DAVIS KOFI AYITEY vs. KWEKU BORDOH & 2 ORS. [2005]DLCA6718

Date	2005-11-04
Suit No.	CIVIL APPEAL NO. H1/195/04
Citation No.	[2005]DLCA6718

FARKYE J.A. [PRESIDING]

MRS. ABBAN J. A.

MARFUL-SAU J.

MR. F. FAIDOO FOR THE PLAINTIFF/RESPONDENT

MR. AMUA-SEKYI FOR THE DEFENDANT/APPELLANT.

[2005]DLCA6718
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													<main id="main" class="content" style="min-height: 60rem" >DAVIS KOFI AYITEY<o:p></o:p>vs.<o:p></o:p>KWEKU BORDOH &amp; 2
ORS.<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. H1/195/04&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: 4TH NOVEMBER
2005<o:p></o:p>

MR.
AMUA-SEKYI FOR THE DEFENDANT/APPELLANT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU, J. <o:p></o:p>This
appeal is taken from the judgment of the Circuit Court, Sekondi.&nbsp; The judgment is dated the 14th April 2003 and
the Notice of Appeal was filed on the 27th May 2003.&nbsp; In the Notice of Appeal, the Appellant
formulated the following grounds: <o:p></o:p>(a)
The trial judge erred in holding that the Plaintiffs grant was prior in time to
that of the 2nd Defendant. <o:p></o:p>(b)
The trial Judge erred in entering judgment for the Plaintiff. <o:p></o:p>(c)
The trial Judge erred in disregarding Exhibit 1. <o:p></o:p>(d)
The judgment is against the weight of evidence. <o:p></o:p>(e)
The cost awarded is excessive. <o:p></o:p>No
additional grounds were filed and in his submission before this Court, Counsel
for the Appellant argued grounds (a), (c) and (d) together and also argued
ground (b) which by the said submission relates to the final judgment entered
by the trial court for the Plaintiff on the 23rd of March 1999 against the 1st
Defendant for his default in filing a defence. <o:p></o:p>The
brief facts of this case are as follows.&nbsp;
The Plaintiff issued a Writ against one Kwaku Bordoh who the Plaintiff
described as a reputed owner of a large piece or parcel of land along the
Namibia Road, Takoradi and the 2nd Defendant/Appellant as well as the Shama
Ahanta East Metropolitan Assembly. Against the said Kwaku Bordoh the Plaintiff
claimed the following reliefs: — <o:p></o:p>(a)
An order compelling the 1st Defendant to execute an indenture in respect of
plot No. 16, lying and being at Adentem Junction on the Kwasimintsim - Anaji
road Takoradi which 1st Defendant had sold to the Plaintiff. <o:p></o:p>(b)
An order of perpetual injunction against the 1st Defendant, members of his
family, his privies and assigns from alienating the said plot to any person
other than the Plaintiff. <o:p></o:p>And
injunction against the 2nd Defendant/Appellant and the 3rd Defendant, their
servants, agents, workmen, privies and assigns from anyway interfering with the
Plaintiffs possession of the said plot.&nbsp;
The 1st Defendant entered appearance but defaulted in filing a defence
to the Plaintiff's claim.&nbsp; The 2nd
Defendant and the 3rd Defendant entered appearance and filed a defence to the
Plaintiff sic claim. Indeed the 2nd Defendant counterclaimed against the
Plaintiff for the following reliefs: — <o:p></o:p>1.
A declaration of title to all that piece of land described as K15 and K16 in
the lease dated the 15th day of November 1989 and which is shown edged pink in
the site plan attached thereto. <o:p></o:p>2.
An order of perpetual injunction restraining the Plaintiff, his agent, assigns,
servant and privies and the like whosoever from entering the land described as
K15 and K16 in the lease dated the 15th day of November 1989. <o:p></o:p>3.
Damages for trespass. <o:p></o:p>Issues
were joined between the Plaintiff and the 2nd Defendant/Appellant.&nbsp; By the summons for direction filed on 24th
February 1999, the following issues were settled: <o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the Plaintiff is entitled to
his claim.<o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;Whether or not the 2nd Defendant is the owner
of the land in dispute. <o:p></o:p>