SESE v. SESE AND OTHERS

JUDGMENT OF ABBAN J.A.

The appeal is from the judgment of the High Court, Accra dated 25 November 1983. The appellant (hereinafter referred to as the plaintiff) had claimed a declaration of title, recovery of possession, [p.168] damages for trespass and an order for perpetual injunction in respect of a piece of land situate at Kokomlemle, Accra.

The plaintiff and the first respondent (hereinafter referred to as the first defendant) were brothers. They were the children of the same father but had different mothers. The disputed land was the self-acquired property of their father, the late Evans Kofi Sese, who died at the ripe age of about 90. The late father acquired the land by purchase in August 1952. He built a one-storey house called an out-house on a portion of the land and lived in it.

The father later permitted the plaintiff to build on the remaining portion of the land. In consequence of the said permission the plaintiff put up a two-storey building on that portion. The late father however, continued to live in his said out-house with his wife (the mother of the first defendant), the first defendant himself as well as the first defendant's two sisters of the same mother and father. The late father occupied the out-house with those persons until he became so old that he had to be conveyed to his hometown, Peki Dzake, to spend his last days.

In his lifetime the father rented some rooms in the out-house to tenants and collected rents from them. The last tenant of the late father was the present second respondent (hereinafter referred to as the second defendant). The father passed away on 25 November 1980 at Peki Dzake, and nine months later, on 13 August 1981, the plaintiff caused letters to be written to the defendants by his solicitor asking them to pay rents for occupying the out-house on the ground that he was the owner of the said out-house.

The defendants disputed the plaintiff's claim to the out-house and refused to accede to his request. So on 24 August 1981 they also caused a fitting reply to be sent by their solicitor to the plaintiff, and within two weeks of the receipt of the said reply from the defendants, the plaintiff resorted to court action.

The basis of his action was that during the lifetime of the late father, the latter made a customary gift of the out-house to him and the gift was evidenced in writing by a deed of gift dated 25 August 1976 and registered as No. 321/1977. In their defence the defendants disputed the alleged