REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE ARYEETEY [2003]DLSC1023

Date	2003-10-29
Suit No.
Citation No.	[2003]DLSC1023

KPEGAH JSC

ATUGUBA JSC

AKUFFO JSC

TWUM JSC

KLUDZE JSC

RAY APPIAH AMPONSAH FOR THE APPLICANT.

[2003]DLSC1023
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HIGH COURT, ACCRA; EX PARTE ARYEETEY<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p>[2003-2005]
1 GLR 537<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 29 October 2003<o:p></o:p>

</div>COUNSEL:<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">

RAY
APPIAH AMPONSAH FOR THE APPLICANT. <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">

KPEGAH,
ATUGUBA, AKUFFO, TWUM AND KLUDZE JJSC<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Kpegah JSC. In
these proceedings, the applicant, one Godfred Tei Aryeetey, is seeking from
this court an order of certiorari to quash the decision of the High Court,
Accra dated 12 May 2003 which set aside a writ of summons and statement of
claim filed by him against one Abednego Ankrah who is the respondent before us.
The applicant’s writ sought to set aside a judgment earlier obtained in the
Community Tribunal, Kaneshie by the respondent. For a better appreciation of
this ruling we need to recount, in some detail, the antecedents of the case
culminating in the instant application.<o:p></o:p>On
7 February 1996 the respondent sued the applicant in the Community Tribunal,
Kaneshie for the recovery of possession of a piece of land which his deceased
father had leased to the applicant for fifteen years beginning from October
1975 to expire in October 1990. The respondent sued in his capacity as the
beneficiary and customary successor of his deceased father’s estate. Meanwhile,
on the expiration of the lease, the applicant had asked for and had been given
a year’s extension by the respondent and his family. The extension was to
enable the applicant relocate a mechanical workshop he had established on the
land.<o:p></o:p>The
applicant took advantage of this and continued to occupy the land for several
more years without paying rent. After about five years the situation became
intolerable and the respondent (as the plaintiff) therefore sued in the
Community Tribunal, Kaneshie in 1996 for recovery of possession. He also
claimed the ancillary reliefs of perpetual injunction, arrears of rent, etc.
When the case was called on 23 February 1996, the applicant who was then the
defendant accepted liability, submitted to judgment and again prayed for a
year’s grace period to give up vacant possession. The respondent objected but
agreed to his being given six months only. However, the tribunal granted the
applicant one year within which to give up vacant possession. The applicant
again defaulted; and when the respondent, as judgment creditor, took the first
step towards execution by filing a formal decree, the applicant instinctively
brought a rather weird, unwieldy and speculative motion praying for (a) an
order for stay of execution; (b) an order setting aside the formal decree; and
(c) an order setting aside the judgment itself.<o:p></o:p>The
main ground urged in support of the application is that although the respondent
knew that his father died testate and the will was read, though probate had not
been taken, he failed to disclose to the court that he was one of the executors
of the said will, and that probate had not been taken. In suing therefore as a
beneficiary and customary successor of his late father, the respondent lacked
the capacity to sue, rendering the writ and subsequent proceedings thereon null
and void. The respondent also filed an affidavit in opposition to which the
applicant also filed an affidavit in reply. In this affidavit, the applicant
formally accused the respondent of “fraudulent misrepresentation to the court”
in respect of his capacity. He gave the particulars of fraud in the affidavit
as:<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">“(1)
failing to disclose to the court that his late father died testate; and <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">(2)
holding himself out as the customary successor in the title of the suit and in
the statement of claim filed.”<o:p></o:p>