May 10, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Plaintiff, a spare parts trader at Suame, Kumasi, claimed entitlement to store No. 12 in a uniform store complex constructed adjacent to St. Joseph R.C. J.S.S., because it lay behind the site of his former kiosk. The traders’ loose union authorized the 1st defendant to build the complex, funded by contributions of ¢9 million per person. Plaintiff paid ¢4 million by 1 December 1999 and attempted to tender the remaining ¢5 million later that month, but store No. 12 had already been allocated by the 2nd defendant, Gabbat Company Ltd, to the 3rd defendant, Andrews Afriyie, under a long-term tenancy. Plaintiff rejected an alternative store or refund and sued for declaration, possession, damages, and injunction. The High Court resolved that contributors were required to pay promptly and that allocation behind prior sites was not guaranteed, dismissing the suit. On appeal, Ayebi JA held that the tender was properly refused because the store had been allocated and plaintiff had not fully paid; allegations of fraud were unpleaded; new issues from settlement terms could not be raised on appeal. The Court of Appeal affirmed the High Court and dismissed the appeal, with Torkornoo JA and Domakyaareh JA concurring.
AYEBI, JA
1. This an appeal by the Plaintiff against the judgment of a Kumasi Fast Track High Court dated 28th May, 2013.
Originally, the Plaintiff sued the 1st Defendant alone for the following reliefs:
(a) A declaration that he, being the original allotee of the plot of land marked out as Plot No. 11 located on the grounds of St. Joseph R.C. J.S.S, Suame and which plot was meant for the construction of stores, the Defendant has no right to arbitrarily wrongly allocate the said store to another person, so as to deprive the Plaintiff of its use.
(b) Recovery of possession of the said space or plot or any store built on the said plot No. 11
(c) Damages for trespass
(d) Perpetual injunction
2. The Plaintiff pleaded that he, the 1st defendant and other traders and artisans were doing business on portions of the St. Joseph Roman Catholic J.S.S land allocated to them by the school. To promote their welfare, they formed a loose Union of which he and 1st defendant were executive members. As a result of their appeal, the school authorities permitted them to put up permanent structures on the portions they each occupied.
3. In order that the structures they will put up will be uniform, 1st defendant decided to undertake the construction. They all agreed to contribute ¢9 million each towards the construction. It was also agreed amongst them that each person will occupy the store at the space or land immediately behind the location of his kiosk or container.
4. The plaintiff says he paid a total sum of ¢4 million by installment and during the Christmas holidays he tendered the balance of ¢5 million to the 1st defendant. The 1st defendant refused to accept the balance because he had re-allocated the store on plot No.11 which is behind his kiosk to another person. When his protests failed, he sued the 1st defendant.
5. In his statement of defence, the 1st defendant denied that the land on which the stores were built belonged to the St. Joseph Roman Catholic J.S.S. Rather, the land is a lease from the Republic of Ghana to Gabbat Company Limited and it was the company which collected money from the other tenants to complete the stores when all attempts to get the plaintiff to pay the balance of ¢5 million failed. But in a reply filed by the plaintiff, he challenged the formation of the Gabbat Company Limited and the leasing of the land to her as fraudulent. It was these allegations of impropriety which made the company applied to be joined to the suit to c