CRENTSIL vs. KWEINUA [1978]DLHC1138

Date	1978-11-06
Suit No.
Citation No.	[1978]DLHC1138

OSEI-HWERE J.

J. B. SHORT FOR THE APPELLANT.

J. B. SHORT FOR THE APPELLANT. A . E. SAMPSON FOR THE RESPONDENT.

[1978]DLHC1138
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >CRENTSIL <o:p></o:p>vs. <o:p></o:p>KWEINUA<o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>&nbsp;[1979] GLR 348<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:
6 NOVEMBER 1978<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">

J. B. SHORT FOR THE APPELLANT.<o:p></o:p>

A . E. SAMPSON 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">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
plaintiff sued the defendant at the District Court Grade I, Cape Coast, and
claimed from her house No. A. 156 situated at Kurankyekrom, Saltpond. This
house was originally acquired by the plaintiff’s father which the plaintiff
says his father subsequently disposed by way of gift to his mother and the
children by her. According to the plaintiff this gift was covered by the
document, exhibit A, which was purported to have been executed on 15 March
1917. The defendant’s contention was that the plaintiff’s father had sold this
house to her mother (the original defendant in this suit) in 1938 and that she
and her mother had been in occupation of the house ever since the date of
purchase. The defendant also tendered exhibit 1 the document on the sale. In
his judgment the magistrate rejected both documents as having no evidential
value upon the sole ground that neither had been registered. He found, besides,
that the plaintiff had failed to prove any customary grant of the house to him
to buttress his claim. On the contrary, he was impressed by the defendant’s
undisturbed possession and overt acts of ownership and he accordingly dismissed
the plaintiff’s claim. The plaintiff has appealed to this court on the ground
that the judgment is against the weight of evidence and, secondly, that the
trial magistrate misdirected himself on the evidence before him and arrived at
an erroneous decision.<o:p></o:p><o:p>&nbsp;</o:p>Arguing
on behalf of the plaintiff, his counsel contended that as the authenticity of
the deed of gift was not impugned but that what weighed<o:p></o:p><o:p>&nbsp;</o:p>with the
court was its non-registration then two consequences flowed from this premise,
viz. (a) after the date of the deed of gift the donor had no title to dispose
of by sale and, (b) since both documents were unregistered the trial magistrate
ought to have applied the maxim that where the equities are equal the first in
time prevails. According to counsel the court below could have made a
declaration in favour of the plaintiff upon any of these two grounds. Counsel
further argued that the plaintiff’s explanation for the delay in bringing his
action was satisfactorily explained as he told the court that he had to trace
the deed of gift first before he could bring any action on it. In paragraph (5)
of the statement of claim the plaintiff had pleaded the deed of gift made to his
mother and her children and in paragraph (6) he averred that his mother had
provided customary thanks for the gift. Paragraph (4) of the defence denied
paragraphs (5) and (6) of the statement of claim and said it would put the
plaintiff to strict proof of those averments. The defendant went on in his
paragraph (5):<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
defendant states in further answer to paragraphs (5) and (6) of plaintiff’s
statement of claim that since 1938 neither the plaintiff nor persons he claims
to be representing has ever challenged the defendant about her occupation and
possession of the house in dispute.”<o:p></o:p><o:p>&nbsp;</o:p>It was on
account of the defence filed that the defendant’s counsel argued that the deed
of gift was challenged and that, as the aseda was also denied, it was incumbent
on the plaintiff to have proved a customary gift which he failed to do. Counsel
further argued that the doctrine of equal equities will only apply where there
is any truth in the claim put forward or where the party seeking the
application of the doctrine has not been indolent.<o:p></o:p><o:p>&nbsp;</o:p>I quite
concede the observation of the plaintiff’s counsel that nowhere did the trial
magistrate make any specific finding that exhibit A is not authentic. No doubt
his refusal to accord it any probative weight on account of non-registration
did not make him feel that he was under any duty to consider the question of
authenticity. This appellate court would not have found any fault with him if
only exhibit A mandatorily required registration and that its non-registration
in any way impugned its validity. I have no doubt that the trial magistrate was
in grave error when he rejected both exhibit A and exhibit I as useless insofar
as they had not been registered and held that they could</main>