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
- Customary Law
2006
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
In this case, the Plaintiffs sought to restrain the Defendant from burying deceased persons on certain lands without observing customary law. Their initial application for injunction was dismissed and the Defendant succeeded with a motion to strike out the suit. The trial judge dismissed the suit under Order 25 rule 4 for disclosing no cause of action and a perceived conflict with public policy. The Plaintiffs appealed, but the appeal was dismissed. The higher court found that public policy concerns were not grounds for dismissal under Order 25 rule 4, but struck out the suit as vexatious, confirming that inherent jurisdiction should not be used if an alternative remedy is available.
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