COMFORT ASOGBA v. NII LARYEA BOTWE II & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- DENNIS ADJEI, JA –PRESIDING
- JENNIFER A, DODOO, JA
- GEORGE KOOMSON, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Jennifer A. Dodoo JA authored the Court of Appeal’s decision setting aside an interlocutory default judgment entered by the High Court in a land dispute involving the Nungua Stool, its grantee, and a female defendant. The Appellant claimed she purchased the parcel decades earlier from the Chief of Lashibi, later confronted by persons from the Nungua Traditional Area; she paid GH20,000 to the Nungua Traditional Council to regularize and then learned the land was within TDC’s domain, where TDC began processing her regularization. The Respondents sued for declaration, ejection, injunction, trespass damages and costs. Applying Order 13 rule 8 of CI 47 and precedents (Agyeman, Botchway, Duncan), the Court found she disclosed a reasonable defense, it would be unjust to leave the case unadjudicated, and the trial judge erred factually and in principle. The appeal was allowed, defense ordered within seven days, and the suit remitted for trial on the merits.
DODOO, J. A. (MRS)
The Plaintiff/Respondent’s claim against the Defendant/Appellant was for the following:
A declaration that the Wulomo and others who purportedly allocated the land in dispute described herein in the statement of claim to the defendant have no capacity to alienate Nungua Stool Lands.
An Order for ejection and recovery of possession against the defendant in respect of the land described in the statement of claim.
An order of perpetual injunction against the Defendant, her agents, assigns, workmen, personal representatives or any person whomsoever from going unto the land and undergoing any form of activity on the land.
Damages of trespass to the land.
Costs.
The Defendant/Appellant was served with the processes by substituted service (i.e. newspaper publication (see pp. 38, 39, 44, 45, 47 & 48 of the ROA). On 21st February, 2018 Interlocutory Judgment was entered against the Defendant and the matter adjourned to 10th April, 2018 for the Plaintiffs to adduce evidence to establish their declaratory relief and for assessment of damages.
The Defendant thereafter filed an application to set aside the interlocutory judgment and for leave to file a defence out of time. (See p. 51 of the ROA). In her affidavit in support of her application found at pp 52-53 of the ROA, the Defendant stated that she had no notice of suit as the processes were never brought to her attention. Indeed, she stated in paragraph 9 of her affidavit in support of her application that her caretakers on the land were illiterate and did not appreciate the nature of the processes posted and therefore did not bring them to her notice. She also further deposed to the fact that it was her vendor, the TDC, which brought the processes to her notice and that she took steps to engage the services of a lawyer. She attached a proposed statement of defence (see p. 55 of the ROA).
The trial judge declined to set aside the interlocutory judgment saying that no useful purpose would be served if the interlocutory judgment is set aside.
In her notice of appeal (see p. 67 of the ROA), the following grounds were set out:
The learned judge committed an error of fact when he held that although Defendant/Applicant/Appellant claims to have obtained the disputed land from TDC, yet she admits that the land is for Nungua Stool.
The learned judge erred when he held that no useful purpose would be served if the interlocutory judgment is set aside.
The ruling is against the weight of evidenc