STEPHEN DIAWUO vs. INDUSTRIAL PROJECT GH. LTD. [2013]DLCA8240

Date	2013-10-17
Suit No.	CIVIL APPEAL NO. H1/5/2013
Citation No.	[2013]DLCA8240

MARIAMA OWUSU JA (PRESIDING)

MARFUL-SAU JA

SAEED KWAKU GYAN JA

MRS. SHIKA BLEKPE FOR THE DEFENDANT/ APPELLANT.

MR. RAPHEAL ALIJINA FOR THE PLAINTIFF/ RESPONDENT.

[2013]DLCA8240
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													<main id="main" class="content" style="min-height: 60rem" >STEPHEN DIAWUO<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>INDUSTRIAL
PROJECT GH. LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<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:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL NO. H1/5/2013&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 17TH
OCTOBER, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MRS.
SHIKA BLEKPE FOR THE DEFENDANT/ 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.
RAPHEAL ALIJINA FOR THE 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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MARIAMA
OWUSU JA (PRESIDING), MARFUL-SAU JA, SAEED KWAKU GYAN 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;
padding:0cm 0cm 1.0pt 0cm">

</div>MARFUL-SAU, JA: -
This appeal is taken from the judgment of the High Court sitting in Accra dated
the 19th December 2008. The court entered judgment for the plaintiff
who will be referred to as respondent in this judgment. The court then
dismissed the counterclaim of the defendant who will be referred in this
judgment as the appellant. The facts of the case are that the respondent
registered two plots of land at the Land Title Registry and was issued the
requisite Land Certificates. From the record the respondent was issued
certificate numbers GA 20656 and GA 20568 for the two plots. <o:p></o:p>The
certificates were issued on the 14th October 2004 and 5th
November 2004 respectively. From the pleadings and evidence the respondent
acquired the two plots from the Ocansey family. The respondent therefore
claimed that if the appellant had any land in the area of dispute at all that
land did not extend to his land as registered at the Land Title Registry. The
respondent thus sued for declaration of title to the two plots of land which
was fully described on the writ of summons, damages for trespass, an order for
perpetual injunction and other reliefs as endorsed on the writ of summons.<o:p></o:p>The
appellant on the other hand claimed it is the owner of a parcel of land in the
area in dispute measuring 3.13 acres from Borino Prono and Company Limited.
According to the appellant the acquisition was documented through a Deed of
Conveyance dated 20 th February 2004. The said document was stamped as LVB
5153/04 and presented and plotted as No. AR/1721/2004. &nbsp;The appellant pleaded that the land it
acquired had been registered as No. 73/61 by Messrs Desantos and Terrazo
Limited who acquired it from the Okaichoe Annan Family. The appellant alleged
that the respondent was fraudulent in his acquisition of the two Land
Certificates and thus counter- claimed for declaration of title to the land, an
order of perpetual injunction and order for the cancellation of the two
certificates issued to the respondent. The counterclaim was dismissed hence
this appeal.<o:p></o:p>In
the Notice of Appeal filed on the 18th March 2009, the following
grounds were formulated:-<o:p></o:p>‘’
a. The judgment was against the weight of evidence on record.<o:p></o:p>&nbsp;&nbsp; b. The learned trial judge erred for not
evaluating the evidence of the Government Surveyor who was appointed by the
Honourable Court.<o:p></o:p>&nbsp;&nbsp; c. The plaintiff/respondent’s grantor at all
material times lacked the requisite capacity to grant the land in dispute.<o:p></o:p>&nbsp;&nbsp; d.The trial judge erred in accepting the
plaintiff/respondent’s evidence which was in conflict with his pleadings.<o:p></o:p>&nbsp;&nbsp; e. The judgment of the trial judge was full
of contradictions and inconsistencies.<o:p></o:p>&nbsp;&nbsp; f. The learned trial judge erred in holding that
the judgment of Mrs. Sawyer Williams dated 22/12/97 was not binding on the
plaintiff/respondent and therefore cannot operate as estoppel.<o:p></o:p>&nbsp;&nbsp; g. The learned trial judge erred in holding
that the Land Certificates obtained by the plaintiff/respondent were properly
obtained. <o:p></o:p>&nbsp;&nbsp; h. The learned judge erred in holding that
the allegation of fraud made by the defendant/appellant was not proved beyond
reasonable doubt.’’<o:p></o:p>The
appellant gave indication that it will file additional grounds but from the
record no such grounds were filed. In his written submission Counsel for the
appellant failed to argue grounds (a),(e) and (h) above, which are that the
judgment was against the weight of the evidence; that the judgment of the trial
judge was full of contradictions and inconsistencies; and that the trial judge
erred in holding that the allegation of fraud made by the defendant/appellant
was not proved beyond reasonable doubt; these three grounds will therefore be
struck out as having been abandoned.<o:p></o:p>In
this judgment I will address the grounds of appeal as formulated and ar</main>