OWURAKU MENSAH AND 5 OTHERS vs. JAMES TABI-NYARKO & ANOR. [2009]DLCA6564

Date	2009-02-13
Suit No.	CIVIL APPEAL NO: H1/221/07
Citation No.	[2009]DLCA6564

ARYEETEY J.A. (PRESIDING)

KANYOKE J.A.

ADUAMA OSEI J.A.

MR. E. A. ACCAM FOR RESPONDENTS

MR. NATHANIEL MYERS FOR APPELLANTS

[2009]DLCA6564
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													<main id="main" class="content" style="min-height: 60rem" >OWURAKU MENSAH AND 5 OTHERS<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>JAMES TABI-NYARKO &amp; ANOR.<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO: H1/221/07&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;DATE: 13TH FEBRUARY, 2009<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
E. A. ACCAM FOR RESPONDENTS<o:p></o:p>

MR.
NATHANIEL MYERS FOR APPELLANTS<o:p></o:p>

</div>CORAM: <o:p></o:p>ARYEETEY J.A. (PRESIDING), KANYOKE J.A., ADUAMA OSEI
J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>KANYOKE,
J.A. <o:p></o:p>This appeal emanated from
the judgment of the Circuit Court, Accra, then presided over by His Honour Mr.
Anthony Oppong (as he then was). By the judgment the defendant/respondent was
adjugdged the purchaser and therefore owner of House No. 29, Kaneshie, Accra by
virtue of a purported sale of same to him by the family of one Madam Afiyoe Buer
(deceased) the original owner of the house. <o:p></o:p>Dissatisfied with the
judgment the plaintiffs/appellants mounted this appeal in this court on the
following grounds:<o:p></o:p>&nbsp;“(a) That the judgment is against the weight
of evidence,<o:p></o:p>&nbsp;(b) That the trial court failed to consider
PNDCL 111 in its entirety,<o:p></o:p>&nbsp;(c) That the trial judge equated dependency in
the law of succession with age,<o:p></o:p>&nbsp;(d) That the trial judge failed to analyse the
evidence of plaintiffs and their witnesses in its entirety and thus failed to
appreciate the case of the plaintiffs and thus just accepted the evidence of
defendant and co-defendant as gospel truths, <o:p></o:p>(e) That the cost awarded is harsh, <o:p></o:p>(f) That additional grounds of appeal
would be filed upon receipt of record.”<o:p></o:p>&nbsp;No such additional grounds have since been
filed. For purposes of brevity the original positions of the parties on the
writ of summons will be maintained in this appeal; namely the
plaintiffs/appellants will be referred to as the plaintiffs and the defendant
and co-defendant/respondents as the defendant and co-defendant respectively. <o:p></o:p>The record of proceedings
indicate that on 1st December 1997 the plaintiffs issued a writ of summons at
the Circuit Court, Accra claiming against the defendant;<o:p></o:p>&nbsp;(a) an order that the sale or purported sale
of House No. 29, Kaneshie, Accra is void and same must be set aside,<o:p></o:p>&nbsp;(b) an order of perpetual injunction
restraining the defendant, his agents, assigns or servants from any further
harassment of the plaintiffs. <o:p></o:p>In their statement of
claim the plaintiffs pleaded that they are the grandchildren of one Madam
Afiyoe Buer (deceased). Their mother — Madam Beatrice Chartey (deceased) was
one of the only two children of Afiyoe Buer (deceased), the other child being
Korkor Sackitey also deceased. The two daughters of Afiyoe Buer predeceased
her. The plaintiffs averred that House No. 29, Kanishie was the only house of
their grandmother at the time of her death in or around 1989 and that they
lived in the said house from their infancy up to the date of their
grandmother’s death and even thereafter. It was further averred by them that
the late Madam Afiyoe Buer was the sole owner of H/No. 29, Kaneshie, Accra and
that after the death of their said grandmother they rehabilitated the house and
built a fence wall to it at their own expense. According to their statement of
claim on the 10th November 1997, a tenant in the house showed the plaintiffs a
letter indicating that the house had been sold to the defendant by the family
of their late grandmother and that the defendant wanted vacant possession of
the house. The plaintiffs pleaded further that they resisted an estate agent’s
attempt subsequently to evict them from the house because according to them
they are the beneficial owners of the house. The defendant then resorted to the
use of the police and an army officer to intimidate them, hence the action for
the reliefs claimed in the endorsement to the writ. <o:p></o:p>For his part the defendant
pleaded in his statement of defence that the late Afiyoe Buer was not the sole
owner of the house in dispute but that she owned it jointly with her brother,
Nene Osei Buer and her sister Damaghbu Buer. Curiously however, the defendant
averred in the same statement of defence that before she died, the late Afiyoe
Buer had initiated negotiations with him to sell the house which had been
registered in her name to him but she died before the sale could be completed.
According to the defendant, as a result of lack of funds to conduct the funeral
of the late Afiyoe Buer her family authorized the administrator of the estate
of Afiyoe Buer (the co-defendant herein) to conclude the negotiations for the
sale of the house to him. He was given a Deed of Sale by the said family and he
got that Deed to be stamped as No. LVB 1604/99 and also registered as No.
859/99. The defendant pleaded further that the late Afiyoe Buer had another
house at Nima and that the plaintiffs rather lived in that house at Nima and
not in House No. 29, Kaneshie, Accra and finally that the plaintiffs are not
entitled to their claims.<o:p></o:p>&nbsp;In their Reply the plaintiffs in paragraphs 4
and 6 of that</main>