ARMAH AND OTHERS vs. AMUGI II AND OTHERS [1993]DLCA4904

Date	1993-06-03
Suit No.	[1992 – 1993] 3 G B R 1118 – 1123 C.A
Citation No.	[1993]DLCA4904

ESSIEM JA

AMUAH JA

FORSTER JA

FUI TSIKATA FOR THE APPLICANTS.

NII APONSAH FOR THE RESPONDENTS.

[1993]DLCA4904
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													<main id="main" class="content" style="min-height: 60rem" >ARMAH AND OTHERS<o:p></o:p>vs.<o:p></o:p>AMUGI II AND OTHERS<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 3 G B R 1118 – 1123
C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 3 JUNE 1993<o:p></o:p>

NII
APONSAH FOR THE RESPONDENTS.<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 1.0pt 0in">

ESSIEM
JA, AMUAH JA, FORSTER JA<o:p></o:p>

</div>ESSIEM JA. <o:p></o:p>This
is an application by the applicants herein seeking an order to stay all
proceedings in the court below in this suit pending the hearing and final
determination by this court, of the appeal herein filed on 8 February 1993 from
the ruling of the court below delivered on 26 January 1993. The application was
accompanied by an affidavit sworn to by Nii Armah alias Todjo in which he
averred that upon an objection taken by the respondents to Mr Joe Reindorf
appearing for the applicants, the High Court had upheld the objection. The
objection was based on an allegation that counsel for the applicants in the
court below, Mr Joe Reindorf, had acted for the whole family in a previous
matter and that he should not be permitted by the court to appear for a faction
of his former clients against the other faction in the instant case before the
High Court concerning the same subject matter. The objection was upheld by the
court below thus:<o:p></o:p>“When his [Joe Reindorf’s] attention
was drawn to paragraph 2 of exhibit E written by him, he said in 1973 he
appeared for a bigger family not belonging to Korle We, who are claiming part
of the land. I would think, going by the above, that it is proper and advisable
that Mr Reindorf withdraws his representation.”<o:p></o:p>There
is an appeal now pending before this court against that ruling. The purpose of
this application is therefore to stay the proceedings before the High Court
until the appeal is heard by this court and hopefully to enable Mr Joe Reindorf
to appear for the applicants. The application was brought under the Court of
Appeal Rules 1962 (LI 218) rule 27 as amended by the Court of Appeal
(Amendment) Rules 1975 (LI 1002). I should mention that the court below dismissed
an oral application for stay pending appeal.<o:p></o:p>I
have considered the submission of counsel and I am satisfied that the appeal
now pending before this court is not frivolous. However I have come to the
conclusion that in view of the Supreme Court decision in Takyi v Ghassoub
(Ghana) Ltd [1987-88] 2 GLR 452, this court has no jurisdiction to grant the
application to stay proceedings before the High Court pending the hearing and
determination of the appeal by Mr Joe Reindorf’s client.<o:p></o:p>In
Takyi v Ghassoub this court granted an application for stay of proceedings in
the High Court. On appeal to the Supreme Court, it was held that the ruling of
the Court of Appeal was given without jurisdiction and was therefore null and
void. The matter had not gone to the court on appeal so it could not have
exercised an appellate jurisdiction. It seems that the Court of Appeal
entertained the application for stay of proceedings in a purported exercise of
its supervisory jurisdiction, which it did not have. In the decision, the Supreme
Court did consider the Court of Appeal Rules 1962 (LI 218) as amended by LI
1002. This court is bound by this decision. It seems to me also that the facts
deposed to by the parties establish that Mr Joe Reindorf has acted for the
whole family in respect of the whole land part of which is now in dispute
between them.<o:p></o:p>The
parties were his clients in respect of the land, the subject matter now in
dispute between them. It is conceded that Mr Reindorf only wrote a letter to
one Okpoti Kojo of Accra on behalf of Korle Webii to assert the title of his
clients to a land, which from the affidavits includes the very land now in
dispute between the two factions of his former clients. It is true that the
people he now acts for are facing contempt proceedings. However, the contempt
relates to the very land for which he had acted for the family as a whole. That
section of the family which has instructed Mr Joe Reindorf in the defence of
the persons now facing contempt proceedings was part of the whole family which instructed
counsel to protect their land as evidenced by exhibit E. They certainly must
have told counsel the basis of their claim to the land and counsel must have
been satisfied with their claim before he wrote exhibit E, which was as
follows:<o:p></o:p><o:p>&nbsp;</o:p>“Sir,<o:p></o:p>Trespass to Land at Kwabenya<o:p></o:p>I am instructed by my clients, the
Korle Webii of Accra, through Numo Ayitey Cobblah the Korle Wulomo and Mr J A
Aryeetey, to write to you as follows:<o:p></o:p><o:p>&nbsp;</o:p>My clients are co-owners under
customary law together with the Ga and Gbese stools, of a large tract of land
lying to the north of Accra and stretching from Mukose and Kpehe in the south
to Ashongman in the north, and from Odorkor in the west to Kotobabi and Onyatia
in the east.<o:p></o:p>My clients are the caretakers, on
behalf of all three co-owners, of the land so described, within which lie the
village of Kwabenya and the surrounding lands attached thereto.<o:p></o:p>My clients have recently noticed that
various persons have commenced cultivation of the said Kwabenya lands without
my clients’ leave, licence or grant, and that various farmers, to whom my
clients have made grants of land for farming, are being disturbed in their
possession by some person or persons not thereto authorised by my clients.<o:p></o:p>On enquiry, my clients have been told
that you are the person making the said unauthorised grants and also disturbing
the possessory rights of my clients’ grantees.<o:p></o:p></main>