IBRAHIM JAJAH v. SUSAN BANDOH & ORS
2022
COURT OF APPEAL
GHANA
CORAM
- B. F. ACKAH-YENSU, JA (PRESIDING)
- J. BARTELS-KODWO, JA
- G. K. KOOMSON, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Constitutional Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Barbara Ackah‑Yensu, JA, writing for the Court of Appeal, reviewed an appeal arising from a trial court’s handling of a bundled application by the Defendants/Appellants, acting through the Toboase family, that sought both a stay of execution of an earlier injunction and dismissal of the Plaintiffs/Respondents’ writ on estoppel, abuse of process, and public policy grounds. She criticized the improper coupling of interlocutory and substantive reliefs and emphasized that dismissal applications, which go to the root of the action, ought to be prioritized. Substantively, she held that prior High Court and Court of Appeal decisions (FAL 194/2009 and H1/163/2018) established the Toboase family’s ancestral ownership and lawful re‑entry, making the trial judge’s contrary pronouncement per incuriam and unconstitutional under Article 136(5) and stare decisis. The Court declined estoppel/res judicata for lack of identical parties and issues, ordered that both parties be restrained from dealing with the land pending the suit, partially allowed the appeal, and remitted the case to a differently constituted High Court.
B. ACKAH-YENSU, JA
INTRODUCTION
I have read the judgment of my learned brother and I agree with his conclusion. However, I have a different view regarding ground (c), and would therefore write a brief opinion in relation to the third ground of appeal; The trial Judge erred in holding that the Tobuase family has no interest in the subject matter of dispute despite the judgment in suit No. FAL 194/209 entitled Nii Tetteh Opremereh II & Anor v Komeva Limited & Ors. and the Court of Appeal Judgment in Civil Appeal No. H1/163/2018 based on same was an issue for determination in the application to dismiss the suit.
THE APPEAL
In proceeding to address this appeal it is important to comment on the inelegant manner Counsel for 1st Defendant/Appellant couched the title of the application by endorsing two reliefs, one attacking the very foundation of the action on grounds of estoppel, abuse of process and public policy, and the other a stay of execution which is interlocutory in nature. This Court cannot gloss its eyes over the procedural glitch apparent on the face of the application by the Defendants/Appellants in the trial court, the determination of which has given rise to this appeal.
In the application before the trail court, the Defendants/Appellants sought a duality of reliefs. One for stay of execution of an earlier order of injunction and the other for an order to dismiss the Plaintiffs/Respondents’ writ. This practice is most inelegant as the two reliefs could not have properly belonged to one application. An application for stay of execution is clearly interlocutory and one within the exercise of the court’s judicial discretion which may be granted or refused, wholly, partially, or on terms. On the other hand, an application to dismiss a writ is a substantive matter which goes to the root of an action. If granted, the decision has the effect of having determined the final rights of the parties. There, no judicial discretion is involved. Once an application succeeds on the affidavit evidence justifying a case for which the writ has to be dismissed or set aside the trial Judge has a constitutional and statutory duty to uphold it and dismiss the action.
At the time of the hearing of the application therefore, the trial Judge, in the exercise of the power of control over the proceedings, ought to have directed the Defendants/Appellants to proceed with the application to dismiss the writ as it is a relief which is fundamental and goes to the root of the