KAI vs. AMARKYE [1982]DLCA2144

Date	1982-01-25
Suit No.
Citation No.	[1982]DLCA2144

JIAGGE JA

MENSA BOISON J.A.

SARKODEE J.

ENNIN FOR THE DEFENDANT-APPELLANT.

ATO DADZIE FOR THE PLAINTIFF-RESPONDENT.

[1982]DLCA2144
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >KAI <o:p></o:p>vs. <o:p></o:p>AMARKYE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 817<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:
25 JANUARY
1982<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">

ENNIN FOR THE DEFENDANT-APPELLANT. <o:p></o:p>

ATO DADZIE FOR THE PLAINTIFF-RESPONDENT.<o:p></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 1.0pt 0in">

JIAGGE, MENSA BOISON JJ.A. AND SARKODEE
J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SARKODEE J.<o:p></o:p>This is an
appeal from the judgment of his Honour. K. K. Okyere, Circuit Judge, sitting at
Cape Coast. The plaintiff-respondent (hereinafter referred to as the plaintiff)
in his capacity as head of the Abokyi family sued the defendant-appellant
(hereinafter referred to as the defendant) for a declaration of title to a
piece or parcel of land (called “Odumase land” which was formerly known as
Osamkrom), damages for trespass and perpetual injunction.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff succeeded on his claim, the court awarding him ¢2,000 damages for
trespass and an order for perpetual injunction. The court also gave judgment to
the defendant on his counterclaim and awarded him ¢500 damages and ¢150 costs.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant dissatisfied with the decision of the circuit court appealed to this
court. Two main grounds of appeal were argued, i.e. additional ground (1) and
ground (a) of the original grounds, namely:<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) whether
the omission to deny specifically paragraphs (8), (9) and (10) of the
plaintiff’s statement of claim operates as admission of those averments which
were denied in the original statement of defence.<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 is unreasonable and cannot be supported having regard to the evidence
before the court.”<o:p></o:p>After
pleadings had closed, but before trial, the defendant applied for and was
granted leave by the lower court to amend paragraph (6) of his statement of
defence. In his amended statement of defence filed subsequently, he failed to
repeat the paragraphs in the original defence by which he had specifically
denied paragraphs (8), (9) and (10) of the statement of claim. The three
paragraphs contain important averments touching on the plaintiff’s title.<o:p></o:p><o:p>&nbsp;</o:p>By those
paragraphs the plaintiff claimed that some time in 1978, he redeemed the land
in dispute from one Opanyin Takufa to whom the land had been pledged in 1928.
That he successfully instituted an action in the District Court, Saltpond,
against one Kojo Awer, head of family of Opanyin Takufa and Takufa’s successor
the judgment of which vested the land in dispute in the plaintiff. At that
trial, the defendant’s brother, hereafter referred to as Kwesi Dofo, gave
evidence against the plaintiff and claimed that the land in dispute was first
acquired by his ancestors. That claim was rejected by the district court.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff therefore, by paragraph (10) of the statement of claim stated that
the defendant was estopped from denying the title of the plaintiff and averred
that the defendant had trespassed on the said land and felled palm trees
thereon. By reason of the defendant’s failure to repeat those paragraphs in the
amended statement of defence, the trial judge held that the defendant was
deemed to have admitted paragraphs (8), (9) and (10) of the statement of claim
and therefore there was no need for the plaintiff to have led evidence in
support of those allegations of facts.<o:p></o:p><o:p>&nbsp;</o:p>It is not
surprising, from a closer look at the amended statement of defence, that the
learned trial judge was led into t</main>