Republic Vrs. Aba Ex Parte Aba (C13/18/2024) [2023] GHAHC 662 (6 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO. C1/57/2023 DATE: 10TH NOV., 2023 NELSON KOFI AKORLI SUING AS THE HEAD OF AKORLI FAMILY PLAINTIFF VRS. 1. TSATSU SABLAH 2. UNILEVER GHANA LIMITED DEFENDANTS 3. KWARITAN GHANA LIMITED Parties – Plaintiff – Present Defendants – Absent Lawyers: Emile Atsu Agbakpe for the Plaintiff/Respondent – Present. Isaac Eburam Lartey holding brief for Eric Mensah for the 2nd Defendant/Applicant – present. Cornelius Willows for the 1st and 3rd Defendants/Applicants – present. RULING The plaintiff sued these defendants and per his writ of summons and claimed against them as follows: a) Declaration that the lease between plaintiff father and UAC is determined or has lapsed. b) An order directed at the 1st defendant to abate his nuisance of harassing plaintiff tenants on the land. c) General damages for nuisance. d) Perpetual injunction on the defendants to stop trespassing and causing nuisance on the plaintiff’s land. e) Cost. From the narrations from the writ of sermon plaintiff says his family owns the piece of land in contention and described the land in paragraph 5 of the statement of claim. Plaintiff claims that his late father acquired part of the land which originally belonged to the Hayi family after it was sold at a public auction sometime in 1970 and the other part being a family inheritance. He continued that his father leased the disputed property to the original lessee United African Company (UAC). UAC did transfer its unexpired leasehold interest to Unilever Ghana Limited and others who traded their wares on the demised land. That the lease has long determine. According to plaintiff the lessee, 2nd defendant have vacated the land and the plaintiff’s family has assumed their reversionary interest over the and they have put new tenants in occupation on the land. Plaintiff in his statement of claim averred that, 1st defendant who claiming to be acting for and on behalf of the 2nd and 3rd defendants has been harassing the plaintiff’s tenants on the land. It is plaintiff contention that 2nd & 3rd defendants are not privies of estate of contract concerning the lease to the UAC as stated. Plaintiff says he does not know 3rd defendant nor the interest he purports to holding in the disputed land; the 1st defendant has been embarrassing plaintiff’s tenants on the land hence the present action. The defendants upon service engaged deferent lawyers. Counsel for 2nd defendant after entry of appearance filed the instant MOTION ON NOTICE TO STRICK OUT THE STATEMENT OF CLAIM OF THE PLAINTIFF PURSUANT TO ORDER 11 RULE 18(1)(a) of CI 47, HIGH COURT CIVIL PROCEDURE RULES, 2004, for disclosing no reasonable cause of action against the 2nd defendant herein. In his submissions counsel for 2nd defendant emphasized that having recourse to the statement of claim filed by the plaintiff, it is clear that their reliefs before the court 2nd defendant is in no position to grant the plaintiff. He said relief (a) is a declaratory relief that the lease between the plaintiff father and UAC is determined which has nothing to do with Unilever Ghana Limited. Relief (b & c) is an order directed at the 1st defendant to abate his nuisance on the land which also has nothing to do with 2nd defendant. He continued strongly and forcefully that the claim does not disclose that 2nd defendant is committing any nuisance on the property after they vacated the land. Counsel for 2nd defendant applicant continued that the statement of claim specifically paragraph 9 states that the lease between the lessor and lessee has lapsed and the sub- lease (2nd defendant) has vacated the land and plaintiff have taken possession of the land. There is no allegation of trespass nor nuisance after they vacated the property. He submitted that at best the dispute can be between the 1st and 3rd defendants but not 2nd defendant. He submitted that since the writ does not disclose any cause of action against the 2nd defendant the court ought to strike out the writ against the 2nd defendant. Counsel relied on the case of Letang V. Cooper (1965) 1 QB 232 in support of his case. In response to the above, counsel for plaintiff opposed the application. He said contrary to the submissions made for and on behalf of 2nd defendant the statement of claim discloses cause of action and defendants have questions to answer. Counsel for plaintiff expressed that the allegations were made against 2nd defendant and if the same is proven plaintiff will be entitled to relief against 2nd defendant. He explained that plaintiff’s (paragraphs 7 & 8) of the statement of claim, the property was leased to UAC who transferred interest to 2nd defendant. According to him 2nd defendant has vacated the property but has employed Sablah 1st defendant to be harassing the plaintiff’s tenants. He pressed further that 1st defendant is their agent and if the allegation is proven the reliefs plaintiff is seeking will be granted. Counsel for plaintiff cited the case of Mensah V. Intercontinental Bank (2010) 28 MLRG 180 SC in support of his case in defining what constitute a cause of action. As is observable from the submission made from both sides of the divide the issue that stand out for consideration is whether or not the plaintiff’s pleadings discloses any cause of action against the 2nd defendant herein. The Supreme Court decision in the case of Mensah V. Intercontinental Bank (supra) cited by counsel for plaintiff respondent gives an apt definition and explains satisfactorily what gives a party a right to seek redress from another which constitute cause of action. SO WHAT IS A CAUSE OF ACTON A cause of action is the technical legal name for a set of facts which gives rise to a claim enforceable in court. It is a legally required wrong that creates the right to sue. Each cause of action consist of points the plaintiff must prove and all of those elements must be satisfied in order to take court action. To my mind the plaintiff in the present suit must establish a prima facie case from the face of the pleading that the 2nd defendant herein has wronged the plaintiff in one way or the order to sustain the present action due to an act or omission, ether failure to perform a duty or breach of obligation of the 2nd defendant towards the plaintiff herein, which must be disclosed from the pleading. Order 11 Rule 18(1)(a) of CI 47 of the High Court Civil Procedure Rules 2024 provides as follows: (1) The court may at any stage of the proceedings order any pleadings or anything in any pleading to be struck on grounds that (a) it discloses no reasonable cause of action or defence. Did the plaintiff’s writ and statement of claim disclose a cause of action against the 2nd defendant/applicant herein? Order 11 r 15(1) of C 47 provides that “A statement of clam shall state specifically reliefs or remedy which the plaintiff clams but cost need not be specifically clamed” Pleading must contain formal allegations by the parties to lawsuit of their respective claims and defence with the intended purpose of providing notice of what is to be expected at the trial thus, the plaintiff’s statement of claim must explain the basis of the claim in the writ of summons. The functions that pleadings play in litigation is stated that, its purpose is to notify the parties of the case against them. (My emphasis) In my research into the subject under consideration, I found and have read thoroughly the decision of the Supreme Court speaking through VCRAC Crabe JSC’s pronouncement on the functions of pleadings as recorded in the case of Hammond V. Odoi (1982 – 83) GLR 1215 at 12 35 SC said; “Pleadings are the nucleus around which the case – the whole case- revolves. Their very nature and character thus, demonstrate their importance in actions as for the benefit of the court as well as the parties. A trial judge can only consider the evidence of the parties in the light of pleadings. The pleadings form the basis of the respective cases of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that may be lead. ... the pleadings thus manifest the true and substantive merits of the case...” The plaintiff’s statement of claim filed on the 22/09/2023. It contains 15 paragraph statement of allegation against the defendants. I have read carefully the statement of claim and the endorsement therefrom. Though I do not wish to sound repetitive but I will for emphasis. At paragraph 7 thereof of the statement of claim, the plaintiff stated that his family leased the disputed property to the United Africa Company Limited (UAC) for 25 years. That UAC sublet the property to the 2nd defendant. At paragraph 9 thereof plaintiff emphasized that the 2nd defendant’s lease lapsed. He was categorical that the 2nd defendant has vacated the land and the plaintiff has taken over and assume their reversionary interest over the land. That having taken over the property, it has leased the property to new tenants. Then strangely, at paragraph 11 plaintiff avers that the 1st defendant who claims to be acting on behalf of 2nd & 3rd defendants has been harassing the plaintiff’s tenants on the land. Apart from these averments, the plaintiff herein has not introduced anything in the pleadings to show the nature of the harassment or nuisance. It is also observed that the pleadings do not disclose whether or not 1st defendant is a worker at the 2nd defendant’s limited liability company. In all honesty, I fail to see what interest, direct or indirect a company like 2nd defendant would have to protect in a property they have vacated, to employ 1st defendant to harass new occupant of a land, which does not belong to them. The argument counsel for plaintiff introduced that 1st defendants is the agents of the 2nd and 3rd defendants is bogus, a clear after though and not born out of the pleading and so cannot be sustainable in law. Contrary to the rules that guide pleading the claim of the plaintiff can best be described as remote and rather conjecture a much ado about nothing. (the emphasis is mine) Having particularly studied the statement of claim and the endorsement thereof I regret to say I find no substance of allegation against the 2nd defendant through the stories of narrations in the statement of claim against the 2nd defendant worthy of defence. In my opinion and to put it plainly, instituting a legal action against a party should be approached thoughtfully in terms of the law. The simple questions which must be engaged are, what the person has done, which may be considered as acts or omission. Then, how the acts or omissions of the party being sued did affected my right under the law, and the reliefs am entitled to. From the above remit therefore, the claim by the plaintiff that 1st defendant is engaged to harass his tenants on behalf of 2nd defendant, a limited liability company which has no legal interest in the disputed property to protect is hollow if put mildly. After perusing the motion paper and assessment of the arguments and study of case law, am embolden to dismiss the suit against the 2nd defendant applicant. Without wasting anytime of the court, I uphold the submission by the counsel for and on behalf of the 2nd defendant/applicant herein and hold that the statement of claim together with the endorsement discloses no reasonable cause of action against the 2nd defendant to call upon it to defend same. And to reiterate the point that, a writ must disclose an acceptable reason in law for taking legal action against someone, the right to seek judicial redress as a result from some wrongful act. The present writ together with the statement of claim demonstrates nor discloses none of the above. In view of the foregoing and exercising the courts power under Order 11 r 18(1)(a) of C I 47 High Court Civil Procedure rules strike out the plaintiff’s writ together with the statement of claim filed on 22/09/22 and non-suit the 2nd defendant as disclosing no reasonable cause of action to respond to in law. I asses cost in favour of the 2nd defendant at GHC5, 000.00 The application succeeds. (SGD.) CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) 8