HAWA MUSAH vs. FATI MUSAH [2011]DLSC2638

Date	2011-05-17
Suit No.	CIVIL APPEAL NO. J4/35/2010
Citation No.	[2011]DLSC2638

AKUFFO (MS) JSC (PRESIDING)

ADINYIRAH (MRS) JSC

ANIN-YEBOAH JSC

BAFFOE-BONNIE JSC

GBADEGBE JSC

YONI KULENDI FOR THE APPLICANT

MOHAMMED ALHASAN FOR THE RESPONDENT

[2011]DLSC2638
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													<main id="main" class="content" style="min-height: 60rem" >HAWA MUSAH<o:p></o:p>vs.<o:p></o:p>FATI MUSAH<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<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. J4/35/2010 &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;&nbsp;&nbsp;
DATE: 17TH MAY, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>YONI KULENDI FOR THE
APPLICANT,<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">

MOHAMMED
ALHASAN FOR THE RESPONDENT<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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AKUFFO
(MS) JSC (PRESIDING), ADINYIRAH (MRS) JSC , ANIN-YEBOAH JSC, BAFFOE-BONNIE JSC
, GBADEGBE 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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JUDGEMENT&nbsp;&nbsp; <o:p></o:p>

</div>GBADEGBE
JSC: <o:p></o:p>We begin this delivery with
the statement that this case is in our opinion another example of how simple
fact situations in the dealings between blood relations often end up in the courts
requiring pronouncements that involve important questions of law. In our view
although this is a vindication of the capacity of the legal system to order our
lives, it would have been preferable if the action herein had been resolved
through ADR. We must express our regret that such determinations have the
effect of impacting negatively on the future relationship of the parties. Now
to the facts on which this case turns.<o:p></o:p>Following the death of&nbsp; a person to whom we shall conveniently in
this judgment refer to as B, and in the course of the distribution of&nbsp; his estate&nbsp;
a building situate in Tamale that was being utilized as a hotel (the
property) was&nbsp;&nbsp; allotted to the plaintiff
herein and her daughter as well as four other persons. The&nbsp; beneficiaries and those who were responsible
for the distribution of B’s estate who from the evidence were not appointed by
the court either as executors or administrators&nbsp;
without a will annexed reached an agreement that if any of the
beneficiaries was willing to buy the property it would be sold to him at an
agreed price. We believe that this arrangement must have been intended to
secure some financial provision for the beneficiaries by way of a lump sum
payment and observe that before us nothing of consequence arises from it.<o:p></o:p><o:p>&nbsp;</o:p>The admitted evidence
discloses that the plaintiff offered to buy the property, a decision which
meant that she had to buy off the interests of the other four beneficiaries
amounting to two thirds of the one hundred thousand cedis. As she was not able
on her own to raise the purchase price of the property, she approached the
first defendant, her uterine sister to assist her in buying off the interest of
the four beneficiaries. It appears that although the sister initially agreed,
she resiled therefrom and had to be persuaded so to do by members of her family
including her mother and indeed her husband. &nbsp;When subsequently she paid up the purchase price,
she claimed she did so because the plaintiff had agreed with her that in
relation to the quantum of her contribution which was two thirds of the value
of the property, she was to hold two thirds of the interest in the property
while the plaintiff and her infant child took the remaining one third. <o:p></o:p>After the payment for the
property, the plaintiff and the first defendant could not agree on what the
effective terms of their joint ownership of the property was to be and how it
was to be documented. While the plaintiff insisted that they were to take
equally, the first defendant averred that she was to take two thirds whiles the
plaintiff and her infant child took one third. Attempts to have this resolved
failed and the plaintiff took out the writ of summons herein claiming that she
and her infant daughter were the sole owners of the property. Also claimed was
a declaration that the amount paid by the first defendant towards the
acquisition of the property was a loan to her wherefore she demanded an order
of accounts from the sister for the operation of the property as a hotel and an
order of ejection and recovery of possession against her. As regards the second
defendant she made a claim against him as an agent for the vendors (that from
the evidence meant the other four beneficiaries of that particular property).&nbsp; The&nbsp;
first defendant in her defence to the action filed a counterclaim&nbsp; that sought an order of specific performance
of&nbsp; an agreement that she made with the
plaintiff and her daughter relating to the purchase of the property and a
further declaration that she&nbsp; takes two
thirds of the value and the plaintiff and her daughter the remaining one third.<o:p></o:p>Such was the state of the
pleadings that at the trial the crucial issues to be determined were that of
whether the payment as on behalf of the plaintiffs or the first defendant in
her own right as a purchaser. There was also the question of accounts from the
first defendant to the plaintiffs. Closely linked with the capacity in which
the payment made by the first defendant for the property is whether or not the
property was ever offered to her to buy. The learned trial judge after what we
consider to be an unhappy session that had him preside over a trial between two
uterine sisters came to the conclusion on all the disputed issues of fact
arising from the pleadings in favor of the first defendant and in particular
dismissed the plaintiffs’ claim in its entirety and allowed the counterclaim of
the first defendant. The plaintiffs lodged an appeal from the decision of the
High Court, Tamale to the Court of Appeal. At the end of the hearing of the
appeal, the Court of Appeal affirmed the trial court’s decision. The instant
proceedings are as a result of an appeal to this court from the judgment of the
Court of Appeal.<o:p></o:p>Before proceeding to consider
the several grounds of appeal filed in the matter herein, we observe that in
the main they raise for our determination purely matters of fact that were
determined by the two concurrent lower courts in favor of the first defendant.
Therefore based on a long established principle in such cases, it is our duty
to consider whether Delivering</main>