The Republic v. New Juabeng Municipal Assembly & ORS
2016
COURT OF APPEAL
GHANA
CORAM
- Adjei, J.A. (PRESIDING)
- Sowah, J.A.
- Mensah, J.A.
Areas of Law
- Civil Procedure
- Evidence Law
- Contract Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involves an applicant seeking a writ of mandamus and prohibition regarding a store allocation that was allegedly fraudulently transferred by her brother. The High Court dismissed her application as it was filed out of the statutory 6-month limit. On appeal, the Court of Appeal upheld the dismissal, emphasizing the mandatory nature of the statutory time limit and the need for explicit pleading and strict proof of fraud. The court also found that the applicant failed to contest the time limit issue initially. As a result, the appeal was dismissed.
SOWAH, J.A:
The Applicant/Appellant [hereafter referred to simply as the Applicant] filed an application under Order 55 rules 1, 2, 3 and 4 of The High Court (Civil Procedure) Rules, 2004 (C. I.47) for the Prerogative Writ of Mandamus and Prohibition in the nature of The Motion on Notice filed on 25th March 2014 prayed the Court for the prerogative writ of mandamus to compel the new Juaben Municipal Assembly to remove from the record on Store number 32A Kumasi Station Koforidua the name of Ruth Asiedu or any other name or names and Restore thereto the name of Madam Elizabeth Boateng and prohibition to prohibit Ruth Asiedu from operating her business and or trade from the said store No. 32.The affidavit and supplementary affidavit with exhibits attached which were filed in support of the Application were deposed to by Matilda Otiwaah who purported to be the holder of a power of attorney donated by the applicant.
She deposed that the market stall, namely, Store No. 32, Kumasi Station, Koforidua which is the subject-matter of the application was allocated to the applicant in 1999 by the 1st respondent Assembly.
The applicant left the jurisdiction to the United States of America in 2000 and left her business in the store and the store to her, that is, to the lawful attorney.
However the 3rd Respondent [described in the applicants Statement of case as a brother of the applicant] had by use of a fraudulent power of attorney purported to have been donated by the applicant transferred the interest of the applicant in the store to the 2nd respondent.
The lawful attorney further deposed that upon becoming aware of the fraud, a request was made by her lawyer to the 1st respondent per a letter dated 2nd August 2013 for restoration of the store to the applicant as well as restoring the applicants name in the official records of the Assembly which the 1st respondent has The application was opposed by the 1st and the 2nd respondents.
It does not appear that the 3rd respondent was served with the process and he did not file any process.The defence of the 1st respondent was that the store in contention is the bona fide property of the 1st respondent Assembly and was allocated to the applicant in 1998.
There was an agreement to the effect that no tenants should sub-let or sell the store.
Furthermore,it was agreed that a store would be taken over by the 1st respondent if a tenant left the jurisdiction.
That it came to its notice in 2008 that the applicant had le