FKA COMPANY LTD. & ANOTHER v. COSMOS OSEI MENSAH & ORS
November 10, 2022
COURT OF APPEAL
GHANA
CORAM
- ACKAH-YENSU, J.A (PRESIDING)
- BARTELS-KODWO, J.A
- KOOMSON, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
November 10, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Bartels-Kodwo, J.A., allowed an interlocutory appeal by the 1st and 2nd Defendants/Applicants/Appellants challenging a High Court, Land Division ruling that refused to strike out the Plaintiff/Respondent’s land dispute suit under Order 11 Rule 18 of C.I. 47. The Appellants argued the Respondent, a sub-chief aligned with the 3rd Defendant from earlier litigation, was acting as a proxy to relitigate issues already resolved, including Supreme Court determinations regarding the Weija Stool’s title, and to frustrate execution of judgments (SOL/2/13; FAL/924/13). The High Court had declined to strike out, citing the Respondent’s fraud-based relief and caution against summary disposal. Applying Henderson v. Henderson, Johnson v. Gore Wood, Eastern Alloys, and Halsbury’s formulation of abuse, the Court of Appeal found coordinated twin suits (including LD/0556/2020) brought in bad faith to vex the Appellants and exercised its inherent jurisdiction to dismiss the writ as an abuse of process, overturning the High Court. Ackah-Yensu, J.A (Presiding) and Koomson, J.A agreed.
BARTELS-KODWO, J.A:
BACKGROUND:
This is an appeal against the ruling of the High Court, Land Division, dated 7th June, 2021 dismissing the application by the 1st and 2nd Defendants/Applicants/Appellants (hereinafter called “the Appellants”) seeking an order of the High Court dismissing the Writ of Summons and Statement of Claim under Order 11 Rule 18 of the Rules of the High Court (C.I. 47). The nexus of the application was that the above mentioned processes occasioned a frivolous and vexatious abuse of the court process.
The core of the Appellants’ reasoning for seeking the motion was that, according to Appellants, the Respondent’s basis for bringing the substantive action was that judgment in an earlier suit with Suit No. SOL/2/13 was executed without notice to him, and that at the time of execution he was in possession of the land in dispute. The Appellants claimed in his affidavit in support of the motion that the Respondent is merely an agent of the 3rd Defendant in the substantive suit, who himself (3rd Defendant) was the defendant in Suit No. SOL/2/13. The Appellants argued before the High Court, that Suit No. SOL/2/13 was consolidated with another suit with Suit No. FAL/924/13, and that in the aftermath of obtaining judgment in Suit No. FAL/924/13, the defendants in that suit also brought an action similar to this one against him and his company.
The High Court, Land Division, refused this motion, stating that “at this preliminary stage, when no evidence has been adduced to establish that the case brought by the Plaintiff is in fact scandalous, frivolous and an abuse of the court’s process… it would not be just if the Plaintiff is driven from the judgment seat without interrogating the allegation being made as stated in his claim.” One of the reasons given by the Court was that, the Respondent, who is the Plaintiff in the substantive suit, seeks as part of his reliefs, an order setting aside the judgment in Suit No. SOL/2/2013 on grounds of having been obtained by fraud.
GROUNDS OF APPEAL
The grounds for this appeal as stated on the notice of interlocutory appeal are as follows;
1. The Ruling is against the evidence on record.
2. That the Court erred when it held that the Plaintiff/Respondent’s case is not an abuse of the Court Process.
3. That the Court failed to consider the fact that the Plaintiff/Respondent’s case is meant to frustrate a judgment delivered by a Court of Competent Jurisdiction.
4. That the Court erred when it faile