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  • appeal
  • 1959-03-16
  • GLR 128-130
  • Print



Premises?-Rights of husband and wife on divorce?-Injunction?-No interlocutory appeal from Asantehene's "A2" Court to Land Court.


Afua Taa was a seamstress who had married Kwame Frempong. Afua Taa's mother had obtained a building plot at New Assromaso, and had built five rooms there. Kwame Frempong had built for Afua Taa two rooms etc., on the other side of that plot.Later, the marriage broke down, and an arbitration was held. The Arbitrators did not succeed in reconciling husband and wife. They directed that, after the dissolution of the marriage, Afua Taa should remain in possession (as owner) of the rooms built for her by Kwame Frempong, subject to her paying him 167 3s. Od., which was alleged by him to be what the rooms had cost him to build.About a month after the arbitration, upon Afua Taa's return from her farm on the 6th May, 1957, she discovered that Auction Notices had been posted on her rooms by one J. C. Ampong, an Auctioneer of Kumasi. The Notices stated [p.129] that on a named date he would sell the rooms on the instructions of Kwame Frempong. The proposed sale was not supported by any Court Order, and the Notices described the rooms as Kwame Frempong's property.On the 8th May, 1957, Afua Taa took out a civil summons in the Kumasi South District "B" Court, directed to Kwame Frempong and the auctioneer. The summons complained of the attachment in the absence of a writ of Fi.Fa. , prayed for an Order releasing the attachment, and claimed damages in trespass. On the 23rd May, the Court found for Kwame Frempong, and directed that the sale should proceed.On the 24th May, 1957 Afua Taa filed grounds of appeal in the Asantehene's "A2" Court, Kumasi. On the 25th May the Court granted final leave to appeal, and set the appeal down for hearing on the 26th June, 1957, when it was adjourned. On the 1st July, 1957, before the appeal was heard, Afua Taa filed Notice of Motion in that Court for an Injunction to restrain Kwame Frempong from breaking any part of the disputed premises, whether for repair or otherwise, pending the result of the appeal in the substantive case. On the 23rd July, 1957, the Court said that it agreed with the decision of the trial-Court in the substantive case, and "refused special leave" to appeal therefrom. On the 29th July, 1957 the Court decided to hear the appeal after all, and consolidated it and the Notice of Motion for an injunction. On the 6th August, 1957, the Court dismissed the appeal (and, by implication, the motion).On the 31st July, 1957, Afua Taa had filed in the Land Court, Kumasi an appeal against the interlocutory order made by the Asantehene's "A2" Court, Kumasi, on the 23rd July, 1957. On the 7th August, she filed an appeal to the Land Court against the decision of the Asantehene's "A2" Court of the 6th August. On the 22nd October, the Land Court (Sarkodee-Addo J.) granted special leave to appeal from the interlocutory order of the 23rd July, and fixed the hearing for the 22nd November, when the substantive appeal was also to be heard in the Land Court.His lordship's judgment, delivered on the 4th December, 1957, stated that "An Interlocutory Appeal and the substantive Appeal between the parties in respect of the same subject matter were before the Court for hearing on the same date and for the purpose of convenience and easy reference were merged and heard on the same occasion."His lordship set aside the judgments of the native trial-Court and the Native Appeal Court, and granted the wife a declaration of title, an injunction and damages. The judgment concluded:"As to enforcement of the Appellant's Damages and the costs, in view of the perverseness or misconduct of the two Native Courts, I order that the Appellant resort to the process of this Court accordingly."Kwame Frempong appealed to the Court of Appeal (Civ. App. No. 48/1958).



Korsah C.J. delivered the judgment of the Court. There is no merit in the substantive appeal, and Counsel has acted wisely in not continuing to argue it.

It appears, however, that in the course of the proceedings in the Court below, the learned judge at a certain stage erroneously gave himself jurisdiction, and granted special leave to appeal from an interlocutory order, in which an appeal did not lie to the Land Court. He further fixed the same date for the hearing of the substantive appeal as for the hearing of the purported interlocutory appeal.

Even if the Court had had power to grant special leave, it was incumbent thereafter to impose conditions. This the learned Judge did not do; no conditions were in fact fulfilled, nor could any conditions be fulfilled. Therefore no interlocutory appeal could have been pending in the Court on the date which the Court fixed.

In giving judgment, the learned Judge expressed himself as having merged the interlocutory appeal with the substantive appeal, when in fact there was only one appeal (namely, the substantive matter) before him. We therefore expunge that part of the judgment which suggests the merger of an interlocutory appeal with the substantive appeal.


<P>Appeal is dismissed.</P> <P>Costs of respondent fixed at £22 15s. Od., to be paid by appellant.</P>

Plaintiff / Appellant

Koranteng Addow

Defendant / Respondent

Dr. Danquah


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