AKAAKYI II vs. YEBOAH AND ANOTHER [1979]DLHC1024

Date	1979-04-12
Suit No.
Citation No.	[1979]DLHC1024

ANSAH-TWUM J.

JAMES MERCER FOR THE APPLICANT.

POLLEY FOR BLAY FOR THE RESPONDENTS.

[1979]DLHC1024
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													<main id="main" class="content" style="min-height: 60rem" >AKAAKYI II <o:p></o:p>vs. <o:p></o:p>YEBOAH AND ANOTHER<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>&nbsp;[1980] GLR 176<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
12 APRIL 1979<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">

JAMES MERCER FOR THE APPLICANT.<o:p></o:p>

POLLEY FOR BLAY 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">

ANSAH-TWUM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANSAH-TWUM J.<o:p></o:p>The
plaintiffs herein, who claim to represent the stool of Agona, Ahanta,
instituted this action only against the defendant, Morrison Imoru, claiming
¢5,000 damages for trespass to the plaintiffs’ stool land commonly known and
called Asine land and bounded as set out in the writ of summons. They claim
further that “the trespass complained of consists in the defendant’s entry upon
the said land and starting extensive clearing thereon for farming purposes
without the consent and concurrence of the plaintiffs.”<o:p></o:p><o:p>&nbsp;</o:p>The
defendant entered appearance through his solicitor, Kodwo Erskine, who filed
the defendant’s statement of defence on 10 July 1978. The plaintiffs having
filed their reply to the defendant’s statement of defence by 15 January 1979,
filed a motion for interim injunction under Order 50, r. 7 (1)-(2) of the High
Court (Civil Procedure) Rules, 1954 (L.N. 140A). The motion paper and
supporting affidavit were served on the defendant’s solicitor, Kodwo Erskine on
31 January 1979. The defendant did by 22 February 1979 file an affidavit in opposition
to the application for interim injunction.<o:p></o:p><o:p>&nbsp;</o:p>When the
motion came on for hearing, the defendant had not at the time filed his
affidavit in opposition, and counsel for the defendant did not appear either.
Polley for Blay for the plaintiffs thereupon moved the court in terms of the
motion paper and the supporting affidavit. The application was granted on 22
February 1979 whereupon the defendant, his workmen and or agents were
restrained from entering or dealing with the land, the subject-matter of the dispute
and from making any extension of the farms made thereon already.<o:p></o:p><o:p>&nbsp;</o:p>Nana
Akaakyi II, who is now the co-defendant in the suit before the court, did
apply, on 23 February 1979, to the court to be joined in this suit as a
co-defendant. The application for joinder came on for hearing on 28 February
1979 when James Mercer appeared for the applicant and Hughes for Polley for the
plaintiffs-respondents (hereinafter referred to as the respondents). Counsel
for the respondents did not oppose the application and the defendant who
appeared in person did not oppose it either. The application was accordingly
granted and Nana Akaakyi II was thereby joined as a co-defendant. Immediately
after this order for joinder has been made, Mercer for the co-defendant who
obviously was aware of the existence of the order of interim injunction made on
22 February 1979 against the defendant, called the court’s attention to the
fact that it appeared that the application for interim injunction did not ask
for an order to restrain the defendant, his workmen and or agents from entering
or dealing with the land, the subject-matter of dispute, but only to restrain
the defendant, his workmen and or agents from making any extension of the farms
made thereon already. The court being satisfied that this was a point well
taken, decided to review the order made on 22 February 1979. The following is
what I recorded:<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">“The
application was for restraint as to extension of farming operations only and
not restraint against entry. The order made restraining the defendant from
entering the land was therefore not asked for. I will here therefore review the
order by deleting the portion which restrains the defendant from entering the
land in dispute. He is restrained only from making further extension to the
farm or farms he had already made on the land in dispute.”<o:p></o:p><o:p>&nbsp;</o:p>Mercer
for the co-defendant following upon this as it were, filed the present motion
on 13 March 1979 asking for an order of this court to set aside its order of
interim injunction made on 22 February 1979 and reviewed on 28 February 1979,
restraining the defendant, his workmen, servants and or agents from making
further extension to the farm or farms he has already made on the land in
dispute.<o:p></o:p>