WILLIAM ASHITEY ARMAH vs. HYDRAFOAM ESTATES (GH) LTD [2014]DLSC4863

Date	2014-05-28
Suit No.	CIVIL APPEAL No J4/33/2013
Citation No.	[2014]DLSC4863

J. V. M. DOTSE JSC (PRESIDING)

ANIN YEBOAH JSC

P. BAFFOE-BONNIE JSC

N. S. GBADEGBE JSC

A. A. BENIN JSC

ERNEST THOMPSON ESQ. WITH HIM PETER HAYIBOR AND JOSEPH HACKSON

APPIAH FOR THE PLAINTIFF/RESPONDENT/ APPELLANT.

EDWARD SAM CRABBE ESQ. WITH HIM NATASHIA LAMPTEY FOR THE

DEFENDANT/APPELLANT/RESPONDENT.

[2014]DLSC4863
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													<main id="main" class="content" style="min-height: 60rem" >WILLIAM ASHITEY ARMAH<o:p></o:p>(PLAINTIFF/RESPONDENT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>HYDRAFOAM ESTATES (GH)
LTD<o:p></o:p>(DEFENDANT/APPELLANT/RESPONDENT)<o:p></o:p>[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 J4/33/2013&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; 28TH
MAY, 2014<o:p></o:p>

</div>COUNSEL: 
ERNEST THOMPSON ESQ. WITH HIM PETER HAYIBOR AND
JOSEPH HACKSON APPIAH FOR THE PLAINTIFF/RESPONDENT/ APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EDWARD SAM CRABBE ESQ. WITH HIM NATASHIA LAMPTEY
FOR THE DEFENDANT/APPELLANT/RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>J. V. M.&nbsp; DOTSE JSC (PRESIDING),
ANIN YEBOAH JSC, P. BAFFOE-BONNIE JSC, N. S.&nbsp;
GBADEGBE JSC, A. A.&nbsp; BENIN JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="text-align:center;border:none;
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</div>BENIN
JSC,:- <o:p></o:p>In or about the year 1997,
the plaintiff/respondent/appellant, hereinafter called the appellant, sold a
tract of land situate at a place called Okpoi Gonno in Accra, measuring 16.08
acres to the defendant/appellant/respondent, hereinafter called the respondent.
The appellant claimed the land consisted of sixty-four plots but according to
the respondent it comprised just twenty-two plots. The parties agree that the respondent
paid for twenty-two plots of land at an agreed fee of two million old cedis per
plot. Thus according to the appellant forty-two plots still remained unpaid
for, whereas the respondent’s contention was that since the land sold comprised
twenty-two plots excluding the open spaces and a school site set aside by the
city planning authorities they had fully paid for the land. This was the state of
the pleadings. The appellant issued the writ of summons on 12th
April 2007 seeking the following reliefs against the respondent:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An
order for the recovery of possession of the remaining forty-two unpaid for
plots of land forming part of the lease registered as AR 3590B/97 and with No.
1636/1998 and stamped as LVB 5716B/98.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In
the alternative an order that the defendant pay for the remaining forty-two
plots of land at the agreed price of the cedi equivalent of ten thousand
dollars per plot at the exchange rate prevailing at date of payment.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Perpetual
injunction restraining the defendant, his agents, assigns, privies, successors
in title from interfering with, building on or having anything, whatsoever to
do with the remaining unpaid for forty-two plots of land ……..<o:p></o:p>At the close of pleadings
the appellant took out summons for directions in which he proposed ten issues.
The respondent did not file additional issues. The record shows that both
counsel agreed to take only one issue in resolution of the entire dispute and
the court concurred in that agreement. The only issue set down for trial was
what value to place on the land, which from the record was the value of the
remaining 42 plots. The trial court judge appointed a professional valuation firm
to carry out the exercise with an option to the parties to appoint their own
valuation expert. Subsequently the court appointed a surveyor to undertake a
survey of the land indicating any portion that remained vacant.<o:p></o:p>The court appointed experts
carried out their assignments and submitted their reports. These experts
testified as court witnesses and were cross examined by both sides. The
appellant led no evidence of his own nor did he call any evidence, and instead
opted to rely on the evidence given by the two experts appointed by the court. The
respondent did not testify but called three different experts who testified in
the action in respect of the valuation of the land. At the end of the day the
trial High Court entered judgment for the appellant to recover the sum of GH¢550,000 plus costs of GH¢10,000 against the respondent.<o:p></o:p>The respondent appealed to
the Court of Appeal which allowed the appeal on 16th December 2010
and ordered a trial de novo before another High Court judge mainly for the
reason that the summons for directions was not conducted in accordance with law
and practice considering Order 1(2) of the High Court (Civil Procedure) Rules
2004, C.I. 47 leading to misdirection in law and consequently to a wrong
decision. The Court of Appeal took this position because in its view there were
other issues that the trial court ought to have considered and so it should not
have accepted the agreement by counsel to try only one issue. The trial court
was also faulted for not fol</main>