GYAMERAH vs. BREFO [1984]DLCA921

Date	1984-11-07
Suit No.
Citation No.	[1984]DLCA921

JIAGGE JA

MENSA BOISON JA

ABBAN J.A.

DR. PREMPEH FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1984]DLCA921
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GYAMERAH<o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 110<o:p></o:p>

DATE:
7 NOVEMBER 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DR. PREMPEH FOR THE APPELLANT. <o:p></o:p>

NO APPEARANCE BY OR 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;
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JIAGGE, MENSA BOISON AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>Abban
J.A. delivered the judgment of the court. The house in dispute was the
self-acquired property of one Opanyin Yaw Senyah who hailed from Ejisu in
Ashanti. He died intestate on 1 March 1963, and the respondent (hereafter
called the plaintiff) was customarily appointed by the family to succeed to the
house and four other houses left by Opanyin Yaw Senyah. The disputed house is
situated on plot No. 20, Block 4, Dichemso Layout, Kumasi.<o:p></o:p><o:p>&nbsp;</o:p>When the
late Yaw Senyah was alive he appointed his son J.K. Senyah, to take charge of
the house as caretaker to collect rents and to account to him. The plaintiff
had been living and working in Accra so when he became successor he asked J.K.
Senyah to continue his caretakership of the house as he had been doing during
his father’s lifetime. J.K. Senyah agreed and for the next seven years he
collected the rents and accounted for them to the plaintiff. In 1970 the
plaintiff’s maternal uncle, Kwaku Nimo, was in financial difficulty. Nimo
needed money to complete a project. He approached the family. The family
appealed to the plaintiff to help Nimo out. As already indicated, the plaintiff
had succeeded to five houses, and so he could conveniently assist. The
plaintiff therefore decided to give the rents accruing from the disputed house
to Nimo to finance his so-called project.<o:p></o:p><o:p>&nbsp;</o:p>Accordingly,
the plaintiff requested J.K. Senyah to stop collecting the rents and instead
allowed Nimo to collect the rents and utilise same to finance the alleged
project. It was in July 1970 that Nimo was permitted to collect the rents.
After about six years, the plaintiff, thinking that by that time Nimo must have
completed the said project, called upon Nimo for accounts and obviously to end
his caretakership.<o:p></o:p><o:p>&nbsp;</o:p>A date
was fixed for the accounts but Nimo asked for postponement for two weeks, to
which request the plaintiff readily obliged. But before the expiration of the
two weeks Nimo committed suicide. The plaintiff later on went to the disputed
house to see to arrange matters concerning the future collection of rents. But
to his utter surprise the tenants informed him that Nimo, the deceased, had
sold the house to one Gyamerah, the appellant herein, hereafter called the
defendant.<o:p></o:p><o:p>&nbsp;</o:p>A search
at the Lands Department, Kumasi revealed that Nimo sold the house on 21 July
1970 to the defendant by a deed of assignment. He impersonated the late Yaw
Senyah in the transaction, for in the deed of assignment the late Yaw Senyah
was supposed to have signed as the assignor. Looking at the dates it was
obvious that the fraudulent Nimo sold the house a few months after he had been
permitted to take over the collection of the rents from the house.<o:p></o:p><o:p>&nbsp;</o:p>In the
court below, the plaintiff asked for a declaration that the said deed of
assignment dated 21 July 1970 and purporting to be made between Yaw Senyah (who
died on 1 March 1963) and the defendant in respect of the disputed house was a
forgery and should be rescinded on grounds of fraud. The plaintiff further
claimed accounts and recovery of possession.<o:p></o:p><o:p>&nbsp;</o:p>