MADAM MASH AGBESHIE, MR RICHARD AGBESHIE vs. MADAM AMINA AMORKOR FOFO RUKYEA LARYEA [2009]DLSC2713

MADAM MASH AGBESHIE, MR RICHARD AGBESHIE vs. MADAM AMINA AMORKOR FOFO RUKYEA LAR... [2009]DLSC2713

Date	2009-02-11
Suit No.	CIVIL APPEAL NO. J4/35/2007
Citation No.	[2009]DLSC2713

WOOD (MRS) C J (PRESIDING)

BROBBEY J.S.C

ANSAH J.S.C

ANIN YEBOAH J.S.C

BAFFOE-BONNIE J.S.C

GARBRIEL PWAMANG FOR THE CO-DEFENDANT/APPELLANT/RESPONDENT

KWABLA SENANU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS

[2009]DLSC2713
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													<main id="main" class="content" style="min-height: 60rem" >MADAM MASH AGBESHIE, MR RICHARD AGBESHIE<o:p></o:p>vs.<o:p></o:p>MADAM AMINA AMORKOR FOFO RUKYEA LARYEA<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. J4/35/2007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;11TH FEBRUARY, 2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>GARBRIEL
PWAMANG FOR THE CO-DEFENDANT/APPELLANT/RESPONDENT<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">

KWABLA
SENANU FOR THE PLAINTIFFS/RESPONDENTS/APPELLANTS<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), BROBBEY J.S.C, ANSAH J.S.C, ANIN 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>&nbsp;ANSAH, JSC:-<o:p></o:p>The
issues in this appeal are very narrow indeed and may briefly be stated as
entered on whether the plaintiff bought the whole of the disputed house or only
its frontage.<o:p></o:p>Before
deciding on the merits of the appeal, the facts of the case must be stated
first. They were that the plaintiff brought an action against the defendant for<o:p></o:p>A
declaration of title to the property H/No. 49E/12, Nima, Accra,<o:p></o:p>Recovery
of possession of the said H/No 49/E12, Nima , Accra.<o:p></o:p>Account
for rent collected on the said premises by the Defendant to the plaintiffs.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; d&nbsp;&nbsp;
Damages.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; e. Ejectment against the defendant from
house number 49E/12, Nima, Accra, <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp; f.&nbsp;&nbsp;
Payment of monies received as rents on the said house from 1st May 1997,
and&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;&nbsp;&nbsp; &nbsp;g.&nbsp;&nbsp;
g.&nbsp; General damages.<o:p></o:p>The
plaintiff claimed the defendant was the owner of House Number 49E/12, Nima,
until it was sold to the late deceased Madam Axorlushie Zomade. By a deed
between Madam Zomade and the defendant on 8th April 1997, the defendant
assigned the residue of the expired term of her leasehold in the house
aforementioned, to Madam Zomade for ¢13m (thirteen million cedis), and handed
over title deeds on the house to her. As part of the sale agreement, the&nbsp;&nbsp; defendant was to be permitted to continue
staying in the house for three years after the sale. Further, a son of Madam
Zomade would also come to stay in the house. Madam Zomade indicated she was
going to pull down the whole house and build stores on the land and give them
to the defendant on rental basis. The son has since then been staying in the
house. <o:p></o:p>On
the death of Madam Zomade on 19th January 1999, letters of administration were
granted to the plaintiff to administer her estate. When she asked the defendant
to leave the house she said the house was never sold to the plaintiff’s mother.
The defendant had also been collecting rents in the house.<o:p></o:p>The
defendant denied the claims by the plaintiff and asserted she inherited the
premises from her late mother Amorkor Laryea. She the defendant sold a piece of
land lying in front of the house to Madam Zomade, for the erection of a block
of shops. The sale transaction was reduced into writing and stamped as LVB
5097/98. In a volte face manner the defendant pleaded in paragraph 10 of her
statement of defence she was still the owner of the house and denied having
ever sold it to the late Madam Zomade. In fact Madam Zomade only rented a hall
and a chamber in the defendant’s house numbered 49E/12 formerly known as H/No.
E15/101, Nima, Accra, and that was how her son came to stay in the house. She
pleaded a receipt dated 2nd August 1995 and thumbprinted by Madam Zomade, also
known as Axorlushie Adjagey, witnessed the tenancy transaction.&nbsp;&nbsp; <o:p></o:p>Whether
or not Madam Axorlushie Zomade bought the house in dispute, House Number 49E/12
from the defendant was made a material issue for trial.<o:p></o:p>At
the trial, the Madam Zomade’s son, Mash Agbeshie, gave evidence for the
plaintiff and testified he knew his late mother bought a house from the
defendant evidenced by exhibit B. A subsequent agreement was that Isaac
Agbeshie, a child of his mother, was to move in to stay in the house. His
mother also gave the defendant three months to stay in the house, and the
defendant gave title deeds to the house, which were tendered in evidence as
Exhibit C, to Madam Zomade. However, the defendant did not leave the house
after the three months period as agreed upon. <o:p></o:p>When
Madam Zomade died and the first plaintiff took over the administration of the
house, the defendant denied ever selling the house to her, Madam Zomade.&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The
plaintiff was supported in his evidence on the sale of the house to Madam
Axorlushie Zomade, by the PW1 Amudzi Roger. He confirmed that following the
sale Exhibit B and C, the deed of assignment and the Land Title Certificate
respectively, were given to Madam Zomade by Amina Amorkor. Exhibit D was the
receipt for the payment of the purchase price.&nbsp;&nbsp;
<o:p></o:p>The
evidence for the defendant was given by Alhassan Abu Bakari. His evidence was
brief and was that he did not know anything about the house even though the
defendant was his sister; he knew she had no house.<o:p></o:p>Mary
Bashom gave evidence for her mother the co-defendant. She said the house
belonged to Abena Rahmatu who died survived by four children, three of whom
were dead leaving only the co-defendant. </main>