GTI PROPERTIES LTD VRS. ADARKWAH (LD/1002/2019) [2024] GHAHC 128 (25 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON TUESDAY THE 25TH DAY OF JUNE, 2024 BEFORE HER LADYSHIP NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. LD/1002/2019 GTI PROPERTIES LTD - PLAINTIFF VS ADOLF ADARKWAH - DEFENDANT RULING I. PLAINTIFF’S CASE 1. The Plaintiff instituted the instant action by a Writ and Statement of Claim filed on 16th July 2019. It is the case of the Plaintiff as stated in paragraphs 4 and 5 of its Statement of Claim that sometime in the year 2016, it acquired the unexpired interest of Antartic Contract Works Ltd. in a parcel of land, measuring 0.53 acres and situate at Ashalley Botwe in Accra. The parcel of land is hereafter referred to as the “subject land/property”. 2. The Plaintiff added in paragraph 6 of its Statement of Claim that after acquisition it went into possession of the subject land and enjoyed peaceful possession until sometime in December 2016 when its attention was drawn to the attachment of buildings on the subject land in execution of a purported __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 1 of 36 judgment obtained by a company known as Admix Company Limited against a company known as RLG Communications Ltd. 3. It is the case of the Plaintiff that although it had acquired the subject land and was in possession of same, its attention was not drawn to the suit instituted by Admix Company Limited against RLG Communications Ltd and this was an “apparent illegality”. 4. It is the further case of the Plaintiff as stated in paragraph 13 of the Statement of Claim that the Judgment Debtor, RLG Communications Ltd, had no lawful interest in the subject land. 5. Thirdly, it is the case of the Plaintiff that when it came to its attention that Judgment had been obtained Admix Company Limited in respect of the subject land, it immediately filed a Notice of Claim to challenge the apparent illegality and purported unlawful attachment of the buildings on the subject land, however it was not served with any processes pursuant to the Notice of Claim it filed and Interpleader proceedings were conducted and determined without its notice and for that matter without being offered an opportunity to be heard. 6. The Plaintiff stated that it came to its attention that the Defendant herein had acquired the subject property at a purported auction when the Defendant applied for possession of the subject property and forcible entry. 7. The Plaintiff added that in the face of the Notice of Claim that it had filed, the purported auction by which the Defendant claims to have acquired the subject land was apparently orchestrated to dispose of his property, the subject land. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 2 of 36 8. It is the case of the Plaintiff that all attempts to prevent the Defendant from unlawfully taking possession of the subject property has proved futile hence the instant action seeking the following reliefs against the Defendant: i. Declaration of title to all that parcel of land situate at Nmai Dzorm near Ashalley Botwe, Accra, containing an approximate area of 0.53 of an acre or 0.21 of a hectare; bounded on the North-East by a road measuring 245.0 feet more or less, on the North by a road measuring 115.1 feet more or less and on the South-East by a road measuring 100 feet more or less and on the South-West by the Assignor’s Land measuring 185.2 feet more or less. ii. Order for recovery of possession of the land which is the subject of the Defendant’s trespass. iii. Perpetual injunction restraining the Defendant, his assigns, workmen, servants, privies, associates and agents from interfering with the land. iv. Damages for trespass. v. Cost. II. DEFENCE AND COUNTERCLAIM OF THE DEFENDANT 9. In a Statement of Defence and Counterclaim filed by the Defendant on 1st April 2021, the Defendant confirmed the Plaintiff’s claim that a company known as Admix Company Limited sued another company known as RLG Communications Ltd. The Defendant however added that Admix Company Limited and RLG Communications Ltd. filed Terms of Settlement in the High Court, Commercial Division and the Terms of Settlement as filed were adopted as Consent Judgment on or about 16th December 2014 and hereafter also referred to as “Judgment”. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 3 of 36 10. The Defendant also stated that RLG Communications Ltd refused or ignored to act in accordance with the said Judgment. Admix Company Limited therefore commenced execution processes against RLG Communications Ltd by way of a writ of Fieri Facias and properties of RLG Communications Ltd. including the subject property were seized. 11. The Defendant specifically mentioned a number of applications filed by the Plaintiff herein after Admix Company Limited commenced execution processes and stated that the applications were all dismissed by the High Court and on appeal by the Plaintiff. 12. The Defendant added that in the many applications filed by the Plaintiff herein after Admix Company Limited commenced execution processes, the Plaintiff did not state that it had any interest in the subject land. 13. It is thus the case of the Defendant that the many applications filed by the Plaintiff were simply intended to frustrate the execution of the Judgment of the High Court Commercial Division against RLG Communications Ltd. 14. The Defendant noted and stated that in the case instituted by Admix Company Limited against RLG Communications Ltd, RLG Communications Ltd. was represented by the same lawyers who represent the Plaintiff in the instant action. The Defendant also noted and added that the address of the Plaintiff is the same as the address of its lawyers. For these reasons, the Defendant stated that RLG Communications Ltd. has contrived with the Plaintiff herein to avoid the execution of the Judgment of the High Court, Commercial Division by establishing the Plaintiff which has the same address as its lawyers. 15. It is the further case of the Defendant that he was provided with all the necessary information about the subject property before he made a bid and won or legally purchased __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 4 of 36 the property at a public auction. He added that he has also been issued with a Certificate of Purchase. 16. The Defendant therefore counterclaimed for a declaration that the auction sale at which he purchased the subject property was lawfully conducted in accordance with the Orders of the High Court, Commercial Division Accra and that he legally purchased the subject property. III. PLAINTIFF’S REPLY AND DEFENCE TO COUNTERCLAIM 17. The Plaintiff filed a Reply and Defence to the Defendant’s Defence and Counterclaim on 3rd February 2023. The Plaintiff denied that it has been set up by RLG Communications Ltd or that the instant action has been instituted to frustrate the execution of the Judgment of the High Court Commercial Division against RLG Communications Ltd. 18. The Plaintiff admitted that after the Judgment was obtained by Admix Company Limited, it filed the many applications specifically mentioned by the Defendant in his Statement of Defence and Counterclaim. It however denied that the applications were intended to frustrate Admix Company Limited, the Judgment Creditor from going into execution. 19. In respect of the Notice of Claim mentioned by the Defendant as one of the applications filed by the Plaintiff after the Judgment, the Plaintiff maintained that the interpleader proceeding held after it filed the Notice of Claim was heard and determined in its absence and without the service of any order on the Plaintiff requesting the Plaintiff to attend Court for the matter between the Plaintiff and the Judgment Creditor, Admix Company Limited to be determined. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 5 of 36 20. The Plaintiff also admitted that it filed an application for stay of execution of the Judgment obtained by Admix Company Limited against RLG Communications Ltd. The Plaintiff however added that its application for stay of execution was filed pending the determination of a fresh action instituted by RLG Communications Ltd, by a Writ and Statement of Claim filed on 22nd July 2016 against Admix Company Limited. 21. The Plaintiff maintained that it is entitled to the reliefs it seeks by the instant action and the Defendant’s Counterclaim should be refused. IV. CONDUCT OF THE CASE 22. The record of the Court indicates that judgment in default of defence was given against the Defendant by this Court differently constituted. The Defendant however successfully applied for the Judgment in default of defence to be set aside and the Defendant was given an opportunity to defend the case, following which he filed his Defence and Counterclaim. 23. The record of the Court also indicates that on 27th July 2023 the matter was adjourned to 3rd November 2023 so that Counsel for Plaintiff who had filed a Reply and Defence to Counterclaim out of time could file an application for directions if he was minded to do so. 24. The suit was transferred to this Court by an Order of transfer made by the Chief Justice on 30th October 2023. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 6 of 36 25. There is no indication on record that application for directions was filed by either party or heard. 26. When the matter first came before this Court on 4th March 2024, Counsel for the Parties informed the Court that they were engaged in attempts at an amicable settlement out of Court and requested an adjournment to conclude the settlement discussions. The matter was thus adjourned for Counsel for the Parties to announce settlement. 27. On 8th May 2024 however, Counsel for the Defendant informed the Court that the attempts at settlement had not been successful and requested the Court to give directions for the further conduct of the case. 28. In view of the pleadings filed and the reliefs sought by the Parties, the Court directed Counsel for the Parties to file written submissions to answer why the instant action should not be dismissed as unsustainable and/ or an abuse of process of Court. The matter was adjourned for a Ruling. V. SUMMARY OF WRITTEN LEGAL SUBMISSIONS FILED BY COUNSEL FOR THE PARTIES 29. In written legal submissions filed by Counsel for the Plaintiff on 11th June 2024, the Plaintiff’s Counsel stated that the suit number for the action instituted by Admix Company Limited against RLG Communications Ltd. is Suit No. RPC/275/14. 30. Counsel for Plaintiff maintained as stated by the Plaintiff in its Statement of Claim that the Plaintiff herein was never a party to Suit No. RPC/275/14, however, in execution of the __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 7 of 36 Judgment of the Court against RLG Communications Ltd. the Plaintiff has suffered and will continue to suffer substantial injustice if the instant action is not determined. 31. Counsel for the Plaintiff added that the instant action has been instituted in good faith and does not amount to an abuse of the Court process. 32. In written legal submissions filed by Counsel for Defendant on 20th June 2024, Counsel for the Defendant rehashed the case of the Defendant and stated that: i. There is a subsisting Judgment entered by the High Court Commercial Division in respect of the land which is the subject of the instant action and arising from a case instituted by Admix Company Limited against RLG Communications Ltd. ii. After Judgment against RLG Communications Ltd, Counsel who acted for RLG Communications Ltd. in the case instituted by Admix Company Limited (Suit No. RPC/275/14) deposed to an affidavit in support of a Notice of Claim filed by the Plaintiff herein as Claimant and stated in the affidavit that she is a Director of the Plaintiff. iii. The Plaintiff has the same address as RLG Communications Ltd, and iv. The Plaintiff is represented by the same Counsel engaged by RLG Communications Ltd. in the case instituted by Admix Company Ltd. 33. For all of the reasons stated in paragraph 32 above, Counsel for the Defendant suggested as stated by the Defendant in his Statement of Defence and Counterclaim that the instant action has been instituted by lawyers of RLG Communications Ltd to prevent the execution of the Judgment against it. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 8 of 36 34. Counsel for Defendant submitted that as the instant action has been instituted by lawyers of RLG Communications Ltd. to prevent the execution of the Judgment against it and to suppress the Defendant’s enjoyment of property he has legally acquired and the action is an abuse of process of Court. 35. Counsel for the Defendant referred to the case of Lartey and Lartey Ltd. vrs Beany and Another [1987-88] 1 GLR 590, in which it was held per Cecilia Koranteng Addow J. (of blessed memory), at page 618 of the Report that: “…the Court has jurisdiction to stop an action which in law must necessarily fail. So, if a party seeks to raise an issue which has already been decided between the same parties by the Court of competent jurisdiction, this fact may be brought before the Court by affidavit and the Statement of Claim, though good on the face of it, may be struck out and the action dismissed, even though a plea of res judicata might not be strictly an answer to the action; it is enough if substantially the same point has been decided in prior proceedings.” 36. Relying on Lartey and Lartey Ltd. vrs Beany and Another (supra) Counsel for the Defendant submitted that as stated by the Defendant in his Defence and Counterclaim, the issues raised by the Plaintiff in the instant action have been conclusively determined and ruled upon by the Court of Appeal and prayed the Court to dismiss the action as an abuse of process of the Court with punitive costs. VI. ISSUE RAISED FOR DETERMINATION 37. The issue for determination raised by this Court is whether or not the instant action should be dismissed as an abuse of process of Court. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 9 of 36 VII. APPLICABLE LAW, ANALYSIS AND OPINION CONCEPT OF ABUSE OF PROCESS OF COURT 38. In the case of Kwaku Afranie v. Golden Age Company, Eric Kwasi Yeboah [Unreported; Civil Appeal No H1/40/2020; 1 April 2021; CA], His Lordship Tanko Amadu JSC presiding held dismissing the Appellant’s action inter alia as follows: “…the concept of abuse of process of judicial process is imprecise, as it involves circumstances and situations of infinite processes by a party in litigation to interfere with the due administration of justice. It is recognized that abuse of process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of judicial process to the irritation and annoyance of his opponents, and efficient administration of justice. This may arise in instituting a multiplicity of actions on the same subject matter against the same opponent on the same issue.” (Emphasis added) ABUSE OF PROCESS OF COURT STATED IN ORDER 11 RULE 18(1) OF C.I. 47 39. Order 11 Rule 18(1) of the High Court (Civil Procedure Rules) 2004 (C.I 47) provides as follows: The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that: (a) it discloses no reasonable cause of action or defence; or (b) it is scandalous, frivolous or vexatious; or __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 10 of 36 (c) it may prejudice, embarrass, or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (Emphasis added) 40. In Order 11 Rule 18 (2) of C.I. 47 it is further provided that no evidence whatsoever shall be admissible on an application under subrule (1)(a). APPROPRIATE CASES TO STRIKE OUT BY SUMMARY PROCESS 41. In Gbenartey & Glie vs. Netas Properties & Investments & Ors [2015-2016] 1 SCGLR 605, the Supreme Court held as reported in holding 2 at page 608 of the report that appropriate cases to determine by summary process pursuant to Order 11 Rule 18(1) of C.I. 47 are those that are clearly unsustainable. The Court held that: “The procedure for terminating proceedings by summary process should be applied only in cases where the action was clearly unsustainable, plain and obvious that it was beyond doubt that the case was arguably frivolous and vexatious, and even legitimate amendments could not cure the defect.” (Emphasis added) 42. In the English case of Portco Group Ltd vs Wragg [2002] EWCA Civ 594; 2 Llyod’s Rep 343 @ para [46], the Court of Appeal similarly stated that appropriate cases to strike out include where the Statement of Claim raises an unwinnable case, where continuing the proceedings is without any possible benefit to the respondent and would waste resources on both sides. 43. In the case of Three Rivers District Council v Bank of England [2001] 2 All __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 11 of 36 ER 513, Lord Hobhouse of Woodborough had this to say about cases worthy of being struck out summarily by the Courts: “There is no point in allowing claims to proceed which have no real prospect of success, certainly not in proceeding beyond the stage where their hopelessness has clearly become apparent”. (Emphasis added) OBJECT OF THE RULE IN ORDER 11 RULE 18(1) OF C.I. 47 44. The object of Order 11 Rule 18(1) of C.I. 47 has been explained by the Supreme Court in cases such as Dankwa & 3 Others v Anglogold Ashanti Ltd [2019-2020] 1 SCLRG 641 (Adaare), in which the Supreme Court speaking through Akoto Bamfo JSC (as she then was) stated that under its inherent jurisdiction, a Court has a “duty to terminate the claims which are not sustainable”. The Supreme Court explained that this is in accord with one of the overriding objectives of the enactment of the new Rules of Court of the High Court which is to ensure the expeditious delivery of justice with minimum delay as set out under Order 1 Rule 1(2) of C.I. 47. 45. Relying on the above-stated authorities, this Court therefore finds that under its inherent jurisdiction and in accord with the overriding objectives of C.I. 47, it has a duty to terminate any suit that is clearly unsustainable, or which has no prospect of success to ensure expeditious delivery of justice with minimum delay as set out under Order 1 Rule 1(2) of C.I. 47 and explained by the Supreme Court. WHAT MAY BE CONSIDERED __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 12 of 36 46. For the purpose of determining the issue raised, this Court invokes its jurisdiction pursuant to Order 11 Rule 18 (1)(d) of C.I. 47 so that it may consider not only the pleadings as filed, but also the affidavits and attached exhibits on record in arriving at a decision as to whether or not the instant action should be dismissed as an abuse of process of the Court. 47. In arriving at a determination that this Court may consider not only the pleadings but also affidavits and evidence on record in invoking its jurisdiction under Order 11 Rule 18(1)(d) of C.I. 47, to answer whether or not to dismiss the instant suit as an abuse of the process of the Court, this Court has considered that Order 11 Rule 18 (2) of C.I. 47 provides that no evidence whatsoever shall be admissible on application under subrule 1 (a). 48. The Court is therefore of the considered opinion that by the Rules of interpretation, the express mention in Order 11 Rule 18(2) of C.I. 47 that no evidence is admissible in applications made pursuant to Order 11 Rule 18(1)(a) of C.I. 47 indicates that in invoking the jurisdiction of the Court under Order 11 Rule 18 (1)(b) -(d) of C.I. 47, other evidence is admissible. 49. In support of the opinion of this Court stated in paragraph 48 above, this Court finds that in the Supreme Court Practice, 1999 Vol. 1 (White Book) at page 348, in paragraphs 18/19/5, the learned authors in explaining applications made pursuant to Order 18 Rule 19 of the English Rules which is an exact replica of Order 11 Rule 18 of C.I. 47 state as follows: “Where the only ground on which the application is made is that the pleading discloses no reasonable cause of action or defence, no evidence is admitted. Attorney General of the Duchy of Lancaster v. L. & N.W.Ry [1892] 3 Ch. 278; Republic of Peru v Peruvian Guanco Co. (1887) 36 Ch.D. 489 at 498: and where the only ground on which the statement of claim can be said to disclose no reasonable cause of action is that the action is unlikely to succeed, affidavit evidence is equally inadmissible. (Wenlock v Moloney [1965] 1 W.L.R. 1238; [1965] 2 ALL E.R. 871, C.A). __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 13 of 36 But in applications on any of the other grounds mentioned in the rule, or where the inherent jurisdiction of the court is invoked, affidavit evidence may be and ordinarily is used.” (Emphasis added) 50. Further, at page 352 of the Supreme Court Practice, 1999 Vol. 1 (White Book), specifically, in paragraphs 18/19/18, the learned authors in explaining applications made pursuant to Order 18 Rule 19(1)(d) of the English Rules which is an exact replica of Order 11 Rule 18(1)(d) of C.I. 47 state under the heading “Abuse of the process of the Court” as follows: “Para (1)(d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be “an abuse of the process of the Court”. (Emphasis added) 51. Thus, in the decision of the Court of Appeal in the case of Eastern Alloys Company Ltd, vs Silver Star Auto Ltd (Unreported; Suit No. H1/01/2016; dated 14th July 2016), the Court of Appeal held at page 3 of its Ruling referring to Order 11 Rule 18(1)(b) and (d) of C.I. 47 that: “By sub-rules 18(1)(b) and (d) under which the respondent moved the trial court, extrinsic evidence is permitted to demonstrate why the action is objectionable. The Court therefore looks at the evidence on record including pleadings, affidavits and exhibits filed in support of and in opposition to the application to arrive at its decision.” 52. See also the decision of the Supreme Court in Eastern Alloys Company Ltd v Silver Star Auto Ltd [2017-2020] 1 SCGLR 611 affirming the decision of the Court of Appeal in Eastern Alloys Company Ltd, vs Silver Star Auto Ltd (Unreported; Suit No. H1/01/2016; dated 14th July 2016). __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 14 of 36 53. In view of all the authorities referred to and analysis in paragraphs 47 to 52 above, in determining whether or not the instant action is clearly unsustainable and or an abuse of the process of the Court, pursuant to Order 11 Rule 18(1)(d) of C.I. 47, this Court will consider the pleadings, affidavits and attached exhibits available on record and filed by the Parties, as the understanding of this Court from the above-cited authorities is that Order 11 Rule 18 (1)(d) of C.I. 47 confers upon this Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be “an abuse of the process of the Court”. TIME TO CONSIDER WHETHER OR NOT A SUIT MAY BE DISMISSED SUMMARILY PURSUANT TO ORDER 11 RULE 18(1) OF C.I. 47 54. The Rules of Court state in Order 11 Rule 18(1) of C.I. 47 that the issue of whether or not a suit may be dismissed summarily pursuant to the Rule may be raised at any stage of the proceedings. 55. In the case of Gbenartey & Giles v Netas Properties & Investments & Others (supra), the plaintiffs filed application for directions in which they put up several issues for determination and upon service of same on the defendants, the first and second defendants filed three additional issues. The application for directions was taken, however the suit suffered several adjournments because the parties were exploring ways to settle the matter out of Court. It was after all these that the defendants filed a motion for the suit to be dismissed pursuant to Order 11 Rule 18(1) of C.I. 47 and the inherent jurisdiction of the Court. 56. Thus, in explaining the time within which an application filed pursuant to Order 11 Rule 18 (1) of C.I. 47 may be considered, the Supreme Court explained in the case of Gbenartey & __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 15 of 36 Giles v Netas Properties & Investments & Others (supra) per Anin Yeboah JSC (as he then was) at page 618 of the report that the position of the law on this matter has been succinctly stated in Bullen & Leake & Jacobs Precedents of Pleadings (18th ed) at page 141 as follows: “Although the application may be made at any stage of the proceedings, still it should always be made promptly and as a rule soon after the service of the offending pleading, though exceptionally it may be made after the pleadings are closed but the court may refuse to hear such an application after the action is set down for trial.” (Emphasis added) 57. In the case of Gbenartey & Giles v Netas Properties & Investments & Others (supra), at page 620 of the Report, the Supreme Court also referred to the book A Practical Approach to Civil Procedure (7th ed) by Professor Stuart Sime and stated that in this book the learned author relied on the case of Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 to support his proposition of law that if the trial court had itself set down the case for hearing, there was no point in entertaining the application when no exceptional circumstances existed. 58. As stated in paragraph 25 above, in the instant case, application for directions has not yet been filed and the action has not been set down for trial although pleadings have closed. 59. From the record of the Court, this Court also considers that there are exceptional circumstances for which reason the instant issue may be considered by this Court at this stage. 60. These exceptional circumstances in the view of this Court are that in the instant case, the Defendant filed his Statement of Defence and Counterclaim on 1st April 2021, however, the Plaintiff took no further action in the suit until 29th September 2021 when Counsel for __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 16 of 36 Plaintiff filed a Notice of Intention to Proceed. Thereafter, no further steps were taken until 3rd August 2022 when Counsel for Plaintiff filed another Notice of Intention to Proceed. 61. A Reply and Defence to Counterclaim was only filed by Counsel for the Plaintiff on 3rd February 2023. Thereafter, the Parties began discussions in an attempt at an amicable settlement out of Court for which reason the case again stalled until 8th May 2024 when Counsel for the Defendant informed the Court that attempts at settlement had failed. 62. The Court therefore finds that whilst the Defendant filed a Defence and Counterclaim as far back as 1st April 2021, between April 2021 and February 2023 only a Reply and Defence to Counterclaim was filed. The case was therefore not delayed because Parties were engaged in attempts at settlement, rather, for nearly two years, the Plaintiff/ Plaintiff Counsel simply failed to take the necessary steps and failed to file the necessary processes for the case to proceed. The case was further delayed by attempts at settlement proposed by the Plaintiff. 63. This Court has also considered that in the instant case the Defendant in its Defence and Counterclaim referred to the case instituted by Admix Company Limited against RLG Communications Ltd (Suit No. RPC/275/2014) in respect of which Judgment has been entered and stated that the instant action is instituted by the Plaintiff merely to avoid the execution of the Judgment against RLG Communications Ltd. In Gbenartey & Giles v Netas Properties & Investments & Others (supra), the Supreme Court noted and stated that the defendants made reference to an earlier suit which had been discontinued without liberty to institute any fresh action and this “crucial statement of fact was however not part of their pleadings”. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 17 of 36 64. In the instant case, an application to dismiss the suit was not made by the Defendant. Counsel for the Defendant simply informed the Court that the attempts at settlement had failed on 8th May 2024 and requested further directions for the conduct of the case. It was this Court that directed the Parties to file written legal submissions to address the issue of whether or not the instant action should be struck out as an abuse of process of Court. 65. This Court is therefore of the considered opinion that the issue as to whether or not the instant action should be struck out as an abuse of process of Court has been raised and considered as promptly as this Court could set same down for consideration and the peculiar facts of the case stated in paragraphs 59 – 64 above may be considered as exceptional circumstances that warrant the consideration of this issue after the close of pleadings. FRESH ACTION TO CHALLENGE JUDGMENT OBTAINED BY ADMIX COMPANY LIMITED AGAINST RLG COMMUNICATIONS LTD. IN SUIT NO. RPC/275/2014. 66. In the case of Board of Governors, Achimota School v. Nii Ako Nortei & 2 Ors [Unreported; Civil Appeal No J4/09/2019; 20 May 2020; SC], the Supreme Court held per His Lordship Pwamang JSC thus: “Final judgment of a court may be set aside by way of an appeal, certiorari, or fresh action alleging voidness, fraud or collusion. See Punjabi Brothers v Namih [1962] 2 GLR 48, Arnold v National Westminster Bank plc [1991] 2 AC 93 and Osei-Ampong v Ghana Airports Co. Ltd. [2013-2014] 1 SCGLR 25.” (Emphasis added) 67. In the case of Eastern Alloys Company Ltd v Silver Star Auto Ltd [2017-2020] __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 18 of 36 1 SCGLR 611, the Supreme Court held as reported at page 618 and in holding 1 of the Report at page 612 that it is trite that a consent judgment entered by the Court at the pretrial stage is of the same binding effect as if it was a judgment of a full trial. 68. Further, in the case of SIC Insurance Co. Ltd v. Ivory Finance Company Ltd & 4 Ors [2018- 2019] 1 GLR 563 the Supreme Court similarly held as reported in holding 1(a) at page 564 of the Report that: “…given that an appeal would not ordinarily lie against a consent judgment, bringing a fresh action to challenge the validity of a consent judgment was a standard and accepted procedure. Thus, a fresh action to establish fraud, mistake, or other vitiating factor seemed a reasonable procedure for achieving justice in the circumstances.” (Emphasis added) 69. From the above cited authorities, this Court finds that the Consent Judgment entered in the case instituted by Admix Company Limited against RLG Communications Ltd (Suit No. RPC/275/2014) is of the same binding effect as a judgment of a full trial or a final judgment, it may therefore be set aside by way of a fresh action. In the case of Republic v. The High Court Land Division (7) Accra Ex parte: The Registered Trustee of East Dadekotopon Development Trust & 3 Ors [Unreported; Civil Motion No J5/46/2020; 22 July 2020; SC] however, the Supreme Court speaking through her Ladyship Torkonoo (Mrs.) JSC (as she then was) referred to Halsbury's Laws of England (4th Edition) Volume 26; referred to the dictum of Azu Crabbe JSC speaking for the Court of Appeal in the case of In re Arthur(Deceased), Abakah and another v Attah- Hagan and another [1972] 1 GLR 435 at page 442; cited with approval the decision of the High Court delivered by Dordzie J. (as she then was), in Lutterodt v Nyarko [1999–2000] 1 GLR 29 and held thus: __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 19 of 36 “The firm legal position is that consent judgments are binding as contracts, and not even appealable. In order to be free of them, fresh action must be taken by the parties to the consent judgment to vacate them for critical reasons that would invalidate a compromise not contained in the judgment or order.” (Emphasis added). 70. Relying on the authorities stated in paragraph 69 above, this Court finds that a fresh action may be instituted to set aside a Consent Judgment, however, such action must be taken by the parties to the Consent Judgment. 71. It is apparent from the pleadings as filed that the instant action by the Plaintiff is essentially to challenge the action instituted by Admix Company Limited against RLG Communications Ltd (Suit No. RPC/275/2014) as the Plaintiff states that the proceedings in Suit No. RPC/275/2014 which were conducted without its notice is an apparent illegality. 72. The Plaintiff also challenges the Judgment obtained by Admix Company Limited against RLG Communications Ltd in Suit No. RPC/275/2014 as it seeks a declaration of title to the same land in respect of which the Judgment in Suit No. RPC/275/2014 has been executed. 73. From the pleadings, the Plaintiff herein was not a party to Suit No. RPC/275/2014 and Admix Company Limited and RLG Communications Ltd. who were parties to Suit No. RPC/275/2014 are also not parties to the instant action. The Court is of the considered opinion that perhaps aware that as a non-party to Suit No. RPC/275/2014 it cannot challenge the Judgment entered in that case, the Plaintiff does not state in the reliefs indorsed on the Writ of Summons and restated in paragraph 15 of its Statement of Claim that by the instant action it seeks an order of this Court to set aside the Judgment against RLG Communications Ltd on grounds of illegality. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 20 of 36 74. In view of the admission by the Plaintiff in its pleadings that there is a Consent Judgment entered in Suit No. RPC/275/2014 which is a final Judgment of a Court of competent and coordinate jurisdiction in respect of the subject land which still persists, this Court is of the considered opinion that it cannot make an order granting the Plaintiff title in respect of the same parcel of land, when the Judgment given in Suit No. RPC/275/2014 subsists, the Parties to that action are not before this Court, and when the Plaintiff by the instant action does not seek an Order of this Court for the Judgment in Suit No. RPC/275/2014 to be set aside. 75. For the above stated reasons, this Court is of the considered opinion that from the pleadings filed and the reliefs sought, the present action is unsustainable. INTEREST OF PLAINTIFF IN THE SUBJECT LAND BEFORE JUDGMENT IN SUIT NO. RPC/275/2014 76. It is the Plaintiffs own case as stated in its Statement of Claim that it acquired the subject land in the year 2016. In paragraphs 7 and 8 of its Statement of Claim the Plaintiff added that the Judgment of the High Court, Commercial Division against RLG Communications Ltd in Suit No. RPC/275/2014 as well as the execution of that Judgment is an apparent illegality for the reason that same was given in respect of the subject land and without notice to the Plaintiff even though the Plaintiff had purchased the subject land and it was in possession of same. 77. As stated in paragraph 9 above, the Defendant stated in his Statement of Defence and Counterclaim that the Terms of Settlement executed by RLG Communications Ltd. and Admix Company Limited in Suit No. RPC/275/2014 were adopted as Consent Judgment by the High Court, Commercial Division on or about December 2014. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 21 of 36 78. It is noted that in its Reply to the Defence and Counterclaim filed on 3rd February 2023, the Plaintiff did not deny the claim by the Defendant that the Judgment in Suit No. RPC/275/2014 was entered sometime in December 2014. 79. This Court therefore finds that by the Plaintiff’s own case, it acquired its interest in the subject land in 2016, more than two years after the date of the Judgment given against RLG Communications Ltd in Suit No. RPC/275/2014. 80. The claim by the Plaintiff that the Judgment in Suit No. RPC/275/2014 was given without notice to the Plaintiff even though it had an interest in the subject land and was in possession of same is therefore untenable from the Plaintiff’s own pleadings. 81. In confirmation of these pleadings, this Court finds from the record that there is a copy of the Consent Judgment entered in Suit No. RPC/275/14 attached to a supplementary affidavit in support of a motion for stay of execution and to set aside default judgment filed by the Defendant on 16th December 2020 and marked as Exhibit 1. From Exhibit 1, it is stated that Consent Judgment in in Suit No. RPC/275/14 was entered on 16th December 2014. 82. There is also a copy of the Plaintiff’s Deed of Assignment attached as Exhibit A to an Ex parte Application for Interlocutory Injunction filed by the Plaintiff in this case on 19th July 2019, on record. From this Deed of Assignment relied on as evidence of its interest in the subject land, the Plaintiff stated that it acquired the subject land on the date indicated on the Deed of Assignment which is 17th November 2016. 83. The Court therefore finds that by the Plaintiffs own pleadings and exhibits on record, the Judgment the Plaintiff challenges by the instant action was given before the Plaintiff acquired the subject land or entered into possession of same and so the Plaintiff had no interest in the subject land at the time the Judgment was given. For this reason, this Court __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 22 of 36 also finds that the instant action which is instituted on the basis that the Plaintiff had an interest in the subject land and yet it was not given notice of Suit No. RPC/275/2014 before the Consent Judgment was entered is therefore not sustainable. CHALLENGE TO INTERPLEADER PROCEEDINGS 84. From the Plaintiff’s Statement of Claim, Reply and Defence to Counterclaim, it is the case of the Plaintiff that it filed a Notice of Claim to challenge the execution of the alleged illegal Judgment against RLG Communications Ltd. It is the further case of the Plaintiff that the interpleader proceedings were conducted without being afforded an opportunity to be heard. For this reason, the Plaintiff states that the purported auction sale from which the Defendant allegedly purchased the subject land was an orchestrated auction conducted to deny the Plaintiff of its property in the face of its Notice of Claim and the Defendant obtained no interest in the subject land from that auction. 85. In his Statement of Defence and Counterclaim, the Defendant does not deny the Plaintiff’s claim that it filed a Notice of Claim after Judgment in Suit No. RPC/275/2014. The Court therefore finds that from the pleadings the Parties are agreed that the Plaintiff herein as Claimant filed a Notice of Claim after the Judgment in Suit No. RPC/275/2014. 86. The Rules of Court provide in Order 44 Rule 12(4) and Order 44 Rule 13(1) of C.I. 47 that the interpleader proceedings must be heard with notice to the Claimant, in this instance, the Plaintiff herein. 87. In Pobee Tufuhene Elect of Apam v Yoyoo [2013-2014] 1 SCGLR 208 especially at page 217, the Supreme Court held per Anin- Yeboah JSC (as he then was) that if a party is denied his right to be heard, as in this case, it should constitute a fundamental error for the proceedings to be declared a nullity. See also the decision of the Supreme Court in Republic v High Court, __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 23 of 36 Accra; Ex parte Salloum (Senyo Coker Interested Party) [2011] 1 SCGLR 574, especially at page 585. 88. This Court has however considered that in the case of Ebenezer Darkwa and another vs Adonteng Community Bank Limited (Unreported; Civil Appeal No. J4/56/2021; 15th June 2022; SC), the Supreme Court referred to the case of Network Computer Systems (NCS) Ltd vs Intelsat Global Sales & Marketing Ltd [2012] 1 SCGLR 218 especially page 226 and Agoti vs Agbenoku [1978] GLR, 14 CA and held that: “While interpleader proceedings may determine the rights of the parties in relation to the ownership of the items seized in execution, such proceedings have been held to be interlocutory, since a decision on an interpleader summons arises out of some other matter.”(Emphasis added) 89. Relying on the authorities stated in paragraph 88 above, this Court is of the considered opinion that the claim by the Plaintiff in the instant action that he was not afforded a hearing in the interpleader proceedings and the challenge to same made by the Plaintiff in the instant case, is a challenge to an interlocutory matter which arises out of some other suit, Suit No. RPC/275/2014. As that matter is not before this Court, and the instant suit is completely different, this Court is of the considered opinion that it would not be able to make determinations about the interpleader proceeding which is an interlocutory matter when the substantive suit pursuant to which the interpleader proceeding arises is not before this Court. The challenge to the interpleader proceedings held in respect of Suit No. RPC/275/2014, made before this Court in the instant action is therefore not sustainable for this reason. 90. Beyond the pleadings, this Court also finds that there is evidence on record which also indicates that the Plaintiff’s challenge to the interpleader proceedings made before this Court is not sustainable. In Exhibit 5 attached to the supplementary affidavit in support of motion for stay of execution and to set aside default judgment filed by the Defendant on 16th __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 24 of 36 December 2020, this Court finds that the Plaintiff herein as Claimant has already filed an application to challenge the interpleader proceedings on the ground that it was not served with a notice to appear before the Court before the Court proceeded to hear and determine the matter. 91. In a Ruling of the High Court, Commercial Division dated 11th December 2018, delivered in Suit No. RPC/275/2014 and attached to Exhibit 7 of the supplementary affidavit in support of the motion for stay of execution and to set aside default judgment filed by the Defendant on 16th December 2020, the Commercial Division of the High Court found and held that hearing notices to appear before the Court for the interpleader proceedings to be heard and determined issued for the Claimant and Plaintiff herein had been duly served on its Counsel. The Court therefore dismissed the challenge to the interpleader proceedings filed by the Plaintiff herein and Claimant therein with costs. 92. Although the Plaintiff found it convenient not to mention in its Statement of Claim that it has already raised this same challenge before and same has been heard and dismissed, this Court finds from Exhibit 5 referred to in paragraph 90 above that the challenge to the interpleader proceedings already heard and dismissed by the Commercial Division of the High Court on 11th December 2018, is the same challenge the Plaintiff has raised in its Statement of Claim before this Court in the instant action. 93. This Court finds that there is no basis in the Statement of Claim as filed to warrant a repeat of the same challenge before this Court and the Plaintiff can therefore not sustain the instant action on the basis of this challenge already held to be unfounded. EFFECT OF THE DETERMINATION OF THE INTERPLEADER PROCEEDINGS HELD IN RESPECT OF SUIT NO. RPC/275/2014 __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 25 of 36 94. In the case of Ebenezer Darkwa and another vs Adonteng Community Bank Limited (supra), the Supreme Court referred to the cases of R.T. Briscoe Ghana Ltd vs Preko [1964] GLR 322, Salama vs Sharani [1974] 2 GLR 364 and clarified the nature and purpose of interpleader proceedings or summons. 95. From the nature of purpose of interpleader proceedings as explained by the Supreme Court in Ebenezer Darkwa and another vs Adonteng Community Bank Limited (supra) this Court finds that the interpleader proceeding held by the Commercial Division of the High Court following the Notice of Claim filed by the Plaintiff herein would have been for the purpose of determining the respective titles of the Plaintiff herein as Claimant and the Judgment Creditor, Admix Company Ltd to the subject land which was the subject of the interpleader proceeding. 96. This Court is therefore of the considered opinion that the instant action is not sustainable because per the Ruling of the Court in Suit No. RPC/275/2014, dated 11th December 2018, the High Court Commercial Division has already determined the issue of whether or not the subject land should be attached in execution of the judgment in favour of Admix Company Limited in Suit No. RPC/275/2014 and found that the subject land can indeed be attached in execution of that Judgment. 97. The challenge to the interpleader proceedings held in Suit No. RPC/275/2014 which the Plaintiff relies on in the instant action in support of its claim that the auction sale at which the Defendant purported to purchase the subject land was orchestrated to deprive the Plaintiff of the subject land is therefore not sustainable for all of the above-stated reasons. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 26 of 36 CHALLENGE TO THE CERTIFICATE OF PURCHASE/ TITLE OF THE DEFENDANT IN THE SUBJECT LAND/PROPERTY 98. From the pleadings as filed, the Defendant states that he purchased the subject land at an auction, he adds that the auction sale is valid and that he has been issued with a Certificate of Purchase. The Plaintiff however challenges the Defendant’s Certificate of Purchase and title to the subject land and maintains by this action that it is entitled to a declaration of title to the subject land for the following reasons as stated in the Statement of Claim: i. The auction sale conducted was merely orchestrated to deprive the Plaintiff of the subject land despite a Notice of Claim it filed. ii. RLG Communications Ltd, the Judgment debtor in Suit No. RPC/275/2014 had no interest in the subject land to convey to the Execution Creditor, Admix Company Limited at the time the Judgment in Suit No. RPC/275/2014 was given. CLAIM OF ORCHESTRATED AUCTION SALE 99. With regard to the Plaintiff’s claim that the auction sale was orchestrated to deprive the Plaintiff of its property in the face of a Notice of Claim that it had filed, in the judgment of the Supreme Court delivered by Dotse JSC (as he then was) in the case of Kamaru Jaji v. Paul Boateng, [Unreported; Civil Appeal No J4/68/2021; 6 April 2022], the Supreme Court referred to its previous decision in Partners Health Service v. Bikkia [Sic] Limited & 4 Ors [Unreported; Civil Appeal No J4/48/2015; 27 April 2016; SC] and stated that: “Without creating an exhaustive list of cases of illegality, it is to be noted that a sale shall be declared as illegal where: it is established that there was some fraud or collusion in the sale __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 27 of 36 of the property, where the writ of fi. fa had expired and where it is found that no writ of fi. fa was issued for the sale of the property. In any of these instances the sale will be declared as illegal and set aside as null and void. (Emphasis added) 100. This Court also finds that as held in Manu and Another vs Yeboah [1982-83] GLR 34-46, “…in the case of an illegal sale, however, the sale was void ab initio and no title whatsoever passed; time was also no bar in such a case.” (Emphasis added). Thus, an illegal auction sale may be challenged at any time. 101. From the authorities cited in paragraphs 99 and 100 above, this Court considers that in stating in its pleadings that the auction sale was orchestrated to deprive the Plaintiff of its property or the subject land, the Plaintiff alleged that there was some collusion in the sale of the subject land and same would have been a good basis for an action to challenge the Defendant’s Certificate of Purchase as illegal, however, as found and stated by this Court in paragraph 92 above, the basis of this allegation of collusion has already been held by a Court of competent jurisdiction to be unfounded. Further, as stated in paragraph 89 above, it is also apparent from the pleadings that the nature and basis of this challenge cannot be questioned in this case. CLAIM THAT RLG COMMUNICATIONS LTD, THE JUDGMENT DEBTOR HAS NO INTEREST IN THE SUBJECT LAND 102. Order 45 Rule 11(4) of C.I. 47 provides that a certificate of purchase granted under subrule (3) is a valid transfer of the right, title and interest of the judgment debtor in the immovable property sold. Therefore, if it is indeed the case as stated by the Plaintiff that RLG Communications Ltd as Judgment Debtor has no interest in the subject land, then by Order 45 Rule 11(3) and (4) of C.I. 47, no title or interest in the subject land was transferred to the Defendant herein. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 28 of 36 103. The Plaintiff claims that it acquired the unexpired interest of Antartic Contract Works Ltd. in the subject land in the year 2016 and therefore RLG Communications Ltd has no interest in the subject land which could be transferred to the Defendant herein. 104. In the case of Republic vs. High Court, Accra; Ex Parte Anyan (Platinum Holdings Interested Party) [2009] SCGLR 255, the claimant/applicant claimed interest in the attached property. It was the contention of the claimant/ applicant that property other than that in respect of which the judgment had been obtained had been attached in execution of the judgment, that the property attached had been wrongfully attached, thus making the execution wrongful. At page 264 of the report the Supreme Court explained that: “An execution is wrongful when it is not authorized or justified by the writ of execution or by the judgment under which it was issued.” (Emphasis added) 105. In view of the above-stated explanation given by the Supreme Court in the case of Republic v High Court, Accra; Ex Parte Anyan (Platinum holdings: Interested Party) (supra), this Court has considered that even if RLG Communications Ltd. has no interest in the subject land attached and sold in execution of the Judgment against RLG Communications Ltd, the Plaintiff’s case may well be that as it acquired the subject land in the year 2016, the execution of the Judgment in Suit No. RPC/275/2014 attaching its property rather than property of RLG Communications Ltd may be wrongful. 106. Where the execution is wrongful however, the remedy prescribed by law to a party such as the Plaintiff herein which claims that its land has been wrongly attached is for such Plaintiff to file an application in Court to challenge the execution as wrongful. In the case of Republic vs. High Court, Accra; Ex Parte Anyan (Platinum Holdings Interested Party) (supra), the Supreme Court held unanimously as reported in holding 1 at page 257 of the report that: __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 29 of 36 “Where the execution was wrongful or irregular, the proper relief available was to have the writ of execution set aside.” (Emphasis added) 107. In the case of Ahinakwa II substituted by Ayikai v Odjidja III and others [2011] 1 SCGLR 205, the Supreme Court held that an application is to be filed where a party seeks an order to challenge execution as wrongful or irregular and not a Writ. The instant action is therefore not sustainable because the Plaintiff cannot by an action instituted by a Writ and Statement of Claim seek to challenge execution alleged to be wrongful. See the 108. The Court has further considered that as explained by the Supreme Court in Republic v High Court, Accra; Ex Parte Anyan (Platinum holdings: Interested Party) (supra), it is when a property is rightly attached and yet another claims to have an interest in it that a Claimant interpleads. At page 264 of the report the Supreme Court held that: “…when property has been attached normally under a writ of fieri facias, a person other than the defendant who claimed an interest in it interpleads.” See also the case of Ebenezer Darkwa and another vs Adonteng Community Bank Limited (supra). 109. This Court therefore finds that in filing the Notice of Claim as stated by the Plaintiff in its Statement of Claim, the Plaintiff herein admitted that the subject land has been properly or normally attached in execution of the Judgment in Suit No. RPC/275/2014 except that the Plaintiff claimed to have an interest in the subject land. 110. This Court is therefore of the considered opinion that the Plaintiff cannot state in another breadth in the same Statement of Claim that the attachment and sale of the subject land is an apparent illegality whilst admitting by the Notice of Claim it filed that the Judgment was regularly executed. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 30 of 36 111. As noted in paragraph 96 above, the interpleader proceedings have also been held and determined against the Plaintiff herein. ACTION INSTITUTED BY RLG COMMUNICATIONS LTD TO CHALLENGE THE JUDGMENT IN SUIT NO. RPC/275/2014. 112. As already stated, this Court finds that although the Plaintiff does not directly state this, by the instant action instituted on 16th July 2019, the Plaintiff seeks indirectly or essentially a decision which sets aside the Judgment of the Court in Suit No. RPC/275/2014 against RLG Communications Ltd. 113. In its Reply and Defence to Counterclaim filed on 3rd February 2023 however, the Plaintiff stated that it is aware that RLG Communications Ltd instituted an action on 22nd July 2016 against Admix Company Ltd to challenge the Judgment in Suit No. RPC/275/2014. The Plaintiff added that it applied for a stay of execution of the Judgment against RLG Communications Ltd because of the fresh action instituted by RLG Communications Ltd against Admix Company Limited to challenge the Judgment in Suit No. RPC/275/2014. 114. This Court therefore finds that instituting the instant action well aware of the suit instituted by RLG Communication Ltd itself for the same or similar relief the Plaintiff seeks by this action is an improper use of the judicial process and amounts to an abuse of Court process. 115. In the case Okofoh Estates Ltd v Modern Signs Ltd and Another [1995-96] GLR 310, SC, the Supreme Court referred to Halsbury Laws of England (4th ed) Vol. 37 at paras 432 in which it is explained that: __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 31 of 36 “…under its inherent jurisdiction the court may strike out the whole or part of the indorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process which must fail or which the plaintiff cannot prove and which is without a solid basis...” See also Okofoh Estates Ltd v Modern Signs Ltd and Another [1996-97] SCGLR, 224 at pages 237- 238. 116. From the above analysis and for all the reasons provided above, this Court also finds that the instant action is an abuse of process as it is without a solid basis and the Court has jurisdiction to dismiss same. CAUTION BY THE SUPREME COURT 117. As stated in paragraph 40 above, in Gbenartey & Giles v Netas Properties & Investments& Others (supra), the Supreme Court stated per Anin Yeboah JSC, (as he then was) at page 619 as follows: “It follows therefore that the procedure of terminating proceedings by summary process should be applied only in cases where the action is clearly unsustainable, plain and obvious that it is beyond doubt that the case is unarguably frivolous and vexatious; and even legitimate amendments could not cure the defect.” 118. In State Insurance Company Ltd v Ivory Finance Ltd & 4 others [2019-20] 1 SCLRG 388 (Adaare), the Supreme Court was emphatic that as held in Gbenartey & Glie v Netas properties & Investments & Others (supra) the procedure should be sparingly exercised with extreme care and circumspection and should be invoked only in plain and obvious cases. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 32 of 36 119. This Court is mindful of the caution given by the Supreme Court in consideration of cases pursuant to Order 11 Rule 18 (1) of C.I. 47. In view of the above analysis however, this Court finds that the instant action is clearly unsustainable and even legitimate amendments could not cure the defects. VIII. CONCLUSION 120. In Dankwa & 3 others v Anglogold Ashanti Ltd (supra) the Supreme Court further held per Akoto Bamfo JSC as follows: “Under Order 11 rule 18, therefore, the court may order an action to be dismissed on grounds that the action is frivolous, vexatious or an abuse of the process of the court…The application may be made under the above cited rule or the inherent jurisdiction of the court or both. …Either procedure enables the court to pronounce finally, albeit, summarily upon the claim.” (Emphasis added) 121. As this Court has found that the instant action is without a solid basis, clearly unsustainable and/ or an abuse of the process of the Court, the Court dismisses the suit pursuant to Order 11 Rule 18 (1) (d) of C.I. 47. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 33 of 36 122. Having regard to all the circumstances of the instant case, and pursuant to Order 74 of C.I. 47, the Court awards costs of Fifteen Thousand Cedis (GHS 15,000) against the Plaintiff in favour of the Defendant. [SGD] NABEELA NAEEMA WAHAB (MS.) J. (JUSTICE OF THE HIGH COURT) COUNSEL: 1. DAME AWOONOR-WILLIAMS BEING LED BY EYAM AKYEA-ANSAH COUNSEL FOR PLAINTIFF - PRESENT 2. DZIDEFO BORBI WITH JOYCE DOGBE HOLDING BRIEF OF GEORGE ESHUN COUNSEL FOR DEFENDANT - PRESENT CASES REFERRED TO: 1. Lartey and Lartey Ltd. vrs Beany and Another [1987-88] 1 GLR 590. 2. Kwaku Afranie v. Golden Age Company, Eric Kwasi Yeboah [Unreported; Civil Appeal No H1/40/2020; 1 April 2021; CA]. 3. Dankwa & 3 Others v Anglogold Ashanti Ltd [2019-2020] 1 SCLRG 641 (Adaare). 4. Gbenartey & Giles v Netas Properties & Investments & Others [2015-2016] 1 SCGLR 605 5. Portco Group Ltd vs Wragg [2002] EWCA Civ 594; 2 Llyod’s Rep 343. 6. Three Rivers District Council v Bank of England [2001] 2 All ER 513. 7. Eastern Alloys Company Ltd, vs Silver Star Auto Ltd. (Unreported, Suit No. H1/01/2016 dated 14th July 2016). __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 34 of 36 8. Attorney General of the Duchy of Lancaster v. L. & N.W.Ry [1892] 3 Ch. 278; Republic of Peru v Peruvian Guanco Co. (1887) 36 Ch.D. 489. 9. (Wenlock v Moloney [1965] 1 W.L.R. 1238; [1965] 2 ALL E.R. 871, C.A). 10. Board of Governors, Achimota School v. Nii Ako Nortei & 2 Ors [Unreported; Civil Appeal No J4/09/2019; 20 May 2020; SC]. 11. Punjabi Brothers v Namih [1962] 2 GLR 48, Arnold v National Westminster Bank plc [1991] 2 AC 93. 12. Osei-Ampong v Ghana Airports Co. Ltd. [2013-2014] 1 SCGLR 25. 13. Eastern Alloys Company Ltd v Silver Star Auto Ltd [2017-2020] 1 SCGLR 611. 14. SIC Insurance Co. Ltd v. Ivory Finance Company Ltd & 4 Ors [2018-2019] 1 GLR 563, 15. Republic v. The High Court Land Division (7) Accra Ex parte: The Registered Trustee of East Dadekotopon Development Trust & 3 Ors [Unreported; Civil Motion No J5/46/2020; 22 July 2020; SC] 16. In re Arthur (Deceased), Abakah and another v Attah-Hagan and another [1972] 1 GLR 435 17. Lutterodt v Nyarko [1999–2000] 1 GLR 29 18. Republic vs. High Court, Accra; Ex Parte Anyan (Platinum Holdings Interested Party) [2009] SCGLR 255. 19. Ebenezer Darkwa and another vs Adonteng Community Bank Limited [Unreported; Civil Appeal No. J4/56/2021; 15th June 2022; SC]. 20. R.T. Briscoe Ghana Ltd vs Preko [1964] GLR 322 21. Salama vs Sharani [1974] 2 GLR 364. 22. Pobee Tufuhene Elect of Apam v Yoyoo [2013-2014] 1 SCGLR 208. 23. Republic v High Court, Accra; Ex parte Salloum (Senyo Coker Interested Party) [2011] 1 SCGLR 574. 24. Network Computer Systems (NCS) Ltd vs Intelsat Global Sales & Marketing Ltd [2012] 1 SCGLR 218. 25. Agoti vs Agbenoku [1978] GLR, 14 CA. __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 35 of 36 26. Kamaru Jaji v. Paul Boateng, [Unreported; Civil Appeal No J4/68/2021; 6 April 2022]. 27. Partners Health Service v. Bikkia [Sic] Limited & 4 Ors [Unreported; Civil Appeal No J4/48/2015; 27 April 2016; SC]. 28. Manu and Another vs Yeboah [1982-83] GLR 34-46. 29. Ahinakwa II substituted by Ayikai v Odjidja III and others [2011] 1 SCGLR 205. 30. Okofo Estates Ltd v Modern Signs Ltd [1995-96] GLR 310, SC. 31. Okofo Estates Ltd v Modern Signs Ltd [1996-97] SCGLR 224. 32. State Insurance Company Ltd v Ivory Finance Ltd & 4 others [2019-20] 1 SCLRG 388 (Adaare). __________________________________________________________________________________ Suit No: LD/1002/2019 – GTI Properties Ltd vs Adolf Adarkwah Page 36 of 36