FRANCIS YANKEY vs. KOFI YANKEY & OR. [2004]DLCA7023

Date	2004-02-29
Suit No.	COURT OF APPEAL NO: 26/2003
Citation No.	[2004]DLCA7023

F. M. LARTEY J.A (PRESIDING) J.

ANSAH ADDO J

[2004]DLCA7023
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													<main id="main" class="content" style="min-height: 60rem" >FRANCIS YANKEY<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>KOFI YANKEY &amp; OR.<o:p></o:p>(PLAINTIFF/RESPONDENT)<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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OF APPEAL NO: 26/2003 &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;DATE: 29TH FEBRUARY 2004<o:p></o:p>

</div>CORAM:<o:p></o:p>F.
M. LARTEY J.A (PRESIDING) J., ANSAH ADDO J,<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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</div>LARTEY J.A. <o:p></o:p>This appeal is from the
decision of the Circuit Court, Takoradi delivered on the 27th day of November
2001. <o:p></o:p>By his writ of summons the
first plaintiff claimed against the defendant the following reliefs:<o:p></o:p>&nbsp;1. "Recovery of House Number 93/1
Kojokrom, via Sekondi. <o:p></o:p>2. Arrears of rent collected from the
tenants from January 1998 to date of judgment.<o:p></o:p>&nbsp;3. Perpetual injunction restraining the
defendant from the tenants resident in House Number 93/1, Kojokrom.”<o:p></o:p>Accompanying the writ was
the first plaintiff's statement of claim, which was amended at the end of the
trial. Incidentally, all the parties in this action are brothers and sister. In
his amended statement of claim the first plaintiff avers that the plot in
dispute was gifted to the second plaintiff by the late Nana Panyin Ye Na, their
stepfather, by reason of good service rendered by the second plaintiff to the
deceased, who requested the first plaintiff to construct a house thereon for
the second plaintiff. In the amended statement of claim it was alleged that the
defendant who was on pension came to stay in the house from Samreboi, but has
arrogated to himself ownership of the house and has been collecting rent
without the knowledge of the first plaintiff. The first plaintiff also averred
that sometime 1968 the defendant was indebted to one Egya Kum in consequence of
which the house was attached, and it was the first plaintiff who successfully
claimed it through an interpleader summons. <o:p></o:p>Similarly, the second
plaintiff who earlier on in the proceedings had successfully applied to be made
a party as second plaintiff filed her amended statement of claim in which she
described herself as a sister to both the first plaintiff and the defendant.
She confirmed substantially what the first plaintiff averred. She further
alleged that the first plaintiff gave 'Aseda' of one bottle schnapps to the
late Nana Panyin Ye Na II.<o:p></o:p>The defendant denied all
the allegation of facts contained in the statement of claim. He contended that
he acquired the plot in dispute from the said Nana Panyin Ye Na in 1950 for a
consideration and later he put up two rooms where he was residing until R.T.
Briscoe, his employers, gave him a bungalow. It was also his contention that he
solely put up the house from his own resources and that he permitted the first
plaintiff to occupy same as a licensee. It was his case that he has been
exercising right of ownership on the house since 1950 without let or hindrance,
and therefore he is lawfully entitled to any rent accruing there from. He
denied the house ever being attached by the said Egya Kum, and that there has
not been any occasion when the plaintiff through interpleader summons had
claimed it. The defendant finally counter claimed for a declaration of title to
the disputed house and perpetual injunction restricting the first plaintiff,
his servants, agents or assigns from having anything to do with the house. <o:p></o:p>At the trial, the
plaintiffs called two witnesses, one of who was PW1, Kwaku Nyamekye, who
described himself as the linguist to the late chief of Kojokrom, Nana Panyin Ye
Na. He claimed to be present when a grant of the disputed plot was made in
favour of the first plaintiff by the said chief for the purpose of building a
house thereon for the second plaintiff who had rendered meritorious service to
the chief. The witness also testified as to the 'Aseda’ of the bottle of drinks
produced by the first plaintiff and accepted by the chief who poured libation
with it. He further alleged being one of those who inspected the plot. <o:p></o:p>After reviewing the
evidence produced by the parties, the trial judge resolved the issue of
capacity, which for the first time was raised by counsel for the defendant in
his address at the end of the trial. The judge also dealt with the issue as to
which of the parties in the case built the disputed house. Upon evaluating the
whole of the evidence, he consequently dismissed the defendant's counterclaim
and entered judgment for the plaintiffs for the recovery of possession of the
house. <o:p></o:p>It is against this
judgment that the defendant launched this appeal to this Court on the following
grounds: <o:p></o:p>“(a) The judgment is against the
weight of evidence<o:p></o:p>&nbsp;(b) The judge erred in law when he held that
the 1st plaintiff had capacity to institute the action against the defendant. <o:p></o:p>(c) The judge erred in holding that
the defendant's inability and or refusal to call a witness was fatal to his
case.<o:p></o:p>&nbsp;(d) The judge failed to consider whether or
not there was a valid gift to the 2nd plaintiff. <o:p></o:p>(e) The judge erred in law in entering
judgment for the 2nd plaintiff who was technically speaking not a party to the
suit. <o:p></o:p>(f) The judge failed in evaluating the
evidence of PW1 who exhibited that he could not be a witness of truth. <o:p></o:p</main>