O’SVAN-BOYE LIMITED v. DAVID KOJO ANAGBO
2022
COURT OF APPEAL
GHANA
CORAM
- MARGARET WELBOURNE JA PRESIDING
- P. BRIGHT MENSAH JA
- J. ADJEI FRIMPONG JA
Areas of Law
- Civil Procedure
- Evidence Law
- Corporate Law
- Property and Real Estate Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
O’SvanBoye Limited appealed from the Accra High Court (Land Division) after its land action was struck out for want of capacity despite the 1st defendant, David Kojo Anagbo, admitting in his defence that O’SvanBoye was a duly incorporated company and the lawful lessee of the disputed Nungua New Town parcel. Writing for the Court of Appeal, P. Bright Mensah JA held that issues must emanate from pleadings and admitted facts need no proof, so capacity was not a live issue; the High Court’s approach caused a miscarriage of justice. On a rehearing of the record, the appellate court found the appellant’s title established and the respondent’s counterclaim unproven. The court set aside the High Court’s judgment, decreed title in O’SvanBoye Limited, ordered recovery of possession, granted a perpetual injunction, canceled the impugned deed of assignment of 1 September 2014, and awarded costs of GH¢15,000, with the Lands Commission taking no active part.
BRIGHT MENSAH JA
The instant appeal arises from the judgment of the Accra High Court [Land Division) delivered 14/03/2018 found on pp 334-341 of the record of appeal [roa]. Being dissatisfied, the plaintiff/appellant has mounted the instant appeal against the said judgment on the following grounds:
a. That the trial High Court Judge erred in law which occasioned a
miscarriage of justice to the plaintiff/appellant when she struck
out the plaintiff/appellant suit for want of capacity.
b. That the trial High Court Judge erred in law which occasioned a miscarriage of justice to the plaintiff/appellant when she failed to
appreciate the position of the law that the 1st defendant/respondent
having presented a document for registration he claim to have given to him by the plaintiff/appellant or the 1st defendant/respondent having claimed to have dealt with the plaintiff/appellant is an admission of the existence of the plaintiff/appellant and for that matter the plaintiff/appellant have capacity to institute the instant action before the trial High Court.
See: pp 342-343 [roa].
Now, pursuant to leave of the court on 19/11/2019, the plaintiff/appellant filed an additional ground of appeal that is to say:
c. Judgment is against the weight of evidence.
Writ of summons:
Per the writ issued in the registry of the lower court on 28/11/2016, the appellant claimed against the respondents, as appearing on pp 1-2 [roa], the following:
1. A declaration of title to all that piece or parcel of land situate, being
and lying at Nungua New Town also known as New Batsonaa also
known as Cambodia near Accra in the Greater Accra Region of
Republic of Ghana and containing an approximate area of 8.466
hectares or or 20.919 areas on survey plan number 25695 and
covered by land certificate no. TD0082 Volume 019 Folio 49 dated
9/9/1995.
2. Recovery of possession.
3. Perpetual injunction.
4. An order directed at the 1st defendant to remove therefrom all
structures or fence wall illegally constructed on portions of plaintiff’s
piece of parcel of land without its consent and permission, failure of
which plaintiff is to be authorized to remove same and surcharge
1st defendant with expenses involved.
5. An order setting aside or for cancellation of the said purported deed
of assignment dated 1/9/2014.
Upon being served with the writ and statement of claim that accompanied it, the respondents entered their respective appearance to the claim.
Counterclai