SASU AND ANOTHER vs. AMUA-SEKYI AND ANOTHER [1983]DLCA2179

Date	1983-11-28
Suit No.
Citation No.	[1983]DLCA2179

APALOO C.J

FRANCOIS JA

MENSA BOISON J.A.

ANANE (KOM LEADING HIM) FOR THE APPLICANT.

OHENE-AMPOFO FOR THE RESPONDENTS.

[1983]DLCA2179
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													<main id="main" class="content" style="min-height: 60rem" >SASU AND ANOTHER <o:p></o:p>vs. <o:p></o:p>AMUA-SEKYI AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 772<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:
28 NOVEMBER 1983<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">

ANANE (KOM LEADING HIM) FOR THE APPLICANT. <o:p></o:p>

OHENE-AMPOFO FOR THE RESPONDENTS.<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 0in 0in">

APALOO C.J., FRANCOIS AND MENSA BOISON
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>He
delivered the ruling of the court. The parties own land near or contiguous to
each other at South Odorkor, a suburban building area in Accra. It is common
knowledge that title to that area is vested in the Akumajay stool. Both parties
derive title from that stool or its grantees. They obtained written grants. The
areas covered by their respective grants are delineated on site plans.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs, hereafter called the respondents in the instant proceedings,
apparently felt that the first defendant, hereafter called the applicant, had
trespassed upon their land. So they brought a suit against him in the High
Court for damages and for possession. It appears that the only real issue
between them was the identity of their land. For this reason, a surveyor was
appointed by the court to make a composite plan to show their respective areas.
As is the usual practice, he was called as a witness by the court. He then
tendered the plan and gave evidence. The learned trial judge, no doubt, influenced
by the neutral evidence provided by the surveyor, felt satisfied that no
trespass had been committed. He therefore dismissed the action. The respondents
aggrieved by this judgment, appealed to this court. In the court below, for
reasons which are not now material, neither party had the assistance of
counsel.<o:p></o:p><o:p>&nbsp;</o:p>The
appeal came for hearing before this court on 16 November 1980. The record
exhibited in this application shows that the plaintiffs’ as the appellants,
were represented by counsel. But the respondents to the appeal, i.e the
applicant in the instant proceedings, was not. He was also recorded to be
absent. On that day, counsel for the appellants addressed oral argument to the
court in support of the appeal. The court’s mind seems to have been afflicted
with some doubt about the accuracy of the plan on which the judgment of the
court below was based. So on its own motion, it ordered the surveyor who
prepared the plan to testify before it. It also ordered that the Chief Lands
Officer be summoned to assist the court to resolve that doubt.<o:p></o:p><o:p>&nbsp;</o:p>On 5 May
1982, the surveyor appeared before the court and in evidence, conceded to some
error in the preparation of the plan and offered to rectify it. On 18 May 1982,
a representative of the Chief Lands Officer also appeared in answer to the
subpoena and gave evidence before the court. After his evidence, the surveyor
was recalled and tendered a corrected plan. All this time the successful party
at the trial court, i.e. the applicant in the instant case, was absent and the
proceedings were undoubtedly ex parte. The court must have considered that this
new evidence was required for the furtherance of justice. On a proper reading
or construction of rule 26 of LI 218, this court has power to require this
evidence on its own motion. The rule provides, “the Court may allow or require
new evidence to be adduced.” The word “allow” implies that such new evidence is
sought by a party while “require” clearly means that the court itself desired
such evidence.<o:p></o:p><o:p>&nbsp;</o:p>After the
evidence of the representative of the Chief Lands Officer and the surveyor, the
appellant’s counsel addressed further argument to the court. It then adjourned
indefinitely for judgment. It appears that the court after concluding its
consideration of the appeal fixed 5 July 1982, for judgment. Judgment was not,
in fact, delivered on that day. The applicant in the meantime, became aware not
only that the appeal had been heard in his absence but that a date had actually
been fixed for the delivery of judgment. Accordingly, on 4 August 1982, he
sought to arrest the judgment by applying to the court for leave to apply or
test the further evidence led by cross-examination.<o:p></o:p><o:p>&nbsp;</o:p>This
application came before the court on 18 October 1982. The court did not deal
with the motion on its merits. It directed that this matter should be placed
</main>