MUUDU CONSTRUCTION v. PHARMANOVA PHARMACEUTICAL LTD & ANOTHER

Baffour J.A:

INTRODUCTION

We have been called upon in this appeal to determine the propriety of the invocation by the court below of the exercise of its powers conferred by Order 33 Rule 5 of the High Court (Civil Procedure) Rules, C. I. 47. The said rule states as follows:

“Where it appears to the Court that the decision of any question or issue arising in any cause or matter and tried separately from the main cause or matter substantially disposes of the cause or matter or renders trial of the main cause or matter unnecessary, it may dismiss the cause or matter or make such other order or give such judgment as may be just”.

That the ambit and scope for the invocation of Order 33 rule 5 is at the heart of this appeal cannot be denied. As to whether or not when a court expert has testified based on an assignment given to him, the court just out of the blue can rule to strike a technical blow by ending the suit abruptly because the court thinks a party’s case is not sustainable and therefore needless to proceed beyond that stage would be explored in this appeal. But first the facts and antecedents of the case.

FACTS

Asserting a claim over 2.22 acres of land situate on the Accra – Tema Motorway, the Plaintiff/Respondent (hereinafter called “the Respondent”), issued a writ on the 29th October, 2014 against the 1st Defendant/Appellant (hereinafter called “the Appellant”) which was amended on the 4th of December, 2014 and endorsed with the following reliefs: a declaration of title to Plot No L. I 42 being 2.22 acres with the dimensions described, perpetual injunction, recovery of possession, general damages for trespass and cost. The Respondent claimed that the land was allotted to him as a pharmaceutical company by the Lands Commission in 2005 which was followed by a formal lease in 2006. To Respondent, the land granted him was described as Plot No L. I. 42. That it went into possession and had been in undisturbed possession until 2014 when it realised encroachment on the land. Further that all attempts to stop the Appellant from its trespassory activities went unheeded.

Appellant on the other hand, stated in its statement of defence that by a Deed of Lease dated the 27th of December, 2006 and later varied by a Deed of Variation of 29th April, 2008, the Lands Commission granted it Plot No 41 being a 2. 22 acres of land for a period of fifty years. That it subsequently caused same to be registered at the Land Title Registry with a land certificate issued