ARYEETEY VRS. ARYEETEY (LD/0051/2023) [2023] GHAHC 586 (3 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON FRIDAY THE 3RD DAY OF NOVEMBER 2023 BEFORE HER LADYSHIP JUSTICE NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. LD/0051/2023 NII ARMAH ARYEETEY - PLAINTIFF/RESPONDENT VRS DOROTHY DEDE ARYEETEY - DEFENDANT/APPLICANT R U L I N G BACKGROUND The Plaintiff instituted the present action against the Defendant, his niece, by a Writ and Statement of Claim filed on 3rd November 2022. In his Statement of Claim, the Plaintiff stated that he is a Ghanaian national ordinarily resident in the United Kingdom. By his action, the Plaintiff seeks inter alia a declaration that he is co-owner of the subject property, a house owned by his late father situated in Adabraka – Accra, recovery of possession and perpetual injunction to restrain the Defendant, her agents and all those claiming through her from interfering with the property. In her Statement of Defence filed on 13th December 2022, the Defendant admitted that the Plaintiff is co-owner of one-fourth share of the subject property. The Defendant however denied that the Plaintiff is entitled to any further reliefs. SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 1 of 11 The Court set down issues for determination and the Parties filed Witness Statements. The case was at Case Management Conference stage when the Defendant applied for security for costs, pursuant to Order 24 Rule 1(1)(a) of C. I. 47. DEFENDANT/APPLICANT’S CASE In an affidavit in support of the application for security for costs, the Defendant stated that as the Plaintiff is ordinarily resident in the United Kingdom (U. K.) it is her fear that it will be impossible for her to “execute any judgment/ order or claim against the Plaintiff should [she] win any financial award against the Plaintiff in the suit”. The Defendant prayed for an Order of the Court directed at the Plaintiff to pay not less than Fifty Thousand Cedis (GHS 50,000) into Court as security for costs, taking into consideration the processes filed so far. PLAINTIFF/RESPONDENT’S OPPOSITION An affidavit in opposition to the application was filed by the Plaintiff on 3rd August 2023 and it was deposed to by one Victor Kobblah Tutu who stated that he is the lawful Attorney of the Plaintiff. The Plaintiff stated per his lawful Attorney that the Defendant has admitted in her Statement of Defence that the Plaintiff is entitled to a share of the subject property. It is the further case of the Plaintiff as stated in a supplementary affidavit in opposition filed on 17th October 2023 that he has instituted another action against the Defendant herein, entitled Nii Armah Aryeetey vrs Dorothy Dede Aryeetey (Suit No. LD/0050/2023) before another High Court (Land Division 4) in respect of his mother’s property. The Plaintiff stated that in this suit as well, the Defendant herein has admitted that the Plaintiff is entitled to one-third share of the said property. The supplementary affidavit in opposition was deposed to by the same Victor Kobblah Tutu. For the above-stated reasons, the Plaintiff stated that the present application should be dismissed as unmeritorious, for it cannot be said that the Plaintiff does not have property within the jurisdiction of the Court to enable the Defendant levy execution at the end of the trial if the need arises. SUMMARY OF ARGUMENTS IN COURT SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 2 of 11 At the hearing of the application in Court, Counsel for the Defendant argued that the Power of Attorney attached to the Plaintiff’s affidavit in opposition and marked Exhibit 1, which allegedly authorizes Victor Koblah Tutu to depose to the said affidavit is not stamped as required by law and therefore the said affidavit in opposition "cannot be used for anything in court". Counsel for the Defendant however noted that the Power of Authority attached to the supplementary affidavit in opposition and marked as Exhibit 1A is stamped, but submitted that the defect in Exhibit 1 which was not stamped could not be cured by Exhibit 1A which is stamped. Counsel for the Defendant further argued that although the Defendant has admitted that the Plaintiff is co-owner of the property in dispute, “the estate has not yet been realized and so the Plaintiff’s share can never be attached in execution of any debt or judgment.” Counsel for the Plaintiff on the other hand argued that in the event that the affidavit in opposition cannot be considered, the Court should take judicial notice of a Judgment on admission it has given which declares the Plaintiff co-owner of the subject property on the basis of the Defendant’s admission to this in the Statement of Defence. ISSUE FOR DETERMINATION Whether or not the present application should be granted. APPLICABLE LAW The present application is filed pursuant to Order 24 Rule 1(1)(a) of the High Court (Civil Procedure) Rules 2004 C. I. 47 which provides as follows: (1) Where, on the application of a defendant, it appears to the Court that (a) the plaintiff is ordinarily resident outside Ghana; the Court may, having regard to all the circumstances of the case, order the plaintiff to give such security for the defendant’s costs of the proceedings as it thinks just. (Emphasis added) Discretionary relief. SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 3 of 11 Per the applicable Rules of Court reproduced above, even though the Plaintiff admits in his Statement of Claim that he is ordinarily resident in the U. K. the Court has a discretion to determine whether or not an application for security for costs should be granted, having regard to all the circumstances of the case. Purpose of an order for security for costs. Per Order 24 of C. I. 47, an Order for security for costs is directed at the Plaintiff to provide security for the “costs of the proceedings”. Amount to be provided as security for costs. It is such security, amount or sum as the Court considers just, having regard to all the circumstances of the case. ANALYSIS AND OPINION In view of the law on the matter stated above, in determining whether or not to grant the instant application, the Court will consider whether or not the purpose for which the Defendant seeks the Order is in accord with the Rules of Court, what amount may be just and whether or not having regard to all the circumstances of the case the application should be granted. Purpose of the order sought by the present application In the instant case, it is stated in the affidavit in support of her application that the Defendant seeks an order for security for costs to allay her fear or provide assurance to her that she will be able to “execute any judgment/ order or claim against the Plaintiff should [she] win any financial award against the Plaintiff in the suit”. As already stated, per Order 24 of C. I. 47 an Order for security for costs is directed at the Plaintiff to provide security for the costs of the proceedings; put differently, the costs of the suit or judgment for costs. SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 4 of 11 In the often-cited case of Porzelack KG vs. Porzelack (UK) Ltd (1987)1 ALL ER 1074 at 1076, the purpose of an order to provide security for cost was explained as follows: “The purpose of ordering security for costs against a plaintiff ordinarily resident outside the jurisdiction is to ensure that a successful defendant will have a fund available within the jurisdiction of this court against which it can enforce the judgment for costs.” (Emphasis added) In the case of Afam Concept v Soniag Co Ltd, [Unreported; Civil Appeal No. H1/122/2017; 26 October 2017] the Court of Appeal considering Order 24 Rule 1(a) of C. I. 47, cited the case of Porzelack KG vs. Porzelack (UK) Ltd (supra) with approval and stated that the purpose of an order for security for cost is to ensure that: “an unsuccessful non-resident plaintiff would not leave the defendant with his costs of suit unsatisfied, and that there would be funds available within the jurisdiction to meet such costs”. (Emphasis added) The Court therefore notes that the present application cannot be considered for the purpose of providing security for executing the judgment as the Defendant seeks by the present application. The Order may however be made to ensure that “order” as to costs which may be made or costs awarded in favour of the Defendant which may be regarded as “financial award” as used by the Defendant, may be satisfied. Amount sought as security for costs Order 24 of C. I. 47 provides that the security for costs to be provided should be such as the Court considers just having regard to the circumstances of the case. The Defendant by the present application seeks an Order directed at the Plaintiff to pay not less than GHS 50,000 as security for costs. In considering whether or not this amount may be just having regard to the circumstances of the case, the Court considered that in an application for security for costs made pursuant to Order 65 of LN 140A, the Rules of Court at the time which are similar to Order 24 Rule 1 of C. I. 47, the Court of Appeal held per Wood JA (as she then SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 5 of 11 was) in the case of Gatco Chermpharam v. Pharmaderm (GH) Ltd [1999-2000] 2 GLR 262 as follows: “… In terms of Order 65 of LN 140A, the only matters for the trial judge’s consideration were the costs which the Defendant would possibly incur in having to litigate over his counterclaim…” (Emphasis added) In Afam Concept v. Soniag Co Ltd (supra), the Court of Appeal held per Twumasi J. A. that: “the amount of security must be such sum as was just, having regard to all the circumstances of the case but not on a full indemnity basis. (Emphasis added) The Court of Appeal explained that the amount must relate to the estimated time of the proceeding, nature of documents filed, Court charges, witnesses to be called, the complexity of the case and the lawyer’s costs. Considering the pleadings filed in the present case, the issues raised for determination, the nature of the documents filed, the Witness Statements filed and for that matter the witnesses the parties intend to call during the trial as stated in the pre-trial check list filed by counsel for both parties, the estimated time of the proceedings, the Court is of the considered opinion that an amount of Twenty Thousand Ghana Cedis (GH¢ 20,000.00) would be just as security for costs, as the amount is not intended to be a full indemnity. Whether or not to grant the application The real issue for determination in the instant application therefore resolves into whether or not the Plaintiff should be ordered to provide security for costs of Twenty Thousand Ghana Cedis (GH¢ 20,000.00). SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 6 of 11 In the case of Redondo v Chaytor and Anor (1879) 4 Q. B. D. 453 it was held per Thesiger LJ that “…if a person is permanently resident without the jurisdiction but has property within it, no security will be required…”. The Plaintiff’s opposition to the present application is to the effect that the Defendant has admitted that he has property within the jurisdiction and the present application is thus without basis. Counsel for Defendant urged the Court to disregard the affidavit in opposition for the reason that the Power of Attorney attached to the affidavit in opposition is not stamped, even though the same Power of Attorney attached to the supplementary affidavit in opposition is stamped. Admissibility of Affidavits in Opposition The position of the law on whether or not a Court can consider a document that is not stamped in evidence is contained in the recent, unanimous decision of the Supreme Court delivered on 22nd March 2023, in the case of Nii Aflah vrs Benjamin Kwaku Boateng (Unreported, Civil Motion No J4/80/2022). The Apex Court considered that section 32 (1) and (2) of the Stamp Duty Act, 2005 (Act 689), provides as follows: (1) Where an instrument chargeable with a duty is produced as evidence (a) in a court in a civil matter; or (b) before an arbitration or referee, the judge, arbitrator or referee, shall take notice of an omission or insufficiency of the stamp on the instrument. (Emphasis added) (2) If the instrument is one which may legally be stamped after its execution, it may, on payment of the amount of the unpaid duty to the registrar of the Court or to the arbitrator or referee, and the penalty payable on stamping that instrument, be received in evidence subject to just exceptions on other grounds. (Emphasis added) SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 7 of 11 The Supreme Court in Nii Aflah vrs Benjamin Kwaku Boateng (supra), also reviewed its previous decisions in Antie & Adjuwuah vrs Ogbo [2005-2006] SCGLR 494 at page 506 and Amonoo and Others v Dee [1975] 1 GLR 305 at page 35 on admissibility in evidence of documents that have not been stamped and held that “the law on admissibility or otherwise of unstamped documents or instruments as enunciated in the cases of Lizori Ltd vrs Boye & School of Domestic Science and Catering [2013-2014] 2 SCGLR 889 and Woodhouse Ltd vrs Airtel Ghana Ltd [2017-2018] SCGLR 615 are more accurate precedents of the proper construction of section 32 of the Stamp Duty Act, 2005 (Act 689)” The Supreme Court held that Act 689 “confers a right on, and for that matter, an option to a party seeking to tender an unstamped or improperly stamped document or instrument in evidence, to first pay the duty and applicable penalty to the Registrar of the Court, and thereafter tender the document or instrument in evidence.” In view of the law on the matter, this Court considers that the Power of Attorney relied on by the Plaintiff as Exhibit 1 is not stamped and same is inadmissible. However, the same Power of Attorney is attached as Exhibit 1A and it can be seen on the face of the document that the Plaintiff has paid the duty on the instrument sought to be relied on. The Court is thus of the considered opinion that to the extent that the Power of Attorney in Exhibit 1 and Exhibit 1A are the same and in respect of the same person, to hold that Victor Kobblah Tutu has no authority to depose to the affidavit in opposition when he is entitled by law in the face of Exhibit 1A will be to emphasize form over substance and an exercise in arid technicality. In any case, as submitted by Counsel for the Plaintiff, even if the affidavit in opposition is not considered for the reason adduced by Counsel for the Defendant, the Court is entitled to consider the circumstances of each case in determining whether or not it would be just to grant an application for security for costs. SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 8 of 11 Circumstances of the case A circumstance of this case relevant to the present application and worthy of consideration is the fact that before the hearing of the application for security for costs, Counsel for Plaintiff applied for judgment on admission on the basis of the Defendant’s admission in the Statement of Defence that the Plaintiff is co-owner of the subject property. In accordance with the Rules of Court and in the absence of an opposition by Counsel for the Defendant, the application was granted and the Plaintiff was declared co-owner of the subject property. The case of the Plaintiff that he has property within the jurisdiction will thus be made even if the affidavits in opposition filed were not considered. Whilst Counsel for the Defendant does not deny all of the above, it is essentially the case of the Defendant as argued by her Counsel in Court that the Plaintiff’s interest in the above stated properties are future interests as the estate has not been realized. Future interest The Court notes that whether or not the Defendant will be entitled to an order to recover costs of the proceedings from the Plaintiff is a matter to be determined in the future, which order may or may not be made at all. It is curious that the Defendant who prays for security for an order that may or may not be made argues in another breadth that the ownership of property of the Plaintiff in the jurisdiction should not be considered for the reason that the interest of the Plaintiff in the said properties is a future interest, even though in the case of the Plaintiff, the interest and ownership of the property is a surer thing in the future. The Court also considered that in the case of Afam Concept v Soniag Co Ltd, (supra) the Court of Appeal considering Order 24 Rule 1(a) of C. I. 47, cited the case of Porzelack KG vs. Porzelack (UK) Ltd (supra) with approval and stated that the purpose of an order for security for cost is to ensure that: SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 9 of 11 “an unsuccessful non-resident plaintiff would not leave the defendant with his costs of suit unsatisfied, and that there would be funds available within the jurisdiction to meet such costs”. (Emphasis added) The requirement of the law as stated in the above - cited authority is not that there should be funds available, but that “there would be funds available…” For all of the above reasons, this Court is of the considered opinion that in the circumstances of this case, the admission by the Defendant that the Plaintiff has properties within the jurisdiction is sufficient for the Court to arrive at the conclusion that there “would be” funds available within the jurisdiction to meet the costs of the proceedings or orders as to costs in favour of the Defendant of about Twenty Thousand Cedis (GHS 20,000) in the event that such orders are made. CONCLUSION After consideration of the processes filed in this case, the proceedings before the Court, the affidavit in support of the application, the affidavit in opposition to the application and attached exhibits, the submissions by Counsel for the parties, the Court finds that there is no basis for an Order for security for costs to be made in the circumstances of this case. The application is refused. No order as to costs. [SGD] NABEELA NAEEMA WAHAB (MS.) J. (JUSTICE OF THE HIGH COURT) COUNSEL: SAMUEL KISSIEDU HOLDING BRIEF OF E. A. VORDOAGU - PRESENT SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 10 of FOR THE PLAINTIFF STANLEY BOYE-QUAYE FOR THE DEFENDANT - PRESENT CASES REFERRED TO: 1. 2. 3. 4. Porzelack KG vs. Porzelack (UK) Ltd (1987)1 ALL ER 1074 at 1076 Afam Concept v Soniag Co Ltd, [Unreported; Civil Appeal No. H1/122/2017; 26 October 2017] Redondo v Chaytor and Anor (1879) 4 Q. B. D. 453 Gatco Chermpharam v. Pharmaderm (GH) Ltd [1999-2000] 2 GLR 262 5. Amonoo and Others v Dee [1975] 1 GLR 305 at page 35 6. Antie & Adjuwuah vrs Ogbo [2005-2006] SCGLR 494 7. Lizori Ltd vrs Boye & School of Domestic Science and Catering [2013-2014] 2 SCGLR 8. Woodhouse Ltd vrs Airtel Ghana Ltd [2017-2018] SCGLR 615 9. Nii Aflah vrs Benjamin Kwaku Boateng (Unreported, Civil Motion No. J4/80/2022, 22nd March 2023, SC] SUIT NO: LD/0051/2023 – Nii Armah Aryeetey vrs Dorothy Dede Aryeetey Page 11 of 11