REV. NANA ADJEI NTOW vs. ERNEST SIAW AND OTHERS [2015]DLCA3145

Date	2015-11-19
Suit No.	CIVIL APPEAL NO. H1/38/2014
Citation No.	[2015]DLCA3145

AYEBI J.A. (PRESIDING)

TORKORNOO (MRS)

J. A.

DOMAKYAAREH (MRS) J. A.

PLAINTIFF/APPELLANT PRESENT IN PERSON

NO REPRESENTATION FOR DEFENDANTS/RESPONDENTS

[2015]DLCA3145
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REV. NANA ADJEI NTOW

&nbsp;[COURT OF APPEAL, KUMASI]

CIVIL
APPEAL NO. H1/38/2014&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: 19TH NOVEMBER, 2015

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COUNSEL:&nbsp;&nbsp;

PLAINTIFF/APPELLANT PRESENT
IN PERSON,

NO REPRESENTATION
FOR DEFENDANTS/RESPONDENTS

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&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;

JUDGEMENT

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TORKORNOO (MRS) , J. A:

The
Plaintiff/Appellant sued the same defendants in 2010 in an action numbered suit
No C1/28/2010. That action was
consolidated with another suit titled Nana Osei Atta and 3 others v Rev Nana
Adjei Ntow and another, and numbered C1/43/2010.

When
Plaintiff commenced the action in this appeal numbered C1/38/2013 and the writ
was served on the Defendants, they entered conditional appearance and filed an
application to strike out this action as an abuse of the legal process. Their
fundamental ground for the application was that ‘as far back as 2010, a similar writ of summons seeking almost the same
reliefs’ had been issued against them. After listening to counsel, the learned
trial judge struck out suit C1/38/2013.

On
page 2 of his ruling he said “it seems to
me that their various assertions asseverations and or depositions will after
careful studying(SIC) their cases, boil down to whether the principle of lis
alibi pendens will apply here or not. And after a careful analysis my decision
is that, it can….for simply the fact that my close examination of exhibit ‘A’
filed before the High Court 3rd December, 2010 (to which my
attention was drawn by the second defendant/applicant) revealed to me that the
reliefs sought by the plaintiff are just about the same as the plaintiff herein
in before the motions court seeks.

Though the language used in the earlier
Suit Number C1/28/2010 filed by the Plaintiff/Appellant in his proposed amended
statement of claim (vide his Paragraphs 6-11) (which I have leant was granted
by the court) was slightly different, the objective therein and the relief he
now seeks from the Motions Court in suit No. C1/38/2013 is basically the
same.&nbsp; That is the EJECTMENT of some or
all of the present defendants in the same two named suits from the same
property House Number D10/2, Central Area, Sunyani.

It is basically in view of the just
stated fact that I hold that the principle of lis alibi pendens &nbsp;applies here since it invariably means that
concurrent proceedings are being taken in the same or different court against
the same parties on the same or almost the same issue. I believe this is to
whichever way one view the situation in terms of the earlier suits before
Justice Assan and the present or intended suit before me in the Motions Court.

In
Nkrumah v Ankomah [1972] 2GLR 134, the court held that where the Applicant
is able to prove that the action instituted by the Plaintiff is vexatious
because the Applicant is doubly and unnecessarily vexed by raising another
action for the same cause of action which has been instituted in another court,
the court will invariably strike out the action (for just the aforementioned
reason).

And in this matter, I am totally
convinced of the persuasive force and reasonableness of the authority of
Nkrumah v Ankomah case particularly in respect of the illustration offered in
it – namely that where the same litigant brings two actions about the same
matter in two different&nbsp; courts in
this country such a conduct is in all cases deemed to be vexatious and the
defendants’ may demand that he shall elect between the two proceedings.

In reliance upon the sheer strength and
force of the aforementioned authority, I would dismiss the intended or present
suit before me (i.e. Suit No. C1/38/2013) and order that the
Plaintiff/Respondent stick to his earlier suit or suits before the other court”

Following
this ruling, the learned judge was invited to review his ruling. He refused to.
The plaintiff is appealing on three grounds:

1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
learned trial Judge erred in striking out the Plaintiff’s Writ of Summons on
the principles of lis alibi pendence.</main>