NII OTSWI OHETSE ADOTEI IV v. MR. BENJAMIN ASHITEY QUARSHIE & ORS
2021
COURT OF APPEAL
GHANA
CORAM
- ADJEI, J.A;
- GAISIE, J.A
- DARKO, J.A;
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
On 22 December 2020, the Plaintiff/Appellant, Nii Akwei Adotey, appealed to the Court of Appeal from a High Court, Adentan ruling of 10 December 2020 that stayed proceedings in his land title suit because the 3rd–6th Defendants had previously sued him in the High Court, Lands Division, Accra over smaller parcels at Adoteiman. Adotey’s present suit seeks declarations of title to 8.04 acres on his family land; nullification of a lease to the 1st and 2nd Defendants and their subsequent grants to others; injunction; recovery; demolition; and damages. The trial judge applied lis alibi pendens and treated the mixed motion under Order 81(1) as an irregularity. Writing the lead judgment, Dennis Adjei JA held lis alibi pendens did not apply because the plaintiffs in the two suits were different, the parties and subject were not the same, and the High Court cannot choose which suit proceeds; consolidation was the appropriate course. The Court of Appeal set aside the stay. Amma Gaisie JA concurred; Yaw Darko Asare JA added procedural observations emphasizing pleading and hearing all parties.
ADJEI, J.A:
The Plaintiff/Appellant on 22nd December, 2020 filed an interlocutory appeal against a ruling delivered by the High Court, Adentan, Accra on 10th December, 2020 in which the trial High Court Judge stayed the proceedings in the matter before it on grounds that there was a pending case commenced by the 3rd to 6th Defendants/Appellants against the Plaintiff Appellant herein involving the same subject before the High Court, Accra.
The Plaintiff/Appellant dissatisfied with the ruling filed an appeal against same to this Court to set aside the ruling for the matter to proceed to trial. For the purposes of this appeal, the Plaintiff/ Appellant shall be described as Plaintiff, the 1st and 2nd Defendants shall maintain their designation as 1st and 2nd Defendants, and the 3rd to 6th Defendants/Appellants as 3rd to 6th Defendants. The 1st and 2nd Defendants did not appeal against ruling which is the subject matter of this appeal.
The brief facts of the case were that the Plaintiff instituted the action which has culminated to this appeal against the Defendants jointly and severally for ownership to title to 8.04 acre land forming part of the Plaintiffs’ family land, a declaration that Defendants failed to pay consideration to the Plaintiffs’ family for the lease, an order setting aside the lease made between the Plaintiffs and the 1st and 2nd Defendants, an order setting aside the subsequent grants made by the 1st and 2nd Defendants to the other Defendants, and order for perpetual injunction, recovery of possession and demolition, and general damages.
The 1st and 2nd Defendants entered appearance and subsequently filed statement of defence and counterclaim. The 3rd to 6th Defendants upon service of the writ and statement of claim entered conditional appearance. The conditional appearance entered by the 3rd to 6th Defendants by operation of law became appearance after they had failed to file a process either to challenge the validity of the writ or set aside the writ or service of same within 14 days upon filing it. The Plaintiffs filed an application for judgment in default of defence after the conditional appearance has become appearance by operation of law. The 3rd to 6th Defendants on 18th November, 2020 filed an application to set aside the writ of summons and statement of claim, or stay proceedings, or consolidate on grounds of lis alibi pendis and abuse of the court process.
The 3rd - 6th Defendants position was that they filed an action in the