PAUL SANKOFI TETTEH & ANOR. v. AWO CHOCHOE BOTCHWAY & ANOR.

IRENE CHARITY LARBI J.A

(1.) This is an interlocutory appeal emanating from the decision of the High Court, Winneba dated 29th March, 2019.

(2.) The Plaintiffs/Respondents (hereafter referred to as the Respondents) by an amended Writ of Summons filed on the 11th day of May, 2018 against the Defendants/Appellants (hereafter referred to as the Appellants) claimed as follows:

“(a) A declaration that the Defendant not being a member of

the Gyandodey Anona Family cannot take any benefit under the consent judgment dated 22nd December, 2004 in the Suit No.LS 58/2002 entitled: Nai Otuo Tetteh Vrs Opanyin Kwadwo Ababio;

(b) Damages for trespass.

(c) Recovery of possession.

(d) An order for account of all the sand sold at Amadua

lands.

(e) Perpetual injunction restraining the Defendant by himself, agent, assigns, privies, workmen, servants, executors, personal representatives or however from dealing with or having anything to do with the properties in dispute.

(f) Cost including solicitors legal fees”.

The Appellant filed a statement of defence and counterclaim on the 6th day of August, 2018.

(3.) The Appellants subsequently filed an application to dismiss the suit on grounds that:

“ i) The instant action be dismissed on the grounds of res judicata, the issues in this action having been determined and adjudicated upon in an action between the same parties and their privies intituled NAI OTUO TETTEH V. OPANYIN KWADWO ABABIO: SUIT NO. LS 58/02 which culminated in the judgment of the Supreme Court dated 14th February, 2018; alternatively,

ii) The instant action be struck out on the ground that it has been brought for the same matter as an action now pending between the same parties and/or their privies in the High Court, Agona Swedru entituled: NAI OTUO TETTEH & ANOR VRS. OPANYIN KWADWO ADU II & ANOR: Suit No. C12/29/2015; or in the further alternative;

iii) The instant action be dismissed as frivolous and vexatious and an abuse of the process of the Court and the Plaintiffs pay to the Defendants cost of this action and of this application”.

(4.) After written submissions had been filed by the parties, the trial Court refused the Appellants’ application on the 29th day of March, 2019.

(5.) Dissatisfied with the ruling of the trial Court, the Appellants appealed to this Court on the following grounds:-

“a. The trial judge did not adequately consider the Appellants’ case.

b. The ruling was against the weight of evidence.

c. Other grounds may be filed