AMPIM II vs. BEDIAKO I [1984]DLHC834

Date	1984-12-14
Suit No.
Citation No.	[1984]DLHC834

AMUAH J.

J.A. DAWSON FOR THE DEFENDANT-APPLICANT.

JAMES MERCER FOR THE PLAINTIFF-RESPONDENT.

[1984]DLHC834
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AMPIM II <o:p></o:p>

{HIGH COURT, SEKONDI} <o:p></o:p>

[1984-86] 2 GLR 628<o:p></o:p>

DATE:
14 DECEMBER 1984<o:p></o:p>

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

J.A. DAWSON FOR THE DEFENDANT-APPLICANT.<o:p></o:p>

JAMES MERCER 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;
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AMUAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUAH J.<o:p></o:p>In this
motion the defendant-applicant is praying for an order of this court to set
aside a default judgment entered against him on 3 August 1981 under Order 27 r.
16 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). The grounds for
the application are sufficiently set out in the affidavit attached hereto.
After explaining the cause of delay in filing a defence he went on to state
that he had a good defence. In paragraph 7 of his affidavit he stated that:<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">“The land
the subject matter in dispute is land which belongs to the Manso Amenfi stool
and I granted the land to the plaintiff under a mistaken belief that I could
grant same.”<o:p></o:p><o:p>&nbsp;</o:p>In the
ensuing argument Mr. James Mercer, learned counsel for the
plaintiff-respondent, relied on a plea of estoppel and asked the court to
dismiss the applicant’s motion. Mr. Mercer began with the point raised by Mr.
Dawson, learned counsel for the defendant-applicant, that the judgment was
obtained irregularly since Order 27, r. 7 was not complied with. In answer to
this, Mr. Mercer stated that Order 27, r. 7 related to actions for the recovery
of land and not for declaration of title to land and an order of injunction as
this instant action indicated. Order 27, r. 7 therefore did not apply in this
case. He also touched on the delay on the part of the defendant-applicant in
filing his defence. He stated that a mere allegation of illness was not enough:
citing Fori II v. Akrobettoe II [1971] 2 G.L.R. 137 at 138, C.A., he pointed
out that there was nothing on record that the defendant-applicant was beaten up
and showing the extent of the illness and for how long he was incapacitated.
The defendant-applicant was simply indolent, he said.<o:p></o:p>Regarding
the question of estoppel on which he dwelt at length, he stated that the
Omanhene was bound by his statutory declaration (exhibit E) in favour of the
plaintiff and could not resile from it. He said, however, that that did not
preclude any third party from proceeding against the plaintiff-respondent. He
cited the case of Kennedy v. Tagoe [1962] 1 G.L.R. 268 in support of his
contention. After reviewing several cases he stuck to his point that a man
could not take advantage of his lies or fraud and that a gift once completed
was beyond recall: see Mamavi v. West African. Building Ltd. [1965] G.L.R. 216.
Referring to the instant case, he stated that an aseda had been given to
perfect it and the second statutory declaration made on 7 November 1979 by
which the Omanhene attempted to revoke the first statutory declaration was
therefore of no effect. He cited two cases: Essell v. Davis (1929) 2 W.A.C.A.
5, P.C. and Golightly v. Ashrifi [1961] G.L.R. 28, P.C. to show that a
caretaker under customary law has an interest in the land.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Dawson, learned counsel for the defendant-applicant, had earlier on in his application
for an order to set aside the judgment contended that it was irregularly
obtained because Order 27, r. 7 was not complied with. He explained that when
the original solicitor withdrew his representation, the applicant was seriously
indisposed. He had been beaten up and was not able to engage a solicitor. As
soon as he became aware of the judgment on 24 August 1981 he took steps to set
the judgment aside. The applicant he stated, had a defence to the action which
was filed on 2 September 1982. In his further submission on obtaining leave
from the court, he maintained that the members of the defendant’s family, and
not the elders or councillors of the paramount stool, signed the exhibit E
filed on 4 December 1981. Such a grant was not valid. Explaining a legal
principle, he stated that although a party was not allowed to make a statement
contrary to what he had made in a deed, that principle did not hold where that
deed in which the statement was made was illegal or fraudulent. He relied on
Greer v. Kettle [1937] 4 All E.R. 396, H.L. and Amankwanor v. Asare [1966]
G.L.R. 5 98, S.C.<o:p></o:p>A brief
history of this case is sufficiently set out in the plaintiff ‘s statement of
claim in paragraphs 4-14 as follows:<o:p></o:p>