KWAKU ADUBOFFUOR v. MR & MRS JOHNSON OSEI BOASIAKO
2016
COURT OF APPEAL
GHANA
CORAM
- E. K. Ayebi, J.A. (Presiding)
- G. Torkornoo (Mrs), J.A.
- M. Domakyaareh (Mrs.), J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff/respondent initially filed a suit in the District Court seeking a declaration of title to a plot of land, among other reliefs, but later discontinued the suit and filed a similar suit in the Circuit Court. The defendants/appellants claimed that this amounted to an abuse of court process and that they were not duly served with the writs. The court found that there was no abuse of court process as the suit at the District Court had not been determined before the Circuit Court suit was filed. The court also held that the defendants were properly served within the jurisdiction as there was evidence they were evading service. The appeal on the grounds of improper concurrent writ was upheld, and it was held that evidence must still be taken to establish the plaintiff's title. The court further found that the ruling of the trial court was against the weight of the evidence.
J U D G M E N T
A. M. DOMAKYAAREH(MRS), J. A
1. This is an appeal against the ruling of the Circuit Court, Kumasi dated 12th March 2014.
The genesis of this case is that the plaintiff/respondent herein filed a Writ against the defendants on 24th August 2004 in the District Court, Kumasi, titled Suit Number A9/121/05 Kwaku Aduboffuor of Kumasi vrs Bro Kojo, representative of Johnson Osei (Mr. &Mrs) seeking the following reliefs: -
“1. Plaintiff’s claim against the defendants, who is the Representative or agent of Mr. & Mrs. Johnson Osei Boasiako and are resident abroad is for an order of the Honourable Court for a DECLARATION OF TITLE TO and RECOVERY OF POSSESSION OF PLOT NO 69 BLOCK 1 BREMAN NKONTWIMA/KUMASI on the BUSUMURU STOOL LAND which defendant has encroached upon.
2. Interim Injunction”
This District Court suit was discontinued on 2nd August 2013.
2. The plaintiff/respondent herein then issued another Writ of Summons which he filed against the Defendants/Appellants herein on 17th June 2013 at the Circuit Court. Kumasi. This suit was numbered A1/68/2013. He sought the following reliefs: -
i) A declaration of title to Plot No. 69, Block “1” Nkontwima/Busumuru, Kumasi
ii) Recovery of the said plot of land
iii) Damages for trespass
iv) Perpetual injunction restraining the defendants herein, whether by themselves, their privies, allies, agents, assigns, workmen etc. or anybody claiming title through them or for them from further interfering with the land in dispute.
OR ALTERNATIVELY
v) An order for the payment for the said plot No. 69, Block “1” at Nkontwima/Busumuru.
3. The defendants/appellants were duly served with the plaintiff/respondents Writ of Summons and Statement of Claim on 5th July 2013. The defendants entered a conditional appearance on 16th July 2013 but failed to take any further steps as required by the Rules of Court. Then on 25th October 2013, the plaintiff/respondent filed a Motion on Notice for judgment in Default of Defence. The application was granted in a ruling by the Circuit Court, dated 12th March 2014. It is from this Ruling that the instant appeal was filed.
4. The defendants/appellants mounted the instant appeal on six grounds, namely:-
a) The Court erred in not holding that the writ issued by the Plaintiff in the Circuit Court, Kumasi, was an abuse of process especially in the face of a pending suit in the District Court, Kumasi since 24th August 2004.
b) The Court erred in holding that the defendants w