MURI BABALOLA vs. VICTORIA TAMAKLOE [2014]DLCA16203

Date	2014-11-20
Suit No.	CIVIL APPEAL SUIT NO: H1/145/14
Citation No.	[2014]DLCA16203

KANYOKE J.A (PRESIDING)

GYAESAYOR J.A

G. TORKORNOO (MRS.) J.A

MR. KOJO ANNAN FOR DEFENDANT/APPELLANT

MR. MOHAMMED IDDRISU FOR THE PLAINTIFF/RESPONDENT

[2014]DLCA16203
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													<main id="main" class="content" style="min-height: 60rem" >MURI BABALOLA<o:p></o:p>&nbsp;(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>VICTORIA TAMAKLOE <o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

CIVIL
APPEAL SUIT NO: H1/145/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 20TH NOVEMBER, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
KOJO ANNAN FOR DEFENDANT/APPELLANT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

MR. MOHAMMED IDDRISU FOR THE
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>KANYOKE
J.A (PRESIDING), GYAESAYOR J.A, G. TORKORNOO (MRS.) J.A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>GYAESAYOR, JA<o:p></o:p>Sometime
in 1996, one Victoria Tamakloe now deceased and now substituted by one Beger Ahorlu
negotiated with one Rabiu Babalola to buy a swish building at Nima for ¢37.5
million cedis. The house is numbered Ward 5 Block B15 No.362 in Accra.&nbsp; After the negotiation, she paid an initial
amount of ¢15.5 million cedis.<o:p></o:p>&nbsp;Subsequent
to this, the said Rabiu and one of his brother’s resident in Ghana sold the house
to one Miriam Ahmed without first abrogating the contract between him and the
said Victoria Tamakloe. Victoria Tamakloe took action in the Circuit Court
against her vendor and applied for Miriam to be joined as a co-defendant to the
suit. On the 22nd day of December 2000, the Circuit Court delivered
judgment in favour of Victoria Tamakloe who was plaintiff in that suit.&nbsp; The court then proceeded to decree title in favour
of Victoria Tamakloe. &nbsp;Rabiu the vendor
did not appeal against the judgment of the Circuit Court but the new purchaser
Miriam Ahmed filed an appeal in the Court of Appeal.<o:p></o:p>&nbsp;The Court
of Appeal after listening to the parties dismissed the case of Madam Ahmed and
affirmed the decision of the Circuit Court.&nbsp;
The Court of Appeal found that there was a valid contract and that the
house which originally belonged to one Gbadamosi was properly sold by Rabiu to
Madam Victoria with the consent of one of the children entitled to the house and
confirmed the decree of specific performance ordered in her favour by the
Circuit Court.&nbsp; After the decision of the
court of appeal a brother of Rabiu who is the respondent in the appeal armed
with a vesting assent after Letters of Administration had been granted to him took
out a writ in the High Court Accra, claiming the very property sold to Madam
Tamakloe now deceased. The claim filed by Muri Babalola for himself and
beneficiaries of the estate of Gbadamosi for declaration of title to H/No199/18,
Nima 441 and for recovery of possession of the said house.<o:p></o:p>&nbsp;The
accompanying statement of claim discloses that the High Court Agona Swedru granted
Letters of Administration to Masudi Babalola on 20th June 2009 in
respect of the estate of Gbadamosi Babalola and who in turn executed a vesting
assent in favour of the children of late Gbadamosi on 10th August
2009.<o:p></o:p>&nbsp;Paragraph
6 of the statement of claim reads that “the defendant herein has been illegally
laying claim to No. H/No E199/51 Nima 441 and interfering with the plaintiff
possession without any valid grant of the house to her.<o:p></o:p>&nbsp;Upon
receipt of the writ the defendant/appellant filed a motion to have the writ set
aside. Her case is that she does not own any property H/No.E199/15 441 in Accra
and does not lay claim to any such property. The appellant subsequently filed a
supplementary affidavit in support of her application in which she denied the
existence of any such property and that she knows of H/No Ward E Block 15
No.362 Nima and that this has been known to the respondent. She also challenged
the grant of the Letters of Administration when she deposed in paragraph 4 that
“it is equally tendentious on the part of the said Masudi Babalola to go to the
High Court, Swedru which is in the Central Region to deceive the court to grant
him Letters of Administration to administer a non-existing property which he
falsely describes as H/No.E199/15”. On paragraph 7 she averred that she bought
property No. Ward E Block 15 No.362 from the plaintiff who went behind her and
sold the same property to Miriam Ahmed and was declared owner by the Circuit
Court.<o:p></o:p>&nbsp;In
the ensuing appeal in the Court of Appeal she obtained judgment in her favour
and execution has taken place and the house is now in her possession despite several
applications to deprive her from enjoying the fruits of her judgment even as
far as the Supreme Court. &nbsp;She was therefore
praying the court to dismiss the action as an abuse of the court process.<o:p></o:p>&nbsp;On
the 27th June 2013, the learned High Court Judge delivered his
ruling as follows “I have carefully looked
at all the issues raised in the motion of dismissal of suit for abuse of the
process of the court. I have noted that the main issue to be determined in the
matter is whether or not all the children of Gbadamosi Babalola got involved in
the purported sale of the disputed house to the defendants herein. In my opinion
this issue had not yet been clearly determined.&nbsp;
In consideration therefore the present application is dismissed.”<o:p></o:p><i</main>