JOSEPH KITIWAH ATUTEY vs. ISAAC MASIAKWA & ORS [2012]DLHC12099

Date	2012-03-14
Suit No.	SUIT NO. E1/28/05
Citation No.	[2012]DLHC12099

HIS LORDSHIP JUSTICE JOHN AJET-NASAM

AUGUSTINE AHAMEY FOR PLAINTIFF

GEORGE HEWARD-MILLS FOR DEFENDANT

[2012]DLHC12099
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH KITIWAH ATUTEY<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ISAAC MASIAKWA &amp; ORS<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT NO. E1/28/05&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: 14TH&nbsp;MARCH 2012<o:p></o:p>

</div>COUNSEL&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; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM<o:p></o:p>HIS
LORDSHIP JUSTICE JOHN AJET-NASAM<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>The
plaintiff, Joesph Kitiwah Atutey claimed he purchased a piece or parcel of land
of 2.716 acres from the Osuwem family. The cost of the land is GH¢12,000.00
which he alleged had fully paid for. Receipts were tendered to indicate some
payments made to one Ebenezer Kofi Tei. Exhibit “A” stated : “ I,
Ebenezer Tei Kofi in the presence of Agnes Nortey both acting on behalf of the
Adumua Bossman family of Osuwem of Prampram has this 26th day of
March receive an amount of ¢20 million (Twenty Million Cedis only) being part
payment of 10 plots of land…”<o:p></o:p>I
have looked at the defendants who had been variously changed one time or the
other. It is strikingly clear that, the said Ebenezer Tei Kofi was never made a
defendant. Be that as it may, those was no denying the fact that the plaintiff
did some payments for the purchase of the land belonging to the Osuwem family.
In fact exhibit “D’ a letter written to the plaintiff’s lawyer by the lawyer
for defendant proposing some terms, is also an indication to the fact that, the
plaintiff really purchased land from the Osuwem family. <o:p></o:p>Furthermore,
a motion to set aside default judgment filed on 9/03/05 by counsel for the
defendant paragraph 6 stated: “6 that it is true that the plaintiff has
been given land covering an approximate area of 2.716 acres…”<o:p></o:p>I
have to refer to such deposition for parties to appreciate the fact that, a
land transaction really took place between the parties. It is therefore
preposterous for one to try to dissociate 2nd plaintiff, Agnes Nokai
Nortey from the Osuwem family. I also take judicial notice that, there were
cases I presided upon that were prosecuted by Agnes Nortey and Abed Nortey for
and on behalf of the Osuwem family. The exhibit tendered by the plaintiff amount
to GH¢8,500.00 leaving a balance of GH¢3, 500.00. The plaintiff however
explained away the difference by alleging that the said balance was paid when
he wentfor the indenture from Agnes Nokia Nortey. The plaintiff alleges this
fact, and it behoves upon him to provide concrete evidence, both documentary
and otherwise to convince the tribunal of fact.<o:p></o:p>I
do not see how, such an amount will be paid and no receipt given out. What did
the lawyer of the plaintiff do when he was made aware of this situation? After
all the plaintiff had maintained he paid the installments through his lawyer. I
have looked at Exhibit A, A1-A4 and the said receipts were written by the same
person. I am not saying I hold myself as a handwriting expert but it is so
clear for the layman to conclude that it was the lawyer for the plaintiff who
wrote to them. What do the court say on receipts? Before I venture into that, I
would like to look at the definition of receipt. The black’s Law Dictionary, 9th
edition gives the definition as “A written acknowledgment that something has
been received”.<o:p></o:p>In
the case of Donkor vrs. Alhassan [1987-88] 2GLR253, at 254,
Ampiah JA (as he then was) had occasion to deal with the status of receipts
issued to evidence sale of interests in land. The learned judge held in holding
1 thus: “(1) the receipts, exhibit “A’ and “B” were not meant to transfer by
themselves any interests in the land but only evidenced payment in pursuance of
an agreement to transfer an interest in land…”<o:p></o:p>See
also Tahiru vrs. Mireku[1989-90] 2 GLR 616 andKotey vrs. Kolete
[2005-2006] SCGLR 368. It is therefore stands to say, in no uncertain terms
that, since the balance of GH¢3,500 had not be evidence in anyway by any
document, the said balance is still remain. There is no way an indenture can
stand in for a receipt. Exhibits A, A1-A4 were all headed “Temporal receipt”.
If the difference were paid, I believe a final receipt would have been issued
to the plaintiff. I therefore do not accept this explanation and so it hereby
fails. The plaintiff should go and pay the balance to Osuwem family.&nbsp; On the issue that, plaintiff does not know
his land or mixed up during re –demarcation, it is my view which is supported
by authorities that, the 2nd defendant is duty bound to identify it
to the plaintiff purchaser. As the Supreme Court in Kotey vrs. Kolete supra
said:Inter alia “The defendant cannot use his failure to do to his benefit: See the case
of Ndoley vrs. Iddrisu [1979] GLR 559, CA”.<o:p></o:p>

As
I indicated earlier, there is no controv</main>