1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Land Court, per Quist, J, considered a motion by the defendant—styled Defendant-Appellant—to recall or declare null the writ of possession issued on 3 June 1943 by the Provincial Commissioner’s Court at Cape Coast in favor of Ekosuah Eduyaah relating to the Nkwantanan land at Sunkwa in the Ayan Denkera State. Eduyaah had secured a Native Tribunal judgment on 9 June 1942 decreeing possession; the defendant’s appeal was struck out on 11 May 1943 for lack of appearance and not further appealed. Eduyaah obtained and executed a writ of possession on 12 June 1943. The defendant alleged fraud and misrepresentation in the application for the writ and challenged the Provincial Commissioner’s jurisdiction. Quist, J held the motion procedure was proper, found no fraud because the Commissioner knew his own decisions and the writ referenced both judgments, and determined that, being seised of the transmitted record, the Provincial Commissioner’s Court had jurisdiction to enforce the Native Tribunal’s judgment. The court refused to recall the writ and awarded £6 6s costs to Eduyaah.
Judgment:
This is an application on notice, on behalf of the Defendant-Appellant, for an Order of the Court recalling and setting aside, or otherwise declaring as null and void, the Writ of Possession issued in the above-mentioned case by the Court of the Commissioner of the Central Province, Cape Coast, on or about the 3rd day of June, 1943, at the instance of Ekosuah Eduyaah the above-named Plaintiff-Respondent, on the grounds of fraud and misrepresentation on the part of the said Plaintiff-Respondent, and of want of jurisdiction in the said Court of the Commissioner of the Central Province, Cape Coast.
The claim for the relief prayed for, as above stated, has had a chequered career.
A Writ of Summons issued in this Land Court in or about December 1944 claiming relief similar to the one asked for herein was struck out by the Court on the 15th of April 1948 for want of jurisdiction, the Land Court being of the opinion that the Writ should issue out of the Divisional Court.
Another suit for the same remedy, commenced in the Divisional Court, was also dismissed on the 17th of July 1948, on the ground that the Divisional Court had no jurisdiction to entertain the Writ.
At this hearing Counsel for the Plaintiff-Respondent raised a preliminary objection that the procedure, by motion, now resorted to, was irregular, and that the applicant should seek his remedy by way of Appeal, Review or Certiorari; thus again calling the jurisdiction of the Court into question.
I ruled on the authority of Samuel A. B. Sampson v: Abraham Essel (1) that the procedure by motion was correct, and to bring the matter to a possible finality, I decided to hear the motion on the merits.
The events that led up to this application, briefly stated, are as follows:-
The Plaintiff Ekosuah Eduyaah, on the 9th day of June, 1942, obtained judgment against the applicant for the "Nkwantanan land" the subject of the litigation, and the Native Court decreed possession of the land in favour of the plaintiff.
The defendant appealed against the said judgment of the Native Tribunal to the Court of the Deputy Commissioner of the Central Province, but the Provincial Commissioner on the 11th of May, 1943, struck out the appeal, holding that no appeal lay from the judgment of the Native Tribunal, as the defendant did not "appear" at the trial in the sense that he understood the word " appear".
This judgment of the Provincial Commissioner was not appealed against.
Ekosuah Eduyaah on the 3rd of