IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2019
ABENA GYABEA & 2 OTHERS - (Plaintiffs/Appellants)
KWAKU YEBOAH & 3 OTHERS - (Defendants/Respondents)
DATE: 25TH JUNE, 2019
CIVIL APPEAL NO: H1/84/18
JUDGES: M. OWUSU JA (PRESIDING), S. DZAMEFE JA, M. WELBOURNE JA
The plaintiff/appellant issued this writ at the High Court, Sunyani in the Brong Ahafo Region of Ghana against the defendant/respondent for the following reliefs:
Declaration that the plaintiff’s immediate maternal family owns all that piece and parcel of land, lying, situate and being at “ANYINASU” and which said land shares common boundary with Nana Kwaku Kumah (dec), Nana Kwame Donkor (the late Asikasuhene), Maame Afia Gyamaa (dec) and the “Anyinasu” stream
An order of perpetual injunction
General damages for trespass
The three plaintiffs are farmers at Asikasu No.1 in the Dormaa Central Municipality of the Brong Ahafo Region while the 1st defendant is a mechanic and the two others are farmers.
The 1st plaintiff avers in his Statement of Claim that the land in dispute was acquired by her maternal grandmother by name Abena Gyabeah, together with his uncles Kofi Yeboah and Kwaku Boah jointly in its virgin state about 90 years ago. This land he said is situate and lying at a place commonly known and called “Ayinasu” near Asikasu on the Dormaa Stool land.
It is his case that his maternal grandmother and the two uncles mentioned earlier reduced the land into a cocoa farm and shared boundary with the properties of Agya Kwaku Kumah (decd), Nana Kwame Donkor (decd), the late Asikasuhene and Maame Afia Gyamaah’s (decd).
The plaintiffs aver further that the three, Obaapanyin Abena Gyaba and two uncles during their lifetime enjoyed the proceeds from their farms on the disputed land without let or hindrance from anybody or any quarter whatsoever till 1983, thereabout when the nationwide fire outbreak burnt and destroyed the entire cocoa trees.
Plaintiff said they later rehabilitated the farm and for several years the late Obaapanyin Abena Gyabea continued farming on the land in dispute till 2013 when the defendants started laying adverse claim to the said land by cultivating same. Wherefore the plaintiff’s claim the reliefs endorsed on the writ of summons.
The defendant/respondents in their statement of defence aver that 1st plaintiff is deceased and the 2nd plaintiff lives at Kruen at all material times of his life and had no farm at Asikasu No.1. It is the defendant’s case that the land in dispute was originally acquired many years ago in its virgin state by Okomfo Asenua who was the wife of the late Chief of Asikasu, Nana Kwame Donkor, the founder of Asikasu.
The defendants say they are maternally related to Nana Okomfo Asenua and upon her death her entire land devolved onto their family in accordance with customary practices of the people of Asikasu No.1 of Dormaa who are Akans.
The defendant’s state that after the death of Okomfo Asenua, the land devolved to Nana Akua Gyamaa, then to Kwaku Kumah, then to Kofi Yeboah, then to Ibrahim @ Ibrahima, then to the 3rd defendant, Sirikye Kuamoh presently. The 3rd defendant, is a nephew to Kwaku Kumah, Kofi Yeboah and Ibrahim and presently the customary successor to Ibrahim. This 3rd defendant, they aver is the current family Head of the family at Asikasu No.1, Aboabo No.4 and Amaasu.
It is the case of the defendants that Kwaku Kumah mentioned by the plaintiff’s as a boundary owner was maternally related to the defendants and the disputed land had one time devolved unto him after the death of Akua Gyemaa. The defendants named their boundary owners of the disputed land as Nana Oppong Kwabena, Dormaa Ahenkro to Diabaa road, Opanin Kwabena Damoah, Afia Gyamaa, whose land is in possession of Akosua Amponsah and the Asikasu stream.
The defendants aver that the 1st plaintiff had instituted a writ against the 2nd defendant at the Circuit Court Dormaa Ahenkro in respect of this same disputed land. Again, prior to the case going to the High Court, the 3rd defendant’s sister called Abena Kumah has sued one Ama Asantewaa before the Queenmother of Dormaa Ahenkro in respect of the same land. This Ama Asantwaa is maternally related to the plaintiff’s herein. They aver that the 3rd plaintiff joined the arbitration proceeding before the Queenmother, paid the arbitration fees, testified and submitted themselves to the jurisdiction of the Queenmother over the dispute. The date set by the Queenmother to deliver her judgement, the 3rd plaintiff and Ama Asantwaa failed to turn up and had succeeded in frustrating the Queenmother from giving her award. The defendants claim, the plaintiffs are therefore estopped from filing this fresh suit before the High Court Sunyani or any other court. The defendants listed the particulars of estoppel, that there was pending a customary arbitration proceedings in respect of the same piece of land before the Dormaa Queen mother, that the parties before that arbitration are the same or privies to the instant action before the High Court. That the 3rd plaintiff and Ama Asantewaa are maternally related to all the plaintiff’s and Abena Konadu in maternally related to all the defendants who duly submitted to the customary arbitration before the Queenmother and each paid Gh¢80,00 as arbitration fees. They averred further that the arbitrator has not given her award and therefore none of the parties or their privy can resile from the arbitration and file a fresh suit in any court of law.
It is also their case that when the 3rd plaintiff realized the arbitration award will not favour him, went to institute the writ at the Circuit Court, Dormaa Ahenkro. The 3rd plaintiff applied and joined as a defendant since he is the Head of family. After the application for joinder was granted, the 3rd plaintiff discontinued the suit before the Dormaa Circuit Court and instituted thus suit in the High Court. Wherefore the defendant claims this action before the High Court is premature and plaintiffs are not entitled to any of their claims.
ISSUES FOR TRIAL
Whether or not the plaintiffs are entitled to the reliefs which they are seeking.
Whether or not the land in dispute was acquired in its virgin state by Abena Gyabea, Kofi Yeboah and Kwaku Boah.
Whether or not the land in dispute was acquired by Nana Okomfo Asenua.
Whether or not the 3rd defendant is the customary successor of all his uncles.
Whether or not there has been a valid customary arbitration.
Whether or not the plaintiffs are estopped in law from initiating the present action.
From the High Court proceedings as seen in the record of appeal, the case was called on 1st December 2016, the 3rd plaintiff was present and the other plaintiff’s absent. Defendant were present. Counsel for the plaintiffs and defendants were all absent and case adjourned to 12th December 2016. On 11th January, 2017 when the case was called plaintiffs were absent and defendant present. Counsel on both sides were absent.
BY COURT: - “The plaintiff’s and their Counsel are absent since they brought the defendants to court and they have failed to appear to prosecute their claim. Suit is hereby struck out for want of prosecution with liberty to apply. Signed by judge”.
Counsel for the plaintiff’s filed a motion on notice for leave to relist the suit dated 12th January, 2017. The reason given by counsel for the plaintiffs is that his failure to attend court on the day the case was called was not intentional but due to circumstances beyond his control when his vehicle developed a mechanical fault on his way to court.
On the 2nd of February, 2017 when the case was called for the motion to be heard, one Nana Kofi Yeboah pleaded with the court to settle the matter amicably out of court and prayed for a one-month period. The court granted him leave to do so and file the terms of settlement when settled. Suit was adjourned to 1st March, 2017. Five adjournments were made to enable them settle and file terms.
On 15th June, 2017, in the presence of 1st plaintiff and 1st defendant, with all lawyers absent, Nana Kofi Yeboah announced his inability to settle the matter amicably saying the settlement has broken down.
By Court: “Settlement having broken down, suit is stand struck out as no motion has been brought to relist the suit (sic)”. Signed by presiding Judge.
NOTICE OF APPEAL:
The plaintiffs/respondents dissatisfied by this ruling of the trial Judge filed this appeal on the following grounds:
1. The learned Judge was wrong when he struck out or dismissed the suit.
2. Procedurally, judicially, etc, the learned Judge showed his bias against the plaintiffs, when he struck out the suit.
3. The learned trial Judge did not exercise his discretion well/properly.
4. Additional grounds of appeal shall be filed upon the receipt of the record of appeal.
The relief sought is to relist/restore the suit for same to be determined on its merit.
Counsel for the appellants submit that on 15th June, 2017, when the trial High Court ordered that “struck out as no motion has been brought to relist the suit”, their motion on notice for relistment was pending before it.
It is their submission that when Nana Kofi Yeboah announced to the court that the settlement is broken down, the trial Judge should have continued with the matter. It is their contention that the trial High Court Judge striking out the suit on the grounds that no motion to relist was filed, did not exercise his discretion well.
On these grounds, the appeal be allowed.
The respondents in answer submit the trial Judge did not dismiss the appellants case but rather struck it out. That there is a vast difference between the words “struck out” and “dismissed” and legally speaking, the two are not the same. Counsel submit that aside the fact that the two terms have different meanings, they are open to different legal remedies to persons who are dissatisfied with the case which has been struck out and the case which has been dismissed.
Counsel contends that the appellants ought to have applied to the trial court for the relistment or restoration of their case. They could also have applied for the revision of the order appealed against and averted the attention of the trial Judge that there is a motion pending before him in respect of the case which had been struck out.
Counsel argues that though he admits that the trial Judge was wrong in striking out the appellants case when the motion for relistment was pending, the procedure adopted to have the order vacated was wrong. He said the appellants’ remedy lies in applying before the same court to have the case relisted but not to appeal.
Counsel submits that the appellants appeal based on this ground be refused because they have wrongfully invoked the jurisdiction of this court.
The trial High Court on 11th January, 2017, said: -
The plaintiffs and their counsel are absent since they brought the defendants to court and they have failed to appear to present their claim, suit is hereby struck out for want of prosecution with liberty to apply”
On 12th January, 2017, counsel for the appellants filed a motion on notice praying the court for leave to relist the suit struck out the previous day for want of prosecution. The motion was fixed for 2nd February, 2017 to be moved by the applicant. On the day fixed for the motion to be moved, 3rd plaintiff, 1st and 3rd defendants, together with their lawyers were all present in court. Then, one Nana Kofi Yeboah prayed the court to be given the chance to settle the case amicably between the parties out of court. This request was granted and given one month within which to file terms if settled. The motion for relistment which was the business of the day was not tackled. After several adjournments, Nana Kofi Yeboah announced his inability to settle the matter telling the court the all attempts at settlement are broken down. This announcement was on the 15th of June, 2017.
The court recorded it thus: - “settlement having broken down, suit is stand struck out as no motion has been brought to relist the suit.”
This statement by the court is wrong, since there was pending a motion to relist the case. I believe it was an oversight by the trial Judge.
There is a vast difference between the legal terminologies, “struck out” and “dismissed.” Briefly, the former means the suit was not heard on its merits because of some procedural flaw or some other stated reasons. The suit was not gone into because of a stated reason. Whenever a suit is so struck out, the effect is that, that stated reason could always be remedied and the party seeks leave and when granted, the case is “relisted” to be heard on its merits. Normally, the court will not make any consequential orders against the party whose case is struck out nor for the other party except costs against the party whose case is struck out. No rights are determined by the court when the plaintiffs’ case is struck out for want of prosecution. But where the defendant has a counterclaim, then he may be asked to prosecute his counterclaim and when the court is satisfied he has established his case can have judgment given in his favour and his reliefs granted and with consequential orders made. An action struck out can always be restored. The party prejudiced thereby can always apply for its restoration – Darkwa vrs. Kwabi IV [1992-93] GBR 380 SC.
In dismissals, the court has gone into the merits of the case and found no merit in same hence the dismissal. The effect of dismissal unlike striking out is that, when an action was dismissed it meant that as between the parties, it created a bar which would prevent any further proceedings unless permitted by the statute. The remedy open to a party whose case or suit is dismissed is to mount an appeal against the decision or ruling or judgment to be reviewed.
In the instant appeal, it is very clear that there was pending the appellants’ motion on notice for leave to relist and restore the case. The trial High Court therefore erred when it said no motion has been brought to relist. This is an error apparent on the face of the record.
I hereby set aside the ruling of the trial High Court and order that the motion on notice for relistment be moved by counsel for the appellants. This should be before a different High Court.
The appeal is allowed.