SODZEDO AKUTEYE & OTHERS v. ADJOA NYAKOAH & OTHERS

AKUFFO (MS), CJ:-

This is an appeal against the judgment of the Court of Appeal, delivered on 19th day of November, 2015, setting aside the judgment of the High Court. The Plaintiffs/ Respondents/ Appellants (hereinafter referred to as ‘the Appellants’), and the 2nd and 3rd Defendants/Appellants/Respondents (hereinafter referred to as ‘the 2nd and 3rd Respondents’), are the biological children of one Tsengor Akuteye (deceased), who during his life time, took a lease from the Tema Development Corporation (hereinafter referred to as ‘TDC’) on house number D/11, Tsinai Agbor Electoral Area, Ashaiman, the subject matter in dispute herein. The 1st Defendant/Appellant/Respondent (hereinafter referred to as ‘the 1st Respondent’) is the purchaser of the said house.

Background

By a writ of summons issued in the High Court, Accra, on 28th November 2008, the Appellants claimed from the 1st Respondent the following reliefs:

A declaration of title to H/No D/11, Tsinai Agbor Electoral Area, Ashaiman.

a. Recovery of possession of same.

b. Cost.

Subsequently, on 4th February, 2010, and 27th May, 2011, the Appellants amended their writ of summons, against all the Respondents, and whilst materially making the same averments as were contained in their initial Statements of Claim, in their amended Statement of Claim filed on 27th May, 2011, they added averments against the 2nd and 3rd Respondents. In sum, they claimed that, after the death of their father, the 1st Respondent, wielding certain documents purportedly executed by their late father and claiming to be the new owner of the house, went to the house and verbally asked the occupants of the house to give vacant possession. The Appellants contended that their father, who died at the age of 90, was too weak, incapacitated and mentally unstable to have effected a transfer of the property to 1st Respondent and that the documents of sale in the hands of 1st Respondent were obtained with the assistance of 2nd and 3rd Respondents who are also children of their father.

The Appellants, in yet another amended Statement of Claim, made with leave of the Court, pleaded that the purchase of the property was fraudulent, and proceeded, to particularize the fraud as follows:

i. That the 2nd and 3rd Defendants without authority of the family of Plaintiffs in an act amounting to fraud offered the H/No D/11 Ashaiman to 1st Defendant to buy.

ii. That the 2nd and 3rd Defendants long before the death of their father had in their pos