PAPA GYIMAH GENFI vs. DR. J .K. ACQUAYE [2013]DLCA8128

Date	2013-11-14
Suit No.	SUIT NO.H1/189/2013
Citation No.	[2013]DLCA8128

MARFUL-SAU JA (PRESIDING)

OFOE JA

TORKORNOO JA

KWAME BOAFO AKUFFO FOR PLAINTIFF/APPELLANT

MR. JOSEPH TURKSON FOR DEFENDANT/RESPONDENT

[2013]DLCA8128
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													<main id="main" class="content" style="min-height: 60rem" >PAPA GYIMAH
GENFI<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>DR. J .K.
ACQUAYE<o:p></o:p>(DEFENDANT/RESPONDENT)<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;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO.H1/189/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 14TH
NOVEMBER, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAME
BOAFO AKUFFO FOR PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MR.
JOSEPH TURKSON FOR DEFENDANT/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;
padding:0cm 0cm 1.0pt 0cm">

MARFUL-SAU
JA (PRESIDING), OFOE JA, TORKORNOO 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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</div>MARFUL-SAU, JA :-
<o:p></o:p>This
appeal is taken from the judgment of the High Court dated the 10th
of April 2008. In the said judgment the court dismissed the claims of the
plaintiff who will be referred to as appellant in this judgment. The trial
court then entered judgment for the defendant herein referred to as the
respondent on his counterclaim.<o:p></o:p>The
facts of this case are simple. The appellant had purchased the parcel of land
the subject of the dispute from one Sarah Korkor Narh, who in turn acquired the
land from one Lawyer E. A. Quaye. Lawyer E. A. Quaye claimed that the land was
gifted to him by the mother Madam Rebecca Nuamah Dodoo. The appellant as the
record indicates was able to register the transaction with her vendor at the
Land Title Registry under a certificate number GA 6434.<o:p></o:p>The
respondent on the other hand claimed the land was gifted to her mother, who was
the daughter of Madam Rebecca Nuamah Dodoo. The respondent claimed that Lawyer
E. A. Quaye who was his uncle forged a Deed of Gift between himself and Madam
Rebecca Nuamah Dodoo affecting the land the subject of the dispute. This forged
Deed of Gift was dated the 5th of May 1996. The respondent brought
an action in the High Court against his uncle and the court declared the Deed
of Gift and all transactions arising there from as a nullity.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant’s claim that he was an innocent purchaser without notice was rejected
by the trial court, as the court found that the appellant had notice of
respondent’s possession of the land. In deed the record revealed that at the
time the appellant went onto the land the respondent had constructed a fence
wall around the land and stationed one Sule on the land. It is against this
judgment that the appeal had been filed.<o:p></o:p>In
the Notice of Appeal two grounds were formulated as follows:-<o:p></o:p>‘’(i)The
judgment is against the weight of evidence.<o:p></o:p>(ii)
The court glossed over the crucial fact that the Appellant was a bona fide
purchaser for value without notice.’’<o:p></o:p>In
this appeal I intend to address the first ground as stated above since that
ground would take care of the second. It is trite that when an appellant claims
that a judgment entered by a trial court is against the weight of evidence
adduced at the trial the appellate court is thus empowered to review the trial by
re-assessing the evidence on record to ascertain whether the judgment entered
by the court could be supported by evidence on record. See TUAKWA v. BOSOM
(2001-2002) SCGLR 61.<o:p></o:p><o:p>&nbsp;</o:p>An
appeal is also said to be a re-hearing. Rule 8 (1) of the Court of Appeal
Rules, CI 19 provides thus:-<o:p></o:p>‘’
Any appeal to the Court shall be by way of re-hearing and shall be brought by
notice referred to in these rules as notice of appeal.’’<o:p></o:p><o:p>&nbsp;</o:p>The
duty of this court under the circumstances is to review the evidence on record
as a way of determining the soundness in law or otherwise of the judgment.
Examining the record I observed that this appeal raises a fundamental issue
that is which of the parties had a better title to the land in law. Tendered in
evidence at the trial is Exhibit 2 which is a judgment of the High Court da</main>