CHOU SEN LIN vs. TONADO ENTERPRISES LTD. & T. A. ASIAMAH [2007]DLSC6686

Date	2007-10-31
Suit No.	CIVIL APPEAL NO. J4/30/2006
Citation No.	[2007]DLSC6686

MISS AKUFFO J.S.C. (PRESIDIDNG). BROBBEY J.S.C.

DR. DATE-BAH J.S.C.

ANSAH J.S.C.

MRS. ADINYIRA J.S.C.

OSAFO BUABENG FOR THE APPELLANT.

KWAME AYEH FOR THE RESPONDENT.

[2007]DLSC6686
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													<main id="main" class="content" style="min-height: 60rem" >CHOU SEN LIN<o:p></o:p>vs.<o:p></o:p>TONADO ENTERPRISES LTD. &amp; T. A. ASIAMAH<o:p></o:p>[SUPREME
COURT, 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. J4/30/2006&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: 31ST OCTOBER, 2007.<o:p></o:p>

KWAME
AYEH FOR THE RESPONDENT.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;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>BROBBEY,
J.S.C. <o:p></o:p>This is an appeal from the
decision of the Court of Appeal which had allowed an earlier appeal from the
judgment of the Circuit Court at Tema.&nbsp;
The whole case concerned a piece of land situated at Tema. <o:p></o:p>The facts which gave rise
to the litigation were as follows: The land in dispute belonged to the Tema
Development Corporation, hereinafter referred to as the TDC.&nbsp; The evidence on record showed that it was
leased to W. C. Tandoh of West Coast Dying Industries Ltd.&nbsp; He rented it to the respondent who shall
hereafter be referred to as the plaintiff. He later sold his interest in the
land to the plaintiff.&nbsp; The plaintiff
then proceeded to register it at the Lands Commission.&nbsp; The interest of Tandoh dated from 1st August
1974.&nbsp; Therefore, his interest which he
sold to the plaintiff was dated from the same 1st August 1974. <o:p></o:p>The land sold to the
plaintiff consisted of three plots which were numbered as LI 1, 2 and 3.&nbsp; The plaintiff put up factories on two plots,
leaving the third plot for future development. The plaintiff later observed
that there were encroachments on his land which he traced to the appellants,
who shall hereafter be referred to as the defendants.&nbsp; In fact the defendants were constructing a
fence wall on the third plot. When he did not succeed in getting them to stop
the encroachments, he instituted action in the Tema Circuit Court claiming
declaration of title to the land and perpetual injunction against the
defendants or their agents. <o:p></o:p>The Circuit Court
dismissed the plaintiff's action, entered judgment for the defendants and added
some other reliefs that were not part of those which the defendants applied
for.&nbsp; The plaintiff appealed to the Court
of Appeal against the decision of the Circuit Court. The Court of Appeal
allowed the appeal. It was against the latter decision that the defendants have
appealed to this court on the following three grounds: <o:p></o:p>"(a) The learned judges of the
Court of Appeal erred in failing to hold that the respondent's purported
acquisition of the land in dispute was tainted with fraud. <o:p></o:p>(b) The learned judges of the Court of
Appeal erred in relying on the evidence of Thomas Aryitey (DW2) which was
conflicting in all material particular. <o:p></o:p>(c) The learned judgment is against
the weight of evidence." <o:p></o:p>Counsel for the defendants
commenced their case by arguing what he called "additional grounds"
which he couched in the following terms: <o:p></o:p>"The learned justices of the
Court of Appeal erred by relying on both the reply and evidence in chief of the
plaintiff/respondent which was at variance and or inconsistent with his
statement of claim." <o:p></o:p>The points he canvassed in
support of that contention were that in paragraph 3 of the statement of claim
the plaintiff averred that he acquired plots numbers 1, 2 and 3 from the TDC
for a period of 50 years from 1st august 1974 and had same registered as No
3061/1990.&nbsp; However, in his reply to the
statement of defence, he contended that the plots were initially acquired by W.
C. Tandoh of West Coast Dying Industries Ltd but he did not obtain any lease
from the TDC. When the plots were sold to the plaintiff, he prevailed upon the
TDC to prepare a lease in his favour to cover them. For referring to two
different sources of acquisition, counsel for the defendants submitted that there
was inconsistency which should have adversely affected the case of the
plaintiff. <o:p></o:p>By all indications, that
was not a serious argument.&nbsp; The DW2, a
witness called by the defendants, was explicit that the plots were first
allocated to W. C. Tandoh on 1st August 1974.&nbsp;
This fact was not challenged by the defendants; neither did they treat
that witness as a hostile witness.&nbsp; There
was no conflict whatsoever in the evidence in so far that the witness explained
the circumstances leading to the initial acquisition by Tandoh and eventual
transfer to the plaintiff. There was no merit in that ground of appeal which is
consequently dismissed. <o:p></o:p>In support of his
submission, counsel for the defendant referred to Odoi v Hammond [1971] 1 GLR
375, R. T. Briscoe v. Preko [1964] GLR 322, S.C, Esso Petroleum Co. Ltd v South
Port Corp [1956] A.C. 218, H.L. and Dam v Addo [1962] 2 GLR 200, SC.&nbsp; There is no doubt that all the cases
supported the propositions of law for which they were enunciated.&nbsp; They were however irrelevant to the issues
for determination in the instant case for the simple reason that there was no
conflict or inconsistency on the record.&nbsp;
Even if W.C. Tandoh and the TDC were not the same, the extent that they
affected the acquisition was satisfactorily explained by the defendants' own
witness, the DW2. <o:p></o:p>The DW2 was subpoenaed in
his capacity as an officer from the TDC: His testimony therefore represented
the official position of the TDC in respect of the disputed land. <o:p></o:p>It was next argued on
behalf of the defendants that the Court of Appeal erred in failing to hold that
the plaintiff’s acquisition of the plots was tainted by fraud.&nbsp; The basis of that argument was that while the
documents of the plaintiff referred to the fact that Tandoh acquired the plots
in 1974, the plaintiff himself testified in court that he first arrived in
Ghana in 1979 and therefore he could not have acquired the plot at a time when
he was no where near the shores of this country. <o:p></o:p>