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
- Property and Real Estate Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In this Ghana Court of Appeal decision authored by Dennis Adjei, JA, the administrator of the estate of the late Malam Musah challenged a High Court, Accra order striking out his suit over title to 0.32 acres within a larger 275.437-acre tract. The defendants had previously obtained judgment in Suit No. L92/97 concerning the same 0.32 acres. After entering conditional appearance, they moved under Order 11 rule 18(1) of C.I. 47 to strike out the pleadings, which the High Court granted, characterizing the new case as an attempt to re-try L92/97 and noting the pending appeal in that case. On appeal, Adjei, JA held the strike-out motion was procedurally proper because the conditional appearance had lapsed, but he determined the High Court erred by treating refusal of joinder as res judicata, by misusing the retrial label, and by failing to satisfy the res judicata test and require the full record of the earlier suit. He set aside the High Courts decision and remitted the matter for trial. Appau, JA and Ayebi, JA concurred.
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