KOFI BOATENG SIRIBOE vs. KWADWO FORDJOUR [2010]DLCA3194

Date	2010-10-29
Suit No.	CIVIL APPEAL NO. H1/5/2003
Citation No.	[2010]DLCA3194

MARIAMA OWUSU (MISS) J.A. (PRESIDING)

F.G. KORBIEH J.A.

IRENE C. DANQUAH (MS.) J.A.

MUJEEB PLAINTIFF/RESPONDENT/RESPONDENT

KWAME AFRIFA DEFENDANT/APPELLANT/APPELLANT

[2010]DLCA3194
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													<main id="main" class="content" style="min-height: 60rem" >KOFI BOATENG SIRIBOE<o:p></o:p>vs.<o:p></o:p>KWADWO FORDJOUR<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. H1/5/2003&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; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 29TH
OCTOBER, 2010<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MUJEEB
PLAINTIFF/RESPONDENT/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWAME
AFRIFA DEFENDANT/APPELLANT/APPELLANT<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MARIAMA
OWUSU (MISS) J.A. (PRESIDING), F.G. KORBIEH J.A., IRENE C. DANQUAH (MS.) J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>F.G.&nbsp;
KORBIEH, J.A. <o:p></o:p>The Appellant herein was originally
sued at the Ejisu-Juaben Community Tribunal on the 15/10/2001 by the Respondent
herein for two reliefs which were (a) recovery of possession and declaration of
title to house number JB.352A, Juaben-Ashanti and (b) general damages for
unlawful entry and destruction of the respondent’s properties.&nbsp; The trial tribunal ordered the parties to
file pleadings following which the Respondent filed a statement of claim in
which he detailed his claim against the appellant as follows: the plot in
dispute was originally acquired by the respondent’s uncle (called Opanin
Kwabena Gyimidi); the plot shared a common boundary with the property of the
late father of the Appellant called Opanin Kwasi Manu; the Respondent “operated
a beer bar in a structure on Op. Gyimidi’s plot” which was “numbered JB. 352A
whilest (sic) that of Op. Manu’s is marked JB352A”, in the course of time Op.
Gyimidi gifted his plot to the Respondent by a deed of gift dated 30/3/1994
following which the Respondent applied for and obtained a lease from the Lands
Commission Secretariat in Kumasi on the 3/4/2010, the Appellant had earlier
taken civil action against the Respondent for the recovery of possession of
plot No. JB.352A, Juaben at the same Ejisu Community Tribunal wherein the
Respondent had conceded judgment on 15/9/2010, the Appellant trespassed unto
the respondent’s plot No. JB. 352A and pulled down the building in which the
Respondent operated his beer-bar business following which people entered the
beer bar and stole his property worth over ¢10 million.&nbsp; The Appellant’s&nbsp; response to these averments was to deny the
existence or plot No. JB. 352A and any common boundary with his father’s
property.&nbsp; He also queried why if there
had been such gift, the Respondent had been paying rent to the Appellant and
his family and why there was a tenancy agreement signed with his family on the
1/1/1998.&nbsp; He explained that the civil
action had been taken against the Respondent to eject the Respondent from the
premises to allow for a new building to be put up.&nbsp; He continued that even though a quit order
had been given by the Court, the Respondent had refused to quit and continued
operating his business for two years without paying any rent amounting to
¢600,000.00.&nbsp; He ended by denying the
allegation of trespass and the stealing by the Public.&nbsp; As is the practice in the tribunals, the
trial commenced without any further ado and at the end of it, the Tribunal gave
its Judgment in favour of the Respondent.&nbsp;
The Appellant appealed against that Judgment to the High Court, Kumasi
which upheld the Judgment of the Tribunal.&nbsp;
It is against the Judgment of the High Court that the Appellant has
appealed to this Court on the following two grounds:&nbsp; (a) the Judgment is against the weight of
evidence and (b) additional grounds to be filed on receipt of the record of
proceedings.&nbsp; Even though no additional
grounds were later filed learned counsel for the Appellant based his written
submissions on several grounds that he termed “additional grounds.”&nbsp; A summary of these submissions is as follows:
(i) the Respondent had conceded Judgment at the Community Tribunal on the
15/9/2000 as well as made an admission against self-interest; (ii) the trial
Judgment of the 15/9/2000 operated as rest judicata against the Respondent,
(iii) the respondent’s action was based on his own contempt of Court or abuse
of the Court process and the hearing of the said action therefore constituted a
mistrial and hence is void, (iv) plot No. JB&gt; 352A was unlawfully and
clandestinely created unilaterally by the Respondent who then falsely passed it
off as a government-owned plot.&nbsp; To these
submissions, learned counsel for the Respondent was quick to point out that the
Appellant had failed to file any additional grounds of appeal.&nbsp; He therefore argued that the submissions of
his learned friend were a nullity as the Appellant had also abandoned his sole
original grounds of appeal.&nbsp; Counsel
referred to Rule 8 (7) of the Court of Appeal Rules, 1997 (C.I.19) and
submitted that going by the authority of the case of the Republic vrs. Judicial Committee of the Central Regional House of Chiefs, ex-parte: Aba [2001-2002] SCGLR 545, AN
Appellant could not be permitted to argue a ground of appeal not set forth in
his notice of appeal.&nbsp; I believe counsel
meant to refer to Rule 8 (8) rather then Rule 8 (7).&nbsp; Counsel also cited the case of BROWN VRS. QUARSHIGAH [2003-2004] SCGLR 930 as authority for his proposition
that where the only grounds of appeal is that the judgment is against the
weight of evidence, the Appellant should not be allowed to argue points of
law.&nbsp; Counsel then contended that all the
arguments made for the Appellant were arguments of points of law and so should
be disallowed.&nbsp; These are weighty arguments
against the submissions filed by counsel for the Appellant and I had expected
the latter to them in a reply as provided for in Rule 20 (5) of C.I. 19.&nbsp; He failed to do so and I must therefore
consider those arguments without his input.&nbsp;
There is no doubt that Rule 8 (8) of C.I. 19 is in pari materia with the provision in Rule 6 (6) of the Supreme Court
Rules, 1996 (C.I. 16) which, as pointed out by counsel for the Respondent, was
interpreted in the ex-parte: Aaba case
(supra) to mean that grounds of appeal not filed either as original grounds of
appeal (in the notice of appeal) or as additional grounds of appeal or as
amended grounds of appeal (with the leave of the Court) could not be canvassed
before the Court.&nbsp; I am bound by the
decision in the ex-parte Aaba case
(supra).&nbsp; I will therefore disregard all
of the submissions on the so-called “additional grounds” found in the written
submissions filed by learned counsel for the Appellant.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>