MADAM AFUA NKUAH vs. YAA KONADU AND TONY AGYEMANG BOATENG [2009]DLSC4430

Date	2009-02-11
Suit No.	CIVIL APPEAL NO: J4/9/2008
Citation No.	[2009]DLSC4430

WOOD (MRS.) CJ (PRESIDING)

ANSAH JSC

YEBOAH JSC

BONNIE JSC

AKAMBA JSC

DR. L. K. AGBOSU FOR THE APPELLANT.

K. A. ASANTE-KROBEA FOR THE RESPONDENTS.

[2009]DLSC4430
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													<main id="main" class="content" style="min-height: 60rem" >MADAM AFUA NKUAH<o:p></o:p>(APPELLANT)<o:p></o:p>vs.<o:p></o:p>YAA KONADU AND TONY
AGYEMANG BOATENG<o:p></o:p>(RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO: J4/9/2008&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: 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;
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K.
A. ASANTE-KROBEA FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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WOOD
(MRS.) CJ (PRESIDING), ANSAH JSC, YEBOAH JSC, BONNIE JSC, AKAMBA JSC<o:p></o:p>

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

</div>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>