Captain Vrs Awadzi [2023] GHAHC 348 (1 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (LAND DIVISION) ACCRA HELD ON WEDNESDAY THE 1ST DAY OF MARCH, 2023 BEFORE HER LADYSHIP JUSTICE JENNIFER MYERS AHMED (MRS), JUSTICE OF THE HIGH COURT. -------------------------------------------------------------------------------------------------- SUIT NO: LD/0118/2023 NOUR EL-DIN CAPTAIN : PLAINTIFF VRS MRS. PATRICIA AWADZI : DEFENDANT --------------------------------------------------------------------------------------------------- PLAINTIFF: Lord Allotey rep Plaintiff DEFENDANT: Absent COUNSEL FOR PLAINTIFF: Ms. Kelly Serwa Kwakye h/b of Mr. William Addo - Present COUNSEL FOR DEFENDANT: Mr. Chris King with Ms. Sophia Hughes-Present ---------------------------------------------------------------------------------------------------- RULING The defendant on the 21st December 2022 filed the instant motion praying the court to strike out the writ and statement of claim under order 11 rule 18 (1) a, b,c, & d of C. I. 47. In the accompanying affidavit in support, the defendant applicant deposed that the plaintiff’s claim discloses no reasonable cause of action against the defendant in that the court “on the basis of the pleadings done and without any evidence whatsoever may strike out the pleadings”. She deposed in paragraphs 6 and 7 this; “6: That all five reliefs on the writ of summons and nine averments contained in the statement of claim disclose no reasonable cause of action against me. 7: That further and in the alternative none of the pleadings and reliefs sought have any nexus whatsoever to me”. What are the reliefs being sought by the plaintiff in the writ of summons filed on the 15th December 2022? They are for; 1. Declaration that the defendant has no capacity to deal with the land the subject matter of a lease dated the 11th day of September 1947 between William Botchway Marbell and Odiko Marbell and Marbell Captain. 2. An order that the Marbell family extends the lease of the said land to the plaintiff or alternatively reasonable time is given to the plaintiff to vacate same. 3. An order rescinding the demand of the defendant for the plaintiff’s tenants on the said land to negotiate their continuous occupation of the rented space in the Opera Cinema building. 4. General damages. 5. Perpetual injunction restraining the defendant, her servants, agents, workmen or assigns from further dealing with the said tenants. In the statement of claim, the plaintiff who describes himself as the administrator of the estate of his father the late Mousbah Captain averred that the parcel of land on which the Opera Cinema building is located in central Accra was leased to the plaintiff’s father on the 11th of September 1947 for a term of 75 years. He also averred that the lease was about to expire on the 31st December 2022 and caused his lawyer to write to one Samuel Chartey Marbell, a member of the Marbell family with whom he had dealt after the demise of the original lessors for an extension of the lease. The defendant however who is unknown to the plaintiff in a “virulent letter written on her behalf by her counsel” denied the right and capacity of the said Samuel Chartey Marbell to deal with the said land and implicitly requested “the plaintiff to deal with her lawyers”. The plaintiff averred further that when he applied for an extension of the lease, the defendant’s lawyers in a letter dated the 9th of December 2022 and titled “Termination of Lease” wrote to say that the plaintiff’s offer was unacceptable and had been utterly refused. The plaintiff was also asked to vacate the land by the 31st December 2022. The plaintiff averred further that the defendant also on the 9th of December 2022 misrepresented to the plaintiff’s tenants to atone tenancy to her if “they were interested in their continuous occupation of the… land and office spaces”. The contention of the Plaintiff is that the actions of the defendant who he does not know as a member of the Marbell family are in complete breach of the terms of the lease, a lease which has effectively come to an end. In his submissions, the Plaintiff’s counsel contends that the defendant’s application to set aside the writ of summons and the accompanying statement of claim under order 11 rule 18 (1) a, b and d of C. I. 47 after the entry of conditional appearance is totally misconceived and same ought to be dismissed. The Plaintiff’s counsel bases this contention on the words of Kpegah JSC in the Republic vrs. High Court, Accra, Exparte Aryeetey [2003 – 2005] 1GLR 537 @ 547. However it must be pointed out that unlike the Exparte Aryeetey case the defendant herein is not contending that she has a legal defence to the action. Her simple prayer is that she is not the proper person to have been sued, being neither the head of the Marbell family nor had any dealings or negotiations with the Plaintiff herein in respect of the property in dispute. Furthermore, there is no fetter on the defendant praying this court to dismiss the action under order 11 rule 18 (1) a,b,c and d after entering conditional appearance. After all, the defendant could have chosen to enter “conditional” appearance and still applied under order 11 rule 18 (1) for the prayer she seeks. There is no rule of procedure which says that this court cannot deal with this application in the form in which it has been brought. On the face of the pleadings alone, this court finds that the pleadings do not disclose any cause of action against the defendant. Having also perused the affidavit evidence, it is clear that the Plaintiff is well aware that it has dealt with the defendant’s counsel as the lawyer appointed by the Marbell family to oversee its interest with regards to the property in dispute. In addition, he has not produced any affidavit evidence, even as per his previous motion for interlocutory injunction, of the defendant herein dealing in anyway with him or with the property in dispute on behalf of the Marbell family. Looking at the pleadings in the writ itself it is clearly an abuse of process and therefore irrespective of the rules of procedure this court will exercise its inherent jurisdiction to uphold the prayer of the defendant. JENNIFER ANNE MYERS AHMED J, (MRS.) JUSTICE OF THE HIGH COURT (SGD.) 4