EMMANUEL TETTEH BLEBO & ANOR vs. SAMUEL YAW OPATA & ANOR [2011]DLCA7003

Date	2011-12-08
Suit No.	CIVIL APPEAL NO: H1/42/2010
Citation No.	[2011]DLCA7003

ABBAN (MRS.) J.A. (PRESIDING)

DUOSE J.A.

GYAESAYOR J.A.

MR. BAFFOUR ASSASIE GYIMAH FOR 1ST DEFENDANT/APPELLANT

MR. CHRIS KOKA FOR PLAINTIFFS/RESPONDENTS

[2011]DLCA7003
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL TETTEH BLEBO &amp; ANOR<o:p></o:p>(PLAINTIFFS/ RESPONDENTS)<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">SAMUEL YAW OPATA &amp; ANOR<o:p></o:p>(DEFENDANTS/
APPELLANTS)<o:p></o:p><o:p>&nbsp;</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;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO: H1/42/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 8TH
DECEMBER, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
BAFFOUR ASSASIE GYIMAH FOR 1ST DEFENDANT/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. CHRIS KOKA FOR
PLAINTIFFS/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;
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ABBAN (MRS.) J.A. (PRESIDING), DUOSE
J.A., GYAESAYOR J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>ABBAN
(MRS), J.A.<o:p></o:p>&nbsp;This is an interlocutory appeal against the
ruling of the High Court (Fast Track), Accra delivered on the 5th day of
November 2008. The ruling went against the Defendants/ Appellants and being
dissatisfied, they have appealed against same to this court.<o:p></o:p>&nbsp;The facts which have resulted in this appeal
are as follows: <o:p></o:p>On
the 14th November, 2007, the Plaintiffs/Respondents (hereinafter referred to as
the Respondents) issued out a writ claiming a declaration of title to land
against the 1st Defendant/Appellant (hereinafter referred to as the Appellant).
The appellant in his defence raised an issue of estoppel per rem judicatam. On
25th July, 2008, the High Court in its judgment sustained an objection by the
1st appellant that the same subject-matter had been litigated over by the
fathers of the parties in this present suit in 1976 and judgment had been given
in favour of the family of the appellant herein. <o:p></o:p>In
the suit before the High Court, the appellant did not deny that there was a
magistrate’s judgment as pleaded by the respondents herein. The 1st appellant’s
case is that before the magistrate, no dimensions were given in terms of
acreage and value and no objection was also raised for a proper assessment of
the size and the value to be determined. The court could not, therefore, be
said to have overreached its jurisdiction. <o:p></o:p>From
the evidence of 2nd plaintiff/respondent, it was quite clear that the land the
subject-matter of the litigation is the same as that which was tried in 1976. <o:p></o:p>Dissatisfied
with the judgment of the High Court, the plaintiffs/ respondents filed a Notice
of Appeal on 31st July, 2008 and subsequently filed a motion for stay of
execution on 7th August, 2008. This application for stay of execution was
dismissed on 14/8/2008 as being without merit. The plaintiffs/respondents
repeated the motion for stay of execution before this court and same was struck
out by the court on 4th November, 2008. In the meantime the Registrar of the
High Court (Fast Track) Division had entered the appeal before this court by
filing Civil Form 6 which was notice to the parties that the record of appeal
had been forwarded to the Court of Appeal. <o:p></o:p>On
30th October, 2008, the plaintiffs/respondents purported to file a motion for
interlocutory injunction to restrain the 1st defendant/ appellant from dealing
with the land, the subject-matter of this appeal. Strangely, on the 5th day of
November 2008, the High Court granted the application for interlocutory
injunction even though as at that time, there was no suit pending before it,
the court having delivered its judgment as far back as 25th July, 2008.<o:p></o:p>&nbsp;In the
case of Republic vs. High Court (Human
Rights Division) Accra; Ex-parte Akita (Mancell-Egala &amp; Attorney-General –
Interested Parties) 2010 S.C.G.L.R. 374, it was held by the Supreme Court
by a 3 to 2 majority that “it was well-settled that once the form 6 had been
served on the trial High Court, that court no longer had jurisdiction over the
case. At that point of the proceedings, the court with the appropriate
jurisdiction would be the Court of Appeal. Since there was no doubt that the
form 6 had been served on the trial court that should have effectively ended
its jurisdiction”. <o:p></o:p>