POUNTNEY vs. DOEGAH [1987]DLCA800

Date	1987-04-02
Suit No.
Citation No.	[1987]DLCA800

ABBAN JA

OSEI-HWERE JA

WUAKU J.A

OPARE ADDO FOR THE APPELLANT.

W FUGAH FOR THE RESPONDENT.

N OLAGA FOR THE CO-RESPONDENT.

[1987]DLCA800
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													<main id="main" class="content" style="min-height: 60rem" >POUNTNEY <o:p></o:p>vs. <o:p></o:p>DOEGAH <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 111<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
2 APRIL 1987<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">

OPARE ADDO FOR THE APPELLANT. <o:p></o:p>

N OLAGA FOR THE CO-RESPONDENT.<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">

ABBAN, OSEI-HWERE AND WUAKU JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN JA<o:p></o:p>This is
an interlocutory appeal from the Circuit Court, Accra. The court had earlier on
granted an interim injunction order restraining the defendant-respondent,
Doegah, and his servants and agents from entering the disputed plot of land
pending the hearing and the final determination of the suit.<o:p></o:p><o:p>&nbsp;</o:p>However
on 14 December 1984 the learned circuit judge on the motion of the
defendant-respondent vacated that interim injunction order. But the
plaintiff-appellant again moved the court for the same order. That is for the
restoration of the injunction order and on 4 March 1985 the learned circuit
judge in his ruling refused the plaintiff-appellant’s request. It is against
this ruling that the present appeal was brought.<o:p></o:p><o:p>&nbsp;</o:p>It is to
be noted that while the plaintiff-appellant’s last motion was pending before
the circuit court and before that court could hear the motion, the Lands
Commission was joined as a co-defendant on the application of the
defendant-respondent. The Lands Commission having become a party, the executive
secretary of the commission, one Mr Kilba, filed, an affidavit opposing the
appellant’s motion for the interim injunction. He also filed a defence on
behalf of the commission.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Three
grounds of appeal were argued. It was contended, among other things, that the
learned judge dismissed the application in perfunctory manner and did not
exercise his discretion judicially. Counsel for the appellant submitted that
the learned circuit judge based his decision only on the affidavit and the
defence filed by Mr Kilba, the Executive Secretary of the Lands Commission, and
did not consider the other affidavits and the exhibits filed in the
application. Counsel therefore contended that the learned circuit judge
proceeded on wrong and inadequate material, because the contents of the
affidavit of Mr Kilba and the statement of defence of the Lands Commission were
irrelevant to the matters at issue. Counsel further submitted that the
exceptional circumstances of the present case required that the injunction
should have been granted, since the plaintiff would suffer greater hardship if
the order was refused.<o:p></o:p><o:p>&nbsp;</o:p>It must
be observed that the ruling of the learned circuit judge was, on the whole,
straightforward. He did mention in his ruling the materials which he took into
consideration when he was exercising his discretion in the matter. Indeed, he
did not mince his words. He indicated in no uncertain terms that he relied on
the affidavit and the statement of defence filed by Mr Kilba. After he had
briefly stated the circumstances which led to the making of the application he
continued:<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">“However
before this motion could be heard counsel for the defendant filed a motion for
the Lands Commission to be joined as co-defendants and the motion was
accordingly granted. Following the affidavit sworn to by one Mr Abass Kilba,
the Executive Secretary of the Lands Commission, and the statement of defence
filed on 8 February 1985 I have reached a conclusion that the order I had
already given vacating the interim injunction order previously granted should
still remain.”<o:p></o:p><o:p>&nbsp;</o:p>