KWAME BONSU vs. KWAME KUSI & GIFTY KUSI AMPOFOWAA [2009]DLSC2499

Date	2009-11-04
Suit No.	CIVIL APPEAL J4/14/2009
Citation No.	[2009]DLSC2499

WOOD (MRS) C.J. (PRESIDING)

ANSAH J.S.C

DOTSE J.S.C.

A. YEBOAH J.S.C

BAFFOE-BONNIE J.S.C.

S. KWAMI TETTEH FOR THE APPELLANTS

MICHAEL GYANG OWUSU FOR THE RESPONDENT

[2009]DLSC2499
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													<main id="main" class="content" style="min-height: 60rem" >KWAME BONSU<o:p></o:p>vs.<o:p></o:p>KWAME KUSI &amp; GIFTY
KUSI AMPOFOWAA<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 J4/14/2009&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
4TH NOVEMBER, 2009.<o:p></o:p>

</div>COUNSEL<o:p></o:p>S. KWAMI TETTEH FOR THE
APPELLANTS<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">

MICHAEL
GYANG OWUSU FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&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">

WOOD
(MRS), C.J. (PRESIDING), ANSAH, J.S.C., DOTSE, J.S.C., A.&nbsp;&nbsp; YEBOAH, J.S.C., BAFFOE-BONNIE, J.S.C.<o:p></o:p>

</div>J
U D G M E N T<o:p></o:p>WOOD (MRS), C.J:<o:p></o:p>On the 4th of November
2009, by a majority decision of three to two, Georgina Wood CJ, Ansah and Dotse
JSC, dismissed the appeal against the judgment of the Court of Appeal, and
reserved our reasons. We now assign our reasons for our decision to affirm the
judgment of the court below. <o:p></o:p>This appeal from the
judgment of the Court of Appeal dated 15th April 2005, relates to a parcel of
land on Guggisberg Road Adum, Kumasi, more particularly described as Plot No.
10, Block V111. On the 23rd of August 1999, the Plaintiff-Appellant-Respondent
(Respondent), in his capacity as a principal member and elder of the Nana Ama
Family of Nsuase issued a writ of summons against the 1st
Defendant-Respondent-Appellant (Appellant) for a declaration that the land in
question is the property of the Plaintiff’s Family, general damages for
trespass and perpetual injunction. 2nd Defendant successfully joined the action
through her next friend Vida Kusi.<o:p></o:p>The parties are ad idem as
regards the identity of the land. The central issue is who owns the land, the
subject matter of this suit which was filed some ten years ago. <o:p></o:p>The Plaintiff, who claimed
that he was suing in protection and preservation of family property due to
divisions within the family and the inaction of the head of family despite
repeated calls on him to act decisively in defence of the family’s rights,
maintained that the disputed property was originally acquired by his ancestors,
Nana Ama Serwaah and Nana Kweku Bewuowu around 1906. He further alleges that in
1926, the Kumasi Public Health Board acquired a site in the vicinity of his
ancestor’s property for “sanitary purposes”. He further alleged that in demolishing
the structures on the site the Board had acquired for the project, they
inadvertently demolished the two buildings which his ancestors had erected on
their plot of land, some twenty years earlier.<o:p></o:p>By the Plaintiff’s
account, eventually after years of agitation, the government of Ghana in 1968
returned their land to the family. This was expected to be done through Mr.
Michael Reginald Asante, the head of family at the time, whom, understandably,
by virtue of his position as such family head, and the equally important fact
that he was literate, was authorised by the family, to conduct all negotiations
with regard to the property for and on behalf of the family as family property,
and clearly not as his personal property.&nbsp;
The plaintiff claimed that since then he had dealt with the property as
family property. The further contention is that however, in 1993, when they
discovered that Asante had on occasions dealt with the property without their
consent and concurrence in a manner which was totally inconsistent with their
right and interest in the property, they had persistently warded off a number
of trespassers, culminating in this present action, when they found defendants
erecting a fence around the said property.&nbsp;
<o:p></o:p>The defendants disputed
the facts as pleaded by the plaintiff, counter alleging that Asante, in his
lifetime acquired the property in his own right as his personal property and
exercised various acts of ownership over it, citing instances when he did so
without interference from the family, including their acquisition of the
property from their grantor, La petite Chemists. From the Defendant’s account,
the Plaintiffs, having always had notice of Asante’s activities on the land and
yet had stood by and done nothing to assert their right or interest, if any, in
the land are estopped by laches, statute, acquiescence and conduct from
asserting any claim to the land. Expectedly, the 1st defendant counterclaimed
for virtually the same reliefs as the plaintiff. <o:p></o:p>From the state of the
pleadings, the plaintiffs clearly bore the evidential burden of establishing,
on the balance of probabilities that the land was family property. it was
evident from the pleadings that theirs was an uphill task, given that firstly
the title deeds to the property bore the name of Asante, and secondly that the
claim to ownership to the property, together with all the facts they stood on
in support thereof, were all made at the time he was dead. Consequently, all
these assertions ought to stand up to judicial scrutiny.<o:p></o:p>The evidence they supplied
in support of their case was mainly historical; family history. Additionally,
they tendered a petition, Exhibit B, allegedly written by the family and
co-signed by Asante, which referred extensively to the family character of the
property. The trial court, unimpressed by the plaintiff’s evidence dismissed
the Plaintiffs’ action and gave judgment for the defendants. Unperturbed, the
Plaintiff successfully appealed the said decision. It is the Defendant’s
dissatisfaction with the reversal of the decision by the Court of Appeal that
has culminated in this instant appeal, which is founded on the oft –used
omnibus ground of appeal, the judgment is against the weight of evidence and
four additional grounds. These are set out hereunder. <o:p></o:p>“1.The decision of the Court of Appeal
setting aside the judgment of the trial court for non-compliance with Section
27 (1) and (2) of Act 122 is not supportable in law.<o:p></o:p>2. The Court of Appeal failed to pay
due cognisance to the fact that the Plaintiff’s claim disputes the right,
title, and interest, of Asante, who had died long before the institution of the
action.<o:p></o:p>3. The Court of Appeal failed to
recognise that the Defendants were bona fide purchasers of the disputed
property for value without notice.<o:p></o:p>4. The Court of Appeal erred in not
invoking its power to amend the declaration of title of the disputed property
in favour of the 1st Defendant to a declaration of title in favour of the 2nd
as the trustee of Gifty Kusi Ampofowaa, a minor.”<o:p></o:p>Undoubtedly, the respondents
had difficult hurdles to clear at the trial. The emphasis however is on the
fact that the hurdles were quite difficult, not that they were</main>