DANIEL MERCER @ DANNY KAY vs. SAMUEL QUARM & ANOR. [2007]DLCA6707

Date	2007-07-06
Suit No.	H1/197/06
Citation No.	[2007]DLCA6707

ARYEETEY JA [PRESIDING]

ANIM JA

ABBAN [MRS] JA

MR. EMMANUEL K.N. ARTHUR FOR APPELLANTS.

MR. JOHN MERCER FOR THE RESPONDENT.

[2007]DLCA6707
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL MERCER @ DANNY
KAY<o:p></o:p>vs.<o:p></o:p>SAMUEL QUARM &amp; ANOR.<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">

H1/197/06&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; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 6TH JULY, 2007<o:p></o:p>

MR.
JOHN MERCER FOR THE RESPONDENT.<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">JUDGMENT<o:p></o:p>

</div>ABBAN [MRS] JA <o:p></o:p>This
is an appeal from the judgment of the Sekondi High court dated 2nd March 2001. <o:p></o:p>The
judgment went against the Defendant/Appellant and the Co-Defendant/appellant,
and being dissatisfied they have appealed against same. <o:p></o:p>They
filed 5 (five) grounds of appeal namely: <o:p></o:p>(a)
Judgment is against the weight of evidence. <o:p></o:p>(b)
The judge erred in law by failing to take evidence from the locus. <o:p></o:p>(c)
The learned judge failed to properly evaluate the evidence. <o:p></o:p>(d)
There was no basis for the award of mesne profit. <o:p></o:p>(e)
The cost awarded was excessive. <o:p></o:p>The
case of the Plaintiff/Respondent is that the 2-rooms occupied by the
Defendant/Appellant which is the boys quarters or servants' quarters was
devised to him by his late father James Mercer in his Will dated 20/08/85
Probate of the said Will was granted to 3 (three) executors namely John Kodjo
Colerangle, E. Topp Yankah and Ekow Mensah. <o:p></o:p>On
25th February 1989 a vesting assent was duly executed and registered as WR
114/89 with Deeds Registry No. LVB/WR/161/89 duly vesting the property
described as 2 room boys quarters and garage space in House No. 2/2 (alias
Earls' Court), Prince of Wales Road, Takoradi in the Western Region of the
Republic of Ghana to the Plaintiff/Respondent.&nbsp;
This document was tendered in evidence by the Plaintiff/Respondent
without objection.&nbsp; It was accepted and
marked as Exhibit "A." <o:p></o:p>Exhibit
"A" was duly signed by the three executors to the Will of the late
James Mercer i.e. Colerange, Topp Yankah and Ekow Mensah. <o:p></o:p>In
my opinion the devise to the Plaintiff is a specific devise and the testator
clearly identified the subject matter of the bequest i.e. — "2-room boys
quarters and garage." <o:p></o:p>I
do not find any inconsistency or ambiguity in the words used by the testator. <o:p></o:p>I
tend to agree with counsel for the Respondent that there is no dispute as to
the identity of the two rooms in issue.&nbsp;
The plan of the building showing the site of the boys quarters and
garage was admitted in evidence as Exhibit C. <o:p></o:p>On
the said Exhibit C the front elevation shows clearly the garage and two rooms
described as servants' quarters.<o:p></o:p>The
Plaintiff/Respondent gave evidence by himself and called two witnesses.&nbsp; The indorsement on his writ of summons is a
claim for: <o:p></o:p>(a)&nbsp; "Recovery of possession of the 2 rooms
in the boys' quarters of House No. 2/2, Liberation Road, Takoradi for his
personal occupation <o:p></o:p>(b)&nbsp; Mesne profit from 20/07/94 to date of
judgment. <o:p></o:p>There
is evidence on record that the testator in his lifetime divided the boys'
quarters into two for his own personal use.&nbsp;
This piece of evidence stands uncontroverted.&nbsp; This is borne out by the evidence of the D.W.
1 — Ekow Mensah one of the Co-executors of the will of James Mercer who had
lived for more than thirty years with the late testator before the latter's
demise.&nbsp; D.W. 2 in cross-examination
corroborated the evidence of D.W. 1 that the boys' quarters room was
partitioned long ago. <o:p></o:p>"Q:&nbsp;&nbsp; The Plaintiff's mother occupied the room
designated as garage space? <o:p></o:p>A:&nbsp;&nbsp;
Not correct.&nbsp; She lives at the
boys' quarters. <o:p></o:p>Q:&nbsp;&nbsp;
The defendant occupies the two rooms designated as boys' quarters or
servant quarters? <o:p></o:p>