JOSEPH KOTEY v. PETER KOFI KOLETEY
1999
COURT OF APPEAL
GHANA
CORAM
- ESSILFIE-BONDZIE J. A. (PRESIDING)
- TWUMASI J. A.
- ARYEETEY J. A
Areas of Law
- Contract Law
- Property and Real Estate Law
- Civil Procedure
- Evidence Law
- Tort Law
1999
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On appeal from the Circuit Court at Odumase Krobo, the Court of Appeal, per Essilfie-Bondzie J.A., reversed a decree ordering Peter Kofi Koletey to convey a 100 by 100 feet plot to Joseph Kottey. The court found the parties’ dealings to be governed by common law, not customary sale, and held that the temporary receipt (Exhibit A) did not identify the land and, as an unregistered instrument under Act 122, conferred no rights. Specific performance requires certainty, which was lacking amid contradictions in the evidence. Kottey’s loan claim (Exhibit C) was discounted as non-genuine. Kottey breached the lease by remaining after its expiry, committing trespass. The court dismissed the specific performance claim, declared title for Koletey, ordered possession and injunction, awarded damages and rent arrears, and allowed the appeal.
JUDGMENT
ESSILFIE-BONDZIE J.A.
The action which has led to this appeal was commenced on the 8th of January, 1997 at the Circuit Court Odumase Krobo by the plaintiff/respondent before this court (who will be referred to henceforth shortly as the plaintiff) and by his writ of summons he claimed as follows
“........... for specific performance of the agreement for the sale of a plot of land at AHIAWOM at Somanya Zongo opposite to SSNIT office, at Somanya being on area measuring 100 x 100 feet where plaintiff has been moulding cement blocks for sale. Defendant has given possession but refuses to execute an indenture in favour of plaintiff.”
The defendant/appellant before this court (who is henceforth referred to shortly as the defendant) also counter claimed against the plaintiff as follows.
(1) Declaration of title to the land described in paragraph 3 of the statement of defence.
(2) Damages for breach of contract.
(3) Damages for trespass by the plaintiff into the piece of land described in paragraph 3 of the statement of defence.
(4) Recovery of possession.
(5) Perpetual injunction restraining the plaintiff, his workman servants assigns and agents from entering or remaining on the said land.
The trial judge gave judgment in favor of the plaintiff declaring inter alia
“I therefore enter judgment for the plaintiff against the defendant and order the defendant to perform his side of the contract by executing a deed of conveyance covering the disputed land measuring 100 feet by 100 feet and situate at AHIAWON SOMANYA and hand over same to the plaintiff forthwith.”
The trial judge also dismissed the counter-claim. It is against the judgment of the Circuit Court that the defendant now appeals to this court on a number of grounds of which the following are those which are of substance to wit:
(a) The trial circuit judge erred in his failure to realise that the alleged sale of the disputed land was a customary sale and thereby failed to apply the incidents of a customary sale to the transaction between the plaintiff and the Defendant.
(b) The trial circuit judge erred in relying on Exhibit “A” a temporary receipt which does not define the extent and boundaries of the part of the plot and wrongly gave judgment for the plaintiff when the document was also not registered as required by Section 24 of the Land Registry Act, 1962.
(c) The trial judge failed to consider the Defendant's case in particular his counter-claim and dismissed the same without assi