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JUDGMENT
JUDGMENT
SUURBAAREH, JA
This is an appeal from the judgment of the High Court, Accra, Land Division, dated 28th January 2019 in which the trail Court refused to strike out the Plaintiff/Respondent’s pleadings and to dismiss her action on grounds of frivolity and vexatiousness under Order 11 rule 18(1)(b) of the High Court (Civil Procedure) Rules 2004 C.I. 47.
The facts giving rise to the instant appeal are not in any dispute. The parties, who shall be called Appellant and Respondent respectively, are in occupation of a disputed land said to be at East Kwabenya. Whilst the respondent’s acquisition is based on a grant from the Abbey We Family of Kwabenya, through its head, Nii Yarboi Yartey, in 2008, the Appellant had his grant from the head of the Odai Ntow family, Nii Anteh Kwakonam III, in 2011.
Upon an application from the Respondent, the trial Court, on 4th November 2014, restrained both parties and all persons claiming through or by them, from going onto the disputed land pending the determination of the suit. An application for review of the order of 4th November 2014, to allow the appellant to complete the roofing of his building was refused on 22nd February, 2016. (See page 78 of the record of appeal).
Following the filing of witness statements, and an order for a composite plan, based on the respective site plans submitted by the parties, per exhibit D, at page 202 of the record of appeal, was produced. The Respondent, on 12th December 2018, filed a motion to vary the order of 4th November 2014, to enable her develop the rest of the land she was claiming for the reason that, from the composite plan, exhibit D, the Appellant’s claim did not cover all the land she was claiming. The court, differently constituted, granted this request, per the record at page 206 of the record of appeal. It was thereafter that the Appellant, on 14th January 2019, applied to have the Respondent’s pleadings struck out and her action dismissed under Order 11 rule 18(1)(b) of C.I. 47.
In the affidavit in support of the motion to strike out the pleadings and to dismiss the suit, the Appellant deposed to the fact that the Respondent, both in her statement of claim and witness statements, had admitted that the subject land formed part of Government land acquired for Ghana Atomic Energy Commission, and went on to exhibit a search report, exhibit DH, at page 212 of the record of appeal, showing that the land was acquired by an Executive Instrument dated 3rd July, 1973.
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