PATRICK KUNTOR v. NUUMO KLOTIA AKOR & ORS
2012
COURT OF APPEAL
GHANA
CORAM
- DUOSE, J.A. (PRESIDING)
- ACQUAYE, J.A.
- AYEBI, J.A.
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Evidence Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Court of Appeal decision, authored by Justice E. K. Ayebi and concurred in by Justices Isaac Duose (presiding) and K. A. Acquaye, arises from a land dispute at Oyarifa in which the plaintiff sought title to approximately 37.6 acres, expunging of the 5th defendant’s registration, recovery of possession, injunction, and damages for trespass. While the 6th defendant/appellant filed a defence, he asserted he was never served with the plaintiff’s reply, the application for directions, or a hearing notice, and the High Court proceeded to hear the plaintiff alone on 21 November 2008, entering judgment on 20 February 2009. Reviewing conflicting registry searches and the absence of any certificate or affidavit of service, and noting that directions were not shown to have been taken, the Court held that failure to serve hearing notice violated audi alteram partem, went to jurisdiction under Order 81, and rendered the trial and judgment a nullity. The appeal was allowed, the judgment set aside, and a trial de novo ordered.
AYEBI J. A.
This is an appeal against the judgment entered against the 6th defendant/appellant on 20th February 2009 and full reasons given on 13th March 2009. It is a land suit in which the plaintiff/respondent claimed against the 7 defendants as follows: (a) Declaration of title to a piece of land at Oyarifa containing an approximate area of 37. 6 acres more or less.
b) A declaration that the decision of 5th defendant to register the land in her name is fraudulent.
c) An order for recovery of possession of all portions of the land entered upon, purportedly alienated or developed by 1st to 6th defendants.
d) An order directed at the 7th defendant to expunge from its records the purported registration of 5th defendant.
e) An order of perpetual injunction restraining the defendants, their servants, privies etc.
from ever entering upon, alienating, developing and interfering with plaintiff’s possession and/or quiet enjoyment of the land.
f) Damages of trespass.
On 7th February 2008, the 1st and 2nd defendants entered an appearance but failed to file any statement of defence thereafter.
The 3rd, 4th and 5th defendants never entered any appearance at all.
Thus on 16th May 2008, the court entered interlocutory judgment in default of defence against 1st and 2nd defendants and adjourned the matter for assessment of damages.
Against the 3rd, 4th and 5th defendants, the court on 13th June 2008 entered interlocutory judgment in default of appearance.
In the case of the 6th defendant/appellant, his lawyers Asomani & Associates entered an appearance for him on 30th January 2008 and then filed a statement of defence on 1st February 2008. In the said statement of defence, 6th defendant/appellant denied the claim of the plaintiff/respondent and put him to strict proof thereof.
In a reply to 6th defendant/appellant’s statement of defence filed on 6th May 2008, the plaintiff/respondent joined issues generally with the defence of the 6th defendant.
Plaintiff/respondent followed up with an application for directions filed on 12th June 2008 with a return date for 20th June 2008. The 6th defendant/appellant’s complaint in this appeal begins from this point.
It is the case of the 6th defendant/appellant that after filing his statement of defence, he never heard any thing about this matter from the plaintiff/respondent.
This is because the reply to his defence and the application for directions were never served on him.
Further, he was never served with any noti