April 29, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana reviewed a further appeal by appellants who had earlier obtained a chieftaincy judgment from the Judicial Committee of the Greater Accra Regional House of Chiefs and, with High Court leave, enforced a writ of possession over the Gbese palace. Respondents, claiming actual possession and lack of notice under Order 43 rule 3(3), sued in the High Court to set aside the writ and restrain interference. The High Court granted reliefs; the Court of Appeal affirmed. At the Supreme Court hearing, acting under rule 6.8 of CI 16, the panel raised whether commencing the challenge by writ was competent. Delivering the majority opinion, Gbadegbe JSC held that the grievance sounded in irregular execution and had to be addressed by motion under Order 81 in the court that issued leave. Proceeding by writ was a fundamental defect not rectifiable at that stage. The Court also found the pleadings concerned possession of Gbese stool property, a chieftaincy matter outside High Court jurisdiction. The appeal was allowed; the Court of Appeal’s judgment was set aside; the writ of summons was set aside.
GBADEGBE JSC:
This is an appeal from the unanimous decision of the Court of Appeal dated 6tth November, 2008 that affirmed the decision of the trial High Court in the matter herein. The circumstances under which the proceedings herein arise before us may be stated thus. The defendants/appellants/appellants to whom I shall hereafter for convenience refer as the appellants obtained judgment in a cause affecting chieftaincy before the Judicial Committee of the Greater Accra Regional House of Chiefs on 17 February 2003 in a case entitled Nii Tetteh Ahinakwa 11 and Another vs. Nii Ayitey Agbofu 11and Another. Subsequently, they applied for and obtained from the High Court, Accra leave to go into execution of the said judgment. Following the grant of leave to the appellants, it appears that they caused steps to be taken to enforce the writ of possession against the execution debtors in the said action. Following the said execution, the plaintiffs/respondents/ respondents to whom I shall hereafter conveniently refer as the respondents took out the writ of summons herein before the High Court, Accra that sought an order setting aside the writ of possession granted by the High Court Accra on 22 May 2007 and also an order of perpetual injunction restraining the defendants (appellants herein) from interfering with their possession of the Gbese palace. The action proceeded to trial at the end of which the learned trial judge of the High Court granted the reliefs sought by the respondents. The appellants claiming to have been aggrieved by the delivery of the High Court lodged an appeal there from to the Court of Appeal. On the 6 November 2008, the Court of Appeal delivered its judgment in the matter herein by which the appeal of the appellants herein was dismissed. The instant proceedings are as a result of a further appeal lodged by the appellants from the decision of the Court of Appeal.
Before us, the parties have submitted their respective statements of case in compliance with the rules of this court. When the matter came before us for hearing on 12th January 2010, acting under the authority conferred on us by rule 6.8 of the Supreme Court Rules 1996 [CI 16], we raised for the consideration of the parties the question whether the action herein, which was commenced in the trial High Court by the issue of a writ of summons on 2nd August 2006 was competent? The issue raised in our view by the said point touches and concerns a matter of practice and procedure that