GEOFFREY O. TETTEH v. MADAM KONADU

JUDGMENT

MARIAMA OWUSU, J.A:

On 21-1-2011, the High Court, Land Division, Accra, dismissed defendant/appellant’s [hereinafter refer to as defendant] counterclaim as not proved. The Court then entered judgment in favour of the plaintiff/respondent [hereinafter refer to as plaintiff] for all the reliefs claimed on the writ.

Dissatisfied with the decision of the trial court, the defendant appealed to the Court of Appeal on the following grounds:

1. The judgment is against the weight of evidence.

2. Further grounds will be filed on receipt of the record of appeal.

Relief Sought From This Court

That the judgment be set aside and judgment entered for the defendant.

Before dealing with the arguments advanced in support and against this appeal, I would like to give a brief background of the case.

The plaintiff by his writ of summons claims the following reliefs:

[i] A Declaration that as per the Will of Madam Amarkai dated 4-5-1972, House Number C 267/3, Asylum Down was devised to the plaintiff.

[ii] An Order for ejectment of the defendant from H/No. C 267/3, Asylum Down, Accra, and for recovery of possession.

[iii] Costs.

In the 16 paragraph statement of claim which accompanied the writ of summons, the plaintiff averred among other things that, sometime in February 1969, his grandmother, the late Madam Amarkai Okai [deceased] gave the defendant permission and right of entry to House No. C 267/3, on the Ring Road, Asylum Down, Accra, for commercial purposes. The defendant then converted the said premises into the place known as Apollo Theatre. Plaintiff averred further that, his said grandmother in her last Will and Testament, dated 4-5-1972 willed the property mentioned supra to him. The plaintiff continued that his grandmother died on 14-7-1972 and the disputed property devolved upon him. According to the plaintiff, probate of the said Will was granted to the executrix on 18-12-1990.

It is the case of the plaintiff that, since April 1985, the defendant had failed and refused to pay rent to him and all attempts to get defendant pay rent arrears have proved futile. He concluded that, he now desires the place for his own use and had communicated this to the defendant through his lawyers on 21-5-2007, by giving the defendant six [6] months notice to vacate the said premises. Up to date the defendant has refused to quit the premises hence this action.

On receipt of the plaintiff’s writ of summons and statement of claim, the defendant re