DZASETSE EMMANUEL BOYE v. HOTEL KUMBAYA & VENTURES
February 6, 2019
COURT OF APPEAL
GHANA
CORAM
- V.D. OFOE J.A (PRESIDING)
- B.F. ACKAH-YENSU J.A
- I. O. TANKO AMADU J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Contract Law
February 6, 2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Justice I. O. Tanko Amadu, arises from the High Court (Land Division), Accras ruling of 5 June 2015 that set aside a consent judgment entered on 14 May 2011 by Bright Mensah J. The original dispute concerned land covered by Land Title Certificate GA/22/409 and a settlement under which the 1st Defendant/Respondent agreed to pay GH600,000 for 30 acres, with the Plaintiff/Appellant to grant a 99year lease upon full payment. After partial payment, the Respondent faced a separate suit in the High Court, Koforidua (Suit No. CI/58/14) by Nii Adjetey Mensah Oblie on behalf of the Ayi Mensah Stool, seeking injunctive relief over the same land. The Accra High Court set aside the consent judgment by motion, rather than fresh action, citing substantial justice. On appeal, the Respondent filed no submissions. Justice Tanko Amadu, with Ofoe JA (Presiding) and AckahYensu JA concurring, held that given the judicially noticeable pendency of the Koforidua proceedings undermining the consideration, substance over form permitted setting aside by application, and dismissed the appeal.
TANKO AMADU J.A
(1) This appeal lies from the ruling of the High Court (Land Division) Accra dated the 5th day of June, 2015. The crucial issue for determination in the appeal is not novel. It turns on whether or not the Court below acted correctly when upon application by the Respondent herein, it proceeded to set aside the consent judgment of the parties founded on their terms of settlement.
(2) BACKGROUND FACTS:
The facts giving rise to this appeal are not in dispute. They have been adequately set out by the Trial Court in its ruling on appeal. For purposes of a better appreciation, I will set out the background facts in brief. In Suit No.FAL/95/10, at the Court below the Plaintiff/Appellant (hereinafter referred to in this judgment as the ‘Appellant’) sought to recover from the 1st Defendant/Respondent the following reliefs:-
(i)Recovery of possession of land being part of the land covered by
Land Title Certificate No.GA/22/409 trespassed by 1st Defendant.
(ii)An order expunging the registration of the lease dated 14th
November 2007 registered at Koforidua as Deed Number EA/5135 and serial Number 1045/2008.
(iii)A perpetual injunction restraining the Defendants, their servants,
assigns and whatsoever from entering upon, dealing with, or interfering in any manner with land subject matter of Land Title Certificate Number GA/22409 and or Plaintiff’s enjoyment thereof.
(iv)Damages.
(3) By a process intituled “Terms of Settlement” filed on 6/5/2011 the Appellant and Respondent herein at the close of pleadings, sought to settle the dispute on their own terms. In the said terms of settlement, the parties had in the closing paragraph bound themselves as follows:-
“That this agreement shall be adopted by the Honourable Court as Terms of Settlement herein and judgment entered in the aforementioned suit accordingly. That by the said judgment any registration at the Lands Commission, Koforidua Eastern Region, of the land covered by the Land Certificate GA/22409 shall be expunged”.
(4) The said terms were adopted by the High Court per Bright Mensah J. on 14/5/2011 as the consent judgment of the parties themselves. It was alleged that the Respondent refused or failed to discharge its full obligations under the consent judgment. Consequently, the Appellant herein took steps to execute the judgment by seeing to attach the movable and immovable properties of the 1st Respondent.
(5) By notice of motion at the instance of the Respondent filed on 6/2/2015, (