POKU AND ANOTHER v. KWAO AND ANOTHER
1990
SUPREME COURT
GHANA
CORAM
- ADADA
- TAYLOR
- FRANCOIS, WUAKU
- AMUA-SEKYI JJ.S.C
Areas of Law
- Civil Procedure
- Property and Real Estate Law
1990
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Yaw Omenako and Yaw Yehowa issued an originating summons against Theophilus Kojo and Komesor for ¢24,000 related to the sale of Meyewa lands. The claimants denied the interest and connected it to unrelated costs. Despite procedural missteps, the trial proceeded, resulting in a favorable decision for the plaintiffs, ruling that the lands were sold to Kwahu farmers. On appeal, procedural irregularity was challenged. The Court of Appeal affirmed the High Court's decision, but the Supreme Court found the original procedure fatally defective, emphasizing that actions involving significant factual disagreements should be started by writ. The Supreme Court invalidated the proceedings and offered parties the liberty to refile correctly.
These proceedings were commenced by an originating summons taken out by Yaw Omenako and Yaw Yehowa, as the applicants, against Theophilus Kojo and one Komesor, as the claimants. By it the claimants were called upon to show the extent of their interest in an amount of ¢24,000 which the applicants said, was the balance of the purchase price of certain lands, known as Meyewa, sold to Kwahu farmers whom they represented, by a syndicate of Krobos acting by Kojo, the first claimant.
Upon being served with the summons, Kojo Komesor deposed to affidavits in which they denied having any interest in the sum stated on the summons. They admitted that there had been negotiations between the Kwahu farmers and Kojo for a sale of land but said that the projected sale was repudiated by the Krobos. They said that although an amount of ¢5,000 was paid this was in respect of costs in certain litigation between Kojo and one Dankwa.
One would have thought that upon being served with the affidavits the solicitor for the applicants would discontinue the proceedings and issue a writ for a determination of the issue as to whether or not the lands had been sold to the applicants. Unfortunately, this was not done and the parties acquiesced in an order for pleadings being made by Amuah J. These having been filed, the case proceeded as though it had been commenced by writ. Apatu-Plange J. who heard the suit found that Meyewa lands had in fact been sold to the Kwahu farmers and held the Krobos to be entitled to receive the ¢24,000 paid into court.
On appeal to the Court of Appeal it was argued that the trial was irregular and that the declaration made of the applicants' title to the land was beyond the competence of the judge. Counsel for the applicants, i.e. the plaintiffs below, conceded that the proceedings ought not to have been commenced by originating summons. He however contended that as pleadings were ordered by the court, and the parties had in compliance with that order filed them, the defect had been cured. The Court of Appeal said that the commencement of the proceedings by originating summon was proper, and that even though the judge should have ordered that a writ of summons be issued, he was acting within his powers when he ordered instead that pleadings be filed. It dismissed the appeal and affirmed the decision of the trial court on the merits. The claimants, i.e. the defendants, have appealed to this court and raised again the issue of the propriety of commencing th