ALHAJI ABDUL-RAHMAN YAHAYA AND ANOTHER vs. ALHAJI HALIDU YAKUBU AND 2 OTHERS [2012]DLSC3057

Date	2012-07-26
Suit No.	CIVIL APPEAL NO. H1/55/2012
Citation No.	[2012]DLSC3057

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

F.G. KORBIEH J.A.

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

LAWYER STEPHEN KOFI SONDEM FOR PLFT/ APPELLANTS

LAWYER IBRAHIM-ADAMS FOR DEFT/RESPONDENTS.

[2012]DLSC3057
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI ABDUL-RAHMAN
YAHAYA AND ANOTHER<o:p></o:p>vs.<o:p></o:p>ALHAJI HALIDU YAKUBU AND
2 OTHERS<o:p></o:p>[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. H1/55/2012&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATED:
26TH JULY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>LAWYER
STEPHEN KOFI SONDEM FOR PLFT/ APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">LAWYER
IBRAHIM-ADAMS FOR DEFT/RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>MARIAMA OWUSU (MISS) J.A. (PRESIDING),
F.G. KORBIEH J.A., IRENE C. DANQUAH (MS.) J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGEMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A.<o:p></o:p>The
plaintiffs/appellants (hereinafter referred to as the plaintiffs) are the
biological children of one AlhajiYakubuYahaya who hailed from Liman-yiriVuori
(section) of Wa and who died intestate in or about 1973. It was the claim of
the plaintiffs at the trial High Court that their father died leaving behind
immovable property comprising four houses in Wa. Their case was that under Wala
custom the eldest son of a man becomes his customary successor upon his demise
and that the 1stplaintiff accordingly succeeded to his late father’s
property. They averred that after so doing the 1st plaintiff gave
House No. C41, Wapaaniand the adjoining vacant plot to the 2ndplaintiff
whilst he himself completed a storey building, then numbered House No. C. 67,
Wapaani in 1974, and rented it to Ghana Police Service/Special Branch in
November of the same year. They went on that in May, 1989 the 1st
defendant (who was their late father’s brother)told them, to their dismay, that
prior to his death, their fatherhad instructed him to give the afore-mentioned
house (No. C. 67,Wapaani) to the 2nd defendant and that they viewed this
as an attempt to take control of that property. They continued the narration as
follows. Subsequent to that, the Ghana Police Service/Special Branch stopped paying
rent on that house to the 1st plaintiff without any notice. Through
the 1st plaintiff’s own investigations, he got to know that through
the instrumentality of the 2nd defendant the Ghana Police
Service/BNI had come to regard the 2nd defendant, and not the 1st
plaintiff, as the owner of the house. The1st plaintiff therefore wrote
a letter to the Ghana Police Service/BNI but his letter was ignored. The1st
plaintiff thereafter caused his lawyer to write a letter dated 03/05/90 to the
Senior State Attorney in charge of the Attorney-General’s Department in Wagiving
him notice of the former’s intention to take legal action against the State.
The 1st plaintiff also confronted the 1st defendant over
the issue and the 1st defendant said that he would ensure that rent
accruing from the house was used for the benefit of the whole family whilst he
looked into the matter of the ownership of the house. In view of the position
taken by the 1st defendant and bearing in mind that he was the
younger brother of their father and head of family, the plaintiffs &nbsp;sought the intervention of some elders and the
Imam of Wa to stop the 1st and 2nd defendants’ further
interference with the plaintiffs’ possession of the house.The plaintiffs
however later conducted a search at the Lands Commission, Wa and it was
revealed that the 1st defendant had granted a lease of the plot on
which House No. C. 67stands to the 2nd defendant and that the latter
had registered the property on the 10/09/86 as his own. The search also
revealed that the 2nd defendant had mortgaged the property to the
Agricultural Development Bank for a loan facility on the 29/03/01 and further
that the 2nd defendant had sold the house to the 3rd
defendant. When the 1st plaintiff confronted the 1st
defendant on all the disclosures, the latter blasted the former. Subsequently,
again the 1st plaintiff got to know that in 1989 the 1st
defendant and three other persons had purported to make a statutory declaration
claiming that the plaintiffs’ late father had directed that his houses should
be shared in a manner stated in the declaration and that they had tricked the 2nd
plaintiff into thump-printing the declaration even though its contents had not
been explained to her. The plaintiffs therefore averred that the since House
No. C. 67 was their father’s self-acquired property, the 1st defendant
was not entitled to grant a lease of it to the 2nd defendant and
that the 2nd defendant was liable to account for the rent the
Police/BNI had paid in respect of the house. It was on the basis of these
averments that the plaintiffs sued the defendants/respondents(hereinafter
referred to as the defendants) in the High Court, Wa claiming from them the
following reliefs:<o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
A
declaration that House No. C. 67, Wapaani Residential Area, Wais the property
of AlhajiYakubuYahaya family of Liman-yiri.<o:p></o:p>