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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

______________________________________________________________________

 

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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