ALPHA MUSA v. MRS. MATILDA OBO-NAI & NII ANYETEI OBO-NAI
2012
COURT OF APPEAL
GHANA
CORAM
- Appau, JA – Presiding
- Ayebi, JA
- Adjei, JA
Areas of Law
- Civil Procedure
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On November 9, 2007, the High Court Accra dismissed the plaintiff's suit seeking a declaration of title to a portion of an estate. The plaintiff appealed, challenging the High Court's rulings on multiple grounds, including procedural issues related to conditional appearances and res judicata. The appellate court found that the defendants' conditional appearance had become unconditional after 14 days, making their subsequent application to strike out valid. However, it held that the High Court erred by treating the refusal to join the plaintiff to a previous suit and other procedural misinterpretations as bases for dismissal. The appellate court set aside the High Court's decision and remitted the case for a proper hearing.
DENNIS ADJEI,J.A.:
On 9th November, 2007, the High Court Accra struck out the suit instituted by the plaintiff/appellant herein on several reasons. The plaintiff/appellant dissatisfied with the ruling filed an appeal against same on 29th November, 2007.
The brief facts of the matter were that the plaintiff/appellant herein (who would be described in this appeal as plaintiff) instituted an action against the defendant/respondent (who would be referred to in this appeal as defendants) in the High Court, Accra for, inter alia, A declaration of title to an area of 0.32 acres which forms part of a large track of land covering an area of 275.437 acres. The plaintiff instituted this action against the defendants in his capacity as the administrator of the estate of the late Malam Musah. The defendants entered conditional appearance to the plaintiff’s writ of summons on 23rd May, 2007. On 19th June, 2007 the defendants filed an application under Order 11 Rule 18(1) of the High Court (Civil Procedure) Rules C.I. 47. The basis for the defendants application was that ownership to the land covering an approximate area of 0.32 acre was heard by the High Court differently constituted and a judgment was given in their favour and the plaintiff’s action constitutes an abuse of the process of the court. The High Court on 9th November, 2007 dismissed the plaintiff’s action for constituting an abuse of the judicial process.
The five (5) grounds of appeal filed by the plaintiff are as follows:
“i. The judge erred when he held that the High Court’s refusal to join the plaintiff/appellant to suit No L92/97, the plaintiff/appellant cannot be said to have been over reached by the final decision in that suit.
ii. The Judge erred in law when he held that plaintiff’s writ was an attempt to retry suit No. 92/97.
iii. The Judge erred in law when he held that the plaintiff/appellant’s writ was an abuse of the process of the court.
iv. The judge erred in law when he held that because the judgment in Suit No. L 92/97 is on appeal before the Court of Appeal, the plaintiff/appellant’s writ is an abuse of the court.
v. The judge erred in law when it granted the defendants/applicants/respondents application even though they entered a conditional appearance and were limited as to what steps could be taken”.
The plaintiff in arguing ground (V) of his appeal submitted that where a person enters conditional appearance, there are prescribed acts that the person may do and those acts do no