CHARLES QUAYE vs. JOSEPH NII TEIKO AMUZU [2020]DLCA8830

Date	2020-05-27
Suit No.	SUIT NO. H1/72/2019
Citation No.	[2020]DLCA8830

ADJEI J.A

KWOFIE J.A

ASARE J.A

NOEL BREMPONG ESQ. FOR THE PLAINTIFF/APPELLANT DEFENDANT ABSENT

[2020]DLCA8830
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													<main id="main" class="content" style="min-height: 60rem" >CHARLES QUAYE<o:p></o:p>(PLAINTIFF/
APPELLANT)<o:p></o:p>vs.<o:p></o:p>JOSEPH NII TEIKO AMUZU<o:p></o:p>(DEFENDANT/ RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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.
H1/72/2019&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;DATE: 27TH MAY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NOEL
BREMPONG ESQ. FOR THE PLAINTIFF/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DEFENDANT ABSENT<o:p></o:p>

</div>CORAM:<o:p></o:p>ADJEI J.A, KWOFIE J.A, ASARE J.A<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="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>ADJEI,J.A:<o:p></o:p>&nbsp;The Plaintiff sued the Defendant in the High
Court Accra, for an order of perpetual injunction to restrain the Defendant from
interfering with H/No 529/15 Abossey Okai, Accra, recovery of possession of the
property, mesne profits, damages for trespass and cost. The law is settled that
a person who sues a party for recovery of possession and an injunction puts his
title in issue.<o:p></o:p>The brief
facts of the case were that the Plaintiff and his late siblings Adelaide Quaye
and Isaac Quaye applied for the letters of administration of their late mother
Charlotte Adukwei Armah who died on 21st May, 1979. The letters of
administration of the late Charlotte Adukwei Armah was granted by the High
Court, Accra to the administrators including the Plaintiff herein on 14th
February, 1986. The first administratrix Adelaide Quaye was the mother of the
Defendant. The Defendant is a nephew to the Plaintiff. The late Adelaide Quaye
died in 2009. The Defendant asserted ownership to the property in dispute
through his late mother. According to the Defendant the estate of the late
Charlotte Adukwei was distributed and the disputed property devolved unto his
late mother and her brother Isaac Quaye both deceased. He further averred that
the late Charlotte Adukwei Armah had another house Laterbiokorshie Accra which
devolved unto the Plaintiff and his sister Grace Quaye. 
 
<o:p></o:p>The two
issued set down in the application for directions for adjudication were;
whether or not the estate of the late Charlotte Adukwei Armah had been
distributed; and whether or not the Defendant is interfering with the
administration of the estate of the late Charlotte Adukwei Armah. The Plaintiff
testified by himself and did not call any witness. The Defendant testified by
himself and called a witness. The High Court gave judgement in favour of the
Defendant on 17th July, 2013 and declared that the estate of the late Charlotte
Adukwei Armah was distributed and the disputed property devolved unto Adelaide
Quaye and her brother Isaac Quaye. 
&nbsp;The Plaintiff dissatisfied with the judgement of the High Court Accra
delivered on 17th July, 2013 filed a notice of appeal against the judgement on
1st October, 2013. The notice of appeal contained the omnibus ground of appeal
which was to the effect that the judgement was against the weight of evidence
on record. The Plaintiff indicated that additional grounds of appeal may be
filed on receipt of the record of appeal. On 20th June, 2019 the Plaintiff
filed four additional grounds of appeal without leave of the Court below or
this Court. The additional grounds of appeal filed by the Plaintiff and
appeared in pages 92 and 93 of the record of appeal are as follows:<o:p></o:p>“b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge erred when he wrongfully concluded without any basis that
the estate of the late Charlotte Adukwei Ankrah&nbsp;&nbsp; had already been distributed before the
Plaintiffs action was instituted.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge erred when he suo motu raised and held in favour of the
Defendant that the Plaintiff was&nbsp;
estopped by acquiescence from pursuing his action even though the Defendant
had not specifically pleaded any such&nbsp;
estoppel as part of his Defence.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge fell into grave error in his evaluation&nbsp; of the evidence&nbsp; when he 
wrongfully&nbsp; shifted &nbsp;and&nbsp;
saddled&nbsp; the Plaintiff with the
evidential&nbsp; burden of&nbsp; proving positive averments and asertions made
by the&nbsp; Defendant thereby occasioning a
grave miscarriage of justice to the &nbsp;Plaintiffs case.<o:p></o:p>e.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
learned trial Judge fell into grave error when he&nbsp; relied heavily&nbsp; on extraneous matters which had no direct
bearing on the issues set down for determination to decide the matter in favour
of the Defendant thereby occasioning a&nbsp;
grave miscarriage of justice to the Plaintiffs case”.<o:p></o:p> 
From the
evidence on record, Form 6; Plaintiff's written submission and hearing notice
inviting the Defendant to appear in Court to take part in the hearing were
served on the Defendant on different days but he failed to file his written
submission in answer and also failed to appear in Court to take part in the
hearing. We shall proceed to determine the legal effect of the additional
ground of appeal filed in the registry of the High</main>