ODONKOR AND OTHERS vs. AMARTEI [1988]DLSC792

Date	1988-06-21
Suit No.
Citation No.	[1988]DLSC792

ADADE JSC

TAYLOR JSC

FRANCOIS JSC

AMUA-SEKYI J.S.C.

LAMPTEY J.A

ENOCH KOM (WITH HIM D NII APONSAH) FOR THE APPELLANTS.

JAMES AHENKORAH FOR THE RESPONDENT.

[1988]DLSC792
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													<main id="main" class="content" style="min-height: 60rem" >ODONKOR AND OTHERS <o:p></o:p>vs. <o:p></o:p>AMARTEI <o:p></o:p>[SUPREME COURT ACCRA]<o:p></o:p>[1987-88] 1 GLR 578<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
21 JUNE 1988<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">

ENOCH KOM (WITH HIM D NII APONSAH) FOR THE
APPELLANTS. <o:p></o:p>

JAMES AHENKORAH FOR THE 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">

ADADE, TAYLOR, FRANCOIS. AMUA-SEKYI
JJ.S.C. AND LAMPTEY J.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ADADE J.S.C.<o:p></o:p>On 9
March 1987 the plaintiff, as head and lawful representative of the Nii Armah
Sogblah family of Osu, Accra filed an action against the defendants claiming ¢5
million damages for trespass and an injunction to restrain the defendants from
interfering with a piece of land at Haatso, a village near Accra.<o:p></o:p><o:p>&nbsp;</o:p>Shortly
after the defendants had appeared to the writ, the plaintiff applied for an
interim injunction against them. In the affidavit accompanying that application,
he averred that he and his family settled on the land a long time ago, “over
two hundred years prior to the commencement of this action . . . farming on the
surrounding arable land as communal land.” He does not say how they came by the
land to settle on. But in paragraph 5 of the said affidavit he avers that the
defendants claim the same land as their ancestral land, granted to the
plaintiff’s ancestors for a settlement. The plaintiff does not seem to deny
this claim. On the contrary, he says in paragraph 9 of the affidavit:<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">“9. That
I am advised by counsel and I verily believe that once my family is in
occupation the defendants have no right to alienate portions of the land to
strangers, whether or not my family came to settle on the land so many years
ago with the permission of the ancestors of the defendants.”<o:p></o:p><o:p>&nbsp;</o:p>It must
be noted that these averments were made by the plaintiff even before a
statement of defence had been filed; indeed, a defence does not appear on the
record. In their affidavit opposing the application, the defendants aver
confirming what the plaintiff attributes to them, that the land belonged to
their ancestors, who permitted the plaintiff’s ancestors to settle thereon.
They claim that their title to the land had been acknowledged by a predecessor
of the plaintiff in a case Bosompim v Martei, Divisional Court, 3 May 1904,
unreported, an acknowledgment which they say binds the plaintiff and his
family.<o:p></o:p><o:p>&nbsp;</o:p>Paragraph
10 of their affidavit reads:<o:p></o:p>“10. We
are advised that the suit itself upon which the application for injunction
itself is founded was misconceived in law, because the applicant’s family has
never had such adverse possession in connection with our title as members of
the landlord’s family, since they have been on our land with our leave and
licence only at all material times.”<o:p></o:p>The state
of the rival affidavits therefore indicates that the defendants do not deny
going on to the land, but they justify their action on the ground that they are
the owners of the land. On the other hand, the plaintiff claims to be entitled
to an injunction against the defendants on the ground that they are in
possession. There is no serious denial of the contention by the defendants that
they are the owners.<o:p></o:p><o:p>&nbsp;</o:p>The High
Court (Ammah J.) refused the application for injunction. The Court of Appeal
(coram Abban, Wuaku and Ampiah JJ.A.) reversed this decision, and ordered an
interim injunction against the defendants, who have now appealed to this court.<o:p></o:p>It must
be stated at this stage that the substantive suit has not yet been touched at
all; it is still pending in the High Court. Indeed, it does not even appear
that it is ripe for hearing. Accordingly, prudence dictates that nothing is
said in these proceedings which may have the effect of prejudicing any issues
in the substantive action itself.<o:p></o:p>