MRS DENISE KYEI ASENSO & 6 OTHERS vs. SAMUEL MANU ABAYIE & 10 OTHERS [2011]DLCA3710

Date	2011-10-28
Suit No.	NO. H3/112/2011
Citation No.	[2011]DLCA3710

MARIAMA OWUSU (MISS) J.A. (PRESIDING

F.G. KORBIEH J.A

IRENE C. DANQUAH (MS.) J.A.

[2011]DLCA3710
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													<main id="main" class="content" style="min-height: 60rem" >MRS DENISE KYEI ASENSO
&amp; 6 OTHERS<o:p></o:p>vs.<o:p></o:p>SAMUEL MANU ABAYIE &amp;
10 OTHERS<o:p></o:p>&nbsp;[COURT OF APPEAL, KUMASI]<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">

NO. H3/112/2011&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 28TH OCTOBER, 2011<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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MARIAMA
OWUSU (MISS), J.A. (PRESIDING), F.G. KORBIEH, J.A. AND IRENE C. DANQUAH (MS.),
J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>On 28th July
2011, this court dismissed an application filed by the
Plaintiffs/Appellants/Applicants (Applicants) invoking this court’s “inherent
and statutory jurisdiction” to grant an injunction to restrain the
Defendants/Respondents/Respondents especially the 1st and 2nd
Defendants/Respondents/Respondents (Respondents) from attempting to develop and/or
construct the subject matter of the suit.&nbsp;
This court reserved the reasons to be given on 28th October
2011.<o:p></o:p>The facts as gathered from
the Affidavit in Support of the application are that on 28th March
2011, the High Court gave a ruling compelling the applicants to move an
application for stay of execution which they sought to withdraw.&nbsp; Having appealed against the ruling of the
High Court, the applicant applied to this court for an order to stay the
proceedings of the High Court pending the hearing and the final determination
of the appeal which application was granted on 24th June 2011.&nbsp; Then on 15th July 2011, and in the
face of the pending appeal and the stay of proceedings the 1st
Respondent resorted to self help and forcibly threw the wares of the applicants
out of the property, the subject matter of the suit in the company of armed
Policemen. The forcible eviction and or removal was not done in the presence of
any court official but it was supervised by a Clerk of the law firm of the
Respondent’s Counsel who was constantly on phone with Counsel for the
Respondents who gave instruction and orders to his Clerk.&nbsp; In the process of the forcible eviction and
removal, some of the Applicant’s goods which were thrown onto the streets were
destroyed whilst bystanders under the pretext of helping to salvage them looted
some of the goods.&nbsp; Apart from the goods
destroyed and looted, which were worth several thousands of Ghana Cedis, the
Applicants lost various huge cash sums of monies including dollars which were
looted when the contents of their shops were thrown out onto the street.&nbsp; By the morning of the following day after the
incidence, the Respondents had caused the subject matter in dispute to be razed
down completely.&nbsp; The act of the
Respondents in the forcible removal and/or eviction was carried out in a
purported execution of an order of the High Court dated 23rd July
2010 in a suit in which the Applicants were not parties.&nbsp; The Applicants have urged this court to grant
the application to avert the substantial miscarriage of justice occasioned them
in order to thwart the fraudulent and illegal conduct of the Respondents so
that they could not benefit from their wrong in illegally over reaching them.<o:p></o:p>The Respondent resisted
the application by filing a 25 paragraph Affidavit in Opposition deposed to by
their Counsel who stated that he had been personally in charge of the conduct
of the case from its inception and therefore seized with knowledge of all facts
including the antecedents of the case and what triggered off the issue of the
Writ in the instant case by the Applicants.<o:p></o:p>In order to give coherency
to the facts as deposed to in the Affidavit in Opposition, we would not follow
the random sequence in which the facts were narrated but re-arrange them for a
better appraisal as follows:<o:p></o:p>The 1st and 2nd
Respondents hold a valid Land Certificate issued under the Land Title Registry,
Accra in respect of the subject matter in dispute.&nbsp; <o:p></o:p>The subject matter was a
building which until it was demolished was the premises known and numbered as
OTB 128 Adum, Kumasi which was a building comprised of several stores some of
which were occupied by the Applicants.&nbsp;
The 1st and 2nd Respondents as lessees of the
premise are under a legal obligation by way of a covenant in the Head Lease to
pull down the building and re-develop a four story building whose construction
was to have commenced in November 2010 and to be completed in two years or forfeit
the lease.<o:p></o:p>The Respondents have been
granted a hoarding and demolishing permit and a building permit by Kumasi
Metropolitan Assembly (KMA).&nbsp; On 23rd
July 2010 the Applicants obtained an order for possession in respect of the
property in Suit No.IRL/40/2010 entitled ANTHONY MENSAH &amp; 2 OTHERS VRS
SAMUEL MANU ABAYIE &amp; 2 OTHERS from the High Court.<o:p></o:p>Although the Applicants
were not parties in the said suit, they were each served with the Entry of Judgment.&nbsp; &nbsp;Execution
of the writ of possession was levied on 29th November 2010 against
all the occupants of the property except the Applicants because at that time,
the Applicants had issued the instant suit against the Respondents and filed an
application for interim injunction.&nbsp; On 6th
July 2011, there being no legal impediment in the way, the 1st and 2nd
Respondents applied to the High&nbsp; Court
which granted them leave to possess and demolish the premises.&nbsp; The supervising judge wrote to request for
armed Police Assistance and protection for the labourers who were to carry out
the demolishing.&nbsp; Everything which took
place on the day of the demolishing was orderly.&nbsp; Since the Police Officers were present to
provide protection, nobody could have stolen any moneys or looted the
Applicants wares as was being alleged.&nbsp;
The Applicants did not report any theft of either their goods or monies
to any of the Policemen present or thereafter to any Police Station.&nbsp; The Respondents contended that since the
Applicants by their own showing acknowledge that the whole structure had been
razed down and therefore the subject matter does not exist and since the
Applicants are not asserting title to the land, there is no compelling reason
for this court to make any restraining orders against the 1st and 2nd
Respondents.&nbsp; <o:p></o:p>The Respondents further
challenged the Applicants to point out which portion of the Order made by this
court in staying the proceedings of the court which is executable.&nbsp; The Respondents urged this court to dismiss
the application as having no merit as same is frivolous, petty and vexatious.<o:p></o:p>In arguing the application
Counsel for the</main>