JESSIE APPIAGYEI v. THOMAS APPIAGYEI
2015
COURT OF APPEAL
GHANA
CORAM
- ADJEI, JA – PRESIDING
- CECILIA H. SOWAH, JA
- HENRY KWOFIE, JA
Areas of Law
- Civil Procedure
- Judicial Process
- Abuse of Process
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The trial High Court Judge in Koforidua dismissed the Petitioners petition, which was seen as an abuse of judicial process. The Petitioner appealed, and the Court found that the trial High Court Judge misunderstood the principle of lis alibi pendens and erred by not putting the parties to their election. The appeal was ultimately rendered moot as the other case had been heard to its finality.
JUDGEMENT
ADJEI, J.A:
The Respondent / Respondent herein (hereinafter called the Respondent) filed a petition at the High Court, Tamale against the Petitioner / Appellant herein. The petitioner filed a motion to report the pendency of the petition filed by the Respondent in Tamale for same to be transferred to Koforidua High Court where the Petitioner herein lives and works. During the pendency of the application for transfer of the petition filed by the Respondent, the Petitioner filed another petition at the High Koforidua seeking almost the same reliefs sought by the Respondent in his earlier petition.
The Respondent herein upon service of the Petitioner’s petition on him entered conditional appearance. He subsequently filed a motion to set aside the petition on the premise that it constituted an abuse of judicial process. He further stated that the Petitioner filed her petition to frustrate the effectual and complete determination of the matter filed by him in the High Court Tamale.
The trial High Court Judge in Koforidua dismissed the Petitioner’s petition as constituting an abuse of the process of the court. The Petitioner’s Petition was struck out by the trial High Court on 12th July, 2011. The Petitioner dissatisfied with the said ruling of the High Court filed an application for review on 18th July, 2011. The Petitioner dissatisfied with the ruling delivered in the review application appealed to this Court on 28th February, 2012. The Notice of appeal contains four grounds of appeal. The grounds of appeal are as follows:
“(a) That the ruling is against the weight of evidence.
(b) That the learned trial Judge’s interpretation of the common doctrine of lis alibi pendens and his application of it to the ruling of the motion was wrongful and that occasioned a miscarriage of justice.
(c) The learned trial Judge erred in law by using the cumulative significations of orders (1) Rule 2 and 27 Rule 2 of the High Court (Civil Procedure) Rules C.I. 47 of 2004 as the foundation to determine the application and that error occasioned a miscarriage of Justice.
(d) That the learned trial Judge erred in law when he held that error of law apparent on the face of the record was not a ground for review murder Order 42 rule (1) Sub rule (2) of High Court (Civil Procedure) Rules C.I. 47 and that occasioned a miscarriage of Justice”.
We shall address the grounds of appeal together as they touch and concern the same legal issue. The law is that where there is an