MABEL ANYERLEY KILMER vs DANIEL MCKORLEY & ANOR
May 14, 2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE NICHOLAS M. C. ABODAKPI J.
Areas of Law
- Civil Procedure
- Property and Real Estate Law
May 14, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Nicholas M. C. Abodakpi of the Ghana High Court addressed a motion by the 2nd Defendant to strike out a writ filed by Mabel Anyerley Kilmer concerning land at East Legon Extension (Mpehuasem), Accra. The applicant argued that Kilmer was concurrently litigating the same subject matter in Land Court 2 in Suit No. LD/1348/2017 and relied on the Henderson v Henderson rule to assert abuse of process. Kilmer opposed, noting differing parties and suggesting consolidation. The court found the subject matter and plaintiff were the same across suits, but the defendants differed and the Land Court case remained pending. Applying Sasu v Amua–Sekyi, Naos Holding v GCB Limited, and Barrow v Bankside Agency, the court held that without prior determination and absent oppression or injustice, concurrent suits do not amount to abuse of process. The motion was therefore misconceived and dismissed.
This is a ruling on a motion on notice to strike out the plaintiff’s writ for abuse of court process.
The Plaintiff/Respondent filed the instant Writ against the First Defendant and the 2nd Defendant/Applicant on 13th July, 2018, claiming the following reliefs:
1. ’’Declaration of title to all that piece or parcel of land situate, lying and being at East Legon Extension (Mpehuasem), Accra in the Greater Accra Region of the Republic of Ghana and bounded on the North by Nii Asoyi 1 Road measuring 152 feet more or less on the South by Plot Nos. 3 and 5 measuring 155 feet more or less on the East by Plot No. 32 measuring 90 feet more or less and on the West by Pot No. 26 measuring 91 feet more or less and covering an area approximately 0. 32 acre.
2. Perpetual injunction restraining the Defendants, their agents, assigns, privies and all persons claiming through them from interfering with Plaintiff’s interest in the said property.
3. General and Punitive damages for unlawful interference with the rights of the Plaintiff.
4. Costs including legal cost’’.
The 2nd Defendant/Applicant by her lawyer entered conditional appearance on 13th November, 2018. Counsel for the applicant consequently filed the instant motion on 30/11/18, praying for an order to strike out the plaintiff’s writ for abuse of court process.
The motion has been brought under Order 1 Rule 2 of CI 47.
In paragraph 8 of the applicant’s affidavit in support of his motion , the applicant avers that the plaintiff is currently litigating over the same piece of land in Land Court 2 in a suit entitled Mabel Anyerley Kilmer V James Torgbor and Others ( consolidated) with suit No. LD/1348/2017. He also avers in paragraph 9 of his affidavit in support that in suit No. LD/1348/2017, the Plaintiff is seeking the same reliefs as in the instant suit.
Again, the Applicant avers in paragraph 7 of his supplementary affidavit in support that the Plaintiff/Respondent is litigating with the grantor of the 2nd Defendant/Applicant herein in Suit No. LD/1348/2017 over the same land in dispute in the instant suit.
The Applicant has three annexures attached to her affidavit in support.
These are Exhibits 1, 2 and 3. I have examined these exhibits.
The Applicant therefore contends that the Plaintiff/ Respondent cannot maintain an action over the same piece of land in two different courts concurrently and as such, the instant action is an abuse of the court process.
Counsel for the applicant cited Henderson