GLADYS AKU IN THE MATTER OF THE ESTATE OF ROBERT AGBENU (DECEASED) AND IN THE MATTER OF GODWIN AGBENU [2009]DLSC2494

GLADYS AKU IN THE MATTER OF THE ESTATE OF ROBERT AGBENU (DECEASED) AND IN THE MA... [2009]DLSC2494

Date	2009-06-17
Suit No.	CIVIL APPEAL NO. J4/26/2008
Citation No.	[2009]DLSC2494

ATUGUBA JSC (PRESIDING)

AKUFFO (MS) JSC

ANSAH JSC

OWUSU (MS) JSC

BAFFOE-BONNIE JSC

FREDERICK ASAMOAH FOR THE APPELLANT

WILLIAM ANTHONIO FOR THE RESPONDENT

[2009]DLSC2494
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													<main id="main" class="content" style="min-height: 60rem" >GLADYS AKU IN THE MATTER OF THE ESTATE OF ROBERT AGBENU
(DECEASED) AND IN THE MATTER OF GODWIN AGBENU<o:p></o:p>[SUPREME
COURT]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO.&nbsp; J4/26/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 17TH JUNE, 2009.<o:p></o:p>

</div>COUNSEL<o:p></o:p>FREDERICK
ASAMOAH FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

WILLIAM
ANTHONIO FOR THE RESPONDENT<o:p></o:p>

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

ATUGUBA,
JSC (PRESIDING), AKUFFO (MS), JSC, ANSAH, JSC, OWUSU (MS), JSC, BAFFOE-BONNIE,
JSC<o:p></o:p>

</div>JUDGMENT<o:p></o:p>ATUGUBA JSC:<o:p></o:p>&nbsp;This is an appeal by special leave of this
court from the judgment of the Court of Appeal reversing the judgment of the
Circuit Court; Accra presided over by His Honour Judge G.K.Minta<o:p></o:p>&nbsp;The facts of the case as stated by the Court
of Appeal per Quaye J.A. are as follows:<o:p></o:p>“Robert
Agbenu died intestate on 13th December, 1979. The Plaintiff/Appellant herein,
claiming to be one of only two surviving children of Robert Agbanu filed an
action in the Circuit Court, Accra on 15th August, 2001 against the
defendant/respondent, whom he identified as the other child of his father,
claiming three heads of relief. These reliefs are:-<o:p></o:p>a)&nbsp;&nbsp;&nbsp;&nbsp;
a declaration that the subject- premises forms part of the estate of
their deceased father, Robert Agbenu aforementioned.<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp;
an order appointing the Registrar of the Court to gather-in the estate
and distribute it to the parties herein;<o:p></o:p>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Defendants/respondent to render accounts of all rents and proceeds from
the disputed house with effect from 1980.<o:p></o:p>The
averments in the accompanying statement of claim sought to assert the
plaintiff’s capacity, the blood (paternal) relationship between him and the
defendant/respondent, the extent of the estate of Robert Agbenu and the
attempts that had been made to call the respondent to account.<o:p></o:p>In
her pleadings however, the respondent denied substantially the averments of
fact made by the appellant. Apart from denying any blood relationship with the
appellant, the respondent asserted ownership of the disputed house No.E 119/14
Nima and counter claimed for a declaration to that effect.<o:p></o:p>At
the end of the trial, the lower court dismissed the claims of the appellant,
found in favour of the respondent and made orders upholding the counterclaim”.<o:p></o:p>The
plaintiff failed at the trial court but prevailed in the Court of Appeal. The
defendant/respondent has appealed to this court on the following grounds:<o:p></o:p>“∙That the judgment of the Court of
Appeal is against the weight of evidence addressed at the trial.<o:p></o:p>&nbsp;That the judgment of the Court of Appeal
cannot be supported by evidence adduced at the trial.<o:p></o:p>&nbsp;That the learned Court of Appeal Judges erred
in law when they adjudged the deceased to be the owner of the disputed land and
house.<o:p></o:p>The Court of Appeal failed to give the
appropriate weight to the Defendant’s title Deeds (Exhibit A)”. <o:p></o:p>The
parties gave evidence themselves and by two witnesses each. The trial judge
however took the view that once the defendant holds a registered document
evidencing title in herself that is conclusive of the case. Thus at p. 69 of
the record of appeal he stated as follows:<o:p></o:p>“From the evidence adduced in court,
the court finds as a fact that the plaintiff surprisingly tendered an indenture
in respect of the house in dispute bearing the name of the defendant. The
indenture was tendered and marked as exhibit ‘A’. It was dated 26th January
1978, stamped as AC 5426/85 and registered at the Land Title Registry as
4565/1985 of 6th August 1985”<o:p></o:p>Continuing
at p. 70 he said:<o:p></o:p>“In so far as the ownership of the
plot has been registered at the Land Registry, it amplifies the position of the
defendant as the owner of the land. Her ownership therefore cannot be impugned
or disputed. Furthermore she is the house-owner collecting rent from the
tenants as the landlady. The defendant is thus in legal and physical possession
of the property. <o:p></o:p>With the type of registration effected
by the defendant it can be conclusively presumed that she is the owner of the
house in dispute. The question to be asked by this court is by what stretch of
imagination can the plaintiff claim a property for which he does not have any
document to support his claim? The plaintiff, however, must fail in his claim
on two different grounds, namely (a) that he did not prove sufficient
possession and (b) the defendant proved beyond all reasonable doubts that she
was the owner of the House in dispute. As the equity maxim goes “equity follows
the law”. Therefore inasmuch as the defendant has been wise enough to register
the plot as her property, she is the owner of the plot. Again any claim by the
plaintiff is defeated by the provision of the Limitation Decree of 1972 (SMCD
54).”<o:p></o:p>Consequently
though he set out in extenso the evidence led in the case between pages 66-69
of the record,&nbsp;&nbsp; he regarded it as
virtually irrelevant and d</main>