EBUSUAPANYIN WIABO {SUING FOR AND ON BEHALF OF THE BRETUO EBIRADZE ROYAL FAMILY OF HIMAKROM AS IT’S HEAD OF FAMILY, FARMER HIMAKORM} (PLAINTIFF) vs. OPANYIN SOMIAH AND NANA EBEN AYEBOAFO IX [2019]DLHC7041

EBUSUAPANYIN WIABO {SUING FOR AND ON BEHALF OF THE BRETUO EBIRADZE ROYAL FAMILY... [2019]DLHC7041

Date	2019-01-14
Suit No.	SUIT NO E12/24/17
Citation No.	[2019]DLHC7041

HIS LORDSHIP JUSTICE RICHARD ADJEI – FRIMPONG J

BAFFOUR DWUMAH ESQ. FOR THE PLAINTIFF

JOHN MERCER ESQ. FOR THE 2ND DEFENDANT

[2019]DLHC7041
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN WIABO {SUING FOR AND ON BEHALF OF THE BRETUO
EBIRADZE ROYAL FAMILY OF HIMAKROM AS IT’S HEAD OF FAMILY, FARMER HIMAKORM}<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>OPANYIN SOMIAH AND
NANA EBEN AYEBOAFO IX<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;
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SUIT
NO E12/24/17&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 14TH JANUARY,
2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BAFFOUR
DWUMAH ESQ. FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JOHN MERCER ESQ. FOR THE 2ND
DEFENDANT.<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="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>By this application the plaintiff seeks
an order of interlocutory injunction retraining the defendants, their agents,
assigns and all who claim through them from having anything to do with the
disputed land pending the final determining of the Suit. <o:p></o:p>Order 25 rule I sub rule 1 of the High
Court {Civil Procedure} Rules C.I 47 defines the Court’s discretionary power to
determine such applications. The Rule states that, the Court may grant an
injunction by an interlocutory order in all cases in which it appears to the
Court to 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>I believe all the legal and equitable
principles espoused in case law in granting or refusing injunctions are
captured under this just or convenient test prescribed by the rule.<o:p></o:p>In applying the test and for that matter
the legal and equitable principles, the duty of the Court is to act judicially
and on the basis of the pleadings and affidavit evidence adduced before it. See
Owusu Vrs: Owusu Ansah {2007/2008) 2 SCGLR 870.&nbsp;&nbsp; Accordingly, I have in this case studiously
read the pleadings filed by the parties. I have in like manner examined the depositions
in the rival affidavits and attended to their respective annexures. I have
further given due consideration to the submissions contained in Counsels’
statement of case.<o:p></o:p>The issue of the plaintiff’s capacity
to file the suit as head of family has been raised in this action. Fundamental as
the issue is, it matters in the consideration of this application. I have
however examined the plaintiff’s exhibits EW3, EW3 A and EW4 all of which are
records of suits the plaintiff had filed in the challenged capacity. Indeed EW4
is a judgement of the High Court which went in favour of the plaintiff in his
capacity as head of family. For purposes of this application I am satisfied
that the plaintiff has discharged the burden on the basis of the affidavit
evidence.<o:p></o:p>Now, it will be seen that the plaintiff
had claimed as a licensor to the 1st defendant which license he has
sought to revoke for the stated reason. The first relief on the endorsement
reads:&nbsp; “A revocation of the license
granted to defendant and his family to farm on the defendant’s land situate at Bonsokrom
now known as Nkwantaesia and which land is bounded by the lands belonging to
Ebusuapanyin Obunu, T. K. Cobbinah, and the stool lands Enuanom-asa and Hotopo”.
The plaintiff has exhibited a copy of the license as exhibit EW 1.<o:p></o:p>Apparently this claim presumes title in
favour of the plaintiff’s family.&nbsp;
However, the 1st defendant has denied the plaintiff’s claim
and named the 2nd defendant as the owner of the land. <o:p></o:p>&nbsp;By his defence, the 2nd defendant
has claimed title to the same land and stated that the 1st defendant
is on the land at the behest of his stool.<o:p></o:p>Indeed the 2nd defendant has
sought to impugn the license on which the plaintiff relies to make his case.<o:p></o:p>From the above, it should be clear that
at this stage title to the land is in issue and that issue is joined between
the plaintiff and the 2nd defendant. This application for injunction
therefore ought to be considered in this broader context. &nbsp;&nbsp;&nbsp;&nbsp;<o:p></o:p>Within that context, it seems to me
that exhibit EW1, the anchor of the plaintiff’s case will not matter much. It
should be so because in my well-considered view as far as the issue of title
between the plaintiff and 2nd defendant is concerned, hardly can one
bind the 2nd defendant with exhibit EW1, he not being a signatory to
it. &nbsp;In any case, exhibit EW1 as I can
see does not describe the identity and boundary of any land. It will require
evidence at the trial to connect exhibit EW1 to the boundaries mentioned by the
plaintiff in his endorsement. Apart from that exhibit EW1 has admissibility issues
to contend with in terms of compliance with the section 4 of the Illiterates {Protection}
ACT CAP 262 as all the signatories thumb printed the documents but </main>