WESTERN HARDWOOD LTD. vs. GEORGE ABUSU MANTEY AND EBUSUAPANIN MADAM AMA YALEY [2011]DLCA5699

Date	2011-12-07
Suit No.	SUIT NO.H1/174/2009
Citation No.	[2011]DLCA5699

MARFUL-SAU JA –PRESIDING

HONYENUGA JA

DENNIS ADJEI JA

ASHER AHLIJA (ADMINISTRATIVE MANAGER) REPRESENTING THE PLAINTIFF/RESPONDENT

ANTHONY KWAKU PYNE REPRESENTING THE CO-DEFENDANT/APPELLANT

NANA KONADU ESQ. FOR THE CO-DEFENDANT/APPELLANT/PRESENT

CONSTARTINE KUDADZIE ESQ. FOR THE PLAINTIFF/RESPONDENT PRESENT

[2011]DLCA5699
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													<main id="main" class="content" style="min-height: 60rem" >WESTERN HARDWOOD LTD.<o:p></o:p>[PLAINTIFF/RESPONDENT]<o:p></o:p>vs.<o:p></o:p>GEORGE ABUSU MANTEY [DEFENDANT] AND EBUSUAPANIN MADAM AMA YALEY<o:p></o:p>[CO-DEFENDANT/APPELLANT]<o:p></o:p>[COURT
OF APPEAL, CAPE COAST]<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">

SUIT NO.H1/174/2009&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: 7TH DECEMBER,
2011<o:p></o:p>

CONSTARTINE
KUDADZIE ESQ. FOR THE PLAINTIFF/RESPONDENT PRESENT<o:p></o:p>

</div>DENNIS ADJEI, J.A.<o:p></o:p>On
20th February, 2009, the Circuit Court Takoradi granted leave to the
Co-Defendant/Appellant herein to appeal against its decision to set issues IV, V
and VI contained in the application for Directions filed on 2nd December, 2008
down for legal argument. The Co-Defendant/Appellant filed his appeal against
the ruling dated 20th February, 2008 and on 3rd March, 2009.<o:p></o:p>The
brief facts of the case are that the Plaintiff instituted an action against the
Defendant for general damages for trespass, perpetual injunction and recovery
of possession. On 4th &nbsp;&nbsp;March, 2008 the Co-Defendant herein applied to
the court to be joined to the suit as Co-Defendant. On 12th March,
2008 the trial Circuit Court joined the Co-Defendant to the suit. The Writ of
Summons was not amended, the Co-Defendant did not enter appearance but filed
Statement of Defence.<o:p></o:p>At
the application for direction stage, the trial Judge set down three issues for
legal argument. The Co-Defendant being dissatisfied with the decision by the
trial court to set down issues IV, V and VI for legal argument filed the instant
appeal.<o:p></o:p>The
three grounds of appeal contained in the Notice of Appeal are:<o:p></o:p>a. “The trial court erred in law in setting
down issues IV, V, and VI contained in the application for directions for legal
argument when it was on the face of the purported terms of settlement and by
virtue of paragraph 3 of the Amendment Statement of<o:p></o:p>Defence and Counter-Claim of the
Co-Defendant that the title of the suit which went before the Court of Appeal
and Supreme Court is different from the title of the purported terms of settlement.<o:p></o:p>b. That the trial court erred in law
when it failed to take into consideration in the ruling the fact that the exact
location of the land in dispute and the land claimed by the Co-Defendant was yet
to be established by evidence having regard to the two separate pieces of land claimed
by the Plaintiff as per paragraphs 2, 3, 4, 5 and 6 of the Plaintiff’s Amended
Statement of Claim.<o:p></o:p>c. That the trial court erred when it
failed to advert its mind to the fact that legal argument can only be based on
settled facts.”<o:p></o:p><o:p>&nbsp;</o:p>Before
discussing the grounds of appeal, I would like to address the capacity of the
Co-Defendant in the instant appeal. For a party to file an appeal in a suit,
the person must have capacity else he cannot be heard on the merits even if his
case is an iron case one. In the case of Sarkodie I Vs. Boateng II [1982-83]
GLR 715, the Supreme Court at page 724 held as follows:<o:p></o:p>“It is claimed in one of the more
serious grounds of appeal that substantial questions were involved in the suit
and it was unjust for the Appellant to be driven from the ‘judgment seat’ on
the preliminary objection raised by the Respondent. But it is no answer for a
party against whom a serious issue of locus standi is raised, to plead that he
should be given a hearing on the merits because he had a cast-iron case against
his opponents. The Appellant has failed to show that he had a locus standi by
himself to institute these proceedings.”<o:p></o:p>The
Order for joinder was granted on 12 th March, 2008. The entries made by the
trial Circuit Court Judge are as follows:<o:p></o:p>“Let the application be granted as
prayed for. Let Madam Ama Yalley be joined to this suit as a Co-Defendant with
effect from today 12/3/08.<o:p></o:p>