Court name
Court of Appeal
Case number
83 of 2005

Essoun Vrs Koomson (83 of 2005) [2006] GHACA 4 (08 December 2006);

Law report citations
Media neutral citation
[2006] GHACA 4
Owusu, JA
Piesare, JA
Abban, JA











                V  E  R  S  U  S

EKOW KOOMSON                                     …     DEFENDANT/RESPONDENT


                                        J  U  D  G  M  E  N  T


OWUSU, JA: -  By their writ of summons, the Plaintiffs/Appellants hereafter referred to as Appellants claimed against the Defendant/Respondent to be hereafter referred to as Respondent “an order of the court restraining the defendant and/or his Ekissi family of Kwasimintsim, their privies, servants, agents, workmen etc. from burying the corpse of Madam Araba Badu (a.k.a Kokura Badu) or any deceased person on Kwasimintsim stool lands particularly, the Kwasimintsim Royal cemetery, without observing the customary law and practice of Kwasimntsim Traditional Area and performing the required customary rites to the Plaintiffs.

            The Plaintiffs thereafter followed with an application for interim injunction to restrain the defendant and or his family from burying or facilitating the burial of corpses on Kwesimintsim lands pending the determination of suit.

            The application was dismissed by the court.

            The Defendant then filed a motion on notice for an order striking out the suit in terms of the supporting affidavit.  Paragraphs 4, 5 and 6 in particular state as follows:

            “4.  That before the institution of this action, the said Madam Araba

                    Badu had already been buried.

              5.  That the writ of summons discloses no cause of action.

              6.  That the whole action is also against public policy.

            On 21/5/04. the trial court presided over by His Lordship Robin B. Batu J. dismissed the suit under Order 25 rule 4 of the High Court (Civil Procedure) Rules, LN 140A.

            It is against this ruling that the Plaintiffs have appealed to this court contending that:

             i.   “The Plaintiffs claim was justiciable and did not offend public policy

                    and the court erred in striking out the Writ of Summons.”

             ii    “The Judgment/ruling/decision of the court is erroneous in Law as

                     the Defendant/Applicant’s application did conform with or 25 r 4 of the

                     High Court Civil Procedure Rules LN 140 A.”

            As indicated in the Notice of Appeal, the Plaintiffs filed 1 additional ground that “the Application to strike out the suit filed by the Defendant on 1/4/04 is not warranted by the Rules of court and the court ought not to have countenanced it.

            This additional grounds was filed without leave of the court in contravention of rule 8(7) of the Court of Appeal Rules C.I. 19 of 1997 which states that –

            “The appellant shall not, without the leave of the court, urge or be heard in support of any ground or objection not mentioned in the notice of appeal, but--------------”

The Appellant shall therefore not be heard on that ground.  {The emphasis is mine}.  Same is therefore struck out.

            On the ground that the trial Judge erred in striking out the suit, the Appellants contend that their claim is justiciable and does not offend against public policy.  That the appellants had gone to court to enforce a customary law practice.  At that time, Araba Badu, the deceased member of the Respondent family had not been buried.

            By their writ, the Appellants were not seeking on order not only against the burial of Araba Badu but also “any other deceased person---------------------------------------------”

without the Respondent observing the customary law and practice of the Kwasimintsim traditional area.  Counsel submitted that the claim is in the nature of a quia timet injunction.  He urged further, that if the court should throw up its arms and refuse to adjudicate on the matter, what option would be open to the Plaintiffs, he asked?  If the ruling of the court below should be allowed to stand, according to him, it will be a recipe for lawlessness as the Plaintiffs’ will have to resort to their own means and measures in ensuring compliance with the customary law.  That it is in the interest of the public and justice that the court enforces customary law.

            In reply counsel for the Respondent insisted that the Appellants claim offends against public policy as by the relief sought dead bodies will be made to stay in the morgue while chieftaincy disputes await resolution.

            With regard to the burial of Araba Badu, the claim was rendered nugatory as at the time when the application was moved, she had already been buried.

            In the instant case, the Plaintiffs were seeking to prevent the living from being buried when they die.  Counsel submitted that “any other person was not ascertainable.  In any case, he contended further that no court would make an order to prevent the burial of any corpses – such an order surely would offend against public policy.

            The application of the Respondent in this appeal was premised on two grounds that the writ of summons disclosed no cause of action and secondly that the action offends against public policy.

            In his Judgment, the trial Judge had indicated in his earlier ruling in respect of an interim application that for public policy considerations he would not grant the kind of relief being sought in the second leg of the Plaintiffs’ claim.

            However, it was under order 25 rule 4 of LN 140 A that he dismissed the suit under the said rule, “The court or a Judge may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexations, the court or a Judge may order the action to be stayed or dismissed or------------------------”

This is what the trial Judge said in his Judgment:

            “In the circumstances they leave me with no choice than to under order 25 rule 4 of LN 140 A, dismiss the suit.”

It is therefore obvious in dismissing the suit, the court was not exercising its inherent jurisdiction even though the applicant invoked the court’s inherent jurisdiction when arguing the application.

The applicant based his application on two grounds i.e. public policy and that the action disclosed no cause of action.

            Order 25 rule 4 does not make room for applications on grounds of public policy and even though the trial Judge had earlier on indicated that for public policy considerations, he would not grant the kind of relief sought in the second leg of the Plaintiffs’ claim it was not for those public policy considerations that he dismissed the suit.

            There is therefore no substance in the Appellants ground 1 and same ought to be dismissed.  The Appellants’ second complaint is the invocation of the court’s inherent jurisdiction.  It is counsel’s contention that the application ought to have been brought under order 25 rule 4 as the arguments for and against the striking out of the suit, was solely on the basis of the pleadings.

            Where therefore, counsel submitted, there is a provision for dealing with a specific subject matter before the court, the inherent jurisdiction of the court should not be invoked.

            Indeed, in the case of PERRY VRS. ST. HELENS LAND CONSTRUCTION CO. LTD. {1939} A.E.R. 113 the Court of Appeal per Sir Wilfred Greene M.R. held that:  “--------------------------------------------------and the court should not be asked to use its inherent jurisdiction when there is an alternative remedy available.”

See also dictum of Adade J.S.C. in the case of AZORBLIE VRS. ANKRAH IV {1984 – 86} 1 GLR 561 at 564.

            With the burial of Araba Badu, at the time when the motion to strike out the suit was filed, it was the second leg of the Plaintiffs’ claim i.e. “an order of the court restraining the defendant and/or his Ekissi family of Kwasimintsim, their privies------------------------------etc. from burying any deceased person on Kwasimintsim stool ands--------------------------------------------------without observing the customary law and practice of Kwasimintsim Traditional Area and-----------------------------------------------------to the plaintiffs.

‘Any deceased person” referring to those dead but unnamed or those who were yet to die?  It those who were yet to die, have the plaintiffs any cause of action then?  Did the writ of summons vis-à-vis the second leg of the claim disclose any reasonable cause of action? 

The answers to these questions are obvious, i.e. definitely not.

            At that time however, the statement of claim filed was in respect of the burial of Araba Badu only and not “any other deceased person>”

            The application could therefore not be brought under order 25 rule 4 and counsel did rightly not proceed under that order.  He appropriately resorted to the inherent jurisdicta of the court to have the suit struck out as not being justiciable vis.a.vis “any other deceased person.”

            Admittedly, the trial judge was wrong when he referred to Order 25 rule 4 in the exercise of his inherent jurisdiction.  The order of the court below dismissing the suit under order 25 rule 4 will and is hereby set aside.

            This court under rule 31(d) of the Court of Appeal Rules, dismiss the action as being vexations and an abuse of the process of the court.  See the case of BANK OF WEST AFRICA LTD. VRS HOLDBROOK {1966} GLR p. 163 at 164 in which Archer J. (as he then was) applied the case of DYSON VRS. ATTORNEY-GENERAL {1911} 1 K.B. 410 at p. 418, C.A.

            In substance therefore the appeal is dismissed.




                                                                                    R.C. OWUSU

                                                                                JUSTICE OF APPEAL