ERNESTINA LUCY DENNIS OF NSAWAM v. G. H. NUDJRODU also of NSAWAM
1948
HIGH COURT
GHANA
CORAM
- QUASHIE-IDUN, J
Areas of Law
- Property and Real Estate Law
- Contract Law
- Civil Procedure
- Evidence Law
1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
QUASHIE-IDUN, J adjudicated a dispute over land in Nsawam involving the plaintiff’s purchase from Asamoah Berkoe and a subsequent attachment sale obtained by creditor C. T. Odonkor against D. K. Asamoah Berkoe’s interest. The land had belonged to Ben Dennis, the plaintiff’s late husband, before his sale to Berkoe; Berkoe agreed in March 1943 to sell the land to the plaintiff for A385. The plaintiff made payments evidenced by receipts and took possession, collecting rent from the defendant occupant. In 1944, the plaintiff filed but discontinued an interpleader after concluding the attachment notice described a different parcel; the co-defendant, a Syrian, was joined. The court found the attachment description grossly misleading, credited survey evidence, and accepted that the plaintiff’s affidavit misstatement was a mistake. Because the plaintiff had completed payment and had possession before attachment, Berkoe retained no attachable interest. Judgment declaring the plaintiff’s title was entered; mesne profits and damages were disallowed, with costs against the co-defendant.
Judgment :
In this case the plaintiff's claim against the Defendant is for declaration of title to land situate at Nsawam. The Co-defendant who is a Syrian applied to be joined as a party and was accordingly joined.
The brief facts of the case are as follows:-
The land in dispute was originally the property of Ben Dennis, the late husband of the plaintiff, who sold it to Asamoah Berkoe. In March, 1943, Asamoah Berkoe agreed to sell the land to the plaintiff for £85. On the 2nd of March, 1943 the plaintiff paid to Asamoah Berkoe an amount of £30 in the presence of Ben Dennis and obtained a receipt.
On the 7th October, 1944, the plaintiff made a final payment of £25 in the presence of Quansah and Margaret Dennis and obtained a receipt for the same.
According to the plaintiff she was put in possession of the property and she collected rents from the defendant who was occupying it. In 1944 the plaintiff received an attachment notice (Exhibit " C ") stating that the following property would be sold by Public Auction on the 3rd of November, 1944, in the case entitled C. T. Odonkor versus D. K. Asamoah Berkoe and another viz.:-
"All the estate right title and interest of D. K. Asamoah Berkoe in all that piece or parcel of land situate lying and being at Nsawam and bounded on the North by P. A. Plange's property, on the South by F. & M. Khoury property on the East by Addy's property and on the West by F. J. Hage's property."
The plaintiff instituted an Interpleader action and swore to an affidavit in support of which she stated that she had inherited the said property from her late husband. According to the plaintiff she realised that the property described in the attachment notice was not the property purchased by her from Asamoah Berkoe and therefore she discontinued her Interpleader suit before the Magistrate's Court. Subsequently when she went to claim her rents from the defendant she was informed that the property had been sold. She therefore brought this action.
It is contended by Counsel for the Defendants that inasmuch as the plaintiff discontinued her Interpleader suit without leave to bring a fresh action she is estopped from instituting the present one.
The plaintiff has given her reason for discontinuing the Interpleader action and upon reading the description of the land attached and comparing the same with the description of the land claimed by the plaintiff as shown on the plan it is obvious to the Court that any person would reasonably com