i. Background:

[1] On July 27, 2012 this Court presided over by His Lordship, Mr. Justice E.F. Dzakpasu granted the Plaintiffs/Respondents claim for reliefs endorsed on their Writ as:

i. Declaration that Defendant fraudulently made 2nd Plaintiff to sign papers transferring the land on which the Defendant built House No. 42, Mensah Wood Road, East Legon, Accra into his name;

ii. An order that Defendant complies with the agreement between the parties by replacing 2nd Plaintiff’s land with another land at East Legon together with a fence Wall and foundation for two three-bedroom houses, or in the alternative an order declaring 2nd Plaintiff the owner of House Number 42, Mensah Wood Road, East Legon, Accra;

iii. Recovery of £15,000 or its Cedi equivalent being the balance of £32,000 1st Plaintiff gave to Defendant.

[2] On the 18th day of November 2013, further to an application filed by the Plaintiffs/Judgment Creditors as per the title of the motion paper, the Court once again presided over by his Lordship E.F. Dzakpasu granted “Order for Leave to issue a Writ of Possession” in the following terms;

“UPON READING the Affidavit of MARGARET DUNCAN-WILLIAMS of Ofankor, Accra, the 1st Plaintiff/Applicant herein, filed on the 8th day of November, 2013, in support of Motion Ex Parte for an Order for Leave to issue a Writ of Possession;

AND UPON HEARING JOE ATIIPOE, ESQ., Counsel for and on behalf of the Plaintiffs/Applicants herein;

IT IS HEREBY ORDERED that leave be and is hereby granted to the Plaintiffs/Applicants herein to issue Writ of Possession for the recovery of House No. 42, Mensah Wood, East Legon, Accra”.

[3] I note that since the judgment was given, the Defendant has been trying to have it set aside using various methods and procedures under the rules of Court. As reflected in the exhibits attached to the instant application, this Court as presently constituted on May 18, 2018 ruled on one of such applications against the Defendant. Further to the Court’s ruling in May 2018, the Defendant has averred that he issued a writ of summons together with the 2nd Plaintiff herein at the Land Division of the High Court on June 19, 2018. A copy of the Writ of Summons is attached as Exhibit “TAF”. The Plaintiffs are: EDWARD DUNCAN-WILLIAMS & THERESA ABAKAH VERSUS MARGARET DUNCAN-WILLIAMS as Defendant. The reliefs endorsed on the Writ of Summons are as follows:

“a) A declaration that House No. 42, Mensah Wood Road, East Legon, Accra has been validly gifted to the 1st Plaintiff by the 2nd Plaintiff pursuant to the terms of the judgment in Suit No. BMISC 732/2010 and by virtue of which 1st Plaintiff is the beneficial owner of same;

b) An order for Possession, and perpetual injunction restraining the Defendant, her assigns, heirs, agents and workmen howsoever described from having dealing with the property;

c) General damages for trespass;

d) Costs including Solicitor’s fees;

e) Any other order/s that the Honourable Court deems fit”

[4] According to the Defendant who is one of the Plaintiffs in the above referenced suit they also on the same day of June 19, 2018 filed an application for injunction against the Defendant, the 1st Plaintiff herein but the application is yet to be moved. It is also averred that a Conditional Appearance was filed by the Defendant therein through her Counsel who has also filed “a motion to dismiss the suit or set aside writ” on June 28, 2018. The instant application was filed after the issuance of the above writ of summons and the applications mentioned supra.

ii. The Position of the Parties - Case for and Against the Application:

[5] Speaking to the instant application on November 9, 2018, Mr. Adu Gyamfi submitted that the application is to set aside the writ of possession and all subsequent acts in respect of the execution. Counsel relied on the depositions in the attached affidavit and the annexures especially the judgment of July 26, 2012. Counsel submitted that he particularly relies on paragraphs 7, 10, 11 and 12 of the supporting affidavit. Counsel referred to the judgment and submitted that from the reliefs, “there is nowhere that the 1st Plaintiff was adjudged to be the owner of the property, the subject matter of the suit. To that extent Counsel submitted that the 1st Plaintiff was not clothed with authority to ask the Court for a writ of possession with the consent of the 2nd Plaintiff”. Counsel referred to Order 1 Rule 4 and submitted that the 1st Plaintiff needed the authorization of the 2nd Plaintiff to apply for the writ of possession. According to Mr. Adu-Gyamfi the 1st Plaintiff is “liable for contempt of Court because she acted without authority”.

[6] Counsel further referred to Exhibit “TAD” and submitted that the Applicant has complied with the order of the Court and transferred a different land to the 2nd Plaintiff. Mr. Adu Gyamfi referred to paragraphs 11 and 12 of the affidavit in support of the application and submitted that the title in the subject matter of the suit has been transferred to the Applicant by the 2nd Plaintiff.

[7] Counsel’s other submission was that the Court should set aside the writ of possession because it was void as it was obtained without authority and has caused untold hardship to the Applicant. He cited the case of NETWORK COMPUTER SYSTEM LTD v. INTELSAT SALE & MARKETING LTD [2012] 1 SCGLR 218 and REPUBLIC v HIGH COURT, KUMASI; EX PARTE ASARE-ADJEI (ANIN-MENSAH INTERESTED PARTY) [2007-2008] SCGLR 914 to support his submission.

[8] Responding to the arguments of Mr. Adu Gyamfi, Mr. Amofa Agyemang submitted that the Plaintiffs are opposed to the application because it lacks merit and it is a repetition of the earlier application refused by this Court. On the main arguments advanced, Learned Counsel submitted that the 1st Plaintiff had authority to enforce the judgment granted jointly to the Plaintiffs. According to Counsel the Plaintiffs came to Court as joint Plaintiffs and obtained the judgment jointly and therefore any of the Plaintiffs can enforce the judgment. Counsel submitted that due to the age of the 2nd Plaintiff, it was the 1st Plaintiff who prosecuted the case with the support of the 2nd Plaintiff. Counsel referred to Exhibits “5” and “5A” being the statutory declarations signed by the 2nd Plaintiff to the 1st Plaintiff.

[9] Counsel further submitted that the declarations have not been revoked by the 2nd Plaintiff and therefore even if the judgment does not clothe the 1st Plaintiff with any right in the property, on the basis of the statutory declarations the 1st Plaintiff has the right to enforce the judgment.

[10] In responding to the authorities cited by Mr. Adu Gyamfi, Mr. Amofa Agyemang submitted that the original judgment which the Applicant attempts to rationalize described the Defendant as fraudulent and therefore this Court should not grant the Defendant any relief based on the judgment.

[11] Reacting to the alleged gift, Counsel submitted that the said deed has no site plan attached and therefore not worth considering by the Court. Further Mr. Amofa Agyemang said the document was prepared after the fact as it was prepared in December 2017 when the writ of possession was issued in November 2013. Also, Counsel submitted that the said deed of gift does not meet the standard of admissibility in law as it is not stamped and therefore should be ignored by the Court.

[12] Mr. Amofa Agyemang further submitted that even if the Plaintiff has complied with the judgment which is denied, it will not be the basis for setting aside the earlier orders. Further, Counsel submitted that in the same vein even if the 2nd Plaintiff says she has had a change of heart, “she cannot connive with the Defendant to undermine the regularly obtained judgment of the Court” when the judgment is not set aside or appealed against. To that extent Counsel prayed the Court to condemn the 2nd Plaintiff behavior as wrong and unwarranted.

[13] Finally, Counsel submitted that the Defendant does not deserve to have any relief granted in his favour because he has refused to comply with the Court orders and cannot come back to the same Court to ask it to set its earlier orders aside. In the words of Counsel “it lies foul in his mouth because he has disobeyed the Court”. He therefore prayed the Court to dismiss the application.

iii. Reply Submissions & the Call on Plaintiffs’ Counsel to Respond:

[14] I observe that Counsel for the Defendant prayed the Court to reply to the submissions of Plaintiffs’ Counsel and in doing so submitted that the Court in its judgment of July 2012 did not make an order for the recovery of possession and therefore it was wrong in law for same to be granted by the Court. Counsel relied on Order 43 Rule 3 of C.I. 47.

[15] Mr. Amofa Agyemeng in his response to the submission stated that he should be given the opportunity to reply to same because the Defendant in his affidavit did not give any clue or hint that it was the basis for the application. The Court obliged Counsel and so on January 11, 2019 the Court heard submission of Counsel on the issue. Counsel submitted that the Court should not have allowed the submission on the grounds that the Defendant did not mention that the legal basis for the order of the writ of possession was wrong in his 26 paragraph affidavit but Counsel only raised the issue at the tail end of his submission and so same amount to a surprise. Counsel relied on the case of OSEI v. DONKOR [1972] 2 GLR 45 to submit that the Court stated in that case that even if the issue is a legal matter, the Applicant ought to have set same out in order to avoid a surprise and also to enable the opposing party to respond. According to Counsel the idea of a Court not allowing a party to be surprised is a time honoured principle and same ought to be upheld at all times.

[16] Learned Counsel also submitted that the writ of possession was issued by a Court of co-ordinate jurisdiction and so even if it was wrongfully made, the remedy will lie not coming to the another Court of co-ordinate jurisdiction to set same aside. According to Counsel the Defendant should have been appealed the order at the Court of Appeal. Counsel relied on the case of REPUBLIC v. ASOGLI TRADITIONAL COUNCIL AND OTHERS; EX PARTE TOGBE AMORNI V II [1992] 2 GLR 347-367, (a decision of Acquah J as he then was) for the Submission.

[17] Finally, Counsel submitted that the entire property was granted to the Plaintiffs and since ownership goes with possession the Court did no wrong by granting the writ of possession. In any case, according to Mr. Amofa Agyemang the Plaintiffs have already taken possession and so it will be unreasonable to set aside the order when execution has been carried out. In Counsel’s view setting the order aside now will serve no useful purpose. He therefore prayed the Court to dismiss the application.

[18] Mr. Adu Gyamfi was again given the opportunity to respond to the submissions of Mr. Amofa Agyemang. He only reiterated his earlier submissions and stated that a void order can be set aside at any time and because the issue is a point of law, the Applicant did not have to allude to any factual matter. He further cited certain judicial decisions to back his submission.

iv. Analysis & Decision:

[19] Having reviewed the application and the affidavit evidence put before me and having listened to Counsel for the parties, I wish to pose one question in determining the instant application. The question is “Is the instant application procedurally competent”? If the answer is yes the application must fail. If it is competent, then I shall discuss the merits or otherwise of same.

[20] First and foremost, in the opinion of the Court key to this application is who has invoked the Court’s jurisdiction as the Applicant in the instant application and who is Mr. Adu Gyamfi’s client? The question is fundamental because in so far as the record of the case with Suit Number BMISC 732/2010 is concern there are two Plaintiffs and a Defendant as the title to the application itself states. There is also no change or appointment of Solicitor filed and before the Court by the 2nd Plaintiff, Madam Theresa Abaka.

[21] In dealing with the issue, I hereby take a look at the application filed on 24 September 2018 with the accompanying application. It is titled “Motion on Notice for an Order to set aside writ of possession and all subsequent acts with respect to its execution”. The motion itself states:

“PLEASE TAKE NOTICE that Counsel for and behalf of the 2nd Plaintiff/J/Creditor/Applicant herein shall move this Honourable Court for an Order to set aside the Writ of Possession and all subsequent executions by 1st Plaintiff/Respondent upon the grounds contained in the accompanying Affidavit in support”

[22] The Affidavit in support to set aside writ of possession opening paragraph states:

“I, Edward Duncan-Williams of H/No. 42 Mensah Wood Road, East Legon in the Greater Accra Region of the Republic of Ghana, make oath and say as follows:

1. That I am the Defendant/Applicant and the Deponent herein”.

At paragraph 4 it is averred that “That on the 2/7/2010 Plaintiffs/Respondents caused a Writ of Summons with accompanying Statement of Claim to issue against me claiming the reliefs endorsed thereon”. In the entire 26 paragraph affidavit the Defendant describes himself as the Applicant and not the 2nd Plaintiff as the motion paper itself says.

[23] Order 19 which governs applications states under Rule 1 (1) that “Every application in pending proceeding shall be made by a motion”. Rule 1(2) further states that:

(2) Proceedings by which an application is to be made to the Court or a Judge of the Court under any enactment shall be initiated by motion and where an enactment provides that an application shall be made by some other means…

Order 19 Rule 4 also provides that:

4. Every application shall be supported by affidavit deposed to by the applicant or some person duly authorized by the applicant and stating the facts on which the applicant relies, unless any of these Rules provides that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper. [Emphasis Mine].

[24] The Supreme Court discussed the importance of affidavit evidence in the case of KOJACH LTD v. MULTICHOICE GHANA LIMITED [2013-2014] 2 SCGLR 1494 @1501. Anin Yeboah JSC that:

“It must be pointed out that in virtually all interlocutory applications that come before our courts, evidence in support would be in the nature of affidavit evidence as required under Order 19 Rule 4 of the High Court (Civil Procedure) Rules 2004 CI 47. In the normal course of determining interlocutory applications the Court would rely on the affidavits filled together with exhibits…”

[25] From the above it can be discerned that it is an Applicant of a Motion/Application who should depose to the supporting affidavit and/or authorize someone to do so on his/her behalf. To my mind the interpretation of the phrase “every application shall be supported by affidavit deposed to by the applicant or some person duly authorized by the applicant…” admits to no ambiguity and it stands out as the central part of what the rule of procedure requires of an Applicant who files an application for the consideration of the Court.

[26] It is trite learning that the use of “shall” in a text is imperative and not optional. In this case from the application filed the 2nd Plaintiff Theresa Abakah is the Applicant but in the Affidavit in support Edward Duncan-Williams says he is the Applicant. The question therefore is who’s application is before me for consideration? From the above it is clear that the application does not comply with Order 19 of CI 47. In this case there is clear evidence of collusion between the 2 Plaintiff and her son, the Defendant and therefore this Court cannot make any assumption as to who is the applicant without evidence from the parties themselves. I note that the application was filed by Counsel and so there cannot be any excuse for what is obviously an incompetent application.

[27] Bamford-Addo JSC (as she then was) in OPPONG v. ATTORNEY GENERAL AND OTHERS [2000] SCGLR 275 at page 277 stated “Many a time litigants and their counsel have taken the rules of procedure lightly and ignored them altogether as if those rules were made in vain and without purpose…they are meant to …keep the wheels of justice rolling smoothly.” In other words, I understand her Ladyship to say that the rules of Court are not to be taken lightly but are to be obeyed religiously.

[28] In my opinion another procedural ground by which this instant application should fail is that it is a repeat of the earlier application dismissed by this Court in May 2018. The Defendant filed the earlier application titled “Motion on Notice for Stay of Execution and to Set Aside Writ of Possession”. He was represented by Counsel and the application was contested after which the Court gave a written ruling. If indeed the Defendant was not satisfied he should have appealed same. The rules of Court does not give him a carte blanche to be repeating the same application albeit in a different name and by different Counsel.

[29] To my mind the instant application and the arguments canvassed by Counsel are only an afterthought and yet another subtle way by the Defendant to abuse the process of the Court. According to his own application he has a pending writ of summons filed in June 2018 the reliefs of which, to my mind should a court of competent jurisdiction accede to would give him what he wants in this application. To that extent, I take the liberty to state that it is therefore startling and indeed a sheer dissipation of the Court’s time for Counsel to file the instant application three months after the issuance of the new writ of summons. Also, according to the Defendant the application for injunction filed is yet to be heard. To that extent, I have no doubt in my mind that the instant application was an inefficient use of judicial resources, which undermines the integrity of the justice system and threatens the principle of finality that is crucial to the proper administration of justice. It is important also to note that while the Constitution is certainly concerned with the rights of the individual, it is also concerned with preserving the integrity of the judicial system and certainly concerned with the abuse of the process of the Courts as well. To be blunt the instant application is just an abuse of the process of the Court because it is procedurally incompetent and certainly unnecessary. It is therefore

DISMISSED.

[30] The Plaintiffs cost is accessed at GH₵ 5,000.00 and same is awarded against the Defendant, Edward Duncan Williams.