AMMA ADUTWUMWAA vs. THE CIRCUIT COURT EX-PARTE MADAM AKUA BOSOMPEMAA AND KOFI NSIAH [2018]DLCA6168

AMMA ADUTWUMWAA vs. THE CIRCUIT COURT EX-PARTE MADAM AKUA BOSOMPEMAA AND KOFI N... [2018]DLCA6168

Date	2018-11-12
Suit No.	CIVIL APPEAL SUIT NO: H1/24/17
Citation No.	[2018]DLCA6168

ADUAMA OSEI JA (PRESIDING)

DZAMEFE JA

M. WELBOURNE JA

KWAME ADOM-APPIAH FOR APPLICANTS/RESPONDENTS.

AMA ASENSO FOR INTERESTED PARTY/APPELLANT.

[2018]DLCA6168
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													<main id="main" class="content" style="min-height: 60rem" >AMMA ADUTWUMWAA<o:p></o:p>[INTERESTED PARTY/APPELLANT]<o:p></o:p>vs.<o:p></o:p>THE CIRCUIT COURT
EX-PARTE MADAM AKUA BOSOMPEMAA AND KOFI NSIAH<o:p></o:p>[APPLICANTS/RESPONDENTS]<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

CIVIL APPEAL SUIT NO: H1/24/17&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: 12TH NOVEMBER,
2018<o:p></o:p>

AMA
ASENSO FOR INTERESTED PARTY/APPELLANT.<o:p></o:p>

</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>ADUAMA
OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DZAMEFE, JA<o:p></o:p>This
is a matter of an application for Judicial Review in the nature of Certiorari
filed by Applicants at the High Court, Kumasi, praying for an order of
Certiorarito quash a ruling and a judgment of the Circuit Court Kumawu Ashanti
dated 12th day of January 2017.&nbsp; The
ruling referred to adjudged that the parties to the suit have reached terms of
settlement based on which the court entered a consent judgment, as the said
decision was made in breach of the rules of natural justice and or error which
is apparent on the face of the record.<o:p></o:p>The
applicant Madam Akua Bosompemaa in her affidavit in support to the application
averred they were the defendants in a land suit instituted on the 25th of June
2013 at the Circuit Court, Kumawu- Ashanti by the Interested Party, Suit No.
AL/08/13 originallyentitled; <o:p></o:p>Ama
Adutwumwa<o:p></o:p>vrs.<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Abusuapanin Opoku Sekyere<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Madam Akua Bosompemaa<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Kofi Nsiah<o:p></o:p>The
applicant prayed the trial High Court, Kumasi for an orderof Certiorari to
quash the decision or consent judgment or the purported consent judgment of the
Circuit Court, Kumawu dated 12thJanuary 2017 which was delivered based on a
purported “Terms of Settlement” brought into being by strangers to the suit
mentioned above. By the said judgment the Circuit Court purports to have
adopted terms of settlement as a consent judgment thus makingthem (applicants)
liable to re-build the disputed property as a family property for the parties
thereto.<o:p></o:p>The
applicants averred further that the Circuit Court which purported to enter the
decision complained of was bereft of jurisdiction, the moment it breached the
audi alteram parterm rule by reason of the fact that the 2nd and 3rd defendants
and the applicants in the suit were not heard by the Court.&nbsp; Their signatures were not on the terms of
settlement relied on by the court before it purported to adopt the terms of
settlement as a consent judgment.&nbsp; It is
her case that, that was an error on the face of the record of the Circuit
Court, Kumawu-Ashanti.<o:p></o:p>The
applicant said theywere at all material times the defendants in the suit and
that the plaintiff had closed her case and she the applicant gave her
evidence–in-chief for the 2nd and 3rd defendants and was under cross
examinationwhen thecourt became vacant since the transfer of the judge.&nbsp; There was the need for application and
adoption of the proceedingswhen the new judgetook over the case.&nbsp; However,before the adoption ofthe proceedings
could be done, some members of the plaintiff’s immediate family proposed
amicablesettlement to the court.&nbsp; This
was done in the absence of theparties.<o:p></o:p>These
members without any consultation or their consent nor any agreement reached
between the parties to the suit strangely drew up terms of settlement and
signed same by themselves.&nbsp; Neither of
the parties to the suit signed the purported Terms of Settlement whichthe court
relied on to enterthe purportedconsentjudgment dated 12th January 2017.<o:p></o:p>It
is their case that the said terms of settlement were not officially filed at
the Registry of the Circuit Court, but rather deposited with the Registrar,
thus making it an extraneous material which a competent judicial body such as
the respondent court ought not to have placed any premiumon. Although this
purported terms of settlement were neither signed by the parties to the suit
nor was it officially filed at the court, the court relied on same and adopted
it on the 12th of January, 2017 as the consent judgment.&nbsp; On that date of adoption, the parties were
all absent from court and there is no evidence on record that the parties were
served with Hearing Notice to appear on that particular date.&nbsp; Assuming the parties even signed the
document, it was still incumbent on the court to question them verbally to
ascertain whether it was their deed. The applicant avers also that one Kwame
Opoku who represented the 2nd and 3rd defendant on that 12/01/17 did not have
their mandate to do so.<o:p></o:p>Upon
notice of these, applicant said they instructed their lawyer to have the
anomaly rectified whereupon he filed a motion to set aside the consent judgment
but same was dismissed by the court</main>