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January 21, 1991
HIGH COURT
GHANA
CORAM
JUDGMENT OF ACQUAH J.
This is an ex parte application for writ of possession to issue to enable the applicant, in whose favour this court allowed this appeal against the judgment of the District Court Grade II, Anloga, to obtain possession of the land which was the subject matter of the suit. Such an application involves a consideration of the scope of the jurisdiction of the High Court in granting writs of possession in execution of its judgments delivered in exercise of its appellate jurisdiction.
But first, the background of this application. The applicant took out a writ of summons at the District Court Grade II, Anloga against Kwami Kusaga Datsomor, as defendant, claiming:
"(a) The plaintiff's claim against the defendant is for a declaration of title and ownership to all that piece or parcel of farmland known as 'Tsotso Dzi Farmland' at Gbakute/Anloga and bounded as follows: On the east by the property of Shimatsonu; on the west by the property of Gbewordi Goku; on the south by the Anloga Durbar grounds; and on the north by the Anloga Lagoon.
(b) ¢25,000 damages in lieu thereof."
Kwami Kusaga Datsomor also counterclaimed for title, general damages and perpetual injunction. The district court dismissed the plaintiff's claim and entered judgment for the defendant on his amended counterclaim for a third share of the land in dispute.
The applicant herein being dissatisfied with the said judgment appealed to this court, and on 18 October 1990 I allowed the appeal, set aside the judgment of the trial district court and entered judgment for the applicant in the following words:
“Accordingly in view of the manifold inconsistencies in the case of the defendant who counterclaimed, vis-à-vis the consistent and sufficient evidence of the plaintiff and his witness in support of the latter's case, I am unable to order a retrial but to allow the appeal, set aside the judgment entered in favour of the defendant and in place thereof enter judgment for the plaintiff for a [p.77] declaration of title and ownership of his family to the land in dispute.”
Following the above judgment the applicant has filed the instant application supported by an affidavit in which he avers:
“I, David Kofi Togobo of Anloga make oath and say as follows:
1 I am the plaintiff-appellant-applicant and deponent herein.
2 By a judgment of the High Court, Ho presided over by his Lordship Acquah J. dated 18 October 1990, I was declared owner of all that piece or parcel of land situate
AI Generated Summary
In the High Court at Ho, Acquah J addressed an ex parte application by David Kofi Togobo seeking a writ of possession after he had succeeded on appeal against a District Court Grade II decision from Anloga. Togobo had sued Kwami Kusaga Datsomor over the Tsotso Dzi Farmland at Gbakute/Anloga, delineated by boundaries including the properties of Shimatsonu and Gbewordi Goku, the Anloga Durbar grounds, and the Anloga Lagoon. The district court dismissed Togobo’s claim and awarded Datsomor a third share, but on 18 October 1990, the High Court set aside that judgment and declared title in Togobo’s family. In his subsequent motion, Togobo sought possession, asserting the defendant would not vacate without compulsion. The court held that Order 47, r.1 of the High Court (Civil Procedure) Rules authorizes writs of possession only where the court’s judgment expressly orders recovery or delivery up of possession. Citing Mosi v. Bagyina, the court emphasized that, in appellate proceedings, writs issue only if the appellate court itself orders possession. Because the appellate judgment declared title but did not order possession—and possession was not sought below—the application was incompetent and dismissed without costs.