ANTHONY MENSAH v. NANA KOFI OWUSU FOSUHENE & ANOR
2012
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU, J.A. (PRESIDING)
- FRANCIS KORBIEH, J.A.
- IRENE DANQUAH, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Mariama Owusu, J.A., concerns a land dispute at Twedie involving a 4-acre parcel allegedly acquired by the appellant from Kwaku Nyantakyi with the Toasehenes consent and concurrence. The High Court had granted an interlocutory injunction restraining both parties and their privies from entering or interfering with the land pending trial, with no order as to costs. On appeal, the appellant argued estoppel against the Odikro/caretaker (1st defendant), relied on an alleged default judgment against the Toasehene (2nd defendant), and claimed the ruling was against the weight of affidavit evidence. The Court of Appeal held that, at the interlocutory stage, absent exhibited documents, estoppel could not be determined; issues were joined requiring trial. It affirmed the High Courts discretionary injunction under Order 25 rule 1(1) to preserve the status quo, found no default judgment on the record and noted that Order 10 rule 4(2) bars enforcement of possession against only one joint defendant, and directed the respondent to provide an undertaking under Order 25 rule 9(1).
MARIAMA OWUSU, J.A:
On 10-12-2010, the High Court, Kumasi in an application for an Order of Interlocutory Injunction ruled that:
“In the result, I hereby grant the 1st defendant/applicant’s application for an Order of Interlocutory Injunction against the plaintiff, but vary it to include both parties, their agents, assigns, representatives, servants, workmen, relations, privies, restraining them from entering upon, building, dealing or interfering with the land in dispute pending the hearing and determination of the suit.
There will be no Order as to costs. Parties to bear their own costs.”
Dissatisfied with and aggrieved by the ruling of the High Court, Kumasi, the plaintiff filed the instant appeal.
The Grounds of Appeal are:
a. That the Honourable Court did not advert its mind to the fact that the 1st defendant/respondent was estopped from making any claim having witnessed the transaction between the plaintiff/appellant and the 2nd defendant.
b. That the Honourable Court erred in basing itself on the erroneous claim of the 1st defendant/respondent to be Odikro of Twedie and the grantor of Ayim Awere Stool Land.
c. That the plaintiff/appellant, having obtained judgment against the 2nd defendant, the real grantor and the overlord of the 1st defendant, it is erroneous for the Honourable Court to restrain him.
d. That the ruling given by the Honourable Court was against the weight of affidavit evidence.
e. Additional grounds may be filed upon receipt of a certified true copy of the ruling.
Before dealing with the arguments for and against this appeal, I would like to give a brief background of this case.
The plaintiff issued the writ of summons claiming against the defendants jointly and severally the following reliefs:
1. A declaration of title to the 4-acres land situate, lying and being at Twedie-Ashanti Region on Toase/Awere Stool Land which the plaintiff acquired from one Kwaku Nyantakyi in November, 2008 with the consent and concurrence of the 2nd defendant.
2. A declaration that the 1st defendant’s conduct in entering upon and destroying the plaintiff development on the said 4 acre land is trespassory, unlawful and an infraction of the plaintiff’s proprietary rights.
3. An Order of Perpetual Injunction restraining the defendants, their agents, representatives, assigns, privies and persons acting on their behalf and or at their direction from in any manner trespassing on the plaintiff’s land.
4. General and special exemplary and pu