JOSEPH BANDOH vs. NANA ANTWI ABAA [2010]DLCA3167

Date	2010-10-29
Suit No.	HI/36/2010
Citation No.	[2010]DLCA3167

MARIAMA OWUSU JA [PRESIDING]

FRANCIS G KORBIEH JA

IRENE C DANQUAH JA

[2010]DLCA3167
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													<main id="main" class="content" style="min-height: 60rem" >JOSEPH BANDOH<o:p></o:p>vs.<o:p></o:p>NANA ANTWI ABAA<o:p></o:p>[COURT OF APPEAL, KUMASI]<o:p></o:p>HI/36/2010&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
29TH OCTOBER, 2010<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL:<o:p></o:p>

</div>CORAM:<o:p></o:p>MARIAMA OWUSU JA [PRESIDING], FRANCIS G KORBIEH
JA, IRENE C DANQUAH JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>IRENE C DANQUAH JA<o:p></o:p>This
is an interlocutory appeal from the ruling of the High Court, Kumasi, dated
October 13, 2009 which refused the plaintiff’s application for an interlocutory
injunction to restrain the defendant, his agents, assigns, workmen/employees,
servants and all who claim through or under him from going unto the land, which
is the subject matter of the suit, and or adverse to the interest of the
plaintiff. <o:p></o:p>The
facts of the case, from the pleadings, are straight forward. The plaintiff
averred that he acquired a plot of land situated at Sepasi, in the Ashanti
Region, from the Government of Ghana and a lease was executed on February 2,
1983 to that effect. <o:p></o:p>The
plaintiff thereafter took possession of the land and constructed two bedrooms
and 5 pens for his birds and also cultivated mixed crops on a portion of the
land.<o:p></o:p>In
the early part of the year 2009 and after being in occupation for a period of
not less than sixteen (16) years, the defendant subsequently trespassed onto
the said land and destroyed the properties thereon. Hence, the issue of the
writ by the plaintiff for the following reliefs:<o:p></o:p>“i. A
declaration of title to the land so described in the site Plan annexed hereto”.
The defendant stated that the land in dispute forms part of a larger tract of
land belonging to Anno Abrafo stool and lies at Ahodwo Maakro and shares common
boundaries with Fabi farms, Breman Nsafoahene’s land, and the Dwahen stream.
Defendant further stated that the plaintiff failed to pursue a complaint he
made against him for causing unlawful damage to his properties when he realized
the futility of his case. Defendant then counterclaimed as follows:<o:p></o:p>“ i.
declaration of title to all that parcel of land including that portion
currently in possession of the plaintiff and bounded by Fabi farms, Breman
Nsafoahene’s land and Dwahen stream.<o:p></o:p>ii.
recovery of possession.”<o:p></o:p>After
the ruling delivered by the High Court aforesaid, the plaintiff aggrieved by
the ruling filed a notice of appeal seeking by way of relief to have the ruling
dated October 13, 2009 by the High Court set aside and for an order of
injunction to be made against the defendant.<o:p></o:p>The
grounds of appeal read as follows:<o:p></o:p>“a. The
Ruling/Order/Decision was not borne out of the records and or documents filed.<o:p></o:p>b.
Additional ground will be filed upon receipt of the Record.”<o:p></o:p>I
must say that the plaintiff (appellant) did not file any additional grounds in
this appeal. The defendant (respondent) did not file any written submission in
answer although he was served with the written submission of case filed by the
appellant’s counsel.<o:p></o:p>In
his submission, counsel for the appellant argued that the appellant annexed to
his affidavit in support of the application Exhibit JB1 which is the site plan
which delineates his plot of land and Exhibit JB2 which is the lease agreement
dated 1st January, 1983 executed by the Government of Ghana in
favour of the appellant for a term of 50 years. <o:p></o:p>Counsel
further argued that Exhibit JB3 shows the portion of the appellant’s land which
has been trespassed by the respondent. He contended that the composite plan,
Exhibit NAB, which the respondent caused to be drawn up after the appellant
filed his documents, did not clearly show the bearings of the land or the area
being claimed by the respondent. Counsel further argued that Exhibit NAB is not
stamped nor registered. <o:p></o:p>Counsel
for the appellant therefore submitted that the reason the learned trial judge
gave for refusing the application, that is, that the parties are not ad idem
about the location and size of the land they are litigating about and therefore
will need a clear proof at the trial is not sufficient reason as same was not
borne out by the record.<o:p></o:p>The
law on interlocutory injunction is quite clear. The power of the court to grant
such an application is derived from Order 25 Rule 1(1) of the High Court Civil
Procedure Rules, 2004, C.I. 47, which provides that:<o:p></o:p>“The court
may grant an injunction </main>