GLADYS DORMAN & ABIGAIL QUAINOO vs. DIANA FENNING & ARNOLD QUARTEY [2004]DLCA6475

Date	2004-06-25
Suit No.	CIVIL APPEAL NO.: 49/2003.
Citation No.	[2004]DLCA6475

ANSAH JA [PRESIDING]

AMONOO-MONNEY JA

TWENEBOA-KODUA JA

ANTHONY NORVOR FOR APPELLANTS NATHANIEL MYERS FOR RESPONDENTS

[2004]DLCA6475
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													<main id="main" class="content" style="min-height: 60rem" >GLADYS DORMAN &amp; ABIGAIL QUAINOO<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>DIANA FENNING &amp; ARNOLD QUARTEY<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: 49/2003.&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; &nbsp; &nbsp; DATE: 25TH JUNE, 2004<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="text-align:justify;line-height:115%;border:none;
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<p class="MsoNormal" style="text-align:justify;line-height:115%;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">ANTHONY NORVOR FOR
APPELLANTS NATHANIEL MYERS FOR RESPONDENTS<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>AMONOO-MONNEY, J.A. <o:p></o:p>The
parties in this case are all blood relations. The two respondents are sisters.
The first appellant is the grandaunt of the respondents, the second appellant
is the uncle of the respondents and nephew of the first appellant. <o:p></o:p>2.
On 22nd June, 1998 the respondents, as plaintiffs, sued out a Writ of Summons
against the appellants, as defendants, in the Circuit Court, Accra claiming— <o:p></o:p>"(a)
Declaration that H/No. A. 234 West Korle Gonno now known as H/No. A. 630/3
Mamprobi, Accra is family property and the Plaintiffs and their siblings have a
right to stay (sic) in said house.<o:p></o:p>&nbsp;(b) Order of perpetual injunction restraining
the Defendants, their agents or heirs from interfering with the quiet enjoyment
of Plaintiffs and their siblings as family members of H/No. A. 630/3 Mamprobi,
Accra." In their Statement of Defence which was filed on 3rd July, 1998
the appellants counterclaimed against the respondents for—<o:p></o:p>&nbsp;"(a) An Order of recovery of possession
of their rooms occupied by the Plaintiffs in House No. 234 West Korle Gonno now
known as House No. A. 630/3 (No. 11) Ayikoi Road Mamprobi, Accra. <o:p></o:p>(b) Perpetual injunction to restrain
the Plaintiffs by themselves their heirs successors, servants, Judgments of the
Superior Courts 8725 Copyright © DataCenta Ltd. workmen or agents or otherwise
howsoever from interfering with the Defendants' quiet and peaceful possession
and enjoyment of House No. 234 West Korle Gonno now known as House No. A 630/3
Mamprobi, Accra and also known as No. 11, Ayikoi Road Mamprobi, Accra."<o:p></o:p>&nbsp;3. The issues that were set down for trial of
the case at the court below were:—<o:p></o:p>&nbsp;"(a) Whether or not H/No. 234 West Korle
Gonno now known as H/No. A. 630/3 Mamprobi, Accra is family property and thus
Plaintiffs and siblings as family members have a right to stay in the said
house. <o:p></o:p>(b)
Whether or not Plaintiffs are entitled to an order of perpetual injunction
restraining the Defendants, their agents or heirs from interfering with the
quiet enjoyment of Plaintiffs and their siblings as family members of H/No.
A.630/3 Mamprobi, Accra. <o:p></o:p>(c)
Whether or not Diana Darku (deceased) ever made any gift of H/No. A. 630/3
Mamprobi to 1st Defendant and one Victoria Mensah (deceased).<o:p></o:p>&nbsp;(d) Whether or not 1st Defendant has any legal
right to claim H/No. A. 630/3 Mamprobi as hers.<o:p></o:p>(e)
Whether or not the 1st Defendant (sic) and her sister namely Mrs. Mariam Addo
can after taking Letters of Administration in respect of their late mother's
Victoria Mensah (deceased) (sic) cause a letter to be written to State Housing
Corporation to have name of Diana Darku changed into their joint names. <o:p></o:p>(f)
Whether or not the 2nd Defendant and his sister Mrs. Mariam Addo committed
fraud by causing H/No. A. 630/3 Mamprobi registered in their joint names. And<o:p></o:p>&nbsp;(g) Whether or not Defendants are entitled to
their counterclaims." At the end of the trial the Circuit Court gave
judgment for the respondents on 27th February, 2001 holding that "the
house in dispute, House No. 234 West Korle Gonno, is a family house and that
the Plaintiffs have a right to possession just like the defendants. The
Plaintiffs are therefore entitled to stay in the said house without
hindrance." The learned trial judge continued:<o:p></o:p>&nbsp;"In view of the above finding I order
that the defendants, their agents, servants and assigns be and are hereby
restrained perpetually from interfering with the quiet enjoyment of the
Plaintiffs, their siblings who, as family members, have a right to stay in that
house," <o:p></o:p>4.
It is from this decision that the appellants have appealed to this Court on the
grounds that "the judgment is against the weight of evidence." The
Notice of Appeal indicated that "Further grounds of appeal will be added
when the record of appeal is available," and accordingly on 12th March,
2002 counsel for the appellants filed an additional ground that "The
learned Circuit Court Judge erred in holding that house No. 237 (now known as
House No. A. 630/3) is family property," but strangely in his
"Written Submissions On Behalf Of The Defendants/Appellants" which
was filed on the same day, namely, 12th March 2002, the same counsel for the
appellants stated thus— "On Tuesday March 12, 2002 the following
additional ground of appeal was filed: The learned Circuit Court erred in
holding that House No. 234 West Korle Gonno was allocated to the family then
headed by Diana Darku to resettle that family after the destruction of a
portion of their house by the 1939 earthquake." <o:p></o:p>