2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal by Margaret Bandoh challenged the Circuit Court, Kumasi’s dismissal of her suit seeking to declare House No. Plot 7 Block I, Santasi, Kumasi, family property and to restrain relatives of Stephen Kwasi Bandoh. The defendants counterclaimed that Joseph Bandoh had made a valid customary inter vivos gift of the house to his nephew, Stephen, around 1986–1990, later reaffirmed in a 1991 will. On appeal, the Court of Appeal rejected counsel’s argument that the trial judge should have taken judicial notice of a disputed 2006 Deed of Assignment (exhibit A) allegedly assigning the same house to three nephews. Reviewing the record, including the plaintiff’s admissions and defense testimony of the gift ceremony and ‘aseda’, the Court held the gift was valid and irrevocable and that Joseph lacked capacity in 2006 to assign the house again due to nemo dat. The Court corrected the trial court’s articulation of co‑ownership, reaffirmed survivorship in joint tenancies, and concluded the plaintiffs failed on the preponderance of probabilities. The appeal was dismissed with costs.
ASIEDU, JA.
My lords, the instant appeal is against the judgment of the Circuit Court, Kumasi, delivered on Friday, the 24th day of May 2019. The Plaintiffs in the Circuit Court had instituted an action against the Defendants jointly and severally for:
(a) An order of the Circuit Court declaring House Number Plot 7 Block I Santasi, Kumasi as family property of the Plaintiff.
(b) Perpetual injunction restraining the Defendants, their children, assigns etc. or anybody claiming title through them from having anything to do with the said property.
(c) Any further order as the Circuit Court may deem fit.
Upon the receipt of the writ with its accompanying statement of claim, the Defendants also filed a statement of defence in which they counterclaimed for:
1. An order of the Circuit Court declaring the disputed property as the property of Kwasi Bandoh.
2. Perpetual injunction restraining the Plaintiffs and all who claim through them from having anything to do with the disputed property.
3. Cost.
After the hearing of the matter, the learned trial Circuit Judge found for the Defendants and dismissed the suit filed by the Plaintiffs. Dissatisfied with the judgment of the Circuit Court, the 2nd Plaintiff filed the instant appeal on the 6th June 2019 in which she prayed this Court to set aside the judgment of the Circuit Court. Two main grounds of appeal have been set down in the Notice of Appeal which are that:
(i) The judgment is against the weight of the evidence adduced at the trial Court.
(ii) The Court erred when it declared that the Plaintiff could not prove her case.
The Plaintiff/Appellant indicated in the notice of appeal that ‘additional grounds will be filed upon receipt of the records of proceedings’; however, no additional grounds of appeal was filed by the Plaintiff/Appellant. It appears from the record of appeal that before the conclusion of the trial, the 1st Plaintiff passed-on but was not substituted and so the trial continued with the 2nd Plaintiff as the only Plaintiff in the matter till judgment.
In view of the fact that the grounds of appeal filed by the Plaintiff/Appellant are similar in effect, we have decided to consider the two grounds together. The first ground of appeal stated on the Notice of Appeal filed by the Appellants is that “the judgment of the Circuit Court is against the weight of evidence adduced at the trial”. The authorities are legion as to the import of this ground of appeal. In Republic vrs Conduah; Ex part