TRASSACCO FURNITURE LTD VRS JELEEL COMPANY GHANA LTD (H1/30/21) [2021] GHACA 53 (28 October 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: - SENYO DZAMEFE, J. A, (PRESIDING) P. BRIGHT MENSAH, J. A NORVISI ARYENE, (MRS.) J. A Civil Appeal Suit No: H1/30/21 28TH OCTOBER 2021 TRASSACCO FURNITURE LTD - APPLICANT/APPELLANT VRS. JELEEL COMPANY GHANA LTD - PLAINITFF/RESPONDENT ZION ENERGY LTD - DEFENDANT ======================================================= JUDGMENT ======================================================= DZAMEFE, JA The plaintiff/respondent issued this writ against the defendant for the following claims;- 1. Declaration of title to and recovery of possession of all that parcel of land situate lying and being at Adenta, in the Adenta Municipality of the Greater Accra Region and containing an approximate area of 1098 acres or 4.44 hectares more or less bounded on the North-East by the lessor’s land measuring 401.4 feet more or less on the South-East by the lessor’s land measuring 1581.2 feet more or less on the South-West by the lessor’s land measuring 209.9 feet more or less on the North- West by a proposed road measuring 1583.6 feet more or less. 2. An order of perpetual injunction restraining the defendant, its agents, assigns, or otherwise howsoever described from entering, assigning, transferring or otherwise disposing of or dealing with or developing the land which is the subject matter of this action. 3. An order directed at the Lands Commission to expunge any recorded transaction affecting the land in dispute. 4. General and special damages for trespass; and costs including legal fees. The plaintiff/respondent, hereinafter simply referred to as the plaintiffs is a company incorporated under the law of the Republic of Ghana just as the defendant company. The plaintiffs’ claim is that they are the bona fide owners of a piece of land situate and lying at Adenta, in the Adenta Municipality of the Greater Accra Region with its description. They claim the allodial title owners of the lands at Adenta including the land in dispute are the Kplan We (Agbawe) family of La. The plaintiffs aver they became the owners of the land in dispute by virtue of a Deed of lease dated 25th November, 2013 between the Kplan We (Agbawe) Family of La represented by the Chief of Adenta Nii Sowah Okataban II as the lessors and the plaintiff as the lessee for 99 years. The plaintiff claim prior to the acquisition their due diligence enquiries revealed that their grantors were the rightful owners of the lands at Adenta. That immediately they acquired the land, they entered into physical possession of same and placed caretakers on the land who have been farming on it. It is their case that in 2018 when they presented their documents at the Lands Commission for registration that they were informed there was an earlier request for registration of the same land by the defendant. Plaintiff avers that all efforts to locate the, defendant for the rightful owners of the land to be determined and registered by the Lands Commission have been unsuccessful. That unless restrained by the court the defendant will persist in their unlawful act and plaintiff cannot register its interest in the land, hence this suit. The trial High Court on 20th Day of May 2019, granted the plaintiffs application for interlocutory judgment in default of defence against the defendant. The court ordered the plaintiff to file witness statements and to serve same with the interlocutory judgment on the defendant. On the 19th June 2019, the trial High Court fixed 22nd July 2019 for definite hearing an ordered Hearing Notices together with court notes to be served on the defendant through substituted service for 14 days. On the fixed date the trial High Court took evidence from the plaintiff’s representatives, Elizabeth Agyeman Prempeh in the absence of the defendants, who were served but absent in court. Nii Sowah Okataban I, the chief of Adenta testified as well for the plaintiff, the same day. The court discharged both witnesses, ordered counsel to file his final addresses and fixed a date for judgment. The court ordered the final addresses together with the hearing notice for the return date of 31st July 2019 for judgment to be served on the defendant. The trial High Court gave judgment in favour of the plaintiff, declared title of the land in dispute in favour of the plaintiff, granted plaintiff recovery of possession of the land in dispute, injuncted the defendants and the agents and assigns from dealing with the land in dispute, ordered the Lands Commission to expunge any recorded transactions affecting the land in dispute, and finally damages and costs to the plaintiff. On 12th December, 2019 Trassacco Furniture Limited, Pantang Accra filed a motion on notice to set aside a writ of possession dated 21st November, 2019 under Order 43 r (3) of C. I.47. In the affidavit in support of the application, the applicant averred that their attention had been drawn to the above suit in which writ of possession has been granted the plaintiff/respondent on the 21st November, 2019. That based on the order of the court, the respondent and people acting on their behalf have entered the applicants land, broke their wall which was constructed in 1990 and has begun the clearing of same to the chagrin of the applicant. The applicant avers that it is the bonafide owner of all that piece or parcel of land at Pantang and containing as approximate area of 138.80 acres following a deed of assignment dated 21st day of February, 1978. The applicant said it has been in actual possession of the land in dispute and had constructed various buildings on a portion of the land which serves as offices for some of its sister companies including Michelleti Company Ltd, Royal Aluminum Company Ltd, West Africa Industrial Developers Company Ltd, among others. The applicant averred he had walled the whole of the 138.80 acre land until sometime in 2019 when the respondent, on the pretext of the judgment of 15th October, 2019 broke the entire wall. The applicant averred further that they were in actual possession of all the 138.80 acres of land, part of which is the subject matter of this action, and has demonstrated actual acts of possession since 1978 when it acquired same without any let or hindrance from any third party. Though their presence on the land is so visible to all, they never received any notice of the proceedings leading to the grant of the judgment and the issuance of writ of possession. It is the applicant’s contention that based on what he said earlier, the issuance of the writ of possession to the respondent was made in error since same was done in flagrant contravention of the rules of court and should therefore be set aside. That the applicant stands to suffer grave injustice as its right to be heard had been denied following the failure of the respondent to bring the proceedings to its attention since it was in actual possession of the land the subject matter of the action. That the applicant has a veritable interest on the land in dispute and in consequence it shall be just and equitable to grant the current application. The applicant on 16th December, 2019 filed another motion Ex parte for interlocutory Injunction, under Order 25 R 1 (1) (7) of C. I.47 to restrain the respondent herein from clearing, collecting sand and demolishing properties on the land the subject matter of this suit – [page 103 ROA]. This application for injunction was granted by the trial High Court on 15th December 2019 for 10days – [page 164 ROA] The respondent in an affidavit in opposition to the Applicant’s motion to set aside writ of possession states that the issue of the ownership of the lands at Pantang including the land in dispute in this suit are the subject of a pending suit before the High Court, Commercial Division, Accra numbered GJ/1642/2019 in which the applicant herein is the 7th defendant and the plaintiff herein is the 8th defendant. That the reliefs the applicant is seeking in this application are the same reliefs being determined by the High Court, Commercial Division, Accra in the aforementioned suit. That the application must be dismissed as unmeritorious – [page 197 ROA] The trial High Court on 22nd July 2020 in its ruling delivered itself thus; “I have read the application and the affidavit in support as well as the supplementary affidavit. I have also looked at the affidavit in opposition, I am of the opinion that this application has not been made out since there is no evidence on record to support the assertion of the applicant’s possession of the land which execution has been levied. On the premises Order 43 r (3) of C. I.47 is inapplicable in the instant case. In the premises the application is refused. The exhibit “C” series which were attached failed to demonstrate any sign of applicant’s possession” – [page 205 ROA]. The appellant, dissatisfied with this ruling launched this appeal on the following grounds;- Grounds of Appeal a. The entire ruling is against the weight of evidence on record. b. The court fell in grave error when it failed to declare the writ of possession dated 21st November, 2019 invalid. c. The court erred in law when it held that the applicant had failed to prove that it was in possession of the land. d. Other grounds of appeal will be filled upon receipt of the record of appeal. The relief sought is to set aside both the ruling of the High Court, General Jurisdiction, Accra dated 22nd July 2020 and the writ of possession dated 21st November 2019. SUBMISSIONS Ground 1 – That the ruling of the High Court (General Jurisdiction), Accra date d22nd July 2020 is against the weight of evidence. Counsel submit that the position of the law is that where a judgment or ruling of act is challenged on this ground, the appellant is required to point to the appellate court the various pieces of evidence adduced which if properly evaluated, would have led a trial court to have entered judgment in favour of the appellant. In other words, it is the duty of the appellant to demonstrate to the appellate court the various lapses in the judgment or ruling appealed against which led to the erroneous finding by the trial judge. The Applicant contends that the totality of evidence adduced at the hearing of the application ought to have induced the learned trial judge to have set aside the order for writ of possession dated 21st November, 2019 and the consequential writ of possession dated 26th November, 2019. It is his contention that attached to their application to set aside the writ of possession was an indenture dated 21st February 1978 with site plan and the dimensions thereof measuring approximately 138 acres. Secondly, applicant attached exhibit ‘B’ at the court below which evidences several developments carried out by the Appellant and its’ sister companies on a vast portion of the land under reference. Counsel said it has not been denied that the developments thereof do fall within exhibit ‘B’ In consequence of above, counsel contends that contrary to the ruling of the High Court dated 22nd July, 2020, the respondent was required under Order 43 Rule 3 of C. I.47 to have endorsed for service on the Appellant its motion ex-parte for leave to issue writ of possession in respect of a parcel of land situate at Adenta near the Panteng Hospital dated the 20th of November, 2019. From the above, counsel said, it is clear that the ruling is against the evidence on record. It is further contended that although the respondent obtained judgment for only ten (10) acres of land, as can be gathered from the statement of claim and Notice of Entry of judgment, the respondent is lurking under the purported order for writ of possession and has cleared and still selling and developing over fifty (50) acres of appellants’ parcel of land. The respondent in response to this ground of appeal submits that the appellant has woefully failed to demonstrate or particularize the pieces of evidence which were wrongly evaluated against it by the learned trial judge thereby occasioning gross injustice to the appellant. Counsel opined that by this ground of appeal the appellant is urging this court to disturb the findings of fact by the trial judge, when it is trite learning that an appellate court should be slow in disturbing the findings of fact by a trial judge. Counsel referred this court to the Supreme Court case of Agyeman Boateng vrs Ofori & Yeboah [2010] SCGLR 861 where the apex court gave four (4) conditions under which an appellate court can interfere with the findings by the trial court as follows;- a. That the court has taken into account matters which were irrelevant in law; b. That the court excluded matters which were critically necessary for consideration; c. That has come to a conclusion which no court properly instructing itself would have reached; and d. That the court’s findings were not proper inferences drawn from the facts. Counsel for the respondent listed three findings made by the trial High Court judge as follow; a. That the execution was complete and this is supported by the Certificate of Execution found at page 83 of the Record of Appeal. b. That the Applicant/Appellant was not claiming only possession, but ownership of the land in dispute and therefore Order 44(3) was not applicable. The fact of the Applicant/Appellant claiming ownership of the land is supported by Applicant’s Deed of Lease found at pages 84-102 of the Record of Appeal. c. That the Applicant/Appellant did not prove that it was in possession of the land on which the plaintiff/respondent was put in possession. That the applicant could not demonstrate why those findings made by the trial judge should be disturbed and therefore that ground of appeal must fail. This ground of appeal, “that the ruling of the High Court (General Jurisdiction) Accra dated 22nd July, 2020 is against the weight of evidence” is akin to the omnibus ground of appeal in civil cases to wit “the judgment is against the weight of evidence”. This ground of appeal is appropriate after a full trial and a final decision given by the trial court. It is not usually appropriate for a ruling which is interlocutory. The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of fact in appropriate cases. In case in which no evidence was led but the order which has been appealed against is interlocutory such ground of appeal is no canvased at all. See – Zikpuitor Akpatsu Fenu (ETC) vrs Attorney General (ETC) [2008] DLSC 2489 at page 8 per Anin Yeboah JSC (As he then was) Be it as it may, we shall consider the ground of appeal as the omnibus ground. As counsel for the appellant rightly pointed out in his submission, when a party’s ground of appeal is the omnibus ground;- ‘…… the position of the law is that the appellant is required to point the appellate court to the various pieces of evidence adduced which if properly evaluated, would have led a trial court to have entered judgment in favour of the appellant. In other words, it is the duty of the appellant to demonstrate to the appellate court the various lapses in the judgment or ruling appealed against which led to the erroneous findings by the trial Judge. See- (i) Tuakwa vrs Bosom [2001/2] SCGLR 61 (ii) Djin vrs Musah Baako [2007/8] SCGLR 686 In the Plaintiff’s statement of claim was declaration of title to and recovery of possession of all that parcel of land situate and lying at Adenta in the Adenta Municipality of the Greater Accra Region and containing an approximate area of 1098 acres. From the statement, the land is bounded on 3 sides by the lessor’s land. The second claim is for an order of perpetual injunction restraining the Defendant etc. from interfering whatsoever with the said land and an order directed at the Lands Commission to expunge any recorded transaction affecting the land in dispute. Then special and general damages for trespass. The Plaintiff’s claim is that the allodial title owners of lands at Adenta including the subject matter are the Kplen We (Agbawe) family of La. It is their case that they acquired a lease of the said land by virtue of a Deed of Lease dated 25th November 2013 between the said Kplen We (Agbawe) family of La represented by the Chief of Adenta, Nii Sowah Okataban II as the Lessor and the Plaintiff as the Lessee for 99 years. The Plaintiff’s case is that they entered physical possession thereafter and in 2018 when they presented their documents to the Lands Commission for registration, they were informed that there has been an earlier request from the Defendant for the registration of the same parcel of land. – [page 4 ROA]. The Plaintiff’s case is that the officials of the Lands Commission informed them they could not trace the Defendants to come and prove their ownership of the land. That all efforts to locate the Defendant for the rightful owner of the land to be determined and registered by the Lands Commission have been unsuccessful. That the allodial title owners have not granted the land in dispute to any other person apart from the Plaintiff per their due diligence. However, paragraph 12 of the Plaintiff’s statement of claim states “Plaintiff avers that unless restrained by the Honourable Court, the Defendant will persist in their unlawful act and Plaintiff cannot register its interest in the land”. – [page 4 ROA]. There is evidence on record that the Defendants were served with the writ of summons and statement of claim per their registered address on 15th March 2019 but they failed to enter appearance nor filed a statement of defence. Elizabeth Agyemang-Prempeh, the Managing Director of the Plaintiff in her written statement stated that after they were informed by the Lands Commission of the Defendants earlier request for registration of the same land, they were told until they found the Defendant to come prove his title, Lands Commission could not proceed with the registration of their documents. She said “all efforts to trace the Defendant to attend upon the officials of the Lands Commission to prove its title to the land have been unsuccessful”. According to her, they reported this development to their grantors who told them as allodial title owners of the land in dispute, they have not made a grant of same to any other person apart from the Plaintiff and that they do not know the Defendant. Nii Sowah Okataban II, the Chief of Adenta and the Head of the Kplen We Family at La and Adenta in his witness statement stated he knows the Plaintiff as one of the grantees of the family but not the Defendant Company. – [page 18 ROA]. That the Kplen We (Agbawe) family are the allodial title owners of all the lands at Adenta and its environs including the land in dispute. The witness testified that he is the Head of the Kplen We Family and he is the authorized person with the consent and concurrence of the principal elders of the family to make a valid grant of the lands at Adenta including the land in dispute and any other purported grant by any other person or family is null and void. He tendered Exhibit ‘C’, a copy of a letter written to the Lands Commission confirming his authority to grant Adenta Lands – [page 27 of ROA] [Dated 20th April 2001]. The witness testified that in fact the family made the grant of the disputed land to the Plaintiff per Deed of Lease dated 25th November 2013. That the family was represented by himself with the consent and concurrence of the Principal elders of the family as the Lessor and the Plaintiff is the lessee for 99 years – Exhibit B. The trial High Court on 20th May 2019 granted the Plaintiff’s application for Interlocutory judgment in default of defence. The court ordered Plaintiffs to file their witness statement, serve the Defendant with the default judgment and a date fixed for Case Management Conference. According to the records, the Defendant though served was absent at the Case Management Conference. The suit was adjourned for definite hearing and hearing notices ordered to be served on the Defendant through substituted service. Counsel for the Plaintiff in his addresses filed dwelt so much on the principle of law that when a party makes an averment and that averment is not denied nor challenged by the other party, no issue is joined on that averment and no evidence need be led. Again that when a party gives evidence of a material fact and is not cross-examined upon it, he need not call forth evidence of that fact. Counsel submitted that, by the failure of the Defendant to controvert the Plaintiff’s evidence on material facts through cross-examination, they are deemed to have admitted the facts as stated by the Plaintiff as the truth, the whole truth and nothing but the truth and in law it is unnecessary for the Plaintiff to call further evidence on those materials. Academically and legally these submissions are the state of the law, but the question however, is whether the legal position is same where there was no opponent in the trial. Since there was no opponent in the trial, does it necessarily mean anything or everything said by the Plaintiff be accepted by the Court as the truth especially when they are establishing title to a parcel of land in dispute. It is trite learning that even in the absence of a party in cases of declaration of title to land, the onus was still on the Plaintiff to establish his root of title and all the necessary ingredients to merit the declaration. JUDGMENT The trial Judge in his judgment said “In a nutshell, the Plaintiff in the instant case has the burden of proof on it to establish by cogent evidence the averments in the pleadings. I have carefully considered the evidence of the Plaintiff and its witnesses and is of the opinion that it has satisfied the requirements of the law on standard of proof especially when it had not been challenged. The court cited the case of Tutu v Gogo Civil Appeal No. 25/67 dated 28th April, 1969, CA, unreported digested in 1969 CC 76, where Ollenu JA held that:- “In law when evidence is led by a party and that evidence is not challenged by his opponent in cross-examination and the opponent did not tender evidence to the contrary the facts deposed to in evidence are deemed to have been admitted by the party against whom it is led and must be accepted by the Court” – [page 63 of ROA]. The Court found that the Plaintiff’s herein clearly described the identity of the land, the dimensions and boundaries. It has also been able to trace its root of title to the Kplen We family of La as the allodial title owners and called the head of family to corroborate their claim. That the “Plaintiff in my view has been able to discharge the burden on it as far as title to the disputed land is concerned”. It is for these reasons, I entered judgment in its favour and declared title over the disputed land in its favour on the 31st day of July 2019. By way of emphasis, final judgment is entered in favour of the Plaintiff as follows:- “Title to the disputed land is declared in favour of the plaintiff in the instant Suit, it is to recover possession of the land described at paragraph 13 of its Statement of Claim as well as on its endorsement to the Writ of Summons, the Defendant either by itself, its agents, assigns or otherwise howsoever described are restrained forever from entering, assigning, transferring or otherwise disposing of or dealing with or developing which is adjudged to belong to the Plaintiff in this judgment. Again, the Lands Commission is ordered to expunge any recorded transaction affecting the land adjudged to belong to the Plaintiff in this Suit which was in favour of any other person or authority other than the Plaintiff in this Suit” - [page 64 of ROA] The Applicant in the case on 12th December 2019 filed a motion on notice to set aside a writ of possession dated 21st November 2019 under Order 43(3) of C. I.47. The Applicant’s case is that his attention has been drawn to the above suit in which writ of possession has been granted to the Plaintiff/Respondent on 21st November 2019 – Exhibit A. The Applicant avered he is the bonafide owner of all that piece and parcel of land at Pantang containing approximately 138.80 acres by a deed of assignment dated 21st day of February 1978 – Exhibit B. That he had been in actual possession of the land in issue and had so many buildings thereon which he listed. That he had walled the whole area and remained so until in December 2019 when the Respondent entered onto the land breaking his wall on the pretext of a judgment dated 15th October 2019 and writ of possession dated 21st November 2019. It is his case that his presence on the land is so well known that the slightest diligence by anyone would have noticed his presence on the land. That nonetheless he never received any notice of the proceedings leading to the grant of the judgment and issuance of the writ of possession in contravention of Orders 43 r (3) of C. I.47. The applicants’ case is that with this flagrant contravention of the rules of court, and with his verifiable interest in the land the subject matter of this action it shall be just and equitable to grant the current application. It is also his case that he has been in actual possession of the whole 138.80 acres of land part of which is the subject matter of this action. The court’s refusal to grant this application birthed this appeal. The applicant’s indenture, Exhibit ‘B’ dated 21st February, 1978 is between West African Monopoly (WAM) as the Assignor who assigned to Trassacco Furniture Ltd. (Applicant) and Nee Adjei Kplen II and Atofotse Tetteh Onukpah, joint heads and lawful representative of the Agbawe Family of Labadi. The assignee, Trassacco, in consideration of the sum of ¢78,000 paid to the Assignor WAM acquired the Assignors said leasehold and assignment properties therein. From the indenture, there were 2 separate leases dated 29th August, 1977 stamped as No. AC 9029/77 and registered as No.4152/1977 and document stamped as No. AC 9030/77 dated 29th August and Registered as No.4153/1977. Both were made between Nee Adjei Kplen II & Atofotse Tetteh Onukpa joint heads and lawful representatives of the Agbome family and the other by Samuel Joe-Amoatey with WAM. This indenture was duly registered and stamped by the Lands Commission. The appellant also tendered pictures of buildings he has on the land in dispute – Exhibit ‘C’ series. Counsel for the respondent in their affidavit in opposition to this application averred that the land the subject matter of this suit is a bare land as captured in Exhibit ‘C6’, ‘C7’ and ‘C8’ attached to the affidavit in support of the application to set aside the writ of possession. He also averred that the issue of ownership of the lands at Pantang including the land in dispute in this suit are subject of a pending suit before the High Court, Commercial Division, Accra. Looking at paragraph 5 of the statement of claim in that suit at the Commercial Court as averred by the respondents, they themselves, Jeleel Company Ghana Ltd. (8th Defendant) just as the applicant herein Trassacco Furniture (7th Defendant) have both been described as “Private corporate bodies under the laws of Ghana who have alleged separate and varying interest in the disputed land in that 4th – 7th defendants have structures thereon whilst 8th defendant has cleared portions thereof, developing and occupying same under protection of land guards” – [page 199 ROA]. This averment in that statement of claim, exhibited by respondents themselves, confirms the applicant’s assertion that he has structures on the land in dispute. This important information was brought to the knowledge of the High Court hearing the application before the application was moved. The Judge in his ruling, however dismissed the application saying that there is no evidence on record to support the assertion of the applicant’s possession of the land which execution has been levied. That on the premises Order 43 (3) is inapplicable to the instant case. In the premises the application is refused. The Exhibit ‘C’ series which were attached failed to demonstrate any sign of the Applicant’s possession – [page 205 ROA] supra. Order 43 (3) (2&3) C. I.47 states: “3”. The leave (of the court) shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the court sufficient to enable the person apply to the court for any relief to which the person may be entitled. The applicant’s motion is to set aside the writ of possession granted the respondent and seeking an interlocutory injunction to restrain the plaintiff/respondent etc from entering, or carrying on any development disturbing the applicant’s possession of the land or in any other way whatsoever dealing with the disputed land until the final determination of the action. The applicant’s case is that pursuant to the Deed of Assignment dated 21st February, 1978, it proceeded to register its title to its piece or parcel of land encompassing an approximate area of 138.80 acres, of which the disputed land in the instant suit forms part. It is also of interest to note that the grantors to the applicant are the Agbawe family, same as that of the plaintiff/respondents. The applicant also allege that though the plaintiff/respondent’s writ relates to only ten (10) acres of land, they have cleared almost fifty (50) acres of land, destroyed properties and had deployed land guards and thugs on the land as pleaded by the plaintiff in the suit before the High Court, Commercial Division, Accra tendered by plaintiffs themselves. The applicant states that the plaintiff has not only cleared the land and demolished the applicant’s property but also winning sand from the land and selling some to the road contractor who is working on the Aburi- Pantang Hospital Road. It is the applicant’s case that these offending activities will change the nature and character of the land drastically if it is not restrained momentarily pending the hearing of the application to set aside the writ of possession. It is trite learning that for interlocutory applications such as the instant application by the applicant, the guiding principle for the court is whether the applicants by their pleadings and affidavits had established any legal or equitable right which is worthy of the protection of the court until the final determination of the matter on its merits. In the instant case, the applicant tendered his indenture executed by the same Agbewe Family in 1978. If it is true, then the family could not purport to transfer a portion of same to the respondent since you cannot give out what you do not have per the principle of Nemo Dat Quod Nem Habet. The trial court ought to have granted the application to preserve the status quo ante till the case is finally determined. This should have been the overriding principle for the trial court. We are of the view that the trial High court in the interest of justice should have granted the interlocutory injunction to restrain the parties until the applicant’s motion praying the court to set aside the grant of writ of possession is determined by the court. We should also not lose sight of the fact that the plaintiff in the original suit had a default judgment. The defendant did not participate in the trial to challenge the title of the plaintiff. This application therefore is akin to setting aside a default judgment. That is the more reason why the trial High Court ought to have granted the application for the interlocutory injunction and set aside the writ of possession. That would have preserved the status quo of the subject matter pending the determination of the true ownership of the land. Counsel for the applicant in his affidavit in support mentioned the Limitation Act of 1972 (NRCD 54) but unfortunately, we shall not consider same since it was not specifically pleaded in his motion as required by law, Order 11 R. 8 of C. I. 47. The purpose of the rule as is the case with most rules of pleadings, is to uphold the opposite party’s right to fair and adequate notice by knowing in advance the case he is to answer, so as not to be taken by surprise. Assuming the applicant even has no legal title to the land in issue, at least there is copious evidence from the pictures he tendered as Exhibit ‘c’ series coupled with the statement of claim in the suit pending before the High Court, Commercial Division, Accra, numbered Suit No. GJ/1642/2019 which was tendered by respondents, that the applicant has a lot of structures on the land. His physical possession of the land is evident and in no doubt. I do not understand what the trial Judge meant when he held that there is no evidence on record to support the assertion of the applicant’s possession of the land. Worst of it all was his ruling that the Exhibit ‘C’ series which were attached failed to demonstrate any sign of the applicant’s possession. The respondents in their affidavit in opposition to the application never challenged nor controverted the fact that those buildings were on the land nor belonging to the applicant. They claimed their land is bare land while the appellant said the land the respondent is claiming forms part of his 138.00 acre land. Applicant alleged the respondents broke his fence wall and his allegation was also not denied by the respondents. The applicant’s case is that the 10.89 acre that the plaintiff is claiming formed part of his 138.00 acre land so it is very possible the area claimed by the plaintiff/respondent may be bare. With the greatest respect to the learned trial Judge, if he had carefully evaluated the information available to the court, he should have granted the application to enable the applicant establish his title to the land in dispute. We think the trial Judge erred in law by refusing to grant the application. That ground of appeal succeeds and the ruling of the trial High Court is hereby set aside. Ground B - The court fell in grave error when it failed to declare the writ of possession dated 21st November, 2019 as being invalid. Counsel for the applicant submits that the lower court in its order for writ of possession dated 21st November, 2019 stated:- “It is HEREBY ORDERED that applicant is granted leave to issue writ of possession in respect of parcel of land situate at Adenta, near Pantang Hospital, Accra.” It is his contention that the order referred above did not describe the particular parcel of land the subject matter of the intended execution, so same could not have been enforced. Accordingly that order for writ of possession was void and a nullity to the extent that it failed to disclose the land the subject matter of possession and consequently, no proper legal steps could have been founded on it. Counsel contends further that because of the vague nature of the order for writ of possession, the respondent pounced on the applicants’ parcel of land and has graded over 50 acres when in fact his notice of Entry of Judgment refers to only 10 acres. The law is trite, that pursuant to Order 43 R. 13 of C. I. 47, Form 18D, writ of possession must describe the land delivery of which has been adjudged or ordered. This requirement of description is clearly intended to avoid wrongful execution of the judgment of the court decreeing recovery of possession for a judgment creditor. It is not acceptable for a court to make a vague order, a carte blanche order for a judgment creditor for recovery of possession of land for very obvious reasons. The very learned Supreme Court Judge, Justice Jones Dotse, JSC had this to say on the import of Order 43 R 3 (1), (2) & (13) of C. I.47: “In the absence of the Judge setting out the boundaries of the land in dispute either by clearly demarcating the boundaries or by a survey plan or map as we have in this judgment, all that we have is that, the applicants should go into possession. What happens in most cases is that the parties who have applied for the writ of possession are those who direct the Bailiffs and the Police as to the extent of the land in dispute. This practice is clearly unacceptable. We take judicial notice of the fact that many other writs of possession had been poorly executed in the past which has led to the demolition of houses and properties of people who were not parties to the judgments in respect of which the executions had been levied. In this instant, the defendant conceded that, pursuant to the said orders for possession, several houses had been demolished with the assistance of the police”. See – IN THE CONSOLIDATED SUITS OF Nene Narh Malti & Ors. vrs. Osei Godwin Teye and Samuel Lamin Oyortey & 2 Ors. vrs. Osei Godwin Teye Osei, Civil Appeal No. J4/13/2017 Dated 22nd November, 2017. The Supreme Court in that case, similar to the instant appeal where the Circuit Court Akropong-Akuapim failed to be specific about the land to be recovered in the writ of possession declared the writ as null and void and accordingly set aside. The apex court consequently gave a practice direction requiring trial Judges and Magistrates to ensure that writs of possession granted to judgment creditors contain an indication of the exact piece or parcel of land, the subject matter of the judgment intended to be executed. (Emphasis mine) Taking a cue for this direction by the apex court, it is clear that the trial court in the instant appeal erred in not indicating the exact piece or parcel of land the subject matter of the judgment intended to be executed. In view of that, we declare the order of writ of possession of the trial court dated 21st November, 2019 as null and void. It is trite learning that where a judgment or an order is void either because it was given or made without jurisdiction or because it is not warranted by any law or rule or procedure the party affected is entitled ex debitio justitiae to have it set aside and the court or a Judge is under a legal obligation to set it aside, either suo motu or on an application of the party affected. No judicial discretion arises here. See; (i) Mosi v. Bagyina [1963] 1 GLR 337 (ii) Ghassoub v. Dizengoff [1962] 2 GLR 1331 SC That ground of appeal succeeds and that order for writ of possession is hereby set aside. GROUND C - The court erred in law when it held that the applicant had failed to prove that it was in possession of the land. This ground was sufficiently dealt with under Ground ‘A’ and same succeeds. SGD SENYO DZAMEFE (JUSTICE OF APPEAL) CONCURRING JUDGMENT BRIGHT MENSAH JA: I have had the privilege of reading the judgment of my esteemed brother, Dzamefe JA and do agree with his analysis of the case and the conclusion reached. However, to enrich the discussion and on the law, I have decided to contribute my own thoughts. My Lords, this appeal is an invitation to this court to interfere in a judicial discretion that the lower court, the High Court, [General Jurisdiction], Accra exercised per its Ruling delivered 22/07/2020. In a short Ruling, the learned trial judge has held: “By Court: I have read the application and the affidavit in support, as well as the supplementary affidavit. I have also looked at the affidavit in opposition, I am of the opinion that this application has not been made out since there is no evidence on record to support the assertion of the applicant’s possession of the land which execution has been levied. On the premises, Order 43(3) is inapplicable in the instant case. In the premises the application is refused. The exhibits “C” series which were attached failed to demonstrate any sign of the applicant’s possession. No order as to cost.” See: pp 204-205 of the record of appeal [roa]. The ruling was given against the backdrop of a motion on notice to set aside a writ of possession dated 21st November 2019. The said motion with its supporting affidavit and annexures/exhibits was filed with the lower court on 12/12/2019 and this appears on pp 84-102 [roa]. A supplementary affidavit was subsequently filed on 27/03/2020. See: pp 176-195 [roa]. We state on record that an affidavit in opposition to challenge the application was filed 05/06/2020. That appears on pp 196-201 [roa]. In the final analysis, the lower court refused the application. It is against the refusal of the application that the instant appeal has been launched. Per a notice of appeal filed with this court on 05/8/2020, as appearing on pp 206-207 [roa], the grounds of the appeal are given as follows: a) The entire ruling is against the weight of evidence on record. b) The court fell in grave error when it failed to declare the writ of possession dated 21st November 2019 invalid. c) The court erred in law when it held that the applicant had failed to prove that it was in possession of the land. d) Other grounds of appeal will be filed upon receipt of the record of proceedings. On record, no further grounds of appeal were filed. In this appeal, the applicant/appellant shall simply be referred to as the appellant and the plaintiff/respondent, the respondent. The law on interfering in exercise of judicial discretion: As a general rule, an appellate court cannot or would not ordinarily substitute its own discretion for the court exercising a discretion. However, there may be exceptional circumstances justifying questioning the exercise of judicial discretion. The principles governing exercising judicial discretion and the power of an appellate court to interfere in the exercise of a court’s discretion were considered extensively in Sappor v Wigatap (2007-2008) SCGLR 676 in which case the Supreme Court set the perimeters of the rules as follows: “………………. [A]n appellate court would [only] interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” It is worth noticing that Crabbe JSC in R v Registrar of High Court; Exparte Attorney General (1982-83) GLR 407 @ 420 has reiterated that the grounds upon which the exercise of judicial discretion may be impeached include: i) where it can be demonstrated that the judge or judicial officer violated the duty to be fair and candid; ii) where the discretion was exercised capriciously or arbitrary; iii) that the judge or judicial officer was biased either by resentment or prejudices; iv) the trial judge did not act in accordance with due process of law. It bears emphasizing that there are no binding precedents in exercise of judicial discretion as each case is decided on its own merit provided the judge or judicial officer took into consideration, all the necessary facts and circumstances of the case; the judge or the judicial officer was not biased or capricious or that he did not take into account, extraneous matters. See: Agyeman v Ghana Rly & Ports Auth. (1969) CC 60 C/A. In summary, therefore, there are no hard and fixed rules as to how the judge or judicial officer must exercise his discretion in an application put before him except that the conclusion reached was not perverse or occasioned any miscarriage of justice. If the conclusion was supported by the [affidavit] evidence on record, the exercise is said to be right and judicially exercised. Consequently, the appellate court will not interfere with the exercise of the court’s discretion save in exceptional circumstances. See: Nartey Tokoli v Valco No. 3 (1989- 1990) 2 GLR 530. Legal analysis of affidavit evidence & submissions of Counsel: We now proceed to consider the merit of the appeal. To begin with, the law is certain that an appeal is by way of re-hearing the case. For, it is provided in the rules of the Court of Appeal, rule 8(1) of C. I 19 that any appeal to the Court shall be by way of re-hearing. This rule has received judicial interpretation in a legion of cases to mean that the appellate court is enjoined by law to review the whole evidence on record and to come to its own conclusion as to whether the findings of the lower court both on the law and on the facts were properly made and supportable. Thus, in R v High Court (General Jurisdiction 6); Exparte Attorney General (Exton Cubic – Interested Party (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle as follows: “Appeal is an invitation to a higher [appellate] court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.” Now, to the 1st ground of appeal i.e. the ruling is against the weight of evidence. I need to state the rule that the omnibus ground of appeal that a judgment/ ruling is against the weight of evidence does not apply in interlocutory appeals. See: Zikpuitor Akpatsu Fenu & ors v Attorney General (2018) DLSC 2489 p.3 per Anim Yeboah JSC (as he then was); Asamoah v Marfo (2011) 2 SCGLR 832. Thus, where in the instant appeal the lower court dealt with an interlocutory application the omnibus ground that the ruling was against the weight of evidence never applied. At this stage, I intend to combine grounds (b) and (c) and address them together because principally, both grounds speak to the same issue as to whether the lower court exercised its discretion judicially when it refused the application to set aside the writ of possession. But what are the facts of this case? Briefly stated, the respondent [then plaintiff in the case] on the 13th day of March 2019 caused to be issued in the registry of the Accra High Court [General Jurisdiction] a writ of summons together with a statement of claim and claimed against the defendant, Zion Energy Ltd, the following judicial reliefs: 1. declaration of title to and recovery of possession of all that parcel of land situate lying and being at Adenta in the Adenta Municipality of the Greater Accra Region and containing an approximate area of 1098 acres or 4.44 hectares more or less bounded on the North East by the lessor’s land measuring 401.4 feet more or less on the South East by the lessor’s land measuring 1581.2 feet more or less on the South West by the lessor’s land measuring 209.9 feet more or less on the North West by a proposed road measuring 1583.6 feet more or less. 2. An order of perpetual injunction restraining the defendant, its agents, assigns or otherwise howsoever described from entering, assigning, transferring or otherwise disposing of or dealing with or developing the land which is the subject matter of this court. 3. An order directed at the Lands Commission to expunge any recorded transaction affecting the land in dispute. 4. General and special damages for trespass and costs including legal fees. It does appear on record that upon service of the writ on the defendant they did not take steps to enter appearance and to file a defence. In consequence, the plaintiff recovered a default judgment against the defendant and proceeded to establish its claim. In establishing its claim, the plaintiff called its representative, Elizabeth Agyemang Prempeh who described herself as the General Manager of the company to give evidence. Since the defendant did not appear, the lower court discharged her. Her evidence appears on pp 44-45 [roa]. The next witness for the plaintiff whose evidence also appears on p. 45 [roa] is called Nii Sowah Okataban I. He described his status as the Adentan Chief. The case was closed at that stage whereupon the learned trial judge ordered the lawyer for the plaintiff to file a written address. Having regard to the evidence led on record, the court presided over by Apenkwa J gave judgment for the plaintiff and decreed title to the disputed land in the plaintiff. Additionally, he awarded as general damages for trespass in favour of the plaintiff, Ghc15,000.00 with costs assessed at Ghc10,000.00. Pursuant to the judgment entered in favour of the plaintiff, Jeleel Co. Gh. Ltd proceeded to enforce it and subsequently applied motion exparte for, and obtained an order of possession granted by the lower court on 21st November 2019. See: p. 80 [roa]. My Lords, as recounted supra, it is against the issuance of the writ of possession that the appellant herein applied to set it aside on a number of grounds contained in its supporting affidavit. The appellant contended in the main that it never received any notice of the proceedings of the case leading to the judgment and the issuance of the writ of possession. Submissions by Counsel for the appellant: Now, it has been profoundly argued by the lawyer for the appellant that the appellant’s Exhibit B attached to the application to set aside the writ of possession [found at p. 84- 89] that traces the appellant’s root of title is not markedly different from that of the respondent. Exhibit B series also evidences several developments the appellant has carried on the disputed land, Counsel insisted. Thus, it was required under Order 43 r 3 of CI 47 that the respondent served the appellant before applying exparte for an order for issuance of writ of possession, he argued. Counsel further drew this court’s attention to what he stated as the order for the writ of possession dated 21/11/2019 being manifestly erroneous and therefore, the writ of possession was not valid. Counsel stressed that the order was vague because the order of writ of possession only referred to the land, the subject of the writ of possession as “a piece of land situate at Adenta near Pantang Hospital, Accra” without providing the particulars the particulars of the land. In support, Counsel referred to this court to Order 43 r 13 of CI 47 and cases like Anane v Donkor & anr (Consolidated) (1965) GLR 188 and heavily relied on the dictum of Dotse JSC in re: In the Consolidated suits of Nene Narh Matti & Godwin Teye Osei, Civ. Appeal No. J4/13/2017 of 22/11/2017 in which case, His |Lordship has chastised the courts that grant writs of possession without taking time to peruse the extent of the orders made by the courts that delivered the said judgments. Counsel next argued that the order for the issuance of writ of possession being a nullity, the court has the power to set it aside. In support, he referred us to the oft-quoted Mosi v Bagyina (1963) GLR 337. Furthermore, Counsel submitted that the appellant being in possession it ought to have been heard before the lower court issued the order for the writ of possession. In consequence Counsel invited this court to set aside the order for writ of possession. Submissions of Counsel for the respondent: In response, learned Counsel for the respondent has submitted on the other hand that the appellant has not been able to demonstrate why the findings of the lower court leading to the issuance of the writ of possession ought to be set aside. He has thus invited the court not to disturb those findings. Counsel also referred to the case In the Consolidated suits of Nene Narh Matti & ors v Osei Godwin Teye (supra) and submitted that the writ of possession granted by the trial court was based on a praecipe for Writ of possession and the entry of judgment and a judgment plan dated 10/09/2019. In his view, the writ of possession was validly issued and same lawfully executed by the Registrar of the lower court. In conclusion, Counsel reiterated that the writ of possession was issued pursuant to a praecipe for writ of possession and an entry of judgment with a judgment plan; that the land the subject matter of the suit was bare, vacant and unoccupied by anyone including the appellant at the time the writ of possession was issued; and that the appellant was not a party to the suit in which the writ of possession was issued. To Counsel, the appeal must fail. My opinion: Now, having regard to the affidavit evidence put before the court, it is plainly obvious that the learned trial judge committed an error of law when he refused the application to set aside the writ of possession thus, occasioning a grave miscarriage of justice to the appellant. I think the court below did not exercise its discretion judicially when in the face of copious affidavit evidence [the photos attached to the motion paper] presumably showed that the disputed land was occupied. The lower court nevertheless held that the disputed property was a bare land. Undoubtedly, that heavily weighed on its mind to refuse the application to set aside the writ of possession. It cannot be over-emphasized that per the endorsement on the writ of summons the respondent claimed, inter alia, damages for trespass and recovery of possession. In relief 1 as endorsed on the writ, the plaintiff [now respondent in the instant appeal] was claiming a declaration of title to the disputed land and described it as measuring 1098 acres or 4.4 hectares. Since the plaintiff claimed those reliefs herein referred to, the presumption was that there was some other person in possession of the disputed land. It was on that basis that although the defendant never contested the claim, Apenkwa J nevertheless directed the plaintiff after obtaining judgment in default of appearance and defence, to prove its title to the land. Based on the evidence led on record, the court gave judgment for the plaintiff in addition to ordering recovery of possession of the disputed. The decision, therefore, by the court differently constituted that the disputed property was a bare land, flies in the face of the earlier judgment of Apenkwa J. At the risk of being repetitive, the plaintiff had claimed a declaration of title to the disputed land measuring 1098 acres or 4.4 hectares lying, situate at Adenta in the Adenta Municipality in the Greater Accra Region and near Pantang Hospital. We take judicial notice of the fact that most or majority of cases pending in the courts of Accra are land related issues. Therefore, it is very doubtful that 1098 acres of land lying at Adenta near Pantang Hospital was a bare land as the trial judge held, in the application to set aside the writ of possession. It was not established with any degree of certainty why the defendants in the case never responded to and or defended the case. It may well be that they were either not interested in the case or that the wrong defendant was sued. Be that as it may, once the respondent was given a recovery of possession to enforce the judgment of the court, he was required to strictly observe and comply with the provisions of law as captured under Order 43 r 3 of CI 47. That rule of procedure with the sub-title “Enforcement of judgment for possession of immovable property” stipulates: “(1) Subject to these rules, a judgment or order for the recovery of possession of immovable property may be enforced by one or more of the following means (a) A writ of possession; (b) In a case in which rule 5 applies, an order of committal or a writ of sequestration. (2) A writ of possession to enforce a judgment or order for the recovery of possession of immovable property shall not be issued without leave of court of the court except where the judgment order was given or made in a mortgage action to which Order 56 applies. (3) The leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immov- able property has received such notice of the proceedings as appears to the court sufficient to enable the person apply to the court for any relief to which the person may be entitled. (4) A writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.” [emphasis underscored] It was the case of the appellant when applying to set aside the writ of possession that, it was in actual possession of the disputed land and had constructed various buildings on a portion thereof and that it was never notified or served with proceedings of the case. The appellant had averred that it is owner of its 138 acres of land and has been exercising acts of ownership and possession by building portions of the land. Paragraphs 8 – 14 of the supporting affidavit that buttresses the assertion is worth reproducing here: “8. That the applicant has been in actual possession of the land in dispute and has constructed various buildings on a portion of the Land which serves as offices for some of its sister companies including Michelleti Company Limited, Royal Aluminum Company Limited, West Africa Industrial Developers Company Limited amongst others. Find attached hereto pictures of the structures on the land mark as Exhibits “C” series. 9. That the entire land covering an approximate area of 138.80 acres was walled sometime in xxx and had remained so until some- time in December 2019 when the respondent purportedly broke the entire wall under the pretext of a judgment dated 15th October 2019 and writ of possession dated 21st November 2019. 10. That the applicant is in actual possession of the 138.80 acres of land part of which is the subject matter of this action and has demonstrated actual of possession since 1978 when it acquired the land without any led or hindrance from any third party. 11. That the applicant acts of possession are well known to the whole world and that any individual who exercises the slightest diligence will notice the presence of the applicant on the land. 12. That the above nonetheless, the applicant never received any notice of the proceedings leading to the grant of the judgment and the issuance of writ of possession. 13. That owing to the above averments the applicant could not apply to court for any relief it may be entitled to. 14. In consequence of the averment in the immediately preceding paragraphs, I am informed by Counsel and I verily believe the same to be true that the issuance of the writ of possession to the respondent was made in error as the same was done in flagrant contravention of the rules of court and should therefore be susceptible to be set aside by this honourable court.” See: p. 109 [roa] As a general rule, where the issue of service of a document became crucial in the determination of a matter the party alleging service, or relying on the service for success, assumed the duty to prove it strictly. See: Andani v Abudulai (1982-83) 2 GLR 1080 3rd Holding. But isn’t it interesting to observe in the instant case that the respondent never specifically deny the averments contained in the appellant’s affidavit referred to supra? Rather, the respondent in his affidavit in opposition averred to in paragraphs 10 – 13 [appearing on pp 196-197 roa] that the land as captured in Exhibits C in support of the application by the appellant was a bare land. It is trite law that where a party made a material averment and that averment was denied, no issue was joined and no evidence needed be led on that averment. It was presumed that the party against whom that material averment was made admits the averment sub silentio. See: Hammond v Amuah (1991) 1 GLR 89. See also: Fori v Ayirebi (1966) GLR 627 SC. The case, Ibrahim v Abubakari (2001-02) 1 GLR 540 illustrates the principle that: “……………..if the respondent in his affidavit in opposition did not deny specifically a particular allegation of fact contained in a supporting affidavit or did not answer the point of substance in the supporting affidavit, he was deemed to have admitted the fact. Consequently, it was not enough to depose to a general traverse in answer to specific allegation of facts.”[emphasis mine] Insofar as the respondent never deny specifically that material averment by the appellant that it was in possession of the disputed land but was never served with any legal proceedings in fulfilment of Order 43 r 3(3) of CI 47, it is my considered opinion that the lower court did not exercise its discretion judicially when it did not declare the writ of possession invalid for violating statutory provisions. When there were infractions in execution of a writ of possession, the Supreme Court in R v High Court (Land Division), Accra; Exparte Lands Commission, Nii Tetteh Opremreh (Interested Party) Civil Motion No. Civil Motion No. J5/19/2014 held as follows: “The application for recovery of possession was exparte but as there were people in actual possession, Order 43 r 3 of CI 47 requires that the leave shall not be granted unless it is shown that every person in actual possession of the whole or part of the immovable property has received such notice of the proceedings as appears to the court for any relief to which the person may be entitled. The rule is in consonance with the principle of natural justice, i.e the audi alteram partem rule. A breach of this rule of natural justice is a proper ground for this court to exercise our jurisdiction in favour of the applicant.” It is pertinent to observe also that it was further averred in the affidavit in opposition to the motion to set aside the writ of possession that the issue of the ownership of the lands at Pantang including the disputed land, is a subject matter of a pending suit before the High Court [Commercial Division] Accra numbered GJ/1642/2019, in which case the appellant herein is the 7th defendant whilst the respondent herein is also the 8th defendant. We think that the lower court did not adequately take into account the material evidence put before it and that the conclusion it reached would have been different from what it did if the lower court exercised its discretion on settled principle of law. Quite curiously the respondent had averred in his affidavit in opposition to the application to set aside the writ of possession that the disputed land had nothing to do with the land appellant asserts title to. Put differently, the appellant’s land is different from the land, the subject matter of the writ of possession. If that was case, it was not lawful for the respondent to levy execution of the appellant’s land in enforcing the judgment of the court. There was that copious and obvious evidence from Exhibit B that several construction developments had been or were being carried on the land. It cannot be right, therefore, to say that the land levied in execution was a bare land. I also think that the assertion that the disputed land was quite distinct from the appellant’s land should have weighed heavily against the refusal of the application by the lower court. Another relevant fact or assertion that the lower court failed to take into consideration is the respondent’s averment in his affidavit of opposition that the land, the subject matter of the writ of possession is sub judice before another division of the High Court in which case both the appellant and the respondent herein, are defendants in that case. If the lower court did so, it would have been right for it to have granted the application and set aside the writ of possession. In summary, therefore, I am of the considered opinion that the learned trial judge did not take into active consideration, all the necessary facts and circumstances of the case. Consequently, the refusal of the lower court to grant the application to set aside the writ of possession which was a nullity on ground that it clearly violated Order 43 r 3 of C. I 47 was an exercise not properly and judicially exercised. See: Mosi v Bagyina (1963) 1 GLR 337. In the circumstance the lower court committed an error of law occasioning a grave miscarriage of justice to the appellant herein when it refused to set aside the writ of possession. In the result, we reserve the power to interfere with the exercise of the discretion of the lower court and hereby set aside the order for writ of possession to issue as well as the writ of possession itself. Consequently, I do agree that the appeal be allowed. I also agree SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD NOVISI ARYENE (JUSTICE OF APPEAL) COUNSEL ERNEST KUSI WITH KWAME AMENANO TANNOR FOR APPELLANT TAPHA TASSAH FOR THE PLAINTIFF RESPONDENT 40