AGYEI MENSAH MANASE (PLAINTIFF) vs. IDDRISU YAKUBU (DEFENDANT) [2007]DLHC7378

Date	2007-05-07
Suit No.	SUIT NO. E11/8/2004
Citation No.	[2007]DLHC7378

KWAME ANSU-GYEABOUR SITTING AS A JUSTICE OF THE HIGH COURT

[2007]DLHC7378
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													<main id="main" class="content" style="min-height: 60rem" >AGYEI MENSAH MANASE<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>IDDRISU YAKUBU<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>KWAME
ANSU-GYEABOUR SITTING AS A JUSTICE OF THE HIGH COURT, KUMASI <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="margin-bottom:0in;margin-bottom:.0001pt;
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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>The
decisive facts surrounding this appeal devoid of irrelevant material are very
simple indeed. The background story commences sometime on 7th May, 2001. The
appellant claimed:<o:p></o:p>(1)
The plaintiff claims from the defendant is for RECOVERY of one chain saw
Machine or its current price, which said machine the defendant took possession
for his personal job but the defendant has refused to surrender some to
plaintiff despite several approach on him since June 2000. <o:p></o:p>(2)
¢3,200,000.00 being the daily sales for the machine for 8 months at ¢40,000.00
a day which defendant agreed to pay but has failed to honour it since June,
2000 (8 months). <o:p></o:p>Well,
on 19th July, 2002 the appellant's case was dismissed at the court below. It
was on 17th October, 2002 that the appellant filed this appeal. At this court
the only ground of appeal filed indicate: "The Community Tribunal erred in
law when it dismissed my claim or section on the alleged basis that the transaction
in question herein was/is allegedly illegal or contrary to the law". No
additional issues were formulated and filed. <o:p></o:p>Undoubtedly,
at the trial the appellant tendered in evidence the agreement the parties
entered into without objection as Exhibit A. It is as clear as a pike staff
that under Exhibit A, the respondent agreed to the hiring of the chain Saw
Machine in kind, by giving the appellant sawn timber or boards as payment of
the hiring of the machine. <o:p></o:p>Needless
to say the court below held and I reproduce from page 15 of the record of
proceedings: "We are of the view that as at the time of the agreement
30/6/2000 the sawing of timber into boards had been outlawed by the Forestry
Laws i.e. L.I regulating timber use. <o:p></o:p>For
that reason enforcing the terms of Exhibit 1 would mean enforcing on illegal
contract. We will therefore dismiss the plaintiff claim for being an illegal
contract which cannot be enforced at law". <o:p></o:p>I
should remark that numerous hearing notices were served on the respondent to
appear in respect of this appeal. And yet, the respondent failed to appear.
Well, in the case of In Re West Coast Dyeing Industries Ltd: Adams &amp;
Another v Tando [1987-88] 2 GLR 561, it was held that when a party refused to
attend the trial and to testify, the court would be entitled to proceed with
the case and on the basis of the evidence adduced proceed to deliver judgment.
But the point is, the respondent has failed to appear. I will therefore
consider the whole case in line with the record of proceedings before the
court. <o:p></o:p>Counsel
for the appellant urged this court to allow the appeal because not all Chain
Saw activities were unlawful. Hear counsel for the appellant: "It is not
the case in the instant transaction that the plaintiff knew that the Defendant
would use his Chain Saw Machine illegally". Counsel thus pleaded with the
court that since there was no element of illegality whatsoever in the
transaction as contained in the agreement, the trial court was wrong in
dismissing the appellant's case. <o:p></o:p>I
wish to state that I find the arguments canvassed in support of this appeal to
be certainly overwhelming. In the first place the court below failed to state
the said L.L, which it said, regulated timber use. <o:p></o:p>I
must state that it is quite clear as the noonday sun that the appellant asked
for a recovery of his Chain Saw Machine or its current price. The law is clear
that an inferior court can only grant a relief within its authority and power,
which a party has asked for. This was eloquently stated in Akati v Nartey
[1980] GLR 218. Suffice it to observe herein, however, that the court below
failed to consider each claim on its own. Indeed, the court below should have
addressed the claim seriatim. Frankly, the court below did not perform its duty
legally when it failed to consider each relief on its own. <o:p></o:p>Additionally,
the arguments advanced on the appellant's behalf in respect of Exhibit 'A'
contain substance and not a mirage undoubtedly, it is only a Chain Saw operator
who operates without a permit from the requisite authority whose work can be
described as unlawful. Exhibit 'A' was dated 30th June, 2000. Part of Exhibit
'A' stated and I quote: <o:p></o:p>"1
The Chain Saw owner has rented his own bonafide Chain Saw Machine to the
"MASON" to saw timber into boards. <o:p></o:p>"2
The "MASON" SHALL SUPPLY THE chain-Saw owner the underlisted boards
within (2) weeks from the date of this agreement". "I am satisfied
that the evidence on record did not suggest that the parties have undertaken
any illegal activity. It was therefore erroneous on the part of the lower court
to have rejected relief two of the appellant which in my view was legal because
chain operators even buy timber boards from licensed timber operators and then
re-package same for sale in town. I therefore do not endorse the conclusion the
lower court came to. <o:p></o:p>In
any case, Section 15(2) of the Courts Act, 1993 (Act 459) states and I quote:
"For the purpose of hearing and determining an appeal within its
jurisdiction and the amendment executio</main>