IBRAHIM ADJETEY MENSAH vs. CHIEF MASAUDU MORO GARIBA [2018]DLCA6181

Date	2018-11-22
Suit No.	SUIT NO. H1/165/2018
Citation No.	[2018]DLCA6181

MARIAMA OWUSU (J.A) PRESIDING

AVRIL LOVELACE-JOHNSON (J.A)

HENRY A. KWOFIE (JA)

MOHAMMED ATTA WITH S. TETTEH FOR DEFENDANT/RESPONDENT

K. S. A. AMOAH WITH NANA A. P. AMOAH FOR PLAINTIFF/APPELLANT

[2018]DLCA6181
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													<main id="main" class="content" style="min-height: 60rem" >IBRAHIM ADJETEY MENSAH<o:p></o:p>[PLAINTIFF/APPELLANT]<o:p></o:p>vs.<o:p></o:p>CHIEF MASAUDU MORO
GARIBA<o:p></o:p>[DEFENDANT/RESPONDENT]<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;
padding:0in 0in 1.0pt 0in">

SUIT NO. H1/165/2018&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: 22nd NOVEMBER,
2018<o:p></o:p>

K.
S. A. AMOAH WITH NANA A. P. AMOAH FOR PLAINTIFF/APPELLANT<o:p></o:p>

</div>AVRIL LOVELACE-JOHNSON (J.A):<o:p></o:p>This
is an appeal against the ruling of the High Court dated 13th October 2017 by
which it refused the application by the Plaintiff/Appellant to restrain both
parties from dealing with the land in dispute pending the final determination
of the suit.<o:p></o:p>The
court based its refusal on two grounds. The first was that the
Plaintiff/Appellant (to be referred to as Appellant hereon) was unable to show
his interest in the subject matter. The second ground was that he did not file
a supplementary affidavit in response to the Defendant/Respondent’s (to be
referred to as Respondent hereon) contention, supported by a document that the
Appellant had earlier granted the land to him.<o:p></o:p>This
appeal is brought on the following grounds<o:p></o:p>i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial judge erred by taking
into account irrelevant matters or by not taking into account relevant matters
in determining the application for judgment<o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Learned trial judge erred by
refusing to grant the application for injunction<o:p></o:p>iii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The ruling is against the weight of
evidence<o:p></o:p>In
consequence of the above, the Appellant seeks from this court an order setting
aside the ruling in question and a further order granting the interlocutory
injunction sought.<o:p></o:p>Both
counsel argued the first two grounds of appeal together. I will follow suit.<o:p></o:p>The
submissions of counsel for the Appellant on these two grounds in sum are that,
the court in exercising its discretion whether or not to grant the application
misapprehended the facts thus creating exceptional circumstances for this,
court as an appellate one to interfere with that exercise of discretion. It is
submitted that this misapprehension is in relation to the capacity in which the
Appellant brings this action and the import of a document attached to the
Respondent’s affidavit in opposition and the conclusion drawn from the said
document.<o:p></o:p>In
response to these submissions, counsel for the Respondent states that, the
Appellant having failed to make the appropriate indorsement on the writ as he
is mandatorily required to do, the learned trial judge was right in finding
that he had capacity. Further that if he was indeed a beneficiary of the estate
as he himself alleges then as required by law, he can only bring this action if
the he has been granted a vesting assent. In relation to the judge’s
conclusions on the document attached by the Respondent to his affidavit in
opposition, counsel contends that, it being one of the materials before the
court, the trial judge, in line with authorities on the issue was, required to
take it into consideration even at this stage of the proceedings.<o:p></o:p>It
is clear from the ruling that the issue which was dominant on the trial judge’s
mind was one of the capacity of the Appellant which the learned trial judge
‘struggled’ with. This was because the said capacity was not “reflected in the
title of the suit as required by law”<o:p></o:p>It
is true that the title of the writ did not disclose the capacity in which the
Appellant issued the writ but paragraph 1 of the accompanying statement of
claim immediately reveals this capacity. The said paragraph states as follows<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Plaintiff is the Administrator of the
estate of the late Nii Mensah Bediako 1 (Chief of Zenu) and brings this action
for and on behalf of the estate.<o:p></o:p>Counsel
for the Respondent refers to Order 2 rule 4 (1)(a) which states as follows<o:p></o:p>Before
a writ is filed it shall be endorsed<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Where the Plaintiff sues in a
representative capacity, with a statement of the capacity in which the plaintiff
sues. and submits that this provision being mandatory, the writ by which this
case was commenced is defective and a nullity.<o:p></o:p></s</main>