NATHANIEL BOSOMPRAH FIANKO & OTHERS vs. PHILIP DODOO DJAN & OTHERS. [2007]DLSC2447

Date	2007-11-14
Suit No.	CIVIL APPEAL NO. J4/27/2006
Citation No.	[2007]DLSC2447

ATUGUBA J.S.C. (PRESIDING)

DR. DATE-BAH J.S.C.

ANSAH J.S.C.

ANINAKWAH J.S.C.

MRS. ADINYIRA J.S.C.

MILLS-HALDANE LUTTERODT FOR PLAINTIFFS/APPELLANTS

FRANK ADEEKU FOR CO-DEFENDANT/RESPONDENT

[2007]DLSC2447
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													<main id="main" class="content" style="min-height: 60rem" >NATHANIEL BOSOMPRAH FIANKO &amp; OTHERS<o:p></o:p>vs.<o:p></o:p>PHILIP DODOO DJAN &amp; OTHERS.<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/27/2006<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">

14TH NOVEMBER, 2007.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MILLS-HALDANE LUTTERODT FOR
PLAINTIFFS/APPELLANTS<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">

&nbsp;FRANK ADEEKU FOR CO-DEFENDANT/RESPONDENT<o:p></o:p>

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

ATUGUBA
J.S.C. (PRESIDING), DR. DATE-BAH J.S.C., ANSAH J.S.C., ANINAKWAH J.S.C., MRS.
ADINYIRA J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>&nbsp;ATUGUBA, J.S.C.<o:p></o:p>&nbsp;THE FACTS<o:p></o:p>&nbsp;In this case the
Plaintiffs/Appellants/Appellants’ father, Nathaniel Fianko Akotuah, on the face
of a registered title deed, exhibit ‘B’ was the owner of the property on which
stands H/No. B 565/6, Abossey Okai, Accra, which is also said to belong to
their father.&nbsp; Other documents tending to
support this claim include a building permit, receipts for payment of property
rates etc.&nbsp; Accordingly they sued the
Defendant/Respondents/Respondents in a District Court, Accra for: “an Order of
Ejectment from House No. B565/6 and an order of payment of rend arrears from
January, 1992”. The co-respondent was joint to action upon his application
since he contended that he was the real owner of the property in question.<o:p></o:p>&nbsp;The courts below, from the District Court,
Court 6, 28th&nbsp; February Road, Accra
through the High Court Accra, presided over by Her Ladyship Mrs. G. Kusi-Appouh
J, to the Court of Appeal, upheld the respondents’ case against the
appellants.&nbsp; They all held that
notwithstanding these said documents the co-respondent is the true or
beneficial owner of the property in dispute.&nbsp;
Against these triple concurrent findings of fact the appellants have
battled this case up to this ultimate court.<o:p></o:p>&nbsp;THE GROUNDS OF APPEAL<o:p></o:p>The
grounds of appeal are as follows:<o:p></o:p>&nbsp;“A) The learned judges, with respect, clearly
erred in the face of crucial documentary evidence and in its dealing with the
established facts in holding that the Co-Defendant/Respondent/Respondent (“the
Respondent”) herein is the owner of the property in dispute notwithstanding the
clear, overwhelming and unequivocal documentary and oral evidence confirming
the Appellant’s late father’s ownership of the property in dispute and the
error has occasioned the Appellant a substantial miscarriage of justice.<o:p></o:p>&nbsp;B) The learned judges erred in law in failing
to appreciate the legal consequences of the documents tendered by the appellant
as evidence of his late father’s ownership of the property, subject matter of
the dispute, which error has occasioned the Appellant a substantial miscarriage
of justice.<o:p></o:p>&nbsp;i) The learned judges, with respect,
misappreciated or misapplied the principles of evidence relating, inter alia,
to conclusive presumptions, estoppel by conduct and proof by the Appellant of
his case by a preponderance of the probabilities, to the facts admitted or
established by the Court of Appeal particularly in terms of the Respondent’s
unequivocal conduct in executing, as a witness for the Appellant’s late father,
the title deed covering the sale of the property in dispute to the Appellant’s
late father by the Vendor one Moses Bekoe Kisseadoo.<o:p></o:p>&nbsp;ii) The admission in evidence without any
objection by the Respondent, of the title deed to the property i.e., Exhibit
‘B’ at page 151 of the Record and the building permits, building plans,
receipts of property rates, basic rates and rent cards all of which were in the
name of the Appellant’s late father, had fatal legal consequences for the
Respondent’s case and constituted a declaration against interest by the
Respondent which the learned judges failed to so hold.<o:p></o:p>&nbsp;C)&nbsp; The
findings of the learned judges that the turning over of rent on the disputed
property to the Respondent constituted a declaration against interest is, with
respect a misappreciation of the significance of the issue of passing over the
rent to the Respondent and an erroneous proposition of the law in an action
which was primarily a claim of ownership of House No. B 565/6 Abossey Okai,
Accra by both the Appellant and the Respondent and the error has occasioned the
Appellant a substantial miscarriage of justice.<o:p></o:p>&nbsp;D) The learned judges erred in holding that
the Appellants late father knew that he was just a bare legal owner of the
property in dispute prior to the execution of Exhibit ‘B’ (i.e the title deed
at page 151 of the Record) in 1957 when there was no evidence whatsoever to
support such a conclusion with the result that the error has occasioned the
appellant a substantial miscarriage of justice.<o:p></o:p>&nbsp;E) The learned judges erred in holding that
the title deeds to the property in dispute were in the custody of the
Respondent and therefore that dislodged the evidential effect of the said
documents which were in the name of the Appellant’s late father when there was
no evidence to support such a conclusion.<o:p></o:p>&nbsp;F) The judgment is against the weight of
evidence”.<o:p></o:p>&nbsp;THE ISSUE OF ESTOPPEL<o:p></o:p>&nbsp;The appellants’ counsel, Haldane-Lutterodt
&amp; Co. strenuously contend estoppel, relying on Swiss African Trading Co.
Ltd&nbsp; vs.&nbsp;
Aryee </main>