CHARLES MATEY vs. CHALOTTE TEIKO SEMAHA & ORS. [2004]DLCA6683

Date	2004-01-15
Suit No.	CIVIL APPEAL NO. 85/2002
Citation No.	[2004]DLCA6683

ARYEETEY J.A. (PRESIDING)

ASARE-KORANG J.A.

PIESARE J.A.

R. B. K. ABOAGYE FOR APPELLANT

PETER KORNOR FOR THE RESPONDENTS

[2004]DLCA6683
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													<main id="main" class="content" style="min-height: 60rem" >CHARLES MATEY<o:p></o:p>vs.<o:p></o:p>CHALOTTE TEIKO SEMAHA
&amp; 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">

CIVIL APPEAL NO. 85/2002&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 15TH JANUARY 2004<o:p></o:p>

PETER
KORNOR FOR THE RESPONDENTS<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">JUDGMENTS<o:p></o:p>

</div>ARYEETEY, J.A. <o:p></o:p>A
brief background to this appeal is as follows: The late Comfort Mateko was the
sister of the late Yodjo who died in 1953 leaving behind his four children
namely the plaintiff/appellant and his three sisters. Comfort Mateko, whose
only child was the first defendant, took care of her deceased sister’s children
and played the role of their foster mother. It is the case of the plaintiff that
before the death of Yodjo, his mother, the late Comfort Mateko and her late
mother had jointly purchased a piece of land on which they built three rooms.
The late Mateko customarily adopted the plaintiff and his siblings as her own
children. Her adopted children helped her in her trading and she was able to
increase the rooms in the house to seven with the plaintiff helping physically
with the construction work. Thereafter the late Mateko lived in the house with
the plaintiff and his sisters until 1987 when she suffered a stroke, which
stopped her from engaging in any gainful employment. It is the case of the
plaintiff that when the late Comfort Mateko lay on sick bed the first defendant
connived with her son, the late Winfred Ofoe Semaha, who was the original
second defendant and sold the house in dispute to the third defendant without
the knowledge and consent of the head and all members of their family. <o:p></o:p>The
family got to know of the fraudulent transaction in November, 1992 and that
prompted the head of the family and two principal members of the family to
approach the late Mateko on her sick bed and questioned her about the sale of
the house. She expressed surprise and denied any knowledge about sale of the
house. When the first defendant was asked to give explanation for her conduct
she could not do so. When Comfort Mateko died the family had the information
that the house in dispute had indeed been sold to the third defendant.
Meanwhile the plaintiff was appointed successor to the late Comfort Mateko at a
general meeting of the family and authorised to write to the third defendant
about his unlawful occupation of the house in dispute. The third defendant
refused to accept the letter on the basis that he had nothing to do with the
plaintiff's head of family. The plaintiff on his own behalf and on behalf of
his family first took action against the third defendant for Declaration of
Title and Recovery of possession of House No. B.20, Asesewa as depicted in the
proceedings of the Somanya District Magistrate Grade 1 Court recorded at page
119 of the record of appeal. The Statement of Claim, which the plaintiff filed
in that case reads: <o:p></o:p>"1. Plaintiff is the eldest son
of the late Comfort Mateko Matey the original owner of House Number B 20 at
Asesewa and lives at Manyakpongunor. <o:p></o:p>2. The defendant is a Northerner and
presently living at Asesewa. <o:p></o:p>3. Comfort Mateko now deceased was a
mother of many descendants living in various places including House No. B 20,
Asesewa. That she died in January, 1993 at Manyakpongunor. <o:p></o:p>4. That defendant is never a member of
the Matey Oddah family of which Comfort Mateko formed part but has now
trespassed into the house and started renovation on the house. <o:p></o:p>5. That when the family noticed the
defendants trespass into the house, the plaintiff was empowered to write a
warning to the defendant and invite him to appear before the family so as to
know how the defendant got into the house. <o:p></o:p>6. That the letter was accordingly
written and served on the defendant by the plaintiff, the defendant refused
accepting the letter saying that he has no letter writing with the family. <o:p></o:p>7. That by defendants behaviour I
believe the same dubious deal might have happened or is happening somewhere
that if steps are not taken to check the situation it will cause a very great
harm to the family and mostly the plaintiff " <o:p></o:p>The
defendant who happens to be the third defendant/respondent in this appeal filed
a defence denying the claim of the plaintiff. An interesting development in the
case was an application for joinder as co-defendant by Emmanuel Narh Matey who
described himself as head of the plaintiff's family. His affidavit in support
of the application for joinder is as follows: <o:p></o:p>“I, Emmanuel Narh Matey of
Manya-Kpongunor make oath and say as follows:— <o:p></o:p>1. That I am the deponent herein. <o:p></o:p>2. That I have got to know of this
Suit (Counsel will refer to all the processes filed) <o:p></o:p>3. That I am the head of the Matey
Oddah family of Manya-Kpongunor on whose behalf the plaintiff claims he brings
this action. <o:p></o:p>4. That the plaintiff is not the head
of family and he has not my authority to bring this action. <o:p></o:p>