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JUDGMENT
KANYOKE, JA :- This appeal has emanated from the judgment of the High Court,
Accra (Coram: Mr. Justice S.T. Farkye, Justice of Appeal (as he then was) sitting as an
additional High Court Judge, wherein the Court dismissed the plaintiff/appellant’s
(hereinafter the plaintiff) action and entered judgment for the 2nd defendant/respondent
(hereinafter called the 2nd defendant) upon its counterclaim; ineffect declaring title in
House No. 171, Airport West Residential Area, Accra in the 2nd defendant. The said
house (herein the disputed property) originally belonged to the 1st defendant. However in
or about March 1985 the 1st defendant by a Deed of Assignment sold and or transferred
all his interests in the disputed property to the 2nd defendant for a sum of ¢5,700,000.00.
Subsequently in or about July or August 1985 the 1st defendant purported to sell the same
disputed property to the plaintiff. This resulted in a ranging controversy between the
plaintiff and the 2nd defendant over ownership of the disputed property.
This also resulted in the court action initiated by the plaintiff against both defendants in
the High Court, Accra. In the course of the litigation the plaintiff himself died and was
substituted by his executors, Mrs Janet Kwakye and Dr. Adjei Marfu.
By his amended statement of claim filed on 24th April 1993, the plaintiff averred
that somewhere in 1985 the 1st defendant sold the disputed property to him for the sum of
¢5,250,000.00 payable by instalments. The 1st defendant did not however disclose to the
plaintiff that he had already sold the disputed property to the 2nd defendant. The plaintiff
only got to know this when he was about to pay the last instalment of ¢3,000,000.00 to
the 1st defendant. According to the plaintiff when he confronted the 1st defendant the
latter admitted selling the property to the 2nd defendant but explained that the 2nd
defendant had expressed his disinterest in the disputed property and had requested a
refund of the sum of ¢2,810,000.00 being the part-payment it made towards the purchase
of the property. Based on this disclosure the plaintiff and the 1st defendant agreed to
refund to the 2nd defendant the said amount of ¢2,810,000.00 out of the last instalment of
¢3,000,000.00 left to be paid by the plaintiff to the 1st defendant. According to the
amended statement of claim on a certain appointed day the plaintiff and the 1st defendant
went to the office of the 2nd defendant where a refund