SESE vs. SESE AND OTHERS [1986]DLCA1003

Date	1986-12-04
Suit No.
Citation No.	[1986]DLCA1003

ABBAN JA

AMUA-SEKYI JA

AMPIAH J.A.

W. A. N. ADUMUA-BOSSMAN FOR THE APPELLANT.

E. D. KOM FOR THE RESPONDENTS.

[1986]DLCA1003
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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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SESE <o:p></o:p>

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

[1984-86] 2 GLR 166<o:p></o:p>

DATE:
4 DECEMBER 1986<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;
padding:0in 0in 0in 0in">

W.
A. N. ADUMUA-BOSSMAN FOR THE APPELLANT. <o:p></o:p>

E.
D. KOM FOR THE RESPONDENTS.<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">

ABBAN, AMUA-SEKYI AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>The appeal
is from the judgment of the High Court, Accra dated 25 November 1983. The
appellant (hereinafter referred to as the plaintiff) had claimed a declaration
of title, recovery of possession, damages for trespass and an order for
perpetual injunction in respect of a piece of land situate at Kokomlemle,
Accra.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff and the first respondent (hereinafter referred to as the first
defendant) were brothers. They were the children of the same father but had
different mothers. The disputed land was the self-acquired property of their
father, the late Evans Kofi Sese, who died at the ripe age of about 90. The
late father acquired the land by purchase in August 1952. He built a one-storey
house called an out-house on a portion of the land and lived in it.<o:p></o:p><o:p>&nbsp;</o:p>The
father later permitted the plaintiff to build on the remaining portion of the
land. In consequence of the said permission the plaintiff put up a two-storey
building on that portion. The late father however, continued to live in his
said out-house with his wife (the mother of the first defendant), the first
defendant himself as well as the first defendant’s two sisters of the same
mother and father. The late father occupied the out-house with those persons
until he became so old that he had to be conveyed to his hometown, Peki Dzake,
to spend his last days.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In his
lifetime the father rented some rooms in the out-house to tenants and collected
rents from them. The last tenant of the late father was the present second
respondent (hereinafter referred to as the second defendant). The father passed
away on 25 November 1980 at Peki Dzake, and nine months later, on 13 August
1981, the plaintiff caused letters to be written to the defendants by his
solicitor asking them to pay rents for occupying the out-house on the ground
that he was the owner of the said out-house.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants disputed the plaintiff’s claim to the out-house and refused to
accede to his request. So on 24 August 1981 they also caused a fitting reply to
be sent by their solicitor to the plaintiff, and within two weeks of the
receipt of the said reply from the defendants, the plaintiff resorted to court
action.<o:p></o:p><o:p>&nbsp;</o:p>The basis
of his action was that during the lifetime of the late father, the latter made
a customary gift of the out-house to him and the gift was evidenced in writing
by a deed of gift dated 25 August 1976 and registered as No. 321/1977. In their
defence the defendants disputed the alleged customary gift and put the
plaintiff to strict proof thereof. In addition, the first defendant averred
that before the death of their late father, the latter made a will in which he
devised the out-house to him and that he had been living in it with his mother
and his two sisters of the same father and mother. The first defendant put in a
counterclaim for a declaration of title to half portion of the land on which
the out-house was built. The second defendant also denied that the plaintiff
was his landlord, contending that the rooms he was occupying in the out-house
were rented to him by the old man during his lifetime and he paid rents to the
old man until his death; and since then he</main>