FAUSTINA ARABA FORSON vs. NANA KWASI DADSON [2008]DLCA7019

Date	2008-07-31
Suit No.	CIVIL APPEAL NO: H1/26/2006
Citation No.	[2008]DLCA7019

QUAYE J.A. [PRESIDING]

APALOO J.A.

GYAESAYOR J.A

MR. GEORGE ESHUN FOR THE PLAINTIFF/APPELLANT

MR. KWABENA S. A. NYANOR FOR THE DEFENDANT/RESKPONDENT

[2008]DLCA7019
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													<main id="main" class="content" style="min-height: 60rem" >FAUSTINA ARABA FORSON<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>NANA KWASI DADSON<o:p></o:p>(DEFENDANT/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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL NO: H1/26/2006 &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: 31ST JULY, 2008<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR.
GEORGE ESHUN FOR THE PLAINTIFF/APPELLANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. KWABENA S. A. NYANOR FOR THE
DEFENDANT/RESKPONDENT.<o:p></o:p>

QUAYE J.A. [PRESIDING], APALOO J.A.,
GYAESAYOR J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>APALOO,
J.A.<o:p></o:p>This
is an appeal against the judgment of the Circuit Court, Accra presided over by
Akoto Bamfo, J [as she then was] sitting as additional Circuit Judge. The
judgment was dated 14th February, 2003.<o:p></o:p>&nbsp;The Plaintiffs/Appellants [to be referred to
as Plaintiffs] sued the Defendant/Respondent [also to be referred to as
Defendant] claiming the following reliefs:<o:p></o:p>&nbsp;“1. A declaration that House No. C149,
Dansoman does not form part of the inventory of the estate of the late Mr.
Etrue-Ellis, the said Mr. Ellis having conveyed his interest to his son. <o:p></o:p>2.
An order of possession to 2nd Plaintiff of House No. C149, Dansoman.<o:p></o:p>&nbsp;3. An order of perpetual injunction
restraining the Defendant, his assigns tenants from having anything to do with
the said house. <o:p></o:p>4.
An order for accounts of rent collected so far.<o:p></o:p>In
brief, the 1st and 2nd Plaintiffs were the ex-wife and son respectively of the
late John Rex Etrue-Ellis. The late Etrue-Ellis was the owner of House No.
C149, Dansoman. The house was allocated to him by the then State Housing
Corporation. The Defendant was the Administrator of the Estate of the late
Etrue-Ellis.<o:p></o:p>It
is the case of the Plaintiffs that House No. C149, Dansoman did not form part
of the estate of the deceased because the late Etrue-Ellis made a gift of the
same to 2nd Plaintiff during his lifetime. The Plaintiffs relied on a letter
dated 5th November, 1973 purported to have been written to the State Housing
Corporation by 2nd Plaintiff’s father, the deceased requesting the State
Housing Corporation to transfer the house to 2nd Plaintiff. A further
contention of the Plaintiffs was that by virtue of the alleged gift the late
Etrue-Ellis held the house in trust for the 2nd Plaintiff who was a minor then.
<o:p></o:p>The
Defendant denied the Plaintiffs’ claim and challenged the authenticity of the
letter relied upon by the Plaintiffs. He contended that the signature thereon
was not that of the deceased. The Defendant further contended that as the
lawfully appointed successor of the deceased, he inquired from all the surviving
children of the deceased before their father’s burial whether their father made
any gift to any of them during his lifetime but the response was negative and
that none of them raised any objection to the inclusion of the house in the
inventory in support of the application for the Letters of Administration. <o:p></o:p>The
Circuit Court after a full trial dismissed the claim of the Plaintiffs. The
Plaintiffs’ sole ground of appeal was that the judgment was against the weight
of evidence, and when an appellant claims that a decision was against the
weight of evidence the duty is imposed on him to demonstrate to the appellate
Court that it is infact so. See Bonney Vrs. Bonny [1992-93] GBR.779 where the
Supreme Court reiterated that position and went further to state that; <o:p></o:p>“…An appeal Court ought not under any
circumstances interfere with the findings of fact by the trial judge except
where they were clearly shown to be wrong, or the judge did not take all the
circumstances and evidence into account or had misapprehended some evidence or
had drawn wrong inferences without any evidence in support or had not taken
proper advantage of having seen or heard the witness’<o:p></o:p>&nbsp;Indeed the rule of law is that an appellate
Court will not normally interfere with the findings of fact made by the trial
court however as explained in Koglex Ltd. [No2] Vrs. Field [2002] SCGLR.176; <o:p></o:p>“…But where the findings were based on
established facts then the appellate court was in the same position </main>