ABUSUAPANYIN KWAKU NTIM vs. NANA OFOSU ADDO I [2010]DLHC7078

Date	2010-02-04
Suit No.	SUIT NO. E1/24/2010
Citation No.	[2010]DLHC7078

KOSSI EFO KAGLO J. SITTING AS HIGH COURT JUDGE.

KOFI AMOATEY FOR PLAINTIFF/APPLICANT

K. OPOKU-MANU FOR DEFENDANT/RESPONDENT

[2010]DLHC7078
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													<main id="main" class="content" style="min-height: 60rem" >ABUSUAPANYIN KWAKU NTIM<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>NANA OFOSU ADDO I<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. E1/24/2010&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; DATE:
4TH FEBRUARY, 2010.<o:p></o:p>

</div>COUNSEL: <o:p></o:p>KOFI
AMOATEY FOR PLAINTIFF/APPLICANT. <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">

K. OPOKU-MANU FOR
DEFENDANT/RESPONDENT. <o:p></o:p>

KOSSI EFO KAGLO J., SITTING AS HIGH
COURT JUDGE.<o:p></o:p>

</div>This
is a motion on notice praying this court to restrain the defendant, workers,
agents, assigns and all who derive authority from him from carrying out any
construction, development or dealing with the land the subject-matter in
dispute. <o:p></o:p>The
motion is supported by a nine (9) paragraph affidavit sworn by the
Plaintiff/Applicant. <o:p></o:p>The
Plaintiff/Applicant described himself as the Head of Family of Yaw Osae family
of Akropong-Akwapim and brings this action on his own behalf and that of the
said family. He alleges that the Defendant without any just cause entered and
started building a sand-crete block wall against his family property at Akropong.
In addition the defendant/respondent has caused to graded the entire land
without any lawful cause and that the defendant's entry upon the land will
change the nature of the family property. He said that the presence of the
defendant upon the land constitutes trespass and that this court should
restrain the Defendant/Respondent. To this, the Defendant/Respondent filed an
affidavit in opposition to the application. <o:p></o:p>According
to the Defendant/Respondent, the Plaintiff/Applicant's application does not
show any rights he holds to any land as belonging to his family. The
Defendant/Respondent says he is in possession of the land in issue and has
shown in his statement of defence that, his grantors are the lawful owners of
the land in dispute. His grantors have duly transferred the land to him
Defendant for a whole three (3) years before Plaintiff/Applicant woke up from
his slumber. <o:p></o:p>According
to Defendant, Plaintiff/Applicant's application is in bad faith as
Plaintiff/Applicant's application discloses no ground to support the prayer. <o:p></o:p>Defendant/Respondent
added that Plaintiff has stood by for defendant to go to great expense to
repair and renovate the almost dilapidated and very old building to a new one
and operating a school in the property which is benefitting many pupils
attending in addition to the many teachers and non-teaching staff.
Defendant/Respondent says if the Plaintiff/Applicant is claiming the land for
the family, he could be compensated in monetary terms in the unlikely event
that Plaintiff/Applicant, wins the case. Defendant/Respondent also exhibited
photographs of the building in its original state and its improved state with
an inscription on the frontage wall as "Victory International School"
with two (2) students standing on the forecourt of the school. <o:p></o:p>The
exhibits are numbered "NOA 1" to "NOA 3". The
Defendant/Respondent finally pray that if Plaintiff/Applicant's prayer is
granted, he will be put to much hardship considering the use to which the
building is being put. <o:p></o:p>In
matters of this nature, I am minded to follow the principle enunciated in the
case of Odonkor &amp; Anor. Vrs. Amatei [1987-88] 1 GLR 578 section which
states that "the basic purpose of interim order is a much as possible, to
hold the balance evenly between the parties, pending a final resolution of
matters in difference between them, and also to ensure that at the end, of the
day the successful party does not find that his victory is an empty one or one
that brings him other more problems than blessings". <o:p></o:p>It
is also for the judge to look at the whole case. He must have regard NOT only
to the strength of the claim but also to the strength of the defence and then
decide what is best to be done. "See the case of Hubband Vrs. Vosper
[1972] 2 W L R 389 at 396 by Lord Dennin".<o:p></o:p>In
fact, in reviewing the affidavit evidence plaintiff/Applicant has not shown how
the storey building came to be on his family land or did he tell this court
when defendant entered unto the land for the first time. He should also tell
the court what he did when he first saw the defendant on the land. All these
steps will have strengthened plaintiff's case against the Defendant/Respondent.
Authorities abound that "in an action which raises a question of title to
land ... long possession and acts of ownership affords pregnant evidence of
title in the person in possession notwithstanding, the non-production of his or
her title deed and even against some evidence of title in the other
party". <o:p></o:p>The
Plaintiff/Applicant has not shown how long his family was in possession of the
land and even how they came by the land. <o:p></o:p>However,
the Defendant/Respondent has show that, he acquired the land from his Vendors
who acted as lawful representatives of their entire family and granted him a
fifty year lease. Defendant/Respondent also has shown that, af</main>