2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Justice Mariama Owusu, arises from a land dispute in Suit No. 32/98 at the Circuit Court, Berekum, concerning three parcels at Asuotiano on Dormaa Stool Land. The plaintiff family secured declarations of title and a perpetual injunction, but the trial court did not expressly grant recovery of possession. The plaintiff later obtained an ex parte Writ of Possession, which the High Court, Sunyani, quashed by certiorari. On appeal by the interested party, the Court of Appeal held that the Circuit Court had jurisdiction over the writ; any omission or error was to be corrected by appeal, not certiorari. The court rejected arguments about late delivery of judgment and the supposed mutual exclusivity of appeal and certiorari, set aside the High Court’s order, and dismissed the certiorari application, effectively restoring the Writ of Possession issued by the Circuit Court.
MARIAMA OWUSU, J.A.
On 14-7-2009, the High Court, Sunyani, ruled that:
“The application before me relates to the executor process initiated by the plaintiff to wit, a Writ of Possession which I hope I have been able to demonstrate the Circuit Court, Berekum had no power to grant same
In the circumstance the application for certiorari succeeds and the Writ of Possession issued by the Circuit Court, Berekum on 27-2-2008 is hereby quashed. Costs of GH¢200.00 in favour of the applicant.”
Dissatisfied with the decision of the court, the interested party appealed to this court.
The Grounds of Appeal are as follows:
a. The learned Judge erred when he delivered his ruling outside the statutory six weeks mandatory period without any direction from the Chief Justice.
b. The learned Judge erred when he stated that the trial Judge “dismissed the appellant’s relief for recovery of possession” when in actual fact, the trial Judge did not state anywhere in the judgment that, he has dismissed the appellant’s Writ of Possession. Thus the High Court delved into the merits of the substantive suit which is pending before the Court of Appeal.
c. That the Circuit Court Judge has jurisdiction to grant Writ of Possession. And granted that even if the Circuit Court Judge erred at all, the applicant/respondent remedy lies in an appeal and not certiorari.
d. That the learned High Court Judge failed to appreciate the fact that as at the time the applicant/respondent brought his application for certiorari at the High Court, there was an appeal on the same judgment pending before the court of Appeal and that the learned High Court Judge ought to have dismissed the application for certiorari.
e. That the learned Judge erred when he failed to be bound by the Supreme Court decision in THE REPUBLIC VS. HIGH COURT, KUMASI, EX-PARTE BOATENG (2007-2008) SCGLR which his attention was drawn to.
f. That procedurally, the application for certiorari was incompetent since same sinned against the rules/procedure in C.I. 47 and same ought to have been dismissed in limine.
g. That the learned High Court Judge took into consideration extraneous matters which were not before him. No wonder his vision of the matter was clouded by such extraneous matters.
h. That the learned Judge failed to consider the judgment of the Circuit Court in its entirety.
i. Additional Grounds of Appeal may be filed upon the receipt of the record of proceedings.
The relief being sought from this court:
“To rever