USSHER AND OTHERS vs DARKO [1977]DLCA16395

Date	1977-03-14
Suit No.	1 GLR 476-495
Citation No.	[1977]DLCA16395

APALOO J

LASSEY J

KINGSLEY-NYINAH JJA

JOE REINDORF

NII ODOI ANNAN

NELSON

[1977]DLCA16395
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													<main id="main" class="content" style="min-height: 60rem" >USSHER AND OTHERS<o:p></o:p>vs.<o:p></o:p>DARKO<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

[1977]
1 GLR 476-495&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 14TH MARCH 1977<o:p></o:p>

</div>COUNSEL<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JOE REINDORF FOR APPELLANTS<o:p></o:p>

</div>CORAM<o:p></o:p>APALOO, LASSEY AND
KINGSLEY-NYINAH JJ.A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;JUDGMENT OF APALOO
J.A.<o:p></o:p>The suit which culminated in this appeal began as a
common-place one in the circuit court in which the respondent (who I shall
hereafter call the plaintiff) qua landlord, sought an order for possession
against the appellants who occupied various apartments in house No. 20A/4,
Accra New Town, as tenants. The appellants resisted the claim on grounds which
I will presently relate. The learned circuit judge, his honour Judge Andoh (as
he then was) acceded to the plaintiff's claim and in a judgment read on 25
January 1973, concluded as follows: "I rule therefore that the tenants be
ejected from the premises as from the end of February 1973."&nbsp; Before
reaching this conclusion and in view of the evidence presented to him and other
issues which arose during the course of the proceedings, the judge felt
constrained to examine somewhat complex questions of equity law and in
particular, the concept of dual ownership, which allows a trustee to hold title
while the beneficiary retains the right of beneficial enjoyment of the
self-same land.<o:p></o:p>Now the facts. The late Sir Edward Asafu-Adjaye was a
barrister of great eminence and repute.&nbsp; It has been necessary in the course
of the trial for the learned judge to refer to his standing in the profession
and in society generally. He said, "he is an eminent jurist and has an
unparalleled, unprecedented reputation and record not only in the legal
profession but also in Ghana as a whole."&nbsp; Few would quarrel with
that assessment.<o:p></o:p>Sir Edward (for so I will hence call him) contracted a
marriage under the Marriage Ordinance, Cap. 127 (1951 Rev.), on 8 July 1930,
with a lady called Martha Violet Randolph.&nbsp; That marriage subsisted and both
husband and wife lived and cohabited together until Sir Edward's death on 27
February 1976.&nbsp; As a lawyer, Sir Edward could not but be aware, that by
reason of the statutory marriage, he could not contract a valid marriage
"under any native law or custom" during the subsistence of his
marriage with Mrs. Martha Asafu-Adjaye: see section 44 of the Marriage
Ordinance, Cap. 127 (1951 Rev.). If he did, he would have committed the
criminal offence of bigamy and been liable to punishment under section 265 of the
Criminal Code, 1960 (Act 29).&nbsp; There is in fact no evidence that Sir
Edward contracted any other marriage but in a statement of reply filed on
behalf of the plaintiff, it was averred that "Sir Edward Asafu-Adjaye is
the husband of the owner of the property, Matilda Martinson." That lady in
fact gave evidence for the plaintiff, she being his vendor.&nbsp; The only
evidence she gave which bears on her marital status is, "I am having six
children with Sir Edward Asafu&nbsp; Adjaye."&nbsp;
She gave no evidence of any marriage with Sir Edward.<o:p></o:p>Yet when a serious point of equity law involving the
marital status of Matilda Martinson was made to the judge, he disposed of it in
these words:<o:p></o:p>"The plaintiff's first witness [meaning Matilda
Martinson] is described in paragraph (2) of the reply as his wife. He has six
children with the lady. If the plaintiff's first witness had been the wife of
Sir Edward as stated in paragraph (2) of the reply, the presumption that an
advancement was intended would have been difficult to displace."<o:p></o:p>&nbsp;This conclusion is a little curious.&nbsp; Sir Edward was
not a party to this case.&nbsp; He sought to join but was excluded at the
behest of the plaintiff.&nbsp; If he had been permitted to join, he would have
clarified his personal status vis-a-vis Matilda and his intention could have
been probed on other issues on which his intention was material in this case.<o:p></o:p>In so far as it is possible to form any picture of the
facts from the recorded evidence it is as follows:&nbsp; Some time after
contracting the marriage with his wife Martha, Sir Edward struck some sort of
an association with Matilda Martinson (hereafter referred to as Matilda).&nbsp;
Although I hesitate to use the word, I think Matilda was Sir Edward's paramour.
In 1946, Sir Edward bought the land in dispute from a Mr. J. E. Vanderpuije,
paid for it and directed that the conveyance be made in the name of
Matilda.&nbsp; She appeared to have retained the document of title in her
possession.&nbsp; In or about 1957, Sir Edward built a house on that land and
let it to tenants.&nbsp; He collected the rents and otherwise enjoyed the
income from that property. Matilda never entered into possession of that
premises and indeed she and the tenants were complete strangers to each other.
The occupying tenants at the time material to this case, were the appellants. They
pleaded that they "were let into possession of the premises in dispute as
rent paying tenants about three years ago by Sir Edward Asafu-Adjaye, on a
written tenancy agreement . . ."<o:p></o:p>Matilda deposed in evidence and the judge accepted, that
she bore Sir Edward six children.&nbsp; Sir Edward must have felt himself under
some obligation to provide for Matilda and her children.&nbsp; According to the
evidence, he bought her an estate house at Kaneshie, Accra, in 1957 and also
built her a house on her family land at Akropong, Akwapim. He also provided her
between £G50-G60 per month for the upkeep of herself and the children. Matilda
gave evidence that Sir Edward "gave" her yet one other
property.&nbsp; She said "that property was Rex Hotel." According to
Matilda, Sir Edward asked for the title deeds on that property to secure a loan
and when she released it to him, he sold the property.&nbsp; If as she implied
the title deeds was in her name, the purchaser of that property could not
obtain legal title wit</main>