KWADWO OPOKU & ANOTHER vs. ERIC KOFI BOATENG [2018]DLHC9314

Date	2018-03-19
Suit No.	SUIT NO. OCC 80/2017
Citation No.	[2018]DLHC9314

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

AKUA POKUAA KWARTENG FOR THE PLAINTIFFS/APPLICANTS

AMA ASENSO FOR THE DEFENDANT/RESPONDENT

[2018]DLHC9314
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													<main id="main" class="content" style="min-height: 60rem" >KWADWO
OPOKU &amp; ANOTHER<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>ERIC
KOFI BOATENG<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><o:p>&nbsp;</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:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. OCC 80/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 19TH MARCH,
2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AKUA
POKUAA KWARTENG FOR THE PLAINTIFFS/APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AMA ASENSO FOR THE DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>This
is a double edged application for an order appointing a receiver to take over
and manage House Number Block 39, Plot 1, Ahodwo, Kumasi (the property in
dispute) and for an ancillary order of injunction restraining the defendant
and/or his assigns from continuing to deal with the aforesaid property.<o:p></o:p>The
facts leading to this application are that on 30th May, 2017 the
plaintiffs/applicants issued a writ of summons against the defendant/respondent
herein seeking the following reliefs:<o:p></o:p>a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Recovery of the land as well as the
building thereon known as House No. Block 39, Plot 1, Ahodwo-Kumasi.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order from this Honorable Court directing
the Defendant to render accounts on the said property.<o:p></o:p>c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; General Damages for breach of the lease
agreement of 18th August, 1999.<o:p></o:p>d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Costs including lawyer’s fees.<o:p></o:p>The
case of the Plaintiffs is that sometime in August 1999, they entered into an
agreement with the Defendant in order that he develop a portion of Block 39,
Plot 1, Ahodwo, Kumasi for the defendant’s use and benefit over a period of
thirty five (35) years, after which said term the property was to be handed
back to Plaintiffs. The plaintiffs contend that they entered into the agreement
on the strength of their beneficial interest in the land.<o:p></o:p>As
part of the agreement, the Defendant was to build on the land, a two-storey building
with a basement. It was a term of agreement that on completion of the ground
floor the rent proceeds from the stores would be used to sponsor and facilitate
the travel of two (2) members of the Plaintiff’s family abroad, with the
destination being either Europe or the United States of America.<o:p></o:p>It
is the plaintiffs’ case that the Defendant built a four-room structure at the
basement. The plaintiff, however, alleges that it was not well constructed, as
the area was muddy and was not well prepared for construction. This, according
to the plaintiff/applicant has caused that entire area to flood excessively
whenever it rains and that the basement has been rendered inhabitable.<o:p></o:p>It
is also the plaintiffs’ case that the Defendant completed the ground floor of
the structure sometime in 2001 but has since refused to sponsor any member of
the Plaintiffs’ family to travel abroad as was agreed, despite the receipts and
benefits from rent proceeds of the five stores therein. Demands and reminders
from the Plaintiffs only seem to induce anger and threats from the defendant
and despite his failure to abide by the terms of the agreement he has been
unwilling to compensate the Plaintiffs in any way or form for the inconvenience
and breach.<o:p></o:p>The
Defendant has continued to enjoy proceeds from the rent of parts of the
building since 2001 and the Plaintiffs have gained absolutely nothing to date.<o:p></o:p>It
is the case of the plaintiff that even after the commencement of this suit, the
Defendant has further plans to rent out more shops and commence new tenancies
of the disputed property.<o:p></o:p>It
is the defendant’s case that he has been willing to fulfil his part of the
agreement but the plaintiffs have not been cooperative and have frustrated his
attempts. He alleges that the plaintiffs have prevented him from developing the
first and second floors by issuing of threats.<o:p></o:p>Counsel
for the plaintiffs/applicants submitted that the applicants have a legal right
which must be protected and that the applicants will suffer irreparable damage
which cannot be remedied by the award of damages unless the interlocutory
injunction is granted. <o:p></o:p>Counsel
for the respondent submitted that the applicant have failed to demonstrate in
the affidavit evidence that she has some legal or equitable rights which must
be protected. Counsel also submitted that the nature of the agreement entered
into by the parties does not warrant the appointment of a receiver.<o:p></o:p>Both
parties cited a plethora of authorities in support of their submissions.<o:p></o:p>