ENOCH TEYE AMONI vs. NANGUAH APENKRO [2007]DLCA7005

Date	2007-10-26
Suit No.	CIVIL APPEAL NO. H1/1112/06
Citation No.	[2007]DLCA7005

J. B. AKAMBA J.A. [PRESIDING]

R.K. APALOO J.A.

MARIAMA OWUSU J.A

MR. WILLIAM ADOTEI ADDO FOR THE PLAINTIFF/APPELLANT

MR. AMOS BUERTY FOR THE DEFENDANT/RESPONDENT

[2007]DLCA7005
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													<main id="main" class="content" style="min-height: 60rem" >ENOCH TEYE AMONI<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">NANGUAH APENKRO<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. H1/1112/06&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 26TH OCTOBER, 2007<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR.
WILLIAM ADOTEI ADDO FOR THE PLAINTIFF/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. AMOS BUERTY FOR THE
DEFENDANT/RESPONDENT<o:p></o:p>

J. B. AKAMBA J.A. [PRESIDING], R.K.
APALOO J.A., MARIAMA OWUSU J.A.<o:p></o:p>

</div>APALOO
J.A. <o:p></o:p>This
is an appeal from the ruling of the High Court Accra dated 29th July 2005. In
that ruling the learned trial Judge set aside the writ of summons and the
statement of claim together with all other processes. For purposes of this
appeal I shall keep to the designation assigned to the parties in the Court below.<o:p></o:p>&nbsp;The simple facts leading to this suit were
that the Plaintiff, acting on behalf of the Amoakoto family of Ada describing
himself as chief and head of family of the royal Amoakoto family instituted
this action in the High Court Accra, claiming among others, declaration of
title to a parcel of land known as Todjebia lands situate at Ada the boundaries
of which were described in the writ. The Plaintiff contended that the land was
founded by his ancestor one Nene Amoakoto I. He claimed that the Defendant who
in the past had depended on the Plaintiff’s title to "fend off other
trespassers had trespassed on part of the said family land ..... and has denied
the Plaintiff's family title to the same land".<o:p></o:p>&nbsp;The Defendant upon being served with the writ
of summons and the statement of claim appeared conditionally to the writ and
proceeded to file a motion to set aside the writ of summons and to dismiss the
suit or in the alternative to report the pendency of the suit to the chief
Justice. <o:p></o:p>The
Defendant's affidavit in support of his motion for the dismissal of the suit
deposed that at the time of filing of the writ in the High Court Accra, there
was in existence two substantive actions pending between the Plaintiff herein
and the Defendant. In one of the suits as Plaintiff and in the other as
Defendant. The other suit in the District Court Ada, had the Defendant herein
as Plaintiff against one Kuwornu Amoakoto and 7 others. In both suits, each
Plaintiff at all times was claiming a declaration of title to and recovery of
possession of a parcel of land at Dorgbom which I presume to be the same piece
of land the subject matter of the current suit. <o:p></o:p>From
the record it appears that at the date of hearing the motion the Plaintiff
herein had withdrawn the suit between himself and the Defendant and the one
between the Defendant and Kuwornu Amoakoto with 7 others had been stayed to
await the outcome of a similar suit pending in the High Court. See the Judicial
Secretary’s letter to Defendant’s Counsel which was copied to the Registrar
Community Tribunal Ada on page 21 of the record.<o:p></o:p>&nbsp;Upon hearing the motion the trial Judge
delivered himself as follows:— "<o:p></o:p>&nbsp;................ The applicant moved his
motion and tendered papers related to the suits in the other High Court, Accra
and also in the Magistrate’s Court Ada. The submission that this suit should be
set aside is therefore upheld since the same matter cannot be tried by two
Courts. I will therefore set aside the writ of summons and statement of claim
with all the other processes. It is therefore not necessary to report the suit
to the Chief Justice for an order of transfer". Arising out of the ruling
this appeal was lodged on three grounds which attacked the reasons advanced by
the trial Judge in dismissing and setting aside the writ of summons.<o:p></o:p>&nbsp;The power to set aside a writ is conferred on
the High Court by Order 9 Rule 8 and Order 11 Rule 18 (1). These two rules are
specific in terms of what to do. By Order 9 Rule 8 "A defendant may at any
time before filing appearance, or, if the defendant has filed a conditional
appearance, within 14 days after filing appearance apply to the Court for an
order to:<o:p></o:p>&nbsp;(a) Set aside the writ or service of the writ.
<o:p></o:p>(b)
Declare that the writ or notice of it has not been served on the Defendant or<o:p></o:p>&nbsp;(c) Discharge any order that gives leave to
serve the notice on the defendant outside the country."<o:p></o:p>&nbsp;Again Order 11 rule 18 (1) allows pleadings to
be struck out under the following conditions or grounds: <o:p></o:p>(a)
It discloses no reasonable cause of action or defence. <o:p></o:p>