PROMEXPORT INTERNATIONAL (GHANA) LTD. vs. FIRST GHANA BUILDING SOCIETY [1989]DLCA655

Date	1989-01-19
Suit No.
Citation No.	[1989]DLCA655

OSEI-HWERE JA

AMPIAH JA

LAMPTEY J.A.

W. FUGAR FOR THE DEFENDANT-APPELLANTS.

B. J. DA ROCHA S.A.G. FOR THE PLAINTIFF-RESPONDENTS.

[1989]DLCA655
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													<main id="main" class="content" style="min-height: 60rem" >PROMEXPORT INTERNATIONAL (GHANA) LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>FIRST GHANA BUILDING SOCIETY<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 395<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:
19
JANUARY 1989<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">

W. FUGAR FOR THE DEFENDANT-APPELLANTS.<o:p></o:p>

B. J. DA ROCHA, S.A.G., FOR THE
PLAINTIFF-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, AMPIAH AND LAMPTEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT
OF LAMPTEY J.A.<o:p></o:p>Before
the High Court, Accra, the First Ghana Building Society issued a writ of
summons against the defendants, Promexport International (Ghana) Ltd, and
claimed the following reliefs:<o:p></o:p>“(i) An order
for recovery of possession of the first floor of house No. D. 653/4, Kojo
Thompson Road, Accra occupied by the defendants. (ii) Mesne profits from August
1980 to the date of judgment. (iii) Such further order or orders as to the
court might seem just.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff company claimed ownership of the said property in which the defendant
company is a tenant. The action was mounted against the defendant company
because according to the plaintiff company, from the date that it purchased the
premises the defendant company had not paid any rents and indeed refuses to pay
any rents to it as the new landlord. The defendant company refused to and
continues to refuse to attorn tenant to the plaintiff company. The defendant
company resisted the claim of the plaintiff company and filed an
eighteen-paragraph statement of defence. Counsel for the plaintiff company
moved the lower court to strike out the whole of the statement of defence filed
for and on behalf of the defendant company. As was to be expected the defendant
company fiercely opposed the application to strike out its entire defence. The
lower court heard each counsel on the application to strike out the statement
of defence. In a ruling dated 28 February 1986, the trial judge stated as
follows:<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 position
now is that the defendant having been given the opportunity of attorning tenant
refused to do so. They have remained in occupation of the premises since August
1980 without acknowledging the title of the plaintiffs or paying rent. I agree
with Mr. da Rocha that the defence as it stands does not disclose any
reasonable answer to the claim. It is struck out and judgment entered for the
plaintiffs for the reliefs indorsed on the writ.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant company is aggrieved by the above ruling and appeal to this court.
The gravamen of the complaint made by learned counsel for the appellants was
that on the pleadings, serious issues both of law and of fact were raised.
Counsel contended that in those circumstances the case must be heard on the
merits. He submitted that it was therefore wrong in law for the trial judge to
summarily dismiss the defence put forward and enter judgment for the plaintiff
company on its claim.<o:p></o:p><o:p>&nbsp;</o:p>In reply,
counsel for the plaintiff company contended that the statement of defence filed
for and on behalf of the defendant company was not a defence properly so-called
to the claim against it. According to the counsel for the plaintiff company,
the defendant company pleaded that it would rely on a document or instrument
made between one Okudjeto, described as a director of the defendant company,
and the original owners of the premises, Kuottam Enterprises Ltd. Counsel for
the plaintiff company argued that that document cannot be relied upon by the
defendant company since on the face of it the defendant company was not
expressed to be a party to it or that the contract was made for its benefit. He
contended that the defendant company was in law a different entity from that of
Okudjeto. Since Okudjeto on the face of that document was not expressed to be
acting for and on behalf of the defendant company counsel submitted that by its
statement of defence the defendant company failed to show a better title or at
all. It had merely pleaded a jus tertii. The defendant company had not joined
issue with the plaintiff company on its claim. In those circumstances the lower
court was right in law in striking out the statement of defence filed, on the
ground that it disclosed no defence in law to the claim made by the plaintiff
company.<o:p></o:p><o:p>&nbsp;</o:p>On the
face of the pleadings in the instant case, the defendant company had not
disputed nor challenged the claim of the plaintiff company that it is the new
owner of the premises through purchase from the previous owners. The defence
put forward was stated in paragr</main>