BRAIMAH DIOP (Substituted for ZINABU ASIMAWU N'DIAYE JAYI DECEASED) vs. AYISHETU AFODA AND 7 ORS [2002]DLCA6668

BRAIMAH DIOP (Substituted for ZINABU ASIMAWU N'DIAYE JAYI DECEASED) vs. AYISHETU... [2002]DLCA6668

Date	2002-12-12
Suit No.	SUIT NO. CA 100/2001
Citation No.	[2002]DLCA6668

OWUSU (MISS.) J.A. (Presiding)

ADINYIRA (MRS.) J.A.

OWUSU ANSAH J.A.

[2002]DLCA6668
																																						<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" >BRAIMAH DIOP
(Substituted for ZINABU ASIMAWU N'DIAYE JAYI DECEASED)<o:p></o:p>vs.<o:p></o:p>AYISHETU AFODA AND 7 ORS<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">

SUIT NO. CA 100/2001&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: 12th DECEMBER
2002<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>ADINYIRA (MRS.) J.A. <o:p></o:p>The
facts briefly are that one Madam Zinabu Asimawu N’Diaye Jayi (deceased) (simply
referred to hereinafter as Madam Zinabu) on 25 March 1996, brought an action
against the defendants appellants (hereinafter referred to as appellants) at
the Circuit Court, Accra <o:p></o:p>‘‘For recovery of possession of the
residential premises and all the stores, the defendants are occupying in house
No.D.714/4 Okaishie’’ <o:p></o:p>Her
claim was based on the will of her grandmother Asimawu Afoda. Madam Zinabu died
in the course of the trial and she was substituted by the present
plaintiff/appellant. In the course of the proceedings Francis Decland joined
the action as co-plaintiff. By an amended statement of claim filed on 6 June
1998, the co-plaintiff pleaded that he has bought the life interest of Madam
Zinabu and the reversionary interest of her son Abdulai Mayuka Fiston
respectively. He therefore claimed against the defendants jointly and severally
for: <o:p></o:p>(a)&nbsp; Declaration of title to all that piece or
parcel of land in extent 0.091 hectare (0.224 of an acre) more or less being
Parcel No. 66, Block 1 Section 30 situate at Accra in the Greater Accra Region.
<o:p></o:p>(b)&nbsp; Recovery of possession. <o:p></o:p>(c)
Perpetual injunction against the defendants and co-defendants their agents,
servants, assign, privies from interfering in any way whatsoever with his
property. <o:p></o:p>The
1st and 2nd defendants/appellants are the children of Abubakari Mama Jimah an
uncle of Madam Zinabu. The 3rd to 7th defendants/appellants are tenants in the
house in dispute. <o:p></o:p>The
co-defendants/appellants joined the action as the administrators of the estate
of the 1st and 2nd defendants/appellants. The defendants and
co-defendants/appellants (hereinafter referred to simply as appellants where
appropriate) by their amended statement of defence dated 8 July 1998 and filed
on 9 July 1998, traced their root of title to a conveyance dated 20th July 1940
and registered as No.3271/40 from Millet Solomon Millet to Fatima Adjua,
Asimawu, Rahamatu Mamah Jimah and Abubakari Mama Jimah. <o:p></o:p>Asimawu
was the grandmother of Madam Zinabu and Abubakari Mama Jimah the father of the
1st and 2nd appellants who was then an infant. They claimed Asimawu Afoda devised
only four rooms by her will to Madam Zinabu and therefore the latter did not
own the whole house, the subject matter in dispute. They claimed Madam Zinabu
sold these four rooms to their father for ten thousand Cedis in 1987. They
claimed that even if Madam Zinabu owned the house her action was statute
barred. Finally they claimed the co-respondent’s land title certificate was
obtained by fraud and therefore void. The particulars of fraud were <o:p></o:p>1.&nbsp; The co-plaintiff concealed material facts
from the Land Title Registrar. <o:p></o:p>2.&nbsp; The co-plaintiff never disclosed the presence
of the defendants and co-defendants in the land in dispute. <o:p></o:p>3.
The co-plaintiff never disclosed to the Land Title Registrar that there was an
action pending in the High Court concerning the land. <o:p></o:p>The
main issues for determination by the trial judge in his judgment were, (i) the
ownership of the house, (ii) whether Madam Zinabu sold her interest in four
rooms to the 1st and 2nd defendants’ father and (iii) whether the sale to the
co-respondent was valid. The trial judge held that the plaintiff respondent was
entitled to her claim and the co-plaintiff/respondent was declared owner of the
house. The appellants being dissatisfied appealed against the judgment on the
following grounds: <o:p></o:p>‘‘1.&nbsp;
The plaintiff and co-plaintiff having failed to establish their case the
learned trial judge gave them judgment.&nbsp; <o:p></o:p>2.&nbsp;&nbsp;
The judgment is against the weight of evidence.’’ These two grounds of
appeal are in effect the same and both counsels in their statements invariably
treated them as such. The gravament of Counsel for appellants’ submission was
that: <o:p></o:p>‘‘ Based on the will of Madam Asimawu
Afoda the plaintiff is only entitled to what the will devised to her and no
more. Since the will did not devise the whole of house No. D.714/4 to the
plaintiff she could not have passed title of the whole house to the
co-plaintiff. Nemo dat quod non habet.’’ <o:p></o:p>It
is therefore pertinent to look at the will itself, which was tendered in
evidence as Exhibit A. For purposes of brevity. I will quote only the relevant
portions. <o:p></o:p>‘‘I
give devise and bequeath all my property which I die possessed of to my grand-daughter
Zinabu Jayi Asimawu and I appoint my Executors and Trustees to be guardians of
my said grand-daughter and direct that they shall bring her up from the income
of my estate after payment of my funeral and testamentary expenses and just
debts. <o:p></o:p>I further
direct that on my said grand-daughter attaining the age of twenty-one or on her
marrying before attaining the age whichever happens first my Executors and
Trus</main>