OBENG vs. MFRAMAH [1988]DLCA791

Date	1988-04-21
Suit No.
Citation No.	[1988]DLCA791

WUAKU J.S.C

LAMPTEY JA

ESSIEM J.A

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

BERCHIE ANTWI FOR THE PLAINTIFF-RESPONDENT.

[1988]DLCA791
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													<main id="main" class="content" style="min-height: 60rem" >OBENG <o:p></o:p>vs. <o:p></o:p>MFRAMAH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 548<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
21 APRIL 1988<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">

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

BERCHIE ANTWI FOR THE PLAINTIFF-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">

WUAKU J.S.C., LAMPTEY AND ESSIEM JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ESSIEM J.A.<o:p></o:p>Essiem
J.A. delivered the first judgment at the invitation of Wuaku J.S.C. The facts
of this case may be stated briefly. According to the plaintiff, she obtained a
plot of land from the late Otumfuor Prempeh II. The plot was No. 19 Block D, Dichemso,
Kumasi. She prepared a building plan, made blocks on the land and caused sand
to be carted to the plot. She then entered into an oral agreement with one
Kwame Appiah, now deceased, a building contractor at Konongo to put up a
building based on the specifications contained in the plaintiff’s building
plan, on the said plot for the plaintiff at a fee of £800. According to the
plaintiff it was agreed that on completion of the building, the contractor,
Kwame Appiah, would take charge of the building, let it out to tenants and
collect the rents to defray the agreed fee of £800. It was further agreed that
the contractor should be responsible for the payment of “ground rent and other
reasonable outgoings touching the said premises.”<o:p></o:p><o:p>&nbsp;</o:p>It is the
case of the plaintiff that for about fourteen years after the completion of the
building, the late Kwame Appiah managed the said property, collected the rents
for it but never accounted to her. After the late Kwame Appiah had collected
rents for about fourteen years, the plaintiff called on him to render accounts.
She says she went to him twice at Konongo but no accounts were rendered. She
reported this to their head of family, one Atta Kofi, who at the time was the
chief of Achiase. He took no action but asked her to take her case anywhere she
liked. Atta Kofi alias Opanyin Kofi Brobbey gave evidence for the defendant as
the first defendant witness. She therefore decided to take over the house and
for seven months she collected the rents from the house. However, on the eighth
month a section of the tenants refused to pay their rents to her. She reported
the matter to the police and subsequently took action against Appiah in the
district court. Before the case could be heard, the Kenyasehene sent for the
plaintiff, when the plaintiff attended the Kenyasehene’s call she met the
contractor, Kwame Appiah, and his brother one Atta Kofi. The Kenyasehene
offered to settle the dispute and suggested sharing the house equally between
the plaintiff and the contractor. The plaintiff says she refused the terms
suggested by the chief. For refusing to accept the chief’s proposal the
plaintiff says she was made to pay nine pounds as sheep to pacify the
Kenyasehene. She then went to continue with her case in court. Her case is that
counsel for the defendant objected to the jurisdiction of the district court
and as a result she instituted the present action in the circuit court. Appiah
had then died and the defendant had been appointed his customary successor.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant does not deny the fact that the plot on which the building in dispute
stands belongs to the plaintiff. His case is that after the plaintiff had
contacted the late Kwame Appiah about the project, it was Kwame Appiah who
prepared the plan and built the house with his own money. His main case is that
any dispute which existed between the plaintiff and the late Kwame Appiah over
the ownership of the property was settled by the Kwabre Kenyasehene. He says
the property was shared into two and both the plaintiff and the late Kwame
Appiah had five rooms each. He contends that the plaintiff accepted the terms
of settlement and as such she is not entitled to the whole property as she now
claims.<o:p></o:p>The
plaintiff ‘s claim before the trial circuit court was 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 that the plaintiff is the owner of all the building and lessee of
plot number 19 block D, Dichemso, Kumasi; (b) an order for accounts of rents
collected from the plaintiff ‘s said house; (c) recovery of possession; 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">&nbsp;(d) an order of perpetual injunction restraining
the defendant, or his servants and agents or both from having anything to do
with the plaintiff ‘s said house.”<o:p></o:p><o:p>&nbsp;</o:p>The trial
judge after analysing the evidence before him gave judgment for the plaintiff.
He disbelieved the evidence of the defendant and his witnesses that there had
been a binding arbitration or settlement which prevented the plai</main>