E.B. TIMOTHY KWAME BOTCHEY & ANOR v. JOSEPH BANFUL & 5 ORS
2004
COURT OF APPEAL
GHANA
CORAM
- ANSAH, J.S.C. [PRESIDING]
- ANINAKWAH, J.S.C.
- DOTSE, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Tort Law
2004
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arose after Justice Woanyah of the Agona Swedru High Court, on 19 June 2002, granted a motion to strike out the plaintiffs’ writ—despite the fact that the same motion, originally filed on 4 August 1994, had been struck out for want of prosecution in October 1994 by Justice Agyeman-Bempah. The plaintiffs, represented by Mr. Kwesi Cab-Addae, challenged the 2002 ruling. On appeal, Justice Dotse (JA) identified a fundamental defect: there was no motion pending when Woanyah J heard arguments and delivered his ruling. Relying on Mosi v. Bagyina and the Privy Council’s statement in MacFoy v. U.A.C. (“you cannot put something on nothing”), the Court of Appeal held the 2002 ruling a nullity void ab initio. The court also noted Rule 8(7) & (8) permitted decision on the preliminary point as the respondent, represented by Mr. Kwaku Baah, conceded. The appeal was allowed, the ruling set aside, and costs of ¢3 million awarded.
DOTSE, JA -
In this case, the Plaintiffs/Appellants. (hereinafter referred to as the Plaintiffs) claimed the following reliefs at the High Court Agona Swedru against the Defendant/Respondents (hereinafter referred to as the Defendants):-
(1) 1st Plaintiff’s claim against the defendants, jointly and severally is for 10 million cedis as damages for trespass to 1st Plaintiff’s land situate, lying and being at Gomoa Buduburam and measuring 640 acres more or less on mile 20 on the Winneba-Accra Road near Gomoa Buduburam meant for cattle Rearing and known as “Nyame Na Dom.”
(2) An order for account of all trips of sand collected from Budubram, the 1st Plaintiff’s land as “Nyame Na Dom.”
(3) ¢3,000,000.00 (Three Million Cedis) as damages for assault by 1st, 3rd, 5th, 6th defendants jointly and severally against the Plaintiff on the 28th June 1994 at Gomoa Buduburam.
(4) An order for Perpetual Injunction to restrain the defendants jointly and severally from operating sand winning from Buduburam lands where 2nd Plaintiff is the Odikro and 1st Plaintiff is Ebusuapanin, which lands at Buduburam, belong to the Plaintiffs Kona Patu Family of Gomoa Budubram.
The Plaintiffs accompanied the writ of summons with a Statement of claim.
The defendants, per their Solicitors, NKRABEA EFFA-DARTEY on the 15th day of July 1994, entered conditional appearance to the writ which was filed on 7-7-94.
On the 4th of August 1994, the Defendants per their Solicitors, then filed a Motion on Notice to strike out the writ of summons praying for an order to strike out the writ of summons “on the grounds of having no cause of action and lack of capacity as spelt out in the accompanying affidavit.” From the appeal record, the Plaintiffs herein also filed an affidavit in opposition to this application on 29-9-94.
There appeared to have been a lull in this litigation, with the result that, this application filed on 4-8-984 was not taken by the court until 28-11-2000 when the Plaintiffs filed “Notice of Intention to proceed” pursuant to order 64r.12 of the High Court, Civil Procedure Rules, LN 140A of 1954.
Before this Notice to proceed was filed, the Plaintiffs had their Solicitors changed from Aboagye-da-Costa to Kwesi Cab-Addae who actually filed this Notice to proceed.
The new Solicitors for the Plaintiffs, then filed a Motion on Notice on 19-11-2001 seeking “for an order of interim injunction restraining defendants, their agents, servants etc.
from all acts of alienation and wasta