ELIZABETH ESHUN PER JOSEPH AMISSAH MENSAH (PLAINTIFF/RESPONDENT) vs. JAMES QUARTEY, REBECCA YANKSON AND NEE QUAYE (DEFENDANTS/APPELLANTS) [2008]DLHC7493

ELIZABETH ESHUN PER JOSEPH AMISSAH MENSAH (PLAINTIFF/RESPONDENT) vs. JAMES QUART... [2008]DLHC7493

Date	2008-02-18
Suit No.	SUIT NO. MISC 251/2001.
Citation No.	[2008]DLHC7493

P. BRIGHT MENSAH JUSTICE OF THE HIGH COURT

YAW BOAFO FOR THE DEFENDANTS/APPELLANTS

M MARIAM A. GYASI FOR THE PLAINTIFF/RESPONDENT

[2008]DLHC7493
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ELIZABETH ESHUN PER JOSEPH
AMISSAH MENSAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JAMES QUARTEY, REBECCA YANKSON AND NEE QUAYE<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[HIGH
COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. MISC 251/2001. &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: 18TH FEBRUARY,
2008<o:p></o:p>

</div>COUNSEL:<o:p></o:p>YAW BOAFO FOR THE
DEFENDANTS/APPELLANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

M
MARIAM A. GYASI FOR THE PLAINTIFF/RESPONDENT <o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

P.
BRIGHT MENSAH JUSTICE OF THE HIGH COURT<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;
padding:0cm 0cm 1.0pt 0cm">

</div>This
is an appeal from the judgment of His Worship Frank Owusu Afriyie then sitting
at the erstwhile Community Tribunal, Kumasi as the Chairman thereof with his
panel members on 25th day of May, 2001. <o:p></o:p>Although
this appeal has been pending since the year, 2001 its hearing has suffered
series of adjournments and partly due to the indolence on the part of the
appellants. At one instance Abrahams J. had cause to strike out the appeal for
want of prosecution. The case was subsequently restored to the cause list. As
usual the defendants/appellants went back to sleep so on 19/3/07 I had no
alternative than to, once again, strike out the appeal for the same reason. <o:p></o:p>The
defendants/appellants then quickly rushed to the court with a motion to relist
the appeal and that was granted on 31/7/07. <o:p></o:p>To
avoid further delay in the hearing of the appeal the court on 26/11/07 with the
agreement of counsel ordered both counsel to file written submissions. Counsel
for the defendants/appellants was to file his address by 17/12/07 and upon
service of the written address on counsel for the Plaintiff/Respondents she was
in like manner to file one by 21/1/08 and judgment fixed for today (18/2/08). <o:p></o:p>It
is a sad commentary that counsel for the defendants/appellants failed to file
it to warrant a reaction from his learned friend. That notwithstanding, I do
think that that should not be a bar for me to deliver my judgment as scheduled.
After all I have the mandate to look at the case based on the evidence on
record once it has been listed before me and to come to a conclusion one way or
the other if even the parties refused or failed to file their addresses. <o:p></o:p>By a
notice of appeal filed with this court on 30/5/2001 the defendants/appellants
contend that the judgment of the court below is against the weight of the
evidence. They then gave notice to file additional grounds for appeal. For some
unexplained reasons they are yet to file the said additional grounds of appeal.
<o:p></o:p>We
are therefore left on record, that omnibus ground of appeal that the judgment
of the erstwhile Community Tribunal was against the weight of evidence. <o:p></o:p>To
say that a judgment is against the weight of evidence implies that there is on
the face of the judgment some error of law or of facts or both. In either case
the presumption is that the trial court applied the wrong principle of law to
the facts of the case or that the findings of the trial court cannot be
supported by the facts. <o:p></o:p>The
law is settled that making primary findings of fact is the prerogative of the
trial court. And where the findings are supported by the evidence on record
they were not to be disturbed. See: NKANSAH
v ADJABENG (1961) GLR 465. <o:p></o:p>Where
the findings are based on established facts the appellate court is in the same
position as the trial court and can draw its own inferences from these
established facts. See: KOGLEX LTD (NO.
2) v FIELD (2000) SCGLR 175 at p. 184 per ACQUAH, JSC (as he then was). <o:p></o:p>What
are the established facts in this case? <o:p></o:p>In
attempting to answer this question it shall be appropriate to recite, in brief,
the facts of this case. <o:p></o:p>The
Plaintiff/Respondent who sued per her lawful Attorney claimed that the property
in dispute ie H/No. 28 Asewasi, Kumasi was acquired solely by her husband
Charles Mensah (now deceased). The said Charles Mensah subsequently devised
this property to her and her children by a will executed by him. <o:p></o:p>Upon
his death the will was read to the hearing of the family of the deceased and no
one protested. There was a sitting tenant in that house at the time and when
she vacated the plaintiff wanted to take possession but was prevented from so
doing. The 2nd defendant who claims to be a family member of the deceased had
locked up the place with padlocks contending that her mother (a sister to the
said Charles Mensah) acquired the house through the brother, Charles Mensah. <o:p></o:p>The
1st defendant who claims to have been put in possession by the 2nd defendant
was dragged before the Rent Office, Kumasi. <o:p></o:p>As a
result of the non-resolution of the matter at the Rent Office, the
Plaintiff/Respondent sued the defendants/appellants seeking th</main>