DANKWA vs. AMARTEY AND ANOTHER [1994]DLCA5295

Date	1994-03-30
Suit No.	[1994 - 95] 2 G B R 848 – 851 C A
Citation No.	[1994]DLCA5295

OFORI-BOATENG JA

ADJABENG JA

LUTTERODT JA

[1994]DLCA5295
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													<main id="main" class="content" style="min-height: 60rem" >DANKWA<o:p></o:p>vs.<o:p></o:p>AMARTEY AND ANOTHER<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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[1994 - 95] 2 G B R 848 – 851 C A&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; &nbsp;DATE: 30 MARCH 1994<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;
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OFORI-BOATENG
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>ADJABENG JA. <o:p></o:p>In
this application, the defendant-appellant-applicant prays this court to order
the stay of the execution of the judgment given by the High Court, Accra in
favour of the 2nd plaintiff-respondent-respondent pending the determination of
an appeal lodged against the said judgment by the applicant herein.<o:p></o:p>The
judgment in question, which was delivered on 11 May 1993, ordered as follows:<o:p></o:p>“I order that the defendant was
reckless in erecting the building in question and ought to give up possession
to the plaintiff. I grant the plaintiff damages of ¢50,000 for trespass on his
land by the defendant for putting up the building on his land. I grant
perpetual injunction against the defendant, and award the plaintiff costs of
¢100,000.”<o:p></o:p>Dissatisfied
with this judgment, the defendant-applicant appealed to this court. Among the
grounds of appeal filed on behalf of the defendant-applicant are the following:<o:p></o:p>“(b) The learned trial judge erred in
law by ignoring the defendant-appellant’s title deed completely in evaluating
the evidence before the court.<o:p></o:p>(c) The learned trial judge erred in
law by failing to take evidence of the surveyor appointed by the court to draw
a plan of the disputed land and to make superimposition…<o:p></o:p>(d) The learned trail judge erred in
law in not upholding the submission as to the fact of capacity of the 1st
plaintiff.”<o:p></o:p>It
must be mentioned that during the trial at the High Court, an order of interim
injunction was in operation against the continued development of the land in
dispute. It is clear that the defendant-applicant was not faithful in the
observation of this order. The trial judge in his judgment commented on this
and stated that the applicant herein “erected the building fully conscious of
the risks he was taking.” And because of his conduct the trial judge ruled that
the Land Development (Protection of Purchasers) Act 1960 (Act 2) would not
avail the defendant-applicant.<o:p></o:p>Yet
the defendant-applicant would not learn his lesson. Even though the trial court
gave judgment against him and made an order of perpetual injunction restraining
him from interfering with the land in dispute, he showed no respect for the
order. After the judgment, he hurriedly completed the house and moved into it
with his family. It is not surprising, therefore, that when the applicant
applied to the trial court for stay of execution of the judgment, the court
flatly refused to grant it. Among other things, the court said:<o:p></o:p>“The defendant-applicant is continuing
to develop the land even though he has been told not to. He who comes to equity
must show clean hands.”<o:p></o:p>Now,
the defendant-applicant, still in occupation of the land in dispute in utter
contempt of the order of perpetual injunction, comes to this court and prays us
to use our discretionary powers to grant him stay of execution of the judgment
and thus, more or less ratify his contemptuous stay on the land in dispute. Is
it proper for us to do so? It would seem that the proper course to take was
that the defendant-applicant should have purged his contempt even before he
could be heard on his application before us. In Ababio v Gyeabour III 27 June
1991, unreported, this court, on a preliminary objection raised by the
plaintiff that the defendants were in contempt of the order of the trial court
by leasing portions of the land in dispute and should therefore not be heard on
the appeal ordered the defendants-appellants to purge their contempt before
they could proceed with their appeal. See also Hadkinson v Hadkinson [1952] All
ER 567. In the present application, we think that since the defendant-applicant
has shown that he has no respect for court orders it would not be proper for us
to exercise our discretion in his favour. We think that the equitable maxim:
“he who comes to equity must come with clean hands” must be applied here.<o:p></o:p>Quite
apart from the foregoing, we think that the defendant-applicant has failed to
satisfy us on the merits of his application. We think that the legal points
raised on his behalf were based on the wrong facts. For example, the contention
of the applicant’s counsel that the trial judge failed to call the surveyor
appointed by the court to give evidence cannot be true as from the evidence
before us, it is clear that the trial court did not appoint a surveyor. Also, a
careful reading of the judgment of the trial court does not lend support to the
contention of the applicant’s counsel that the trial judge completely ignored
the defendant’s title deed in his evaluation of the evidence before him.<o:p></o:p>The
trial judge said in the judgment that “the defendant has no document to show in
support of his title.” This statement, we think, can only mean, taking the
judgment as a whole, that the defendant-applicant did not have a valid document
to support his title or to show his root of title. Indeed, this seems clear from
the judgment when the trial judge quoted from an earlier decision of the
circuit court in a criminal charge preferred by the applicant against one of
the plaintiffs in respect of the land in dispute. The circuit court pronounced
therein against the defendant-applicant as follows:<o:p></o:p>“It is my view that PW1 [meaning the
defendant] was so careless in not taking reasonable steps to protect his
interest before purchasing the land. It can therefore be said that his grantors
had no title and so he was developing the land with speed in order to steal the
show.”<o:p></o:p>In
any case, there was an admission by the applicant's counsel that the
respondent’s title deed was prior to that of the defendant-applicant.<o:p></o:p>Lastly
and most importantly, it seems to us that the contention by the applicant’s
counsel that there was insufficient evidence to prove the capacity of the 1st
plaintiff who sued as the executor of the will of the owner of the land in
dispute is of no legal consequence. This is so because it is clear from the
judgment of the trail court that the land was leased to the 2nd
pl</main>