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JUDGMENT
Introduction
The plaintiff on 7th April, 2016 took out a Writ of Summons action against eight (8)
defendants. Subsequently on 14th June, 2017 following the grant of an application for
joinder filed on 5th June, 2017, the court joined the 5th Defendant as party to the suit.
Prior to that, the Plaintiff on 22nd March 2017 had discontinued the action against four
(of the Defendants) namely, 4th, 5th, 6th and 7th Defendants. The 5th Defendant
subsequently died and was substituted by Obaapanyin Angela Sabin-Quarm. The writ
was subsequently amended to reflect these changes. The final amended writ was filed
on 22nd September, 2022.
Discontinuance (5th Defendant)
Counsel for the Plaintiffs on behalf of the Plaintiffs on 26th November, 2018 filed a
motion praying as follows:
“PLEASE TAKE NOTICE that this Honourable Court will be moved by counsel for the
Plaintiffs herein praying it for an order granting leave to the plaintiffs to discontinue
this instant suit with liberty to institute a fresh action against the 2nd Defendant i.e. Rose
Baddoo in terms of the accompanying affidavit and for any further orders as this court
seem fit to make in the circumstances.”
In paragraph 5 of the Affidavit in Support of the motion deposed to by Charles Agyei
Savage he states as follows:
5. That in the course of time we settled this matter with 1st, 2nd and 3rd defendants
and discontinued against the developers.
The motion was granted on terms and the matter discontinued against 5th Defendant.
The record will show that these defendants had counter-claims. The 1st, 2nd and 3rd
Defendants however did not attend court to prosecute their counter-claims. The 5th
Defendant however was in court to prosecute her counter-claims.
Counter-claim (5th Defendant)
It is trite law that a counter-claim is independent of the reliefs sought in the statement of
claim. Accordingly I am of the considered view that notwithstanding the
discontinuance of the action against the 5th defendant by the plaintiff, the counter-claim
filed by the 5th Defendant subsists. The 5th Defendant’s counter-claim is contained in her
Statement of Defence and Counter-Claim filed on 7th February, 2018 as follows:
(a) A declaration of title to Oguaa Kuma Lands sharing boundary in the north with
Quah Essilfie, on the South with landed properties of Quah Annan, on the East
with Kobina Essandoh and on the West with Kwamina Essandoh.
(b) Damages for trespass
(c) Recovery of possession
(d) Perpet