OBAAPANYIN NKETAA ADWOA vs. MICHAEL DONKOR [2012]DLCA3618

Date	2012-05-17
Suit No.	SUIT NO. CS21/2003
Citation No.	[2012]DLCA3618

MARFUL-SAU JA PRESIDING

ADJEI JA

C.J.HONYENUGA JA.

STEPHEN SAH ESQ FOR THE PLAINTIFF/RESPONDENT

CAB ADDAE ESQ FOR THE DEFENDANT/APPELLANT

[2012]DLCA3618
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													<main id="main" class="content" style="min-height: 60rem" >OBAAPANYIN NKETAA ADWOA<o:p></o:p>vs.<o:p></o:p>MICHAEL DONKOR<o:p></o:p>&nbsp;[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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SUIT
NO. CS21/2003&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: 17TH
MAY, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>STEPHEN SAH ESQ FOR THE PLAINTIFF/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CAB
ADDAE ESQ FOR THE DEFENDANT/APPELLANT<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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</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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</div>DENNIS ADJEI, J.A.<o:p></o:p>On
16th February, 2010 the High Court Sefwi Wiawso dismissed&nbsp; all the reliefs&nbsp; endorsed on the Plaintiff’s&nbsp; writ&nbsp;
of&nbsp; summons&nbsp; and entered judgment&nbsp;&nbsp; for the defendant&nbsp; for all these&nbsp;
reliefs.&nbsp; The court however,&nbsp; gave judgment&nbsp;
for the plaintiff in respect&nbsp;&nbsp; of
reliefs&nbsp; (a) and (c) of the counter claim
and further gave judgment&nbsp; in respect
of&nbsp; relief (b) of the Counter claim
in&nbsp; favour of the defendant. The
defendant/appellant aggrieved by the decision of the High Court Sefwi Wiawso
filed an appeal to this court on 4th May, 2010 praying for&nbsp; the reversal of the&nbsp; judgment .<o:p></o:p>The
brief facts of the case were that the Plaintiff/Respondent hereafater referred
to in this appeal ‘as Respondent’ gave&nbsp; a
parcel of land&nbsp; to the
Defendant/Appellant hereinafter&nbsp; referred
to in this&nbsp; appeal as&nbsp; appellant to&nbsp;
cultivate on abunu tenancy. After the cocoa had matured the parties
herein partitioned the farm into two and&nbsp;
each of them took his/her portion. It came to the notice of the&nbsp; Respondent that the Appellant was&nbsp; selling his portion of the&nbsp; farm to a&nbsp;
prospective buyer and the Respondent dissatisfied with that decision&nbsp; lodged a complain with the paramount chief of
Aowin Traditional Council at Enchi . The chief&nbsp;
and his&nbsp; elders heard the
complaint and came to the conclusion that the Respondent should be given the
first option to buy as ownership of the land on which the cocoa trees were
situate was vested in her. The Appellant offered to sell it to Respondent at
¢20,000,000(GH¢2,000.00) and the&nbsp;
Respondent also accepted&nbsp; to buy
it. The Respondent made a part payment&nbsp;
of GH¢550.00 to the Appellant and according&nbsp; to the&nbsp;
Appellant the remaining amount of GH¢1,450.00 was to&nbsp; be paid to him by the Respondent&nbsp; within two weeks. The Respondent&nbsp; too said that the transaction took place in August
and she was supposed to have fully paid the remaining amount&nbsp; to the Appellant within two months, that was
in October. Another pertinent issue raised by the Respondent was that in
accordance with the custom of the&nbsp; people
of &nbsp;Aowin whenever a stranger sells land
in the area, the&nbsp; Paramount chief is
entitled to one third of the purchase price and by virtue of that she paid one
third of the purchase price&nbsp; of the
Respondent’s Cocoa farm to the Paramount chief of Aowin. The&nbsp; Appellant however disagreed with the
Respondent and said that the total amount of GH¢ 2,000.00 was to be paid to him.<o:p></o:p>The
grounds of appeal filed in the Appellant are as follows:<o:p></o:p>“(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That
the judgment is against the weight of evidence on record.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned Judge erred in&nbsp; law when he found
for Plaintiff/Respondent&nbsp; inspite&nbsp; of&nbsp;
overwhelming evidence that Plaintiff/Respondent had not paid for
the&nbsp; disputed&nbsp; cocoa farm and<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned&nbsp; High Court Judge erred in
law&nbsp; when &nbsp;he ordered that plaintiff/ Respondent&nbsp; should pay&nbsp;
that balance&nbsp; of the purchase
price&nbsp; only after the judgment&nbsp; complained&nbsp;
of, when on the face&nbsp; of the
pleadings and evidence in court Plaintiff/Respondent was in breach of the
tenancy (abunu) agreement between the two parties”.<o:p></o:p>The
ground 1 of the&nbsp; appeal is that the
judgment is against the weight of evidence on record. By this&nbsp; the Appellant is inviting&nbsp; this court&nbsp;
to&nbsp; rehear the appeal and&nbsp; satisfy itself that&nbsp; the trial&nbsp;
High Court&nbsp; Judge did&nbsp; not discuss the facts and the&nbsp; law in&nbsp;
matter in accordance&nbsp; with law and
the judgment should be reversed. See the&nbsp;
case of DJIN VS MUSAH BAAKO [2007-2008]1 SCGLR 686. One of the&nbsp; reasons&nbsp;
underlying&nbsp; the Appellant’s
position that the&nbsp; judgment&nbsp; is against the weight&nbsp; of evidence&nbsp;
on record&nbsp; is that the trial Judge
should have concluded that the&nbsp;
transaction, the subject matter of the sale was not in writing and
it&nbsp; therefore offends section 2 of the
Conveyancing Act, NRCD 175. Section 2 of the&nbsp;
Conveyancing&nbsp; Act provides&nbsp; that no transfer of an interest in land shall
be unenforceable unless it is&nbsp; evidenced
in writing&nbsp; and signed&nbsp; by the person against&nbsp;&nbsp; whom the&nbsp;
contract is to be proved or by&nbsp; a
person&nbsp; authorized by him to sign.&nbsp; In the&nbsp;
case of&nbsp; DEEGBE VS NSIAH and ANOTHER
[1984-86] 1 GLR 545 , the Court of Appeal held that&nbsp; specific&nbsp;
performance will not lie in a contract which is not evidenced in
writing. The court at page 550 held thus:<o:p></o:p>“For
the plaintiff to succeed in Court he ought to have produced a document
evidencing the cont</main>