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JUDGMENT
BY COURT:
After the Judgment had been
written and was to ber read
today the 25th day of
February 2011, I received a copy
of a Petition to the Chief
Justice dated 11th
February 2011 to put the case
before another Judge.
As the Chief Justice has not
written to me and there is no
motion on the docket, to prevent
me from proceeding with case. I
read my Judgment as follows:
By the Plaintiffs Writ issued on
9/12/08, she claimed as the
customary successor to Madam
Comfort Tay and Akweley Tay and
as representative of the Tay
Family, and asked the Court to
declare that House Number 84,
South Aryee Diki, Kpehe, Accra,
(also described as H/No. HO2103)
New Town or H/No. C 203/8 (840)
South Aryee Diki, Kpehe, Accra
was the self-acquired property
of Madam Comfort Tay (deceased)
and has since remained in the
exclusive legal and beneficial
ownership and possession of her
successors in title up to this
day.
ii.
An order of Perpetual Injunction
restraining the Defendants and
their successors in title from
claiming title to; dealing in
any manner whatsoever with the
said property as the property of
Hilarious Komla Adzoh
(deceased); or in any manner
interfering with the Plaintiff’s
title to or possession and
enjoyment of the said property.
iii.
Damages for fraud.
The Statement of Claim that
accompanied the writ explained
that the Plaintiff is the
biological child of Akweley Tay,
who was the younger sister of
Comfort Tay, who had no child
until her death on 31st
January, 1980.
As a result of Comfort Tay not
having a child, she adopted the
Plaintiff and brought her up.
After the death of Comfort Tay
in January, 1980 her family
requested Hilarious Komly Adzoh
to vacate the rooms he shared
with Comfort Tay. Hillarious
Komla Adzoh and his son the 1st
Defendant vacated from the house
in 1985. After vacating the
house in dispute, the said
Hillarious komla Adzoh
instituted an action in the High
Court Accra, against the
Plaintiff’s mother and successor
to Comfort Tay and claimed
ownership to the house in
dispute. Hillarious Komla Adzoh
lost the action in the High
Court and in the Court of
Appeal.
After that the said Hillarious
Komla Adzoh never claimed the
house or interfered with the
Plaintiffs’ ownership and
possession again. The Defendants
have however included this house
in the Inventory of the
properties of the said
Hillarious Komla Adzoh. The
Defendant’s are therefore
estopped by the pleaded Judgment
and the conduct of Hillarious
Komla Adzoh from claiming this
house.
The Defendants resisted the
Plaintiffs’ claim. In the
Defendant’s Defence, they denied
that the Plaintiff is the
customary successor to Comfort
Tay and Akweley Tay. The
Defendants however admitted that
the mother of the Plaintiff is
the Junior Sister of Comfort
Tay, and that both Plaintiff and
her mother lived with Comfort
Tay, but that the Plaintiff was
never adopted by Comfort Tay.
The Defendants pleaded further
that the land on which the house
was built belonged to Mr.
Tettevi Tay, the Uncle of
Comfort and Akweley Tay, but it
was Mr. Adzoh, who bought it,
but not Comfort Tay as pleaded
by the Plaintiff.
The Defendants admitted in
paragraph 17 of the Statement of
Defence that Mr. Adzoh
instituted legal action in the
High Court, against Akweley Tay,
the mother of the Plaintiff
after he had refused to vacate
from the house in dispute, even
though she collected the
document on another house at
Mataheko, and agreed to vacate
but she failed and or refused to
vacate, but rather sold the
Mataheko house. According to
the Defendants, Mr. Adzoh did
not lose the case but the High
Court said since all the parties
were related in one way or the
other; they should stay in the
house together. The Defendants
also admitted that the matter
went to the court of Appeal, but
that Court upheld the decision
of the High Court on the basis
that the parties were related so
they should stay in the house
peacefully.
With regard to why Mr. Adzoh
left the house and never laid
claim to it, the Defendants
pleaded that Mr. Adzoh was
brutalized at Burma Camp and was
about to be killed by the
Plaintiff and cronies of like
mind.
Among the issues set down for
trial were the following:
a)
Whether Plaintiff is the
Customary successor to Madam
Comfort Tay and her sister
Akweley Tay (both deceased) and
the lawful representative of the
Tay Family.
b)
Whether Hillarious Komla Adzoh
instituted action at the High
Court, Accra, claiming ownership
and possession of this property
but failed both at the High
Court and the Court of Appeal.
c)
Whether both he and his
successors in title are estopped
from re-litigating the
issues of the ownership of this
property.
The Plaintiff gave evidence
through an attorney and
explained that the house in
dispute belonged to comfort Tay,
who had no Child. As a result,
she adopted her own mother, the
Plaintiff herein as her own
daughter. The attorney also
gave evidence that in their
custom, when a woman owns
property and she did not give
birth, after her demise, the
property goes to the brothers
and sisters of the woman. In
this case when comfort Tay died,
the property went to Akweley
Tay, and when Akweley Tay died,
the property went to the
Plaintiff.
The attorney gave further
evidence that before the death
of Akweley Tay, Hilary Komla
Adzoh, The father of the
Defendants instituted action in
the High Court, Accra against
the Attorney’s grandmother
Akweley Tay and her mother
Beatrice Maglo, the Plaintiff
herein and claimed the house in
dispute as belonging to him.
After the Plaintiff had closed
her case, the Defendants were
called upon to open their
defence. Their Counsel informed
the Court that they cannot open
their case without the Court of
Appeal Judgment. The Court
closed their case since before
the commencement of the hearing
the parties had been asked to
file all the documents that they
intend to rely on at the trial.
Several adjournments had been
taken to enable the Defendant to
file the Judgment that they
claim had said all the parties
should live in that house, but
to no avail.
Since the Defendants admitted in
their Statement of defence that
their late father instituted
action in the High Court, in
respect of the house in dispute,
but the High Court in its wisdom
decided that all of them are
related in one way or the other,
and as such should stay in the
house together, the Plaintiff
tendered a Certified copy of the
High Court Judgment as Exhibit
‘B’ without objection. In
Exhibit ‘B’ the trial Judge
found that the house on the land
was built by comfort Tay, and
dismissed the Plaintiffs’ claim
and awarded cost of ¢5,000.00
against the Defendant’s father.
In Exhibit “B”, there is no
indication that all the parties
should live in the house.
The Defendants Counsel
cross-examined the Plaintiffs’
Attorney but never suggested to
the Plaintiffs’ attorney who
succeeded Comfort Tay and
Akweley Tay, nor suggested that
the High Court said all the
parties in that suit should live
in the house.
Again, in the Defendants’
pleading, they never suggested
who succeeded Comfort Tay and
Akweley Tay. Again, the
Defendants never challenged the
evidence of the attorney that
the Plaintiff and her siblings,
and the Attorney himself have
been living in the house after
the death of Comfort Tay, and
that her grandmother Akweley Tay
and her mother the Plaintiff
lived in the house during the
life of Comfort Tay. Exhibit
‘B’ also indicates that it was
the Plaintiff and her mother who
were sued by the Defendants’
father in his bid to claim the
house in 1984, but failed.
Since the Plaintiff is the only
surviving person who was sued by
the Defendant’s father in
respect of the house in dispute
and having come to her notice
that the Defendants have
included the house in which she
lives, and for which she has
successfully defended against
the Defendants father, as
belonging to their late father,
I am of the view that the
Plaintiff has the capacity to
protect that house by
instituting the present action.
I therefore hold that the
Plaintiff is customary successor
to Madam Comfort Tay and Akweley
Tay (both deceased) and that she
has the capacity to institute
this action. At any rate if the
Defendants have not included the
house as belonging to their
father, in the Inventory of the
Application for, letters of
Administration this action would
not have been necessary.
With regard to the action by
Hillarious Komla Adzoh against
Madam Akweley Tay and the
Plaintiff for declaration of
title to the house in dispute in
the High Court and the Court of
Appeal, I hold that the said
Hillarious Komla Adzoh failed in
both the High Court and in the
Court of Appeal. I have come to
this conclusion because in
Exhibit ‘B’ which is the High
Court Judgment, the Court held
that the house was built by
Madam Comfort Tay. There is no
part of Exhibit ‘B’ that said
the parties in that suit should
stay in that house together.
In paragraph 17 of the Statement
of Defence, the Defendants
pleaded that the Court of Appeal
upheld the decision of the High
Court. If there is another
decision of the High Court other
than what is contained in
Exhibit ‘B’ then it’s the
Defendants who should have
produced that. Having failed to
tender any other Judgment, and
having admitted Exhibit “B’ as
the Judgment of the High Court I
am bound by that Judgment.
On the issue of estoppel, the
pleading and the evidence show
clearly that the Defendants are
claiming through Hillarious
Komla Adzoh whereas the
Plaintiff claims through Madam
Comfort Tay. Since the parties
in this suit have admitted that
they are privies to the parties
in suit No 34/1984 entitled
Hillary Komla Adzo Vrs. Akweley
Tay, Beatrice Amaglo and Joseph
Yaw Amaglo, I hold that the
Defendants and members of the
family of Hillarious Komla Adzo
are bound by the Judgment in
exhibit ‘B’ and are therefore
estopped from re-litigating the
issue of ownership of house
number 203/8 South Aryee Diki,
Kpehe, Accra.
I have come to this conclusion
because in the case of
Dzidzienyo vrs. Tsaka and Others
(2007-08) SC GLR 531, the
Supreme Court held that
“It is well settled under the
rule of estoppels that if a
Court of competent Jurisdiction
has tried and disposed of a
case, the parties themselves and
their privies cannot thereafter
bring an action on the same
claim or issue. The rule covers
matters actually dealt with in
the previous litigation as well
as those matters which properly
belonged to that litigation and
could have been brought up for
determination but wee not
raised.”
See also Dahabieh vrs. S. A.
Turqui and Brothers (2001-02) SC
GLR 498 holding 2 and Agbeshie
and Anr. Vrs. Amorkor and Anr.
(2009) SC GLR 594.
From the Defendants own pleading
they were aware of the previous
Judgment concerning the house in
dispute, against Hillarious
Komla Adzoh, yet they admit they
included it in the Inventory as
part of the Estate of hilarious
Komla Adzoh. This is definitely
fraudulent and condemnable. The
Plaintiff is compelled by this
fraudulent conduct to institute
this action.
I therefore enter Judgment for
the Plaintiff as follow:
a)
House Number 84, South Aryee
Diki, Kpehe, Accra (also
described as H/No. HO2103) New
Town or H/No. C 203/8 (840)
South Aryee Diki, Kpehe, Accra)
is declared to be the property
of the late Madam Comfort Tay.
b)
The Defendants and their
successors in title are
perpetually restratined from
having any dealings in any
manner whatsoever with the said
property and from claiming it as
the property of Hillarious Komla
Adzoh (deceased)
The Plaintiff is awarded GH¢5,000.00
as damages for fraudulently
claiming the said house as part
of the estate of Hillarious
Komla Adzoh.
The Plaintiff are awarded cost
of GH¢ 5,000.00.
(SGD.)MR. JUSTICE S.H. OCRAN
Justice of the
High Court
Counsel: Dr. Samuel Salasi
Adosi for Plaintiff.
Mr.
Awuku Peprah for Defendant is
absent
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