AUGUSTINE SEYIRE vs. CATHERINE SEYIRE [2017]DLCA4797

Date	2017-07-26
Suit No.	SUIT NO. H1/04/2017
Citation No.	[2017]DLCA4797

ADJEI J.A

LOVELACE-JOHNSON J.A

ACKAH-YENSU J.A

RAYMOND BAGNABU ESQ. FOR THE PLAINTIFF/ APPELLANT

DEFENDANT/RESPONDENT IN PERSON

[2017]DLCA4797
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													<main id="main" class="content" style="min-height: 60rem" >AUGUSTINE SEYIRE<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>CATHERINE SEYIRE<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, TAMALE]<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. H1/04/2017&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: 26TH JULY, 2017<o:p></o:p>

DEFENDANT/RESPONDENT
IN PERSON<o:p></o:p>

</div>ADJEI, J.A:<o:p></o:p>The
Plaintiff/Appellant dissatisfied with the judgment of the High Court, Tamale
delivered on 5th February, 2013, filed a notice of appeal against same to the
Court. The notice of appeal was filed on 7th February, 2013.<o:p></o:p>There
are two divergent evidence adduced by the parties at the trial regarding
ownership to H/No. C6, Navrongo and a house commonly called ‘Old UTC’ and
situated at Navrongo. The parties were ad idem as to the identities and the
location of the two disputed properties. The parties also agreed that plot No.
C6 Navrongo was acquired by Peter Seyire. The Defendant asserted that her late
grandfather gifted the property to her father. The Plaintiff on the other hand
insisted that the property remained the property of his father but devolved
unto the late Everist Seyire through succession. The Plaintiff who is an uncle
of the Defendant asserted that both properties were acquired by his father; the
late Peter Seyire who died in 1963. The Defendant who is a granddaughter of the
late Peter Seyire also alleged that the UTC property was acquired by her late
father while Plot No. C6 was acquired by her grandfather and gifted to her
father. The trial High Court Judge found that the UTC property was acquired by
the late J. Evarist Seyire and Peter Seyire gifted H/No Plot 6 to Everist
Seyire. The trial High Court judge therefore granted all the reliefs sought by
the Defendant on her counter claim. The trial High Court Judge dismissed the
claim for the plaintiff and being dissatisfied with it the plaintiff filed an
appeal against same to this Court. Parties will maintain respective
designations at the trial High Court, that is, the Plaintiff/Appellant will be
referred to in this appeal as Plaintiff and the Defendant/Respondent as
Defendant.<o:p></o:p>The
six grounds of appeal filed by the Plaintiff against the Defendant are as
follows:<o:p></o:p>“i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial Judge erred in law when he failed&nbsp;
to properly allocate the burden of proof and place same on the defendant
having regard to the pleadings in this case.<o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial Judge erred in law when he interpreted ambiguous statements by the
plaintiff made prior to the litigation as admission of the claim of the
Defendant’s claim in the circumstances of the case.<o:p></o:p>iii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial judge erred in law&nbsp; by&nbsp; treating&nbsp;
minor&nbsp; and immaterial
discrepancies in the evidence&nbsp; of the
plaintiff and his&nbsp; witnesses on events
that occurred about&nbsp; sixty years ago
as&nbsp; weakening Plaintiff’s case whereas
the Plaintiff and his&nbsp; witness
remained&nbsp; consistent on the main issues
of fact in the case.<o:p></o:p>iv.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial Judge erred in law when he held&nbsp;
that payment of property rates, utilities and using property a security
for loan all without&nbsp; the knowledge
and&nbsp; consent&nbsp; of the Plaintiff are proof&nbsp; of ownership by Defendant.<o:p></o:p>v.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
trial Judge did not adequately consider the whole case of the plaintiff.<o:p></o:p>vi.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
judgment is against the weight of the evidence”.<o:p></o:p>The
Plaintiff did not file additional grounds of appeal even though he indicated
that he may file one upon receipt of the record of appeal.<o:p></o:p>We
wish to state that the Defendant/Respondent did not file written submission in
answer to the Appellant’s written submission in accordance with Rule 20(4) of
the Court of Appeal Rules C.I. 19. The law is that where a party fails to file
her written submission as is the instant appeal; the Respondent shall not be
heard at the hearing of the appeal except as to the question of costs. We are
satisfied by Rule 20 sub rule 8 of the Court of Appeal Rules and shall embark
the voyage of determining the appeal on its merits without giving the
Respondent a hearing except as to the question of costs.<o:p></o:p>We
address the appeal in the manner in which the Plaintiff argued his appeal. We
now address the omnibus ground of appeal which is that the judgment is against
the weight of evidence on record. The omnibus ground empowers an appellate
court to rehear the matter&nbsp; by evaluating
the evidence and the exhibits on the record&nbsp;
and&nbsp; correcting all the errors
committed by the trial court in its&nbsp;
evaluation of the evidence&nbsp; on
record. We are therefore required to correct all the errors committed by the
trial High Court</main>