JOHN ATTA OWUSU v. MR. FOSUHENE
May 19, 2010
SUPREME COURT
GHANA
CORAM
- ATUGUBA, JSC (PRESIDING)
- DATE-BAH (DR), JSC
- YEBOAH, JSC
- BAFFOE-BONNIE, JSC
- ARYEETEY, JSC
Areas of Law
- Civil Procedure
- Property and Real Estate Law
May 19, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana addressed whether a plaintiff who discontinued a prior suit with leave and “liberty to come back” could commence a fresh action concerning the same plot at Buokrom, Kumasi while a counterclaim in the earlier suit remained pending. In LS 177/2002, the plaintiff sought declarations of allottee/lessee, damages for trespass and injunction; the defendant counterclaimed for title and cancellation, citing LS 330/80 (Opanin Kojo Boateng v Nana Owusu Bempoh) confirming his grantors’ ownership. After the plaintiff discontinued with liberty, he filed a fresh writ on 17 November 2003. The High Court dismissed that writ for abuse of process. The Court of Appeal reversed, reasoning that discontinuance with liberty cannot be used as a defence to a subsequent action. On further appeal, Baffoe‑Bonnie JSC, joined by concurring Yeboah JSC and other justices, dismissed the appeal, affirmed the Court of Appeal and remitted the matter for trial on the merits, rejecting arguments based on abuse of process and res judicata.
J U D G M E N T
BAFFOE-BONNIE, JSC:-
This is an appeal from the Court of Appeal. Coram Akoto Bamfo JA (as she then was) Osei and Duose JJA allowing an appeal from the judgment of the trial High Court Judge which was given in favour of the appellant herein. The facts in this case are fairly simple and straight forward.
In June 2002, the plaintiff/appellant/respondent herein referred to as Respondent filed a writ claiming;
a. Declarations that the plaintiff is the allotee/lessee of plot №Y block XXXXIV Buokrom near Kumasi.
b. Damages for trespass.
c. An order of perpetual injunction restraining the defendant either by himself or through his agents and /or workmen from in any manner interfering with plaintiff’s said property plot 7 block XXXIV Buokrom near Kumasi.
The defendant/respondent/appellant hereafter appellant, filed a defence and counter claimed for;
i. A declaration of title in favour of defendant and the wife Mrs. Fosuhene to the property known as Plot no. 7 block XXXIV Buokrom, Kumasi, and (Buokrom Denteso).
ii A declaration that any purported allocation grant or transaction in respect of the said property and any document purportedly made pursuant thereto in favour of the plaintiff is null and void ab initio and the plaintiff’s alleged grantors have no right to allocate or grant any portion of the said plot.
iii. An order for the cancelation and /or revocation of all documents made by the plaintiff in respect of the property the subject matter of the suit.
Iv. General and special damages for trespass.
V. An order of perpetual injunction restraining the plaintiff his alleged grantors agents assigns privies those claiming through under or by him at custom and in law and in any manner whatsoever from interfering with the defendant’s right title and interest to the said property.
ii. SUCH FURTHER ORDER(S) as to this Honourable Court deem fit.
The respondent's case in that suit numbered, LS 177/2002 was that the plot in question was allocated to him by the Buokromhene. In the case of the appellant herein, his counterclaim was based mainly on the legal effect of an earlier writ LS 330/80 between Opanin Kojo Boateng versus Nana Owusu Bempoh which had declared the appellant’s grantors to be owners of the land which is the subject matter of the writ. That judgment had been confirmed on appeal.
The respondent later sought and was granted leave of the court to discontinue his claim. The writ was struck out as discontinued with liberty to come