NSIAH vs. ATTUAHENE [1993]DLCA4386

Date	1993-11-18
Suit No.
Citation No.	[1993]DLCA4386

LAMPTEY JA

BROBBEY JA

FORSTER JA

POKU-APPIAH FOR THE APPELLANT.

DR AFREH FOR THE RESPONDENT.

[1993]DLCA4386
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													<main id="main" class="content" style="min-height: 60rem" >NSIAH<o:p></o:p>vs.<o:p></o:p>ATTUAHENE<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

[1992-93] 2 G B R 897 – 908&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: 18 NOVEMBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>POKU-APPIAH
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">

DR
AFREH 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 1.0pt 0in">

</div>BROBBEY
JA. The property in dispute in this appeal consists of a piece of land with a
house on it numbered as plot 8 Block IV, Odumasi Extension, Kumasi. The case of
the appellant in the trial court was that the land was originally acquired by
the respondent. The respondent incurred some debt to his employers. One Mr
Antwi paid the debt on behalf of the respondent. The respondent could not
refund to Antwi the amount paid on his behalf. The respondent, in repayment,
offered the land to the late Antwi to build on it. Antwi entrusted the
construction of the house to the appellant. Eventually construction of the
house was completed. Antwi rented rooms in the house to tenants. He moved to
stay in the house some years later. Not long after moving into the house, Antwi
died.<o:p></o:p>Throughout
the lifetime of the late Antwi, the documents showing the ownership of the land
which were in the name of the respondent, remained in the possession of the
respondent. After Antwi died, the respondent rejected requests from Antwi’s
family for the documents. Instead, he laid claim to ownership of the house and
land in dispute.<o:p></o:p>In
his capacity as the customary successor of the late Antwi, the appellant sued
the respondent in the High Court claiming:<o:p></o:p>(a)
Declaration that the house is the family property of the appellant and members
of his family.<o:p></o:p>(b)
An order enjoining the respondent to assign the legal estate in the house to
the appellant.<o:p></o:p>(c)
Perpetual injunction restraining the respondent from interfering with the
appellant’s enjoyment of the property.<o:p></o:p>At
the trial court, the respondent resisted the claim, averring that he acquired
the plot for himself and provided the money for the construction of the house
and that accounted for the documents on the house being in his name. He denied
borrowing money from the late Antwi or surrendering the plot to him in payment
of any debt.<o:p></o:p>After
the trial, the High Court dismissed the appellant’s claim and entered judgment
for the respondent. It was against that judgment that the appellant appealed to
this court.<o:p></o:p>In
arguing the appeal, counsel for the appellant submitted that the late Antwi
provided money for the construction of the house and therefore the trial judge
should have ruled that a resulting trust was created. If there was evidence in
support of that submission, counsel’s argument could have been unassailable. A
critical examination of the record showed however that the evidence relied on
to support this contention was inadequate.<o:p></o:p>Evidence
on this issue was given by the son of the late Antwi who testified as PW2. He
said he saw his late father giving moneys to the respondent to construct the
house. This evidence was grossly discredited by the analyses of the trial
judge.<o:p></o:p>Firstly,
while his mother, PW1, could not give the value of the house, he confidently
stated the value to be ¢30,000. This, the trial judge rejected for the reason
that his mother said at the time of the construction of the house, a bag of
cement cost two shillings and six pence and therefore it surely could not have
cost as much as ¢30,000 then to build a mere boys quarters.<o:p></o:p>I
think the logic in that argument cannot be faulted. In any case his own
evidence showed that while the house was being constructed in 1952, he was only
about five years old. He could not have been old enough to recollect the series
of moneys taken from his late father by the respondent, let alone the precise
value of the moneys he collected, which he said totalled ¢30,000. Considering
the price of cement then, the trial judge rightly accepted the evidence of the
respondent that the house cost no more than ¢5,000 to be constructed.<o:p></o:p>The
other evidence relied upon to found resulting trust came from PW1 who testified
that she could not state with certainty the value of the moneys given to the
respondent. All she said on the amounts given to respondent was challenged by
the respondent. For instance, her assertion that the respondent was a
contractor was denied by him. Yet she led no other evidence in proof of that
assertion.<o:p></o:p>In
the long run the issue as to who provided money for the construction of the
house boiled down to the oath of PW1 against that of the respondent. The trial
judge preferred the version of the respondent that he provided the money. There
was more than ample evidence on record to support that conclusion. It follows
that there was no evidence in support of resulting trust. Counsel’s submission
therefore failed.<o:p></o:p>Counsel
for the appellant further argued that the late Antwi was in possession of the
house for over twenty years before his death and that supported the claim that
Antwi was the owner of the house. There is no doubt that Antwi was in control
and possession of the house for a considerable length of time. That was however
explained away, and in my opinion successfully too by the respondent, by his
testimony that at all relevant times he was living and working about 80 miles
from Kumasi while the late Antwi was based at Ejusu, obviously much closer to
Kumasi. He therefore entrusted the management of the house to Antwi.<o:p></o:p>One
point which militated against Antwi was that he had two wives. One was resident
in Kumasi. She never lived in the disputed house. Instead he rented a house for
her. One would have expected Antwi to have got his wife to live in the house if
the house really belonged to him. Secondly, even though Antwi claimed that he
owned </main>