ZODZEDOR AKUTEYE AND 2 OTHERS vs. MAD. ADJOA NYARKOAH AND 2 OTHERS [2015]DLCA4884

Date	2015-11-19
Suit No.	CIVIL APPEAL NO. H1/ 147/ 2015
Citation No.	[2015]DLCA4884

MARFUL-SAU JA (PRESIDING)

AGNES DORDZIE JA

L.L. MENSAH JA

JULIET DELA AGBOH FOR THE APPELLANT.

RICHARD ODUM MENSAH FOR THE RESPONDENTS.

[2015]DLCA4884
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													<main id="main" class="content" style="min-height: 60rem" >ZODZEDOR AKUTEYE AND 2 OTHERS<o:p></o:p>(PLAINTIFFS/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>MAD. ADJOA NYARKOAH AND 2 OTHERS<o:p></o:p>(1ST
DEFENDANT/APPELLANT)<o:p></o:p>[COURT
OF APPEAL, 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. H1/ 147/
2015&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;19TH
NOVEMBER, 2015<o:p></o:p>

<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">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA: - The subject-matter of this appeal is H/No.
D/11 situate at&nbsp; Tsinai-agbor, Ashaiman,
which according to the plaintiffs/respondents belonged to their father the late
Tsengor Akuteye, but sold to the 1st defendant/ appellant
fraudulently by the 2nd and 3rd defendants in the suit.
According to the plaintiffs/respondents, their father at the time of the
alleged sale was very advanced in age and mentally unsound to engage in any
sale transaction. The trial court after taking evidence from the parties
entered judgment for the plaintiffs/ respondents and dismissed the counterclaim
of the 1st defendant/appellant.<o:p></o:p><o:p>&nbsp;</o:p>In
his judgment the trial court found that even though the house the subject of
the dispute was sold by Tsengor Akuteye, the father of Plaintiff / respondents,
he did not appreciate and understand the transaction simply because the
documents evidencing the sale had no properly executed jurats indicating that
the contents were explained to Tsengor Akuteye in the language he understood.
The court held at page 237 to 238 of the record of appeal as follows:-<o:p></o:p>‘’In conclusion the court
for two main reasons of the documents of sale failing to comply with the
Illiterate Protection Ordinance and for fraud as I have found set aside the
sale of the property to the 1st defendant. I will dismiss all the
reliefs that the 1st defendant seeks in her counterclaim’’.<o:p></o:p>It
is against this judgment that the 1st defendant/appellant has
appealed to this court praying that the judgment of the trial court be set
aside and judgment entered for her on the counterclaim. In this appeal the 1st
defendant/appellant will be referred to as the appellant while the
plaintiff/respondents would be referred to as respondents. In the notice of
appeal, the appellant raised four grounds as follows:-<o:p></o:p>(a)
that the trial judge erred when he found that the 1st defendant who
had paid for H/ No. D11 at Ashiaman and the lessee/vendor had secured consent
of the transfer to the 1st defendant from the Tema Development
Company had been defrauded.<o:p></o:p>(b)
that the trial judge erred by relying solely on the absence of the name of the
person who interpreted the content of Exhibit 1,2,3,4 and 5 to the vendor in
the cause of the transaction to find that the sale of H/No. D11 at Ashiaman was
tainted with fraud.<o:p></o:p>(c)
that the trial judge erred when he failed to advert his mind to the fact that
the land on which H/No. D11 is situate at Ashiaman is the property of Tema
Development Company (TDC) and the same could not be transferred without the
involvement of the lessee/vendor unless there is evidence of fraud perpetuated
at TDC by the defendants.<o:p></o:p>(d)
that the trial judge erred by finding that the 2nd and 3rd
defendants sold H/No. D11 at Ashiaman to the 1st defendant when no
evidence was led to prove that they actually or fraudulently effected the sale
and transfer to the house in dispute at TDC to the 1st defendant.<o:p></o:p>In
his written submission filed in this appeal counsel for appellant abandoned
grounds (a) and (c) and argued grounds (b) and (d). The said grounds (a) and
(c) are therefore struck out accordingly as abandoned. Now, before I consider counsel for the appellant’s submissions on
grounds (b) and (d), I wish to address a fundamental issue raised by this
appeal. Upon a careful reading of the record it is evident that the appeal
raises one fundamental issue, which is, whether or not the vendor Tsengor
Akuteye appreciated the sale transaction, notwithstanding the fact that the
documents evidencing the sale did not contain properly executed jurats, showing
that they were interpreted to the vendor Tsengor Akuteye.<o:p></o:p>&nbsp;It is now trite learning that an appeal is by
way of re-hearing as provided for by Rule 8 (1) of the Court of Appeal Rules,
CI19. That rule states as follows:-<o:p></o:p>‘’8 (1) Any appeal to the
Court shall be by way of re-hearing and shall be brought by a notice referred
to in these Rules as ‘’the notice of appeal’’.<o:p></o:p>See
Tuakwa v Bosom (2001-2002) SCGLR 61<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Brown v. Quashigah</main>