AMEGAZO vs. KEMEVOR AND ANOTHER [1995]DLSC5203

Date	1995-07-18
Suit No.	[1994 - 95] 2 G B R 881 – 887 SC
Citation No.	[1995]DLSC5203

AMUA-SEKYI JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

KPEGAH JSC

E D KOM FOR THE APPELLANT.

HODASI (MISS) FOR KUDJAWU FOR THE RESPONDENTS.

[1995]DLSC5203
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													<main id="main" class="content" style="min-height: 60rem" >AMEGAZO<o:p></o:p>vs.<o:p></o:p>KEMEVOR AND ANOTHER<o:p></o:p>[SUPREME
COURT, ACCRA]<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 881 – 887 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; DATE: 18 JULY 1995<o:p></o:p>

HODASI
(MISS) FOR KUDJAWU 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">

AMUA-SEKYI
JSC, WIREDU JSC, BAMFORD-ADDO JSC, HAYFRON-BENJAMIN JSC, KPEGAH JSC<o:p></o:p>

</div>BAMFORD-ADDO JSC. <o:p></o:p>By
a lease made on 23 February 1952 between the Governor of the Gold Coast acting
by the Acting Commissioner of Lands, on the one hand, and the plaintiff’s
father (deceased) on the other part, a plot of land with a building thereon
numbered 331, South Labadi Estate was leased to the plaintiff’s father for a
term of 30 years commencing on 1 May 1949 at the yearly rate of twenty nine
pounds eight shillings, payable in 12 equal instalments of two pounds, eight
shillings on the first day of each month in advance during the continuance of
the said term. The plaintiff’s father went into occupation of the house on the
commencement of the lease and was later joined in the house by a tenant, being
the defendant’s father who paid a monthly rent of five pounds to the
plaintiff’s father. The latter moved to Frankadua, his hometown later where he
stayed until his death.<o:p></o:p>In
view of the very cordial relationship between the two men when the plaintiff’s
father left Accra he entrusted to the defendants’ father the responsibility of
making the requisite monthly instalments of two pounds eight shillings to the
State Housing Corporation which had taken over the management of the South
Labadi Estate from the Ministry of Works and Housing. The balance remaining
from the five pounds rent was then paid by the defendants’ father to the
plaintiff’s father who visited Accra regularly and lodged at the said house
during those visits.<o:p></o:p><o:p>&nbsp;</o:p>In
1959 the plaintiff’s father offered the house for sale to the defendants’
father for four hundred and fifty pounds (£450). The former wanted payment for
the house to be effected in exchange for a corn mill which he wanted to take to
Frankadua. The defendants’ father who was then a Manager at UTC bought a corn
mill which he sent to plaintiff’s father. The plaintiff’s father brought down
with him the title deed namely exhibit 1 being the indenture of lease on the
house No 331 South Labadi Estate and surrendered same to the defendants’ father
to complete the bargain. The defendants’ father went with plaintiff’s father to
the State Housing Corporation offices in Accra to request for the formal
transfer of title to the house into the defendants’ father’s name but were told
that this could not be effected until the whole purchase price of the house had
been fully paid to the State Housing Corporation. Since the plaintiff’s father
was not in a position to pay off the outstanding balance on the house it was
agreed between them that the defendants’ father should continue to pay the
monthly rent of two pounds eight shillings to the State Housing Corporation in
the name of plaintiff’s father until the full purchase price was paid before
the transfer could be effected. Accordingly the defendants’ father stopped
paying the plaintiff’s father any rent but continued to pay the two pounds in
the name of the plaintiff’s father until 1960 when the plaintiff’s father died.
He continued to pay the said instalments to the State Housing Corporation until
1964 when he also died. After the death of the defendants’ father the
defendants and their uncle DW1 continued to make payment to the State Housing
Corporation until 1977 when the purchase price of the house was fully paid for.<o:p></o:p>From
1959 up to 1983 there was no correspondence or contact between the plaintiff’s
father or any of his children or members of his family and the defendants’
father or the defendants until 26 December 1983 when the plaintiff wrote to the
defendants demanding arrears of rent from February 1977 to June 1984 and giving
three months notice to quit the house or face legal action. The defendants
replied to that letter on the 16 February 1984 to the effect that the house
belonged to their father and would therefore not comply with the request to
quit the house. Thereupon the plaintiff took action at the circuit court
claiming: (1) recovery of possession of house No 331 South Labadi Estate; (2)
arrears of rent, mesne profits and (3) perpetual injunction restraining the
defendants from entering upon or in anyway interfering with house No 331, South
Labadi Estate.<o:p></o:p>The
circuit court gave judgment for the defendants and the plaintiff appealed to
the Court of Appeal which court upheld the decision of the trial circuit court
and dismissed the appeal. The plaintiff appealed again to the Supreme Court.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff filed seven grounds which are (a) – (g), substantially as filed and
argued in the Court of Appeal. Counsel for the plaintiff-appellant herein (hereinafter
called the “plaintiff”) argued most of the grounds together and submitted that
by the nature of the plaintiff’s claim, the burden of proof lay on him, but
since the defendants pleaded that the house initially belonged to the
plaintiff’s father, but was later sold to the defendant’s father, the burden of
proof shifted to the defendants. He cited the case of Lawer v Kwami (1958) 3
WALR 473 where it was held that:<o:p></o:p>“A plaintiff, seeking a declaration of
title to land must succeed on the strength of his own case, but where a
defendant admits the original title of the plaintiff, the onus of proof shifts
to the defendant to show that the plaintiff has been divested of his title. If
the defendant fails to establish such divesting the plaintiff is entitled to
succeed.”<o:p></o:p>He
argued that in order to discharge the burden upon the defendants they must
prove by positive evidence the purchase, installation and the running of the
corn mill by plaintiff’s father in his life time. Counsel submitted that since
there was no positive evidence to establish the sale of the house to the
defendants’ father both the circuit court and the Court of Appeal used long
possession and the surrender to the title deed only, to prove the sale. That
they therefore erred in giving judgment for the defendants.<o:p></o:p>Proof
of sale need not come from evidence of eye witnesses to the sale only. In the
case of Dodoo v Gyansa [1960] GLR 9 it was held that:<o:p></o:p>