OSMOND vs. HUGHES [1967]DLCA1529

Date	1967-06-05
Suit No.
Citation No.	[1967]DLCA1529

OLLENNU JA

AZU CRABBE JA

APALOO J.A.

C. F. HAYFRON-BENJAMIN JNR. (WITH HIM OWUSU YAW) FOR THE APPELLANT.

T. D. BRODIE-MENDS FOR THE RESPONDENT.

[1967]DLCA1529
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													<main id="main" class="content" style="min-height: 60rem" >OSMOND <o:p></o:p>vs. <o:p></o:p>HUGHES <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 405<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
5 JUNE 1967<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. F. HAYFRON-BENJAMIN JNR. (WITH HIM OWUSU YAW)
FOR THE APPELLANT.<o:p></o:p>

T. D. BRODIE-MENDS FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, AZU CRABBE AND APALOO JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>This is
from the judgment of the High Court, Sekondi, (Bruce-Lyle J. as he then was)
dated 24 January 1964. By the judgment, the court dismissed an action brought
by the appellant (hereinafter called the plaintiff) against the respondent
(hereinafter referred to as the defendant) for a declaration of title to land
and building situate at Ashanti Road, Takoradi, described as plot No. 21 and
for recovery of the sum of £G312 which the plaintiff claimed the defendant
collected as rent form tenants of the said premises.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff was born in June 1927. He is the son of the late Osmond Alfred Hughes
who died in or about 1959. He has a serious deformity in the leg and is a near
cripple. The learned trial judge described this as an abnormality in one leg.
His late father was a qualified pharmacist and was, for many years, employed in
that capacity by government. Some years before his death, Mr. Hughes retired
from government service on pension and thereafter set up private practice as a
pharmacist. The plaintiff who left school in 1954, was for a while, in the
employment of Messrs. Elder Dempster Lines as a book-keeper but in 1955, he
left this employment at his father’s request and joined the latter in his
dispensary. He continued to assist his father in his dispensary until his death
about 1959. The evidence suggests that the late Mr. Hughes formed a great
attachment for the plaintiff and both seemed to have lived together in
affection till the former’s death.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In 1937,
when the plaintiff was aged ten, his father applied for the leasehold premises
the subject-matter of this action. Although the application for the land was
admittedly addressed to the Assistant Commissioner of Lands by the late Mr.
Hughes, it purported to come from Kofi Osmond which, on the undisputed
evidence, is the plaintiff’s name. The applicant gave his address as c/o O.A,
Hughes and the application was signed simply as “Kofi Osmond.” The application
was successful and on 8 June 1938, the Governor of the Gold Coast acting by the
Commissioner of Lands executed a lease in which the land in question was
demised to “Kofi Osmond” for a term of 99 years subject to the usual covenants.
There is no evidence as to who executed the lessee’s part of the document, but
it seems clear that this was done by the plaintiff’s father who merely wrote
the name of the lessee as “Kofi Osmond.”<o:p></o:p><o:p>&nbsp;</o:p>A
photostat copy of the original lease was produced in evidence and this shows
that it is a building lease. The lessee covenanted to erect on the demised plot
a building approved by the Commissioner of Lands within a period of three years
from the date of the demise and the lease reserved to the government, a right
of re-entry if this covenant be broken. It would seem that the late Mr. Hughes
was not particularly well-off from a financial point of view, and by 1941, no
building had been erected on the demised plot in accordance with the covenant
in the lease. The evidence shows further that although the erection of a
building on the land was commenced some time afterwards, it had not been
completed by October 1949. Accordingly, the government sought to re-enter the
plot and served on the plaintiff’s father a notice of re-entry.<o:p></o:p><o:p>&nbsp;</o:p>The
latter’s reaction to this letter is significant. Mr. Hughes procured the
plaintiff to write to the Commissioner of Lands to plead for an extension of
time. He himself drafted for the plaintiff, a letter in which the delay in
completing the erection of the building was said to be caused by the scarcity
of building materials necessitated by war conditions and post-war control. The
plaintiff got this letter typed out and signed it in his name as Kofi Osmond.
According to the plaintiff, his father got him to apply for the extension
because the latter told him that the original acquisition of the plot was made
in his name. This letter which was dated 3 November 1949, was produced from the
official file of the Lands Department and the plaintiff identified his
signature. The plaintiff’s evidence on this part of the case was not disputed
and was in fact found to be true by the learned trial judge. If the late Mr.
Hughes did not intend this plot to be a gift for the plaintiff, his conduct on
th</main>