JUSTINA MENSAH vs. SIMMS KOFI MENSAH [2018]DLCA6186

Date	2018-11-29
Suit No.	CIVIL APPEAL NO.HI/192/2018
Citation No.	[2018]DLCA6186

K.A. ACQUAYE J.A (PRESIDING)

B.F. ACKAH-YENSU J.A

I. O. TANKO AMADU J.A

G.O. ADUFU ESQ. (FOR APPELLANT)

K. OFFEI BADU ESQ. (FOR RESPONDENT)

[2018]DLCA6186
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													<main id="main" class="content" style="min-height: 60rem" >JUSTINA MENSAH<o:p></o:p>[PLAINTIFF/ APPELLANT]<o:p></o:p>vs.<o:p></o:p>SIMMS KOFI MENSAH<o:p></o:p>[DEFENDANT/ RESPONDENT]<o:p></o:p>[COURT
OF APPEAL (CIVIL DIVISION), ACCRA]<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">

CIVIL APPEAL NO.HI/192/2018&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: 29TH NOVEMBER,
2018<o:p></o:p>

K.
OFFEI BADU ESQ. (FOR RESPONDENT)<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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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>TANKO AMADU J.A<o:p></o:p>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This appeal lies from the judgment of
the High Court (Land Division) Accra dated the 14th day of June, 2017 in the
said judgment the Learned Trial Judge held and ordered in inter alia as
follows:-<o:p></o:p>“Thus the Plaintiff’s claim will
fail.&nbsp; The court finds that the property
in dispute located at New Achimota, was constructed by funds made available by
the Defendant and even though the legal documents are in the name of the
Plaintiff, she holds the legal title as a bare trustee for the Defendant.&nbsp; Thus having provided the purchase money and
constructed the building through his own resources, the Plaintiff merely held
the legal title of the estate House No.15, 13th Street, New Achimota formerly
numbered as No.205 but now No.5 while the Defendant is the beneficial owner of
the said property”.<o:p></o:p>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Learned Trial Judge further ordered
the Lands Commission to set aside the Land Certificate obtained by the
Plaintiff/ Appellant in respect of the estate House on Plot No.15, 13th Street,
New Achimota formerly numbered as No.205 but now known as No.5. It further
ordered that the Plaintiff/ Appellant her agents, servants, assigns, workmen,
grantees, privies or whosoever be perpetually restrained from entering onto any
portion of or interfering in any way whatsoever with the property in dispute.&nbsp; The Learned Trial Judge also ordered all
documents pertaining to the property in dispute to be conveyed to the Defendant
by the Plaintiff and directed the State Housing Company to amend its records to
reflect the name of the Defendant.&nbsp; The
Trial Judge awarded costs of Gh₡5000 in favour of
the Defendant.<o:p></o:p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It is from this judgment and the
respective orders made by the Trial Court that the Plaintiff/Appellant
(hereinafter referred to as ‘the Appellant’) has appealed to this court by
notice filed on the 11th day of August 2017 in which the following grounds of
appeal have been set out as follows:-<o:p></o:p>(i)
That the judgment is against the weight of the evidence.<o:p></o:p>(ii)&nbsp; That a substantial miscarriage of justice was
occasioned when the Trial Court gave judgment in favour of the Defendant who
from the evidence did not even know how the Plaintiff acquired from the State
Housing Corporation the land on which the house in dispute was built.<o:p></o:p>(iii)
That the Honourable Judge having found that all the documents&nbsp; covering the acquisition of the house in
dispute are in the name of&nbsp; the Plaintiff
erred in giving judgment in favour of the Defendant.<o:p></o:p>iv)That
the Honourable Judge erred on the means used in determining resulting trust and
title in the dispute in favour of the Defendant.<o:p></o:p>(v)
A substantial miscarriage of justice was occasioned when the&nbsp; Honourable Trial Judge failed to evaluate
Exhibit ‘H’ tendered by Plaintiff in which the Defendant had tacitly
acknowledged that the house in dispute belongs to Plaintiff.<o:p></o:p>&nbsp;(vi)The Honourable Court failed to appreciate
that the previous divorce proceedings did not actually consider the issue of
property settlement as provided for the provision for ancillary relief under
Order 65 Rules 23, 24, 25 and 26 due to the hasty manner in which the divorce
proceedings were conducted without evidence being taken otherwise all the
Nineteen (19) houses and other property acquired by the Defendants as contained
in his draft will and those acquired by the Plaintiff during the pendency of
the marriage would have been considered together with the house in dispute in
the present case.<o:p></o:p>(vii)That
the Honourable Court Judge erred in law by holding that the &nbsp;Plaintiff is estopped by her conduct, thus
leading to a substantial miscarriage of justice.<o:p></o:p>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An examination of the Appellant’s
grounds of appeal as set out reveal a dissatisfaction with the Trial Judge’s
refusal of Appellant’s plea of advancement and acceptance of Respondent’s plea
of resulting trust.&nbsp; The Learned Trial
Judge’s finding which the Appellant seeks to assail is summed up at page 107 of
the record thus:-<o:p></o:p>