Try asking the following...
Try asking the following...
July 24, 1972
HIGH COURT
GHANA
CORAM
JUDGMENT OF ABBAN J.
The defendant in this action applied under Order 25, rr. 2 and 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and under paragraph 85 (2) of the Courts Decree, 1966 (N.L.C.D. 84), for an order dismissing the suit on the ground that “the plaintiff has no right of action and his claim herein is vexatious and cannot be reasonably supported.”
Notice of application was given as far back as 13 February 1971. At that time the N.L.C.D 84 was in existence. But the said Decree 84 has now been repealed by the Courts Act 1971 (Act 372). I will therefore take it that this application proceeded under Order 25, rr. 2 and 4 only.
The plaintiff's claim is for a declaration of title and perpetual injunction in respect of a piece of land situate and lying at a place known as Opete Kpakpo, located at the north-western side of Abossey Okai, Accra. The amended statement of claim filed on 18 May 1971, alleged as follows:
“(2) During his lifetime one Robert Anyai Yaotey (deceased) was a member of the said Onamansuro family and acquired the land described in the schedule infra as his self-acquired property.
(2a) The said Robert Anyai Yaotey (deceased) was a subject of the Akumajey stool.
[p.249]
(3) The acquisition of the land by Robert Anyai Yaotey (deceased) is evidenced by a document registered in the Ghana Deeds Registry as No.1061/1945 and dated 24th December, 1945, and executed in favour of the said Robert Anyai Yaotey (deceased).
(4) The said Robert Anyai Yaotey died intestate in Accra on 18th day of January, 1961 and the land the subject-matter of dispute became family property.
(5) During his lifetime the said Robert Anyai Yaotey exercised open acts of ownership on the said land without let or hindrance from any quarter whatsoever.
(6) The defendant is asserting adverse title to the said land by collecting rents from the tenant on the land.”
In his statement of defence, the defendant dispute the title of the plaintiff and denied practically all the averments contained in those paragraphs of the statement of claim to which I have just referred. The defendant further contended that he is the owner in possession. Paragraphs (3) to (6) of his statement of defence filed on 13 June 1966, stated as follows:
“(3) The defendant denies paragraph (2) of the statement of claim and will put the plaintiff to strict proof of the allegation.
(4) In answer to paragraphs (4), (5) and (6) of the plaintiff's statement of claim de
AI Generated Summary
Abban J of the High Court considered a motion by the defendant under Order 25, rr. 2 and 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954, originally also citing paragraph 85(2) of N.L.C.D. 84, to dismiss a land title action concerning a plot at Opete Kpakpo near Abossey Okai, Accra. The claimant traced title through the late Robert Anyai Yaotey, a subject of the Akumajey stool, based on a 1945 deed (No.1061/1945). The defendant argued that prior judgments—Nii Ayikai II, Akumajey Mantse v. Nii Abossey Okai II (affirmed by the Privy Council) and Emmanuel Mensah Blankson v. R. A. Tagoe—barred the claim by estoppel, urging dismissal without evidence. The claimant responded that Yaotey’s grant, as a subject of the victorious Akumajey stool, meant those judgments did not defeat his title. Emphasizing that courts must confine themselves to pleadings and that estoppel must be pleaded, Abban J held the application was misconceived. He directed the case should proceed to evidence on the agreed issues of title and entitlement and dismissed the application with costs.