Appiah Vrs Apekoh [2022] GHADC 121 (6 December 2022)

IN THE DISTRICT COURT HELD AT WASA AKROPONG HELD ON TUESDAY THE 6th DAY OF DECEMBER, 2022 BEFORE HIS WORSHIP MR. BRIGHT A. AKOANDE (ESQ) - DISTRICT MAGISTRATE COMFORT APPIAH……………………………….……….………... PLAINTIF SUIT NO: A1/2/2017 VRS: JOSEPH APEKOH……….……………………….……………... DEFENDANT JUDGMENT Counsel: Clement Marfo for the plaintiff Bright Baiden Esq for Defendant The plaintiff’s claim is as follows: “Plaintiff claims against the defendant is for an order restraining the defendant from interfering or having anything to do with a piece of land lying in front of defendant’s house and situated at the Akropong Dunkwa Road”. Both Counsel have not filed written addresses. The first observation that a judge or a lawyer makes after reading the plaintiff’s relief above is that it is not a substantive relief. Clearly, the plaintiff per her writ of summons is seeking an injunction to restrain the defendant from “interfering or having anything to do with a piece of land lying in front of defendant house and situated at the Akropong-Dunkwa Road”. An injunction is an order to a particular individual or individuals to do or refrain from doing a specified act; see Modern Principles of Equity by A. K. P. Kludze at page 113. The law is settled that a writ claiming mere injunction or ancillary relief without a substantive relief is incompetent and void; see. Republic V High Court, Tema, Ex-parte M. V Esco Spirit [2003 – 2004] 1 SCGLR 689. The plaintiff accompanied her writ with a statement of claim which contains twenty-three paragraphs. A principle of law is that defects in a writ of summons can be cured by reading the writ together with the accompanying statement of claim; see Hydrafoam Estates Ghana Limited V Owusu (per lawful Attorney Okine and others) [2013 -2014] 2 SC GLR 1117. Also, see Bandoh V Apeagyei Gyamfi [2018 – 2019] 1 GLR 299. So the law is settled that a writ includes a writ of summons and a statement of claim. The absence of a relief in an endorsement on a writ of summons does not destroy the sanctity of the writ as the reliefs could be deciphered from the accompanying statement of claim. The statement of claim is an expanded form of a writ of summons and so whatever relief that is prayed for in a statement of claim is equally as good as the relief sought for in an endorsement on the writ, if not better; see Saviour Church of Ghana V Abraham Kwaku Adusei and four others [2021] 174 GMJ at page 110 per Appau JSC as he then was in the instant case, I have read the plaintiff’s writ of summons together with her statement of claim and it seems to me that a substantive relief cannot be deciphered there from. I have already reproduced the plaintiff’s relief at the beginning of this judgment. In order to show the glaring lack of a substantive relief in the pleadings of the plaintiff, the plaintiff’s twenty-three paragraphed statement of claim signed by her Counsel is reproduced below. 1. The plaintiff is a Chop Bar Operator and lives at Wasa Akropong. 2. The Defendant is a Welder and lies at Wasa Akropong. 3. The plaintiff says that her grandmother Madam Abena Wonyankwa Eye during her life time gifted her ten (10) Building plots. 4. The plaintiff says that land was gifted to by her grandmother about nine (9) years ago. 5. The plaintiff says upon the gifted she paid ASEDA in the presence of witnesses. 6. That plaintiff says that she used one (1) sheep, a bottle of schnapp and Two Hundred Ghana Cedis (GHc200.00) to the Aseda. 7. The plaintiff further states that few years ago a man by name Smart and the came to her asking her to allocate to him a single building plot and she allocated same to him for building purposes. 8. The plaintiff state that later the said Smart brought the Defendant to the plaintiff begging to buy one plot of land and the plaintiff allocated only plot No.14 to him. 9. The plaintiff further state that the building plot she allocated to the Defendant is plot 14. 10. The plaintiff further state that al material time the remaining plot which is just in front of the Defendant plot is plot No. 15 was there in her (the plaintiff’s) name. 11. The plaintiff states that she reserved the said plot 15 which is in front of the Defendant plot for her future use. 12. The plaintiff states that the construction of the Dunkwa-Tarkwa Main Road affected the plot No. 15 thereby reducing same from its normal size. 13. The plaintiff states that as it stands now the plot No. 15 is less than one (1) Building plot. 14. The plaintiff states that the Defendant has dug a foundation of her plot No. 15 15. The plaintiff states that the Defendant has forcibly placed a huge container and other structures on the said plot N0. 15. 16. The plaintiff states that she confronted the Defendant as to why he has placed those structures on the land. 17. The plaintiff states that the Defendant promised to remove all the structures he has placed there but he refused. 18. The plaintiff states that the Defendant went to the Wasa Akropong Registrar that he is at fault and that he would like to buy that my plot No. 15. 19. The plaintiff states that she told the Defendant that, that Building plot (Plot 15) is not for sale 20. The plaintiff states that she brought the matter to Court and the Court transferred the matter to (A D R) Wasa Akropong. 21. The plaintiff further state that at the ADR the Defendant insisted that the plaintiff should sell the land to him which the plaintiff did not agree to sell. 22. The plaintiff further states that the settlement broke down at the ADR. 23. Wherefore the plaintiff Claims as per her Writ of Summons. I have read the above statement of claim with both legal lenses and literary lenses and appreciated it on those lines. I am satisfied that the plaintiff’s statement of claim does not contain a substantive relief. The single equitable relief indorsed on the plaintiff writ has not even be repeated in her statement of claim. From the foregoing analysis, it is clear that the writ was not indorsed in accordance with law. It is therefore a nullity upon which no valid orders can be based; see Mosi Vrs. Bagyina [1963] I G L R 337. Since the writ is a nullity, all the proceedings based upon it are also a nullity, see, Emmanuel Rockson Vrs. (1) Ilios Shipping Company S. A. and Another Civil Appeal J4/13/2007 dated 10th February, 2010 (Supreme Court). I have carely read the plaintiff’s writ of summons and her statement of claim and I am satisfied that her pleadings have not disclosed any reasonable cause of action. For the reasons given above, the defendant is not found liable. The claim fails as it is void. Judgment is entered for the defendant. If learned Counsel for the plaintiff had been more diligent at the time he drafted the statement of claim, he would have realized the fatal defect in the indorsement on the writ. It is hoped that a future fatal defects in a writ will not escape the preying and scrutinizing eyes of learned Counsel. Costs of GHc30,000.00 is awarded against the plaintiff. SGD DISTRICT MAGISTRATE MR. AKOANDE A BRIGHT