NANA BOADU SEMERIKA I vs. MR. KWAME BOAKYE & OR. [2015]DLHC8209

Date	2015-05-26
Suit No.	SUIT NO. C12/122/14
Citation No.	[2015]DLHC8209

HIS LORDSHIP JUSTICE JACOB B. BOON

SOLOMON OPPONG TWUMASI FOR PLAINTIFF/APPLICANT.

OBENG MANU FOR DEFENDANTS/RESPONDENTS.

[2015]DLHC8209
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													<main id="main" class="content" style="min-height: 60rem" >NANA BOADU
SEMERIKA I<o:p></o:p>vs.<o:p></o:p>MR. KWAME
BOAKYE &amp; OR.<o:p></o:p>[HIGH
COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C12/122/14&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
26TH MAY, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SOLOMON
OPPONG TWUMASI FOR PLAINTIFF/APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

OBENG
MANU FOR DEFENDANTS/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;
padding:0cm 0cm 1.0pt 0cm">

HIS
LORDSHIP JUSTICE JACOB B. BOON<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;
padding:0cm 0cm 1.0pt 0cm">

</div>This
ruling is in respect of an application for perpetual injunction to restrain the
defendant/respondents, to be referred to as the defendants, pending the final
determination of the suit filed by the plaintiff/applicant, hereafter called
the plaintiff. The plaintiff filed a writ in the Registry of this Court on 5th
April, 2014, originally against only the first defendant claiming (a) a
declaration that as the Nifahene of Adansi Abadwum and the chief of Nyamso he
is the only person clothed with authority to alienate Nyamso lands, (b) an
order of perpetual injunction, and (c) an order for account for all lands that
have been alienated by the defendant. In his response, the first defendant
asserted that his services were engaged by the queen of New Edubiase, one Nana
Akua Dwum II, to demarcate pieces of land in the area. According to him, he was
engaged as a professional for a fee and he performed the part of his bargain in
terms of the contract between him and the queen. He denied being involved in
alienation of any land as his services were limited to demarcating the land, I
presume, into building plots. Upon leave granted by the Court, based on an
application by the plaintiff, the queenmother of New Edubiase was joined to the
action as the second defendant; on joining the action, she filed a statement of
defence. Meanwhile, the plaintiff was further granted leave and he amended both
the writ of summons and statement of claim which were filed on 23/10/14.<o:p></o:p><o:p>&nbsp;</o:p>In
her statement of defence, the second defendant denied the assertion of plaintiff
that he is the Nifahene of Abadwum making him the caretaker of Abadum lands, as
well as being solely vested with authority to demarcate such lands.<o:p></o:p><o:p>&nbsp;</o:p>Even
before the second defendant filed her statement of defence on 7/4/15, the plaintiff
brought the instant application on 2/4/15 seeking an order of perpetual injunction to restrain
the defendants, their agents, servants, workmen, assigns and all their privies
from alienating the disputed land pending&nbsp;
the &nbsp;final determination of the
suit.<o:p></o:p><o:p>&nbsp;</o:p>In
the endorsement to his amended writ of summons, a major and final relief sought
by the plaintiff was decree of perpetual injunction against the defendants. My
understanding is that such an order, not been interlocutory or interim or
temporary, could only be made after the case is heard on merits, and not at this
early stage of the case when hearing has not begun. &nbsp;Unlike an interlocutory injunction which is
usually granted to maintain the status quo until the questions at issue are
determined by the court, perpetual injunction, on the other hand, is decreed
upon hearing the merits of the case. It is a decree which concludes a right. It
therefore surprises the court that the plaintiff has asked for perpetual
injunction at this early stage of the suit. At this stage, the proper
application would have been for an interlocutory injunction, not the more
permanent injunction, which, if granted now, will have the effect of disposing
off the suit without hearing the parties on the merits of it.<o:p></o:p><o:p>&nbsp;</o:p>The
application cannot be granted as it will be unfair to the defendants to be
perpetually restrained by an order of injunction in respect of the disputed
land without giving them a hearing in their defence. The application is
accordingly dismissed. <o:p></o:p>

<o:p>&nbsp;</o:p></main>