JOSEPH TUFFOUR OSEI vs. J K OWUSU ANSAH & ANOTHER [2011]DLCA3203

Date	2011-10-28
Suit No.	CIVIL APPEAL NO. H1/37/2011
Citation No.	[2011]DLCA3203

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

[2011]DLCA3203
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH TUFFOUR OSEI<o:p></o:p>vs.<o:p></o:p>J K OWUSU ANSAH &amp;
ANOTHER<o:p></o:p>&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;[COURT OF APPEAL, KUMASI]<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. H1/37/2011&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 28TH
OCTOBER, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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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MARIAMA
OWUSU (MISS) J.A. (PRESIDING), F.G. KORBIEH J.A., IRENE C. DANQUAH (MS.) J.A.<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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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>IRENE C DANQUAH JA<o:p></o:p>In October 2001 the
Plaintiff brought an action in the High Court, Kumasi in his capacity as a
principal member for and on behalf of himself and other members of William
Buachie Aphram of Abrepo for a declaration that H/No. OTB 589. Asomfo Road,
Kumasi is vested in the Plaintiff’s family, damages for trespass, recovery of
possession and perpetual injunction against the defendant.<o:p></o:p>In the supporting statement
of claim, the Plaintiff pleaded that Buachie Aphram acquired the plot from the
Asantehene in February 1945 under a lease agreement for a term of 98 years 2
months and caused a building to be constructed on the plot.&nbsp; Buachie Aphram granted a sub-lease of the
property to John Melekos for a term of 50 years.&nbsp; After the expiration of the sub-lease on 27
February 2001, the Plaintiff wrote to the Defendant who is occupying the
property to vacate from the property but the Defendant ignored it.&nbsp; The Plaintiff further wrote to other
trespassers whose presence he observed in the property to vacate but they also
refused to do so.&nbsp; Then in August 2001
the Plaintiff received a terse reply from the Defendant informing the Plaintiff
that all the occupants in the property were his tenants.&nbsp; Hence the issuance of the writ.&nbsp; <o:p></o:p>However, the Defendant
disputed the facts as pleaded by the Plaintiff save the lease and the sub-lease
created on the property.&nbsp; The Defendant
alleged that on the death of Buachie Aphram but before the expiration of the
sub-lease to John Melekos, the said John Melekos acting by his attorney
Nicholas Smyrnioudes by an indenture and for valuable consideration in March
1968 assigned the residue of the sub-lease to the Defendant. <o:p></o:p>Frank Obeng Aphram
succeeded William Buachie Aphram when he died and the former as head of family
obtained financial assistance of ¢10million from the
Defendant to repay same without interest before 31st December
2000.&nbsp; Frank Obeng Aphram offered the
property No. OTB 589 Adum, Kumasi as security for the repayment of the
financial assistance.&nbsp; It was agreed
between Frank Obeng Aphram and the Defendant that if the said Frank Obeng
Aphram failed to repay the financial assistance on the due date, the property
would be forfeited by the Defendant who would have every right to take
possession of it.&nbsp; The agreement which
was reduced into writing was executed by both parties with Frank Obeng Aphram
entering into the transaction with the concurrence of his family, with two
principal members of his family thumb printing the document as witnesses.&nbsp; The Defendant therefore counterclaimed for an
order for specific performance by Frank Obeng Aphram and his family of the
agreement entered between the said Frank Obeng Aphram and the Defendant in
respect of the property and perpetual injunction.<o:p></o:p>By virtue of the
counterclaim, Frank Obeng Aphram as the 2nd Defendant to the
counterclaim entered appearance and filed a Statement of Defence on 23rd
April 2003.&nbsp; In his defence, Frank Obeng
Aphram admitted that he was appointed successor to the late William Buachie
Aphram by the head and principal members of the family but was not appointed as
the Head of Family which position is held by J K Owusu Ansah.&nbsp; He denied any transaction in 1978 involving
financial assistance or at all between himself and Joseph Tuffour Osei but
admitted that in 1998-99, he received financial assistance from Joseph Tuffour
Osei in his personal capacity for his personal use without the consent or
knowledge of his Head of family and other principal members.&nbsp; He alleged that the amounts he received were
given to him in bits and pieces and the highest sum was about ¢1.8million
which was through the Merchant Bank and not ¢10million.&nbsp; He further denied ever agreeing to forfeit
the house to Joseph Tuffour osei on default of payment for the amount he
received.<o:p></o:p>In reply to the Statement
of Defence, the Plaintiff denied knowledge of the Plaintiff’s family to any
transaction between Frank Obeng Aphram and Joseph Tuffour Osei.&nbsp; The Plaintiff denied tha</main>