MRS JENNIFER KANKAM NANTWI AND MARTIN KANKAM NANTWI (PLAINTIFFS/APPELLANTS/ APPELLANTS) vs. JOSEPH AMENYA (DEFENDANT/RESPONDENT/RESPONDENT) [2019]DLSC7842

MRS JENNIFER KANKAM NANTWI AND MARTIN KANKAM NANTWI (PLAINTIFFS/APPELLANTS/ APPE... [2019]DLSC7842

Date	2019-10-23
Suit No.	CIVIL APPEALNO. J4/22/2019
Citation No.	[2019]DLSC7842

GBADEGBE JSC (PRESIDING)

BENIN JSC

APPAU JSC

PWAMANG JSC

KOTEY JSC

S.K. AMOAH FOR THE PLAINTIFFS/APPELLANTS/APPELLANTS.

AUGUSTINA TETE DONKOR FOR THE DEFENDANT/RESPONDENT/RESPONDENT.

[2019]DLSC7842
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													<main id="main" class="content" style="min-height: 60rem" >MRS JENNIFER KANKAM NANTWI AND MARTIN
KANKAM NANTWI<o:p></o:p>(PLAINTIFFS/APPELLANTS/ APPELLANTS)<o:p></o:p>vs.<o:p></o:p>JOSEPH AMENYA<o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEALNO.
J4/22/2019&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;DATE: 23RD OCTOBER, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>S.K.
AMOAH FOR THE PLAINTIFFS/APPELLANTS/APPELLANTS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AUGUSTINA
TETE DONKOR FOR THE DEFENDANT/RESPONDENT/RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp; <o:p></o:p>GBADEGBE JSC
(PRESIDING), BENIN JSC, APPAU JSC, PWAMANG JSC, KOTEY JSC&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>THE
UNANIMOUS JUDGMENT OF THE COURT IS READ BY GBADEGBE JSC, AS FOLLOWS-:<o:p></o:p>GBADEGBE:<o:p></o:p>In
this appeal, for reasons of convenience, the parties will be referred to simply
as plaintiffs and defendant. The circumstances in which the action herein
arises may be stated shortly as follows. The plaintiffs issued the proceedings
herein against the defendant seeking an order setting aside a prior judgment of
the High Court, Accra in Suit Number L/187/2003 dated November 23, 2005 on the
ground of fraud. Also claimed as reliefs in the action are an order for the
cancellation of a Land Title Certificate No GA 10930, and an order of perpetual
injunction. Upon service of the proceedings herein on the defendant, he
submitted himself unconditionally to the jurisdiction of the trial High Court
and filed a defence to the action and counterclaimed among others for a
declaration that the judgment dated 23rd November, 2005 entered in favour of
the defendants herein in Suit L/187/2003 is valid and binding on the
Plaintiffs. The said claim was expressed to be in the alternative to a
declaration of title to the property in respect of which the previous judgment
and the present action related to. The previous judgment, on which the
proceedings herein turn is entitled: Joseph Amenyah v Edith Nyarko.<o:p></o:p>The
plaintiffs, a husband and wife alleged that they had acquired the disputed
property by purchase from one Kofi Boateng. The purchase was done in or about
2001 through the mother of the 1st plaintiff while the purchasers were said to
be resident outside the country. Sometime after acquiring the disputed
property, they caused the 1st plaintiff's mother to put up a residential
dwelling for them. After the said building was completed around 2005, they caused
utilities to be provided therein and they moved into occupation. Sometime in
2007, while in occupation of the property, the plaintiffs were served with a
court process indicating that the defendant herein had obtained a prior
judgment against, a person known as Edith Nyarko in respect of the same land.
The plaintiffs who denied knowledge of the said Edith Nyarko informed the
defendant herein who apparently was in the company of the process server that
they had lawfully acquired the disputed property from the owners. In the face
of the conflicting claim to the land by the defendants, which was acknowledged
in the judgment sought to be enforced against them, the plaintiffs caused their
proceedings herein to issue before the High Court, Accra seeking the reliefs
herein before mentioned.<o:p></o:p>In
his defence to the action, the defendant also alleged a purchase of the
disputed property around 1995 from a source other than that asserted by the
plaintiffs.&nbsp; Further to this he alleged
that after acquiring the disputed property, he caused sand and stones to be
deposited thereon and put up a fence wall to protect the land. Later, he was
informed of acts of encroachment on the property by a person whose name was
indicated as Edith Nyarko. The said person, it was alleged was engaged in the
construction of a building on the land. Accordingly, he caused proceedings to
be instituted against the encroacher resulting in the judgment, the subject
matter of the plaintiffs' action. According to him, as the said encroacher
could not be personally served, processes by way of substituted service were
affected on the land before the matter was tried.&nbsp; The defendant also said that before he
purchased the land, he had seen a land title certificate in the name of his
grantor who was described as the registered proprietor of interests to the
disputed property from whom he obtained a conveyance to the disputed land.
Based on these facts, the defendant lodged a counterclaim to the disputed
property.<o:p></o:p>The
plaintiffs' action suffered a dismissal both in the trial court and the
intermediate appellate court. Both lower courts upheld the defendant's
counterclaim for declaration of title together with the ancillary reliefs of
recovery of possession and perpetual injunction. The plaintiffs, claiming to be
dissatisfied with the judgment of the CA have appealed to us seeking an order
of reversal of the decision in their favor. The appeal before us having been
heard subsequent to the submission of written briefs by the parties, we now
proceed to deliver our decision in the matter.<o:p></o:p>One
significant matter emerging from the record of appeal before us is that both
the trial court and the CA made a determination at pages 262 and 409
respectively of the record of appeal&nbsp;&nbsp;
that the plaintiffs were not parties (or privies) to the previous action
whose judgment they seek to annul. In view of this determination, their failure
to obtain the consent of the defendant to the said proceeding before issuing
the writ of summons herein deprived them of any cause of action flowing from
the judgment. Consequently, as strangers to the previous action, the instant
proceedings by which they seek among others an order annulling the previous
judgment was improperly constituted. We find it quite puzzling that both the
learned trial judge and the learned justices of the CA did not advert their
minds to the obvious lapse in the proceedings. Indeed, having reached the same
view of the matter as the trial court, the learned justices of the CA should
have proceeded to strike out relief (1) by which an order was sought to set
aside the previous judgment as it was improperly constituted.&nbsp; As the proceedings herein are in the nature
of a re-hearing in which we have all the powers of the trial court, we are of
the opinion that based on the determination that the plaintiffs lacked capacity
to seek a relief related to the prior judgment entitled Joseph Amenyah v Edith
Nyarko, it is right that we pause with a consideration of the issues raised by
the appeal to correct an obvious slip in the proceedings. In our opinion, in so
acting, we are only applying the extensive power vested in us u</main>