CATHOLIC DIOCESE OF SEKONDI—TAKORADI vs. EBUSUAPANYIN STEPHEN AMOAH & ANOR [2019]DLHC7040

Date	2019-07-16
Suit No.	SUIT NO. E1/54/19
Citation No.	[2019]DLHC7040

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.

CONSTANTINE KUDZEDZI ESQ. FOR THE PLAINTIFF /RESPONDENT

CHRISTIAN TEYE AZU ESQ. FOR THE DEFENDANTS /APPLICANTS.

[2019]DLHC7040
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													<main id="main" class="content" style="min-height: 60rem" >CATHOLIC DIOCESE OF SEKONDI—TAKORADI<o:p></o:p>vs.<o:p></o:p>EBUSUAPANYIN STEPHEN
AMOAH &amp; ANOR<o:p></o:p>[HIGH
COURT, SEKONDI]<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. E1/54/19&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 16TH
JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CONSTANTINE
KUDZEDZI ESQ. FOR THE PLAINTIFF /RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CHRISTIAN TEYE AZU ESQ. FOR THE
DEFENDANTS /APPLICANTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J.<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="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>In considering whether or not to
grant an interim injunction, the court must have regard not only to the strength
of the claim, but to the defence also and then consider the relative
convenience or inconvenience which might result to the parties. See
AGYEI-ACHEAMPONG VRS DONKOR (1980) GLR 108.<o:p></o:p>The provision in Order 25 rule 1 of
the High Court (Civil Procedure) Rules, CI 47 clearly encapsulates this
principle. It states:<o:p></o:p>“The
Court may grant an injunction by an interlocutory order in all cases in which
it appears 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>I have in a thorough manner examined
the cases put forth by the parties in their pleadings. I have also taken a look
at the depositions in the rival affidavits and their annexures. Of particular
significance are the two previous judgments of the High Court the parties rely
on. I have also apprised myself of the arguments contained in the respective
statements of case.<o:p></o:p>The plaintiff pleads that it has
been in lawful possession of the subject land upon a Deed made by the Apowa
Stool in February 1949 to its predecessor in title, the Catholic mission of the
Gold Coast also known as the Sacred Congregation of Propaganda Fedei. Evidence
of the plaintiff’s possession of the land has been pleaded as permitting the
siting of a Police Station and a Library for the Apowa community, a Retreat
Center, Seminary, Aged Home for Priests and most recently a Children’s Hospital
which has sparked off the instant application. The defendants do not dispute any
of these. <o:p></o:p>The gravamen of the defendants’ case
is that it has recently obtained a judgment from the high Court which states that
the Apowa lands do not belong to the Apowa stool but individual families one of
which was their Anona Family, a party to the suit. Exhibit KK annexed to their
affidavit is the said judgment. They also claim to have been in possession of
their family land.<o:p></o:p>The plaintiff on the other hand
cites a favourable judgment it obtained in this court against two persons who
had laid claim to portions of the land. This judgment is Exhibit 4 attached to
affidavit in opposition. Obviously, the defendants were not parties to Exhibit
4. Nonetheless, the fact of the favourable decision at the very least, lends
credence to the plaintiff’s evidence of lawful possession of the land.<o:p></o:p>Going through the defendants’
exhibit KK, though the key holding of the court was that families at Apowa as
opposed to the stool owned lands, it was also recognized that the stool family
had its own land. At page 44 of exhibit KK, the Learned Judge opined as
follows:<o:p></o:p>“From
the evidence adduced in this case, the fact of families owing (sic) land within
Apowa divisional area cannot be disputed. The claim that families are squatters
has no merit in the light of conveyance made and same confirmed by defendant.
This evidence also points to the fact of families owing (sic) land hence the
arrangement and demands for the payment of the one-third portion to the stool.
Such arrangement is known in customary law albeit the stool family has its own
land.”<o:p></o:p>By this passage, I believe it
becomes imperative for a family claimant like the defendants’ to clearly define
the extent of its land in order to establish a claim on the basis of the
judgment. The judgment does not afford such clear definition and there is yet
no such evidence before the court.<o:p></o:p>I will concede that the grant to the
plaintiff was not made by the stool family. It was made in the name of the
stool. But then the judgment did not declare a nullity all grants the stool
might have made previously. In any event, I observe that given the notorious
acts of possession of the plaintiff stretching over several decades, there is
no much evidence before me in the meantime to accept the position that the
disputed land forms part of the defendants’ family land.<o:p></o:p>Above all, I am mindful of the activity
being undertaken on the land for which the order is sought-- the construction
of a childrens’ hospital. This is expected to serve the entire community. Members
of the defendants’ own family stand to benefit. It is perfectly within the
right of the defendants’ as they have done to assert their claim in ignorance
of the communal benefits the facility will introduce. However, I am of the view
that damages will in the end afford adequate compensation if they succeed in
establishing their case.<o:p></o:p>On all the facts considered, this court
does not find it just or convenient to grant the application. It is accordingly
dismissed.<o:p></o:p>Costs of GH 700.00 for the Plaintiff/Respondent
against the Defendants/Applicants. <o:p></o:p>

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