ABUSUAPANIN ASAFO ADJEI vs. LAWRENCIA MIREKU [2010]DLHC7077

Date	2010-05-21
Suit No.	SUIT NO. E1/49/2010
Citation No.	[2010]DLHC7077

HIS LORDSHIP JUSTICE G.S. SUURPAAREH

AGYEPONG BAAH HOLDING STEPHEN ASANTE BEKOE'S BRIEF FOR APPLICANT.

FRANCIS POLLEY HOLDING SIR ASANTE ANSONG'S BRIEF FOR RESPONDENT

[2010]DLHC7077
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													<main id="main" class="content" style="min-height: 60rem" >ABUSUAPANIN ASAFO ADJEI<span style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0"><o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>LAWRENCIA MIREKU<span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0"><o:p></o:p>[HIGH COURT, KOFORIDUA]<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>COUNSEL: <o:p></o:p>AGYEPONG
BAAH HOLDING STEPHEN ASANTE BEKOE'S BRIEF FOR APPLICANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 2.0pt 0in">

FRANCIS POLLEY HOLDING SIR ASANTE
ANSONG'S BRIEF FOR RESPONDENT. <o:p></o:p>

HIS LORDSHIP JUSTICE G.S. SUURPAAREH<o:p></o:p>

</div>The
Plaintiff/Applicant, who instituted this action as head of Tanoso Family of New
Juaben, is claiming against the Defendant/Respondent a declaration of title to
house No. AT/M 55 at Atekyem in Koforidua, and an order that the purported gift
of the said house by the late Samuel Kwame Afreh to the Defendant is null and
void and of no legal effect. <o:p></o:p>The
Plaintiff/Applicant, hereafter called the Applicant, subsequently brought this
application seeking to restrain the Defendant/Respondent, called the Respondent
hereafter, and persons claiming through or by her from ejecting any tenant from
the disputed house and also for an order directed at the tenants or occupants
to pay all rents into court pending the final determination of the matter. <o:p></o:p>In
his affidavit in support of the motion as well as the facts in his statement of
case, the Applicant alleged that the disputed house was put up by the
Respondent's late husband with proceeds from the sale of portions of family
land whilst he was appointed to act by his mother, Akosua Serwah, when the
family property came into her possession and further that the house was built
on part of the family land. <o:p></o:p>After
setting out in his statement of case the basis of the Respondent's claim to the
disputed house, he went on to set out the principles upon which applications
for interlocutory injunctions are dealt with as enunciated in cases like CENTRACOR RESOURCES V. BOOHENE [1992-93]
GBR 1512; VANDERPUYE V. NARTEY [1977] 1 GLR 428 and FOOD SPECIALITIES V. MULTI CONSTRUCTION SA. [1987-88] 1 GLR 55 CA
amongst others. <o:p></o:p>Concluding,
the Applicant, in his Statement of Case, made reference to his pleadings about
his capacity and interest in the disputed property and his claim that it is
family property and submitted that it cannot be a subject of a gift by any
member of the family. According to the Applicant, apart from the dispute over
the chamber and hall by George Acheampong which went before the District Court,
Koforidua, he was never aware of the Respondent's claim to the house, and
submitted that it was a proper case to grant an injunction so as to maintain
the status quo. <o:p></o:p>The
Respondent, in her affidavit in opposition, not only denied the Applicants
capacity, but also the fact that he was ever in physical possession of the
disputed house. She then went on to allege intermeddling in respect of the
estate of her deceased husband, Samuel Kwame Afreh, by the Applicant and one
George Acheampong and contended that the dispute house was a gift to her and
her children. <o:p></o:p>According
to the Respondent, the District Court made a clear and specific finding about
the family character of the house and by law she and her children were owners
thereof and had taken steps to eject tenants. <o:p></o:p>In
a statement of case, the Respondent also made reference to the principles
governing such applications from the decided cases and cited in particular
VANDERPUYE V NARTEY (supra); NEW PATRIOTIC PARTY V. ELECTORAL COMMISSION NO.1
[1992-93] 1 GLR 1 at 3 and MONTERO V. REDCO LTD. [1984-86] 1 GLR 710 at 714
amongst others. <o:p></o:p>In
conclusion, it was contended on behalf of the Respondent that a successor to
her late husband who instituted the action at the District Court and lost had
claimed that the house was family property but that the court find otherwise
and that without appealing against it, the Applicant's institution of the
present action is abuse of the judicial process. <o:p></o:p>The
motion paper, though said to be under Order 25 r 1 of the High Court (Civil
Procedure) Rules 2004, CI 47, also went on to seek a further order that tenants
or occupants in the disputed house pay rents into court pending the final
determination of the dispute. An order for payment of funds into court, which
is a subject of dispute between parties, may be made upon an application made
under Order 25 r 2 of CI 47 upon an application to preserve property. From
Order 25 r 2 (3) of CI 47, it must be shown that a specific fund exist and that
the right of a party to the fund is disputed. In the instant case, there is
nothing to show that there exist any funds to which the parties are indispute.
The Applicant's claim also includes damages for trespass and this will take
care of any rents which the Respondent would have earned should his action
succeed. The order for the payment of rent to court is therefore refused. <o:p></o:p>With
regard to the prayer for</main>