MARIAMA ESSEKU vs. ADAMS INKOOM, KWASI KUMI AND TDC [2013]DLCA8104

Date	2013-03-14
Suit No.	SUIT NO: H1/223/2008
Citation No.	[2013]DLCA8104

APALOO J.A. (PRESIDING)

ADJEI J.A.

SAEED J.A.

MR. YAW DARKO ASARE FOR DEFENDANT/APPELLANT

MR. ADU MINTAH FOR THE PLAINTIFF/RESPONDENT

[2013]DLCA8104
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													<main id="main" class="content" style="min-height: 60rem" >MARIAMA ESSEKU<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ADAMS INKOOM,
KWASI KUMI AND TDC<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL,
CAPE COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO: H1/223/2008&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 14TH
MARCH, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
YAW DARKO ASARE FOR DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MR.
ADU MINTAH FOR THE PLAINTIFF/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;
padding:0cm 0cm 1.0pt 0cm">

APALOO
J.A. (PRESIDING), ADJEI J.A., SAEED 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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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>DENIS
ADJEI, J.A.:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The
defendants/appellants dissatisfied with the judgment of the High Court, Tema
delivered on 30th March,2010 filed an appeal against it on 24th
May,2010. I will in this appeal refer to the&nbsp;
&nbsp;defendant/appellant as defendants
and the plaintiff/respondent as plaintiff.<o:p></o:p>The
brief facts of this case were that the plaintiff and the 1st defendant married
for over 30 years. The 1st defendant claimed to have divorced the plaintiff in 1995
in accordance with Muslim Tradition and custom. The plaintiff and the 1st
defendant had their marriage blessed with five (5) children. The disputed house
with No. 1, 39-198 was sold to the 1st defendant on hire purchase and was used
as their matrimonial property. The disputed property was made up of one bedroom
with kitchen toilet and bathroom. The plaintiff applied for permit for
extension from the planning authorities and was accordingly granted.&nbsp;
The plaintiff built 2 bedrooms in addition to the existing one bedroom
in 1998.&nbsp; The plaintiff occupied the
house with the 1st defendant and their five children until 2003 when
the 1st defendant sold the house to the 2nd defendant
without the consent of the plaintiff.&nbsp; On
18th February, 2003, when the plaintiff returned from the market,
the 2nd defendant had entered the house from the back door and had
forcibly ejected the plaintiff and her children from the house.&nbsp; The plaintiff therefore instituted this
action against the defendants jointly and severally for declaration of title to
the disputed house, an order for perpetual injunction to restrain the 1st
defendant from disposing of the property, an order setting aside the purported
sale of the house and damages for trespass.&nbsp;
The plaintiff subsequently joined Tema Development Corporation to the
suit as 3rd defendant.<o:p></o:p>The trial court found that the property was a joint
property of the plaintiff and the 1st defendant and the purported
sale was a nullity.&nbsp; The 1st
and 2nd defendants filed 12 grounds of appeal and they are as
follows:<o:p></o:p>“a. The whole judgment is against the weight
of evidence adduced at the trial.<o:p></o:p>b. The learned judge erred in law when he held
that the said H/No. I/39,C8, Tema was the joint property of the plaintiff and
the 1st defendant even though the plaintiff had neither pleaded nor
specifically proved&nbsp; the exact financial
contributions she made towards the development of the disputed property.<o:p></o:p>c. The learned Judge erred &nbsp;when he held that&nbsp; the said&nbsp;
H/No I/39, C8, Tema was the joint&nbsp;
property of the plaintiff and 1st defendant without &nbsp;making any &nbsp;fair&nbsp;
determination as to their respective shares in the said property in
proportion to whatever financial contributions had been made towards the
improvement of the property.<o:p></o:p>d. The learned Judge erred in law when he held
that the said H/No. I/39, C8, Tema was the joint property of the plaintiff and
the 1st Defendant without having regard to the fact that if both
plaintiff and 1st defendant, had intended that they should both
acquire joint interests in H/No I/39, C8,Tema&nbsp;
the plaintiff would not have sat idly by and allowed the 1st
Defendant to purchase in his sole name, the entre H/No. I/39, C8, Tema,
together with the extensions thereof, when the said house was offered for sale
the TDS.<o:p></o:p>e. The learned Judge erred in law when he held
that the 2nd defendant was not an innocent purchase for value
without notice when he acquired the 1st defendant’s legal interest
in the said H/No. I/39, C8, Tema , having regard to the fact the legal &nbsp;title remained&nbsp;
at all material times&nbsp; in the sole
name of the 1st defendant.<o:p></o:p>f. The learned Judge er</main>