DR. ARTHUR OTOO CHINERY v. I-SIBIE COMPANY LTD & ORS
2018
COURT OF APPEAL
GHANA
CORAM
- MARFUL SAU (J.S.C) PRESIDING, E. K. AYEBI (J.A), AVRIL LOVELACE-JOHNSON (J.A)
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involves an appeal against a High Court ruling denying the setting aside of a default judgment regarding a land dispute. The Appellant argued improper service and procedural errors. The Court of Appeal found the default judgment process was flawed and did not follow procedural requirements in leading evidence, thus setting aside the judgment. The Court referenced several cases and statutory provisions, reiterating the need for proper service and evidence-based decisions in declaratory reliefs.
JUDGMENT
AVRIL LOVELACE-JOHNSON (JA):
This is an appeal against the ruling of the High Court dated 7thJune 2016 on the following grounds:
1. The Ruling is against the weight of evidence
2. The Default Judgment being a nullity should not have been allowed to stand
3. The judge erred in even considering the evidence of the bailiff and should have disregarded his evidence for proving service three years after the fact
4. The learned judge’s findings that there was evidence of the land having been transferred to third parties is not borne out of the record
5. The learned judge erred in dismissing the application when the suit had not even commenced and there were 8 other parties in the suit.
6. Further grounds to be canvassed upon the receipt of the record of proceedings
Contrary to the indication in the notice of appeal no additional grounds of appeal were filed.
The facts of this case are that the Plaintiff/Respondent (to be referred to simply as Respondent hereon) issued a writ on 26th August 2011 against the Defendant/Appellant (to be referred to simply as Appellant hereon) and eight others for the following reliefs:
i. Declaration of title to or in the alternative Declaration that the Awura Naa Hansen family through their ancestors and predecessors are the owners in possession of all that large tract of land situate at Accra called the plantation, formerly known as Katakpor and now Katapor land situate in Accra measuring 1,588.37 acres (635 hectares) bounded on the North by Faase family land measuring 39,078 feet more or less on the South and South-East by Kwabenya land measuring 211,345 feet more or less on the South-West by Ankrah and Abesse Pokuase Family lands measuring 9,709 feet more or less and on the North-East by Bodumasi family land measuring 31,661 feet more or less more particularly delineated on a site plan drawn on compass but now re-surveyed and drawn according to national co-ordinates by the survey Department of Ghana and therefore now has a total area of 988.21 acres (399.93 Hectares).
ii. Recovery of possession to all the portions of Awura Naa Hansen family land being developed by all the Defendants their servants, agents and assigns or persons claiming through or in trust for them.
iii. Damages for trespass.
iv. Mandatory injunction compelling the Defendants to remove or demolish all the structures they or their servants, agents or assigns or persons claiming through or in trust for them have built on AwuraNaa Hansen