CHARLES L. QUIST vs. AHMED DANAWI [2012]DLCA6682

Date	2012-04-19
Suit No.	CIVIL APPEAL NO. H1/215/2011
Citation No.	[2012]DLCA6682

ASARE KORANG J.A. (PRESIDING)

KANYOKE J.A.

ADUAMA OSEI J.A.

MR. AMUA-SEKYI FOR DEFENDANT/APPELLANT

MR. JAMES AHENKORAH FOR PLAINTIFF/RESPONDENT

[2012]DLCA6682
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													<main id="main" class="content" style="min-height: 60rem" >CHARLES L. QUIST<o:p></o:p>vs.<o:p></o:p>AHMED DANAWI<o:p></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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. H1/215/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 19TH
APRIL 2012<o:p></o:p>

MR.
JAMES AHENKORAH FOR PLAINTIFF/RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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>KANYOKE, J.A.&nbsp; <o:p></o:p>This
is an appeal against the judgment of the High Court, Accra, dated the 3rd day
of June 2010.&nbsp; The facts giving rise to
this appeal are as follows: The plaintiff/respondent (hereinafter referred to
as the Respondent) has at all material times been the owner of a certain piece
of land at Osu Accra.&nbsp; There is another
adjoining plot of land situate and lying to the west of the respondent’s
property belonging to one E.C. Quist-Therson and family.&nbsp; By an indenture of a lease dated 17th
January, 1977, the respondent as lessor leased his said property to the
defendant/appellant (hereinafter referred to as the appellant) and his late
brother for a term of 50 years.&nbsp; The
appellant and his said brother also took a lease of the adjoining plot owned by
Mr. Quist-Therson and family.&nbsp; They then
constructed a commercial building on the Quist-Therson family’s property and a
dwelling house on the respondent’s property.&nbsp;
It is however the case of the respondent that the appellant’s commercial
premise stands partly on Quist-Therson family’s property and partly on his
property.&nbsp; After paying rent to the two
Lessors for some time, the appellant and his deceased brother appeared to have
defaulted in the payment of rent to the respondent.&nbsp; Meanwhile, another family at Osu, namely the
Osu Alata family instituted action at the High Court, Accra, seeking inter alia,
a declaration of title to the land claimed by the Quist-Therson family.&nbsp; The High Court, Accra presided over by the
late Justice Osei Hwere J. (as he then was) after trial entered judgment in
favour of the Osu Alata family declaring it the owner of the land lying to the
west of the respondent’s property and ordered the appellant and his brother to
thenceforth attorn tenant to the Osu Alata family in respect of that land.&nbsp; The Quist-Therson family dissatisfied with
the judgment appealed against same to the Court of Appeal. <o:p></o:p>By
a letter dated 21/04/92, solicitor for the respondent, the same counsel for the
respondent herein on the instructions of the respondent wrote to the appellant
demanding rent for his property under the terms of the Lease executed between
them.&nbsp; The appellant referred the letter
to his solicitor – the late Mr. E.D. Kom of blessed memory.&nbsp; Mr. Kom, thinking and under the mistaken
impression that Mr. Justice Osei Hwere’s judgment was in respect of the
respondent’s property or land at Osu by a letter dated 24/4/92 drew the respondent’s
solicitor’s attention to the appeal pending against the High Court’s decision
and asserted that in his opinion it would be prudent to await the ultimate
decision of the Court of Appeal in the matter.&nbsp;
When the appellant became aware of his solicitor’s letter of 24/4/92 he
immediately drew Mr. Kom’s attention to the error or mistake contained in the
said letter.&nbsp; Consequently on 27/4/92,
Mr. Kom wrote another letter to the respondent’s solicitor and enclosed therein
a cheque for the rent demanded by the respondent but, the Solicitor for the
respondent wrote to Mr. Kom in a letter dated 2/02/93, that is, almost a year
later, rejecting the cheque and asserted that by virtue of Mr. Kom’s letter of
24/4/92 the appellant had disclaimed, repudiated and or denied the respondent’s
title to the land and was therefore liable to forfeit the Lease and became
liable for ejectment&nbsp; from the land.&nbsp; By a letter dated 9/02/93 to the respondent’s
solicitor, Mr. Kom apologized for the mistake or error in his letter of 24/4/92
and took full responsibility for the error and mix up and also explained that
the fault was purely his and not that of the appellant – his client.&nbsp; But this did not impress or convince the
respondent and his lawyer – Mr. James Ahenkora.&nbsp;
Consequently, on the 20th day of April 1994, the respondent took out a
writ of summons at the High Court, Accra seeking against the appellant, inter
alia, a recovery of possession of or ejectment from his land for the reason
that by virtue of Mr. Kom’s letter of 24/04/92 the appellant had denied,
disclaimed or repudiated the respondent’s title to the land and rendered the
Lease liable for forfeiture. <o:p></o:p>Upon
the close of evidence by the parties, the trial High Court Judge, the late Mr.
Justice Gyamera-Tawiah J. ordered both counsel to file written addresses and
that was done.&nbsp; But as fate would have
it, Justice Gyamera-Tawiah J. passed on or was called to glory before he could
deliver the judgment in the case.&nbsp; Her
Ladyship, the Honourable Chief Justice by the powers conferred on her by law
therefore transferred the case to another High Court, Accra presided over by
Mr. Bright Mensah J.&nbsp; At that stage, the
appellant abandoned his lawyer and engaged a new lawyer in the person of Mr. Yoni
Kulendi.&nbsp; When the case was called before
Mr. Justice Bright Mensah J. on 30/10/09 he made the following order: <o:p></o:p>“I hereby order the Registrar General,
Judicial Service, to cause the proceedings before Gyamera-Tawiah J. to be typed
out for my consideration as to whether it may be adopted by the parties.&nbsp; Case is therefore adjourned to 12/1/10. <o:p></o:p>The defendant and his lawyer shall be
served with hearing notice”. <o:p></o:p>See
page 61 of the Record of Appeal (ROA)<o:p></o:p>The
Record of Appeal indicates that when the matter was again called before Mr.
Bright Mensah J. on 24/3/2010, one Hamida Nuhu holding brief for Mr. Yoni
Kulendi informed the Court that when the appellant engaged Mr. Kulendi, he
filed a Search at the Registry of the High Court, Accra to know the state of
affairs of the case and that the search revealed that the appellant did not
even testify before the trial judge so he wondered how addresses were
filed.&nbsp; This resulted in an exchange of
statements between Mr. James Ahenkorah counsel for the respondent and Hamida
Nuhu for the appellant.&nbsp; At the end of
all this, the learned judge – Mr. Bright Mensah J. made the following order: <o:p></o:p>“…Upon careful study of the docket and
the proceedings it reveals that the case was due for judgment but judgment was
never delivered till the de</main>