NANA EGUADZI ESSOUN III & ANOTHER v. EKOW KOOMSON
2006
COURT OF APPEAL
GHANA
CORAM
- OWUSU, JA {PRESIDING}
- PIESARE
- MRS. ABBAN, JJA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2006
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This appeal arises from a dispute over burial practices on Kwasimintsim stool lands in the Western Region of Ghana. The Appellants sought to restrain Respondent R and the Ekissi family from burying Madam Araba Badu (also known as Kokura Badu) and any other deceased person in the Kwasimintsim Royal cemetery unless Kwasimintsim customary law and rites were observed. After the High Court declined interim relief, the Respondent successfully moved to strike out the suit, contending the burial had already occurred, that no cause of action was disclosed, and that the relief was against public policy. On appeal, the Court of Appeal (per Owusu JA, presiding, with Piesare and Mrs. Abban JJA) struck out an additional ground filed without leave, held Order 25 rule 4 does not support dismissal on public policy grounds, but found the any deceased person claim not justiciable. Exercising its powers under rule 31(d), the Court dismissed the action as vexatious and, in substance, dismissed the appeal.
OWUSU, JA:
By their writ of summons, the Plaintiffs/Appellants hereafter referred to as Appellants claimed against the Defendant/Respondent to be hereafter referred to as Respondent“an order of the court restraining the defendant and/or his Ekissi family of Kwasimintsim, their privies, servants, agents, workmen etc.
from burying the corpse of Madam Araba Badu (a. k. a Kokura Badu) or any deceased person on Kwasimintsim stool lands particularly, the Kwasimintsim Royal cemetery, without observing the customary law and practice of Kwasimntsim Traditional Area and performing the required customary rites to the Plaintiffs.
The Plaintiffs thereafter followed with an application for interim injunction to restrain the defendant and or his family from burying or facilitating the burial of corpses on Kwesimintsim lands pending the determination of suit.
The application was dismissed by the court.
The Defendant then filed a motion on notice for an order striking out the suit in terms of the supporting affidavit.
Paragraphs 4, 5 and 6 in particular state as follows: “4. That before the institution of this action, the said Madam Araba Badu had already been buried.
5. That the writ of summons discloses no cause of action.
6. That the whole action is also against public policy.
On 21/5/04. the trial court presided over by His Lordship Robin B. Batu J. dismissed the suit under Order 25 rule 4 of the High Court (Civil Procedure) Rules, LN 140A.
It is against this ruling that the Plaintiffs have appealed to this court contending that: i. “The Plaintiffs claim was justiciable and did not offend public policy and the court erred in striking out the Writ of Summons. ”ii “The Judgment/ruling/decision of the court is erroneous in Law as the Defendant/Applicant’s application did conform with or 25 r 4 of the High Court Civil Procedure Rules LN 140 A. ”As indicated in the Notice of Appeal, the Plaintiffs filed 1 additional ground that “the Application to strike out the suit filed by the Defendant on 1/4/04 is not warranted by the Rules of court and the court ought not to have countenanced it.
This additional grounds was filed without leave of the court in contravention of rule 8(7)of the Court of Appeal Rules C. I. 19 of 1997 which states that –“The appellant shall not, without the leave of the court, urge or be heard in support of any ground or objection not mentioned in the notice of appeal, but--------------”The Appellant shall therefore not be heard on that ground