KOTOKOLI AND ANOTHER v. SARBAH

JUDGMENT OF CECILIA KORANTENG-ADDOW J.

The issues for determination in this case are: firstly whether the first appellant had title in the house to transfer to the respondent, and secondly, whether or not the contract for the sale of house No. E 44/15 by the first appellant to the respondent was rescinded, and if not whether it should be set aside. The trial court resolved these issues in favour of the respondent and the appellants have appealed to this court on the main [p.498] ground that the case of the appellant was not considered by the trial court.

Some time in May 1970 the first defendant-appellant (hereinafter called the defendant) offered house No. E44/15 at Nima, Accra, to the plaintiff-respondent (hereinafter called the plaintiff) for sale at a price of ¢600. The plaintiff agreed to buy and paid the full purchase price for which a receipt dated 31 May 1970 was issued by the defendant. The defendant asked to be allowed to occupy two rooms in the house (which would have been let for ¢3 per room) rent-free for three months from 1 June 1970 to enable the defendant to look for an alternative accommodation. At the end of the three months' grace period, the defendant sold the house to another person for ¢1,200, double the price paid by the plaintiff. The plaintiff felt this was a double-cross and made a complaint of fraud against the defendant to the police. The matter was settled and the defendant was advised to refund the money to the second purchaser. Subsequently, the plaintiff took this action for ejectment and recovery of possession of the two rooms occupied by the defendant.

The father of the defendant applied and joined in the action as a co-defendant claiming title to the whole premises, and in a counterclaim he asked for the sale by his son, the defendant, to be set aside. The defendant conceded to the sale agreement, but he said he had no authority to sell. He said the house belonged to his father, the co-defendant, who is a Togolese. On the coming into force of the Aliens Compliance Order, his father left Ghana for Togo, so he sold the house for fear that the government might pull it down or seize it. Subsequently, when the father was allegedly informed about the step he had taken, the father ordered that he should refund the purchase price to the purchaser, because he had no intention to sell.

On the evidence presented to the court, the learned magistrate accepted the plaintiff's case; he found that the defendant was the owner of the