CHRISTIANA APEKE v. OSEI KARIKARI
2021
COURT OF APPEAL
GHANA
CORAM
- CECILIA H SOWAH, JA (PRESIDING)
- ANTHONY OPPONG, JA
- ANGELINA MENSAH-HOMIAH, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Anthony Oppong, JA, writing for the Court of Appeal, allowed an appeal from the High Court, Koforidua, which had struck out allegations of fraud and lack of jurisdiction pleaded in a Reply and Defence to Counterclaim in a land title dispute over plot No. 187. The appellant asserted she lawfully re-granted the land through a lease granted by the Eastern Regional Lands Commission, acting for the Government of Ghana in trust for the Stool of New Juabeng, signed by Chairman Kofi Dankwa Osei, after initially purchasing from Madam Doris Baah. The respondent relied on a Court of Appeal judgment in Suit No. H1/22/2018 (Osei Karikari v. Kwame Addo & 2 others) and a High Court writ of possession issued by Justice Barbara Ward Acquah, contending actions on the land were by the Sheriff and police. The Court of Appeal held that under C.I.47 the plaintiff could specifically answer the counterclaim by alleging fraud, that such pleading was not a prohibited departure under Order 11 Rule 10, and that a rejoinder—with leave—permits response. The High Court’s ruling was set aside and the matter remitted.
ANTHONY OPPONG, JA:
This is an appeal by the plaintiff/appellant against the ruling of the High Court, Koforidua delivered exactly one year ago; that is on the 16th day of December, 2020. The ruling which is the subject of this appeal can be found at pages 61-66 of the Record of Appeal (ROA).
In the said ruling, the learned High Court judge expressed the opinion that fraud ought not be allowed to be alleged in a Reply And Defence to Counterclaim.
Now to the facts of the case: On the 8th day of May 2020, the plaintiff/appellant (hereafter to be referred to simply as plaintiff) sued the defendant/respondent (also to be referred to simply as defendant hereafter) for declaration of title to a piece of land known as plot No 187; general damages for trespass; special damages of GHC1,500.00 for the destruction of plaintiff’s platform on the land and perpetual injunction.
The case of plaintiff as pleaded is that she bought the land from one Madam Doris Baah of Effiduase but later learnt that the land forms part of Koforidua lands which are vested in the Government of Ghana in trust for the Stool of New Juabeng. She averred that upon this discovery and advice, she applied to the Eastern Regional Lands Commission for the allocation of the land to her. In other words, she sought re-grant of the land to her. Subsequently, by a lease dated 19th day of September, 2019, the Eastern Regional Lands Commission acting for the Government of Ghana through the Chairman, Kofi Dankwa Osei granted the land to her. She averred further that she thereupon started developing the land by constructing a foundation platform on the land.
Plaintiff averred that in March 2020, defendant and his nephew unjustifiably violated her possession and ownership of the land and actually destroyed a portion of the foundation.
As would be expected, the defendant entered appearance and filed a statement of defence.
Of course, he denied the material averments of plaintiff and made a claim of ownership to the disputed land. He in turn alluded to his root of ownership of the land, the details of which I consider irrelevant to mention in this delivery save the part that alluded to a writ of possession he claimed he obtained in respect of a case that ended at the Court of Appeal.
Defendant averred that the Court of Appeal in Suit No. H1/22/2018 intituled Osei Karikari versus Kwame Addo And 2 others declared him better entitled to the disputed land. Based on the said Court of Appeal judgment, the defe