MARTEY AND OTHERS vs. APPEADU (NO 2) [1992]DLCA4244

Date	1992-10-29
Suit No.
Citation No.	[1992]DLCA4244

LAMPTEY JA

AMUAH JA

FORSTER JA

NANA AKUFO-ADDO FOR THE APPELLANT.

T TOTOE FOR THE RESPONDENTS.

[1992]DLCA4244
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													<main id="main" class="content" style="min-height: 60rem" >MARTEY AND OTHERS<o:p></o:p>vs.<o:p></o:p>APPEADU (NO 2)<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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[1993 - 4] 1 GBR 274 – 281&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 29 OCTOBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NANA
AKUFO-ADDO FOR THE APPELLANT.<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">

T
TOTOE 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 1.0pt 0in">

</div>AMUAH
JA. This is an appeal from a ruling of Owusu J granting the plaintiffs’
application for an order for interim injunction pending the full determination
of the case between the parties. An application for an order for the
appointment of a receiver and manager was also granted because the learned
trial judge found that there was need for it.<o:p></o:p>The
facts leading to this appeal are briefly set out as follows: According to the
plaintiffs-respondents (hereinafter called “the mission”) they acquired (a)
Plot Block P Suame, Kumasi and (b) Plot Open-Space Suame Extension, Kumasi from
the Atutue stool and the Ghana Government respectively and built houses on them
which are now being used as schools. The funds for the erection of the mosque
were donated during a convention organised by the mission in 1979. They further
claimed that the defendant-appellant, hereinafter called the “the defendant”,
was appointed by the mission as a headmaster of the schools to manage them and
that the mission is entitled to possession.<o:p></o:p>On
the other hand the defendant described himself not as an agent of the mission
but as proprietor and owner of the said properties. He also claimed that he
built the mosque from funds he realised on launching an appeal and also from
his own resources.<o:p></o:p>These
conflicting claims went before the learned trial judge for adjudication. The
learned trial judge settled the issues for trial in September 1984. Hearing did
not start until February 1987 and it took the plaintiffs more than four years
to close their case on 3 June 1990 having called about twenty-three witnesses.
The defendant was yet to open his case. At this stage the mission brought a
motion “for an order for an interim injunction restraining the defendant, his agents,
servants and/or privies from interfering with or in any way continuing to
manage, administer or otherwise oversee the affairs of the Ghana Muslim School
(Primary and Middle), the Islamic Secondary School as well as the King Khalid
mosque, all in Kumasi and being properties of the Ghana Muslim Mission and part
of the properties in dispute in the instant action; and from the use of the
said King Khalid mosque and, or any part of the Ghana Muslim School (Primary
and Middle) and the Islamic Secondary School aforesaid for the purpose of, or
in furtherance of his personal activities and operations and, or for the work
or operation of the Ghana Islamic Mission or organisation which the defendant
herein had established following his expulsion from the Ghana Muslim Mission,
to the prejudice and detriment of the plaintiffs-applicants herein and the
Ghana Muslim Mission; and for the appointment of an independent administrator
and receiver to administer and oversee the work and affairs of the Ghana Muslim
School (Primary and Middle), the Islamic Secondary, and the King Khalid Mosque
pending the final hearing and determination of the suit upon grounds set out in
his accompanying affidavit”.<o:p></o:p>Paragraphs
24 and 25 of the accompanying affidavit set out the main grounds for filing the
motion on 3 July 1991. They are:<o:p></o:p>“Ground 20:<o:p></o:p>The plaintiffs maintain that the
defendant has been conducting himself in such a way and manner as tends to
delay the due and early hearing of the case.<o:p></o:p>Ground 21:<o:p></o:p>That the plaintiffs further contend
that the defendant’s obvious dilatory and dirty conduct is the result of the
fact that he is currently placed in unfair advantageous position to exploit and
benefit directly from the properties now in dispute to the detriment and
annoyance of the plaintiffs herein the Ghana Muslim Mission and the entire
membership of the Mission.”<o:p></o:p>The
defendant in his affidavit in opposition denied that he had conducted himself
as alleged and further contended that “if the applicants are minded of the
welfare and well-being of the schools and the mosque they would not take such
steps”.<o:p></o:p>The
learned trial judge after listening to arguments and referring to authorities,
granted the application for an order of injunction restraining the defendant
“from interfering with or in any way continuing to manage, administer or
otherwise oversee the affairs” of the three said properties, the subject-matter
of the application. The defendant was also restrained “from using the said
properties for the purpose of or in furtherance of his personal activities and
operations and for the work or operation of the Ghana Islamic Mission except
that the members are permitted to worship in the said mosque”. The application
for an order appointing an independent administrator and manager or body of
administrators and managers was also granted.<o:p></o:p>It
is against this decision or ruling that the defendant has appealed since, in
his view, the learned trial judge applied the wrong principles in consideration
of the application before her. It will be observed from the judgment of the
learned trial judge that she relied heavily on the principles set out in the
celebrated case of Vanderpuye v Nartey [1977] 1 GLR 428. In Vanderpuye v Nartey
the ground which necessitated the application was that the property was being
wasted. In this instant case it is delay and perhaps tension generated by the
continued presence of both parties on the premises. Whatever it is, the learned
trial judge cannot lay the blame for the delay “at the doorstep” of either of
the parties and in a case where one side has called about 23 witnesses, she
cannot say that the other side is not entitled to call just as many. Amendments
are made in the course of the trial and if they are irrelevant and causing
unnecessary delay, it is for the court to refuse to grant them. This has not
been the turn of events in this instant case.<o:p></o:p>The
tension which is alleged to have taken form over the years did not erupt
suddenly, and if it existed in 1985, at the time when the defendant either
broke away or was</main>