KIVERTY IVY VICTORIA OBENG vs. WELBECK MENSAH YEMOH [2018]DLHC3490

Date	2018-11-08
Suit No.	SUIT NO.GJ/1747/16
Citation No.	[2018]DLHC3490

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2018]DLHC3490
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">KIVERTY
IVY VICTORIA OBENG<o:p></o:p></a>vs.<o:p></o:p>WELBECK MENSAH YEMOH<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<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">

SUIT
NO.GJ/1747/16&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 8TH NOVEMBER, 2018<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:0in 0in 1.0pt 0in">

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<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>By
this application the Plaintiff/Applicant is praying the court for the grant of
an order of interlocutory injunction to restrain Defendant and his agents and
assigns from dealing with the subject matter of the dispute being at Baatsonaa.
She also ask for a further order appointing the Registrar of the court to
receive rents and manage the property pending the final determination of the
suit.<o:p></o:p>In
the affidavit that accompanied the application the applicant claim that the res litiga was acquired by the applicant
but placed in the joint names of the parties whiles they were married in
England. She claim that the marriage was dissolved in England making Respondent
relocate to Ghana. Applicant depose that without the consent of her Respondent
has taken control of the property, rented it out to tenants and failed to
account for same. It is therefore the prayer of the Applicant that an
injunction be placed on further receipt of the rent by Respondent and a
receiver in the person of the Registrar of the High Court appointed to collect
the rent till the final determination of the suit.<o:p></o:p><o:p>&nbsp;</o:p>Respondent
on the other hand has strongly resisted the application claiming that though
the property is in their joint names but was solely acquired by him. He depose
that he contracted his own brother to build property and paid for same.
Respondent further contends that he relocated to Ghana not to escape his
responsibility as a father to the two children of the marriage but instead he was
discharged by the Brentford County Court on a charge of molestation brought
against him by the Applicant. To Respondent the Batsonaa property was solely
built by him as the Applicant who worked just two hours a week could not have
made any meaningful contribution and Applicant was therefore not entitled to
any 50% share in that property. This is more so as Respondent signed a consent
order during their divorce proceedings relinquishing his claim to the property
in England on the understanding that Applicant would have no share in the
property in Ghana. <o:p></o:p>Finally
Respondent makes the claim that the house is under renovation with no rent
being paid and in the same breath claim that the house under renovation is
occupied by him and his spouse.<o:p></o:p>Order
25 Rule 1 of the High Court (Civil Procedure) Rules, C. I. 47 states as
follows:<o:p></o:p>“The court may grant an
injunction by an interlocutory order in all cases in which it appears to the
court to&nbsp; be just or convenient to do so,
and the order may be made either unconditionally or upon such terms and
conditions as the court considers just”<o:p></o:p>In
an application for interlocutory injunction it is the duty of the applicant to
demonstrate that there is a right that ought to be protected at law or in
equity, that greater and irreparable hardship will be occasioned by the refusal
of the application, that the application is not frivolous or vexatious and that
compensation may not be adequate remedy. See the following cases: OWUSU v OWUSU ANSAH [2007-2008] SCGLR
870 at 875, VANDERPUYE v NARTEY
[1977] 1 GLR 428; AMERICAN CYNAMID CO v
ETHICON CO. LTD [1975] AC 396, THOMAS
APPIAH ANSAH v NANA KATAKYIRE II Suit No. H1/154/11CA.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant accompanied the application with what it claims to be an indenture,
being Ex ‘FA1’ that shows that the Baatsonaa property is in the joint names of
the parties before the court. I have carefully examined the order from the
Brentford County Court and the letter from the Solicitors of Applicant. Whiles
it is not the duty of the court to make findings of fact at this stage it
suffices to state that the claim of Applicant of being a part owner of the
property is not frivolous nor vexatious. The exhibits demonstrate a right that
ought to be protected in law or in equity before the final determination of the
suit.<o:p></o:p>Nonetheless,
the establishment of a right that merit protection alone is not the only factor
worth considering in an application of this nature. Applicant is calling for
the appointment of the Registrar of the court to be the receiver/manager to
receive the rent and manage same. The appointment of a receiver/manager is not
governed by Order 25 of the High Court (Civil Procedure) Rules, C. I. 47 but
rather Order 27 which states as follows:<o:p></o:p>“Appointment
of receiver <o:p></o:p><p class="MsoNormal" style="mso-margin-top-alt:auto;mso-margin-bottom-alt:auto;
text-align:justify;line-height:115%;mso-pagination:widow-orphan;mso-layout-grid-align:
auto;punctuation-wrap:hanging;text-autospace:ideograph-numeric ideograph-other">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
1. (1) The Court may appoint a receiver by an interlocutory order in all cases
in which</main>