MARY WIAFE vs. NAANA BUSIA [2010]DLCA3650

Date	2010-03-25
Suit No.	SUIT NO. H1/21/2010
Citation No.	[2010]DLCA3650

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

F.G. KORBIEH J.A.

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

[2010]DLCA3650
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													<main id="main" class="content" style="min-height: 60rem" >MARY WIAFE<o:p></o:p>vs.<o:p></o:p>NAANA BUSIA<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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SUIT NO. H1/21/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 25TH MARCH, 2010<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. AND 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>IRENE
C. DANQUAH (MS.) J. A.<o:p></o:p>The DefendantAppellant in this
appeal was sued by the Plaintiff/Respondent in the High Court, Kumasi whereby
the Plaintiff was declared owner of the store occupied by the Defendant at the
frontage of H/NO 0TB7, BLK 11. Adum Kumasi and therefore entitled to immediate
possession thereof.<o:p></o:p>The facts of the case of the Respondent
at the court below are that sometime in May 2007 she acquired the store the
subject matter in litigation from one Benjamin Grant Fynn (vendor) absolutely.
At the time of her acquisition, the appellant who was occupying the store was
giving the first option to purchase it. After appellant failed to exercise the
option given to her, the right to purchase the store was extended to her which
she accepted. The appellant on two occasions was served with notices to vacate
the premised and that was after she had accepted to give vacant possession and
had received a refund of ¢41,500,000.00 from the vendor.<o:p></o:p><o:p>&nbsp;</o:p>Upon the expiration of the notice
period, the appellant refused to vacate and had continued to stay in the shop
without paying rent. Goods imported by the respondent for sale had been locked
up in a warehouse at a considerable cost and her plans to take advantage of the
profitable Christmas season had been thrown in disarray. The respondent
therefore sought by way of relief in the endorsement on the statement of Claim
inter alia for declaration as the owner of the shop, an order for vacant
possession, general, special, punitive and exemplary damages.<o:p></o:p>The appellants case was that she was
the tenant of the said Benjamin Grant Fynn and when she was offered the option
to purchase the store she accepted the offer and the purchase price was agreed
at ¢250,000,000. Out of which she made part payment of ¢47,500,00.00. The
vendor later unilaterally withdrew the offer made to the defendant and
purported to return the part payment of the purchase price to her.&nbsp;&nbsp; She contended that the negotiations were
still on going and that she was still the tenant in the store.&nbsp;&nbsp; She denied agreeing to vacate the store even
though she received the notices referred to by the respondent. She contended
that the respondent’s action should be dismissed as misconceived.<o:p></o:p><o:p>&nbsp;</o:p>-The trial court gave its judgment
after evidence had been led by the Vendor for and on behalf of the respondent
with one witness called.&nbsp;&nbsp; The appellant
gave evidence but did not call any witness.<o:p></o:p>The appellant, dissatisfied with the
judgment of the trial court is seeking by way of relief to have the judgment
set aside and the matter remitted to the court below for retrial on the
following grounds:-<o:p></o:p>“(i)&nbsp;&nbsp; The learned trial judge did not give the
Defendant the opportunity to defend&nbsp;&nbsp;&nbsp;&nbsp;
the action.<o:p></o:p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
learned trial judge’s insistence to go on with the matter even though Counsel
for the Defendant sought permission of the court to be absent has occasioned
gross miscarriage of justice.<o:p></o:p>(iii)&nbsp;&nbsp; The judgment is against the weight of
evidence.”<o:p></o:p>Before I proceed any further, I
think it is pertinent for me to address a preliminary issue that has been
raised by the respondents’ counsel in his written submission in answer.&nbsp;&nbsp; It is the submission of counsel on this
issue that the notice of appeal was filed in this court instead of the court
below which defect is fatal to the appeal.&nbsp;&nbsp;
Counsel for the Appellant insists that the notice was filed at the High
Court and not the Court of Appeal as is being alleged.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>&nbsp;Under Rule 8 (2) of the court of Appeal Rules
1997 (C.I.19) it is stated that:<o:p></o:p>“The notice of appeal shall be filed
in the registry of the Court below…”<o:p></o:p>The Appellate Courts have
consistently taken the position that an appeal filed at the wrong forum does
not invoke the jurisdiction of the appellate court same being incompetent.<o:p></o:p>In [1963] GLR 42 at 43, the position
of the law was set in YEGBOR V DORGAH as follows:<o:p></o:p>“The
statutory requirement as to the filing of a Notice of Appeal must be duly
complied with to vest the appellate court with jurisdiction to entertain the
appeal or to enable</main>