MRS. ELIZABETH OSEI vs. MADAM ALICE EFUA KORANG [2013]DLSC2707

Date	2013-02-20
Suit No.	CIVIL APPEAL NO. J4/27/2012
Citation No.	[2013]DLSC2707

ANSAH J.S.C. (PRESIDING)

ANIN YEBOAH J.S.C.

BAFFOE BONNIE J.S.C.

GBADEGBE J.S.C.

AKOTO-BAMFO (MRS) J.S.C.

JAMES MENSAH KULLEY ESQ. FOR THE PLAINTIFF/ RESPONDENT/ APPELLANT.

J. H. SENOO FOR THE DEFENDANT/ APPELLANT/ RESPONDENT.

[2013]DLSC2707
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													<main id="main" class="content" style="min-height: 60rem" >MRS. ELIZABETH OSEI<o:p></o:p>vs.<o:p></o:p>MADAM ALICE EFUA KORANG<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;
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CIVIL
APPEAL NO. J4/27/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 20TH FEBRUARY, 2013<o:p></o:p>

J. H.
SENOO FOR THE DEFENDANT/ APPELLANT/ RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>ANSAH
J.S.C. (PRESIDING), ANIN YEBOAH J.S.C., BAFFOE BONNIE J.S.C., GBADEGBE J.S.C.,
AKOTO-BAMFO (MRS) J.S.C.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<o:p>&nbsp;</o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:150%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>ANSAH
JSC.<o:p></o:p>&nbsp;This is an appeal from the judgment of the
Court of Appeal dated 7th April 2011, which dismissed the judgment
of the trial court declaring that the matrimonial home of house number B/208,
Anya Onyinase Kokoroko, New Gbawe, was built by the late husband of the
plaintiff and retraining the defendant from removing the plaintiff from the
said matrimonial home. <o:p></o:p>In the action at the High Court, the
plaintiff claimed against the defendant the following reliefs:<o:p></o:p>“1 That the defendant be restrained
from removing the plaintiff from her matrimonial, home.<o:p></o:p>2. A declaration that the
matrimonial home situate at No. B/208 Anya Onyinase Kokoroko, New Gbawe, was
built by her late husband.”<o:p></o:p>&nbsp;
The case of the plaintiff was that she married one Stephen Kwame Osei
the late deceased son of the defendant and the couple put up the house in
dispute but after his death the defendant moved in claiming ownership thereto.
I shall give more details of her evidence later on in the course of this
delivery.&nbsp;&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>The defendant on the other hand denied
the claim by the plaintiff in her pleadings and asserted she put up the house
and gave it to her son, the said Stephen Kwame Osei, to occupy on her license. <o:p></o:p>She counterclaimed for:<o:p></o:p>“a). A declaration the Defendant is
the owner of H/No. B/208, Anya Onyinase Kokoroko by virtue of her having used
her own money to purchase land on which she had used her own resources to
construct a one storey building with an outhouse thereon.<o:p></o:p>(b) an order that the plaintiff and
her late husband lived and occupied H/No. B/208 as licensees of the defendant.<o:p></o:p>(c). an order that the plaintiff be
given three months to give absolute vacant possession of the said house to the
Defendant.”&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;<o:p></o:p>The counterclaim was subsequently
amended to read:<o:p></o:p>“a). A declaration that defendant is
the owner of House No.B/208 by virtue of her having used her own resources to
construct one story building, three shops and also an outhouse which outhouse
she received financial support from her son Agyepong who lives in the United
States.”<o:p></o:p>After taking evidence, the trial
High Court gave judgment in favor of the plaintiff on her claims and dismissed
the counterclaim, but her judgment was reversed on appeal to the Court of
Appeal. It is against this judgment that this appeal has been brought by the
defendant on the grounds that:<o:p></o:p>“a). the judgment of the Court of
Appeal is against the weight of the evidence on record.<o:p></o:p>b). The Court of Appeal erred in entering
judgment for the defendant/appellant/respondent upholding the appeal of the
Defendant/Appellant/Respondent and setting aside the judgment of the Trial
Court.<o:p></o:p>c). The Court of Appeal erred in
entering judgment for the Defendant/Appellant/Respondent on her counterclaim.<o:p></o:p>d). Additional grounds of appeal may
be filed upon receipt of the Record of Appeal. (None has been filed before us)<o:p></o:p>For clarity in this opinion I shall
hereinafter call the plaintiff the ‘appellant’, and the defendant the ‘respondent’.<o:p></o:p>It is trite learning an appeal to
this court is by way of a rehearing and the appellate court has the duty to
study the entire record to find whether or not the judgment under appeal was
justified as supported by the evidence on record. An appellate court is
entitled to make up its mind on the facts and to draw inferences to the same
extent as the trial court could do. See Praka</main>