AMANKWAH AND OTHERS vs. NSIAH [1995]DLCA5202

Date	1995-11-09
Suit No.	[1994 - 95] 2 G B R 758 – 774 C A
Citation No.	[1995]DLCA5202

ESSIEM JA

BROBBEY JA

ACQUAH JA

E D KOM WITH HIM PAUL ACHIAMPONG FOR THE APPELLANTS.

K K ATTOBRAH FOR THE RESPONDENT.

[1995]DLCA5202
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													<main id="main" class="content" style="min-height: 60rem" >AMANKWAH AND OTHERS<o:p></o:p>vs.<o:p></o:p>NSIAH<o:p></o:p>[COURT
OF APPEAL]<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">

[1994 - 95] 2 G B R 758 – 774 C A&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: 9 NOVEMBER 1995<o:p></o:p>

K
K ATTOBRAH 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">

ESSIEM
JA, BROBBEY JA, ACQUAH JA<o:p></o:p>

</div>BROBBEY JA. <o:p></o:p>This
is an appeal from the decision of the Kumasi Circuit Court over the disputed
ownership of a house numbered as Plot 8, Block 2, situated at Manhyia in
Kumasi.<o:p></o:p>The
facts which gave rise to the dispute were as follows: One Opanin Kwadwo Oppong
was the person who built the house. That was not disputed by the respondent,
save that she claimed to have given to the late Oppong all the money he spent
to build it. When the house was completed in 1961, he took occupation of it
with his wives and children together with his sister who is the respondent in
this appeal. Two years after their occupation of the house, the respondent
vacated it. According to some of the witnesses who testified for the appellants,
Oppong ejected her for misbehaviour. According to the respondent, however, she
left the house on her own accord because the wives of Oppong were worrying her
during her stay in the house and she felt she had to leave in order to allow
her brother to live there in peace with his wives.<o:p></o:p>Oppong
stayed in the house over 20 years till he died in 1985. After his death, the
respondent instituted a consolidated action in the circuit court, initially
asking for ejectment from the house of all the appellants who are the wives and
children of the late Oppong. The circuit court gave judgment for her. It was
against that judgment that the wives and children who shall hereafter be
referred to as the appellants appealed to this court.<o:p></o:p>In
arguing the appeal, E D Kom who appeared for the appellants contended that the
facts of this were on all fours with the Supreme Court case of Kwame v Serwah,
[1993-94] 1 GLR 429, SC. He therefore submitted that the principles enunciated
therein should be applicable to this case. In that case, the Supreme Court
found that the plaintiff bought and owned a piece of land in Kumasi but it was
the defendant's father who built on it. It was held, inter alia, that:<o:p></o:p>(1)
Kumasi lands are governed by English law and the rules on limitation of actions
and estoppel applied to actions on Kumasi lands<o:p></o:p>(2)
Ownership of the house should be proved distinctly from ownership of the land
on which it was situated and further that the ownership of the land and house
could be decreed in favour of different people.<o:p></o:p>(3)
Proof of ownership of the house should be by inter alia evidence of actual
construction and over acts of ownership after its completion.<o:p></o:p>The
appellant’s grounds of appeal as appearing in the notice papers were as
follows:<o:p></o:p>“(a) The judgment is very much against
the weight of evidence.<o:p></o:p>(b) The plaintiff failed to discharge
the burden of proof on her and the trial judge therefore erred in entering
judgment in favour of the plaintiff.”<o:p></o:p>Mr
Kom filed two additional grounds of appeal but abandoned the first and argued
only the second ground. On the authority of Kwame v Serwah supra that Kumasi
lands were governed by English law, the respondent’s action in the instant case
was clearly statute-barred. Construction of the disputed house was completed in
1961. The late Oppong and the appellants together with the respondent occupied
it in that same year. If the pre-1973 law of limitation were to be applied, the
relevant statute would be the Limitations Act 1623 (21 Jac 1 C 16). It provided
that suits in respect of lands were barred after twenty years from the date
when the cause of action arose. Under that law, the action should have been
commenced by 1982. Under the Limitations Decree 1973 (NRCD 54) s 10, the suit
should have been commenced twelve years from 1973. By that Decree, this suit
should have been commenced by 1985. In so far as the writ in the instant case
was issued in 1987, the respondent’s suit was statute-barred both under the
colonial law on limitations and the current Limitations Decree of 1973 (NRCD
54).<o:p></o:p>In
his judgment, the trial judge relied mainly on documentary evidence in giving
judgment for the respondent. Among those documents were rent cards notably
exhibits 1 and B. It was his view that the mere fact that they bore the name of
the respondent as the landlord supported her claim that she was the owner of
the house. That view was fallacious because Kofi Owusu, the 2nd defendant,
stated in no uncertain terms that it was he who inserted the particulars on the
cards. Additionally, he maintained that he was instructed by the late Oppong to
collect the rents; the respondent did not instruct him. Thirdly he gave the
rent collected to the 6th defendant, the 2nd wife of the late Oppong. It was
not given to the respondent. Lastly, he asserted that when the tenants left the
house, it was the late Oppong who re-let the rooms to new tenants. He claimed
to have lived in the house for 33 years as against the respondent’s stay for
only two years. He surely must have known what he was talking about.<o:p></o:p>From
his evidence it is obvious that he must have inserted the landlord’s name on
the rent card on the instructions of the late Oppong who asked him to collect
the rents. In the light of these cogent pieces of evidence, it could not be
correct to conclude that the mere fact that the respondent’s name appeared on
the rent card as the landlord made her the owner of the house.<o:p></o:p>The
rent cards on which the respondent pegged her case and on which the trial judge
placed much premium were even defective in that they stated on their face that
“if the person receiving the rent was not the landlord please specify status”
and yet the status of Kofi Owusu who was not the landlord but collected the
rent </main>