BOATENG vs. BOATENG [1995]DLCA5292

Date	1995-04-12
Suit No.	[1994 - 95] 2 G B R 915 – 924 CA
Citation No.	[1995]DLCA5292

ADJABENG JA

LAMPTEY JA

LUTTERODT JA

S K AMOFA FOR THE APPELLANT.

ANIN YEBOAH FOR THE RESPONDENT.

[1995]DLCA5292
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													<main id="main" class="content" style="min-height: 60rem" >BOATENG<o:p></o:p>vs.<o:p></o:p>BOATENG<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 915 – 924&nbsp; CA&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: 12 APRIL 1995<o:p></o:p>

ANIN
YEBOAH 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">

ADJABENG
JA, LAMPTEY JA, LUTTERODT JA<o:p></o:p>

</div>ADJABENG JA. <o:p></o:p>The
plaintiff-appellant who is the successor to the defendant-respondent’s late
father, Jonas Kofi Boateng, instituted an action at the High Court, Koforidua
against the defendant-respondent herein. His claim is for a declaration that
house No BT/D7, Koforidua, which the defendant included in the inventory of the
letters of administration she obtained in respect of the estate of her late
father, was not the self-acquired property of the said deceased but rather
family property.<o:p></o:p>The
case put up by the plaintiff was that the land on which the house in dispute
was built had been purchased by the deceased’s mother called Yaa Donkor.
According to the plaintiff’s evidence, after purchasing the land in dispute, the
said Yaa Donkor built a swish building comprising three rooms on a portion of
the land and lived therein with her family. She also built a four-room
uncompleted structure on the said land; that it was this uncompleted structure
which the defendant’s late father with his said mother’s permission later
pulled down and built the block house now in dispute in its place. It is the
contention of the plaintiff-appellant, therefore, that the house built by the
defendant-respondent’s late father could not be his self-acquired property. The
plaintiff called three witnesses to support his case.<o:p></o:p>The
defendant-respondent, on the other hand, contended that her late father had
given money to the said Yaa Donkor with which the said Yaa Donkor, the mother
of the defendant’s late father bought the land in dispute and built the swish
buildings thereon. Defendant-respondent based her case on what she alleged her
late father had told her, and also on the diaries kept by her said late father.<o:p></o:p>The
trial judge accepted the story of the defendant, and so found that the
defendant’s late grandmother, Yaa Donkor, in buying the land in dispute, acted
as the agent of her son, the defendant’s late father. She held, therefore, that
the land in dispute was the self-acquired property of the defendant's late
father.<o:p></o:p>Dissatisfied
with the decision of the court, the plaintiff appealed to this court. Four
grounds of appeal were argued before us. These are the original ground (a) and
the additional grounds 2, 5, and 7. These read as follows:<o:p></o:p>“(a) The learned trial judge erred in
holding that Yaa Donkor acted as agent in acquiring the plot of land for her
son J K Boateng when there was no evidence whatsoever in support of this claim.<o:p></o:p>(2) The learned trial judge erred when
she dwelt her findings on the entries in the diaries which contained only
entries on the block building and nothing about the acquisition of the land.<o:p></o:p>(5) The learned trial judge failed to
consider the origin of the existing roofed swish building before Boateng built
the block house and concentrated all her efforts on the block building, relying
solely on self-serving evidence of the defendant-respondent.<o:p></o:p>(7) The rejection of exhibit A is
wrong in law.”<o:p></o:p>Arguing
the first ground above, that is, ground (a) counsel for the appellant submitted
that the evidence showed that the plot of land on which the defendant’s father
built the house in dispute had been purchased by Yaa Donkor, the defendant’s
grandmother. Counsel submitted that the trial judge was wrong, in the face of
this evidence of the plaintiff which was amply supported by the evidence of PW2
and PW3 in coming to the conclusion that the said Yaa Donkor acted as the agent
of the defendant’s father in purchasing the land in dispute when there was no
evidence corroborating such an assertion by the defendant.<o:p></o:p>In
respect of the next ground of appeal argued, additional ground 2, it was argued
by counsel for the appellant that there was nothing in the diaries of the
defendant-respondent’s late father, tendered in evidence, about the acquisition
of the land in dispute, but that the diaries contained only information about
the expenses made in respect of the block building built on the land by the
defendant’s father. It was contended therefore that the trial judge was wrong
in concluding that “the house was the sole property of the late J K Boateng.”<o:p></o:p>It
was also submitted that if the land in dispute had indeed been purchased by the
defendant's father, there would have been no need for it to be transferred
later from his niece, in whose name it had been registered, to him for a
consideration of £800. The trial judge should therefore have dealt with the
issue why the disputed land should have been so transferred to the defendant’s
father by his niece, even at a police station. The failure of the trial judge
to deal with this issue, it was contended, made it rather difficult for her to
realise that the conduct of the defendant’s late father in this transaction was
meant in counsel’s own words, “to throw dust into the eyes of members of the family.”<o:p></o:p>As
regards ground 5 of the additional grounds of appeal, quoted above, the
appellant’s counsel argued that the trial judge was wrong in ignoring the
evidence of the plaintiff’s first witness whom counsel considered an
independent witness. To counsel, the trial judge should have relied on this
evidence rather than on the evidence of the defendant which the judge accepted,
as counsel was of the view that the defendant’s evidence was self-serving and
not from an independent source.<o:p></o:p>Lastly,
counsel for the appellant submitted that the trial judge was wrong in rejecting
a document, marked as R1, which the plaintiff sought</main>