OKAI vs. MAWU AND ANOTHER [1975]DLSC414

Date	1975-05-16
Suit No.
Citation No.	[1975]DLSC414

GRIFFITHS-RANDOLPH J.

NII APONSAH FOR THE APPLICANT.

VIDAL BUCKLE FOR THE RESPONDENTS.

[1975]DLSC414
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													<main id="main" class="content" style="min-height: 60rem" >OKAI <o:p></o:p>vs. <o:p></o:p>MAWU AND ANOTHER<o:p></o:p>&nbsp;[HIGH
COURT, ACCRA]<o:p></o:p>[1976] 1 GLR 265<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
16 MAY 1975.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NII APONSAH FOR THE APPLICANT.<o:p></o:p>

VIDAL BUCKLE FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

GRIFFITHS-RANDOLPH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF GRIFFITHS-RANDOLPH J.<o:p></o:p>In this
case, the plaintiff sued the defendants, claiming against them jointly and
severally a declaration of title to a land at Teshie, also recovery of
possession of the said land, perpetual injunction restraining the defendant and
their agents, etc. from interfering or dealing with the land in any way, and
¢1,500.00 damages for trespass to the said land. On 13 December 1972, the
following order of interim injunction was made by Sarkodee J.:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“It is
hereby ordered that both defendants herein, their agents, servants, privies,
lessees, grantees, allottees or other alienees and relations whatsoever, be and
are hereby restrained from interfering or otherwise dealing in any manner
whatsoever with any portion of the land, the subject-matter in dispute in the
above-named suit.”<o:p></o:p><o:p>&nbsp;</o:p>And on 3
February 1975, Nii Aponsah on behalf of the plaintiff filed an ex parte motion
with a supporting affidavit for leave to apply for an order of attachment
against the first defendant, also Kofi Mensah alias Joseph Augustus Mensah, and
the latter’s servants, agents or workmen, viz. Blebo, Marteye Adjei, Ablorh of
Agbawe and Narku, on account of their alleged contempt of the order of interim
injunction.<o:p></o:p><o:p>&nbsp;</o:p>Then on
20 March 1975, in pursuance of the leave granted, Nii Aponsah formally moved
the court for the order of attachment.<o:p></o:p><o:p>&nbsp;</o:p>He said
that on 21 March 1973 his client had obtained leave to apply for an order of
attachment against the second defendant, who had flouted the order of interim
injunction; but that the matter had not been pursued, because the alleged contemnor
could not be traced. This time it was the first defendant who had flouted the
order, by selling a portion of the land in dispute to John Augustus Mensah
alias Kofi Mensah. When he and his client had gone to the land on 8 February
1975, they had found Kofi Mensah, Blebo, Marteye Adjei, Ablorh of Agbawe, Narku
and others filling foundations which they had dug (vide identification 1). As
they had issued a warning to them to keep off the land, the alleged contemnors
had disclosed that Kofi Mensah had bought the land from the first defendant,
who had assured them they could build without any hindrance. Since the first
defendant had been in court when the order had been made, he had deliberately
defied the court’s order by granting permission to the purchaser to develop the
land, which formed part of the subject-matter of this action, and that parties
other than those in the suit were affected by the order (vide High Court (Civil
Procedure) Rules, 1954 (L.N. 120A), Order 42, r. 24.) There was an unregistered
deed of conveyance purported to have been executed on 20 September 1972 and
stamped on 20 September 1974; but he felt it had been back-dated after the
order had been made. Even if the deed had been executed on 20 September 1972,
it was caught by section 24 (1) of the Land Registry Act, 1962 (Act 122). The
first defendant had no title to the land (vide Kwofie v. Kakraba [1966] G.L.R.
229 where Archer J. (as he then was) held that the Land Registry Act, 1962, did
not confer state-guaranteed title on grantors who had no title at all). The
maxim nemo dat quod non habet had found favour with customary law as was said
by Hayfron-Benjamin J. (as he then was) in Awisi v. Nyarko [1966] G.L.R. 3 at
p. 12. Finally, he said that the first defendant ought not to have conveyed the
property after the making of the order, even if he had title to it.<o:p></o:p><o:p>&nbsp;</o:p>Buckle,
on behalf of the first defendant and the other alleged contemnors, replied that
this was a case where evidence should be taken since his client had filed no
affidavit in opposition; also that the balance of probabilities would not
suffice, as the proceedings were of a quasi-criminal nature; and that no
satisfactory proof of the alleged deliberate disobedience of the order had been
furnished. Further, a surveyor had appended his signature to the deed with the
date 9 August 1972; also the deed was s</main>