PAUL ADOMAKO AND VICTORIA ADOMAKO vs. MRS OWUSU ASIEDU [2008]DLSC6438

Date	2008-05-07
Suit No.	CIVIL APPEAL NO. J4/25/2007
Citation No.	[2008]DLSC6438

AKUFFO (MS) J.S.C. (PRESIDING)

BROBBEY J.S.C.

DR. DATE-BAH J.S.C.

ANSAH J.S.C.

ASIAMAH J.S.C.

SAM WOODE FOR THE APPELLANT.

ENOH-AMAH FOR THE RESPONDENT

[2008]DLSC6438
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													<main id="main" class="content" style="min-height: 60rem" >PAUL ADOMAKO AND VICTORIA ADOMAKO <o:p></o:p>(PLAINTIFFS/RESPONDENTS) <o:p></o:p>vs.<o:p></o:p>MRS OWUSU ASIEDU <o:p></o:p>(RESPONDENT/APPELLANT/RESPONDENT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</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;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. J4/25/2007&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: 7TH MAY 2008<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAM WOODE FOR THE APPELLANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ENOH-AMAH FOR THE RESPONDENT <o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AKUFFO (MS), J.S.C. (PRESIDING)
BROBBEY, J.S.C. DR. DATE-BAH, J.S.C. ANSAH, J.S.C. AND ASIAMAH, J.S.C.<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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JUDGMENT<o:p></o:p>

</div>DR.
DATE-BAH, J.S.C. <o:p></o:p>This
is a dispute over property which turns on the legal efficacy of a purported
deed of gift made by the first plaintiff to the husband of the defendant. The
story behind the purported gift is as follows: the plaintiffs, a Ghanaian
married couple resident in Canada, jointly bought a commercial property in
Korle Gonno, Accra. Because they were non-resident in Ghana, they made the
defendant's husband a caretaker of the property. As caretaker, he lived on the
premises with his wife, the defendant in this case. After the defendant's
husband died, the second plaintiff decided to ask the defendant to give up
possession of the house, since in her view the defendant was not looking after
the property well, but the defendant refused to do so. Accordingly, on 30th August
1999, the plaintiffs, though by then divorced, issued a Writ against the
defendant claiming: a declaration of title to the property; recovery of
possession; and damages for trespass. The first plaintiff gave a power of
attorney to the second plaintiff to bring this action on their behalf jointly. <o:p></o:p>The
defendant's defence was that the first plaintiff had given his half-share of
the property to her husband as a gift. To prove this, she tendered in evidence
a hand-written instrument in the following terms: <o:p></o:p>“MY
GIFT TO MR. OWUSU-ASIEDU <o:p></o:p>RE:
SUPERIOR PRINTING PRESS BUILDING <o:p></o:p>CHEMU
STREET, MAMPROBI, ACCRA <o:p></o:p>I,
the undersigned, do declare that I own 50% (fifty percent) of the above
property. The other 50% (fifty percent) belongs to Victoria Adomako by way of marriage
to me. <o:p></o:p>I
further declare that I do give my portion of 50% (fifty percent) as a gift to
Mr. Eammanuel Owusu-Asiedu, with immediate effect. I do this in appreciation of
all the help Mr. Owusu-Asiedu has given me in the past. <o:p></o:p>Signed:
(Paul Y. Adomako) <o:p></o:p>Witness:
(Yaw Kankam) <o:p></o:p>Dated
at Kumawu/Ashanti 10-5-93”. <o:p></o:p>The
trial Circuit Judge construed this instrument as an attempt to make a customary
law gift. He said (at p 53 of the Record): <o:p></o:p>“Reviewing
the totality of the evidence before me, the defendant is relying heavily on
customary gift made to her late husband by the 1st plaintiff best (sic) on
record No evidence had been led to show the essential ingredients of valid
customary gift had been fulfilled. <o:p></o:p>In
my view if anything at all it was an intention to make a gift and nothing had
passed to the defendant.” <o:p></o:p>The
trial judge gave judgment for the second plaintiff for all the reliefs she
sought. The defendant appealed to the Court of Appeal, where Owusu-Ansah JA,
delivering the judgment of the Court, accepted counsel's submission that
customary gift was not an issue for determination at the trial, since it had
not been raised on the pleadings. Moreover, he held that there was not a shred
of evidence to support the learned trial judge's view that the defendant had
relied heavily on customary gift. He accordingly overruled this ground as a
basis for the trial court's judgment. However, he decided to uphold the trial
judge's judgment for the different reasons that he gave in his judgment. <o:p></o:p>Among
the reasons he gave in support of the Court of Appeal's decision to dismiss the
appeal was the following (at p. 136 of the Record): <o:p></o:p>