BFT ENTERPRISE vs. OBOTANTAM EBU EFFRIM X [2010]DLCA4890

Date	2010-07-15
Suit No.	CIVIL APPEAL SUIT NO: H1/19/2010
Citation No.	[2010]DLCA4890

KUSI-APPIAH JA-PRESIDING

MARFUL-SAU JA

HONYENUGA JA

KWADWO OWUSU AGYEMAN FOR DEFENDANT/APPELLANT

BRIGHT OKYERE AGYEKUM FOR PLAINTIFF/RESPONDENT

[2010]DLCA4890
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													<main id="main" class="content" style="min-height: 60rem" >BFT ENTERPRISE <o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>OBOTANTAM EBU EFFRIM X<o:p></o:p>&nbsp;(DEFENDANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<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 SUIT NO:&nbsp; H1/19/2010&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;DATE: 15TH JULY, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWADWO OWUSU AGYEMAN FOR
DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BRIGHT
OKYERE AGYEKUM FOR PLAINTIFF/RESPONDENT<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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KUSI-APPIAH
JA-PRESIDING, MARFUL-SAU JA, HONYENUGA JA<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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JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA:&nbsp; This appeal is taken from the judgment of the
High Court (Commercial Division) dated the 6th of November
2007.&nbsp; The Defendant/Appellant (to be
called Appellant) in his Notice of Appeal filed on 28th December
2007 formulated twelve (12) grounds and prayed that the Judgment and orders of
the trial court be set aside.<o:p></o:p>Before I proceed further
it is important to set the records straight regarding the grounds argued by
learned Counsel for Appellant in his statement of case and the grounds
contained in the Notice of Appeal.&nbsp; As
observed Appellant’s original Notice of Appeal contained twelve (12)
grounds.&nbsp; However in his statement of
case filed on the 14th July 2009, learned Counsel for the Appellant,
argued fourteen grounds praying this court to set aside the judgment of the
court below.&nbsp; There is no evidence that
Counsel sought the leave of this court to argue the additional two
grounds.&nbsp; These two grounds were argued
in the statement of case as grounds 12 and 14.&nbsp;
When this appeal came up for hearing on 11th of May 2010 learned
Counsel for Appellant conceded to the violation of Rule 8 (7) of CI 19 and
prayed that the said two grounds be deleted from his statement of case.&nbsp; Accordingly grounds 12 and 14 as argued in
the Appellant’s statement of case would be struck out from this appeal.&nbsp; This judgment thus addresses the original
grounds contained in the Notice of Appeal.<o:p></o:p>The facts of the case itself
are simple.&nbsp; The Plaintiff/Respondent
herein referred to as Respondent acting through its Promoters and Directors
negotiated for a parcel of land at Apam from the Appellant for a salt business.
&nbsp;Pursuant to the negotiations a parcel of
land measuring 40 acres was leased by the Plaintiff at a cost of ¢53 million
(GH¢ 5,300).&nbsp; This money was paid in two installments
on the 15th November 2004 and on 12th January 2005.&nbsp; On the 28th January 2005, a lease
document for the land was executed between the Respondent on one part and the
Appellant and his elders on the other part.&nbsp;
The Respondent could not register the Lease at the Land Commission, Cape
Coast because the land was a subject of another lease dated 25th
July 1996 made in favour of a certain Chapermax Salt Limited.<o:p></o:p>In view of the alleged encumbrance
on the land the Respondent commenced this action on the 3rd November
2006.&nbsp; Two reliefs were endorsed on the
Respondent’s writ of summons namely;<o:p></o:p>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Damages
for Deceit<o:p></o:p>2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Such
further or other reliefs as in the circumstances may appear just in particular
the refund of ¢405,072,000 being expenses<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;incurred by plaintiff plus interest.<o:p></o:p>The
Appellant disputed the claims but did not prosecute a counterclaim.&nbsp; At the trial itself the Respondent testified
through one of its Directors and did not call any witness.&nbsp; The Appellant also testified and did not call
any witness.<o:p></o:p>Tendered in evidence
during the trial were Exhibit B, the two receipts covering the payments for the
land and Exhibits C the lease executed in favour of the Respondent.&nbsp; Also exhibited at the tria</main>