JOSEPH YAO ZIWU, GODWIN ZIWU AND WISDOM ZIWU vs. MAWUTOR KUDZORDZI AND FRANK KUDZORDZI [2018]DLCA6987

JOSEPH YAO ZIWU, GODWIN ZIWU AND WISDOM ZIWU vs. MAWUTOR KUDZORDZI AND FRANK KU... [2018]DLCA6987

Date	2018-02-28
Suit No.	CIVIL APPEAL: H1/03/2017
Citation No.	[2018]DLCA6987

K. A. ACQUAYE JA (PRESIDING)

S. K. GYAN JA

M. M. AGYEMANG (MRS.) JA

DR. JOE ATTIPOE FOR DEFENDANTS/APPELLANTS

MR. OSCAR VULOR FOR PLAINTIFFS/RESPONDENTS

[2018]DLCA6987
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH YAO
ZIWU, GODWIN ZIWU AND WISDOM ZIWU<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>MAWUTOR KUDZORDZI AND FRANK KUDZORDZI<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL (CIVIL
DIVISION), HO]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL: H1/03/2017 &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:&nbsp;&nbsp; 28TH FEBRUARY, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>DR. JOE
ATTIPOE FOR DEFENDANTS/APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. OSCAR VULOR FOR PLAINTIFFS/RESPONDENTS<o:p></o:p>

</div>CORAM: <o:p></o:p>K. A. ACQUAYE JA (PRESIDING), S. K. GYAN
JA, M. M. AGYEMANG (MRS.) JA<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="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AGYEMANG JA:<o:p></o:p>In this appeal against &nbsp;the judgment of the High Court Ho delivered on
the 14th day of May2015, the first defendant/appellant (hereafter
referred to alternately as the first defendant, or the appellant) seeks a
setting aside of the judgment of that court.<o:p></o:p>The facts of
this case typify a run-of-the-mill commercial transaction gone sour. They are sufficiently
simple. <o:p></o:p>In 1974, one
Franz Koku Kudzordzi (deceased), the father of the plaintiffs granted a twelve-year
lease of land near Ho Central market described as: bounded on North-East by Dugbadza
market; on the South-west by the road to Dome, on the North-west by the Ho to
Dome road, and on the South-east by the Lorry Park, to the first defendant (now
deceased), for a renewable term of twelve years at a yearly rent c60.00. The user
of the land demised by the lease which was registered as 196/75, was restricted
to building for residential/kiosk purposes only.<o:p></o:p>In or around 1975,
the patriarch who begat five children: Mawutor Kudzordzi (first plaintiff), and
Frank Kudzordzi (2nd plaintiff), Grace Dowa Kudzordzi Enoch
Kudzordzi and Jacob Kudzordzi, died. Ten years after his death, the defendant
had allegedly failed to pay rent to his children who were the beneficiaries of
his estate. <o:p></o:p>In 1986, upon the
expiry of the term of twelve years demised by the lease, and citing his failure
to pay rent for the use of the land, the plaintiffs served a notice on the first
defendant for him to vacate the premises. When he failed to do so, the
plaintiffs began a representative action for themselves and on behalf of the
other children and beneficiaries of the estate of their late father, seeking
inter alia recovery of possession and damages for trespass for the land. <o:p></o:p>The first defendant
in his pleading averred that although his occupation of the land in dispute was
initially upon a lease granted him by the father of the plaintiffs, the said
latter gentleman ceased to have interest in the land when the Government of
Ghana acquired the land, and acting by the then Chairman of the Lands
Commission: Professor George Benneh, granted a lease thereof for fifty years to
the first defendant in 1979. The lease was registered as No. 3066/1979 at the
Lands Registry. The land he said was re-zoned and marked as a commercial area.
The lease thus referred to the land as Plot No 1. He therefore denied that the lessor
or his successors-in title: the plaintiffs, were entitled to receive rent from
him for his use of the land.<o:p></o:p>With that
pleading, the Lands Commission which had purportedly granted the lease of the
disputed land to the first defendant was joined to the suit as the second
defendant.<o:p></o:p>&nbsp;It was at this point that the Lands
Commission, wrote a letter dated 17th July 1987 to the first defendant
under the hand of one J.O. Sarpong Ag. Lands Secretary of the Lands Commission,
Ho, informing him that the lease made out to him had lapsed as it had turned
out that the Government of Ghana had failed to publish an Executive Instrument
on the purported acquisition contrary to the provisions of the State Lands Act,
Act 125. <o:p></o:p>It was the first
defendant’s case that following this communication, he reverted to paying rent
to the first plaintiff who was the eldest son of his lessor: Franz Kudzordzi.
He alleged that he paid the sum of c192.000 for the period January 1979 and
December 1994 and tendered a receipt exhibit 3, to evidence this. It is worth
noting that the Lands Commission did not take part in defending the suit.<o:p></o:p>