KWESI ESSUMAN vs. MR. RALPH, FRANK ANDOM, CONSTRUCTION PROCUREMENT AND LOGISTICS COMPANY LIMITED AND GHANA OIL COMPANY LIMITED [2022]DLHC11637

KWESI ESSUMAN vs. MR. RALPH, FRANK ANDOM, CONSTRUCTION PROCUREMENT AND LOGISTICS... [2022]DLHC11637

Date	2022-07-22
Suit No.	SUIT NO: E1/26/18
Citation No.	[2022]DLHC11637

HIS LORDSHIP DR. RICHMOND OSEI-HWERE J.

CONSTANTINE K.M. KUDZEDZI ESQ FOR THE PLAINTIFF.

JUSTIN AMENUVOR ESQ. FOR THE RESPONDENT.

[2022]DLHC11637
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													<main id="main" class="content" style="min-height: 60rem" >KWESI ESSUMAN<o:p></o:p>(PLAINTIFF/APPLICANT)<o:p></o:p>vs.<o:p></o:p>MR. RALPH, FRANK ANDOM, CONSTRUCTION PROCUREMENT AND LOGISTICS COMPANY
LIMITED AND GHANA OIL COMPANY LIMITED<o:p></o:p>(DEFENDANTS/RESPONDENT)<o:p></o:p>[HIGH
COURT, SEKONDI]<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;">

</div>COUNSEL<o:p></o:p>CONSTANTINE K.M. KUDZEDZI ESQ FOR THE PLAINTIFF.<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;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUSTIN AMENUVOR ESQ. FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM<o:p></o:p>HIS
LORDSHIP DR. RICHMOND OSEI-HWERE J.<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;This
is a motion on notice filed by the Plaintiff/Judgment Creditor/Applicant (hereinafter
called “Applicant”) for leave to issue writ of possession against the
Respondent herein. <o:p></o:p>On
14th January, 2020 judgment was entered in favour of the Applicant
herein. An order for recovery of possession of the Applicant’s land was
subsequently made. It is on this basis that the Applicant has filed the
application to grant him leave to issue Writ of Possession against the
Respondent herein.<o:p></o:p>The
application is supported by an affidavit in support and a supplementary
affidavit. Applicant’s case is simply that Respondent’s land falls squarely
within his adjudged land. He has exhibited the judgment plan in a bid to prove
his case.<o:p></o:p>Respondent
is opposed to the application. Respondent has also exhibited its indenture and
site plan to show that its land falls outside the judgment plan of the Applicant.
<o:p></o:p>The
Respondent was not a party to the suit. He was not specifically mentioned in
the judgment of the court. In this application, it was the duty of the
applicant to proof that the land he seeks to issue a writ of possession falls
within the subject matter of the execution process.<o:p></o:p>In
his supplementary affidavit, applicant invited the court to appoint a surveyor
to superimpose his judgment plan and that of the Respondent’s site plan to
determine whether or not Respondent’s land forms part of his judgment plan. <o:p></o:p>Order
19 Rule 1(1) of the High Court (Civil Procedure) Rules, 2004 (CI 47) stipulates
that every application in pending proceeding shall be made by motion. By Order
19 rule 4 of CI 47, every application shall be supported by affidavit deposed
to by the applicant or some person duly authorized by the applicant. The
deponent shall state the facts on which the applicant relies, unless any of
these Rules provides that an affidavit shall not be used or unless the
application is grounded entirely on matters of law or procedure which shall be
stated on the motion paper.<o:p></o:p>Insofar
as the instant application is fought on affidavit evidence, it was untenable
for the court to accede to Applicant’s prayer to appoint a surveyor to
determine whether Respondent’s land falls within the judgment plan. It was for
the Applicant to engage a surveyor to depose to an affidavit in support of his
case. If the latter had prevailed the court could have ordered that the said
surveyor be examined on his depositions on the strength of Kojach Limited Vrs:
Multi Choice (Ghana) Limited [2013/14] SCGLR 1494, Holding 1 where the Supreme
Court held:<o:p></o:p>“It
must be pointed out that in virtually all interlocutory applications that come
before our courts, evidence in support would be in the nature of affidavit
evidence as required under Order 19 Rule 4 of the High Court (Civil Procedure)
Rules 2004 CI 47. In the normal course of determining interlocutory
applications the courts would rely on the affidavits filed together with
exhibits, if any. However, if any of the parties to the application is of the
opinion that certain vital issues appear unresolved, a party may with the leave
of the court, orally apply to the court to cross-examine a deponent to the
affidavit to assist the court in resolving the crucial issue, the determination
of which may have a decisive effect on the determination of the application …”<o:p></o:p>The
court has taken the trouble to assess the site plan and judgment plan. The Site
Plan for Emmanuel Kweku Appiah (Respondent’s Site Plan) was superimposed on the
Judgment Plan for Kwesi Essuman based on their Grid values (the common
intersection of the Grid lines on both plans). After the superimposition, it is
realised that both plans have separate positions. Thus, the Site Plan for
Respondent does not fall within the Judgment Plan for Applicant.<o:p></o:p>The
result is that Respondent’s land does not fall within Applicants judgment plan.
Consequently, the application for leave to issue writ of possession against the
Respondent fails and same is dismissed.<o:p></o:p>