NII OTSWI OHETSE ADOTEI IV vs. MR. BENJAMIN ASHITEY QUARSHIE, MRS. ASHITEY QUARSHIE, DANIEL GAIPAH, MONICA KLU GAIKPAH, JOHN KAFUI KWAME AND MRS. FELICIA KLU [2021]DLCA11029

NII OTSWI OHETSE ADOTEI IV vs. MR. BENJAMIN ASHITEY QUARSHIE, MRS. ASHITEY QUAR... [2021]DLCA11029

Date	2021-10-14
Suit No.	SUIT NO.H1/117/2021
Citation No.	[2021]DLCA11029

YAW DARKO ASARE J

ERNESTINA ASUWURA FOR 1ST 3RD - 6TH APPLICANTS/RESPONDENTS

KWAME FOSU GYEABOUR FOR PLAINTIFF/APPELLANT

[2021]DLCA11029
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													<main id="main" class="content" style="min-height: 60rem" >NII OTSWI OHETSE ADOTEI IV<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>MR. BENJAMIN ASHITEY QUARSHIE, MRS. ASHITEY QUARSHIE, DANIEL GAIPAH,
MONICA KLU GAIKPAH, JOHN KAFUI KWAME AND MRS. FELICIA KLU<o:p></o:p>(DEFENDANTS/ APPLICANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO.H1/117/2021&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 14th OCTOBER, 2021<o:p></o:p>

</div>COUNSEL<o:p></o:p>ERNESTINA
ASUWURA FOR 1ST, 3RD - 6TH&nbsp;&nbsp; APPLICANTS/RESPONDENTS<o:p></o:p>KWAME
FOSU GYEABOUR FOR PLAINTIFF/APPELLANT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;ADJEI,
J.A:<o:p></o:p>The
Plaintiff/Appellant on 22nd December, 2020 filed an interlocutory appeal
against a ruling delivered by the High Court, Adentan, Accra on 10th December,
2020 in which the trial High Court Judge stayed the proceedings in the matter
before it on grounds that there was a pending case commenced by the 3rd to 6th
Defendants/Appellants against the Plaintiff Appellant herein involving the same
subject before the High Court, Accra.<o:p></o:p>The
Plaintiff/Appellant dissatisfied with the ruling filed an appeal against same
to this Court to set aside the ruling for the matter to proceed to trial. For
the purposes of this appeal, the Plaintiff/ Appellant shall be described as
Plaintiff, the 1st and 2nd Defendants shall maintain their designation as 1st
and 2nd Defendants, and the 3rd to 6th Defendants/Appellants as 3rd to 6th
Defendants. The 1st and 2nd Defendants did not appeal against ruling which is
the subject matter of this appeal.<o:p></o:p>The
brief facts of the case were that the Plaintiff instituted the action which has
culminated to this appeal against the Defendants jointly and severally for
ownership to title to 8.04 acre land forming part of the Plaintiffs’ family
land, a declaration that Defendants failed to pay consideration to the Plaintiffs’
family for the lease, an order setting aside the lease made between the
Plaintiffs and the 1st and 2nd Defendants, an order setting aside the
subsequent grants made by the 1st and 2nd Defendants to the other Defendants,
and order for perpetual injunction, recovery of possession and demolition, and
general damages.<o:p></o:p>The
1st and 2nd Defendants entered appearance and subsequently filed statement of
defence and counterclaim. The 3rd to 6th Defendants upon service of the writ
and statement of claim entered conditional appearance. The conditional
appearance entered by the 3rd to 6th Defendants by operation of law became
appearance after they had failed to file a process either to challenge the
validity of the writ or set aside the writ or service of same within 14 days
upon filing it. The Plaintiffs filed an application for judgment in default of
defence after the conditional appearance has become appearance by operation of
law. The 3rd to 6th Defendants on 18th November, 2020 filed an application to
set aside the writ of summons and statement of claim, or stay proceedings, or
consolidate on grounds of lis alibi pendis and abuse of the court process.<o:p></o:p>The
3rd - 6th Defendants position was that they filed an action in the High Court (Land
Division) Accra as Plaintiffs against Nii Akwei Adotey for various reliefs and
was pending before the High Court and the subsequent one filed by the Plaintiff
involving the same subject matter constitutes an abuse of the process of the
court. The 1st and 2nd Plaintiffs therein were seeking for a declaration of
title to a parcel of land covering an approximate area of 0.65 acre or 0.26
hectares at Adoteiman Accra, recovery of possession, an order for perpetual
injunction, damages for trespass and cost. The 3rd and 4th Plaintiffs also sued
the Defendant for a declaration of title to land situate at Adoteiman Accra
covering an area of 0.16 acres or 0.06 hectares, recovery of possession, an
order for perpetual injunction, damages for trespass, and cost. The Defendant therein,
the Plaintiff herein filed an application to the High Court to set aside the
writ of summons and the statement of claim for being misconceived and irregular
and should be struck out but same was dismissed.<o:p></o:p>The
Plaintiff commenced his action against the four plaintiffs in the first suit
pending before the Land Division of the High Court, Accra and two other persons
over a large tract of land covering an area of 8.04 acres. The present action
covered an area of about 8 acres of land while the other action does not cover
an acre of land. The High Court heard the application brought by the 3rd to 6th
Defendants and stayed the present action including the counterclaim filed by
the 1st and 2nd Defendants against the Plaintiff. The ruling which is the
subject matter of this interlocutory appeal provides thus:<o:p></o:p>“Application for stay is hereby granted.
I agree that the title on the motion paper is mixed up and contradictory. Per
Order 81(1), I treat it as an irregularity and confine myself to the prayer for
stay of proceedings and not prayer for the dismissal of the suit due to the
presence of 1st and 2nd Defendants. This is because I find that, the parties
apart from the 1st and 2nd Defendants are the same, the subject matter is the
same except the acreage being claimed in this court and the reliefs are
similar.<o:p></o:p>The
matter in this court is hereby stayed until final determination of the matter
at Land Court 2, Accra.”<o:p></o:p>The
Plaintiff dissatisfied with the ruling of the trial High Court rendered on 10th</main>