QUARTEY AND OTHERS vs. QUARTEY AND OTHERS [1990]DLCA2293

Date	1990-01-25
Suit No.
Citation No.	[1990]DLCA2293

OSEI-HWERE J.S.C

AMPIAH JA

ESSIEM JJ.A.

FIRST PLAINTIFF IN PERSON.

PETER ALA ADJETEY (WITH HIM COLONEL (RTD.) ASANTE) FOR THE DEFENDANTS.

[1990]DLCA2293
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													<main id="main" class="content" style="min-height: 60rem" >QUARTEY
AND OTHERS<o:p></o:p>vs.<o:p></o:p>QUARTEY
AND OTHERS<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 1
GLR 248<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 25 JANUARY 1990<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FIRST
PLAINTIFF IN PERSON.<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">

PETER ALA
ADJETEY (WITH HIM COLONEL (RTD.) ASANTE) FOR THE DEFENDANTS. <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">

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
plaintiff-appellants in this action (hereinafter referred to as the plaintiffs)
are the children of the late Emmanuel Quao Kpakpa Quartey who was also the
brother of the defendants. By their writ of summons, the plaintiffs sought a
declaration of title to house No. C 29/1, Adama Avenue, Adabraka situate on
plot No. 23, Adabraka, Accra. They also sought for an order of ejectment
against the defendants-respondents (hereinafter referred to as the defendants)
and a further order of injunction restraining the defendants or their agents or
servants from collecting further rents from the said house. The defendants
resisted the claim of the plaintiffs and counterclaimed for an order setting
aside an indenture No. 4505/A/38 dated 1 October 1938 which apparently vested
the said property in their brother E. Q. K. Quartey alone. The learned trial
judge of the High Court, Accra dismissed the plaintiffs’ claim and gave
judgment for the defendants on their counterclaim after he had ordered further
amendment of that claim. It is against this judgment that the plaintiffs have
appealed.<o:p></o:p>The
plaintiffs who at the initial stages of this appeal were represented by counsel
decided after their counsel had withdrawn to prosecute the appeal themselves
through their spokesman, the first plaintiff, namely A. K. Quartey. Before the
hearing of the appeal, however, counsel for the defendants who had earlier
filed a notice of amendment moved the court for the amendment of the
counterclaim. This was granted without objection.<o:p></o:p>Arguing
for the plaintiff’s, the first plaintiff submitted in substance that the
judgment was against the weight of the evidence and that the learned trial
judge failed to take into consideration the effect of the indenture No. 4505/A/38
of 1 October 1938, which had vested the property in their father. He could not
deny or admit specifically whether the said property was originally vested in
the father of the defendants, J. H. Quartey, but contended that whatever
interest the said J. H. Quartey had in that property was forfeited by the
government after failure to build on the land as covenanted. The government
thereafter vested the property in their father, E. Q. K. Quartey, who built on
the land and subsequently devised it to them (the plaintiffs and their other
brothers and sisters) in his will dated 10 July 1961 probate of which was taken
on 25 September 1967 . The first plaintiff made fetish of a docket reference
No. 2041/1711 which contained a letter dated 21 May 1930, which docket got
missing in the course of a trial which had moved from one judge to another. In
fact, at one stage, the first plaintiff refused to continue with the appeal
unless this document was found. After he had agreed to continue with his
argument, he contended that since that document which contained part of their
evidence could not be traced, the learned trial judge was wrong in giving
judgment against the plaintiffs without reference to that docket.<o:p></o:p>In reply
to the plaintiff’s submission, counsel for the defendants submitted that that
document referred to as No. 2041/1711 was only a docket which contained letters
and other correspondence on the property in dispute and that the relevant
letters and correspondence were duly tendered in evidence for consideration by
the judge. The loss of that docket did not in any way occasion any miscarriage
of justice. Counsel further submitted that the learned trial judge exhaustively
considered both the evidence and the law and made positive findings of fact
which were abundantly supported by the evidence. He submitted that there was no
merit in the appeal.<o:p></o:p>There can
be no doubt from the record that before the learned trial judge proceeded to
give his judgment, he had adequately appraised himself of the issues involved
in the case as agreed upon by the parties at the summons for direction. He set
these out in detail and went on to determine them. He made the following
findings:<o:p></o:p><p class="MsoListParagraphCxSpFirst" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;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). “That plot No. 23, West Adabraka on
which the house in dispute stands was first granted to J. H. Quartey in 1918. <o:p></o:p><p class="MsoListParagraphCxSpMiddle" style="margin-top:0in;margin-right:0in;
margin-bottom:5.0pt;margin-left:.75in;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). That it was J. H. Quartey w</main>