NAA KWARLEY QUARTEY VS OBED HOYAH
2024
COURT OF APPEAL
GHANA
CORAM
- BARTELS-KODWO, J.A. (PRESIDING)
- ASARE-BOTWE J.A.
- OWUSU-DAPAA J.A.
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Family Law
2024
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Bartels-Kodwo J.A. (presiding), set aside a High Court order that had granted leave for the Respondent to issue a writ of possession to take the 3-bedroom NTHC house at No. 2B, Palm Link Road, Nmai Djor, Accra. The underlying dispute involves two NTHC estate houses (a 2-bedroom and a 3-bedroom) that the High Court in November 2014 ordered to be shared equally between the parties, a decree later affirmed by the Court of Appeal (with only a variation of financial provision). Despite this, the Respondent sought possession of just the 3-bedroom house, supported by an entry of judgment later shown to be inaccurate and by affidavits asserting a personal preference for that house. Emphasizing that the properties disposition was inseparable and that execution must not overreach the judgment, and relying on Supreme Court guidance (Nene Narh Martti v Osei Godwin Teye) and principle from Agbemakor v Datsor, the Court held the High Court erred. The appeal was upheld, and costs of GH20,000 were awarded to the Appellant.
BARTELS-KODWO JA:-
Introduction:
This is an appeal against the ruling of the High Court dated 23rd February, 2022 granting leave to Petitioner/Applicant/Respondent to issue writ of possession in respect of the 3 bedroom NTHC house in No. 2B, Palm Link Road.
On the 10th of November, 2014 the High Court gave judgment in this case between the parties therein as Petitioner and Respondent. In this Appeal they will be referred to as Respondent and Appellant respectively. Judgment was entered against the Appellant and among other reliefs granted the Respondent it was adjudged that the NTHC property at Nmai Djor comprising a 2 and 3 bedroom house be shared equally by the parties to the suit in a 50/50 percentage. The judgment was appealed against however the Court of Appeal differently constituted on the 30th of July, 2018 except for varying the order for financial provision affirmed the High Court’s judgment and the ordered remained that the two properties in issue mentioned above be settled on both parties on a 50:50 basis.
It is this same property that is the subject matter of the present appeal. Following the affirmation of the trial court’s judgment by the Court of Appeal the Respondent filed a motion on notice for leave to issue a Writ of Possession in respect of the 3 bedroom NTHC property at Nmai Djor which the trial judge granted.
Unenthused with this decision granting leave to Respondent to issue writ of possession in respect of the 3 bedroom NTHC house in No. 2B, Palm Link Road the Appellant is praying for same to be set aside. At page 86 of the ROA the grounds of appeal are formulated as follows:-
Grounds of Appeal:
a. The High Court Judge with due respect erred in granting leave to Petitioner/Applicant/Respondent to issue writ of possession in respect of the 3 bedroom NTHC house in No. 2B Palm Link Road, Nmai Djor contrary to the judgment of the Court of Appeal which affirmed the decision of the High Court.
b. The learned Judge by granting the leave to the Petitioner to issue writ of possession in respect of the 3 bedroom NTHC house varied the judgment of the court.
c. The learned Judge erred in giving consideration to the service of the entry of judgment filed in the Court of Appeal rather than inaccuracy of the entry of judgment.
d. The learned High Court Judge erred when it ignored obvious omission in the entry of judgment which needed an amendment before action can be taken on it.
e. The learned High Court Judge erred in placing premium