MARY OWUSUA AGYEMANG vs. MICHAEL AGYEI AND BADU BOAKYE [2015]DLHC8194

Date	2015-02-10
Suit No.	SUIT NO. C11/12/14
Citation No.	[2015]DLHC8194

HIS LORDSHIP JUSTICE JACOB B. BOON

OSEI BOATENG FOR PLAINTIFF/APPELLANT

KWABENA OBIRI-YEBOAH FOR DEFENDANT/RESPONDENTS

[2015]DLHC8194
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >MARY OWUSUA
AGYEMANG<o:p></o:p>vs.<o:p></o:p>MICHAEL AGYEI AND BADU BOAKYE<o:p></o:p>[HIGH
COURT, KUMASI]<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. C11/12/14&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
10TH FEBRUARY, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OSEI
BOATENG 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">

KWABENA
OBIRI-YEBOAH FOR DEFENDANT/RESPONDENTS<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">

HIS
LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>This is an appeal from the judgment of Mamponteng
District Court presided by His Worship Michael Gyamfi Boamah. The judgment was
delivered on 12th August, 2013 in favour of the
plaintiff/respondent, to be referred to hereafter as the plaintiff, for her
reliefs endorsed in the writ of summons as follows:<o:p></o:p>“(a) Declaration of title to
and recovery of possession of a parcel of land numbered plot No. 35 at Kenyase
which was given to the plaintiff as per the attached POWER OF ATTORNEY and
which Defendant has disposed off <o:p></o:p>(b) GH¢2,130.55 being the cost
of six stores which the Defendant caused to be demolished.”<o:p></o:p>In addition, the trial court awarded costs of
GH¢3,000.00 for the plaintiff against the defendant. The writ was originally
against the first defendant, but the second defendant was joined to the action
upon an application by counsel for the defendant. In the oral application, the
second defendant was referred to as a representative of the head of family of
the defendant. The application was granted by the trial court. From the
evidence led by the second defendant, he described himself as a principal
member of his family whose head of family is one Akwasi Agyeman. It is not clear
why he was joined to the action as no reason was given at the time the
application for joinder was moved. In my opinion, it was a misjoinder. He did
not appear to possess any personal interest sufficient enough to have been
joined to the action as a defendant. It was therefore not unexpected that the
orders of the trial court were basically against the first defendant. The
situation is a reflected in this appeal brought by only the first defendant. &nbsp;<o:p></o:p>Be that as it may, as he was aggrieved by the
judgment of the trial court he filed the instant appeal on the following
grounds:<o:p></o:p><o:p>&nbsp;</o:p>“1. That the judgment is
against the weight of evidence.<o:p></o:p>2. The learned trial judge
erred when he upheld the case of the plaintiff in the face of her failure to
adduce evidence to the required standard of proof of her case.<o:p></o:p>3. The learned trial judge
erred when he granted special damages of an amount of GH¢2,130.55 being the
cost of six stores for the Plaintiff<o:p></o:p>4. Additional Grounds of
Appeal to be filed on receipt of the Judgment and proceedings”<o:p></o:p><o:p>&nbsp;</o:p>No additional grounds of appeal were however filed
as stated above.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the defendant rightly stated the law in
his written submission when he wrote that an appeal is by way of rehearing. He
cited two judicial authorities of the Supreme Court to support his submission.
These are Agyeiwaa v P &amp; T Corporation (2007-2008) SCGLR 985 and, Tuakwa v
Bosom (2001-2002) SCGLR 61. Indeed in Oppong v Anarfi (2011)1 SCGLR 556,
holding (4) at 558 it was held in regard to the first ground&nbsp; of appeal, often referred to as the omnibus
ground, that:<o:p></o:p><o:p>&nbsp;</o:p>“On a submission by an
appellant that the judgment of the trial court was against the weight of
evidence led, even though it was ordinarily within the province of the trial
court to evaluate the veracity or otherwise of a witness, it was incumbent upon
an </main>