JAMES DUGBATEY KWAKU vs. JOHN AMOO QUAYE [2019]DLHC8963

Date	2019-07-31
Suit No.	SUIT NO: FAL/497/2019
Citation No.	[2019]DLHC8963

ALEXANDER OSEI TUTU J. (SITTING AS A JUSTICE OF THE HIGH COURT)

NOAH ASAMANY LAWYER FOR THE PLAINTIFF

KWEKU NYAMEKYE AIDOO LAWYER FOR THE DEFENDANT

[2019]DLHC8963
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													<main id="main" class="content" style="min-height: 60rem" >JAMES DUGBATEY KWAKU<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>JOHN AMOO QUAYE<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (LAND DIVISION 5), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: FAL/497/2019&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 31ST JULY,
2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NOAH ASAMANY, LAWYER FOR THE
PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWEKU
NYAMEKYE AIDOO, LAWYER FOR THE DEFENDANT <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;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">ALEXANDER
OSEI TUTU J. (SITTING AS A JUSTICE OF THE HIGH COURT)<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;
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</div><o:p>&nbsp;</o:p>This Court delivered Judgment on
Wednesday the 10th day of July 2019. Counsel for the Defendant
applied for a review of the Judgment on 16th July 2019. What
triggered the application is that although the Counsel for the Defendant filed
his written address, it was not put on the Court’s docket and it is the view of
the Defendant that had the Court looked at the said address, the decision of
the Court would have been different. The main issue canvassed in the
application was that the Plaintiff’s action is statute-barred and same is
affected by the issue of limitation, laches and acquiescence.<o:p></o:p>I have carefully looked at the address
of the Defendant and considered the said issues of limitation, laches and
acquiescence. I am surprised the Defendant is crying over spilt milk, when he
has no reason to do so. He counterclaimed at paragraph 19 of his Statement of
Defence and Counterclaim for the recovery of possession of the room in his
family house. <o:p></o:p>The Plaintiff and his wife occupied
this room in 1983 around the same period the Defendant also occupied the
Plaintiff’s land. The Defendant pleaded that his demand for the room in his
family house was conditional and premised on the Plaintiff recovering his land.
For ease of reference, let me refer to the relevant portions of the Defence for
its full effect:<o:p></o:p>“(11)
The issue of the sale of land came as a shock to the Defendant as he had
already performed the customary ‘aseda’ to the Plaintiff in the presence of
witnesses.<o:p></o:p>(12)
The Defendant in response then told the Plaintiff the Defendant was also going
to charge the Plaintiff rent for the over twenty one years that he had occupied
his room at the family house as well as the various loans the Plaintiff had
collected from the Plaintiff totalling GH₵2,000.00 which the Plaintiff had failed
to pay back as a set off. That was where the discussion ended. There was no
promise by the Defendant to pay any sum of GH₵850.00.”<o:p></o:p>In
the Defendant’s witness statement, he made the same point that the Plaintiff
mentioned selling the land to him for the first time in 2004 and continued:<o:p></o:p>“(18)
I told the Plaintiff that if he was reneging on the gift he himself had
voluntarily made to me and for which I had given ‘aseda’ then he should also in
turn pay rent for the occupancy of my room at the family house at Chorkor from
1983 …” <o:p></o:p>Where did this issue about the
Plaintiff’s occupation in the Defendant’s family house come from? That house
was not part of the Plaintiff’s case in his Statement of Claim. It was
introduced by the Defendant linking it to the Plaintiff’s land to him. What now
makes the Defendant thinks that his action for recovery of possession from the
Plaintiff is not statute barred, but the Plaintiff’s action is rather
statute-barred? The facts herein are instructive that the Defendant
acknowledged that the Plaintiff could recover the land hence his threat to
recover h</main>