COMFORT ABLA AGBOSU vs. CAPTAIN CHARLES BOAFO [1999]DLCA6693

Date	1999-04-29
Suit No.	CIVIL APPEAL NO.90/92.
Citation No.	[1999]DLCA6693

FORSTER J.A. (PRESIDING)

BENIN J.A.

AFREH J.A.

E. NARH FOR PLAINTIFF/RESPONDENT

N.A.O. AMEGATCHER FOR DEFENDANT/APPELLANT.

[1999]DLCA6693
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													<main id="main" class="content" style="min-height: 60rem" >COMFORT ABLA AGBOSU<o:p></o:p>vs.<o:p></o:p>CAPTAIN CHARLES BOAFO<o:p></o:p>[COURT
OF APPEAL, 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">

CIVIL APPEAL NO.90/92.&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: 29TH APRIL, 1999<o:p></o:p>

N.A.O.
AMEGATCHER FOR DEFENDANT/APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>BENIN, J.A. <o:p></o:p>This
is an appeal from the decision of the High Court, Koforidua entered in favour
of the plaintiff, who sued for herself and on behalf of her children who she
had by the late Seth Kwabla Agbosu of Battor–Aveyime.&nbsp; The defendant is a retired officer of the
Ghana Army.&nbsp; The dispute is over a piece
of land with building thereon situate at Gbejirmanya - Somanya. There is no
dispute about the identity of the property in question.&nbsp; The plaintiff sued for declaration of title,
recovery of possession, damages for trespass and perpetual injunction against
the defendant. Her grounds for these claims were pleaded in a statement of
claim in which she averred that she was joint purchaser of the land with her
late husband S. K. Agbosu (hereinafter referred to as the deceased). That it
was she and her children, with the consent of the deceased, who put up a six
room house on the land. That against their protest (that is plaintiff and her
children), the deceased sold the property to the defendant.&nbsp; The deceased sued the children over this
property at the High Court but later discontinued same.&nbsp; The defendant has since January, 1985 entered
the land to exercise acts of ownership.&nbsp;
Hence this action.&nbsp; For his part,
the defendant averred that he bought this property from the deceased after he
had caused proper search to be made at the Lands Registry, Koforidua which
search disclosed the deceased to be owner thereof free from any
encumbrance.&nbsp; That he paid the purchase
price and had documents duly registered in his name.&nbsp; That it was only after the purchase was
completed that the plaintiff and her children protested and they entered the
land to harvest food crops there.&nbsp; He
denied knowledge of the litigation between the deceased and his children over
this property.&nbsp; He averred that as a
wealthy man, deceased would not buy land with money provided by the
plaintiff.&nbsp; That he had acquired a legal
title to the property and plaintiffs were estopped from denying that. <o:p></o:p>In
her reply plaintiff averred that the documents on the property bore the name of
the deceased alone, but explained this was done purely out of convenience.&nbsp; That after the sale the deceased was
confronted and he apologised for his acts and offered to pay for the land and
building but she rejected the offer and insisted on her right.&nbsp; That the deceased lost his wealth and was
dependent to a large extent on the plaintiff. <o:p></o:p>The
issues agreed upon for hearing were: <o:p></o:p>(1)
Whether or not the defendant purchased the land in dispute with knowledge of
plaintiff’s interest in the said property. <o:p></o:p>(2)
Whether or not the plaintiff owned the property jointly with her late husband. <o:p></o:p>(3)&nbsp; Whether or not the defendant has acquired any
legal title and interest in this land. <o:p></o:p>Evidence
was led by and for both parties and at the end of the day the trial court
resolved all the issues in favour of the plaintiff.&nbsp; The court's reasons will be unfolded as we go
on to discuss the various grounds of appeal which are:<o:p></o:p>(1)&nbsp; Since evidence on record shows the late Seth
Agbosu was a wealthy goldsmith and since at the peak of his wealth he purchased
the property in dispute in his own name and since during his lifetime he filed
a claim to the effect that he was the sole owner of the property and since the
plaintiff could not lead any concrete evidence to rebut that, the learned trial
Judge misdirected herself and erred when she held that the late Seth Agbosu
bought the property jointly with the plaintiff as a normal practice between
husband and wife who are illiterates. <o:p></o:p>(2)
Since the claim of the plaintiff was for a declaration of joint title and
ownership and since the plaintiff did not discharge the onus required by law on
her the learned trial judge erred in giving judgment in her favour. <o:p></o:p>(3)
Since the plaintiff instituted the action for and on her own behalf and on
behalf of her children and since plaintiff’s children could be properly
described as parties and gave evidence as witnesses the learned trial Judge
erred in relying mostly on the evidence of plaintiff’s children who are
interested parties in the matter to establish the claim of the plaintiff. <o:p></o:p>(4)&nbsp; In view of the fact that the claim of the plaintiff
was for joint ownership and in view of the fact that even if plaintiff has
succeeded in establishing her claim she would have been entitled to only a
portion of the property, the learned trial Judge misdirected herself and in the
process occasioned a grave miscarriage of justice when she declared the sale
agreement between the late Seth Agbosu and the defendant as null and void. <o:p></o:p>(5)
Since the defendant bought the property from the late Seth Agbosu who was the
owner of the property and since defendant was placed in possession of the
property and exercised covert acts of ownership for more than three years
before plaintiff instituted the present action the learned trial Judge erred in
holding that the defendant's act of possession amounted to trespass in law. <o:p></o:p>(6)
The learned trial Judge misdirected herself in holding that Exhibits 1, 5 and 6
tendered in support of the search were dubious. <o:p></o:</main>