AHYIA vs. AMOA [1987]DLCA693

Date	1987-01-21
Suit No.
Citation No.	[1987]DLCA693

OSEI-HWERE JA

WUAKU JA

AMPIAH J. A.

BARNABAS BINTOH FOR THE PLAINTIFF-APPELLANT.

NO REPRESENTATION BY OR FOR THE DEFENDANT-RESPONDENTS

[1987]DLCA693
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													<main id="main" class="content" style="min-height: 60rem" >AHYIA <o:p></o:p>vs. <o:p></o:p>AMOA <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 19<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
21 JANUARY 1987<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">

BARNABAS BINTOH FOR THE PLAINTIFF-APPELLANT. <o:p></o:p>

NO REPRESENTATION BY OR FOR THE
DEFENDANT-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">

OSEI-HWERE, WUAKU AND AMPIAH J. J. A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE JA.<o:p></o:p>The
history of this appeal is a paradox. It is the story of the victor-vanquished.
It must be re-told briefly to appreciate the appeal. The defendant-respondents
(hereinafter referred to as the defendants) are the widow and children of the late
Kwaku Adu Asare. The plaintiff-appellant (described as the plaintiff
hereinafter) is the brother of the deceased and claims to be the head of the
family to which he belonged. In his lifetime Kwaku Adu Asare wrote his will in
which he purported to give away certain properties to the defendants. When the
plaintiff came by this knowledge he sued Kwaku Adu Asare for a declaration of
title on behalf of the family. That suit was No LC 46/75.<o:p></o:p><o:p>&nbsp;</o:p>The
matter came before Jones-Mensah J. who, on account of the advanced years of
Kwaku Adu Asare, allowed him to give evidence first. He died before the trial
was concluded and the plaintiff applied and was granted leave to substitute his
successor as the defendant. When the trial was resumed the successor entered
the witness-box and he, in effect, submitted to judgment. Whereupon the trial
judge briefly decreed judgment for the plaintiff. The plaintiff alleged that in
spite of the judgment the defendants herein took possession of the properties
involved in that suit together with a house at New Koforidua and a double
barrel gun. To vindicate the family’s rights the plaintiff sued for “recovery
and possession” of two cocoa farms and specified personal effects in respect of
which the plaintiff had judgment in suit No LC 46/75 and also for declaration
of title to the house at New Koforidua and the double barrel gun. The suit
against the defendants is No LC 94/82 and that has resulted in the appeal
before us.<o:p></o:p>Although
the processes were duly effected the defendants failed to enter appearance,
much less to deliver a defence. The plaintiff moved the court for judgment. The
motion came before Amua-Sekyi J. (as he then was) who gave judgment for the
plaintiff for the reliefs indorsed on his writ and awarded damages of ¢5,000
and ¢3,000 costs. The plaintiff entered the judgment and served notice thereof
on the defendants. On 27 September 1983 the parties appeared before Doris
Owusu-Addo J. on a summons to show cause. The solicitor for the defendants, Mr
Afram, appeared for them. The defendants applied for an adjournment for two
weeks to make part payment. At the next adjourned date they duly paid on
account ¢4,000 of the judgment debt and promised to pay the balance by monthly
instalments of ¢1,000. Seven days later they lodged their appeal against the
default judgment of Amua-Sekyi J. (as he then was) and, on the following day,
they filed a motion for stay of execution.<o:p></o:p><o:p>&nbsp;</o:p>The
affidavit filed in support of the motion blamed their former solicitor to whom
they handed the writ and the statement of claim for failing to enter an
appearance and delivering a defence. According to them they realised their
solicitor had deceived them when served with the default judgment. They also
denied any knowledge of the plaintiff’s action in suit No LC 46/75 whilst it
was pending. The plaintiff filed an opposing affidavit on 8 November 1983 in
which, inter alia, he challenged the locus standi of the defendants either to
appeal or to move the court for stay of execution. The defendants quickly
responded to the plaintiff’s affidavit by filing their notice of appearance and
delivering a defence. Their defence pleaded fraud and collusion between the
plaintiff and the successor of the father of the defendants. The particulars of
the fraud alleged that the plaintiff easily got his judgment in suit No LC
46/75 because of the evidence of the customary successor which was quite
opposed to the stand of their deceased father in court. They also stated that
the customary successor failed in his duty to do what the law expected of him
to protect the estate. They counterclaimed, among other reliefs, for the
setting aside of the judgment in suit No LC 46/75.<o:p></o:p><o:p>&nbsp;</o:p>On 14
November 1983 the defendants’ motion for stay of execution as well as the
plaintiff ‘s motion to commit the defendants for contempt (which was pending)
were argued before Amua-Sekyi J. (as he then was). It is here that the tide
completely turned against the plaintiff and the unexpected happened. Convinced
that he had scented fraud in the manner the of [1987-88] 2 GLR 289-294judgment
in suit No LC 46/75 was obtained and which was in part the foundation for the
reliefs in suit No LC 94/82, the learned judge felt it his duty to strike at
the alleged fraud and collusion. He, accordingly, set aside his default
judgment in favour of the plaintiff, ordered the plaintiff to refund the costs
of ¢4,000 received from the defendants and granted the defendants leave to
enter an appearance and deliver a defence.<o:p></o:p>