TISMARK INJA vs. TINA DEHEER AND AMELIA LAING [2020]DLCA9266

Date	2020-06-04
Suit No.	SUIT NO H1/14/2019
Citation No.	[2020]DLCA9266

PAUL K. GYEASAYOR J. A. (PRESIDING)

AMMA A. GAIZIE J.A. AND ERIC K. BAFFOUR J.A

[2020]DLCA9266
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													<main id="main" class="content" style="min-height: 60rem" >TISMARK INJA<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>TINA DEHEER AND AMELIA LAING<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO H1/14/2019&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; DATE: 4TH JUNE, 2020<o:p></o:p>

</div>CORAM:<o:p></o:p>PAUL K. GYEASAYOR J. A. (PRESIDING), AMMA A. GAIZIE
J.A. AND ERIC K. BAFFOUR 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;line-height:115%;
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</div><o:p>&nbsp;</o:p>Baffour J.A:<o:p></o:p><o:p>&nbsp;</o:p>The linear shape that the suit took at the court below
seems to have been upended by the introduction of a fundamental legal point
that has been raised by the Plaintiff/Respondent in his written submissions
before the court. And it appears that both parties contested the case on the
assumption that the H/No 9, 2nd Circular Road, Airport Residential Area,
being the res litiga, was confiscated by the State in 1989. Plaintiff at
this court now submits that the claim he made at the High Court that the
property was confiscated by the State was an error and that the property has
never been confiscated by the State. Defendants/Appellants insists that the Plaintiff
must be confined to his claim and the factual averments he made at the court
below. And that for the court to sustain such a claim being raised by the
Plaintiff will amount to the Plaintiff raising a point of law for the first
time at this court when same had not been pleaded but also the point being
totally contrary to the pleadings of the Plaintiff. It was due mainly to this
fascinating legal point raised, that I felt impelled to express in my own
words, my concurrence to the lead opinion for the dismissal of this appeal.<o:p></o:p><o:p>&nbsp;</o:p>Plaintiff by his amended writ asserted ownership of
H/No 9, 2nd Circular Road, Airport Residential Area, Accra by virtue
of a deed of assignment dated the 27th of June, 1978 between him and
Emmanuel Richard Ofori, who testified for Plaintiff as Pw1. That 1st
and 2nd Defendants came into occupation by virtue of being the wife
and daughter of Group Captain Timothy Laing (deceased) who was first allowed to
occupy the property as a friend and later employed by Remco Shipping Lines in
1982, a defunct company for which Plaintiff was the Managing Director. To
Plaintiff the government confiscated the property in 1989 and it was not until
the 15th of December, 2008 that he was again notified that the
property had been de-confiscated back to him. That with 2nd being
the one in occupation, as 1st Defendant upon the demise of Timothy
Laing has remarried and moved out of the property, 2nd Defendant has
declined to yield possession back to him compelling him to issue the writ. <o:p></o:p><o:p>&nbsp;</o:p>Defendants denied the claim of ownership asserted by
the Plaintiff as they contended that they were beneficial owners by virtue of a
sale for valuable consideration between Remco Shipping Line who had acquired
the property from Pw1, of the one part, and Timothy Laing of the other part.
Defendants then also assumed as a fact that the property was confiscated in
1989 by the State but resisted attempts to evict them from the property by
elements that purported to have acted on behalf of the State. That having
resisted the takeover of the property, any interest that the State had in the
property with the confiscation became extinguished by their adverse possession
and by the Limitations Act, NRCD 54. See paragraph 12 of the amended statement of
defence and counterclaim of Defendants at page 72 of the record. Defendants then
counterclaimed for cancellation of the Land Certificate of Plaintiff and an
order for declaration as owners of the property among other reliefs. <o:p></o:p><o:p>&nbsp;</o:p>After a full trial, the learned trial Judge of the
High Court dismissed the counterclaim of the Defendants and upheld the claim of
the Plaintiff. In his judgment the court below found as a fact that that the
deed of assignment conformed to section 1 of the Conveyancing Act, NRCD 175.
That Plaintiff lost his interest in the property by virtue of a ‘confiscation’
by the State. That by virtue of Ex ‘C’, the government de-confiscated the
property and restored the ownership rights of Plaintiff. Further that
Defendants claim of a sale from Remco Shipping Line to Timothy Laing was
unproven. On the effect of the de-confiscation, the court found that the letter
of de-confiscation was written on the 15th of December, 2008 basing
it on the Confiscated Assets (Removal of Doubt) Law, PNDCL 325 which said law
had been repealed as far back as 1998 by the Statute Review Commission Act, Act
543. That the property upon confiscation was vested in the State and with no
third party interest having been created, so the trial Judge held, that even if
the government could not have based its action on a non-existent law, “fairness
alone requires that the Plaintiff not be made to suffer for the wrong step
taken by the government of Ghana which will be given the opportunity to right
its wrong rather than dismiss the claim”. See page 318 of the record. <o:p></o:p><o:p>&nbsp;</o:p>With the admission by the trial Judge that it was
wrong for the government to have proceeded on a repealed law to purport to
‘de-confiscate’ the property, the Defendants highly piqued by the decision have
attacked the judgment on several fronts including the claim that the court was
bound by the decision of the Supreme Court in the case of THE REGISTERED
TRUSTEES OF AFRIKANIA MISSION V MAJOR QUARSHIE (SUB BY MARY QUARSHIE),
J4/36/2014. <o:p></o:p><o:p>&nbsp;</o:p>