OGBARMEY-TETTEH vs. OGBARMEY-TETTEH [1993]DLSC4248

Date	1993-01-12
Suit No.	[1993 - 4] 1 GBR 91 – 149
Citation No.	[1993]DLSC4248

ARCHER CJ

WUAKU JSC

AMUA-SEKYI JSC

AIKINS JSC

WIREDU JSC

BAMFORD-ADDO JSC

HAYFRON-BENJAMIN JSC

GEORGE THOMPSON FOR PLAINTIFF-APPELLANT

AMARKAI AMARTEIFIO FOR DEFENDANT-RESPONDENT.

[1993]DLSC4248
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													<main id="main" class="content" style="min-height: 60rem" >OGBARMEY-TETTEH<o:p></o:p>vs.<o:p></o:p>OGBARMEY-TETTEH<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

[1993 - 4] 1 GBR 91 – 149&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 12 JANUARY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>GEORGE
THOMPSON FOR PLAINTIFF-APPELLANT<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">

AMARKAI
AMARTEIFIO FOR DEFENDANT-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">

ARCHER
CJ, WUAKU JSC, AMUA-SEKYI JSC, AIKINS JSC, WIREDU JSC, BAMFORD-ADDO JSC,
HAYFRON-BENJAMIN JSC<o:p></o:p>

</div>ARCHER
CJ. I have had the opportunity of reading beforehand the learned judgments of
my brothers Wuaku JSC and Aikins JSC and I agree with them that the judgment of
the trial judge in the High Court is fair and reasonable and that it should not
be disturbed.<o:p></o:p>I
would therefore allow the appeal of the plaintiff and dismiss the appeal of the
defendant.<o:p></o:p>WUAKU
JSC. This is a cross appeal by the parties to parts of the judgment of the
Court of Appeal delivered on 19/7/1991. The plaintiff-appellant will be
referred to in this judgment as the plaintiff and the defendant-appellant also
simply as the defendant.<o:p></o:p>The
parties got married under the Marriage Ordinance on 22/9/51. The marriage
seemed to have come to an end in 1970. The plaintiff claims against the
defendant two main reliefs and what I may describe as four ancillary reliefs.
The first main relief the plaintiff claims is for a declaration that he is the
absolute owner of a piece or plot of land he described as Plot A and he sought
the same relief, as the main relief, in respect of the second plot which he
described as Plot B. On these two plots of land were built what is described by
the plaintiff as two-storey messuage or dwelling house and out-houses and
collectively referred to as House No A 299A/4. There is no dispute about the
description of the two plots of land and the buildings thereon.<o:p></o:p>The
defendant denied the plaintiff’s claim and counterclaimed as follows:<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;“(i) a declaration that all that property
known as H/No A299A/4 Lartebiokorshie, Accra comprising a two-storey house, a
one-storey out-house and a caretaker’s hut and the site of the whole is held by
the plaintiff upon a resulting trust for the defendant as the absolute and
conclusive owner thereof.<o:p></o:p>(ii) A perpetual injunction
restraining the plaintiff, his servants and agents from interfering in any way
whatsoever with the defendant’s exclusive beneficial ownership and possession
of the said property.”<o:p></o:p>The
trial was started before Okai J before whom the plaintiff closed his case.
Because Okai J had left the Service, it was agreed that the hearing be
continued before Lutterodt J. Lutterodt J carefully examined the evidence
before Okai J and herself, and gave judgment for the plaintiff and dismissed
the defendant’s counter-claim.<o:p></o:p>The
defendant appealed to the Court of Appeal and the appeal was allowed in respect
of the plaintiff’s second main relief which is in respect of Plot B, the Court
of Appeal thereby confirming Lutterodt J’s judgment in respect of the
plaintiff’s main claim to Plot A. As said earlier, the judgment of the Court of
Appeal is dated 18/7/1991. The plaintiff on 17/10/1991 filed a notice of appeal
against the Court of Appeal judgment in respect of Plot B. The defendant too,
on 24/10/1991, filed a notice of cross appeal against the portion of the Court
of Appeal’s judgment which confirmed the plaintiff’s ownership in respect of
Plot A.<o:p></o:p>I
have decided in my judgment to examine the appeal from two angles, first on the
point of law whether the defendant’s appeal is properly before the court.<o:p></o:p>When
the appeal was called on 17/11/92, I drew the defendant’s counsel’s attention
to the fact that the defendant’s notice of cross appeal was filed out of time.
I had no response from him. I am of the view that in so far as the defendant is
concerned, she has no appeal before us. Although I am alone in this regard, I
think that I am entitled to express my opinion on the issue. Rule 9 of the
Supreme Court Rules 1970, CI 13 provides:<o:p></o:p>&nbsp;“9(1) A respondent may give notice by way of
cross appeal<o:p></o:p>(2) The provisions of rule 6 of these
Rules shall mutatis mutandis, apply to a notice of a cross appeal.”<o:p></o:p>Both
Osborn and Earl Jowitt in their legal dictionaries define cross appeals as
“where both parties to a case appeal”. Therefore in this appeal, it is not by
virtue of the appeal by the plaintiff that the defendant is the cross
appellant, but because both parties have, on the face of it, appealed and are
therefore cross appellants. If the two appeals are properly before the court,
it would not matter who filed his or her appeal first.<o:p></o:p>Before
I go any further, I will like to refer to Court of Appeal Rules 1962 (LI 218)
rule 16. It provides:<o:p></o:p>“16(1) It shall not be necessary for
the respondent to give notice by way of cross-appeal; but if a respondent
intends upon the hearing of the appeal to contend that the decision of the
Court below should be varied, he shall within one month after service upon him
of the notice of appeal cause written notice of such intention to be given to
every party who may be affected by such contention. In such notice the
respondent shall clearly state the grounds on which he intends to rely and within
the same period shall file with the Registrar of the Court below four copies of
such notice, one of which shall be included in the record and the other three
copies provided for the use of the Judges.<o:p></o:p><sp</main>