MOHAMMED ODARTEY LAMPTEY vs LANDS COMMISSION & 3 ORS

This is an application filed by the 2nd, 3rd and 4th Respondents (hereinafter called “Respondents”) praying for an order setting aside the Writ of Possession made by the Court(Land Division) on the 8th August, 2019. Counsel for Respondents have indicated a clerical error on the Notice of Motion that instead of “Application for an order to set aside order for leave for Writ of Possess to issue”, a clerical error occurred and it was titled “Application for an order to set aside Writ of Possession”. I do not think this error cannot be remedied.

I will allow the necessary amendment to be effected as in doing so the merits and issues in the matter would not be jeopardized.

In accordance with rule 9 (1) of Order 16 of C. I 47, I hereby grant leave to the Respondents to amend the Notice of Motion by inserting “Order for leave for” thereon.

The case of the Respondents is that after judgment has been entered in favour of Plaintiff(hereinafter referred to as Applicant), the Applicant filed an application under Order 43 rule(2) of C. I. 47 for leave to issue a Writ of Possession.

It is further the case of the Respondents that the Applicant did not give notice of the said application to them, though they were in effective possession of the property.

The Respondents contend further that because the Applicant failed to give them notice of the motion, the Court lacked jurisdiction to entertain the application for leave to issue the Writ of Possession.

The case of AHINAKRA II AND ANOTHER v OKAIDJA III AND OTHERS [2010-2012] 2 GLR 452 was relied on by Counsel for Respondents.

Further, Counsel referred to the case of REPUBLIC v HIGH COURT, KOFORIDUAH; EX PARTE OSAE-AKONOR (AGYEI INTERESTED PARTY) [2009] SCGLR 572; BOYEFIO v NTHC [1997-1998] 1 GLR 768 and OPPONG v ATTORNEY-GENERAL were cited by Respondents’ Counsel.

The Applicant is opposed to the application arguing that by the rules of Court, an application for leave to issue a writ of possession may be brought ex parte and that is exactly what he did.

It is therefore the case of the Applicant that the Court had jurisdiction to entertain and decide on the ex parte application.

Now, Order 43 rule 3 of C. I. 47 provides: “3 (2) A writ of possession to enforce a judgment or order for the recovery of possession of immovable property shall not be issued without leave of the Court except where the judgment or order was given or made in a mortgage action to which Order 56 applies. ”(3) The leave shall not be grant