MARGARET OSEI ASSIBEY v. JOYCE GBOMITTAH & ORS
2012
SUPREME COURT
GHANA
CORAM
- AKUFFO, (MS) JSC (PRESIDING)
- DATE-BAH, JSC
- ANSAH, JSC
- BONNIE, JSC
- BAMFO,(MRS) JSC
Areas of Law
- Property and Real Estate Law
- Equity and Trusts
- Evidence Law
- Civil Procedure
2012
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Ghana Supreme Court case concerns competing claims to House No. 461 at Kwadaso Estate, Kumasi. Margaret Osei Assibey, widow of retired Sergeant Samuel Kwame Kyei, sued to declare title, recover possession, damages for trespass, and an injunction, alleging her late husband provided funds and materials while Commander G. E. Osei fronted the purchase from State Housing Corporation due to military rank constraints. Kyei occupied the house for nearly two decades, with utilities and rates in his name, until a police-assisted eviction in 2000. The High Court dismissed her case and the Court of Appeal affirmed. On further appeal, the Supreme Court’s majority found the lower courts mis-evaluated evidence, especially Exhibit "H," an admission letter by Osei acknowledging he obtained the house for Kyei. Considering long possession, circumstantial evidence, and Osei’s credibility issues, the Court applied resulting trust principles, allowed the appeal, and entered judgment for the appellant. A minority opinion by Akuffo JSC would have affirmed, viewing Exhibit "H" as non-binding and insufficient to upset concurrent findings.
J U D G M E N T
MINORITY OPINION
SOPHIA. A. B. AKUFFO (MS),J.S.C
Background
This is an appeal from the decision of the Court of Appeal, Kumasi, dated 17th December 2010, affirming the judgement of the High Court, Kumasi. It worth noting that although on the cover of the Record of Proceedings as well as in the statements of case respectively filed by both counsel for the parties herein one gathers, from the title of the case, an impression that there are three Respondents, it is evident from the Notice of Appeal in this Court that the sole Respondent herein is Commander G. E. Osei, who had been Co-Defendant at the trial of the matter. In this judgment, therefore, he will be referred to as the Respondent and his co-defendants at the high court will be referred as the 1st and 2nd Defendants.
Now, the brief background of the appeal is that, by a writ of Summons issued on 22nd January 2001, the Appellant herein sued the 1st and 2nd Defendants in the High Court, Kumasi, claiming:-
Declaration of title to H/No. 461, Kwadaso Estate, Kumasi
Recovery of possession
Damages for trespass
Perpetual injunction restraining the defendants, their servants and or workmen and agents from in any way interfering with Plaintiff’s possession of the property.
Subsequently, the Respondent, upon his own application, was joined in the suit as a Co-Defendant.
The case of the Appellant is that she is the widow of one Mr. Samuel Kwame Kyei who, she contends, is the beneficial owner of house number 461, Kwadaso Estate, Kumasi. According to her, she and her children (together with her husband before his death) had been in undisturbed possession of H/No. 461, Kwadaso Estate, Kumasi, the subject matter in dispute herein, for twenty years prior to the commencement of the action. However, sometime after the death of her husband, the Respondent succeeded in throwing her (the Appellant) and her children out of the house, in the process of which some of her personal effects were even damaged. The Appellant further alleged that her late husband who was a junior member of the Ghana Army and functioning as a security personnel was on friendly terms with the Respondent (at the material time, the Regional Secretary for Ashanti Region) and intimated to him, his desire to purchase a house in Atonso. According to the Appellant, the Respondent, who held the rank of Commander, and was thus a senior member of the army, advised her late husband that Atonso was not a good neighbourhood and that he