KWANTRENG II AND OTHERS vs. KLU [1990]DLCA2268

Date	1990-07-19
Suit No.
Citation No.	[1990]DLCA2268

OSEI-HWERE J.S.C.

AMPIAH JA

ESSIEM JJ.A.

PETER ALA ADJETEY S.A.G (WITH HIM COL. (RTD.) ASANTE) FOR THE APPELLANTS.

E. K. NARTER-OLAGA FOR THE RESPONDENT.

[1990]DLCA2268
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													<main id="main" class="content" style="min-height: 60rem" >KWANTRENG
II AND OTHERS<o:p></o:p>vs.<o:p></o:p>KLU<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 93<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">

</div>COUNSEL:<o:p></o:p>PETER ALA
ADJETEY, S.A.G (WITH HIM COL. (RTD.) ASANTE) FOR THE APPELLANTS.<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">

E. K.
NARTER-OLAGA FOR THE RESPONDENT. <o:p></o:p>

OSEI-HWERE
J.S.C., AMPIAH AND ESSIEM JJ.A. <o:p></o:p>

</div>JUDGMENT
OF AMPIAH J.A.<o:p></o:p>The
parties in this action belong to the Kle Musum Quarter of Teshie which consists
of eight houses. The evidence shows that this quarter owns a piece of land at
Teshie which is vested in the Ayiku and Osabu Wulomo for use by the quarter.
The evidence further shows that the defendant who belongs to the Tsier-We house
of the quarter, is the incumbent Ayiku and Osabu Wulomo.<o:p></o:p>In this
action the plaintiffs who claimed to be heads of six of the eight houses of the
Kle Musum quarter contended that by custom they were entitled to consent and
concur in all dispositions of the quarter’s lands. Accordingly, they claimed
for:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(1).
a declaration of title to all that piece of land at Teshie
vividly described in the writ of summons;<o:p></o:p><p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2).
an order for accounts; and<o:p></o:p><p class="MsoListParagraphCxSpLast" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.25in;mso-add-space:auto;text-align:justify;
text-indent:-.25in;mso-pagination:none;mso-list:l0 level1 lfo1;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3).
an order for injunction to restrain the defendant, his
agents and workmen from in any way alienating or disposing of any part of the
quarter’s lands.<o:p></o:p>In his
defence, the defendant contended that although the plaintiffs belong to the Kle
Musum quarter, they had no right to consent or concur in any grant of the
quarter’s lands. He averred that the Kle Musum lands belong to the Tsier-We
house by reason of original purchase and settlement by his predecessor Numo
Tsier. He said further that the other houses of the quarter had arrived later
and had joined them and that they had been given portions of the land to settle
on. That concession, he claimed, did not give the other houses a right to
consent or concur in any disposition of the quarter’s lands. The learned trial
judge at the end of the hearing dismissed the plaintiffs’ claim and gave
judgment for the defendant. The plaintiffs have appealed against that judgment.<o:p></o:p>Although
the plaintiffs filed a notice of appeal containing detailed grounds of appeal,
the written judgment of the judge could not be traced; it is not included in
the record of proceedings. Upon a petition by the plaintiffs to the Chief
Justice, the Chief Justice had directed that the matter be heard de novo in the
absence of the written judgment. Lamptey J. (as he then was) before whom the
matter came, was of the opinion that since judgment had been given and the
losing party had appealed, the Chief Justice had no power to direct a retrial
and that the power to direct what was to be done in the matter rested with the
Court of Appeal, when the appeal came before it. We think he was right.
Eventually, when the appeal came before this court for determination, counsel
sought directions from the court as to the procedure to be adopted in the
appeal since the judgment appealed against was not available to be attacked on
the grounds filed. It was argued whether there should be re-addressing on the
evidence or that the appeal should be argued in line with the grounds filed
with reference to the evidence on record. This court ruled that as an appeal
may be regarded as a re-hearing of the action, counsel were entitled to argue
the appeal on the grounds filed with reference to the evidence and that the
court itself would look at the evidence and determine whether or not the
learned trial judge could be right in his conclusions. It was in the light of
this ruling that the appeal was argued.<o:p></o:p>Counsel
for the appellants as a preliminary ground, has questioned the validity of the
acceptance of an amendment filed by the defend</main>