CAPE COAST - A.D 2016
ANTHONY KUMAH - (Plaintiff/Appellant)

DATE:  22NDMARCH, 2016



This is an appeal from the ruling of the Circuit Court, Takoradi, dated 3rd December, 2013. By the said ruling the Court, following an application by the Defendant/Respondent herein, dismissed the suit filed by the Plaintiff/Appellant on the ground that the action was an abuse of the Court process.


Being dissatisfied with and aggrieved by the decision of the Court the Plaintiff on 11/12/2013 filed a notice of appeal against the Court’s said ruing.


Three grounds of appeal were filed together with the customary indication that additional grounds would be filed upon receipt of the record of appeal.


No further or additional grounds were filed and argued.


The grounds of appeal filed are as follows:


“(i) The Learned trial judge erred in law in assuming jurisdiction to determine the case when the judge whose judgment is being set aside is still at post at Takoradi.

(ii) The striking out of the Plaintiff/Appellant’s writ of summons and statement of claim by the trial judge was made in error.

(iii) The ruling of the Circuit Court Takoradi dated the 3rd December 2013 cannot be supported having regard to the evidence adduced at the time the case was heard.”


A background of the case may be in order.


On 7th May, 2013 the Plaintiff/Appellant herein (who may hereafter be referred to simply as the Appellant) commenced an action against one Supi Nana Kakra, whom he described as a farmer at Assorko, seeking the following reliefs, namely:


“1. An order praying for leave to set aside the judgment of the Circuit Court, Takoradi dated the 26th day of September 2012 in the case titled: Supi Nana Kakra




Kwaku Essilfie


Shaibu @ Joe Kojo Awyen


(Suit No.C1/8/09)


On grounds that:


i) The Defendant obtained the judgment through misrepresentation.

ii) The said judgment was made without reference to the decision in the case titled: Nana Berekum 1 & 2 Ors.




Kweku Essel & 5 Ors.


Which held that the Defendant had no capacity to sue in respect of Twer Nyame lands.

2. An order granting leave to the Plaintiff to defend the action.

3. A declaration that all lands situate at Assokor and Twer Nyame which are in the exclusive possession of the subjects are owned by the subjects as usufructory (sic) owners”.


The writ was accompanied by a 19-paragraph statement of claim.


It was the case of the Plaintiff that the Defendant, Supi Nana Kakra, who claimed to be the Regent of Assorko had indiscriminately been selling lands at Assorko and Twer Nyame settlements which are in the possession of subjects and been pocketing the proceeds to the detriment of the subjects who are in possession of those lands.


It was the contention of the Plaintiff that the lands at Assorko and Twer Nyame had been redeemed by certain persons after same had once been pledged. Since then the land had become communal land although same had not been quartered. According to the Plaintiff two suits namely, Nana

Berekom 1 & 2 Ors. Vrs. Kwaku Essel & 5 Ors. and Supi Nana Kakra Vrs. Kweku Essilful & 2 Ors had previously been heard and determined respectively by the High Court and the Circuit Court in connection with Assorko and Twer Nyame lands as well as the issue of the traditional leadership of the two settlements.


It was also the contention of the Plaintiff that the Circuit Court case of Supi Nana Kakra Vrs. Kweku Essilful & 2 Ors. was obtained through misrepresentation and also without proper regard to the earlier High Court case of Nana Berekom 1 & 2 Ors. Vrs. Kwaku Essel & 5 Ors.


The Plaintiff maintained finally that the subjects of Assorko and Twer Nyame held usufructuary rights to the lands they individually held or possess in the two settlements for which reason the Plaintiff sought an order of declaration to that effect.


On 5/6/2013 the Defendant through counsel filed a Notice of Appearance. He had not yet filed a statement of defence when on 26/6/2013 one Omanpanyin Kobina Otoo of Assorko applied, through the very lawyers who had filed the Notice of Appearance on behalf of the Defendant, to be substituted for the Defendant, Supi Nana Kakra, on the ground that the Defendant was “no more the Supi and for that matter the Omanpanyin of the Assorko community and has no capacity to act for the Assorko community”. The Applicant asserted that he was the current Omanpanyin of the Assorko community who was the proper person to be sued. From the record the said application did not seem to have been argued but was apparently granted without objection on 12/07/2013, in the presence of the Plaintiff’s lawyer.


On 6/8/2013, the Defendant applied for an order to strike out the writ and statement of claim on the ground that “same is an abuse of the Court process…………”.


In a 6-paragraph Affidavit supporting the motion the Applicant contended, by paragraph 3 thereof, that the writ of summons and the statement of claim had “been issued in utter bad faith and the whole action is only an abuse of the Court process”.


The Applicant then by paragraph 5 of the Affidavit attached two judgments “for the perusal” of the Court without stating their relevance to the application.


Strangely enough, in the instant application, as with the previous motion to substitute the present Defendant/Respondent for the original Defendant in the suit, the Plaintiff/Appellant herein did not bother to file an affidavit in opposition either to challenge the facts deposed to in the Applicant’s affidavit or to contest the application on any other factual or other grounds acceptable in law. Legal arguments having however been heard, the trial court determined the matter by upholding the application and dismissing the Plaintiff’s action in its entirety. It was the considered view of the Court that the two cases whose judgments had been annexed to the affidavit supporting the Defendant’s application were not default judgments and further that with particular reference to the High Court case, the Circuit Court, as a Lower Court, was bound by the decision of the High Court.


It needs to be stated, at this point, that this appeal is being determined without the imput and assistance of the Defendant/Applicant/ Respondent herein. The Court’s record establishes that the said Defendant/Respondent was duly served with the Plaintiff/ Appellant’s written submission filed on 30/11/2015. He did not file any written submission in answer or response. Neither did he appear in person or through his legal counsel at the hearing of the appeal to state his case in this Court in any manner authorized by law.


Before proceeding to consider the merits of the appeal, it is worth pointing out, as a preliminary matter, that the second ground of appeal, in the manner it is formulated, seems to me clearly to offend the law.


The said second ground of appeal states as follows:-

“(ii) The striking out of the Plaintiff/Appellant’s writ of summons and statement of claim by the trial judge was made in error”.


Now, Rule 8(4) of the Court of Appeal Rules, 1997, C.I.19 specifically provides thus:-


“(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”.


Having failed to state the particulars of the error alleged in the aforesaid second ground of appeal the said ground cannot be considered as a competent ground of appeal. It is accordingly disregarded or otherwise set aside and dismissed.


The simple question to be asked in this interlocutory appeal is whether or not the decision of the Learned Trial Judge is justifiable or sustainable in law or fact.


There is no doubt that the application the result of which triggered off the instant appeal agitated the discretion of the trial Circuit Court.


It is a fundamental principle of law that with respect to the exercise of discretion by a Lower Court an appeal against any such discretion does not constitute an appeal to the discretion of the Appellate Court.


This point was emphasized by this Court, for example, in the case of In Re Bob Kwame and Co. Ltd.; Gyingyi Vrs. Bernard and Another [1989-90]IGLR 87. Holding(1) of the head notes of the said case declared as follows:-


“Any appeal from the exercise of (that) discretion related to the manner in which the discretion was exercised. It had been well established that such an appeal was not to the discretion of the Appellate Court. the burden was on the Appellant in such a case to show that the Court below did not exercise its discretion judicially. The Court below would be held not to have exercised its discretion judicially if, for example, it took into consideration matters which it would not have taken into consideration or where it ignored matters which it should have taken into consideration. The fundamental rule was that the Appellate Court would only interfere with the exercise of discretion by the Court below in very exceptional cases. Dictum of Sarkodee-Addo JSC in Crentsil Vrs. Crentsil [1962]2 GLR 171 at 175 applied” [emphasis provided].


In the Crentsil case (supra) Sarkodee-Addo JSC pointed out thus:-


“As to appeals from the exercise of the Court’s discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the Court’s discretion save in exceptional circumstances………………….


“An appeal against the exercise of the Court’s discretion can only succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the Court acted under a misapprehension of fact, in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account; but the appeal is not from the discretion of the Court, to the discretion of the Appellate tribunal”.


The issue therefore is whether the Plaintiff/Appellant had satisfied the burden imposed on him to establish that the Court below did not exercise its discretion judicially; that the Court had acted under the misapprehension of fact by relying on wrong or inadequate materials and, additionally, whether the Appellant had demonstrated exceptional circumstances why the exercise of discretion by way of the decision arrived at by the Court below should be interfered with.


An application before a Court is essentially and generally determined on affidavit evidence. And, as pointed out earlier on in this judgment, the Plaintiff/Appellant herein failed or neglected to file any affidavit in opposition. That means the facts set out by the Defendant/ Respondent remained uncontested and unchallenged. To succeed therefore the Plaintiff/Appellant in the Court below required to raise serious and substantial points of law to defeat the application against him.


In opposing the motion in the Court below, all that the Plaintiff, through his counsel, seems to have done was to rely on the authority of Lamptey Vrs. Hammond [1987-88]1 GLR 327 to press on the trial Court that to the extent that his interest seems to have been adversely or injuriously affected by the judgment of the Circuit Court, which he sought by his suit to set aside, he was justified, as a stranger, to the aforesaid action to either obtain the leave of the Defendant in the suit to use his name and then apply to the Court in the Defendant’s name to have the judgment set aside; or to use his name by taking out a summons and then serving same on both the Plaintiff and Defendant in the original case. The Plaintiff contended that he had properly elected the second mode of asking for leave of the Court to set aside the judgment and to be allowed to defend the action.


The trial judge’s position on this matter was that the judgment which the Plaintiff was seeking leave to set aside, and to be allowed to defend the action was indeed and in fact not a default judgment but an action properly determined on the merits upon the suit having been contested at the trial and testimonies of both parties being taken before the Court gave judgment.


Beside, the Court was of the opinion that the previous Circuit Court had relied on the decision of an earlier High Court case which it felt bound by and which was equally binding on it.


The Learned Judge whose ruling is being impugned in the instant appeal delivered herself in the manner as follows:-


“Counsel for the Plaintiff/Respondent submitted that because his client adopted the second option, his action against the Defendant/Applicant is not an abuse of the Court process and should not be struck out.


I have read the two judgments annexed to the affidavit in support of the instant application and realize that these are not default judgments. They were both delivered after the merits of both sides had been gone into.


Plaintiff/Respondent cannot therefore cloth (sic) himself under the holding in the Lamptey Vrs.


Hammond (supra) case to institute the instant action.


The Learned Circuit Court Judge in the case of Supi Nana Kakra Vrs. Kweku Essiful followed the principle of precedent in the High Court, Sekondi case of Nana Brekom I Vrs. Kwesi Essel & Ors. where Ansah J. (as he then was) held that Twer Nyame formed part of Assorko Lands.


The Learned Circuit Court judge pointed out in his judgment that since the above determined has neither been overruled nor set aside by a Court of competent jurisdiction, he finds himself bound by it. How then can this Court have the effrontery to set aside the said judgment of the High Court which the other Circuit Court was bound to follows?”


In this Court counsel for the Plaintiff has submitted that Her Honour Afi Agbanu Kudomor ought not to have handled the instant case because the case which the present case seeks to set aside was determined by His Honour Charles Bamfo Nimako, who was as post. Counsel relied on the case of Bakuma Vrs. Ekor [1972]IGLR 133.


Counsel, in my respectful opinion, did not demonstrate how the Bakuma case relates to the present case and how specifically it supports his submission on this issue.


It should be noted that the Plaintiff/Appellant’s fresh summons did not seek to review the decision of His Honour Charles Nimako for which reason the case ought to have been placed before Judge Nimako. Besides, this matter was never raised at the Court below for its consideration and determination. I do not consider this objection to be a valid enough ground to upset the ruling impugned in his appeal. I will accordingly dismiss the said ground as being without merit.


Counsel has sought in the instant appeal to rehash the arguments raised in the Court below relying once again on the Court of Appeal case of Lamptey Vrs. Hammond (supra).


Counsel in this Court contended further as follows:-


“My Lord, with the greatest of respect to the Learned Trial Judge the ratio in the Lamptey Vrs. Hammond (supra) is not limited to default judgment by all judgment be it interlocutory or final. It was therefore erroneous for the Learned Trial Judge to hold that the ratio in the Lamptey VRS. Hammond case was limited to default judgments”.


I find counsel’s submissions set out above as incongruous. Like the trial judge I have examined this Court’s judgment in the Lamptey Vrs. Hammond case (supra) and I cannot fault the position of the Court below in any way. I believe counsel for the Appellant herein has clearly misread or misapprehended the Lamptey judgment.


Learned Counsel in my respectful view, has also not demonstrated in what particular way the Lamptey case invalidates the position taken by the trial Court.


The issue here is not about an interlocutory or final judgment. the trial judge contended, and rightly too in my respectful view, that the case the Plaintiff/Appellant herein was seeking to set aside was one determined on the merits and same was not appealed against. It is not contended here that the said judgment was obtained by fraud. Even if that was the case, I would hold that the Plaintiff in the circumstances of the instant case would be nothing but a busy-body who has no capacity to impugn the judgment even on that score.


Having already dismissed ground (ii) I find no justifiable reason or circumstances in granting or upholding ground (iii) which counsel for the Appellant herein tied to and argued together with the said ground (ii) in so far as same may be related to reliefs (1) and (2) endorsed on the Plaintiffs writ of summons, namely, an order praying for leave to set aside the Circuit Court’s judgment dated 26/9/2012 in the case of Supi Nana Kakra Vrs. Kwaku Essilfie Shaibu (Suit No.C1/8/09) and an order granting the Plaintiff leave to defend the action.


What action was the Plaintiff/Appellant herein seeking leave to defend? Or was he trying, through the back-door, to obtain extension of time to appeal the said decision? If so would the Circuit Court be the appropriate forum to determine an appeal against a decision of the Circuit Court? Quite clearly, the answer would be no.


All the foregoing notwithstanding, I may say that there seems to me to be a partial “redeeming feature” in the instant appeal. and that borders on the issue of the third relief indorsed on the Plaintiff’s writ of summons. That relief is to the following effect:-


“(3) A declaration that all the lands situate at Assorko and Twer Nyame which are in the exclusive possession of the subjects are owned by the subjects as usufructory (sic) owners”.


Having critically examined the record, I am satisfied that the said 3rd relief sought by the Plaintiff in the instant action could properly and effectively be separated and distinguished from the two earlier reliefs endorsed on the writ and which are related to the previous Circuit Court case of Supi Nana Kakara Vrs. Kwaku Essilfie (Suit No.CI/8/09).


I must emphasize also that the question sought to be determined by the said 3rd relief was not raised in or determined by or in both the Circuit Court case in Suit No.CI/8/09 above or the earlier High Court case of Nana Berekom I Vrs. Kwesi Essel And Others which was heard and determined by Ansah J (as he then was) and which the trial judge below held to be bound by in her ruling which is the subject of the instant appeal.


It will be noted that Ansah J in his aforesaid judgment found the situation in the settlements of Twer Nyame and Assorko in relation to both the nature and tenure of the traditional leadership of both settlements as well as the communal character of the land associated with the said two settlements to be peculiar, unique and unusual or unorthodox. That being so there can be clear justification for interrogating or further examining the specific character of the “communal nature” of the land as found by Ansah J in relation to the specific entitlement of individual subjects of the locality vis-à-vis the communal land. Is it correct or factual to say, as the Plaintiff/Appellant herein seems to suggest by way of the 3rd relief endorsed on his writ of summons, that portions of the land in the two separate settlements of Assorkor and Twer Nyame were “in the exclusive possession” of subjects of the locality?


If so what is the nature of the title or ownership which such subjects held to the land in the two settlements?


Are the subjects entitled to or hold usufructurary interest in the land in their respective possession?


If not what is the specific nature or character of their holdings?


Against the back drop of these seemingly pertinent and well grounded issues, which require further and much deeper examination by the Court, in the light of the rather peculiar customary law situation within the Assorkor and Twer Nyame communities, it will be appropriate for me to duly exercise the powers vested in this Court under Rule 32 of the Court of Appeal Rules (C.I.19) to vary the decision of the trial Circuit Court which dismissed the Plaintiffs action in its entirety by decoupling from the said Ruling Relief (3) endorsed on the writ of summons. Accordingly, I do hereby order that the case be remitted to the Trial Circuit Court for the case to take its normal course in relation to the aforementioned Relief (3), namely: “A declaration that all lands situate at Assorko and Twer Nyame which are in the exclusive possession of the subjects are owned by the subjects as usufructory (sic) owners”.


Subject to the above stated variation, I would dismiss the appeal.







C.J. HONYENUGA, JA:        I agree                           ……………





G.S. SUURBAAREH,JA:     I also agree                 …………….