidence of sale to the appellant.&nbsp; The Respondent avers that from the evidence
on record it cannot be true that the Appellant has been in undisturbed
possession. <o:p></o:p>The
Appellant says he had exercised sufficient acts of possession on the house
namely:— <o:p></o:p>a)&nbsp;&nbsp;&nbsp; he engaged PW1 to collect the rents on his
behalf. <o:p></o:p>b)&nbsp;&nbsp;&nbsp; he gave the renants cards. <o:p></o:p>c)&nbsp;&nbsp;&nbsp; he was paying rate on the house to TDC. <o:p></o:p>d)&nbsp;&nbsp;&nbsp; he moved in and stayed in the house for
over 15 years before the action paying rent to nobody. <o:p></o:p>That
these acts taken together constitute sufficient acts of part performance of the
sale agreement on the part of the appellant as to bring the transaction within
the exemption created by section 3 [2] of the Conveyancing Decree 1975 [NRCD
1751].&nbsp; In the case of Campbell and
another versus Mensah [1977] 2G.L.R. 98, the Appeal Court laid down the
conditions that must exist for the courts to grant specific performance of an
oral contract.&nbsp; The court said:— <o:p></o:p>"in order to withdraw the
contract from the operation of the statute, several circumstances must
occur.&nbsp; Firstly, the acts of part -
performance must be such as not only to be referable to a contract such as the
alleged but to be referable to no other.&nbsp;
Secondly, they must be such as to render it fraud in the defendant to
take advantage of the contract not being in writing.&nbsp; Thirdly, the contract to which they refer
must be such as in its own nature is enforceable by the Courts and Fourthly,
there must be proper parole evidence of the contract which is let in by the
acts of part performance." <o:p></o:p>