TONY KWAME BOAKYE vs. PHILIP OSEI PREMPEH [2020]DLCA16222

Date	2020-11-26
Suit No.	CIVIL APPEAL NO.: H1/43/2020
Citation No.	[2020]DLCA16222

ANGELINA M. DOMAKYAAREH (MRS.) J A (PRESIDING)

ALEX B. POKU-ACHEAMPONG J A

SAMUEL K. A. ASIEDU J A

STEPHEN KOOMSON FOR THE PLAINTIFF/RESPONDENT

E. N. POKU FOR THE DEFENDANT/APPELLANT.

[2020]DLCA16222
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													<main id="main" class="content" style="min-height: 60rem" >TONY KWAME BOAKYE <o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>PHILIP OSEI PREMPEH <o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

CIVIL
APPEAL NO.: H1/43/2020&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 26TH NOVEMBER, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>STEPHEN
KOOMSON FOR THE PLAINTIFF/RESPONDENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

E. N. POKU FOR THE DEFENDANT/APPELLANT.<o:p></o:p>

</div>CORAM: <o:p></o:p>ANGELINA
M. DOMAKYAAREH (MRS.) J A (PRESIDING), ALEX B. POKU-ACHEAMPONG J A, SAMUEL K.
A. ASIEDU J A<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
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>&nbsp;DOMAKYAAREH
(MRS), JA:<o:p></o:p>[1]
We have an
appeal by the Defendant/Appellant herein and a cross appeal by the Plaintiff/Respondent
herein against parts of the judgment of the High Court (Commercial Division),
Kumasi, dated 28th May, 2017.<o:p></o:p>[2]
We must say from
the very onset that per the respective Notice of Appeal found at page 558 of
the Record of Appeal and the Notice of Cross Appeal found at page 561 of the
Record of Appeal, both counsel state that they are appealing against the
judgment of the High Court (Commercial Division) Kumasi delivered by Her
Ladyship ANGELINA MENSAH-HOMIAH (MRS) on the 31st day of July 2017.
The Defendant/Appellant stated the same date in his Written Submission filed on
06/07/2020. We have however not found any such judgment dated 31st
July, 2020 in the entire Record of Appeal. The judgment we find which has a
direct bearing on the subject matter of the Appeal is rather dated 28th
July, 2017 and can be found at page 521 et seq of the Record of Appeal. Despite
the erroneous date in the Notice of Cross Appeal by the Plaintiff/Respondent,
his counsel got the date right in his Written Submission filed on 23/07/2020.
This points to lack of diligence on the part of Counsel. As this Court is a
court of record, counsel must be meticulous in the preparations of their court
processes especially with regard to the dates.<o:p></o:p>]3]
The salient
facts leading to this appeal and cross appeal can be stated as follows for the
respective parties:<o:p></o:p>&nbsp;THE
CASE OF THE PLAINTIFF/RESPONDENT:<o:p></o:p>Per an
Amended Statement of Claim pursuant to an Order of the Court dated 11tth July
2012 and found at page 179 of the Record of Appeal, the Plaintiff/Respondent,
herein after referred to as the Plaintiff stated that he is a Ghanaian but
ordinarily resident in the United Kingdom while the Defendant/Appellant, herein
after called the Defendant is also a Ghanaian and also ordinarily resident in
the United Kingdom. He averred that sometime in 1994, the Otibo Family
allocated a Building Plot numbered 8 Asagyabeng Street, Kyirapatre at a place
commonly called Abrewase and Sejaben, Kumasi to him. He averred that he was
issued an Allocation Note and a Site Plan covering the land. He further averred
that in 2001, he sent money to his younger brother with instructions to start
developing the Plot. His brother complied and they started the construction of
a storey building comprising of two flats and a seven-bedroom outhouse. The Plaintiff
further averred that he got a phone call from a friend who is also a neighbour
that someone had razed down the entire structures and upon investigation, he
found out that it was the Defendant who demolished the structures because according
to him the Defendant, the land belonged to him.<o:p></o:p>[4]
The Plaintiff
said he and his Grantor reported the incident to the Police at the Central
Police Station, Kumasi where, upon investigations by the Police the Defendant
produced Documents issued in 2005 in respect of a Plot numbered 6 in the same
area but not Documents on Plot number 8 which is in dispute. The Plaintiff
further averred that after the Police investigations, the Defendant was
arraigned before the Circuit Court in Kumasi and prosecuted for causing
unlawful damage and in the course of the trial, the Defendant pleaded guilty
and was convicted and sentenced. <o:p></o:p>[5]
In his
initial Statement of Claim, the Plaintiff said the value of the structures
demolished by the Defendant was GHC50,000.00 according to an estimate by a
Quantity Surveyor who carried out the survey. The Plaintiff later averred in
the Amended Statement of Claim that a Valuer who was subsequently engaged
assessed the value at GH¢176,315.81. Finally, the Plaintiff’s case is that the Defendant
must be made to pay the full price for his act, wherefore, the Plaintiff
claimed the following five reliefs from the Defendant. namely:<o:p></o:p><span style="font-size:12.0pt;line-height:150%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-weight:bold">a.