MRS. ISSABELLA ODI AGGREY v. DANIEL FIANKO

MARIAMA OWUSU, J. A.

The issue for determination in this appeal is whether or not the Plaintiff/Appellant in this case who has been declared owner of the disputed land described in her writ of summons, an order of perpetual injunction restraining the Defendant, his agents, assigns, etc from interfering with the said parcel of land can institute a fresh action for recovery of possession of the said land.

In order words, is the Plaintiff/Appellant estopped from instituting a fresh action for recovery of possession of the land in dispute.

The facts of this case are not in dispute.

The Plaintiff/Appellant (herein after referred to as Appellant) in Civil Appeal No. 54/5/08 dated 30-7-08 at the Supreme Court was declared owner of a land endorsed on her Writ of Summons.

The claim was for:

a. “A declaration of title to all that piece of land situate lying and being at a place commonly called Amanfo in Mampong-Akwapim boarded on the North by the property of Mr. Emmanuel Obuobi on the South by the property of Rev. Obeng on the West by the property of Edward Kofi Obeng and on the East by the property of Opanyin Yaw Kwakye all measuring 100feet by 100feet.

b. Damages for trespass c. Perpetual Injunction restraining the Defendant, his agents, personal representatives, assigns and workmen from ever interfering with the said parcel of land”After a full trial at the Circuit Court, the Appellant lost. She appealed to the Court of Appeal who reversed the decision of the Circuit Court, Mampong-Akwapim.

The Defendant/Respondent appealed to the Supreme and the Supreme Court confirmed the judgment of the Court of Appeal.

When the Appellant attempted to go into execution, she was resisted by the Respondent on the ground that she had not asked for recovery of possession in her Writ of Summons before the Circuit Court, Mampong-Akwapim.

The Appellant therefore instituted a fresh action at the Circuit Court, Mampong-Akwapim for the recovery of possession of the land he instituted in suit No. 31/97 which he fought to the Supreme Court and won.

The Respondent resisted the Appellant’s claim on the ground that the Appellant having failed to endorse her claim with recovery of possession in the earlier suit, she is estopped from now instituting a fresh action to claim that relief.

The Respondent gave the particulars of estoppel as follows: i. The Plaintiff and her lawyers at all material times in suit no. 31/97 titled MRS. ISABELLA ODI AGGREY VS. DANIEL FIANKO, knew or ought t