MADAM AFUA NKUAH vs. YAA KONADU, TONY AGYEMANG BOATENG [2009]DLSC2501

Date	2009-02-11
Suit No.	CIVIL APPEAL NO. J4/9/2008
Citation No.	[2009]DLSC2501

WOOD (MRS) CJ (PRESIDING)

BROBBEY JSC

ANSAH JSC

ANIN YEBOAH JSC

BAFFOE-BONNIE JSC.

DR. L. K. AGBOSU FOR THE APPELLANT.

K. A. ASANTE-KROBEA FOR THE RESPONDENTS.

[2009]DLSC2501
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													<main id="main" class="content" style="min-height: 60rem" >MADAM AFUA NKUAH<o:p></o:p>vs.<o:p></o:p>YAA KONADU, TONY AGYEMANG BOATENG<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. J4/9/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH FEBRUARY, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DR.
L. K. AGBOSU 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">

K.
A. ASANTE-KROBEA FOR THE RESPONDENTS.<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">

WOOD
(MRS), CJ (PRESIDING), BROBBEY, JSC, ANSAH, JSC, ANIN YEBOAH, JSC,
BAFFOE-BONNIE, JSC.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>ANIN
YEBOAH, J.S.C:-<o:p></o:p>This
is an appeal against the judgment of the Court of Appeal dated the
13/03/2006.&nbsp; The Court of Appeal allowed
an appeal against the judgment of the High Court, Kumasi which was delivered on
15/07/2002.&nbsp; The
Plaintiff/Respondent/Appellant who for the sake of brevity shall be referred to
as the Appellant herein on 25/10/1996 issued a writ of summons against the
Defendant/Appellant/Respondent (who shall be referred to in this judgment as
the Respondent).&nbsp; The action was for a
declaration to the effect that a single room in a house at old Amakom known as
H/№ Plot 2 Block XIII, Old Amakom is neither the property of the Respondent nor
any member of her family.&nbsp; The appellant
also sought as ancillary reliefs, ejectment and recovery of possession and
injunction.<o:p></o:p>The
case for the appellant was that one Kwabena Bio was the original owner of H/№
Plot 2 Block XIII, Old Amakom, in Kumasi and in 1954 he assigned his interest
in the house to one Yaw Mensah a grand uncle of the Appellant.&nbsp; At the time of the assignment, one Madam
Tiwaa who was the sister of the alleged assignor was occupying two rooms being
chamber and hall in the first floor of the house.&nbsp; The said Madam Tiwaa was the mother of the
Respondent.&nbsp; Due to the fact that Kwabena
Bio had assigned his interest in the house, her sister Madam Tiwaa had to
vacate the house.&nbsp; The assignee on
humanitarian grounds offered Madam Tiwaa one room on condition that she could
live in the room in only her lifetime.&nbsp;
Madam Tiwaa accepted the proposal and lived in one room with her
daughter, the respondent herein, till she died in 1995.&nbsp; It was soon after the death of Madam Tiwaa
that the appellant demanded rent from the respondent if she wanted to continue
to live in the room.&nbsp; The respondent
disputed the appellant’s title which led to the action at the High court,
Kumasi.<o:p></o:p>The
respondent traversed most of the allegations of facts upon which the appellant’s
claim was based. She pleaded that Kwabena Bio put up the house but received a
loan from one Yaw Mensah the predecessor-in-title of the appellant and used the
house as security which made the transaction a pledge.&nbsp; According to her, it was as a result of the
inability of the family of Kwabena Bio to pay off the debt to redeem the pledge
whereby Yaw Mensah agreed with her family to exact rents from the house and pay
off the debt.&nbsp; Respondent stated
categorically that her mother on her own volition moved from the hall and
chamber to occupy a single room in the house which is the subject matter of
this action.&nbsp; In effect it was her case
that kwabena Bio owned the house and that Yaw Mensah was a mere pledgee who
never owned the house.<o:p></o:p>On
the 17/6/1998, one Tony Agyemang -Boateng who claimed to be the head of family
of the respondent applied to join the suit as co-defendant.&nbsp; His application was granted.&nbsp; In his statement of defence filed pursuant to
the joinder, he virtually repeated the allegations of facts pleaded in the
statement of defence of the defendant.&nbsp;
He, however, lodged a counterclaim and put the capacity of the appellant
in issue.&nbsp; He denied stoutly any
assignment executed by his relative Kwabena Bio and pleaded fraud to deny the
assignment any effect in law.<o:p></o:p>The
learned trial judge was called upon to resolve several issues which emerged
from the pleadings.&nbsp; He found as a fact
that the property, that is, H/№ Plot 2 Block XIII Old Amakom was indeed put up
by Kwabena Bio.&nbsp; He, however, found in
favour of the appellant herein that Kwabena Bio in his lifetime assigned his
interest in the house to Yaw Mensah.&nbsp; As
a trial judge, he proceeded to evaluate the evidence of the respondents
touching on the allegations of fraud.&nbsp;
According to the learned trial judge, the Deed of Assignment which was
tendered as Exhibit ‘B’ did not suffer from any fraud.&nbsp; It was therefore concluded by the judge that
Exhibit ‘B’ upon examination assigned all the interest of Kwabena Bio effectively
to Yaw Mensah.<o:p></o:p>Several
exhibits in the form of rent cards and statutory demand notices for payment of
property rates were admitted in evidence and they bore the name of Yaw Mensah
as the owner of the house in which the single room, the subject matter of this
appeal is part of.&nbsp; Based on the evidence
the learned trial judge entered judgment for the appellant to recover the
single room in the house and further granted all the reliefs sought on the writ
of summons and dismissed the counterclaim.<o:p></o:p>The
respondents being dissatisfied with the judgment of the High Court lodged an
appeal to the Court of Appeal.&nbsp; On the
13/03/2006 the Court of Appeal, in an unanimous decision, reversed the judgment
not on the merits but on the issue of lack of capacity.&nbsp; As the Court of Appeal held that the
appellant had no capacity to bring the action, it did not deem it proper to go
into the other issues or grounds of appeal.&nbsp;
The Court of Appeal based its decision on the case of CONNEY V BENTUM
WILLIAMS [1984-86] GLR 310 CA and held that as the appellant was deriving her
title from an estate in which she was a beneficiary she required a vesting
assent to enable her to initiate legal proceedings involving the estate’s
property.<o:p></o:p>The
appellant has lodged this appeal to this court obviously seeking the reversal
of the judgment of the Court of Appeal on several grounds apparent in the
notice of appeal.<o:p></o:p>The
judgment of the court of Appeal has been seriously attacked under ground (a) of
the grounds of appeal which stated as follows:<o:p></o:p>The
Court of Appeal erred in holding:<o:p></o:p>&nbsp;(a)&nbsp;
that the plaintiff did not have the requisite capacity to sue at the
court below in view of the fact that the court did not have any factual
evidence to support its hold</main>