ATTITSOGBE vs. ATTITSOGBE [1986]DLCA543

Date	1986-07-28
Suit No.
Citation No.	[1986]DLCA543

OSEI-HWERE J.A

AMPIAH J.A

ESSIEM J.A.

B. J. DA ROCHA S.A.G. (WITH HIM ADUMUAH-OSEI) FOR THE APPELLANT.

E. D. KOM S.A.G. (WITH HIM MRS. CUDJOE) FOR THE RESPONDENT.

[1986]DLCA543
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													<main id="main" class="content" style="min-height: 60rem" >ATTITSOGBE <o:p></o:p>vs. <o:p></o:p>ATTITSOGBE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90] 2 GLR 181<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:
28 JULY 1989<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">

B. J. DA ROCHA, S.A.G. (WITH HIM ADUMUAH-OSEI) FOR
THE APPELLANT.<o:p></o:p>

E. D. KOM, S.A.G. (WITH HIM MRS. CUDJOE) 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, AMPIAH AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ESSIEM J.A.<o:p></o:p>The
parties engaged in this litigation are brothers. They are litigating about the
ownership of house No. AB/83, Abeka, Accra. The plaintiff’s case is that he
bought the said house from one Madam Emelia Amedahe in or about 1975 and made
extensions to the house after the purchase. He says during the extension work
he sought financial help form both friends and relatives, among whom was his
brother, the defendant. He has since repaid his brother in full.<o:p></o:p><o:p>&nbsp;</o:p>After the
completion of the extensions to the premises, he permitted the defendant who
was then in need of accommodation to occupy part of the premises without paying
any rent. According to him he did this because the defendant was his brother
and also in appreciation of the financial help he gave him when he was engaged
in the extension to the premises. However, soon after the defendant had settled
in the house he started laying claim to it and harassing tenants in the house.<o:p></o:p><o:p>&nbsp;</o:p>On about
three occasions their dispute went before the Tesano Police. The plaintiff
therefore instituted this action and claimed: “(1) a declaration of title to
house No. AB/83, Abeka, Accra; and (2) ejectment of the defendant.” For his
part, the defendant’s case is that he is the owner of the house in dispute. He
says it was he who asked the plaintiff to look for a house for him to buy.
Sometime later the plaintiff informed him about a house which was being offered
for sale. The plaintiff took him to inspect the house and also introduced him
to the caretaker. He decided to buy it. The detailed negotiations were carried
on between plaintiff and the caretaker, one Quarshie. He was informed by the
caretaker the selling price of the house was ¢8,000. He therefore withdrew an
amount of ¢8,000 on 16 June 1975 from his bank account and gave same to the
plaintiff who informed him that he would pay the money into his (the
plaintiff’s) account and issue a cheque to the vendor.<o:p></o:p><o:p>&nbsp;</o:p>The owner
of the property was one Madam Emelia Amedahe. The crux of the defendant’s case
is that although the real negotiations for the purchase of the house were done
by the plaintiff, this was done on his behalf and that it was he who provided
the money for the purchase of the house and also for the extension work which was
carried on after the purchase. He says he instructed the plaintiff not to let
out the self-contained apartment, which was part of the extension work, to
tenants. He eventually moved in in 1977 and has never paid rent to the
plaintiff or anybody for the use. He says after the purchase he asked the
plaintiff to collect rents from the tenants and account to him and this the
plaintiff did for some time. He therefore in turn counter-claimed for:<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">“(a) a
declaration of title to house No. AB/83, Abeka; <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">(b) A declaration
that all sums paid to the plaintiff on account of rent are held in constructive
trust for the defendant by the plaintiff; <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">(c) An
order that any such sum be paid to the defendant with interest; <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">(d) an
order that the defendant be at liberty to set off all sums paid by the
plaintiff to the defendant’s account against sums held in constructive trust by
the plaintiff for the defendant; and <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">(e) Perpetual
injunction to restrain the plaintiff from interfering with the defendant’s
title to and his use and enjoyment of house No. AB/83, Abeka.”<o:p></o:p>