DONKOR v. ALHASSAN

JUDGMENT OF AMPIAH J.A.

Ampaih J.A. delivered the first judgment at the invitation of Abban J.S.C. This is an appeal from the decision of the High Court, Bolgatanga. The plaintiff in that action issued out a writ of summons claiming from the defendant, specific performance of an agreement made between himself and the defendant on 22 July 1984 for the sale of the defendant's house numbered E37, Bolgatanga to him. He also claimed recovery of possession of the said house. On 5 February 1985, the learned trial judge gave judgment for the plaintiff decreeing specific performance of the said agreement and ordering recovery of possession of the house in favour of the plaintiff. Being aggrieved by the said judgment, the defendant (hereinafter referred to as the appellant) has appealed against it to this court.

The grounds upon which the appellant has attacked the judgment are that:

"1. The judgment is against the weight of evidence.

The learned trial judge erred in holding upon the basis of the totality of the evidence adduced that there was a valid contract of sale enforceable at law thereby occasioning the appellant a substantial miscarriage of justice.

The learned trial erred in accepting as the basis of a contract of sale between the plaintiff-respondent and the defendant-appellant certain documents which were non-existent in the eyes of the law thereby occasioning for the appellant a substantial miscarriage of justice."

The facts, briefly, of the case were that the appellant obtained a loan of ¢80,000 from the Ghana Commercial Bank, Damongo. He failed to pay off the loan. He was therefore arrested by the police and placed in custody. For three days he remained in cells without getting anyone to stand surety for his bail. He eventually got in touch with the plaintiff (hereinafter referred to as the respondent). According to the appellant even though he had asked for a loan from the respondent to [p.256] pay off his indebtedness to the bank in order to be freed, the respondent was prepared only to purchase the house. There was a bargaining for the house and the parties eventually agreed on a purchase price of ¢210,000. About three days later, the respondent made a part payment of ¢100,000 to the appellant. It was agreed that the documents on the house be released after full payment. The evidence showed that after the ¢100,000 had been paid the appellant was released from custody. Later the respondent paid the balance of ¢110,000 wherefore the documents