MATHEW ALEXANDER KWAKYE vs. MICHAEL KWAME OFORI AND BUGRI NAABU GROUP OF COMPANIES [2007]DLCA6504

MATHEW ALEXANDER KWAKYE vs. MICHAEL KWAME OFORI AND BUGRI NAABU GROUP OF COMPAN... [2007]DLCA6504

Date	2007-11-22
Suit No.	H1/84/2006
Citation No.	[2007]DLCA6504

ARYEETEY JA [PRESIDING]

KANYOKE JA

APALOO JA

MR. MINKA PREMO FOR APPELLANT.

MR. KWEKU PAINTSIL FOR RESPONDENT

[2007]DLCA6504
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													<main id="main" class="content" style="min-height: 60rem" >MATHEW
ALEXANDER KWAKYE<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MICHAEL
KWAME OFORI AND BUGRI NAABU GROUP OF COMPANIES<o:p></o:p>(DEFENDANTS/RESPONDENT)<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;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">H1/84/2006&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; &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: 22ND
NOVEMBER, 2007<o:p></o:p>

MR.
KWEKU PAINTSIL FOR 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;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ARYEETEY JA [PRESIDING],
KANYOKE JA, APALOO JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>KANYOKE,
JA <o:p></o:p>This
appeal has emanated from the judgment of the High Court, Accra (Coram: Mr.
Justice S.T. Farkye, Justice of Appeal (as he then was) sitting as an
additional High Court Judge, wherein the Court dismissed the
plaintiff/appellant's (hereinafter the plaintiff) action and entered judgment
for the 2nd defendant/respondent (hereinafter called the 2nd defendant) upon
its counterclaim; ineffect declaring title in House No. 171, Airport West
Residential Area, Accra in the 2nd defendant. The said house (herein the
disputed property) originally belonged to the 1st defendant. However in or
about March 1985 the 1st defendant by a Deed of Assignment sold and or
transferred all his interests in the disputed property to the 2nd defendant for
a sum of ¢5,700,000.00. Subsequently in or about July or August 1985 the 1st
defendant purported to sell the same disputed property to the plaintiff. This
resulted in a ranging controversy between the plaintiff and the 2nd defendant
over ownership of the disputed property. <o:p></o:p>This
also resulted in the court action initiated by the plaintiff against both
defendants in the High Court, Accra. In the course of the litigation the
plaintiff himself died and was substituted by his executors, Mrs Janet Kwakye
and Dr. Adjei Marfu. <o:p></o:p>By
his amended statement of claim filed on 24th April 1993, the plaintiff averred
that somewhere in 1985 the 1st defendant sold the disputed property to him for
the sum of ¢5,250,000.00 payable by instalments. The 1st defendant did not
however disclose to the plaintiff that he had already sold the disputed
property to the 2nd defendant. The plaintiff only got to know this when he was
about to pay the last instalment of ¢3,000,000.00 to the 1st defendant.
According to the plaintiff when he confronted the 1st defendant the latter
admitted selling the property to the 2nd defendant but explained that the 2nd
defendant had expressed his disinterest in the disputed property and had
requested a refund of the sum of ¢2,810,000.00 being the part-payment it made
towards the purchase of the property. Based on this disclosure the plaintiff
and the 1st defendant agreed to refund to the 2nd defendant the said amount of
¢2,810,000.00 out of the last instalment of ¢3,000,000.00 left to be paid by
the plaintiff to the 1st defendant. According to the amended statement of claim
on a certain appointed day the plaintiff and the 1st defendant went to the
office of the 2nd defendant where a refund of ¢2,810,000.00 was made to the 2nd
defendant through its Managing Director Mr. Bugri Naabu (DW1) who instructed
Mr. Tony Kwakye 2nd defendant's Solicitor to issue a receipt in
acknowledgement. Mr. Tony Kwakye (PW1) issued the receipt (exhibit A). <o:p></o:p>According
to the plaintiff, Mr. Bugri Naabu also demanded and received from him an amount
of ¢100,000.00 for the return to the plaintiff the Title Deeds of the disputed
property. All this took place in 1985. The plaintiff alleged further that 2nd
defendant did not keep to its part of this agreement but rather encouraged the
plaintiff or sat by for the plaintiff to make substantial developments to the
disputed property to his detriment hence the action. <o:p></o:p>The
plaintiff testified and called two witnesses in support of his claims. The
evidence of the plaintiff is not substantially different from the averments in
the amended statement of claim. <o:p></o:p>The
1st defendant, who was represented throughout the proceedings by a counsel
filed a statement of defence on 23rd May 1996 which was essentially an
admission of the plaintiff's claims and created the impression that it was the
plaintiff rather than the 2nd defendant who was the owner of the disputed
property by virtue of purchase of same from him (the 1st defendant). The 1st
defendant did not however turn up in court to testify despite several
opportunities given to him including the court's indulgence to move to his
house to take his evidence which was spurned by him. <o:p></o:p>The
case of the 2nd defendant was also averred in an amended statement of defence
and counter claim filed on 12th May 1998. In this amended statement the 2nd defendant
emphatically denied the plaintiff's claim. The 2nd defendant insisted that it
purchased the disputed property from the 1st defendant for the sum of
¢5,700,000.00 by instalments. The first payment of ¢3,000,000.00 was made by a
banker's draft which was tendered during the trial as exhibit 2. The 2nd
defendant averred that the sale transaction between it and the 1st defendant
was duly confirmed by the executi</main>