DZASETSE EMMANUEL BOYE v. HOTEL KUMBAYA & VENTURES

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, (