ALHAJI RAUPH IDDRISSU v. GHANA AIRPORTS CO. LTD
2022
COURT OF APPEAL
GHANA
CORAM
- A. M. DOMAKYAAREH (MRS) J. A. PRESIDING
- B. POKU-ACHEAMPONG, J. A.
- S. K. A. ASIEDU, J. A.
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Tort Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arises from a High Court ruling that struck out Alhaji Rauph Iddrissu’s land-trespass action concerning two plots at Akrom, Kumasi, near Kumasi Airport, on the ground that he lacked capacity because the leases bore the names Awudu Rauph Midgyiya and Sofo Iddrissu. The Defendant filed a conditional appearance outside the eight-day period and then moved to strike out under Order 11 rule 18 of CI 47. The Court of Appeal held that conditional appearance is confined to challenges to issue/service or jurisdiction and, once entered, the proper application lies under Order 9 rule 8, not Order 11 rule 18. It further held that vacation time exclusions apply to pleadings, while entry of appearance is not a pleading; the late conditional appearance objection was valid. The court found a denial of justice in the trial judge’s failure to rule on the Plaintiff’s preliminary objection, emphasized that strike-out power is sparingly used, and noted that misnomer does not defeat an action. It set aside the ruling and remitted the matter for trial on the merits.
POKU-ACHEAMPONG, J.A.:
We have before us, my lords, an Interlocutory Appeal against the ruling of a Kumasi High Court dated 17th December 2021.
The facts of the case are quite simple and straightforward. They are in respect of two plots of land near the Kumasi Airport to which the Plaintiff claims ownership and therefore asked for a declaration of title to same, perpetual injunction to restrain the Defendant and a recovery of possession.
In his writ filed on 3/9/21 the Plaintiff claimed the following specific reliefs against the Defendant:
A declaration that the defendant’s conduct in making an ingress and engaging in deep excavation and construction on a portion of the plaintiff’s land known and described as Plot Nos 53 Block “T” and 54 Block “T” Akrom, Kumasi without the knowledge, authority and consent of the plaintiff is trespassory, unlawful and an infraction of the plaintiff’s legal rights as the owner of the said two plots.
General, special, punitive and exemplary damages for the monumental illegality of the defendant.
An order of perpetual injunction restraining the defendant, its agents officials, privies and persons or entities acting on its behalf and/or at its direction from in any manner continuing the patent illegality.
Recovery of possession of the said two parcels of land.
Such further Order(s) the Honourable Court may deem fit.
In addition to the writ the Plaintiff filed a motion on Notice for Interlocutory Injunction against the Defendant Company.
On 13/9/21 the Plaintiff filed a search, the results of which showed that although the Defendant/Respondent had been served with the writ of summons and statement of claim on 3/9/21 it had not entered appearance.
Thus the Plaintiff filed a motion ex-parte for judgment in default of appearance.
The said motion was fixed for hearing on 15/9/21. On the said day the Defendant filed a conditional appearance and on 27/9/21 filed a motion on Notice for an Order Striking out, and /or Dismissing the Plaintiffs suit under Order 11 Rule 18 1(a) (b) & (d) of the High Court Civil Procedure Rules, 2004 (CI 47), and under the Inherent Jurisdiction of the Court.
The Defendant/Respondent’s motion was supported by a 15 paragraph affidavit. The most relevant paragraphs of which are paragraphs 11, 12, 13 and 14 and we quote same in extenso:
“(11) That apart from the fact that Defendant is not in possession of Plaintiff’s land a careful look at the supporting documents proving ownership of the lands in