AHIABLEY vs. DOGAH [1985]DLCA828

Date	1985-06-24
Suit No.
Citation No.	[1985]DLCA828

APALOO CJ

EDWARD WIREDU JA

OSEI-HWERE JA.

KUDJAWU FOR THE APPELLANT.

THE RESPONDENT IN PERSON

[1985]DLCA828
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AHIABLEY <o:p></o:p>

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

[1984-86] 1 GLR 537<o:p></o:p>

DATE:
24 JUNE 1985<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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KUDJAWU FOR THE APPELLANT. <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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APALOO CJ, EDWARD WIREDU AND OSEI-HWERE JJA.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>He
delivered the judgment of the court. The dispute in this case involves the
ownership of a Lister engine and grinding mill which were installed at a
village called Livegah near Akatsi in the Volta Region. These machines were
used in grinding corn as a commercial enterprise. The evidence shows that since
these machines were brought to the village, a woman by name Tornyebu Afedo was
in actual control of their operations and physically received the moneys
accruing from their operations. She died in or about 1969 and the machines are now
in the possession and apparent enjoyment of her son, the respondent to this
appeal.<o:p></o:p><o:p>&nbsp;</o:p>It
appears that upon Tornyebu’s death, her family met to consider her assets and
liabilities and it was at this meeting that the machines were delivered to the
respondent, as one of his mother’s customary successors. But the respondent was
enjoined to utilise the profits accruing from their operations for the benefit
of himself and his mother’s children. That meeting was presided over by the
head of family, a man going by the name of Adzika Bedzo Agbadai. He himself
testified before the trial judge in the court below. At the time of Tornyebu’s
death, the appellant who is her uterine brother was away in Togo. He was in
ill-health and was receiving treatment at the hospital there. On his return, he
learnt that the machines were in the possession and enjoyment of his nephew,
the respondent. He asserted ownership to them and asked for accounts. The
respondent for his part, asserted his late mother’s ownership and disputed the
appellant’s right to call upon him to account.<o:p></o:p><o:p>&nbsp;</o:p>It is
this that provoked this litigation in which the appellant sued in the High
Court, Ho for a declaration of his title to the machines and other ancillary
reliefs. In order to establish his ownership of these machines, the appellant
produced two receipts as being purchase prices he paid when he bought the
machines. One was from Union Trading Co. Ltd. dated 11 September 1963 and was
in respect of the Lister engine and the other dated 20 September 1963 in respect
of the grinding mill from Tonato Works. Both receipts bore his name. As the
mere receipts were per se, inconclusive of ownership in view of the
respondent’s stand, the appellant also testified and called evidence to show
that he was in receipt of the proceeds from the machine from his late sister
who rendered accounts to him in acknowledgment of his ownership.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent’s position was that the actual purchase of the machines was financed
by his mother who provided the money with which the appellant paid the purchase
price. He swore that his sister was present when the money was handed to the
appellant and that she indeed travelled with the appellant and was present when
the machines were bought. That sister, by name Awlekpedzo, was put in the witness-box
and testified before the trial judge. On the issue of accounts, the respondent
denied that his late mother rendered accounts to the appellant. He implied that
his mother enjoyed the income in her own right as the owner of the machines
until her death.<o:p></o:p><o:p>&nbsp;</o:p>So the
receipt notwithstanding, the trial judge was invited to decide whether or not
the late Tornyebu in fact provided the purchase price and was, in fact, and in
law the owner of the machines. If in truth, the respondent’s story is true,
then the appellant was merely taking advantage both of his physical possession
of the receipts and his sister’s death to lay false claim to the machines. If
on the other hand, the appellant’s version was the truth, then the respondent,
for his part, was taking advantage of his uncle’s temporary absence from home
at the date of his mother’s death and also his mother’s apparent possession of
the machines to bolster up a false claim to the machines. Whichever version of
[1984-86] 1 GLR 537-544 the story is
true, reflects discredit on the other side.<o:p></o:p>