OBENG OMONO ASAMOAH vs. OSEI AGYEMANG [2007]DLCA6547

Date	2007-03-29
Suit No.	CIVIL APPEAL NO: H1/133/06
Citation No.	[2007]DLCA6547

AKAMBA J.A. (PRESIDING)

KUSI-APPIAH J.A.

DOTSE J.A

MR ASANTE ANSONG FOR THE PLAINTIFF/APPELLANT

DR. A. B. K. ANANE FOR THE DEFENDANT/RESPONDENT

[2007]DLCA6547
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													<main id="main" class="content" style="min-height: 60rem" >OBENG OMONO ASAMOAH<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>OSEI AGYEMANG<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL ACCRA]<o:p></o:p>CIVIL
APPEAL NO: H1/133/06&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: 29TH MARCH, 2007<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR
ASANTE ANSONG FOR THE PLAINTIFF/APPELLANT <o:p></o:p>

DR.
A. B. K. ANANE FOR THE DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <o:p></o:p>AKAMBA J.A. (PRESIDING), KUSI-APPIAH J.A., DOTSE J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>KUSI-APPIAH,
J.A. <o:p></o:p>This is an appeal by the
plaintiff from the decision of the High Court, Mampong/Ashanti dated 9th
November, 2005. By his writ of summons, the plaintiff claimed against the
defendant for:—<o:p></o:p>&nbsp;"(1) A declaration that plaintiff is the
joint-owner/proprietor of Unity Preparatory School, Mampong/Ashanti.<o:p></o:p>&nbsp;(2) Damages for infringement of plaintiff's
property rights.<o:p></o:p>&nbsp;(3) Any other order or orders considered
necessary for doing justice particularly with reference to Order 63 rule 6 of
the Rules . . ."<o:p></o:p>&nbsp;The defendant denied the plaintiff's claim and
counter-claim as follows:—<o:p></o:p>&nbsp;"(a) That the defendant is the sole
proprietor of the Unity Preparatory School, Mampong. <o:p></o:p>(b)
An order compelling the plaintiff to change the name of his school which bears
a misleading resemblance to the defendant's school.<o:p></o:p>&nbsp;(c) Perpetual injunction restraining the
plaintiff or privies from entering the defendants' said school and or dealing with
the same.<o:p></o:p>&nbsp;(d) Such further orders are to this Honorable
Court may seem meet." <o:p></o:p>The plaintiff's claim in
High Court was that in 1990 he, the defendant and one Owusu Ntiamoah purchased
the former Trinity Day Nursery School at Mampong Ashanti from Elizabeth Kwakwa
at a time the vendor was about to leave the shores of Ghana for the United
Kingdom at an agreed cost of (¢50,000.00) fifty thousand cedis. He contended
that the actual transfer was made by Elizabeth Kwakwa's father Oheneba Atta
Osei who prepared and thumb printed the note of transfer. He gave evidence that
he acted as the administrator, head teacher, director, teacher of French and
co-proprietor of the school from 1990 until a misunderstanding broke up the
relation between him and the defendant in the year 2001. He tendered several
documents in evidence to support his case. He also called Kwaku Duah, the
physically challenged Public License Letter Writer as his sole witness.<o:p></o:p>&nbsp;The defendant resisted the claim and also
called evidence to show how he and one Owusu Ntiamoah bought the school and
appointed the plaintiff as the head teacher, administrator and director of the
school. He alleged that they were paying him salary ranging from ¢7,000.00 to
¢10,000.00. <o:p></o:p>However, he did not give
the plaintiff any appointment letter. He contended that he and Owusu Ntiamoah
contributed various sums of money and other material to build the school. The
defendant claimed that he did not pay himself from the funds of the school.
Rather he used the money left after the teachers' salary to develop the school.
He maintained that the school was moved from its former location to a temporary
structure built on the defendant's land at Tunsuom. The defendant testified
that he contributed ¢200,000.00 whilst Owusu Ntiamoah paid ¢100,000.00 but the
plaintiff paid nothing. On 11th February, 1991 misfortune struck, the temporary
structure was blown off its foundations by a storm. He contended that when he
called on Ntiamoah to help him rebuild the school he refused to contribute and
requested the refund of the money he had invested in the school. According to
the defendant, he paid him off and thereafter severed relations with the school
and he became the sole owner/proprietor of the school. <o:p></o:p>The trial Judge after an
exhaustive and critical evaluation of the evidence dismissed the plaintiff's
claim and gave judgment for the defendant on his counter-claim. <o:p></o:p>Dissatisfied with the
decision of the court, plaintiff appealed to this court on many grounds. These
are:— <o:p></o:p>"(a)
That the learned trial judge's interpretation and his subsequent application of
his meaning of the NON EST FACTUM doctrine to exhibit "B" was wrong. <o:p></o:p>(b)
That the learned trial judge's evaluation of the whole evidence was unbalanced.<o:p></o:p>&nbsp;(c) That the learned trial judge erred in law
by failing to consider the impact of exhibitsic C, C1, D, D1, D2 and E on the
matter before him and that failure resulted in a grave miscarriage of justice.<o:p></o:p>&nbsp;(d) That the learned trial judge erred in law
in rejecting Exhibit "CE1 ". <o:p></o:p>(e)
That the judgment is extremely perverse.<o:p></o:p>