DANIEL DARKO ACHEAMPONG JNR. vs. DANIEL DARKO ACHEAMPONG SNR. [2004]DLCA6704

Date	2004-06-24
Suit No.	HI/87/2004.
Citation No.	[2004]DLCA6704

S.T. FARKYE JA

J.B. AKAMBA JA

J. DOTSE JA

[2004]DLCA6704
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL DARKO ACHEAMPONG
JNR.<o:p></o:p>vs.<o:p></o:p>DANIEL DARKO ACHEAMPONG
SNR.<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;
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HI/87/2004.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 24TH JUNE, 2004<o:p></o:p>

</div>CORAM:<o:p></o:p>S.T.
FARKYE JA, J.B. AKAMBA JA, J. DOTSE JA<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>FARKYE, J.A. <o:p></o:p>This
judgment is in respect of the appeal against the judgment of the Circuit Court
Takoradi dated 29th day of January, 2003.<o:p></o:p>On
4/4/02, the Appellant (a son) issued a writ of summons against the Respondent
(a father) claiming <o:p></o:p>(a)
Declaration that the purported revocation of gift of House Type SH 2 on plot
No. B. 118 New Effia Estate, Takoradi to the Plaintiff by the Defendant is
wrong in law and of no legal effect. <o:p></o:p>(b)
An order restraining the Defendant from interfering with the Plaintiff's
ownership or dealings with the said property. <o:p></o:p>(c)
An order declaring the Plaintiff as the owner of the House Type SH 2 on plot
No. B. 118 New Effia Estate, Takoradi by reason of the deed of gift dated
22/2/94. <o:p></o:p>The
Respondent also filed a statement of defence and counter-claimed against the
appellant for declaration of title to the said property. <o:p></o:p>There
was a full trial and the Circuit Court Takoradi on 29/1/03 dismissed the
Appellant's claims and entered judgment for the Respondent and it is against
this judgment that the appellant has appealed. <o:p></o:p>The
facts of this suit are that the Plaintiff (herein referred to as the
(Appellant) is the eldest biological son of the Defendant (herein referred to
as the Respondent). <o:p></o:p>On
22nd February 1994, the Respondent called him (Appellant) and in the presence
of his mother (Margaret Kainyah) and two other witnesses gifted House No. B.
118 Anaji Estate, Takoradi to him (Appellant). <o:p></o:p>This
gift was reduced into a Deed of Gift which was witnessed by one Taylor-Appiah
and Agarther Duker. The gift was made by the Respondent to the Appellant
because of natural love the Respondent had for the Appellant. The Appellant
gave ¢5,000.00 to the Respondent as thank offering or "Aseda" in Akan
language. <o:p></o:p>In
the year 2002, 21st February the Respondent made a Deed of Revocation to revoke
the gift of House No. SH B. 118 New Effia Takoradi to the Appellant. <o:p></o:p>After
the Deed of Revocation the Appellant issued out the writ of summons claiming
the reliefs endorsed in the writ which has been stated above. <o:p></o:p>Learned
Counsel for the Appellant filed four grounds of appeal namely:— <o:p></o:p>"A"—The
judgment is against the weight of the evidence. <o:p></o:p>"B"—The
Learned Judge erred in law when he held that the Deed of Gift which was not
condition could be revoked by the Donor at any time. <o:p></o:p>"C"—The
Learned Judge erred in law when he held that the gift was a customary one which
was reduced into writing. <o:p></o:p>"D"—The
costs of ¢1.5 million is excessive having regard to the evidence. <o:p></o:p>The
Appellant gave evidence to the effect that sometime in February, 1994 the
Respondent called him (Appellant) one evening in the presence of his
(Appellant's) mother and two others including one Lawyer Bempong and one Mr.
Taylor-Appiah. The Respondent gifted the house in dispute, House No. HB. 118,
New Effia Estate popularly called Anaji Estate to him. <o:p></o:p>PWs
1 and 2 also corroborated the evidence of the Appellant that the Respondent,
the father of the Appellant sometime in February 1994 in the evening gifted the
house in dispute to the Appellant and an amount of ¢5,000.00 was given to the
Respondent as "aseda" ie. thank offering. <o:p></o:p>Even
though the Respondent did not give evidence himself, his evidence in resisting
the claim of the Appellant was given by his Lawful Attorney, John Kuntu
Blankson. <o:p></o:p>Howbeit,
though the Lawful Attorney of the Respondent did not give any evidence to show
that the house in dispute was gifted to the Appellant by the Respondent, yet
there is enough evidence on record to show that sometime in February, 1994, the
Respondent gifted the house in dispute to the appellant. I say this because
Exhibit "B" the Deed of Gift though it was not registered, talked
about the gift of house No HB, 118 Effia Estate, Takoradi. <o:p></o:p>Exhibit
"B1" also talked about the revocation of the gift of this disputed
house. <o:p></o:p>I
will simply say from the evidence adduced on record it is abundantly clear that
the Respondent made a customary gifted of House No. HB. 118 Effia Estate
Takoradi to his son, the appellant. <o:p></o:p>