DR. VINCENT DANIEL ANKU vs. AKOSUA OBENEWA, STELLA GYAMFI GREEN AND JOSEPH FIANKO [2010]DLHC7395

DR. VINCENT DANIEL ANKU vs. AKOSUA OBENEWA, STELLA GYAMFI GREEN AND JOSEPH FIANK... [2010]DLHC7395

Date	2010-11-30
Suit No.	SUIT NO. E1/20/2011
Citation No.	[2010]DLHC7395

HIS LORDSHIP JUSTICE G.S. SUURBAAREH

BERNARD AHIAFOR FOR APPLICANT.

EGBERT FAIBILLE JNR. AND WITH HIM IRENE DOVLO AND NSAFOAH

SARPONG FOR RESPONDENTS

[2010]DLHC7395
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													<main id="main" class="content" style="min-height: 60rem" >DR. VINCENT DANIEL ANKU<o:p></o:p>vs.<o:p></o:p>AKOSUA OBENEWA, STELLA GYAMFI GREEN AND JOSEPH FIANKO<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;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. E1/20/2011&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: 30TH NOVEMBER, 2010<o:p></o:p>

</div>COUNSEL: <o:p></o:p>BERNARD
AHIAFOR FOR APPLICANT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EGBERT FAIBILLE JNR. AND WITH HIM
IRENE DOVLO AND NSAFOAH SARPONG FOR RESPONDENTS <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 JUSTICE G.S. SUURBAAREH<o:p></o:p>

</div>The present application
comes on the heels of an action instituted by the Plaintiff/Applicant, called
the Applicant hereafter, against the Defendants/ Respondents, hereinafter
called the Respondents. In the substantive action the Applicant is seeking a
declaration of title, damages for trespass and an order for recovery of
possession of a piece of land particularly described in the Writ of Summons. He
is also seeking an order of perpetual injunction against the Respondents and
all persons claiming by or through them. <o:p></o:p>In the motion paper, the
Applicant is seeking to restrain, by way of interlocutory injunction, the
Respondents, their workmen, privies and assigns from working on the disputed
land pending the outcome of the litigation. The motion was supported by an
affidavit and a statement of case in accordance with the rules. <o:p></o:p>From his depositions in
support of the motion paper which are basically a recap of the averments in his
statement of claim, his claim to the disputed land is based on a conveyance
executed in his favour by one Yaw Aboa head and lawful representative the Otutu
Banase family of Brekuso dated 1st October, 2008. The Applicant also relies on
a declaration of consent and concurrence to the conveyance made to him by
principal members of the grantor's family. <o:p></o:p>The Applicant, who alleges
that the 1st Respondent's purported grant to the 2nd Respondent is illegal,
null and void for the reason that she was not the head of family and thus had
no capacity to alienate family property, also relies on the minutes of a certain
meeting convened when it was realised that the 1st Respondent had alienated
family land as well as an alleged admission of her lack of capacity and an
apology rendered by her. <o:p></o:p>The Applicant then
concluded that having regard to the business he intents to use the land for,
that hardship and inconvenience would be worked on him if the Respondents are
not restrained in the interim from working on the land. <o:p></o:p>After repeating the facts
constituting the basis of his claim and the application in his statement of
case, the applicant then referred to the principles that govern such
applications as laid down in decided cases over the years like the need to show
that the action is not frivolous or vexatious by demonstrating the existence of
serious issues for determination; balance of convenience between the parties as
well as the hardships that would be occasioned upon a grant of refusal.
According to the applicant, applying these principles to the facts and
circumstances of the case, especially the capacity of the grantors of the
parties and the purpose of his acquisition, a need for a grant has been made
out. <o:p></o:p>The Respondents, who
naturally opposed the application, relied on the averments as to the
circumstances in which the 2nd Respondent was granted the land by the 1st
Respondent and what she did, through her agent, before the land was conveyed to
her and the fact that the land has since being registered in the name of the
2nd Respondent. <o:p></o:p>Relying on the fact that
the conveyance to the 2nd Respondent dated 18th January, 2008 is prior in time
to that of the Applicant and that same was by the 1st Respondent as queen
mother/stool mother who had the authority of the family to alienate, they
concluded that the 2nd Respondent has since the acquisition gone into effective
occupation and began some development. <o:p></o:p>The Respondents denied the
1st Respondent ever admitting her lack of capacity at any forum at which she
also rendered an apology contending that at a meeting, when the issue of the
earlier conveyance to the 2nd Respondent came up, the Applicant was told to get
a refund which he has since resisted and that the exhibits about the
declaration in support of the conveyance to the Applicant and the minutes of a
meeting annexed to his affidavit were self-serving and of no legal effect. <o:p></o:p>In the concluding
paragraphs of their affidavit in opposition as well as their statement of case,
the Respondents also set out the principles that govern applications for
interlocutory injunctions notably the need to demonstrate the existence of an
interest that needs protection; that the action was not frivolous or vexatious,
a consideration of the balance of convenience and whether on the facts the
applicant's case is maintainable. <o:p></o:p>Elaborating on these
principles in their statement of case, copious reference was made to decided
cases setting out these principles. It was submitted on their behalf that
having regard to the facts in their statement of defence and counter-claim
especially the fact that the 2nd Respondent's interest in the land has been
duly registered and was also prior in time to the conveyance to the Applicant,
that the application should be refused with punitive cost. <o:p></o:p>Before I proceed to deal
with the application on its merits, I wish to deal with certain points of law
raised by the pa</main>