Addae v Mintah (Civil Appeal No. H1/019/2025) [2025] GHACA 19 (15 May 2025)

IN THE COURT OF APPEAL KUMASI – GHANA AD - 2025

Coram

MENSAH-DATSA (MRS.), JA (PRESIDING) ALEX OWUSU OFORI, JA KWAMINA BAIDEN, JA CIVIL APPEAL NO. H1/019/2025 DATED: 15TH MAY, 2025 MADAM AKOSUA ADDAE PLAINTIFF/RESPONDENT

Of Ejisu-ashanti

V OKESEKU MINTAH SUBSTITUTED DEFENDANT/APPELLANT

Judgment

KWAMINA BAIDEN, JA. The parties hereto Plaintiff/Respondent hereinafter referred to as the Respondent and the Defendant/Appellant hereinafter referred to as the Appellant were parties to a suit in the Circuit Court, Kumasi in respect of land connected to the suit giving rise to this appeal.

The Respondent claimed that the Appellant had demolished her structure on the land the subject-matter of the suit between them in the Circuit Court in which the Respondent obtained judgment against the Appellant.

The Plaintiff (Respondent herein) claim against the Defendant (Appellant herein) as follows: i. An Order for the Recovery of Two Hundred and Six Thousand Ghana Cedis (GH¢206,000) with interest from February 2018 until date of final payment. ii. Any other Order (s) the Court may deem fit, just and equitable in the circumstance of the case. It is the case of the Respondent that somewhere in the year 1997 she (Plaintiff) bought a Plot of land designated as Plot 35 Block E Ejisu from the Defendant who subsequently attempted to interfere with her possession, peaceful enjoyment and occupation of the Plot in issue. She therefore commenced an action at the Circuit Court, Kumasi and had judgment in her favour in 2013 against the Appellant. The Respondent, upon the judgment, caused execution to be levied for the recovery of possession of this plot of land by law. The Appellant, thereafter, attempted again to interfere with Respondent’s possession whereupon she cited him for contempt of Court. Whilst the contempt proceedings were pending, Appellant appealed against the Circuit Court decision by filing a Notice of Appeal but appeared not to pursue it. To the utter surprise of the Respondent, the Appellant employed a caterpillar and pulled down her building structure at roofing level and its walls. According to the particulars of damages cost of fence walls destroyed/damaged by the defendant in 2013 cost Ten

Thousand Ghana Cedis (GH¢10,000) whilst the e stimated cost of building structure destroyed/damaged was One Hundred and Ninety- Six Thousand Ghana Cedis totalling GH¢206,000 (Two Hundred and Six Thousand Ghana Cedis). She denied the defence of the Appellant that the structure was for one Kwame Togbe insisting she was bona fide owner of the property Plot 35 Block 'E' Ejisu, a fact known to the Appellant for many years. The Appellant had known this by many means such as a Police station reportage against him before he commenced the action against the non - existing Kwame Togbe in the High Court , an action she considered frivolous and fraudulent. The said Kwame Togbe was only a carpenter of the Respondent engaged to only roof the building. Kwame Togbe worked for a total of 5 (five) days for the fixtures and left in the year 1998 before 2000 when the Appellant obtained a default judgment at the High Court against him. As far back or prior to the year 2000 and thereafter the Appellant had been reported severally to the police at Ejisu for interference in respect of the same Plot 35 Block 'E' Ejisu and he could not take any action and obtain a default judgment against any person when in fact he the Appellant knew that the Respondent had interest in the land in dispute. Kwame Togbe did not have any interest in the land in dispute and was not even available till date . Kwame Togbe stated categorically that the land in dispute belonged to the Respondent. The Respondent still has t he receipt the Appellant issued to her as far back as 1997 completely extinguishing and relinquishing his interest in the land. It is the case of the Respondent that immediately it came to her notice that the Appellant had sued Kwame Togbe and the matter was in Court, she immediately sought to join the

action to protect her interest except that he r application was strangely refused and an interpleader action by her was also refused. She immediately instituted the fresh action at the Circuit Court to prote ct her interest which the Appellant participated in until judgment was delivered in the year 2013. The Appellant subsequently obtained a judgment in the High Court judgment against Kwame Togbe and secret ly executed it after the Respondent had executed her 2013 judgment having taken all the necessary execution processes to recover possession, with notice to the Appellant. The Respondent asserts that the Appellant fraudulently manipulated the judicial system as an aid to his wrongful schemes. Appellant is liable to pay for all the costs of all the properties he destroyed.

The Appellant’s defence to the case was that he had not unlawfully caused damage to nor destroyed the Respondent's property. House number 34 Plot 35 Block 'E' Ejisu was his self-acquired property and he had documents on it. He had been in possession of the said land for a long time and he occupied two additional plots in addition to the disputed plot in the same area or place. One Kwame Togbe trespassed on to this plot of land and started building on it. He commenced an action against him in 2000 at the High Court for declaration of title, recovery of possession and perpetual injunction. In 2013 , the court gave judgment in favour of the Defendant for all the reliefs sought. He recovered and took possession of the plot of land. At the time he obtained judgment the said Kwame had constructed two uncompleted room to window level.

The Respondent was aware of the suit against Kwame Togbe and at a point in time even applied to join it but the application was refused. At the execution stage, the Respondent interpleaded but her application was again rejected. According to the Appellant it was after he had obtained judgment against Kwame Togbe that the Respondent instituted another action against him at the Circuit Court in respect of the same plot of land. The Appellant found it strange that the Respondent obtained judgment against him in respect of the same plot number 35 Block 'E' Ejisu at the Circuit Court. At that time, he was in possession of the plot and the court had decreed an injunction against the Defendant , Kwame Togbe who the Respondent indicated in the Circuit Court case that he was her agent contracted to build a house on the land on her behalf. The Appellant states further that when the said Circuit Court judgment was obtained the Respondent started to build a fence wall around the plot of land without any Writ of Possession Order and recourse to the law. He therefore caused his lawyer to write to warn the Plaintiff to stop her trespass action. The Appellant appealed against the judgment of the Circuit Court and went ahead to obtain a stay of execution order against the execution of the Circuit Court judgment. It is the case of the Appellant that the Respondent forcefully entered the land and destroyed his properties on the land and started constructing fence wall around the plot of land. He therefore took steps to execute the judgment he had obtained from the High Court after going through all the legal processes and securing an order from the supervising High court judge for the provision of Police assistance for the recovery of the property to the knowledge of the Respondent. The Appellant’s position is that he has not caused any damage to the Respondent’s property and is therefore not liable to her claim.

The Appellant was surprised that the Respondent brought the action against him which he considered as a frivolous claim after she had failed on several occasions to cite him for contempt of court. There were two pending contempt proceedings against him in the same High Court, but different court rooms at the time of this suit.

Issues

1. Whether or not the Plaintiff is entitled to recover the claim with interest.

2. Whether or not the Plaintiff bought the Plot of Land known as Plot 35 Block 'E' Ejisu from the Defendant.

3. Whether or not after the Plaintiff's Judgment in her favor, Execution processes were effected to recover possession of Plot 35 Block 'E' Ejisu in dispute.

4. Whether or not the Defendant has severally attempted to interfere with the property in issue and did finally forcefully pulled down all building structures (destroyed properties) by means of fraudulent Judicial Process.

5. Whether or not the High Court Judgment and the subsequent Execution processes were fraudulently procured without Notice to the Plaintiff.

6. Whether or not the Defendant foreknew that the Plot 35 Block 'E' the Plaintiff asserted her ownership contention prior to his default action against Kwame Togbe.

7. Whether or not the enforcement of the Judgment against Kwame Togbe affected the Plaintiff's interest and possessive rights in law.

8. Whether or not the Defendant has filed a Notice of Appeal against the Judgment in Plaintiff's favor.

9. Whether or not the execution process was procured under fraud without recourse to Plaintiff.

10. Whether or not the Defendant has ever been in possession of Plot 35 Block Ejisu.

11. Whether or not Defendant have forcefully entered Plot 35 Block 'E' to destroy Plaintiff's properties.

12. Any other issues the pleadings may raise in the cause of proceedings. Trial Court: The trial Court approached the resolution of the suit by first indicating that it would deal with the two (2) judgments from the Circuit Court in favour of the Respondent against the Appellant and the High Court in favour of the Appellant against Kwame Togbe. The agreed issues set down for determination at the Directions stage were twelve (12). However, based on a review of the case and the reliefs sought by the Plaintiff, the trial Court set down seven (7) issues for trial which it formulated. The issues were: i. Whether or not the Plaintiff obtained judgment in respect of Plot 35 Block 'E' Ejisu against the Defendant at the Circuit Court - Kumasi. ii. Whether or not the judgment has been appealed against and same stayed by the Court of Appeal, Kumasi. iii. Whether or not after the Defendant also obtained Judgment in respect of the same Plot 35 Block 'E' Ejisu – Kumasi against Kwame Togbe. iv. Whether or not Kwame Togbe has any interest or right in Plot 35 Block E, Ejisu – Kumasi for which he can be sued. v. Whether or not th is High Court has jurisdiction to determine the suit herein which is mainly founded on the plaintiff’s Circuit Court judgment which has been stayed by the Court of Appeal, Kumasi for almost ten (10) years now. vi. Whether or not the Defendant upon obtaining Stay of Execution against Plaintiff’s Circuit Court Judgment in respect of Plot 35 Block E, Ejisu, can take steps to execute another judgment in respect of the same property in dispute

with it without notice to the plaintiff who obtained judgment against him in respect of the same property. vii. Whether or not the Plaintiff is entitled to her reliefs as endorsed on the writ of summons and statement of claim.

The trial Court dealt with issues i & ii together (page 308 of ROA) followed by issues iii & iv together (pages 310 & 312 of ROA) and then continued with issues v & vi together (page 314 of ROA) before concluding with issue vii (page 316 of ROA). From M. Wolley v S. Fattal [2013-2014] 2 SCGLR 1070 we note the following:

1. The Court is not tied down to the issues identified and agreed at the Directions stage.

2. If while hearing the case, an issue becomes irrelevant, moot or not germane , the Court has no duty to receive evidence and adjudicate on it.

3. On the other hand, if during the trial a crucial issue which has been left out emanates from either the pleadings or the evidence, the court cannot refuse to address it on grounds that it was not included in the agreed issues. In so far as the issues set down by the trial Court for determination, different from the agreed issues, were relevant, it could not be faulted. We however, ob served that it left out the issue of fraud which it dealt with extensively in the judgment. Issues 4, 5 and 9 of the agreed issues were about fraud. The trial Court found that the judgment obtained by the Appellant in the High Court was obtained by fraud and declared it as well as all other processes based on it including the execution null and void. It granted the Respondent’s claim against the Appellant involving damages, interest and costs. Some of the exhibits tendered in the suit are:

1. Receipt of Purchase from Appellant to Respondent - 5th April 1993

2. Circuit Court Judgment – 12th August, 2013 Exhibit D

3. Notice of Appeal by Appellant – 20/8/13

4. Execution processes of Respondent – Exhibit E

5. High Court Judgment – 18th October, 2013 Exhibit 4

6. Entry of Judgment against Kwame Togbe – dated 1/11/13 Exhibit 5

7. Order for writ of possession 10/12/21

8. Writ of possession – 14/11/16

9. Supervising High Court Judge’s letter to Police Commander – 9/2/2016. The Appellant, dissatisfied with the judgement, appealed on the grounds set out below: