EKOW RICHARDSON vs. STEPHEN ADUSEI-BOATENG AND NAANA ADUSEI-BOATENG [2019]DLHC8887

Date	2019-04-01
Suit No.	SUIT NO. LD/0248/2019
Citation No.	[2019]DLHC8887

BEFORE HIS LORDSHIP JUSTICE E. K. BOSOMPEM APENKWAH J.

NII AKWEI BRUCE THOMPSON FOR PLAINTIFF/RESPONDENT

AUGUSTINE ASARFO-ADJEI FOR DEFENDANT/APPLICANT

[2019]DLHC8887
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >EKOW RICHARDSON<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>STEPHEN ADUSEI-BOATENG AND NAANA ADUSEI-BOATENG<o:p></o:p>(DEFENDANTS/APPLICANTS)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (LAND DIVISION 5), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO. LD/0248/2019&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
1ST APRIL, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NII AKWEI BRUCE THOMPSON FOR
PLAINTIFF/RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

AUGUSTINE
ASARFO-ADJEI FOR DEFENDANT/APPLICANT <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;
padding:0cm 0cm 1.0pt 0cm">

BEFORE HIS LORDSHIP JUSTICE E. K. BOSOMPEM APENKWAH J.<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;
padding:0cm 0cm 1.0pt 0cm">

</div><o:p>&nbsp;</o:p>This
is an application by the defendants/Applicants praying this court to set aside
the writ of summons and statement of claim served on the Defendants under Order
9 rule 8(a) and Order 11 rule 8(1)(b) of the High Court (Civil Procedure)
Rules, 2004, C I. 47.<o:p></o:p>A
brief background to the application is that the Defendants/Applicants live
outside the country. Anytime 1st Defendant/Applicant visits Ghana,
he lives in the same address as his brother who lives in the jurisdiction.<o:p></o:p>The
1st defendant granted a power of attorney to the brother who lives
in the jurisdiction to commence an action in the High Court against the present
Plaintiff. That action is suit No. FAL 43/2013. Suit No. FAL 43/2013 did not
contain the address of the Plaintiffs outside Ghana but only that of their
attorney who lived in Ghana.<o:p></o:p>At
the end of the trial in suit No. FAL43/2013 the trial High Court gave Judgment
for the plaintiffs now Defendants in the instant suit. The defendant in the
suit (present Plaintiff) filed an appeal against the judgment of the court at
the Court of Appeal and which said appeal is still pending.<o:p></o:p>Notwithstanding
the pendency of the appeal the Plaintiff herein brought an application at the
High Court to set aside the earlier judgment in which he had lodged an appeal.
An objection was taken to the propriety of that application and was upheld by
the High Court. The Plaintiff who was Defendant in suit No. FAL 43/2013 then
again brought the instant action and is seeking the same reliefs as in the application
which was refused on point of law after objection had been taken.<o:p></o:p>According
to counsel for Defendants/Applicants, the grounds upon which this action is
founded are the same as found in the one set aside by another High Court. Counsel
opined that the High Court differently constituted found that the Plaintiff /Respondent
herein had filed an appeal in the matter in respect of suit No. FAL 43/2013
before the appellate Court, for that matter the High Court was functus officio
and would not entertain any matter relating to that suit.<o:p></o:p>Counsel
contended that having had the relief sought in the instant suit already
determined in a previous application brought before the High Court, it did not
lie with the Plaintiff/Respondent herein to bring the instant action seeking
the same reliefs.<o:p></o:p>Counsel
supported his argument with the Court of Appeal case of Ahyia vrs. Amoah
(1987/88)2GLR 289-296 at holding one of the headnotes. Counsel for Defendants/Applicants
further argued that the Plaintiff/Respondent has not appealed against the
dismissal of the application he filed at the High Court (differently
constituted) to set aside the writ &nbsp;in
the action in which&nbsp; he was the Defendant
after judgment had been given&nbsp; against
him and he had filed&nbsp; an appeal.<o:p></o:p>&nbsp;Counsel submitted that it meant
Plaintiff/Respondent agreed with the decision of the Court on the ruling given
on 5th September, 2018. Following from that he finally submitted
that the instant action is frivolous and an abuse of the process of Court and
therefore ought to be set aside.<o:p></o:p>Counsel
for Plaintiff/Respondent opposed the application and contended that the issue
of jurisdiction can be raised at any time adding that if a court has no jurisdiction
it had no powe</main>