AKYER v. GHANA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHER

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

[His lordship stated the facts as set out in the headnote and continued:] Now before passing on to the trial and considering, the evidence which was adduced by the parties and the trial judge's findings and ultimate decision, it seems to me to be necessary to ascertain and be precise about, the material allegations on which the plaintiff based or founded the reliefs claimed, which allegations, of course, are those which he had to establish by his evidence. As to this, undoubtedly one material allegation which the plaintiff pleaded as entitling him to the reliefs he claims was the judgments delivered in an action which his family instituted against the second defendant for a declaration of title to the premises in dispute. It is clear, however, that proof of the judgments does not entitle the plaintiff to the reliefs sought against the first defendants, because the first defendants had acquired rights from the second defendant, before the commencement of the action against the second defendant in which the first defendants were not parties, which resulted in the judgment against the second defendant. That is the decision of the learned trial judge who referred to the relevant authorities: the English case of Mercantile Investment and General Trust Company v. River Plate Trust, Loan, and Agency Company,1 Abbey v. Ollennu,2 a local case, and Okunubi v. Assaf,3 a Nigerian case; and it cannot be disputed that, on the premises that that which the plaintiff relied on to establish his case was the judgments pleaded only, as was undoubtedly the case so far as the second defendant was concerned, the learned judge's decision was correct and sound.

It is argued however that the plaintiff averred in paragraph 1 of his statement of claim that, "the leasehold property on plot No. N.T.E.R. 134, Kumasi, was built by members of the plaintiff's family including the second defendant," and therefore founded his claim to the declaration sought in the writ on that allegation. It is a possible view, so let it be accepted.

In that case note has to be taken of the fact that the allegation was expressly denied by the first paragraph of the statement of defence in the following terms: "Save as is hereinafter expressly admitted defendants deny each and every allegation of fact contained in the plaintiff's statement of claim as if the same is set out in detail and traversed seriatim." It is then contended that the plea in that form offends against