TENASSA PHAMARCUTICAL & TRADING CO. LTD vs. MR. ISSAKA KOANDA [2014]DLSC2939

Date	2014-03-19
Suit No.	CIVIL APPEAL NO. J4/61/2013
Citation No.	[2014]DLSC2939

ATUGUBA JSC (PRESIDING)

ADINYIRA (MRS) JSC

YEBOAH JSC

GBADEGBE JSC

AKOTO-BAMFO (MRS) JSC

OSAFO BUABENG ESQ. FOR THE DEFENDANT/APPELLANT/ APPELLANT.

JULIET AKU-SIKA DADZIE ESQ. FOR THE PLAINTIFF /RESPONDENT/ RESPONDENT.

[2014]DLSC2939
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													<main id="main" class="content" style="min-height: 60rem" >TENASSA
PHAMARCUTICAL &amp; TRADING CO. LTD<o:p></o:p>vs.<o:p></o:p>MR. ISSAKA
KOANDA&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp; [SUPREME COURT,
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/61/2013&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; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 19TH MARCH, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>OSAFO
BUABENG ESQ. FOR THE DEFENDANT/APPELLANT/ APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JULIET
AKU-SIKA DADZIE ESQ. FOR THE PLAINTIFF /RESPONDENT/ RESPONDENT.<o:p></o:p>

</div>CORAM: <o:p></o:p>ATUGUBA
JSC (PRESIDING), ADINYIRA (MRS) JSC, YEBOAH JSC, GBADEGBE JSC, AKOTO-BAMFO (MRS)
JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>GBADEGBE
JSC:&nbsp;&nbsp;&nbsp; <o:p></o:p>This is an appeal from the decision of the Court of
Appeal by which the decision of the trial High Court was affirmed in this
matter herein. By its decision, the Court of Appeal accepted the plaintiff’s
case in preference to that of the defendant. Being aggrieved by the said
decision, the defendant-appellant-appellant (hereinafter conveniently referred
to as the defendant) has appealed to this court seeking the reversal of the
judgment, the subject matter of these proceedings. In his effort to persuade us
to yield to his invitation, the defendant through his counsel has in his
statement of case argued three grounds of appeal that were contained in the
notice of appeal and therein numbered as “a”,” b”, and “c” and expressed as
follows:<o:p></o:p><o:p>&nbsp;</o:p>“(a) That the learned justices of Appeal erred in holding that the
property in dispute was acquired by E B Asante for and on behalf of Asante
Chemical Store notwithstanding the fact that Asante Chemical Store was a
business name and not a legal entity and therefore&nbsp; could not enter into any legal transaction
including a lease.<o:p></o:p><o:p>&nbsp;</o:p>(b) The learned justices of the Court of Appeal erred in holding that
the plaintiff was the successor of Asante Chemical Store and therefore owner of
the property in dispute even in the absence of any evidence on record substantiating
that fact.<o:p></o:p><o:p>&nbsp;</o:p>(c) The learned justices of the Court of Appeal erred in holding that
the defendant never acquired the said property in dispute from E B Asante
contrary to the presence of a Receipt and Statutory Declaration executed by E B
Asante in his lifetime in favour of the Defendant.”<o:p></o:p><o:p>&nbsp;</o:p>The questions which we have to determine in these
proceedings turning on the said grounds are as follows: Who acquired the
leasehold in regard to the disputed property? And if indeed, as the appellant
contends, it was the deceased E. B. Asante, to whom the grant was made, was
there any sale by E B Asante of the leasehold property to him? So stated, these
questions raise simple questions of fact and law. The first of these questions calls
for the construction of the leasehold document and the second only arises if
the answer to the first question is supportive of the defendant’s case. The
first question turns on the combined effect of the first two grounds of appeal
that were argued in the defendant’s statement of case while the second question
relates to the third ground.<o:p></o:p><o:p>&nbsp;</o:p>Before turning to the task with which the court is
faced, it is observed that from the record of appeal, there were only two
persons who testified to the facts in dispute- a representative of the
plaintiff company and an attorney of the defendant. The evidence placed at the
disposal of the court compels me to the conclusion that while the witness of
the plaintiff had no personal knowledge of the transaction from which the land
was acquired, the defendant’s attorney offered some evidence of matters that
were personally known to him and material to our determination in these
proceeding to the effect that he was approached by the deceased E B Asante to
get someone to buy the disputed plot from him. The evidence contained in the
record of appeal appears to hinge mainly on the question that concerns who took
out the lease from the Tema Development Corporation (TDC).Within the context of
such a contest, where there are available documents that speak to the
transaction, they are preferable to the oral testimony tendered to the court by
the rival parties.<o:p></o:p>