BRONYA vs. ASAFO II [1979]DLHC1051

Date	1979-06-12
Suit No.
Citation No.	[1979]DLHC1051

WUAKU J.

G. K. ACQUAH FOR THE APPLICANT.

T. D. BRODIE-MENDS FOR KYEI FOR THE RESPONDENT.

[1979]DLHC1051
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													<main id="main" class="content" style="min-height: 60rem" >BRONYA <o:p></o:p>vs. <o:p></o:p>ASAFO II<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1978] GLR 384<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
12 JUNE 1979<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

G. K. ACQUAH FOR THE APPLICANT.<o:p></o:p>

T. D. BRODIE-MENDS FOR KYEI FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

WUAKU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF WUAKU J.<o:p></o:p>This is
an application by the plaintiff under Order 14 of the High Court (Civil
Procedure) Rules, 1954 (L.N. 140A), as amended by the High Court (Civil
Procedure) (Amendment) (No.2) Rules, 1977 (L.I. 1129). By her application the
plaintiff seeks to sign the final judgment against the defendant. The
indorsement on the the plaintiff’s writ of summons reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiff’s claim against the defendant is for recovery of possession of all
that farming land situate and being at Afratakorowa near Fobinso in the
Dunkwa-on-Offin District which said land is bounded on the north and east by
the property of Kofi Ankrah and on the west and south, the property of Kwaku
Gyedu. By a judgment of the High Court, Accra, in the suit No. L. 589/76
plaintiff was on 12 May 1978 adjuged the owner of the said land. The defendant
has since judgment been served with judgment after trial.”<o:p></o:p><o:p>&nbsp;</o:p>Attached
to the affidavit in support of the summons for judgment is exhibit A, a
judgment of the High Court, Accra, dated 12 May 1978 between the parties herein
mentioned in the indorsement on the writ of summons aforesaid. The ground upon
which the applicant seeks to sign final judgment is that there was a previous
litigation inter partes covered by the said exhibit A. The affidavit in support
of the application is sworn to by one Elizabeth Owusu Afriyie of Accra, a
daughter of the plaintiff. The relevant paragraphs of the said affidavit in
support of the application are:<o:p></o:p>&nbsp;“(4) that the plaintiff is claiming recovery
of possession of the farm described in the endorsement on the writ of summons. <o:p></o:p>(5) That
a copy of the judgment referred to in the endorsement is attached hereto and
marked exhibit A. <o:p></o:p>(6) That
I am advised and verily believe same to be true that defendant has no defence
to the action.”<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the applicant has argued that the defendant has not taken any
objection to the plaintiff’s writ of summons, therefore the identity of the
land is not in dispute. He further argued that the affidavit in opposition to
the application is irrelevant and although the court is entitled to have a look
at the defence delivered by the defendant, the defence is irrelevant to the
plaintiff’s claim insofar as the issue before the court is concerned. Learned
counsel submitted that the arbitration award pleaded by the defendant should
have been pleaded in the previous suit and not in the present action, and that
it is not open to the respondent in the present proceedings to challenge the
High Court’s jurisdiction in the previous suit because the question of
jurisdiction ought to have been raised in the said action and that the High
Court has unlimited jurisdiction. In reply to the respondent’s argument that
jurisdiction could be raised at any time and at any stage of the proceedings,
counsel submitted that that applies only to cases coming to the High Court on
appeal from the inferior courts, because the jurisdiction of the inferior
courts are always spelt out in the enactments that give them jurisdiction.
Counsel submitted finally that the statement of defence has not disclosed any defence,
therefore leave should not be granted to the defendant to defend the action and
that judgment should be entered for the plaintiff summarily.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant has personally sworn to an affidavit asking for leave to defend this
action. He has delivered a defence. The respondent’s counsel has argued that
even where the application is brought under Order 14 of L.N. 140A, the
applicant should comply with Order 27, r. 18 of L.N. 140A, by filing a
certi</main>