OSEI BONSU & 2 ORS vs. KWADWO MENSAH & ANOTHER [2003]DLCA6561

Date	2003-02-13
Suit No.	CIVIL APPEAL NO. 2/2003
Citation No.	[2003]DLCA6561

LARTEY J.A.

OWUSU ANSAH J.A.

ANIM J.A. C

OBENG MANU FOR THE PLAINTIFF/APPELLANT

[2003]DLCA6561
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													<main id="main" class="content" style="min-height: 60rem" >OSEI BONSU &amp; 2 ORS<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>KWADWO MENSAH &amp;
ANOTHER<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 2/2003&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: 13TH FEBRUARY, 2003<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

OBENG
MANU FOR THE PLAINTIFF/APPELLANT<o:p></o:p>

</div>CORAM:
<o:p></o:p>LARTEY J.A., OWUSU ANSAH
J.A., ANIM J.A. C<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>OWUSU J.A.:<o:p></o:p>The
plaintiffs/appellants hereinafter referred to as Appellants, issued a writ
against the Defendants/Respondents referred to simply as Respondents jointly
and severally for the following reliefs:<o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
"An order that plot No. 17 Block 111,
Ampabame, Kumasi was acquired by Kwame Appiah (deceased) and developed by
Akwasi Obeng (deceased) and is thus family property.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;"An order that the transaction which
took place between Akwasi Obeng (deceased) and defendants herein which led to
the possession of the house by Defendants was a customary law pledge and not a
sale and for a further order nullifying any purported sale of the said house
and land."<o:p></o:p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;An order for recovery of possession of the
said house from Defendants upon tendering the pledge sum of N ¢600.00 (six
Hundred Cedis).<o:p></o:p>&nbsp;The Respondents resisted the Appellant's Claim
contending that the plot No.17, Block 111, Ampabame, Kumasi with the building
thereon was the property of Kwasi Obeng. That they bought the said building
outright from Kwasi Obeng after satisfying themselves that Obeng was the
undisputed owner of the plot with the building thereon. <o:p></o:p>They
therefore counter-claimed for "title to House number Block 111, plot 17
Ampabame, Kumasi through sale to them by late Kwasi Obeng. At the end of the
trial, the Appellant's Claim was dismissed and even though the court did not
decree legal title in the 1st Respondent it declared him equitable owner and
entered Judgment in favour of the Respondents on their counter-claim.
Dissatisfied with the Judgment, the Appellants have come to this court,
complaining that:<o:p></o:p>&nbsp;"The Judgment is against the weight of
the evidence on record."<o:p></o:p>&nbsp;Four more additional grounds were filed
alleging errors of law on the part of the trial Judge. <o:p></o:p>Going
through the grounds of Appeal the main issue which calls for determination is
whether the transaction between Kwasi Obeng and the 1st Respondent which led
him into possession and subsequent occupation was a pledge as contended by the
Appellants or an outright sale as claimed by the Respondents.<o:p></o:p>&nbsp;On the evidence before the court, the issue of
ownership of the house was resolved by the trial court which made a positive
finding that the house is the self-acquired property of Kwasi Obeng and not his
family property.<o:p></o:p>&nbsp;In this appeal, that finding is not being
seriously challenged. Indeed, in counsel for the Appellant's written statement
of case, he submitted that whether the property belonged to Kwasi Obeng or
Opanin Kwasi Appiah or both, is neither here nor there. According to counsel <o:p></o:p>"what
is material is that both of them are dead and by law, the property (which ever
of the two it belonged to) has devolved upon their family represented by
Plaintiffs" This does not represent the true state of the law with regard
to Kwasi Obeng who died in 1993. If the property was Obeng's self-acquired
property then upon his death intestate 1993, it would devolve upon his wife and
children in accordance with P.N.D.C. Law 111 which came into force in June 1985
but not on his family as counsel stated.<o:p></o:p>&nbsp;To establish the family character of the
property, the pla</main>