NII OKWEI KINKA DOWUONA v. vs DUES CLUB & ANOTHER
February 17, 2022
COURT OF APPEAL
GHANA
CORAM
- B. F. ACKAH-YENSU, JA (PRESIDING)
- J. BARTELS-KODWO, JA
- G. K. KOOMSON, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
February 17, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Presiding Justice Barbara Ackah‑Yensu, joined by Justices J. Bartels‑Kodwo and G. K. Koomson, addressed whether the High Court could set aside its own final judgment at the behest of a non‑party, the Lands Commission. The Osu Mankralo, substituted for the original plaintiff, had obtained a final judgment on 29 January 2019 declaring that historic leases (1936 and 1949) had expired and that the land and buildings reverted to the Osu Stool, with damages and costs. Defendants repeatedly failed to attend trial and their defence was struck out; post‑judgment attempts to set aside, stay, or extend time were refused, and partial execution occurred. Afina Assets & Management Company Limited’s interpleader failed. The Lands Commission then moved to set aside, claiming injury to rent and reversion. The Court of Appeal held the High Court lacked jurisdiction: the judgment was not a default judgment; the stranger procedure applies only to default judgments; the motion was out of time under Order 36 Rule 2(1); the High Court was functus officio; and no reasons were given, contrary to Article 296. The appeal was allowed and the final judgment restored.
B. ACKAH-YENSU, JA
INTRODUCTION
The crucial issue for determination in this appeal is procedural. It involves the determination of the question whether the trial High Court was right in setting aside its final judgment regularly obtained by the Plaintiff/Appellant on the 29th of January, 2019 upon an application by the Applicant/Respondent under the inherent jurisdiction of the High Court, on the ground only that the Applicant/Respondent was not a party to the suit and was not heard at the trial court, but is injuriously affected by the judgment.
BACKGROUND FACTS
The Plaintiff/Appellant (hereinafter referred to as the “Appellant”) by an Amended Writ of Summons and Statement of Claim filed on the 19th of March, 2018, claimed against the Defendants inter alia for: a declaration that the leases dated 20th October, 1936 and 14th July, 1949 had expired and the land together with the buildings thereon automatically and absolutely vested in Plaintiff stool in accordance with Clause 9 of the said leases; and an Order for Recovery of Possession or Ejectment of Defendants. After close of pleadings between the Plaintiff and the Defendants therein, directions were taken and were ordered to file their respective witness statements and pre-trial check-lists which the Appellant herein as plaintiff therein complied with, but the Defendants therein failed to comply even after several adjournments.
On the 29th of January, 2019, the Defendants and their lawyer, though aware of the hearing date, failed to appear in court. The trial court proceeded to hear the case after which it delivered its final judgment in favour of the Appellant. The Defendants, dissatisfied with the final judgment of the trial court, filed a motion to set same aside but the trial court in its Ruling on 21st February, 2019 refused to set the judgment aside.
The Defendants thereafter filed an appeal on the 2nd of March, 2019 against the final judgment and the Ruling of the trial court refusing to set aside its final judgment. They also filed an application for Stay of Execution of the judgment of the trial court pending appeal, but the trial court in its Ruling on 22nd May, 2019 refused the application. The Appellant herein was subsequently granted leave to issue Writ of Possession to recover the property in dispute.
Again, the Defendant on the 26th of June, 2019 filed an application for extension of time at the trial court to file another Notice of Appeal to appeal against the final judgment and t