MERI MAHAMA vs. MEMUNA GONJA [2000]DLCA6512

Date	2000-05-11
Suit No.	CIVIL APPEAL NO. 109/95
Citation No.	[2000]DLCA6512

ESSILFIE-BONDZIE JA. (PRESIDING)

TWUMASI JA.

ANSAH JA

[2000]DLCA6512
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >MERI MAHAMA<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MEMUNA GONJA<o:p></o:p>(DEFENDANT)<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO.
109/95&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: 11TH MAY, 2000<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ESSILFIE-BONDZIE JA. (PRESIDING),
TWUMASI JA., ANSAH JA.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;mso-outline-level:1;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>TWUMASI:
<o:p></o:p>This
is an appeal from the judgment of the High Court, Tamale delivered on the 25th
January, 1993. The appellant instituted an action against two defendants
claiming: <o:p></o:p>1)
a declaration that House No. 1.147 Tamale was the joint property of the
appellant and the first defendant. <o:p></o:p>2)
A declaration that the purported deed of gift of the said house executed by the
first defendant in favour of the second defendant by way of gift inter vivos
was null and void and ought to be cancelled. <o:p></o:p>The
appellant claimed further orders for injunction and account against the
defendants. The first defendant gave evidence at the trial, but judgment was
given in favour posthumously. The second defendant (hereinafter called the
respondent) luckily survived the full length of the trial with victory over
their common opponent the appellant. The first defendant was a cooked food
seller by vocation. Her business activities took her to Samreboi in the Western
Region of Ghana. While working in that town, she felt the need for someone to
provide her the comfort of a child. Apparently, she had no biological child of
her own. And as it is customary with Ghanaian family system, a loving relation
gave her a child in the person of the appellant to satisfy her avowed desire.
The latter was then of tender age in primary three at Sanlerugu in the Northern
Region but her mother, called Mamata, released her to stay with the first
defendant (deceased). After a short spell of stay with the appellant, the first
defendant left Ghana for business adventure in the Ivory Coast where she
continued with her trade. She prepared the food and sold it where it was needed
by prospective consumers. For the purpose of widening her entrepreneurial
horizon, she again moved to Burkina Faso where they worked at Quagadougou. In
her evidence-in-chief, the first defendant stated that sometime in 1964 she
came down to Tamale and purchased House No. 1.147. She tendered in evidence
Exhibit A, and indenture dated 8th September, 1996. She explained the reasons
for the delay in obtaining the said indenture from the Tamale Municipal Council
authorities. The document bears the name of the first defendant as the sole
purchaser. The appellant, for her part, contended at the trial in tune with her
Writ of Summons and Statement of Claim that she and the first defendant jointly
acquired the house in dispute and this claim had been stoutly denied by the
first defendant in her statement of defense and testimony at the trial. The
first defendant emphatically stated that she bought the house on her own
initiative and out of her own resources and that the appellant made no
contribution, financial or otherwise and was at no time considered as a
partowner. She denied ever telling the appellant’s mother that she jointly
purchased the house with the appellant or that she bought it out of proceeds
from my business in which the appellant was an equal partner. In an answer to a
question the first defendant stated at page 31 of the record: <o:p></o:p>“Automatically plaintiff had to assist
me in the house-keeping activities as well as in my business. I also took care
of the plaintiff caring for her needs like food, shelter and clothing. When
plaintiff came of age she could not stay at home and help me but rather chose
to follow young men. So when we came home I complained to the mother that I
would not return with her to Quagadougou. The mother told me she had spoken to
the plaintiff. I agreed and took her back. When we got back she ran away from
me only after two months. I made a report to the police who arrested the boy
who was keeping her and was brought back to me.” <o:p></o:p>The
first defendant continued that the appellant was brought down to Ghana to her
mother but she returned to Quagadougou to the same boy. Later the first
defendant came to Ghana and never heard of the appellant ever since. In
cross-examination, this damaging evidence was not discredited as no question
was put to the first defendant on it. Also all attempts by counsel to get the
first defendant to discredit her on her assertion that she bought the house
from her sole resources failed. The appellant found it extremely difficult to
substantiate her claim to joint ownership of the house. Earlier in her
evidence-in chief, the first defendant stated that while the while the
appellant was following me, she had four other girls who assisted her in the
business. This evidence also stood undiscredited. A witness called by the
appellant to testify as PW1 is on record as saying that the first defendant had
denied all the claims which the appellant had made. After reading his judgment,
I was filled with great admiration for the learned trial judge’s appreciation
of the law applicable to the claim and the able manner in which he analysed the
evidence before he made his findings of fact and applied the law to them. The
learned judge was right when he found that the relationship between the
appellant and the first defendant was that of parent and child with their
respective legal rights and obligations owed to the other and that this was the
reality in the instant case. Consequently, the cases applied by the judge
namely Okwabi v. Odonu [1957] 2 WALR 268; Quartey v. Martey [1959] GLR 377 and
Adjabeng v. Kwable (1960) GLR 37 which lay down the customary law principle
that a child’s contribution whether in kind or in cash to the acquisition of
property by his or her parent or any person in loco parentis did not ipso facto
make him or her a joint owner were right and apposition. On this essential and
decisive question of fact as to whether it was true that the appellant and the
first defendant agreed together to go to Tamale to buy the house I say
emphatically that from the account given by the defendant which I </main>