GEORGE KOFI GYIMAH v. J. K. ABROKWA
July 27, 2010
SUPREME COURT
GHANA
CORAM
- ANSAH, JSC (PRESIDING)
- OWUSU (MS), JSC
- BAFFOE- BONNIE, JSC
- ARYEETEY, JSC
- GBADEGBE, JSC
Areas of Law
- Civil Procedure
- Property and Real Estate Law
July 27, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court ruling arises from an application for special leave to appeal against a Court of Appeal decision reversing a Circuit Court judgment in a land dispute at Kokompe, Accra. The applicant sought declarations, damages for trespass, and an injunction in the trial court, while the respondent asserted a prior lease and sought injunctive relief. After the Court of Appeal entered judgment for the respondent, the applicant petitioned the Supreme Court under Article 131(2). The Court reaffirmed its unfettered discretion over special leave and the guiding criteria from Dolphyne (No. 2) and Nyimoh v Dadzie, and noted that expiry of ordinary leave does not bar special leave (Ansah v Atsem). However, the alleged legal errors were not prima facie on the face of the record and were matters for ordinary leave. The Court condemned the applicant’s false affidavit and considered potential prejudice from delay to the respondent, ultimately dismissing the application for lack of good and convincing reasons.
R U L I N G
OWUSU (MS), JSC:-
The Applicant herein is under Article 131(2) of the 1992 constitution; section 4 (2) of the courts Act, Act 459 and rule 7 (4) of the Supreme Court Rules C. I. 16 praying for special leave to appeal to the Supreme Court.
The application is supported by 19 paragraphed affidavit on which he relied on all the averments contained therein.
The Applicant as plaintiff instituted an action in the Circuit Court against the Respondent herein for –
“a. A declaration that the plaintiff is the only person lawfully entitled to possess and use the land described in his statement of claim as the Land situate, lying and being at Kokompe Accra and bounded on the North West by the Lessor’s land - - - on the south west by the Lessor’s land and covering a approximate area of 0.13 acres more or less.”
“b. General damages for trespass.”
“c. perpetual injunction restraining the defendant and his agents from interfering with the plaintiff’s workers on the land.”
This action by the plaintiff was vehemently resisted by the Defendant who counter-claimed for:
“a. A declaration that he had been granted a prior lease of the land in dispute from the plaintiff’s lessors since 1998 and therefore any subsequent lease of the same property to the plaintiff was void.”
“b. Perpetual injunction restraining the plaintiff, his agents, principals or any purported lessors from entering upon or carrying on any construction work on the land in dispute.”
At the end of the trial, Judgment was entered for the plaintiff and the Defendant’s counter-claim dismissed.
Dissatisfied with the Judgment, the Defendant appealed to the Court of Appeal. By its Judgment dated 5th day of November 2009 the Court of Appeal reversed the decision of the trial court and entered Judgment for the Defendant.
Under Article 131(b) of the constitution, if the plaintiff wanted to appeal against the Court of Appeal’s Judgment to the Supreme Court, he needed leave of the Court of Appeal.
Article 131(1) of the constitution reads as follows:
“An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court –
“(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a Judgment of the High Court or a Regional Tribunal in the exercise of its original Jurisdiction; or
“(b) With the leave of the Court of Appeal (e.s.) in any other cause or matter, where the case was commenced in a court lower than the High