NANA KOFI OWUSU vs. KWAKU OWUSU ANSAH & BAFFOUR APPIAH DANKWA [2007]DLSC2446

Date	2007-03-14
Suit No.	CIVIL APPEAL NO. J4/21/2006
Citation No.	[2007]DLSC2446

MISS AKUFFO (J.S.C.) PRESIDING

BROBBEY J.S.C.

ANSAH J.S.C.

ASIAMAH J.S.C.

MRS. ADINYIRA J.S.C

MR. APATU PLANGE FOR APPELLANTS

MR. SAM WOOD FOR RESPONDENT.

[2007]DLSC2446
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													<main id="main" class="content" style="min-height: 60rem" >NANA KOFI OWUSU<o:p></o:p>vs.<o:p></o:p>KWAKU OWUSU ANSAH
&amp; BAFFOUR APPIAH DANKWA<o:p></o:p>[SUPREME COURT]<o:p></o:p>CIVIL APPEAL NO. J4/21/2006<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE: 14TH MARCH 2007.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;MR. APATU PLANGE FOR APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. SAM WOOD FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>&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; <o:p></o:p>J
U D G M E N T<o:p></o:p>&nbsp;SOPHIA ADINYIRA (MRS.) J.S.C.:&nbsp; On 14 June 2002, the Court of Appeal
overturned the grant of an order of interim injunction by the High Court
Kumasi. That judgment is the subject of the present appeal.<o:p></o:p>The
appellant was the co-defendant at the High Court and the respondent was the
plaintiff. On 20 October 2000, the plaintiff/respondent (hereinafter referred
to as plaintiff) who claims to be the Odikro of Twedie and caretaker chief of
all Twedie lands on behalf of Toasehene, sued the defendant a citizen and
Assemblyman of Twedie, for declaration of title, damages for trespass, recovery
of possession and perpetual injunction in respect of a piece and parcel of land
earmarked for Durbar Grounds for the community by the Bosomtwe-Atwima Kwanwoma
District Planning Authority. His complaint was that the defendant had sent a
caterpillar to clear the land and had deposited sand on the land for development.<o:p></o:p>&nbsp;The defendant admitted entering upon the land,
which he claimed was allocated to him by the Anantahene whom he claimed to be
the owner of the Twedie lands. The Anantahene applied and was joined as
co-defendant to the action. The co-defendant/appellant (hereinafter referred to
as co-defendant) counter-claimed for the usufructuary or possessory title of
the whole of Twedieland which is bounded by rivers Amoakowaa, Danyame and
Ayankoa, which he claimed was demarcated from part of Toaseland to settle subjects
of Anantahene upon the orders of Otumfuor Opoku Ware I about 300 years ago. The
co-defendant applied for an order of interim injunction restraining the
plaintiff from making allocation of plots of land of the properties in dispute
pending the final determination of the action.<o:p></o:p>The
trial court granted the order of interim injunction against the plaintiff. His
reasoning was as follows:<o:p></o:p>“It
is noted that the land in dispute and other lands in the area are subject of
protracted litigation since 1946 between the co-defendant and the Toasehene.
The exhibit tendered also indicates that the co-defendant has a petition
pending before the Kumasi Traditional Council in respect of the land in the
area including the disputed land. That dispute is between the co-defendant and
the Toasehene and the plaintiff in this case is alleging that he is the agent
of the Toasehene.<o:p></o:p>From
the pleadings and the submissions the co-defendant says he is the Odikro of
Twedie and the plaintiff says he is the Odikro of Twedie and/Agyekum. This
contention raises serious legal issues, which borders on chieftaincy, an issue,
which is outside this court’s jurisdiction. According to the plaintiff he is
the Odikro of Twedie and Agyekum and an agent of Toasehene. Since there is a
pending litigation involving the land in the area including the land in dispute
between the Toasehene and the co-defendant who is also the Odikro of Twedie, I
think there are series of legal issues to be determined in this case and
considering the interests of the various parties in this case it is my view
that there is the need to preserve the status quo. In my view therefore, prima
facie, the applicant’s claim is not frivolous or vexatious and in the
circumstances therefore I grant the application.’<o:p></o:p>The
plaintiff being dissatisfied appealed to the Court of Appeal against this
ruling on the grounds that:<o:p></o:p>1.&nbsp;&nbsp;&nbsp; The ruling is against the weight of
evidence.<o:p></o:p>2.&nbsp;&nbsp;&nbsp; The trial judge erred in law when he based
his ruling on matters not in evidence.<o:p></o:p>His
Lordships at the Court of Appeal were of the view that if the trial judge had
considered the pleadings and affidavit evidence before him he would have found
that the plaintiff had a better claim to the disputed land than the
co-defendant and would not have granted the order of interim injunction. They
accordingly set aside the order of interim injunction. The co-defendant
obviously not satisfied with the decision of the Court of Appeal launched this
appeal before us on the sole ground that the judgment is against the weight of
evidence.<o:p></o:p>&nbsp;The only substance in the rather cursory
statement of case filed by the co-defendant in the appeal before this Court was
that “on the face of the pleadings and affidavits of the appellant his claim is
not frivolous or vexatious; there is therefore the need to preserve the status
quo to avoid irreparable damage to the appellant”<o:p></o:p>It
is trite law that the granting or refusal of an injunction is at the discretion
of the trial court, but that discretion has to be exercised judiciously. In the
exercise of such discretion the trail judge ought to take into consideration
the pleadings and affidavit evidence before it.&nbsp;
See the case of Pountney v. Doegah [1987-88] 1 GLR 111 at 116.<o:p></o:p>&nbsp;It is pertinent at this stage to look at the
rel</main>