SAMUEL ADOM BOTCHWAY vs. SAMUEL ADDO OSEI [2003]DLCA6952

Date	2003-02-06
Suit No.	CIVIL APPEAL NO. 261/87
Citation No.	[2003]DLCA6952

LARTEY J.A. (PRESIDING)

OWUSU ANSAH (MS.) J.A.

ANIM J.A.

WILLIE AMARFIO FOR RESPONDENT.

DAVID NII AMPONSAH FOR APPELLANT

[2003]DLCA6952
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													<main id="main" class="content" style="min-height: 60rem" >SAMUEL ADOM BOTCHWAY<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>SAMUEL ADDO OSEI<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. 261/87&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 6TH FEBRUARY 2003<o:p></o:p>

</div>COUNSEL:<o:p></o:p>WILLIE
AMARFIO FOR RESPONDENT. <o:p></o:p>DAVID
NII AMPONSAH FOR APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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J.A. (PRESIDING), OWUSU ANSAH (MS.) J.A., ANIM J.A. <o:p></o:p>

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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>LARTEY,
J.A.:<o:p></o:p>This
appeal is from the judgment of the High Court, Accra dated the 28th day of
January, 1991, and it was brought by the defendant/appellant (hereinafter
simply referred to as the defendant). On the 29th January, 1987 the
Plaintiff/Respondent (hereinafter also referred to as the Plaintiff) commenced
an action against the defendant, claiming among other reliefs, for an order
nullifying a conveyance purporting to have been executed by the plaintiff in
favour of the defendant. <o:p></o:p>The
plaintiff avers that he owns a parcel of land at Dzorwulu, Accra for which he
had been in undisputed possession since 1960. In 1985 he was approached by a
prospective purchaser for the sale of a portion of the land for which he
received ¢20,000. According to the plaintiff he gave the prospective buyer a
copy of his site plan to enable the purchaser to satisfy himself from a search
at the Lands Department, after which the sale transaction would be concluded or
perfected. The search, however, revealed the existence, at the Lands Title Registry
of a document of conveyance purporting to bear the plaintiff's signature and
purported to have conveyed a portion of the plaintiff's land to the defendant.
The plaintiff denied knowing the defendant and denied having anything to do
with him in connection with the disputed land or the disputed document. <o:p></o:p>The
plaintiff further avers that upon being confronted later, the defendant
confessed that a wrong person had sold, or conveyed title in, the plaintiff's
land to him. <o:p></o:p>For
his part, the defendant claimed that the plaintiff introduced himself to him in
1985 as owner of the disputed land. According to the defendant, he bought the
land from one Kwesi Tetteh, a Togolese, who prepared a conveyance on the land
to him, the same having been registered in the Deeds Registry as No. 1609/84.
In addition the defendant stated that the said Kwesi Tetteh brought him a
document evidencing transfer of the land from the plaintiff to the defendant.
He claims he had no doubt about the genuineness of the signature on the document
purporting to be that of the plaintiff, as indeed subsequent police report on
the document proved him right. He denied giving a confession statement to the
plaintiff and maintains that he has valid title to the disputed land. The
defendant counterclaimed for a declaration that he is the owner in possession
of the land in dispute. He also counterclaimed for the return of the sum of
¢50,000.00 with interest thereon alleged to be money the plaintiff took on 30th
June, 1985 with a view to reselling the land to him.<o:p></o:p>&nbsp;I preface this judgment with an examination of
the notice and additional grounds of appeal filed in this case against the
background of the relevant rule in C.I.19 (The Court of Appeal Rules, 1997 as
amended). Rule 8(7) thereof states: <o:p></o:p>"The appellant shall not, without
the leave of the Court, urge or be heard in support of any ground of objection
not mentioned in the notice of appeal, but the Court may allow the appellant to
amend the grounds of appeal upon such terms as the Court may think just." <o:p></o:p>The
requirement for entertaining any ground not mentioned in the notice of appeal
is that the appellant, Judgments of the Superior Courts 11690 Copyright ©
DataCenta Ltd. prior to being heard in argument in support of the grounds of
appeal, must have obtained leave of the court or leave to amend any of the
grounds of appeal. Failure to comply with the sub-rule empowers the court to
preclude any argument that may be canvassed in support of the grounds. In this
case, there is nothing to show that leave was first granted the defendant, who
now appeals, before he filed his long list of additional grounds. Again the
written submission of the plaintiff offers no clue as to whether leave was
first obtained by the defendant. The plaintiff's submission merely states
certain facts as perceived by the plaintiff without answering the several
specific points of law raised in the additional grounds of appeal. Although the
notice of appeal refers to other grounds to be filed upon the record of
proceedings being made available, it is important to stress the need for strict
compliance of the rules for the purpose of regularising any defect or omission
that may be discovered in the appeal process.<o:p></o:p>&nbsp;I now turn to the additional grounds of appeal
as if granted with the leave of this court. But before proceeding further, I
would like, for the sake of convenience, to deal with the grounds in groups
since many of them are replicate of others. For instance, a close look at the
additional grounds will reveal that ground (x) replicate grounds (iii) and
(iv). That being the case, it is simpler and more convenient to deal with them
together.<o:p></o:p><sp</main>