WESTERN HARDWOOD LTD. v. GEORGE ABUSU MANTEY & ANOTHER

DENNIS ADJEI, J.A.

On 20th February, 2009, the Circuit Court Takoradi granted leave to the Co-Defendant/Appellant herein to appeal against its decision to set issues IV, V and VI contained in the application for Directions filed on 2nd December, 2008 down for legal argument. The Co-Defendant/Appellant filed his appeal against the ruling dated 20th February, 2008 and on 3rd March, 2009.

The brief facts of the case are that the Plaintiff instituted an action against the Defendant for general damages for trespass, perpetual injunction and recovery of possession. On 4th March, 2008 the Co-Defendant herein applied to the court to be joined to the suit as Co-Defendant. On 12th March, 2008 the trial Circuit Court joined the Co-Defendant to the suit. The Writ of Summons was not amended, the Co-Defendant did not enter appearance but filed Statement of Defence.

At the application for direction stage, the trial Judge set down three issues for legal argument. The Co-Defendant being dissatisfied with the decision by the trial court to set down issues IV, V and VI for legal argument filed the instant appeal.

The three grounds of appeal contained in the Notice of Appeal are:

a. “The trial court erred in law in setting down issues IV, V, and VI contained in the application for directions for legal argument when it was on the face of the purported terms of settlement and by virtue of paragraph 3 of the Amendment Statement of Defence and Counter-Claim of the Co-Defendant that the title of the suit which went before the Court of Appeal and Supreme Court is different from the title of the purported terms of settlement.

b. That the trial court erred in law when it failed to take into consideration in the ruling the fact that the exact location of the land in dispute and the land claimed by the Co-Defendant was yet to be established by evidence having regard to the two separate pieces of land claimed by the Plaintiff as per paragraphs 2, 3, 4, 5 and 6 of the Plaintiff’s Amended Statement of Claim.

c. That the trial court erred when it failed to advert its mind to the fact that legal argument can only be based on settled facts.”

Before discussing the grounds of appeal, I would like to address the capacity of the Co-Defendant in the instant appeal. For a party to file an appeal in a suit, the person must have capacity else he cannot be heard on the merits even if his case is an iron case one. In the case of Sarkodie I Vs. Boateng II [1982-83] GLR 715, the Supreme Court