G. S. ANYETEI & ANOTHER v. KOFI ANI & OTHERS
2021
COURT OF APPEAL
GHANA
CORAM
- SOWAH, J.A. (PRESIDING)
- OPPONG, J.A.
- MENSAH-HOMIAH, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Sowah J.A., allowed the appeal of G.S. Anyetei’s successors against a High Court order granting the defendants leave to issue a writ of execution on land judgments dating to 1990 and affirmed in 1994. After prevailing on a counterclaim for title, possession, and trespass damages, the defendants took no execution steps for roughly twenty-five years and only in 2018–2019 pursued post-judgment procedures including substitutions, a plotting order, and a motion for leave under C.I. 47. The Court held that an application for leave to execute is an “action” within section 34 of NRCD 54 and, read with Order 44 rule 3(1)(a), is barred after twelve years by section 5(2). Substitution and alleged acquiescence did not constitute a valid acknowledgment under section 17; no statutory extension applied. Concurring, Oppong J.A. added that Order 37 rule 3 was misused and entry of judgment was required. The leave was set aside and the application dismissed as statute-barred.
JUDGMENT
SOWAH, J.A:
In this judgment I refer to the plaintiff/appellant as the plaintiff and the defendants/respondents as the defendants.
The plaintiff is appealing the decision of the High Court Koforidua dated 4th September 2019, granting leave to the defendants to issue a writ of execution in respect of judgments that the defendants obtained on their counter-claim from the trial High Court on 9th February 1990 and the Court of Appeal on 28th July 1994
Background Facts
On or about 30th May 1985, G.S. Anyetei for himself and on behalf of the Leshie family of Labadi, sued thirteen defendants at the High Court, Koforidua for declaration of title to a parcel of land, mesne profits and an order of perpetual injunction.
After trial, the plaintiff’s claims were dismissed by Abakah J on 22nd December 1989. The reasons for his decision were however given on 9th February 1990. [See pages 79- 90 of the record of appeal].
The trial Court also held the defendants to have the capacity to counter-claim and granted the reliefs they sought, namely; declaration of title, recovery of possession and damages for trespass.
It is worth noting that Kofi Ani, the 1st defendant had died and been substituted with Kwaku Asare even as at the time judgment was delivered at the trial court.
Dissatisfied with the decision, the plaintiff appealed the judgment to the Court of Appeal, the appeal however failed in a judgment delivered on 28th July 1994 and to be found at pages 93 -110 of the record of appeal.
The defendants who had been successful both at the trial Court and at the Court of Appeal however went to sleep and did not take any steps to execute the judgment.
Fast forward some 25 years later to 13th November 2018. The defendants awoke from their slumber and filed a Notice of Intention to proceed. Thereafter on 13th February 2019 the defendants filed a motion to substitute Ayeh, the 3rd defendant who was deceased. Likewise an application was filed on behalf of the plaintiffs' on 27th February 2019 to substitute G.S. Anyetei who was also deceased. Both applications were granted on 1st March 2019.
On 31st March 2019, the defendants’ made an oral application for an order for the 1990 and 1994 judgments of the High Court and the Court of Appeal to be plotted by the Lands Commission. The application was granted in the absence of plaintiffs' lawyer [see pages 122, 123 of the Record]
Upon an objection raised by plaintiffs' lawyer on 25th June 2019 that there had been