APAU II vs. DWUMAA III [1959]DLCA1990

Date	1959-03-23
Suit No.
Citation No.	[1959]DLCA1990

KORSAH C.J.

VAN LARE J.A.

OLLENNU J.

[1959]DLCA1990
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">APAU II<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;vs.<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;DWUMAA III<o:p></o:p>&nbsp;[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1959] GLR 140<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
23RD MARCH, 1959.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

<o:p>&nbsp;</o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORSAH C.J., VAN LARE J.A., AND OLLENNU
J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORSAH C.J.<o:p></o:p>(His lordship
stated the facts, and proceeded)-:<o:p></o:p>It is
obvious that the defendant’s case in answer to the plaintiff’s claims in both
cases is based almost exclusively on the issues of law raised in his defence,
none of which can be said to be likely to deprive the plaintiff of the benefits
derived from the validated judgment of 7th February, 1913 by virtue of section
3 of the Boundary, Land, Tribute and Fishery Disputes (Executive Decisions
Validation) Ordinance.<o:p></o:p><o:p>&nbsp;</o:p>(His
lordship read the section as in the headnote, and proceeded:)<o:p></o:p>With
regard to the first of the two suits, viz. No. 2/1952, wherein the claim is for
an order for the defendant to carry out the order made on 7th February, 1913,
to erect pillars at the defendant’s charge, the learned Judge held that the
claim is misconceived. The sentence in the validated judgment reads as follows:
“Concrete boundary pillars to be erected at the following points at the charge
of Inyinahin.” I agree with the views expressed by the learned Judge, that the
sentence merely directed boundary pillars to be erected, the cost of which was
to be charged to the defendant; that there being nothing in the order to show
who should erect the pillars, if the defendant refused to erect the pillars the
plaintiff could have erected them, and demanded the cost from defendant; and
that it might also have been contemplated at the time that an administrative
officer in the area would see to it that defendant carried out the directions
of the Court. The Judge finally held that he could not agree that the defendant
could be held liable by virtue of the validated decision, and thereby compelled
to erect the pillars. This, in my view, is a reasonable interpretation of the
sentence contained in the said decision.<o:p></o:p>The
learned Judge held, therefore, that suit No. 2/1952 was misconceived and
therefore failed. This, in my view, is a correct conclusion which should not be
disturbed. But the learned Judge did not apparently consider the question of
costs with respect to this suit No. 2/1952. In view of the fact that there were
two separate claims, which were consolidated for purposes of trial, the
question of costs should have been considered separately in each of them and
unless there was good reason to the contrary the successful party in either of
them could not be deprived of his costs. No reasons have been stated, and I can
find none, why in suit No. 2/1952 the defendant, who is the successful party,
should not be granted costs in that suit. I would therefore allow the appeal
with respect to costs in suit No. 2/1952, which by consent are fixed at £100
for Counsel, other costs to be taxed.<o:p></o:p><o:p>&nbsp;</o:p>With
regard to suit No. 5/1952, the learned trial Judge found in favour of the
plaintiff, and gave judgment for the plaintiff (a) for recovery of possession,
(b) for perpetual injunction and (c) for mesne profits, in respect of which he
awarded £50 damages. It is from that judgment that the appeal in suit No.
5/1952 has been lodged.<o:p></o:p>The
relief sought is stated thus:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1)
Separate costs to be awarded to defendant for his counsel in respect of L.C.
2/52, with an order that other costs for defendant should be taxed;<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) the
judgment in transferred suit No. 5/52, to be set aside, as without
jurisdiction, or the plaintiff non-suited.<o:p></o</main>