BOTWEY vs. EDWEY IX [1990]DLCA2223

Date	1990-11-29
Suit No.
Citation No.	[1990]DLCA2223

ESSIEM JA

OFORI-BOATENG JA

ADJABENG J.A.

BOAHENE FOR THE PLAINTIFF-APPELLANTS.

J. AHENKORAH FOR THE DEFENDANT-RESPONDENTS

[1990]DLCA2223
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													<main id="main" class="content" style="min-height: 60rem" >BOTWEY<o:p></o:p>vs.<o:p></o:p>EDWEY
IX<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 179<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 29 NOVEMBER 1990<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BOAHENE
FOR THE PLAINTIFF-APPELLANTS.<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">

J.
AHENKORAH FOR THE DEFENDANT-RESPONDENTS<o:p></o:p>

ESSIEM,
OFORI-BOATENG AND ADJABENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF ESSIEM J.A<o:p></o:p>On 15 November
1990 we allowed this appeal but reserved our reasons, which I now proceed to
give. The writ in this case was issued on 23 July 1973. This appeal only
concerns an interim order made by the High Court, Cape Coast on 30 May 1986. It
is not plain from the record why this case has lasted for so long in the High
Court, Cape Coast. As at now, the main case is still pending before the High
Court. I can only express disgust at the way this matter has been allowed to
drag on for so long before the High Court. Surely, if counsel had taken steps
to have the case heard on its merits, the parties would have known their
respective rights by now. Counsel would have thus rendered a more useful
service to their clients and enhanced the administration of justice in this
country than they seem to have done so far in this case.<o:p></o:p>The brief
facts concerning this appeal arc that on 3 December 1973 the High Court, Cape
Coast, per Sampson Baidoo J., restrained both sides in this dispute from
putting up any house in the area in dispute. The full order states:<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">&nbsp;“As counsel for the defendants has today also
applied for adjournment due to an attack of ‘flu’, and since it appears
expedient that both parties be restrained from entering the land to avoid any
breach of the peace, an interim injunction is hereby granted restraining both
sides from putting up any house in the area in dispute. John Kweku D. Nunoo,
representing the first defendant, and the other defendants have now got up to
explain that they have dwelling houses and school buildings and a cemetery in
the area. <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">Order:
Both sides are restrained from putting up any new building in the area in
dispute.”<o:p></o:p>The
record shows that the defendants appealed to the Court of Appeal on 29 April
1974. The Court of Appeal heard the appeal on 1 December 1975 and ordered as
follows:<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">“We are
still clearly of the opinion that the land should be preserved in a status quo
at the date of the writ and while we order that neither the first defendant nor
the appellant or any person claiming title through him should commence any new
building, we think the balance of justice requires that the appellants be
permitted to continue to complete the buildings they have commenced and which
provoked this action. To that extent, we allow the appeal and vary the order of
the court below as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:1.0in;text-align:justify;mso-pagination:none;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">Both parties are restrained from
commencing any new structures on the land in dispute save and except the
buildings which the appellants have commenced and which have reached various
stages of construction. In the circumstances of this case, we think each party
should bear his own costs and we so order.”<o:p></o:p>Thus both
sides were restrained by the Court of Appeal from commencing any new structures
on the land in dispute. It seems to me that this order by the Court of Appeal
is clear and unambiguous and that both sides had a duty to observe same for as
long as it remained in force. In Harding v. Tingey (1864) 23 L.T. 323 at 325,
Kindersley V.C. affirmed this when he held that it is of the “greatest
importance that either an order for an injunction or an interim order should be
implicitly observed and every diligence exercised to observe it...” One may
also refer to Spokes v. Banbury Board of Health (1865) L.R. 1 Eq. 42 at 48
where the principle is reiterated by Wood V.C. that:<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
simple and only view is, that an order must be obeyed, and that those who wish
to get rid of that order must do so by the proper course, an appeal. So long as
it exists, the order must be obeyed, and obeyed to the letter.”<o:p></o:p>These
principles are essential for the administration of justice otherwise orders
made by the courts will not be worth anything if parties are at liberty to
ignore them; this will surely erode the authority of the court. The main reason
Sampson Baidoo J. gave for restraining both sides was the preservation of
</main>