AMUA-SEKYI AND ANOTHER vs. SASU AND ANOTHER [1985]DLCA835

Date	1985-08-12
Suit No.
Citation No.	[1985]DLCA835

APALOO C.J.

FRANCOIS J.S.C

ABBAN J.A.

OHENE AMPOFO (WITH HIM TABI AMPONSAH) FOR THE APPELLANTS.

E. D. KOM (WITH HIM BOB ANANE) FOR THE RESPONDENT.

[1985]DLCA835
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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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AMUA-SEKYI AND ANOTHER <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 2 GLR 479<o:p></o:p>

DATE:
12 AUGUST 1985<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">

OHENE AMPOFO (WITH HIM TABI AMPONSAH) FOR THE
APPELLANTS. <o:p></o:p>

E. D. KOM (WITH HIM BOB ANANE) FOR THE 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">

APALOO C.J., FRANCOIS J.S.C. AND ABBAN J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>The area
in controversy between the parties to this suit lies at South Odorkor. It is
part of Akumajay stool lands, and at different dates representatives of the
stool have granted interests in the land to the protagonists herein.
Accordingly the plaintiffs plead that by a deed of gift excuted in 1959 and
stamped with the No. A.C 6790/59, the second plaintiff acquired the land from
Nii Ayikai II, the then reigning Akumajay Mantse. They further aver that this
document got burnt in an accident in 1966 and a confirmatory deed was obtained
in March 1977 which was later registered in the Deeds Registry and numbered
1490/77 (exhibit B). It is this land the first plaintiff purchased from the
second plaintiff in 1967 and registered as No.1491/77 (exhibit G)<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant claims the same land by virtue of a deed of purchase from the second
defendant, then acting Akumajay Mantse (now deceased). This document is dated
23 August 1974 and its registered number is No. 2668/1975 (exhibit 1). Although
there was an earlier challenge to the second defendant’s capacity to alienate
Akumajay stool lands, that aspect of protest died without a whimper when the
second plaintiff capitulated with the admission, “It is correct that the second
defendant had power to dispose of Akumajay stool lands with the consent of the
elders of the stool.”<o:p></o:p><o:p>&nbsp;</o:p>As the
competing titles are derived from the same stool, the issues for trial are
consequently considerably narrowed to two, namely priority of title and the
identity of the land. This latter issue arises because of the first defendant’s
contention that the plaintiffs’ grant could not have fallen precisely on his
land.<o:p></o:p>By a
notice filed on 23 June 1977, the plaintiffs sought leave to amend their claim
by adding a prior oral customary grant to which the document of 1959 was
subsequent. This customary grant was allegedly evidenced by a receipt (exhibit
A) issued on 24 October 1959.<o:p></o:p><o:p>&nbsp;</o:p>The
amendment does not appear to have been dealt with. There is no record of a
response from the defendants. The docket is silent and does not resolve the
matter. In my view it was the duty of the trial court to have taken notice of
the application to amend and dealt with it. When a similar omission occurred in
Ghana Commercial Bank v. Kofie [1963] 2 G.L.R. 235 at 236, S.C., the Supreme
Court declared:<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">“...
since the plaintiffs’ notice of amendment was before the court at the time it
delivered the judgment the court should have considered it and amended the claim
accordingly in the exercise of its powers under Order 28, r. 12 of the Supreme
(High) Court (Civil Procedure) Rules, 1954 (L.N. 140A).”<o:p></o:p><o:p>&nbsp;</o:p>Nevertheless
the matter proceeded on the basis that an amendment had been regularly
obtained. Among the agreed issues settled by the court for trial on 15 December
1977 was issue (lb), which is as follows, “Whether or not the customary gift
made to the second plaintiff by Nii Ayikai II, operated to divest the rights,
title and interest of the Akumajay stool in the land in dispute.”<o:p></o:p>