Sgt Rtd Jack Niin Darku Dodoo -vrs- Fuseini Ibrahim [2022] GHACA 44 (7 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD 2022 CORAM: 1. SUURBAAREH, J. A (PRESIDING) 2. M. WOOD (MRS), J. A 3. J. BARTELS-KODWO (MRS), J. A CIVIL APPEAL NO H1/67/2022 DATE: THURSDAY, 7TH JULY, 2022 SSGT RTD JACK NII DARKU DODOO == DEFENDANTS/APPELLANTS W. O.1 CHARLES NII AMOO DODOO VRS FUSEINI IBRAHIM == PLAINTIFF/RESPONDENT __________________________________________________________________ _________________________________________________________________ JUDGMENT MERLEY WOOD JA This is an Interlocutory appeal from the ruling of the High Court, Land Division, Accra dated 12th May 2021. The facts leading to this interlocutory appeal are that the Plaintiff/Respondent took out a Writ of Summons and Statement of Claim against the Defendants for the following reliefs: “(i) A Declaration that the Plaintiff is the bona fide owner of all that piece or parcel of land situate, lying and being at Pokuase-Accra and containing an approximate area of 0.263 Acre or (0.106 Ha) more or less and bounded on the North-West by proposed road measuring 051.7 & 040.3’ feet more or less on the North-East by proposed road measuring 110.9 feet more or less on the South-East by the Lessor’s land measuring 103.9’ feet more or less on the South-West by the Lessor’s land measuring 128.7 feet more or less. (ii) Recovery of Possession of the piece or parcel of land situate, lying and being at Pokuase-Accra and containing an approximate area of 0.263’ Acre or (0.106Ha) more or less and bounded on the North-West by proposed road measuring 0.51.7 & 040.3’ feet more or less on the North-East by proposed road measuring 110.9 feet more or less on the South-East by the Lessor’s land measuring 103.9’ feet more or less on the South-West by the Lessor’s land measuring 1287.7 feet more or less. (iii) An order of perpetual injunction against the Defendants, their agents and privies from entering or otherwise dealing with the piece or parcel of land and from disturbing the Plaintiff’s use and quiet enjoyment or possession of the piece or parcel of land which is the subject matter of this suit. (iv) Damages for trespass. (v) Costs.” The Plaintiff/Respondent’s case as per his writ of summons and statement of claim is that upon acquiring land from the late Prince Robert Thomas Dodoo family acting per its head of family Michael Nii Amponsah Dodoo, he instructed his caretaker to deposit sand and stones on the land to enable commencement of construction of the fence wall and other works. He pleads that when his caretaker, Samuel Agbo together with a tipper truck driver were about to deposit the sand and stones, not only were they stopped by the Defendants but the 2nd Defendant pulled a gun and threatened to shoot the tyres of the tipper truck. After the matter was reported to the Police, the parties together with elders of the family were invited where the 1st Defendant claimed to hold a Power of Attorney dated 4th January 1994 from the then head of family Abraham Nii Otoo Dodoo who died in 1995. The Plaintiff avers that the Defendants continue to trespass on the land by putting a welder who plies his trade and despite warnings from the head of family to desist from their illegal acts, they continue to do so. When the Defendants could not be served personally, they were served by substituted service. Conditional appearance was entered for the Defendants. The Counsel for the Defendants then filed a Motion to Strike Out the suit “for non -compliance with the Rules of Court for Discontinuance” on the basis that the Plaintiff instituted a substantially same cause of action against the same Defendant in Suit No LD/0054/2020 which suit was discontinued on 5th February 2020 and that the Plaintiff has not paid the costs awarded against him when the suit was discontinued. He further avers that the failure of the Plaintiff to comply with the mandatory rules of Discontinuance before instituting the instant action renders the writ of summons a nullity and hence his prayer. Being vehemently opposed to the said motion, the Plaintiff filed an Affidavit in Opposition where it was averred that when the Writ of Summons with its accompanying Statement of Claim (Suit No LD/0054/2020) was filed on 11th October 2019, the Defendants filed a Motion to Strike it out with the reason that the fact of the Plaintiff residing in Spain had not been endorsed on the writ. With the said writ struck out as prayed, the Plaintiff accordingly filed the instant Writ of Summons wherein he indorsed the Plaintiff’s address. Regarding the non payment of costs, he avers that he is yet to be served with the entry of costs to enable him pay costs awarded against him when the first Writ of Summons and Statement of Claim was struck out. He therefore concludes that because the Defendants have no defence to the action, they have resorted to the instant application which is an abuse of the court process since he did not discontinue the first suit. The trial High Court in a ruling dated 12th March 2021 dismissed the application to strike out the Writ as unmeritorious and unmaintainable and ordered the Defendants to file their defence by stating thus: “From the totality of the affidavit evidence, the written submissions of both Counsel as well as the processes on the Court’s docket in respect of the chequered and irregular commencement of the suit, involving discourse and intercourse between the Registry of the Court and the Office of the Chief of Staff of the Ghana Armed Forces, it is my considered view that any arid and unwelcome technicalities, seeking to stall, undermine or even halt this suit, must give way for the spirit of Rules of Court encapsulated in Order 1 Rule 2(1) of the High Court (Civil Procedure) Rules, 2004 CI 47 to be effectuated.” The Defendants/Appellants aggrieved with the Ruling have appealed to this court. Their grounds of appeal filed on 25th March 2021 are as follows: “1. The learned trial High Court Judge misconstrued the meaning of the term “discontinuance” and thus, came to the wrong conclusion. 2. The learned trial High Court judge acted out of jurisdiction when he relied on an invalid affidavit in opposition which had even been discarded by the Respondent. 3. The ruling of the Honourable Court is against public policy as it results in unjust enrichment by the Plaintiff/Respondent/Respondent. 4. Additional grounds will be filed upon receipt of the record.” The relief sought is the setting aside of the Ruling of the trial High Court and staying of proceedings until the costs awarded in the previous suit against the Plaintiff/Respondent/Respondent are paid. It is to be put on record that no additional grounds of appeal were filed. The Plaintiff/Respondent will be alternately referred to as Plaintiff or Respondent whiles the Defendants/Appellants will be alternately referred to as Defendants or Appellants. In arguing Ground 1, Counsel referred to Order 17 of the High Court (Civil Procedure) Rules, 2004 CI 47 which deals with Withdrawals and Discontinuance and submits that a careful reading of Order 17 rule 2 (1) indicates that either the Plaintiff or the court is given the option to discontinue the action while under Rule 3, the Plaintiff shall discontinue the action only with leave of court before, during or after the hearing or trial. He further argued that since the Court ordered the discontinuance of the action because the Plaintiff’s residential address had not been provided, in order not to sin against the provision, it was incumbent upon him to pay the costs awarded against him with the discontinuance of the suit. He further contends that since the striking out of the Respondent’s previous suit was a discontinuance under Order 17 of CI 47, the Plaintiff should pay the costs. It is Counsel’s submission on Ground 2 that since the deponent of the affidavit in opposition describes himself as a brother and lawful attorney of the Plaintiff, and because in the Court’s order for substituted service dated 21st July 2020 he is described as a law Clerk, he is an imposter. Furthermore, he submits that the lawful attorney of the Plaintiff is Ayuba Ibrahim, and since it is trite law that if one makes averment especially as to capacity in an affidavit which is capable of proof documentarily, then one is under obligation to exhibit that document which has granted him that capacity. He also contends that despite the fact that the impugned Affidavit in Opposition was withdrawn, the trial High Court relied on it. Regarding Ground 3 Counsel argues that he has not been able to serve the entry of costs on the Plaintiff since the action has “terminated and he has thus become functus officio” and his address is unknown. It is his case that the Plaintiff has sinned against the mandatory rules of Discontinuance by his blatant refusal to pay costs of GHȼ1,000 because he does not agree with the Court for striking out his previous suit. Further, he submits that the Plaintiff’s refusal to pay costs awarded against him is repugnant and against public policy to allow him to unjustly enrich himself by refusing to pay his just debts. Counsel for the Respondent on the other hand, submits that Order 17 Rules 1 to 4 of CI 47 are not applicable and that a distinction has to be made between discontinuance and striking out. On the second ground of appeal, Counsel contends that the High Court relied on the legal submissions and not on the affidavit in opposition. Also, he submits that the courts are shifting away from technicalities to substance and that the description of the deponent was a typographical mistake which is not fatal to the case. He refers to the cases of Obeng vrs Assemblies of God Church [2010] SCGLR 300 holding 5 and Nii Odoi Kwao Adumang & 2 Others vrs William Sowah Charway & 14 Others [2014] 75 GMJ 133. Regarding the issue of costs being the last ground of appeal, it is his contention that nowhere is it stated that cost should be paid if one’s case is struck out before one can file another process. It is his contention that it is the duty of the beneficiary to serve the other party with the Entry of Cost and that he does not understand the accusation of unjust enrichment. Ground 1 The learned trial High Court Judge misconstrued the meaning of the term “discontinuance” and thus, came to the wrong conclusion. The judge in suit number LD/0054/2020 on 5th February 2020 said thus at page 46 of the Record of Appeal: “The suit is struck out with liberty. Cost of GHȼ1,000.00 in favour of the Defendants.” It is clear from the above that the word “discontinued” was not used by the judge. Now, Order 17 of the High Court (Civil Procedure) Rules, 2004 CI 47 stipulates thus: Rule 1- Withdrawal of Appearance. “A party who files an appearance in an action may withdraw the appearance at any time with leave of the Court.” Rule 2- Plaintiff may Discontinue Before Defence “(1) Except in the case of an interlocutory application, the Plaintiff may at any time before service on the Plaintiff of the Defendant’s defence or after the service of it and before taking other proceeding in the action, by notice in writing wholly discontinue the action against all or any of the Defendants or withdraw any part of the alleged cause of action and thereupon the Plaintiff shall pay the Defendant’s costs of the action or if the action is not wholly discontinued, the costs occasioned by the withdrawal. (2) Such costs shall be taxed, and the discontinuance or withdrawal shall not be a defence to any subsequent action. (3) Except as provided in this rule, the Plaintiff shall not be entitled to withdraw the record or discontinue the action without leave of the Court, but the Court may before, during or after the hearing or trial upon such terms as to costs and as to any other action as may be just, order the action to be discontinued or any part of the alleged cause of action to be struck out.” Rule 3- Withdrawal by Consent: An action may be withdrawn without leave of the Court at any time before trial where all the parties produce to the registrar a written consent that the action be withdrawn. Rule 4-Stay of Subsequent Action Until Costs are Paid. If any subsequent action is brought, before payment of the costs of a discontinued action for the same, substantially the same cause of action, the Court may if it thinks fit order.” In “A Practical Guide to Civil Procedure in Ghana” Marful Sau JSC (of blessed memory) at page 99 stated thus on Discontinuance of Action –Order 17: “ A party who initiates an action in court may discontinue the action for various reasons. A Plaintiff or a Defendant who has a counterclaim is thus at liberty to discontinue or withdraw the action. The courts are not supposed to instigate litigation and for that matter no court can force a person to litigate” Discontinuance is defined by Black’s law Dictionary 11th Edition as “the termination of the lawsuit by the Plaintiff, a voluntary dismissal or non-suit.” Osborn’s Concise Law Dictionary defines discontinuance as “when the Plaintiff in an action voluntarily puts an end to it.” From the above, it is clear that discontinuance is initiated by a party. It is a voluntary action. Order 11 Rule 18 of the High Court (Civil Procedure) Rules, 2004 CI 47 which deals with striking out Pleadings provides thus: “(1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that: “(a) It discloses no reasonable cause of action or defence; or (b)It is scandalous, frivolous or vexatious; or (c)It may prejudice, embarrass, or delay the fair trial of the action; or (d)It is otherwise an abuse of the process of the Court: And may order the action to be stayed or dismissed or judgment to be entered accordingly.” Counsel for the Defendants/Appellants does not say what rule he is coming under. However, it is clear to us that he is not coming under the above mentioned provision for having the pleading or anything in pleading to be struck out because it discloses no cause of action, it is scandalous, frivolous or vexatious or an abuse of the process of Court or it may prejudice, embarrass or delay the fair trial of the action. Learned Counsel for the Defendants/Appellants prayed the Court to strike out the suit for non-compliance with the Rules of Court on Discontinuance. On a motion by Defendants/Appellants therefore, the Court as already stated, struck out the suit for non- compliance as prayed. A case which is struck out means it has been struck off the cause list and no longer exists. In the instant case the Appellants in a motion applied to the court to strike out the Writ of Summons and the Statement of Claim because the Plaintiff who is resident in Spain did not have the Spanish address endorsed on the writ. The Plaintiff filed an affidavit in opposition but the court after listening to both Counsel struck out the suit and awarded costs of GHȼ1,000.00 (page 46 of the Record of Appeal). The striking out was as a result of the Appellants application that the Plaintiff’s Spanish address had not been endorsed on the writ. That being the case, it is clear that the Plaintiff did not discontinue the case. Having been struck out, the writ ceases to exist. Since the Plaintiff did not discontinue the case, Order 17 of CI 47 cannot therefore be invoked. This is because Order 17 deals with discontinuance and this is not a case that was discontinued but it was struck out. Nowhere is it stated in the Rules that payment of costs must precede the filing of another writ where the previous one was struck out. We therefore agree with Counsel for the Plaintiff that this ground of appeal is misconceived and without merit. Ground 2 The learned trial High Court judge acted out of jurisdiction when he relied on an invalid affidavit in opposition which had even been discarded by the Respondent. The learned trial judge stated thus: “From the totality of the affidavit evidence, the written submissions of both Counsel as well as the processes on the Court’s docket in respect of the chequered and irregular commencement of the suit, involving discourse and intercourse between the Registry of the Court and the Office of the Chief of Staff of the Ghana Armed Forces, it is my considered view that any arid and unwelcome technicalities, seeking to stall, undermine or even halt this suit, must give way for the spirit of Rules of Court encapsulated in Order 1 Rule 2(1) of the High Court (Civil Procedure) Rules, 2004 CI47 to be effectuated.” He then dismissed the application as unmeritorious and unmaintainable. It is clear from the above that the learned judge not only relied on affidavit evidence but also on written submissions. The affidavit in opposition found at page 18 of the record of appeal deposed to by Bernard Nkum describes himself as the “brother and lawful attorney” of the Plaintiff/Respondent. The title of the case denotes that the Plaintiff is suing per his Lawful Attorney, Ayuba Ibrahim. However, the said Bernard Nkum who deposed to the affidavit in support of the Motion Ex-parte for Substituted Service found at page 8 of the record of appeal describes himself as a law clerk in the employ of the Akanbek, Atuilik & Associates. In the said written submission filed by the Respondent found at page 25 of the Record of Appeal, he submitted that the description of the deponent as a lawful attorney was a typographical error and he was not relying on the said affidavit in opposition but solely on his written submission. The explanation offered by the Respondent regarding the deponent of the affidavit in opposition is that it is a typographical mistake. It is our considered opinion that the explanation is reasonable. It is noteworthy that these days the courts lean towards doing substantial justice and not on technicalities. As found in Obeng vrs Assemblies of God Church [2010] SCGLR 300 at holding 5 cited by Counsel for the Respondent, the Supreme Court stated that “We take the view that since the Courts exist to do substantial justice, it would be manifestly unjust to non-suit. Court must strive to prevent and avoid ambush litigation by resorting and looking more at the substance than the form.” We find no merit in this ground of appeal. Ground 3 The ruling of the Honourable Court is against public policy as it results in unjust enrichment by the Plaintiff/Respondent/Respondent. We do not seem to understand this ground of appeal. Order 74 Rule 11 of CI 47 on the recovery of costs state thus: “(1) Where the amount of any costs has been assessed by the Court, payment of that amount may, subject to sub-rule (2) be enforced in the same manner as a judgment or order for the payment of money. (2) No steps shall be taken to enforce the payment of costs (a) Until seven days after the date on which the amount of those costs is assessed by the Court; or (b) Where an application for review is made under rule 12, until that application is determined.” As stated in Order 74 Rule 11 of CI 47, payment of costs is enforced in the same manner as a judgment or order for the payment of money. The question to be asked is whether Counsel for the Appellant has taken any steps in the recovery of the money. It does not seem as if he has served the Entry of Cost on the Respondent. We find no merit in this ground of appeal. We are of the view that the appeal lacks merit and it is dismissed in its entirety and hereby affirm the decision of the trial High Court judge. Cost of Five Thousand Ghana Cedis (GHȼ5,000.00) awarded in favour of the Plaintiff/Respondent against the Defendants/Appellants. (Sgd) Merley A. Wood (Mrs.) (Justice of Appeal) I Agree G. S. Suurbaareh (Justice of Appeal) (Sgd) I Also Agree Janapare A. Bartels-Kodwo (Mrs.) (Justice of Appeal) (Sgd)  Michael Akanbek for Plaintiff/Respondent  Stanley Boye-Quaye for Defendants/Appellants 13