NTI AND ANOTHER vs. ANIMA AND ANOTHER [1986]DLCA949

Date	1986-06-05
Suit No.
Citation No.	[1986]DLCA949

ABBAN JA

OSEI-HWERE JA

AMPIAH J.A.

K. OHENE-AMPOFO FOR THE PLAINTIFFS-APPELLANTS.

E. D. KOM (WITH HIM K. W. MENSAH) FOR THE DEFENDANTS-RESPONDENTS.

[1986]DLCA949
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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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NTI AND ANOTHER <o:p></o:p>

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

[1984-86] 2 GLR 134<o:p></o:p>

DATE:
5 JUNE 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">

K.
OHENE-AMPOFO FOR THE PLAINTIFFS-APPELLANTS. <o:p></o:p>

E.
D. KOM (WITH HIM K. W. MENSAH) FOR THE DEFENDANTS-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, OSEI-HWERE AND AMPIAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.A.<o:p></o:p>The
appellants sought two reliefs in the High Court, Koforidua. First, for a
declaration that house No. C/71 situate at Asamankese and bearing the name of
Kwame Kuma (now deceased) was the property of the appellants’ family; and
secondly, an order to set aside the sale of the said house by the second
respondent to the first respondent. On 13 October 1983, the learned High Court
judge gave a judgment in which he refused to grant the appellants any of the reliefs
they had asked for and dismissed the action.<o:p></o:p><o:p>&nbsp;</o:p>It is
essential for a better understanding of the case to state fully the rival
stories canvassed by the parties before the trial court. The appellants
(hereinafter referred to as the plaintiffs) by their pleadings and in their
evidence contended that the house in dispute had been their family property on
the basis that one Amma Odum, a member of the plaintiffs’ family, originally
owned the land on which the house now stands. They alleged that this Amma Odum
in her lifetime put up a house on a portion of the land. But during the
construction of a road from Asamankese to Suhum, part of the building was
damaged; and only about four rooms in the house were not affected: So the whole
house had to be demolished; and since the said Amma Odum had no money to
rebuild a new house on the same site, she appealed to members of her maternal
family who agreed to contribute ¢400 each towards the cost of the
reconstruction. The principal members contributed and the total amount of ¢4000
which was realised was given to Amma Odum who in turn gave it to one Kwame Kuma
also a member of the family, with instructions that he, Kwame Kuma, should see
to the reconstruction of the house.<o:p></o:p><o:p>&nbsp;</o:p>Apart
from the ¢4,000, the plaintiffs said Amma Odum gave one of her cocoa farms to
Kwame Kuma to utilise the income therefrom to supplement the cost of the
building project. According to the plaintiffs, Kwame Kuma put up the building
as directed by Amma Odum with the funds as provided by members of the family.
The new house on its completion was numbered C/71, Asamankese. The rebuilding
took place about 34 years ago and Amma Odum died in December 1972 or thereabout
and Kwame Kuma also passed away about April or May 1974. The first plaintiff,
who gave evidence for himself and on behalf of the other plaintiff, concluded
his evidence-in-chief in the manner as follows:<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">&nbsp;“House No. C/71 is a family house. The family
never gave Kwame Kuma any authority to deal with the building as he liked.
Kwame Kuma was involved in a lorry accident in about 1974, he recovered but he
fell sick and was taken to Akwatia Hospital. At the time we did not know that
Kwame Kuma had taken any loan from the second defendant; at the time the first
defendant was living in the house in dispute. The first defendant came to Kwame
Kuma at the hospital in the presence of his wives and myself and told us that
the second defendant had come to collect the loan he had taken from them and
the first defendant said she had collected rents from the tenants in the house,
and that she wanted the passbook to go and pay the money to the second
defendant. I was sent to go and take the passbook to the hospital and he gave
it to the first defendant to go and pay the money to the second defendants.
Kwame Kuma instructed the first defendant to keep the passbook to pay the loan
until he got well. Kwame Kuma died after three months and I went to the first
defendant to ask her whether she had paid the loan so that she might return the
passbook to us but the first defendant told us that she had bought the house.
We went to the second defendants to ask and I was told by their counsel that
they themselves had bought the building and they had resold the building to the
first defendant. We therefore brought this action . . .”<o:p></o:p><o:p>&nbsp;</o:p>The
respondents (hereinafter referred to as the defendants) denied that the house
was the plaintiffs’ family property. The defendants gave detailed evidence,
supported by documents, as to how the second defendant (hereinafter referred to
as the Building Society) came to sell the house in dispute to the first
defendant. Their case was that the land on which the house in dispute stands as
well as the</main>