Ashie Kotei Vrs Registered Trustees [2023] GHAHC 314 (6 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE AMASAMAN ACCRA REGION HELD BEFORE HER LADYSHIP JUSTICE PRISCILLA DAPAAH MIREKU (MRS.) SITTING ON THURSDAY THE 6TH DAY OF JULY, 2023 SUIT NO. E1/AHC/72/2022 DAN ASHIE KOTEI ..... PLAINTIFF VRS THE REGISTERED TRUSTEES ..... DEFENDANTS FOUNTAIN GATE CHAPEL RULING ON APPLICATION FOR STAY OF PROCEEDINGS The Defendant per this instant application is praying this Honourable Court for an order staying proceedings before the High Court, Amasaman pending the outcome of suit no. FAL/15/2010 which is pending before the Land Division of the High Court, Accra. The Defendant/Applicant alleges that the subject matter in both suits is one and same and that the suit no. FAL/15/2010 is between the plaintiff and their grantors; the Botchway Family and the suit is head “RICHARD KOTEI ADDISON SUBST. BY DANIEL ASHIE KOTEI V. KLORTEY BOTCHWAY & 4 ORS. The plaintiff/respondent vehemently denies that the subject matter of this suit is one and same as that of suit number FAL/15/2010. Per the affidavit in opposition, same was filed on 5th November 2022 and not 2023 as claimed by the applicant even though the applicant’s application was filed on the 8th of November, 2022. The Exhibit ‘A’ which is attached to the application shows that it was filed on the 5th of December 2022. The 5th of December, 2022 brings more clarity to the misunderstanding on the date of filing of the affidavit in opposition. Thus, I find that the registry inadvertently made a mistake and endorsed 5th November, 2022 on it. The onus is therefore on the defendant/application to prove to this honourable court their claim. In the case of Zambrama v. Segbezi [1991] 2 GLR 221 @ 246 the Court of Appeal held that, ‘A person who makes an averment or assertion, which is denied by his opponent, has a burden to establish that his averment or assertion is true. And he does not discharge this burden from which the fact or facts he asserted can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of the burden.’ The applicant first attached an alleged proceedings from the other suit marked as Exhibit ‘B’. Exhibit ‘B’ has suit number FAL/151/2010 endorsed on same and even though it is alleged to emanate from the High Court, Accra, it is not certified. The applicant further filed a supplementary affidavit in support and attached a Writ of Summons for the other suit aforementioned marked as Exhibit ‘C’. The applicant admits that both suit title is indeed different but insists the suits is one and same, as the subject matter is the same and that the subject matter of this suit forms part of the subject matter in suit no. FAL/151/2010. The applicant in their statement of defence indicates that they first approached the plaintiff’s family to acquire the subject matter and made part payment but had to repurchase same from the Botchway when they made adverse claim to the land. The applicant further alleges that there is another suit no. FAL/892/13 which has been consolidated with suit no. FAL/151/2010. The title of both cases does not have the Botchway family as one of the parties to the suit. The defendants in the abovementioned case are individuals who bear the surname of Botchway. Thus, the applicant has failed to prove that the subject matter in this suit is one and same with the one aforementioned and the outcome of the said suit will affect this instant case. The instant application is here by dismissed. Cost of GH₵2000.00 is awarded against the defendants/applicants. (SGD) H/L PRISCILLA DAPAAH MIREKU (MRS.) HIGH COURT JUDGE, AMASAMAN 3