DOKU vs. DOKU AND ANOTHER [1993]DLCA4231

Date	1993-05-27
Suit No.
Citation No.	[1993]DLCA4231

AMPIAH JSC

ESSIEM JA

ADJABENG JA

DR SETH TWUM FOR THE APPELLANT.

I R QUANSAH FOR THE RESPONDENTS.

[1993]DLCA4231
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													<main id="main" class="content" style="min-height: 60rem" >DOKU<o:p></o:p>vs.<o:p></o:p>DOKU AND ANOTHER<o:p></o:p>[COURT
OF APPEAL, TEMALE]<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">

&nbsp;&nbsp; [1993 - 4] 1 GBR 336 - 341 SC&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 27 MAY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DR
SETH TWUM FOR THE APPELLANT.<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">

I
R QUANSAH 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 1.0pt 0in">

AMPIAH
JSC, ESSIEM JA, ADJABENG JA<o:p></o:p>

</div>AMPIAH
JSC. This is an appeal by the plaintiff from the decision of the High Court,
Tamale dated 22 May 1989. In her amended writ of summons, the plaintiff claimed
against the defendant for: (1) declaration that House No 1.86, Tamale is the
property of the plaintiff; (2) an order of specific performance against 1st
defendant to execute a deed of assignment of House No 1.86 to the plaintiff;
(3) alternatively an order that House No 1.86 is family property for the
benefit of the exclusive family consisting of plaintiff, her children and 1st
defendant and that the same cannot be sold by the 1st defendant without the
consent of the plaintiff and her children; (4) an order that the sale or
purported sale of House No 1.86 by the 1st defendant to 2nd defendant is null
and void and of no effect; (5) alternatively a declaration that House No 1.86
is affected by trusts under which the plaintiff and, or, her children are
beneficiaries and that the sale by the 1st defendant to the 2nd defendant is
null and void.<o:p></o:p>The
defendants denied the plaintiff’s claim; the 2nd defendant counterclaimed for:
(a) a declaration of title to plot No 1.86 Tamale together with the house
thereon; (b) perpetual injunction restraining the plaintiff, her servants, and,
or agents from interfering with the 2nd defendant’s possession and enjoyment of
the said property; (c) an order that the plaintiff shall account to the 2nd
defendant in respect of all rents collected by her from tenants in House No 1.
86, Tamale and (d) damages for trespass.<o:p></o:p>The
plaintiff who had been married to the 1st defendant for forty years at the time
of the action and had ten children (seven of whom were living at the time of
the action) by that marriage, claimed that she had contributed to the
acquisition of House No 1.86 Tamale, the subject-matter of the action, and that
by that contribution she had become either the owner or joint-owner of the
property with the 1st defendant and her children by him. She contended that the
1st defendant was a mere trustee of the property and that he could not dispose
of the property without her prior consent. She gave evidence of how she had
made her contribution to the acquisition and called witnesses to support her
claim. The 1st defendant resisted the claim and also called evidence as to how
he had through his own resources acquired not only this house but other houses
also. He contended that as the sole owner of the property he had the right to
sell the property to the 2nd defendant without any reference to the plaintiff.
He also called witnesses in support of his claim. The 2nd defendant’s case was
that he had purchased this property for value without notice of any
encumbrances if indeed there were any.<o:p></o:p>In
my view, the main issues which arose out of the pleadings and evidence for
determination were:<o:p></o:p>1.
Did the plaintiff own the house alone or did she contribute to the acquisition
of the property?<o:p></o:p>2
Was a trust created by reason of such contribution, if any?<o:p></o:p>3.
Was the house acquired by the 1st defendant solely from his own resources?<o:p></o:p>4.
Who then is the owner of this property?<o:p></o:p>5.
Was the 2nd defendant a bona fide purchaser for value without notice of any
incumbrances if there was any?<o:p></o:p>The
trial judge, after an exhaustive and critical evaluation of the evidence,
dismissed the plaintiff’s claims and gave judgment for the 2nd defendant on his
counterclaim. The plaintiff has appealed against this judgment on many grounds.
The thrust of counsel’s argument however was that the judgment was against the
weight of evidence.<o:p></o:p>It
could be seen from the nature of the pleadings and the evidence led in support
that the decision of the court on the matter rested wholly or substantially on
the facts. The plaintiff called not less than ten witnesses, including herself,
to establish facts on her contribution to the acquisition of the property. The
1st defendant on the other hand called not less than six witnesses, including
himself to establish his pecuniosity and capability in acquiring the property
without any help, financial or otherwise, from the plaintiff or any of his
children. The only question of law involved in the action was whether a trust
had been created, if there was contribution from the plaintiff, and whether the
2nd defendant could be said to be a purchaser for value without notice so as to
acquire title to the property. This issue of law the trial judge, from his
findings and conclusions, found it unnecessary to determine. In coming to his
decision, the trial judge made the following relevant findings of fact among
others: (1) that the 1st defendant alone negotiated to buy the house without
any prior discussions or communication with the plaintiff; (2) that there had
never been any intention to own the house jointly with the plaintiff and their
children; (3) that the 1st defendant paid for the uncompleted house from his
own resources and completed the house on his own without any assistance from
the plaintiff or any of their children; (4) that the 1st defendant put tenants
in the house and collected rent and rent advances from the tenants for his own
use without accounting to any body; he issued them with rent cards; (5) that
the 1st defendant put in the plaintiff as a caretaker who collected rents from
the tenants and accounted to the 1st defendant; (6) that all service bills bore
the 1st defendant’s name and were settled by the tenants themselves outside
their rents; (7) that the 1st defendant mortgaged this house for a loan and
used the house as collateral and (8) that no moneys were sent by the plaintiff
to the 1st defendant as contribution towards the acquisition of this house.<o:p></o:p>On
the plaintiff’s own showing she could not claim to be the sole owner of this
house.<o:p></o:p>Her
claim was only relevant to her alleged contribution to the acquisition of the property
which if accepted, </main>