Francis Adu Vrs Seth Sallah & 2 Ors. [2022] GHACC 278 (6 December 2022)

IN THE CIRCUIT COURT OF JUSTICE, SITTING AT ASHAIMAN ON TUESDAY THE 6TH DAY OF DECEMBER, 2022. BEFORE HIS HONOUR SIMON GAGA SUIT NO. C2/21/2021 FRANCIS ADU H/NO. E16, COMM. 20 PLAINTIFF/RESPONDENT LASHIBI, TEMA VRS 1. SETH SALLAH 2. SETHO CLASSIC ENG. LTD. 3. SYLVESTER ATOKPLEY ALL OF N/NO. 294 ATADEKA, ZENU DEFENDANTS/APPLICANTS ____________________________________________________________________________ RULING ON MOTION ON NOTICE FOR AN ORDER TO STRIKE OUT SUIT AS FRIVOLOUS, VEXATIOUS AND ABUSE OF THE PROCESS OF THE COURT This is a Motion on Notice by Counsel for and on behalf of the Defendants/Applicants herein praying the Court for an Order to Strike Out the suit upon the grounds that it is frivolous, vexatious and abuse of the Court process. In the accompanying affidavit in support of the Defendants, the 1st Applicant on his own behalf and on behalf of the 2nd and 3rd Applicant deposed in paragraph 5 and 6, which are the material potions of the affidavit as follows; 5. That the Writ of Summons and Statement of Claim together with Interlocutory Injunction application were accordingly served on the Defendants for which the Defendants entered appearance but this Honourable Court granted the injunction application without hearing the side of the Defendants. 1 | P a g e 6. That I have been advised by Counsel and verily believe same to be true that the Writ of Summons and the Statement of Claim with the subsequent application for injunction are frivolous, vexatious and an abuse of the process of Court and ought to be struck out. The motion was opposed by the Plaintiff/Respondent who also filed an affidavit in opposition. In the affidavit in opposition, the Respondent deposed in paragraphs 4, 5, and 6, which are the material portions of the affidavit as follows; 4. That it is a blatant falsehood that this Court denied Defendants a hearing before granting the Order for Interlocutory Injunction. 5. That I am advised that a party who having been served a process, disables himself from being heard cannot turn around to complain of being denied a hearing. 6. That though the motion paper and all processes in support of the injunction application were served on the Defendants, none of them filed any process in answer thereby leaving the Court with nothing to consider apart from the processes filed by Plaintiff before making the Order. The motion was argued by Counsel for the parties. SUBMISSION BY COUNSEL FOR APPLICANT In his submission, Counsel for the Applicants repeated the depositions in the affidavit in support. Counsel among other things averred that even though the Plaintiff/Respondent ‘s writ of Summons, Statement of Claim and the Interlocutory Injunction were served on the Defendants/Applicants, the Court granted the application without giving the Defendants/Applicants a hearing which to the Applicants are frivolous, vexatious and abuse of the Court process and same should be struck out. 2 | P a g e Counsel referred the Court to Order 11 rule 18 (1) (a - d) of CI 47. Counsel further averred that the Plaintiff/Respondent has no legal title to the disputed land. That it has been the 2nd Defendant who, at all material times been the legal owner of the disputed land and has been in possession and occupation of same since 2009. He tendered Exhibit ‘A’, which is an Indenture issued in the name of the 2nd defendant to buttress the ownership of the 2nd Defendant. Counsel further submitted that this same disputed land is a subject of litigation at the High Court, Accra, which the Plaintiff/Respondent alleged grantor is a party to the suit. He averred that the plaintiff’s grantor‘s alleged documents on the disputed land were fraudulently obtained. Counsel called on the Court to strike out the case. Counsel referred the Court to the case of Isaac Antwi v. Obiri Yeboah Appetuahene (2021) JELR 107965 (SC) H1/16/2020, 24 JUNE, 2021. SUBMISSION BY COUNSEL FOR RESPONDENT Counsel for the Respondent also in his submission opposed the application of the Applicants. He repeated the averments in the affidavit in opposition. Counsel averred that the Court never denied the Applicants hearing before granting the Interlocutory Injunction and that the processes were filed and served on the Applicants and the applicants failed to file any affidavit in opposition. He further averred that by the Applicant’s Exhibit ‘A’, the Applicants claimed to hold leases from the grantor who holds Land Certificate over both parcels of land but failed to exhibit the said certificate. Counsel further submitted that the Applicants claimed that the Respondent’s grantor obtained the documents on the disputed land by fraudulent means. However, the Applicants failed to particularize the fraudulent act of the Respondent. 3 | P a g e He further averred that the depositions of the application are triable issues, which can be proven on evidence. Counsel therefore called on the Court to dismiss the application. EVALUATION This application is grounded on Order 11 rule 18 (1) (a – b) of the CI 47. Rule 18 (1) states as follows “the Court may at any stage of the proceedings order any pleadings or anything in the pleadings to be struck out on the grounds that, (a) (b) (c) It discloses no reasonable cause of action or defence. It is scandalous, frivolous or vexatious. It may prejudice, embarrass or delay the fair trial of the suit. (d) An abuse of the process of the Court.” In my view, the purpose of Order 11 rule 18 of CI 47 is to prevent claims, which on the face of the pleadings disclose no reasonable cause of action or defence or which is scandalous, frivolous, vexatious or an abuse of the process of the Court. SEE: Ghana Bar Association v. Ward Brew (1993-94) 2GLR @ page 509. This is a discretionary remedy and this discretion of the Court will only be exercised in plain and obvious cases where the claim is clearly unsustainable but where the claim is sustainable, it must be determined at a trial. SEE: Pennie v. Egalal (1980) GLR @ page 234, Appiah v. Boakye (1993-94) 1GLR @ page 417 SC. The pleadings would only be struck out where it is apparent that even if the facts are proven, the Plaintiff will not be entitled to the reliefs claimed. The rules would not be applicable to cases in which from the pleadings the facts were in dispute and therefore requires evidence to resolve them. Flowing from the depositions of the affidavits in support and in opposition and the submissions by both Counsel, it is clear that both parties have raised issues which are fit to be determined by evidence. For 4 | P a g e instance, while the Applicants claim that the disputed land belongs to the 2nd Defendant and it is also the subject of litigation at the High Court, Accra, the Respondent refute that claim. The veracity of the varied positions can be determined by evidence. On this score, therefore, I dismiss the application. I award cost of GH¢1,500.00 against the Applicants. (SGD) (H/H) SIMON GAGA (CIRCUIT COURT JUDGE) - Counsel for parties. OAAQ/. 5 | P a g e