MADAM AKOSUA AGYENTOA vs. DIANA OWUSU CIVIL APPEAL [2004]DLSC2397

Date	2004-03-31
Suit No.	CIVIL APPEAL NO. 2/96
Citation No.	[2004]DLSC2397

MRS. BAMFORD ADDO J.S.C. (PRESIDING)

ATUGUBA J.S.C

MRS.WOOD J.S.C

BADDOO J.S.C

DR. TWUM J.S.C.

MR. DAVID BOAFO FOR APPELLANT.

MR. LUTTERODT FOR RESPONDENT.

[2004]DLSC2397
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													<main id="main" class="content" style="min-height: 60rem" >MADAM AKOSUA AGYENTOA<o:p></o:p>vs.<o:p></o:p>DIANA OWUSU CIVIL APPEAL<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. 2/96<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">

DATE: 31ST MARCH, 2004.<o:p></o:p>

</div>COUNSEL<o:p></o:p>MR.
DAVID BOAFO FOR APPELLANT.<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">

MR.
LUTTERODT FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

</div><o:p>&nbsp;</o:p>JU D G ME N T<o:p></o:p>&nbsp;<o:p></o:p>BAMFORD-ADDO (MRS) JSC:<o:p></o:p>&nbsp;The appeal before us is against the Judgment
of the Court of Appeal dated 19th January 1995. This case originated form the
District Court Kumasi when the Appellant herein as Plaintiff issued a writ of
summons against the Respondents herein as Defendants for the recovery of
possession of two rooms in House No. O.T.77A Ashanti New Town Kumasi which they
occupied rent free. The District Court gave judgment on the 19th May 1986 for
the Plaintiff and the Defendants appealed that decision to the High Court
Kumasi which Court affirmed the District Court's judgment dated 28th July 1987.
The Defendants again appealed to the Court of Appeal and the court reversed the
High Courts judgment in part, hence this appeal.<o:p></o:p>&nbsp;The simple facts of the case are that House
No. O.T.77 Kumasi was built by one Madam Afua Mensah, who had two children
namely Elizabeth Victoria Mensah and Daniel Owusu. During Madam Afua Mensah's
lifetime she sold half of the house to one A.D. Agboloso. After the sale the
house was numbered as O.T. 77A and O.T.77B and Afua Mensah retained that part
numbered O.T. 77A.&nbsp; Madam Afua Mensah
died in 1950 leaving a will which was tendered in evidence and marked Exhibit
"B". In the will she bequeathed to her son Daniel Owusu and he
daughter, Elizabeth Victoria Mensah her portion of the said house. In par 2 of
Exh. 'B' the Will she said as follows:<o:p></o:p>&nbsp;"I give and bequeath to my son Daniel
Kwame Owusu and my Daughter&nbsp;&nbsp;&nbsp;&nbsp; Elizabeth
Victoria Mensah for their use absolutely my share of one-half (1/2) undivided
moiety of premises situate and known as Plot No 77 in the Odomasi District of
Kumasi".<o:p></o:p>&nbsp;The defendants in the case are the children of
Daniel Owusu namely Dina Owusu and Daniel Owusu. After the death of Daniel
Owusu's mother i.e Afua Mensah he lived in the house with his wife and
children. When Daniel Owusu also died in 1959 intestate, he was succeeded by
his uterine sister Elizabeth Victoria Mausah PW1. The latter obtained Letters
of Administration in respect of the estate of her deceased brother and also a
lease in respect of the house. She also took steps to have the ownership of the
house changed into her name at the Kumasi City Council.&nbsp; <o:p></o:p>&nbsp;When Daniel Owusu died his children i.e. the
defendants were too young and so left to live with relatives, but after 16
years they returned to live in their father's house and occupied two rooms
which their father had occupied in his lifetime rent free.<o:p></o:p>&nbsp;In 1984 the plaintiff Madam Akosua Agyentoa
bought the whole house from Elizabeth Victoria Mensah PW1, who had perfected
her title document on the House. After the sale Madam Akosua Agyentoa the
Plaintiff took action against the Owusu's children for recovery of possession
of the said rooms. Judgment was given in her favour at the District Court and
the defendants were ordered to vacate the rooms forthwith.&nbsp; An Appeal to the High Court by the Defendants
against the judgment of the lower Court was confirmed. Dissatisfied the
Defendants again appealed to the Court of Appeal which court party allowed the
Appeal, in a unanimous decision of the Appeal Court. Then the appellant herein
also appealed to the Supreme Court.<o:p></o:p>Appellant
filed the Original grounds namely:<o:p></o:p>&nbsp;(a) The Judgment is against the weight of
evidence<o:p></o:p>&nbsp;(b) Additional grounds of Appeal would be filed
on receipt of the record of proceedings.<o:p></o:p>&nbsp;No additional grounds of appeal were field but
in the appellants statement of case his counsel mentioned certain matters
namely that PNDCL 111 is not applicable to the case brought against present
Respondents i.e ejection case and had noting to do with succession. Indeed the
Appellant never raised this issues in the Courts below and did not make it a
ground of Appeal.<o:p></o:p>Under
rule 6(6) of the Supreme Court Rule C.1.16:<o:p></o:p>&nbsp;"The Appellant shall not without leave of
the Court, argue or be heard in support of any ground of Appeal that is not
mentioned in the notice of Appeal".<o:p></o:p>&nbsp;Therefore, the Appellant cannot argue this
matter here. In any case it is clearly unmeritorious as would be seen in the
course of this judgment.<o:p></o:p>&nbsp;The only ground of Appeal that the judgment is
against the weight of evidence, was considered in detail by the Court of
Appeal. That court thoroughly considered the law and came to the conclusion
that the principal issue in the whole case was, whether the devise in the will
of Afua Mensah to her children Elizabeth Victoria Mensah and Daniel Owusu
concerning house No. OT 77A granted an interest of tenancy in common or joint
tenancy to her children. It ruled correctly that interest created by use of the
word&nbsp; "absolutely" in the will
was that of tenancy in Common, and relied on the principle in the case of Biney
V. Biney (1974) 1GLR 318. That case also relied in the case of Bata Shoe Co Ltd
v. Roura and Forgas (1964) GLR 190 in which the Supreme Court held </main>