JOSEPH ADJEI DANSO vs BISMARK AMOAH [2023]DLCA16184

Date	2023-07-06
Suit No.	CIVIL APPEAL NO. H1/104/2023
Citation No.	[2023]DLCA16184

G. S. SUURBAAREH J.A. (PRESIDING)

A. MENSAH-HOMIAH

A. OWUSU-OFORI J.A

MARIAM AGYEMAN GYASI JAWHARRY ESQ.

FRANCIS KWOFIE ESQ.

[2023]DLCA16184
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH ADJEI DANSO<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs<o:p></o:p>BISMARK AMOAH<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>&nbsp;[COURT
OF APPEAL, KUMASI]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

CIVIL
APPEAL NO. H1/104/2023&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: 6TH JULY, 2023<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MARIAM AGYEMAN GYASI
JAWHARRY ESQ. FOR THE PLAINTIFF/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: 0cm 0cm 1pt;">

</div>CORAM:<o:p></o:p>G. S. SUURBAAREH J.A.
(PRESIDING)<o:p></o:p>A. MENSAH-HOMIAH,<o:p></o:p>A. OWUSU-OFORI 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 0cm;">

<p class="MsoNoSpacing" 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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>SUURBAAREH, JA<o:p></o:p>This
is an appeal against the judgment of the High Court, Kumasi, dated 21st
December, 2021, in which the Court dismissed the Plaintiff/Appellant’s claims,
whilst granting the counterclaim of the Defendant/Respondent in respect of
house No. 8 Block M, South Patasi.<o:p></o:p>The
facts giving rise to the instant appeal are not in much dispute. One Joseph
Ahima Danso, in his last WILL and Testament, bequeathed to his wife, Mrs.
Felicia Danso, and his son, Joseph Adjei Danso, his leasehold interest in a
dwelling house situate on Plot No. 8 Block M, South Patasi. The
Plaintiff/Appellant herein is the son of the testator, whilst Mrs. Felicia
Danso, is the surviving spouse of the testator to whom the property was
bequeathed. The facts also show that the property bequeathed to the
Plaintiff/Appellant and her mother, Mrs. Felicia Danso, comprised a dwelling
house with a vacant Plot. Mrs. Felicia Danso is now deceased. She died after
she had assigned the dwelling house to the Defendant/Respondent herein,
sometime in 2017. From the facts pleaded by the parties, even though executors
were appointed by the testator, they did not apply for probate to administer
the WILL&nbsp; before they died. This resulted
in the Plaintiff/Appellant, and her late mother applying for Letters of
Administration with Will Annexed, after a failed attempt by the
Plaintiff/Respondent and his Attorney&nbsp; to
apply for Letters of Administration with Will Annexed.<o:p></o:p>From
the pleadings, it is also not in doubt that before Letters of Administration
with Will Annexed was obtained, the Plaintiff/Appellant assigned the vacant
plot to a Chinese through one Jimmy Darmoe and made a statutory declaration to
that effect. The facts further show that this assignment was done without the
knowledge and consent of Mrs. Felicia Danso, who on becoming aware, protested
against&nbsp; the assignment. From the facts,
the Lands Commission, upon realization that the assignment by the
Plaintiff/Appellant was done in the name of the late father, refused to
register the interest of the Chinese. This necessitated the assignee to prevail
upon Mrs. Felicia Danso to make a statutory declaration, ratifying the
assignment by the Plaintiff/Appellant to the Chinese through Jimmy Darmoe, and
for which Felicia Danso was given Twenty Thousand Ghana Cedis (GHC20,000.00).<o:p></o:p>From
the pleadings, Mrs. Felicia Danso, in 2017, assigned the dwelling house on Plot
8 Block M, South Patasi to the Defendant/Respondent, who pull it down and made
extensive renovations before moving into it resulting in the action leading to
this appeal. Henceforth, the parties will simply be referred to by their designations
in the Court below.<o:p></o:p>The
Plaintiff instituted the action seeking a declaration that he is a co-owner of
the property sold to the defendant, and that the defendant’s occupation of same
was wrongful and unlawful, and seeking to have the defendant ejected and mulched
in damages for trespass, and then restrained together with all&nbsp; other persons claiming by or through him from
entering onto the property or dealing with it.<o:p></o:p>The
defendant who denied that his occupation was wrongful and unlawful, deposed to
facts about the assignment of the property to him by Mrs. Felicia Danso, and the
fact that she handed over all relevant documents in respect of the property to
him. He pleaded that the late Felicia Danso assigned her interest in the
property to him following the unilateral decision by the Plaintiff to assign
the vacant plot to the Chinese through Jimmy Darmoe without the knowledge and
consent of Mrs. Felicia Danso. He also denied that the reconstruction of the
property was done without the knowledge of the plaintiff. He then went on to
counterclaim for a declaration that the late Felicia Danso had common interest
in No. 8 Block M, South Patasi, that the late Felicia Danso validly transferred
her interest in the subject matter to the defendant; and, that his occupation
and possession was lawful and legitimate.<o:p></o:p>The
plaintiff, in his attempt to prove his case, gave evidence by his attorney and
called two other witnesses. He also tendered in evidence documents concerning
the disputed property and denied that the sale of the vacant portion was
without the knowledge and consent of late Felicia Danso. The plaintiff also
sought to show that Felicia Danso, before her death, was mentally challenged
and could not have executed any document in favour of the defendant. It was
further contended that the sale of the vacant plot was a decision of the entire
family and that the late Felicia Danso was well aware of it and even went on to
make a statutory declaration in support of the sale to the Chinese through
Jimmy Darmoe.<o:p></o:p>The
defendant on his part gave evidence about the assignment of the disputed
property to him by the late Felicia Danso; his payment for same, and how he
went on to carry out extensive renovations before moving into the property to
the knowledge of the plaintiff. He went on to tender in evidence documents in
respect of the disputed property which he said were handed over to him by the
late Felicia Danso. His evidence also show that the late Felicia Danso had
collected money from someone in respect of the disputed house which was to be
refunded from the payment made for the property. His evidence further shows
that the late Felicia Danso had disclosed why she was assigning the disputed
property.<o:p></o:p>Base</main>