JAMES
SIMPSON v. AFOANI TENKORANG [28/05/04] H1/64/2004
IN
THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL
(CIVIL DIVISION) SITTING AT ACCRA ON FRIDAY THE 28TH DAY
OF MAY 2004.
_________________
CORAM: TWUMASI JA (PRESIDING),
PIESARE
ABBAN
JJA
H1/64/2004
JAMES
SIMPSON ... APPELLANT
VRS:
AFOANI TENKORANG ... RESPONDENT
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TWUMASI JA
The parties in this
appeal are related by marriage. The appellant who
resides in the United Kingdom sometime in May 1994
conceived the laudable idea to acquire his own house
back home in Ghana. In pursuit of this noble objective,
he remitted to the respondent, his brother-in law, an
amount of (£5,000) pounds sterling with instructions
that half of it be applied to the purchase of a
residential plot of land in Accra and the remaining half
disbursed on the preparation of drawings, building plans
etc for the construction of the house. The respondent
admitted receipt of the money in the exact quotation
except that, as he explained, half of it came to him in
sterling while the other half was given to him in the
cedi equivalent, which came to (¢3,7500.00). The trial
proceeded to unleash vital pieces of evidence out of
which the learned trial Judge made positive findings of
fact which I fully endorse and I hasten to relate the
said facts in a nutshell. The firm stand which the
appellant took was that the respondent did not purchase
any land at all and that he misapplied or must have
embezzled it to the detriment of the appellant and,
consequently the respondent rendered himself liable to
refund the money. However, after the appellant had
caused evidence on his behalf to be taken, it became
crystal clear through answers in cross-examination of
his witnesses and the answers to questions appellant's
counsel put to the respondents that, in fact the
respondent purchased a plot of land from a chief at
Kwabenya called Nana Okanfra II. Before the purchase a
search was made at the lands Commission by the
respondent and a report issued. Also a purported
indenture was prepared. In the aftermath of the
purchase, the appellant himself came to Ghana and the
respondent handed over these documents to him after
introducing the chief to him. This was after the
respondent had taken the appellant to the land in
question. There was also an undisputed fact that the
appellant had supervised the construction of the
proposed building on the land after he and the
respondent had gone together to purchase materials for
the construction. From all indications, therefore, it
was reasonable for the respondent at any rate as at that
stage, considering events and activities on the ground,
to make a fair assessment that he had accomplished his
task and was entitled to be discharged from any further
obligation under the contract. But lo and behold, since
we live in a world full of contingencies, the unexpected
occurred which must have given the parties the rudest of
shocks. On one of their visits, they saw that an
unidentified agent had pulled down the entire edice of
the house. It turned out that the act had been committed
by an adverse claimant of the land. It may be
appropriate now to put the appellant's claim in its
proper perspective with regard to the real issue it
raises for determination. I wish to approach the problem
by way of a question to the appellant and it is as
follows: Is the appellant saying that the respondent
never bought the land at all but consumed the money he
advanced to him for that purpose or that the respondent
in fact bought the land and paid for it yet the money
must be refunded because the respondent did not exercise
prudence in the procedure he adopted and thereby
rendered the sale transaction of no legal effect? From
the questions put to the respondent in
cross-examination, the appellants Counsel created the
impression in the mind of the trial judge and this
court, for that matter, that the appellant was
approbating and reprobating. In one breath Counsel
appeared to have taken the stand that there were facts
which should have put the respondent on an enquiry to
ascertain the true ownership of the land. Simply put,
whether his vendor had title to sell the land to him.
Yet in another breath the counsel seemed to be
suggesting to the respondent that even assuming he
purchased the land, he failed to comply with statutory
procedures and requirements for valid registration of
the title.
The more closely I
studied the appellant's claim on the endorsement of the
Writ elaborated by the supporting statement of claim as
contrasted by the respondent's statement of defence and
the reply by the appellant which merely emphasised the
statement of claim, the more indelible the impression I
formed of the case became, that it typified a case where
a party's claim casts its original garb and puts on an
entirely new one in the position he takes to face his
adversary in the later's defence camp. It is as well to
stress by way of caution to would-be litigants that when
they enter into contracts, they must beware of the terms
they set out in their respective interests. They must
take account of contingencies and make specific
provisions affecting them. In the instant case,
directions given to the respondent by the appellant were
clear and specific with regard to the aplication of the
£5000.
The appellant never
suspected a litigation which in this country often
engulfs purchase of land; especially in Greater Accra
and its environs. So we see in the instant case that
while the honeymoon lasted, the appellant and the
respondent were on cordial terms. Bitterness reared its
ugly with the eruption of potential land litigation in
the aftermath of the demolition of the new structure.
This explains the ambivalence in the appellant's claim.
In his legal submissions learned counsel for the
appellant reechoed the all too familiar legal maxim "Nemo
Dat Quod Non Habet" to suggest that the Kwabenya Chief,
the respondent's vendor, had no title to transfer to a
potential purchaser, even the respondent.
Then in the penultimate
of the statement of case, Counsel lashed out at the
respondent by imputing to him criminal liability for
what he surmised to be the lackadaisical manner in which
he accepted the result of the search he claimed to have
conducted at the Lands Valuation Board touching
ownership of the land. But as I have analyzed in this
judgment, it was not open to the appellant, after making
an unequivocal claim that the respondent had been guilty
of failing to purchase the land for which he had taken
cash the sum of cash the sum of £5000 from the
appellant, to shift his ground by an entirely new
accusation that assuming he purchased the land he
nevertheless failed to buy a land free from all
encumbrances. In my view, the learned trial judge
arrived at the right decision and I am not persuaded by
the submissions of the appellant's counsel to interfere
with the decision of the court below. In the result I
would dismiss the appeal
(SGD)
P. K. TWUMASI
JUSTICE OF APPEAL
HENRIETTA ABBAN JA:
I agree
(SGD)
HENRIETTA ABBAN (MRS).
JUSTICE OF APPEAL
E.K. PIESARE JA:
I also agree
(SGD)
E.K. PIESARE
JUSTICE OF APPEAL
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