ABDUL RAHMAN O. GIWAH v. ABDUL MAYUKA & SEIDU OSMANU
March 25, 2010
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP MR. JUSTICE S. H. OCRAN
Areas of Law
- Property and Real Estate Law
- Probate and Succession
- Evidence Law
March 25, 2010
HIGH COURT
GHANA
CORAM
AI Generated Summary
The High Court, per Mr. Justice S. H. Ocran, granted relief to the claimant, the customary successor of Alhaji Osumanu Lobi Giwah, over House No. 2 Denchira Loop, Kotobabi, Accra. The court found that the property identified as C 175/11 Kotobabi (Teslima) in an alleged 1972 sale was not the same as the disputed house and that the defendants failed to prove that ‘Sinabu Jayi Asimawu’ named in Asimawu Afoda’s will was ‘Seynabu N’diaye’. The claimant’s family had possessed and improved the house continuously since the 1970s, evidencing ownership and constituting adverse possession. Applying section 10(1) and (6) of the Limitation Decree, 1972, the court held any rival title extinguished and the defendants’ recovery claim barred. Fraud allegations were unproven and immaterial given prolonged inaction. The 1st defendant lacked capacity to sell without letters of administration, so the 2nd defendant acquired nothing. Judgment declared title for the claimant, imposed a perpetual injunction, dismissed the counterclaim, and awarded costs.
Y COURT:
On 25th April, 2003, the Plaintiff filed this writ and claimed the following:
1. Declaration of title to that entire house No. 2 Denchira Loop, Kotobabi Teslima, Accra.
2. Perpetual Injunction restraining the Defendants whether by themselves, servants agents, assigns representatives or whosoever from intermeddling with H/No. 2 Denchira Loop, Kotobabi, Accra.
3. Cost
The Statement of Claim that accompanied the writ was amended on 9th June, 2009. Defence to the Amended Statement of Claim with a Counter claim was filed on 21st July, 2009 and a reply was filed on 28th July, 2009.
The Plaintiff’s case per his pleading is that he has instituted this action as the customary successor of his late father Alhaji Osmanu Lobi Giwah, late of house No. 2 Denchira Loop, Kotobabi, Accra. That the Plaintiff’s grandfather, Alhaji Norga of Cowlane, Accra, devised the house in dispute to his son Alhaji Osumanu Lobi Giwah, who was the Plaintiff’s father. That Alhaji Norga bought the house from Alhaji Asane N’diaye. That on 30th July, 1973, probate was granted to the Will of Alhaji Norga. That the Plaintiff’s father took possession of this house since 1973 without any disturbance from anybody.
That his late father died in June, 1975 and thereafter the family of his deceased father continued to occupy this house. Whilst in occupation they have made additional rooms and renovations to the house. That in 2003, the 1st Defendant who purported to be the owner of the house sold it to the 2nd Defendant and purported to eject the Defendants and his tenants from the house. The Plaintiff pleaded further that by virtue of the long period of about 34 years possession and improvements on the house by the Plaintiffs without challenge from anybody, the Defendants claim to the house is statute barred.
The Defendants denied the Plaintiff’s claim and pleaded that the house in dispute, was formerly House No. C 175/11 Kotobabi (Teslima). That it was acquired by the 1st Defendant’s great grandmother by name Asimawu Afoda who died intestate in 1961. Even though the Defendants pleaded that Asimawu Afoda died intestate in 1961, they also pleaded that she devised the house to her granddaughter Sinabu Jaye Asimawu, also known as Seynabu N’diaye.
That amongst Asimawu Afoda’s executors was Alhaji Geewa, who was the Plaintiff’s grandfather. The Defendant’s pleading also stated that 1st Defendant’s mother Seynabu N’diaye was forced out of the Country in 1979 to Senegal and subsequently