EMMANUEL PALMAS ABANKWA vs. EMMANUEL DUAH BARNING [2014]DLCA4712

Date	2014-04-19
Suit No.	CIVIL APPEAL SUIT NO.H1/13/14
Citation No.	[2014]DLCA4712

C. J. HONYENUGA J.A (PRESIDING)

D. ADJEI J.A

B. F. ACKAH-YENSU J.A

KWAMENA BAIDEN FOR DEFENDANT/APPELLANT

O. K. MBIAH FOR PLAINITFF/RESPONDENT

[2014]DLCA4712
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL PALMAS ABANKWA<o:p></o:p>(PLAINTIFF/
RESPONDENT)<o:p></o:p>vs.<o:p></o:p>EMMANUEL DUAH BARNING<o:p></o:p>(DEFENDANT/ APPELLANT)<o:p></o:p><o:p>&nbsp;</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 0in 0in">

CIVIL APPEAL SUIT NO.H1/13/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAMENA BAIDEN FOR
DEFENDANT/APPELLANT<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">

O.
K. MBIAH FOR PLAINITFF/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:0in 0in 1.0pt 0in">

C.
J. HONYENUGA J.A (PRESIDING), D. ADJEI J.A, B. F. ACKAH-YENSU J.A<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:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>BARBARA
ACKAH-YENSU, JA<o:p></o:p>The fundamental issue
raised in this appeal is whether or not the trial Judge was right in making the
order to expunge the evidence adduced in the case in his Ruling dated 29th
May 2013. <o:p></o:p>The grounds of appeal as
set out in the Notice of Appeal is as follows;-<o:p></o:p>“1. The decision of the Honourable
court expunging the&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
evidence adduced in the suit is unwarranted in law<o:p></o:p>&nbsp;
2. Additional grounds to be filed.”<o:p></o:p>The Defendant/Appellant
however did not file any additional issues and argued the appeal on the sole
ground above. The Plaintiff/Respondent did not respond to Defendant/Appellant’s
written submissions. The law is trite that the Court is enjoined to proceed
with its judgment even if the Respondent does not file a written submission of
his case.&nbsp; In such circumstances he may
only be heard on the question of cost; Rule 20 of the Court of Appeal Rules,
1997, C. I. 19.<o:p></o:p>The facts of the case are
that per a lease agreement executed in March 2006 between the Parties, the Plaintiff
leased a parcel of land situate in Kasoa to the Defendant.&nbsp; The amount of Gh¢18,000 paid by the Defendant
was used as the proposed rent for five (5) years at an annual rent of Gh¢3,600.
The Defendant alleged that the accused Plaintiff had breached the lease agreement.&nbsp; It is Plaintiff’s case however that it is
rather Defendant who is in breach of the lease agreement because Defendant had
completed the Plaintiff’s structure without this prior written consent and
knowledge, and had since January 2007 moved into and had fully occupied the
completed structure. Defendant had also trespassed on the Plaintiff’s land
adjourning the land in question.<o:p></o:p>Defendant on the other
hand contended that the Lease Agreement executed on 16th March 2006
was to commence on 1st June 2006. By the date of execution on the Agreement,
Defendant had paid Plaintiff Gh¢8,000 with a balance to be paid on 16th
May, 2006. Upon receipt of the last installment payment Plaintiff travelled out
of the country in June 2006. Plaintiff returned in September 2006 but failed or
refused to undertake any further works on the property.&nbsp; Defendant after informing Plaintiff that he
was going to complete the works and defray it against rent payment, engaged a
professional to draw the plan of the building at his own expense.&nbsp; Defendant counter claimed against the
Plaintiff.<o:p></o:p>The suit was instituted by
the Plaintiff on 6th December 2011 and hearing commenced on 17th
October, 2012.&nbsp; On 29th April
2013 the Plaintiff closed his case and the suit was adjourned to 29th
May 2013 for continuation.<o:p></o:p>The trial Judge upon the
close of the Plaintiff’s case, indicated that he was going on transfer and expressed
doubt as to whether he could complete the case. After being informed that only
the Defendant would give evidence he decided to complete the case by the end of
the term.<o:p></o:p>On 29th May
2013, both Parties and their lawyers were in court for continuation of
hearing.&nbsp; The trial Judge however decided
that the Parties should agree on a date in June 2013 for the continuation of the
suit. It was difficult for the Parties to agree on a convenient date within the
give</main>