Quidraogo Vrs Ayishatu And Another (H1/19/2006) [2007] GHACA 17 (19 December 2007);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL – ACCRA
CORAM - OWUSU, JA [PRESIDING]
ASARE KORANG, JA
KANYOKE, JA
H1/19/2006
15TH DECEMBER, 2007
RAGNOUGA QUIDRAOGO … PLAINTIFF/RESPONDENT
V E R S U S
MADAM AYISHATU … DEFENDANT/APPELLANT
MORO KAMPAORE … CO-DEFENDANT/APPELLANT
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J U D G M E N T
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OWUSU, JA - By his writ of summons, the plaintiff per his lawful Attorney claimed the following reliefs against the Defendant –
- “Recovery of possession of H/No. C. 153/13, Mamobi, Accra.”
- “Recovery of possession of H/No. J. 3837/7, Nungua Zongo, Accra.”
- “Account for all the rent collected in respect of the two (2) houses up
to date.”
(d) “Perpetual injunction restraining the Defendant, her agents, assigns, privies,
workmen, etc. from peaceful enjoyment and administration of the Estate
of his late uncle Mahama Quidrago alias Mohammadu Moshie.”
Upon an application for joinder on behalf of Moro Kampaore, he was later joined as Co-defendant to the suit.
The Defendant resisted the plaintiff’s claim and the Co-Defendant who also filed a defence to the plaintiff’s claim, counter-claimed for -
“A DECLARATION that House No J. 3827/7 Nungua-Zongo, Accra is the real and bona fide property of the Co-Defendant.”
“Recovery of possession of House No. J. 38/27/7, Nungua-Zongo, Accra.
“Perpetual injunction restraining the plaintiff, his agents, assigns, privies and others claiming through him from interfering with the said house No. J. 382/7, Nungua-Zongo, Accra.
“General Damages for breach of contract.”
The plaintiff, a paternal nephew of one Mahamadu Quidrago alias Mahamadu Moshie, based his action upon a bequest made to him by his uncle, Mahamadu Moshie, the original owner of the two houses during his life time and while on his sick bed. His case is that his uncle had at a meeting before his death in the presence of witnesses bequeathed his properties inclusive of the two houses to him.
The Defendant’s case is that the house No. C. 153/13, Mamobi had been gifted to her mother who was the wife of the plaintiff’s uncle during his life time. That Moshie died possessed of only house No. J. 382/7 among other personal properties. This house according to her, was handed over to the plaintiff by her mother (wife of Moshie).
The house was with the consent of the plaintiff sold to the Co-Defendant who counter-claimed for declaration of title as a bona fide purchaser for value.
At the end of the trial, Judgment was given for the plaintiff in terms of -
(1) Recovery of possession of House No. C. 153/13, Mamobi, Accra.
(2) Account for all rents collected in respect of that house.
(3) Perpetual injunction restraining the Defendant, her agents, assigns,
privies and workmen from having anything to do with the said
house and ¢20 million as damages.
Dissatisfied with the Judgment, the Defendant has appealed to this court on the grounds that –
- “The Judgment is against the weight of the evidence.”
- “The trial Judge erred in holding that the late Mohammed Moshie died
possessed of two houses.”
(3) “The trial Judge erred by holding that the plaintiff did not authorise
the sale of the Nungua-Zongo house” and
(4) “The trial Judge erred when he failed to hold that the matrimonial home
was a customary grant to the deceased spouse.”
- “That the trial Judge erred when he gave a wrong interpretation to Exhibit
1 (Letter from Charge d’ Affaires, Burkina Faso Embassy dated 21 June
1991 (to read 2 August 1991) thereby occasioning a miscarriage of justice.
At the close of pleadings, the issues set down for trial are the following:
(a) “Whether or not the late Mohamadu Quidrago made a gift of the
property H/No. C. 153, 13 Mamobi, Accra to the mother of the
Defendant;
(b) “Whether or not the property will return to the family of the deceased,
Mahamadu Quidrago;”
(c) “Whether or not the Defendant can inherit the property from her
mother;”
(d) “Whether or not property No. J. 382/7 Nungua-Zongo, Accra was
properly sold.”
(e) “Whether or not the Defendant is entitled to her Counter-Claim; and
(f) “Any other issues raised on the pleadings.”
The Co-Defendant’s claim is based on an alleged sale of the house by the plaintiff to him in consultation with the Moshie Chief of Nungua, the accredited Head of family of the late Mohammed Moshie. The alleged sale according to him was witnessed by the Chief of Kpeshie/Nungua.
The plaintiff’s claim is based on the alleged declaration made by his Uncle, the deceased. Was this disposition essentially a nuncupative Will? If it was, did it satisfy Moshie custom to vest the two houses in the plaintiff?
This is a material issue which needed to be resolved by the court below.
The Defendant also based her case on an alleged gift of house No. C. 153/13 which she described as the matrimonial home of her mother and the deceased to her mother by the deceased, her husband. The first issue set down for trial touched on the alleged gift. This issue was also not resolved by the court.
Rather, the court below relied on what allegedly took place at the Bukinabe Embassy and founded its Judgment on a letter from the Embassy tendered at the trial. The trial Judge therefore granted the plaintiff’s relief in respect of house No. C. 153/13, Mamobi and made no pronouncement in respect of house No. J. 382/7, Nungua-Zongo, Accra recovery of which the plaintiff is also claiming.
This house is the house the Co-Defendant claims he bought from the plaintiff and therefore counter-claimed for a declaration of title.
Unfortunately, the trial Judge made no pronouncement in respect of the counter-claim.
A trial Judge is duty bound to make findings on material issues with precission and particularity. Where the trial court fails in its duty to make such findings of material issues with precission and particularity, the Appellate Court was in as good a position as the trial Judge to evaluate the evidence and entitled to reverse the decision if it considered that the Judge had not resolved the essential facts.
See the case of BRUCE VRS. ATTRORNEY-GENERAL [1967] GLR 170.
In the instant case, the court cannot resolve the issue between the plaintiff and Co-Defendant as the Co-Defendant who did not appeal is not a party before us and as such no decision can be taken in his absence without giving him a right of hearing.
In the circumstances, the court is of the view that the whole case be remitted to the court below to be tried de-novo.
Accordingly, the Judgment of the court below is hereby set aside and the suit remitted to the court below for re-trial.
R.C. OWUSU
JUSTICE OF APPEAL
I agree. A. ASARE KORANG
JUSTICE OF APPEAL
I also agree. S.E. KANYOKE
JUSTICE OF APPEAL
COUNCEL - MR. TIMOTHY DZANSI FOR PLAINTIFF/RESPONDENT
MR. JOSEPH TURKSON FOR DEFENDANT/APPELLANT
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