Kittoe vrs Lewis (H1/114/05) [2006] GHACA 2 (15 December 2006);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
A C C R A
CORAM - NANA OWUSU-ANSAH, JA [PRESIDING]
DOTSE, JA [MEMBER]
APALOO, JA [MEMBER]
H1/114/05
15TH DECEMBER, 2006
NAANA KITTOE … PLAINTIFF/APPELLANT
V E R S U S
DONALD W. LEWIS … DEFENDANT/RESPONDENT
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J U D G M E N T
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DOTSE, JA - This appeal admits of no complexities whatsoever. The Plaintiff/Appellant , hereafter referred to as the Plaintiff and the Defendant/Respondent, hereafter referred to as the Defendant who are both resident in the U.S. married under the Ordinance on 21st August, 1999.
During the subsistence of the marriage the parties acquired a plot of land in their joint names and built a house on it.
The Plaintiff considering her position as a wife to the Defendant and interest and title to the said property threatened by the conduct of the Defendant initiated action in the High Court, Accra claiming the following reliefs:
1. A declaration that by virtue of a Land Title Certificate No. GA 17166
dated 7th November, 2001 in the joint names of the parties herein, the
Plaintiff is a Co-owner of the property situate at Papao, West Legon
Accra which property is the subject matter of these proceedings.
2. A further declaration that by virtue of the Plaintiffs said Co-ownership
of the property and her direct financial contributions made in the property,
she is entitled to have access into and out of the building.
3. An order of Perpetual Injunction restraining the defendant, his agents and
assigns from interfering with the Plaintiffs rights and interest in the property.
4. Any other order or orders that the court may deem fit to make.
After series of Interlocutory applications, and just after the Defendant had filed his Defence after setting a default judgment aside, he embarked upon a process which has led to the instant appeal.
This process was the filing by the Defendant on 7-6-2004 of a Motion on Notice for Interim Preservation of Property, pursuant to order 30 rules 5 & 6 of LN 140 A, now repealed.
The thrust of the application was for an order of interim preservation of property, the subject matter of this suit and for the appointment of the Chief Registrar as custodian until the final determination of the suit.
Even though this application was vehemently opposed by the Plaintiff, the High court Accra presided over by Dzakpasu J, in a terse Ruling delivered on 23rd day of July, 2004 stated as follows:-
“By Court:- R u l i n g
Application granted. Let the party be preserved as prayed.
The Chief Registrar or his nominee shall be the custodian of the
party until otherwise directed.”
By this ruling, it was meant that, the Plaintiff, who before this application resided in the house, the subject matter of dispute could no longer reside in the said house.
Aggrieved with and dissatisfied with the decision and or ruling of the High Court, Accra, the Plaintiff on the 29th day of July, 2004 filed a Notice of appeal against the said Ruling with the following as the grounds of appeal.
GROUNDS OF APPEAL
1. The ruling cannot be supported by the evidence and the submissions made
by both the Plaintiff/Appellant and Defendant/Respondent at the hearing.
2. The learned Judge failed to ascertain the veracity of the averments by the
Defendant/Respondent that the house was intended to be a Commercial
Guest House.
3. The learned Judge also failed to take into consideration the evidence before
the court that the Plaintiff/Appellant is a Co-owner of the property as per
the admission of the Defendant/Respondent and to that extent must not be
excluded from any decision affecting the property.
4. The learned Judge also did not consider the Defendant’s/Respondent’s
admission in paragraph 7 of the Statement of Defence filed on 25th
February 2004 that he fully recognizes the Plaintiff’s/Appellant’s interest
in the property and had earlier wanted to buy her out for US$50,000 (Fifty thousand
U.S. Dollars) which Plaintiff refused.
5. That learned Judge erred by ruling that the Plaintiff/Appellant should vacate the
house she is occupying presently and had it sealed and controlled by the
Registrar of the High Court or any official appointed by him without considering
the hardship such an order will visit on the Plaintiff/appellant.
6. The court in granting the motion, also did not make any alternative order for the
accommodation of the Plaintiff/Appellant presently and to the extent that she
would be excluded from benefiting from the property which she contributed to
build which property was to be used by the parties as a matrimonial home.
7. The court erroneously accepted the claim of Defendant/Respondent that the
house was to be used for a Commercial Guest House when there is no
evidence of that intention by the Co-owners before the court.
8. The court also failed to take into account the denial by the Plaintiff/Appellant that
the property is not being put into ruins and that she is only living there alone with
security officers for her safety and went ahead ostensibly to give his ruling based
on false averments without any verification.
9. In totality, the court failed to consider the evidence of the Plaintiff/Appellant
adequately thus leading to a miscarriage of Justice and tilting the balance in
favour of the Defendant/Respondent.
10. That the ruling amounts to a judgment by the learned Judge on the matter before
the court for the determination that the Plaintiff is a Co-owner who must be given
access to the property, without taking of any evidence.
11. There is no basis either in law or equity for such an order which is harsh and
excessive and is not supportable in the circumstances on the evidence before
the court.
As was stated earlier, the facts of this case are quite simple. However, learned
counsel for the Plaintiff is requesting from this court, the following reliefs as per paragraph 3 of the Notice of Appeal on page 72 of the record of appeal:-
(a) That the whole ruling be set aside or in the alternative the
Defendant/Respondent be made to provide an alternative
accommodation for the Plaintiff
or
(b) That the court must also make an order for the determination of the
contribution of the parties for the purpose of a buy out by either party.
We consider the above reliefs except part one of (a) supra as an abnormality
and therefore reject any such unlawful and illegal invitation to us. The crux of this appeal is the grant of the Interlocutory Application by the trial court, and nothing more.
We have also observed that, learned counsel for the Defendant also sought to introduce the results of a matrimonial proceedings in the U.S. courts between the parties into this appeal. We reject this invitation also, but will comment briefly on it later.
This court has in a number of Judgments deprecated and frowned upon the practice of solicitors who file many grounds of appeal only to abandon them at the reception of arguments.
Sometimes, these grounds of appeal are filed in clear breach of the Court of Appeal Rules, rule 8 of C.1. 19.
In the instant case, eleven (11) grounds of appeal had been filed, only for counsel for the Plaintiff to abandon six (6) and accordingly argued five(5) before this court.
We note that, the counsel who filed the original grounds of appeal for the Plaintiff is not the same counsel for the Plaintiff in this court.
We will therefore urge counsel in all appeal cases to be guided by the observations made by this court in the following cases. It is the hope of this court that learned counsel would in due course desist from this unhealthy practice and comply with the provisions of the Court of Appeal Rules 1997, C.I. 19 as amended by C.I. 21.
In suit No. C.A. 81/177/04 intitutled,
KWAKU AHAMAH
VRS.
PANDIT ADU - CORAM, Adinyira J.A as she then was, Akamba and Dotse JJA,
dated 20th December, 2004, the court unanimously held as follows:-
“What Learned Counsel for Appellant in all Appeal
cases must take note of is that, grounds of appeal must
be formulated to comply with Rules 8, (4)(5) and (6) of C.I. 19 as amended by C.I. 21.
This procedure will ensure that counsel set out clearly
and under distinct heads, their grounds of appeal. By this procedure arguments would be specifically referable to the grounds of appeal and vague and inancise grounds of appeal would therefore be clearly seen as inapplicable.”
The same point was reiterated by the Court of appeal in the unreported case of
DASEBRE NANA OSEI BONSU II … Plaintiff/Appellant
(a.k.a. ST OSWALD GYIMAH KESSIE)
V E R S U S
AKWASI MENSAH and 3 Others … Defendants/Respondents
dated 13th July, 2006.
It is therefore not surprising that Learned Counsel for the Plaintiff who conducted this Appeal before us, confined himself to grounds 1, 2, 5, 6 and 8 referred to supra.
We have apprised ourselves with the submissions of both counsel in their statements of case filed before us.
In considering the grounds of appeal vis-à-vis the submissions made before us, this court is of the view that the entire five argued grounds of appeal can be re-formulated to read thus:-
“Did the trial court follow laid down and acceptable legal
principles necessary for a grant of an interim preservation
order based on the affidavit evidence on record?
We believe that, in considering whether or not to grant applications of the nature that the Defendant initiated, it is proper for the court at that stage to look at the pleadings in addition to the affidavit evidence.
It is quite clear that, the main thrust of the Defendants affidavit in support of the application for interim preservation as appears on page 43 of the appeal record is two fold.
1. That he single handedly built the house with the intention
of using it as a commercial guest house.
2. That the plaintiff had turned the house into a communal residence
for herself and members of her family, friends and all sorts of
characters who are misusing the house.
For the above reasons the Defendant prayed the trial court that the house be vacated and sealed up.
Even though the said application was fiercely resisted, the court granted it without assigning any reasons.
We have taken a look at the pleadings in this case, especially the Defence on page 40 of the record of appeal.
Whilst the Defendant averred in paragraph 3 of the Defence that he single handedly put up the said house without any contributions whatsoever from the Plaintiff, the same Defendant stated in paragraph 7 of the Defence as follows:-
“The Defendant denies paragraph 18 of the Statement of Claim
and says that he fully recognizes the Plaintiff’s interest in the
property and has indeed offered the Plaintiff the very generous
compensation of $50,000 U.S which the Plaintiff has
unreasonably rejected.”
This court is of the opinion that if the learned trial Judge had considered the inconsistency of the Defendant’s Claims in his Defence he would probably have come to a different conclusion.
Secondly, it would appear therefore that the Defendant’s averments in paragraph 7 of the Defence supports the Plaintiff’s contention that the house is jointly owned by her and the Defendant.
Thus, if the Plaintiff has interest in the disputed house as a result of which she is in the house, upon what basis did the court order her out for the house to be sealed?
We also observe that the courts have a very wide discretion in the grant of applications brought under Order 50 rule 5 of LN 140A.
In all such cases, the discretion is to be exercised fairly and justly.
We also take note of the principles enunciated by the courts in the following cases.
1. Seatec Ltd.
Vrs.
Pentoon Hook Farms Ltd. [1984 – 86] 2 GLR 449
2. Armah
Vrs.
Lands Commission Accra & Ors. [1979] GLR 79
The following principles are prevalent in the cases referred to supra.
These are:-
1. In Interlocutory applications such as was put before the trial
court, what the court was required to do at that stage was not
to determine the claims on the merits of the case. The court
was only required to find out if on the basis of the affidavit
evidence and the pleadings it would be just and convenient to
grant the application.
2. Whether upon the basis of the affidavits and pleadings the court
found it just and convenient that the subject matter of the dispute
would suffer irreparable damage and needed to be preserved
until the final determination of the suit.
Considering the decision of the trial court in line with the above principles, this court is of the firm view that the disputed house was in no danger of suffering irreparable damage that needed to be preserved.
The Plaintiff had been admitted by the Defendant to have an interest in the property and this alone should have guided the trial Judge to the conclusion that the property would be protected and well kept by the Plaintiff.
It is note worthy that, no specific allegations had been made against the Plaintiff by the Defendant detailing instances of damage and or injury caused to the property in dispute.
The fact is that, from the record of appeal, the Plaintiff is a Ghanaian and it is normal for her to live with relatives in the house or have visitors. It is incomprehensible for that to have been made an issue as the basis of the Plaintiffs acts of damage to the property.
We could have ended our decision on this point, but learned counsel for the Defendant in his submissions has introduced a lot of matrimonial issues and the law applicable to matrimonial causes into the case.
What should be noted is that, the instant suit is not a matrimonial suit, the fact that the parties were at the material time husband and wife is immaterial.
Secondly, the attempt by learned counsel for the Defendant to introduce the results of a divorce suit that was contested and determined in the courts is very much regrettable.
However, even if the case of Mensah Vrs. Mensah [1998-99] SCCLR 350 is applicable, it rather strengthens the Plaintiffs case as a joint owner of the property who cannot be thrown out of the house.
We believe that it will be in the interest of Defendant not to treat this suit as a matrimonial dispute.
This is because there are plethora of authorities which all combine to give advantage to the Plaintiff even if she were not claiming as a joint owner.
Cases which immediately come to mind are the following:-
- Ribeiro Vrs. Ribeiro Ho.2 [1989-90] 2 GLR 130 S.C.
- Sophia Monterah Vrs. Benedict Monterah
Unreported decision of the Court of appeal, dated 28th May, 2004
Suit No. H1/106/2004 [CORAM – Farkye J.A., Presiding,
Amonoo-Monney and Dotse [J.J.A.].
However since this is not a matrimonial dispute perse, these cases will not be considered for now.
In the end, there will therefore be judgment for the Plaintiff and the appeal therefore succeeds.
The Ruling of the High Court, Accra, dated 23rd July, 2004 is accordingly set aside. This means that the Plaintiff is entitled to reside in the house, the subject matter of this dispute
The substantive case shall revert back to the High Court for the pleadings to be completed and trial commenced before a differently constituted High Court.
In view of the special peculiarities of this case, it is directed that the case be expeditiously dealt with.
J. DOTSE
JUSTICE OF APPEAL
I agree. R.C. OWUSU
JUSTICE OF APPEAL
I also agree. R.K. APALOO
JUSTICE OF APPEAL
MR. Y. KULENDI FOR THE PLAINTIFF/APPELLANT
MR. OSEI NYAME FOR DEFENDANT/RESPONDENT
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