Alfari Vrs Amedeka Von (E1/45/2022) [2024] GHAHC 385 (30 May 2024)

Page1of6 INTHE SUPERIORCOURT OF JUDICATURE INTHE HIGH COURT OF JUSTICE,DENU HELDTHIS WED. 30MAY2024 BEFOREHIS LORDSHIP JUSTICE GEORGE BUADI, J SUITNO. E1/45/2022 MAMOUDOUALFARI }…… PLT/RESPONDENT Versus LUCASATSUAMEDEKA VON } …… DEFT/APPLICANT RULING This ruling concerns an application the defendant in this suit filed on 31 January 2023 for an order of the court “to strike out Plaintiff Respondent’s Writ of Summonsas wellas theStatement ofClaim”under Order11Rule 8ofC.I.47 The main ground of the application, as deposed to in paragraph 3 of the affidavit in opposition attached, is that the suit constitutes “an abuse of process, it lacks merit and is incompetent”. Further, in paragraph 20 of the affidavit in support, the applicant claims to have earlier secured orders of the District Court, Agbozume, for possession of a property that is the subject matter property in dispute inthe plaintiff’sinstant suit beforethe court. Page1of6 Page2of6 Plaintiff, the Respondent herein opposes the application. On the advice of his lawyer, he describes the application as misconceived. His affidavit in opposition raises flaws in theapplication. Paragraph6oftheaffidavit in oppositionstates: That I deny paragraphs 4 and 5 of the affidavit in support of the motion and say that I was not a party to any of the suits by the Applicant [at the District Court, Agbozume] and that no Writ of Summons, judgment, and order for Writ of Possession were served on me either directly or by substituted service. Moreover, my name is not on any of the processes filed at the District Court as eviden[t] by EXHIBITS attached to the Defendant /Applicant’s affidavit insupport ofthemotion. The respondent further deposes in paragraph 8 of the affidavit in opposition that “… the District Court has no jurisdiction whatsoever to grant summary judgment or judgment in default of appearance against any party in a land matterwithout calling onthe applicant to provehistitle tothe land…” The background facts in the matter are that the plaintiff herein on 21 July 2022 commenced this suit against the defendant, the applicant herein for a declaration of title to land at a suburb at Aflao as well as damages for trespass and perpetual injunction. The applicant, who had been represented at all material times by a lawyer entered appearance on 31 August 2022 and filed his defense to the suit on 20 September 2022. The court is yet to consider an application for directions filed on 18 October 2022 that had been scheduled for consideration on 8 Dec 2022. I reiterate that the instant application under consideration today was filed on 31 January 2023with7March2023asthe returndate. Page2of6 Page3of6 I wish to mark a remark here that the application cannot properly be considered under Order 11 Rule 8 as had been indicated on the motion paper. The grounding rule of procedure for the application should rather be Rule 18 of Order 11of C.I. 47pursuant towhich I willconsider it. The Ruleprovides that: 18. (1) The Court may at any stage of the proceedings order any pleading oranything in any pleading to be struck out on the grounds that …(d) it is otherwise an abuse ofthe processofthe Court.(Emphasis added). According to the Black’s Law Dictionary “[t]here is said to be an abuse of process when an adversary through malicious and unfounded use of some regular legal proceeding obtains some advantage over his opponent”. In Sasu vs Amua-Sekyi & Anor [2003-2004] 742, the Supreme Court, per Prof. Date-Bah JSC, in his concurring opinion at pages 768 and 769 stated what the principle of abuse of the Court process is all about, in fact distinguishing it from the rule of estoppels. The reveredjudgewrote: Inadditionto the cause ofactionand issue estoppels …thereis the related doctrine of abuse of process, commonly referred to as the rule in Henderson vs Henderson (1843) 3 Hare 100 … whose essence was set out by the English CourtofAppeal in Barrow vs Bankside AgencyLtd [1996] 1WLR 257at260as follows: “The rule in Henderson vs Henderson requires the parties, when a matter becomes the subject of litigation between them in a Court of competent jurisdiction, to bring their whole case before the Court so that all aspects of it may be finally decided, (subject of course, to any appeal) once and for all. Inthe absence of special circumstances, the parties cannot return to the Page3of6 Page4of6 Court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, or even on any strict doctrine of issue or cause of action estoppels. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when onewould do The Supreme Court further buttressed the above holding by its decision in Naos Holding Inc vs Ghana Commercial Bank [2005-2006] SCGLR 407. When properly invoked, this nature of application halts court proceedings and prevents persons who would want to make the courtroom a career from embarking on processes the court deems as contrary to public policy and undermine the integrity of the courts’ system, leading to loss of valuable time, resources and confidence in the legalsystem. The claims that support the application, in my view, tend to or are meant to show that the plaintiff respondent was wrong in commencing the present action considering ostensibly the earlier judgment and orders the defendant applicant claims to have secured at the District Court concerning the subject matter propertyagainst the plaintiff. My response to what I deem as the crux of the application is settled by case law; that is, a writ of possession cannot validly be issued by any court barely upon a summary or default judgment that is not backed by a subsequent order for a declaration of title in the subject matter land after an established proof of title per Page4of6 Page5of6 evidence on oath. See ConcaEng. (Gh) Ltd vs Moses [1984-86] 2GLR 319CA; Ayiku IV vs.AG[2010] 29MLRG99Holding 6;Asante Appiah [2009] SCGLR. Besides, as per the evidence on record, the named person against whom the applicant claims to have secured the default judgment cannot prima facie be held as the plaintiff in this suit. My view is that further and better particulars of tested and proven viva voce evidence under the crucible of cross-examination is what I consider the ideal and appropriate process to determine what I deem as the crux of the defendant’s application. That is, whether the plaintiff respondent is the same party against whom the applicant claims to have secured judgment over thesubject propertyatthe District Court. I reiterate here that, as envisaged under Order 10 Rule 4 of C.I. 47, a default judgment can only relate to the possession, not the title of the land in issue and that such cannot be a condition precedent for a finding of estoppel per rem judicatam; neither can it be a ground for invoking the principle of abuse of process. The application, in my candid view, is incongruous to the facts on record; indeed, cannot be the appropriate contextto invoke the principle ofabuse ofcourt processunder Order11Rule 18. Besides, although an application to strike a claim or defence for abuse of process may under the grounding rule Order 18(1) be made at any stage of the proceeding, according to S. Kwame Tetteh at page 312 paragraph 2 of his book Civil Procedure: A Practical Approach 2011, writes that: “… it should be made promptly, after the service of the offending pleading”. Having entered an appearance to the writ, and filed a defence and a reply, with an application for Page5of6 Page6of6 direction pending to be considered, and within the context of the facts and my findings, Ifail toappreciate the appropriateness ofthis application. The court's jurisdiction to strike out a suit or stay proceedings before it because they were frivolous or vexatious or an abuse of the process of the court under the present dispensation of Order 11 Rule 18 could be invoked only upon clearly proven facts, not when, as in this instant suit the facts are heavily contrasted and contested, indeed the law discounts and deprecates the grounding facts. An application would not be granted to dismiss an action under the circumstances I find in the matter. I find the application grossly misconceived under the circumstances as well as the spirit and motivation behind Order 11 Rule 18 of C.I.47.Ifind no merit inthe application andsame dismissed. Orderedaccordingly. (SGD) Justice George BuadiJ HighCourt, Denu. Lawyers: 1 Kwame SenanuAfagbe, Esq. for the Plaintiff/Respondent. 2 GershonGunu Esq. (holding the brief ofChris Ackumey) for Defendant/Applicant. Page6of6