ASIA vs. AYEDUVOR AND ANOTHER [1987]DLSC710

Date	1987-04-19
Suit No.
Citation No.	[1987]DLSC710

ABBAN JA

OSEI-HWERE JA

WUAKU J.A.

OWUSU-YEBOAH FOR THE DEFENDANT-APPELLANT.

ADZOE FOR THE PLAINTIFF-RESPONDENTS

[1987]DLSC710
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													<main id="main" class="content" style="min-height: 60rem" >ASIA <o:p></o:p>vs. <o:p></o:p>AYEDUVOR AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1GLR 175<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
19 APRIL 1987<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">

OWUSU-YEBOAH FOR THE DEFENDANT-APPELLANT. <o:p></o:p>

ADZOE FOR THE PLAINTIFF-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 WUAKU JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.A.<o:p></o:p>Osei-Hwere
J.A. (giving the first judgment at the invitation of Abban J.A.). Of the actors
who teamed up to launch this action and sustain it the first plaintiff and the,
second plaintiff are father and son respectively, whilst the second plaintiff witness
is the father of the first plaintiff. The first plaintiff witness is not
altogether out of the family circle as his father’s uncle is the second
plaintiff witness. The central actors were of course the second plaintiff
witness and his son, the first plaintiff. The object of the lawsuit was to
recover house No. AC/8, Ahamansu, Volta Region. This house was, indisputably,
put up by the second plaintiff witness on land acquired for himself from the
chief of Ahamansu.<o:p></o:p><o:p>&nbsp;</o:p>Sometime
in March 1974 the second plaintiff witness sold the house to the defendant, a
Kotokoli woman resident at Ahamansu, for ¢1,080. The sale was covered by a
document, exhibit 1, in which the second plaintiff witness declared himself the
bona fide owner. Among those named as witnesses to the document and who
allegedly signed by their marks is “Kwame Ayeduvor (son).” By common agreement
the son, the first plaintiff, never witnessed the sale. The second plaintiff
witness just caused his name to be put on the document to give, so to speak, a
more perfect assurance to the validity of his title. The sale was later
published before the chief of Ahamansu, the licensor of the second plaintiff
witness, with drinks supplied by the defendant.<o:p></o:p>Now,
nearly a decade after the said sale and the defendant’s continued occupation of
the house, she woke up one morning to find the first plaintiff claiming
ownership of the said house. The defendant resisted his claim and this
culminated in the action mounted by the first and second plaintiffs. In their
statement of claim the first plaintiff claimed that he is the owner of the
house and the second plaintiff also claimed that he was authorised by his
father to commence the action. The statement of claim went on:<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">“(3) That
the said house has been the residence of the children of the first 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">(4) That
recently I had information that a Madam Abatani Asia is occupying the said
house and the said defendant claims ownership of the house alleging that she
bought the house from one Gyato Ayeduvor. <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">(5) That
the said house has always been the first plaintiff’s property and that he never
authorised any person to transfer his interest in the said land or house or
both. <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">(6) That
any transaction concerning the said house was a fraudulent deal and cannot
therefore pass any title to anybody. <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">(7) The
plaintiff therefore claim recovery of possession of the said house and
perpetual injunction to restrain the defendant and his agents or assigns or
successors from ever dealing with the said house and ¢60,000 general damages for
trespass.”<o:p></o:p><o:p>&nbsp;</o:p>The
matters of substance pleaded in the defence were that the house was not for the
first plaintiff and that it was fraudulent for the plaintiffs to claim the
house which the second plaintiff witness had sold to her. The simple primary
issue which, in my view, fell to be decided at the trial was as to whether the
house was owned by the first plaintiff or by his father before the sale. To
support his claim, the first plaintiff testified that whilst he was in the Gold
Coast Army (ostensibly during the last war) he remitted a total sum of £105 to
his father to build the house. On his demobilisation in 1947, he returned to
Ahamansu to find that the house had been put up. He presented sheep and drinks
to thank his father. In 1969 he left for Togo (from where he and his father
hail) to look for work and stayed at Sokode in northern Togo. Between 1974 and
1983 his work took him to many countries and that apparently expl</main>