COMFORT DARKO vs. JULIANA DARKO [2015]DLCA6694

Date	2015-05-27
Suit No.	SUIT NO: H1/12/2010
Citation No.	[2015]DLCA6694

ADJEI J.A. (PRESIDING)

SOWAH J.A.

KWOFIE J.A.

SIR ASANTE-ANSONG FOR APPELLANT

ISAAC OKYERE DARKO FOR RESPONDENT

[2015]DLCA6694
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													<main id="main" class="content" style="min-height: 60rem" >COMFORT DARKO<o:p></o:p>vs.<o:p></o:p>JULIANA DARKO<o:p></o:p>[COURT
OF APPEAL, KOFORIDUA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

SUIT NO: H1/12/2010&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; DATE: 27TH MAY, 2015<o:p></o:p>

ISAAC
OKYERE DARKO FOR RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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>SOWAH, J.A. <o:p></o:p>This
is an appeal from the judgment of the Circuit Court Koforidua dated 18th
January 2013 in which the claims of the plaintiff were dismissed and judgment
was entered for the defendant. <o:p></o:p>Aggrieved
by this judgment, the plaintiff/appellant who will hereafter be called the
plaintiff seeks to set aside the judgment of the trial court and has filed the
following grounds of appeal: <o:p></o:p>a.
That the judgment is against the weight of evidence. <o:p></o:p>b.
That the trial Judge erred in law by holding that the defendant in her amended
statement of defence had abandoned her counterclaim when she had in fact not
done so, thereby putting the burden of proof solely on the plaintiff and that
had resulted in a miscarriage of justice. <o:p></o:p>c.
That the trial Judge erred in law by failing to dismiss the defendant’s
counterclaim when no probative evidence was led to establish same and that has
resulted in a miscarriage of justice. <o:p></o:p>d.
That the trial Judge was wrong in holding that the oral arrangement made
between Ampem Darko and Ofe Ameyaw for the latter to pay the cost of the
building material loaned to former by the Rural Housing Unit and consequently
for the plaintiff to take the house in dispute after the[sic] Ampem Darko’s
death was a transfer of an interest affecting land and that resulted in a
miscarriage of justice. <o:p></o:p>e.
That the trial Judge erred in law by holding that the arrangement between Ofe
Ameyaw and Ampem Darko was not an oral customary arrangement. <o:p></o:p>f.
Additional grounds of appeal will be filed upon receipt of the record of
proceedings. <o:p></o:p>It
is placed on record that no additional grounds of appeal were filed by the
plaintiff/appellant. <o:p></o:p>The
case of the plaintiff according to evidence adduced at the trial and her
statement of claim as amended on 27th March 2012 after her testimony was that
she was the daughter of Francis Emmanuel Ampem Darko (deceased). That the said
Ampem Darko took a loan in the form of supply of building materials from the
Rural Housing Scheme to complete house No. AW 64 C/4 Aburi, which is the
property in dispute. However Ampem Darko was unable to amortize the loan and
pleaded with plaintiffs late husband Dr. Ofe Ameyaw who was a Director of the
Scheme to repay the loan on the agreed terms, namely, that the building would
be given to the plaintiff and her children after the death of Ampem Darko.
According to the plaintiff, Ofe Ameyaw died in 1986 and documents on the house
were handed over to Ampem Darko who also died in 1988. On Ampem Darko[sic]
death, his customary successor had attempted to claim the house but at a family
meeting, the family accepted that it was her husband who had put up the
building for her father thus it was decided that the plaintiff should take
possession. The plaintiff said she took possession and found a caretaker for
the house, had been paying property rates on the house and brought the
defendant who was a niece of Ampem Darko to live in the house. PW1 Reverend
Quansah who said he was the overall head of family was called to corroborate
the assertion that Ofe Ameyaw had paid Ampem Darko’s debt thus the family had
given the house to the plaintiff and her children and it was the plaintiff who
invited the defendant to live in the house. Plaintiff said she had sued the
defendant for Declaration of title, Recovery of vacant possession and Perpetual
injunction because the defendant believed the house was for her uncle Ampem
Darko and wanted to lay claim to the house. <o:p></o:p>The
defendants’ case was that the house in dispute was put up by Ampem Darko who
was her mother’s brother, and upon his death it became family property. She
denied that plaintiff was the daughter of Ampem Darko. She also denied
assertions of the plaintiff regarding payment of Ampem Darkos debt by Ofe
Ameyaw, or a family meeting convened when Ampem Darko’s successor tried to lay
claim to the house and where it was accepted that the house was for the
plaintiff. She also denied that plaintiff had been paying the rates for the
house or that it was the plaintiff who had allowed her to come and live in the
house. According to the defendant, before the death of the last of her mothers’
brothers, that uncle had invited and had handed over the documents in respect
of the house to her. She counter-claimed for Declaration of title to and
recovery of possession of the House in dispute and Perpetual injunction
restraining the plaintiff and all persons claiming through her. <o:p></o:p>At
the end of the trial, the learned trial judge held that on the evidence and on
the balance of probabilities, the plaintiff had failed to prove her claim to a
sufficient degree of certainty. Judgment was entered for the defendant even
though the trial judge had earlier stated that the defendant had apparently
abandoned her counterclaim. The judgment is at pages 108 to 113 of the record
of appeal. <o:p></o:p>The
plaintiffs’ counsel first argued ground (b) of the appeal. He submits that the
trial judge erred in law by holding that the defendant had apparently abandoned
her counterclaim in the amended statement of defence, and that this error had
disabled the trial judge from appreciating that the defendant bore an equal
burden of proof as </main>