DR. PAUL ACQUAH (PLAINTIFF) vs. IBRAHIM ISSAKA (DEFENDANT) [2007]DLHC7399

Date	2007-11-01
Suit No.	SUIT NO AL 70/2007
Citation No.	[2007]DLHC7399

HIS LORDSHIP E. K. AYEBI J.

[2007]DLHC7399
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													<main id="main" class="content" style="min-height: 60rem" >DR. PAUL ACQUAH<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>IBRAHIM ISSAKA<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (FAST TRACK), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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NO AL 70/2007&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 1ST NOVEMBER, 2007<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;
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HIS LORDSHIP E. K. AYEBI J.<o:p></o:p>

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</div>The
claim of the plaintiff in this suit is for a declaration of title to all that
piece of land situate at Nungua New Town-Accra, recovery of possession, general
damages for trespass and an order of perpetual injunction restraining the
defendant, his servants, agents and workmen form interfering in any way with
the land. <o:p></o:p>The
basis of plaintiff's claim is that on 19th March 1996, Robert Sacketh Danquah
and Amma Adubea Danquah assigned their unexpired interest in the land which
they leased from the Nungua Stool in 1973. The deed of assignment was stamped
as No. LVB 7435/99 and registered as No. 2175/1999. The assignment plaintiff
said was consented to by the Greater Accra Lands Commission in 1997. In 2003,
plaintiff said he obtained building permit No. 137 to enable him develop the
land. <o:p></o:p>According
to the plaintiff, whiles mobilizing funds to commence his project, defendant
trespassed on the land and started building on it at an alarming rate. As a
first step, he reported defendant's conduct to the police. Yet still, defendant
will not stop the work. Plaintiff says the defendant is determined to deprive
him of his property, hence this action against him. <o:p></o:p>Consequent
upon the issue of the writ of summons, plaintiff brought this motion for an
order of interim injunction to restrain the defendant, his servants and assigns
from the continued acts of trespass until the suit is determined. In a
statement of case it is submitted for the plaintiff that his claim is neither
frivolous nor vexatious. So it is just and convenient to restrain the defendant
in order to maintain the status quo until the final determination of the suit. <o:p></o:p>Defendant
as usual opposed the application to restrain him vehemently. This is because he
is indeed building on the land and has reached the roofing level. That being so
he will suffer greater hardship if restrained for the reason that he is in dire
need of accommodation for himself and family and he has perishable materials on
site. <o:p></o:p>Admittedly,
the alloidial owner and for that matter the original grantor of the land in
dispute is the Nungua Mantse. The high point of defendant's case is that the
grant of the land to his lessor was prior in time to that of the plaintiff's.
It is defendant's case that Mallam Musa was granted a large piece of land by
the Nungua Mantse in 1969 as per Exhibit 2 attached. When he died Alhaji Alfa
Musa was appointed his administrator. Alhaji Alfa Musa also gave him defendant
a power of attorney to administer the land. <o:p></o:p>Defendant
asserted that in his lifetime, Mallam Musa took possession of the land and
constructed an outhouse and a foundation of a building. And on 2002, whilst he
defendant was on the land, Mohammed Kadir and Abena Mansa trespassed on the
disputed land in suit No. CCL 185/02 he obtained judgment against them and was
put in possession by a writ of possession. Further defendant stated that during
the pendency of that suit, hearing notices were placed all over the piece of
land. And at a stage the plaintiff herein contacted him on the land and he
informed him about the on-going suit. But he never came to join the suit.
Defendant averred that when the police saw his documents and the judgment, they
allowed him the continue working on the land and he has almost completed the
building. Defendant says considering the balance of convenience he will suffer
greater hardship if the application is granted but plaintiff/applicant will
loose nothing if it is refused. So it should be refused. <o:p></o:p>Under
the Rules of Court, an application for an order of interim injunction is
permitted by Order 25 Rule 1 of C.I. 47. The rule permits the court in the
exercise of its discretion, to grant the order in all cases in which it appears
to the court to be just or convenient so to do and the
order may be made unconditionally or on such terms and conditions as the court
considers just. This principle is re-echoed by the Supreme Court in EKWAM VRS. PIANIM (No.1) [1996-1997] 117.
And the term just or convenient is explained in GHANA PRIVATE ROAD TRANSPORT UNION OF THE TRADE UNION CONGRESS VRS.
DANFUL [1995-1996] 1 GLR 20. <o:p></o:p>In
determining whether an application for an order of interim injunction falls
within the rule, the applicant must show that he has a good arguable claim to
the right he seeks to protect — see AMERICAN
CYANAMID CO. VRS. ETHICON LTD LTD.[sic] [1975] AC 396. In QUANSAH VRS. QUANSAH
[1984-1986] 1 GLR 718 it is stated that this right must be asserted
either in law or in equity in order to invoke the court’s discretion to grant
the application in protection of the said right. The satisfaction of this
requirement would also mean that the claim as a whole as shown on the affidavit
evidence is not frivolous or vexatious. <o:p></o:p>In
deciding the application, the court is not permitted to pronounce on the merits
of the substantive claim on the basis of the affidavit evidence before it. This
is so because the basic purpose of an order of interim injunction is as much as
possible to hold the balance evenly between the parties, pending the final
resolution of matters in difference between the parties and also to ensure that
at the end of the day, the successful party did not find that his victory was
an empty me, or one that brought him more problems than blessings — ODONKOR VRS. AMARTEI [1987-1988] GLRD
54. <o:p></o:p></</main>