EMMANUEL NII TACKIE vs. J.B MENSAH & 2 ORS [2008]DLCA7000

Date	2008-04-24
Suit No.	CIVIL APPEAL NO: H1/81/07
Citation No.	[2008]DLCA7000

MRS. ABBAN J. A. [PRESIDING]

QUAYE JA

ANIN YEBOAH J

MR. W.L. ANTHONIO FOR THE PLAINTIFF/RESPONDENT

MR. H.B. APATU-PLANGE FOR THE DEFENDANTS/APPELLANTS

[2008]DLCA7000
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL NII TACKIE<o:p></o:p>(PLAINTIFF/ RESPONDENT)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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color:#00B0F0">J.B MENSAH &amp; 2 ORS<o:p></o:p>(DEFENDANTS/ APPELLANTS)<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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO: H1/81/07&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
APRIL, 2008<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
W.L. ANTHONIO FOR THE PLAINTIFF/RESPONDENT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. H.B. APATU-PLANGE FOR THE
DEFENDANTS/APPELLANTS<o:p></o:p>

MRS. ABBAN J. A. [PRESIDING], QUAYE JA,
ANIN YEBOAH J <o:p></o:p>

</div>MRS.
ABBAN, JA <o:p></o:p>This
is an appeal from the Circuit Court Accra. The judgment which was delivered on
17th May 2003 went against the 2nd and 3rd Defendant (hereinafter referred to
as the appellants) and being aggrieved they have appealed against it to this
court. <o:p></o:p>Their
original grounds of appeal were two namely:<o:p></o:p>&nbsp;(a) That the judgment of his honour the
Circuit Court judge cannot be supported by the weight of the evidence offered
by the defendants.<o:p></o:p>&nbsp;(b) That the trial judge failed to consider
the conflicting evidence of the Plaintiff/Respondent and his witness. <o:p></o:p>On
the 11th October 2005 the Appellants filed 5 additional grounds of appeal
namely: <o:p></o:p>1.
The trial judge erred in failing to consider the fact that the evidence of the
Plaintiff/Respondent that one Emelia Nettey signed Exhibit “A” as witness to
the signature of the late Isabella Woode is not borne out by the contents of
the said Exhibit “A.”<o:p></o:p>&nbsp;2. The trial judge again failed to consider
the fact that one Mrs. Dora Boye who swore to the oath of proof in Exhibit “A”
that she was present and saw late Isabella Woode execute Exhibit “A” is not
borne out by the contents of Exhibit “A” which rather shows that Dora Boye only
witnessed the signature of the Donee, plaintiff and not Isabella Woode the,
Donor. <o:p></o:p>3.
The trial judge failed to consider that the failure of Plaintiff to call as a
witness any of these persons alleged to be the attesting witnesses to the
signature of Isabella Woode was fatal to Plaintiff’s case.<o:p></o:p>&nbsp;4. That if the trial judge had seriously
considered these conflicts of evidence touching and concerning the execution of
the said Deed of Gift, he would have found that the said Exhibit “A” was not
proved to have been executed by the late Isabella Woode.<o:p></o:p>&nbsp;5. The trial judge erred in allowing himself
to be influenced by the Land Title Certificate Exhibit “B” which was not proved
to the court by the Land Title Registrar to have been issued after proper
investigation in view of the Caveat filed by the Defendants against its
issuance to the Plaintiff. <o:p></o:p>Pursuant
to leave granted the appellants by the Court of Appeal on 23/5/2007, the
appellants incorporated these additional grounds in their written submission of
case. The facts which have culminated in this appeal are that, the
Plaintiff/Respondent (hereinafter referred to as the Respondent) is a
full-blooded brother of the 2nd and 3rd appellants. Their mother was the late
Isabella Woode who during her lifetime acquired House No. A. 57/3 now numbered
815/3, Mamprobi, Accra. Isabella Woode died in 1991. <o:p></o:p>The
Respondent’s case is that their late mother during her lifetime made a gift of
the House No. 815/3 Mamprobi, Accra to him in 1989 and that the said gift was
covered by a Deed of Gift executed by the late Isabella Woode and witnessed by
attesting witnesses. The Respondent tendered this Deed of Gift during the trial
and it was accepted without objection and marked as Exhibit “A.” Later he was
given a<o:p></o:p>&nbsp;Land Title Certificate. He tendered this
document too. The Appellants never raised any objection. The document was accepted
and marked as Exhibit “B.” The number of the Certificate is GA 12084 dated 25th
September 1995. <o:p></o:p>