YAW OPPONG vs. CHARLES ANARFI [2009]DLCA6786

Date	2009-03-26
Suit No.	CIVIL APPEAL NO: HI/249/06
Citation No.	[2009]DLCA6786

QUAYE J.A. – (PRESIDING)

KANYOKE J.A.

BROWN (MRS.) J.A.

MR. YAW BOAFO FOR PLAINTIFF/APPELLANT

MR. DEI KWARTENG FOR DEFENDANT/RESPONDENT

[2009]DLCA6786
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													<main id="main" class="content" style="min-height: 60rem" >YAW OPPONG<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>CHARLES
ANARFI<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO: HI/249/06&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: 26TH MARCH 2009<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. DEI KWARTENG FOR
DEFENDANT/RESPONDENT <o:p></o:p>

QUAYE J.A. – (PRESIDING), KANYOKE
J.A., BROWN (MRS.) J.A.<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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</div>KANYOKE,
J.A. <o:p></o:p>The
litigation in this case commenced with the issue of a writ of summons by the
plaintiff/appellant hereinafter referred to as the Appellant at the High Court,
Kumasi on the 6th day of June 2006 against the defendant/respondent hereinafter
referred to as the Respondent, seeking the following relief: <o:p></o:p>“An
order for the defendant to yield vacant possession and handover House No. Plot
35 Block AB Patasi West, Kumasi to the plaintiff.” <o:p></o:p>The
appellant lost the action, hence the appeal to this court. The facts of the
case are these: <o:p></o:p>Both
the appellant and the respondent are business men dealing in second hand
clothes and both live in Kumasi. It is alleged by the respondent that they are
also good friends though this has been denied by the appellant. Somewhere in or
about March 2003, the respondent told one Mr. Andy Kofi Owusu Ansah, also a
secondhand clothes dealer in Kumasi that he wanted to sell his House No. Plot
35 Block AB West Patasi, Kumasi and solicited the help of the said Owusu Ansah
to assist him get a buyer for the house. The respondent took Mr. Owusu Ansah to
the house in question to inspect it. Later when the appellant came from Cote
D’ivoire where he sojourns to sell his goods Mr. Owusu Ansah informed him (the
appellant) of the respondent’s intention and entreated the appellant to buy the
house. The appellant told Mr. Owusu Ansah that he too had already been informed
by one Mr. Paa Solo of the respondent’s intention to sell his house. The
appellant expressed his desire to buy the house and this was communicated to
the respondent by Owusu Ansah. Following this, the appellant was taken to the
house in question by the respondent for inspection in the absence of Mr. Andy
Kofi Owusu Ansah. After negotiations between the appellant and the respondent,
the respondent agreed to sell and the appellant also agreed to buy the house
for four hundred million (¢400,000,000.00) old cedis or forty thousand
(Gh¢40,000.00) new Ghana cedis. The parties accordingly reduced their
intentions into writing in a document labeled “Sale Agreement.” This document
was signed by both the appellant and the respondent and witnessed by Mr. Andy
Kofi Owusu Ansah and the wife or former wife of the respondent, Madam Freda
Buckman. This was after the appellant had returned to Cote D’ivoire and came
back to Kumasi two weeks later with some CFA, changed same into cedis and paid
the full forty thousand Ghana cedis (Gh¢40,000.00) to the respondent in the
presence of Mr. Owusu Ansah. Upon the execution of the “Sale Agreement” the
respondent pleaded for a grace period of six months to vacate the house and
hand over same to the appellant. The respondent however failed and or refused
to vacate the house and hand over some to the appellant upon the expiration of
the six months grace period despite repeated demands. These are the facts
averred in the appellant’s statement of claim. <o:p></o:p>For
his part the respondent admits signing the “Sale Agreement” but contends that
the Sale Agreement was prepared by the appellant’s agent, Mr. Andy Kofi Owusu
Ansah who couched its language in such a manner to appear that he had sold his
House No. Plot 35 Block AB West Patasi, Kumasi to the appellant for forty
thousand Ghana cedis (Gh¢40,000.00) whilst in fact and in truth he had only
obtained a loan or financial assistance of the amount from the appellant. The
respondent further averred that it was Mr. Andy Kofi Owusu Ansah who paid the
forty thousand Ghana cedis (Gh¢40,000.00) to him in bits and that at the
commencement of the action there was still a balance of thirty thousand cedis
(¢30,000.00) to be paid to him. The respondent therefore denied that he had
sold the house to the appellant, and that he &nbsp;was paid the full forty thousand Ghana cedis
(Gh¢40,000.00) at a go by the appellant. He further pleaded and contends that
the document dubbed “Sale Agreement” is not as it says on its face but that the
transaction between him and the appellant was in fact a loan transaction. <o:p></o:p>At
the close of the pleadings the main issue raised among others which the trial
judge had to deal with was issue I set out in the summons for direction as
follows: <o:p></o:p>