BATTIS COMPANY LTD. vs NANA YAW A. YEBOAH & ORS
October 9, 2018
HIGH COURT
GHANA
CORAM
- HER LADYSHIP, JUSTICE GIFTY AGYEI ADDO
Areas of Law
- Civil Procedure
- Contract Law
- Property and Real Estate Law
October 9, 2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
In the Ghana High Court, Her Ladyship Justice Gifty Agyei Addo considered an interlocutory motion by the Plaintiff, a constructor of a six-bedroom residential apartment at East Airport, Accra for the Defendant’s use, seeking an order to preserve that property pending trial. The underlying suit, filed on 28 February 2018, asserts an outstanding indebtedness of GH¢314,459.55, interest at the prevailing commercial bank rate, damages for breach of contract, and costs. The Defendant opposed, claiming beneficial/equitable ownership, that the Plaintiff holds the legal estate interest in the balance due, and that the apartment is his residence; he argued a preservation order would bar his access and cause hardship. Applying Order 25 of CI 47 and the guidance in General Development Co. Ltd v. Rad Forest Products Ltd, the court found the dispute’s subject matter is money owed, not the property itself; there was no evidence of risk of disposal and clear hardship. The court refused the application with no order as to costs.
The Plaintiff instituted the instant action on 28th February, 2018, against the Defendant for the following reliefs:
a. An order for the recovery of the sum of Three Hundred and Fourteen Thousand, Four Hundred and Fifty Nine Ghana Cedis and Fifty five pesewas(GH¢314, 459. 55) being the outstanding amount to be paid for the house built.
b. Interest at the going commercial Bank rate on the outstanding balance of Three Hundred and Fourteen Thousand, Four Hundred and Fifty Nine Ghana Cedis and Fifty five pesewas (GHS 314, 459. 55) to be paid by the Defendants.
c. General damages for breach of contract.
d. Cost. e. Any further or other reliefs that this Honourable court may deem fit.
The Defendant, through his Counsel, entered appearance on 20th April, 2018. On 28th June, 2018, the Plaintiff, as Applicant, filed a motion on notice for an order for preservation of a six bedroom residential apartment situate at East Airport which the Plaintiff states it built for the use of the Defendant pending the final determination of the suit.
The gravamen of the application can be found in paragraphs 7 to 10 of the affidavit in support, a summation of which is as follows: The Plaintiff/Applicant states that per the Defendant/Respondent’s Statement of Defence, particularly paragraphs 2 to 11, the Defendant/Respondent concedes that the subject matter in dispute between the parties is a six-bed room residential apartment situate at East Airport, which the Plaintiff/Applicant built for the use of the Defendant/Respondent.
The Plaintiff/ Applicant states further that the said six-bed room residential apartment is at the risk of being sold or dissipated if the instant application is not granted.
The Plaintiff/Applicant concludes that the circumstance of the present suit warrants the grant of the instant application for an order for preservation of the said house in respect of which any question may arise during trial.
The Defendant as Respondent has opposed the application per his affidavit in opposition filed on 11th July, 2018. In paragraphs 5 to 8 of the affidavit in opposition, the Defendant/Respondent states as follows: 5. The Defendant contends that although he has not fully paid for the construction of the house, he is still a beneficial/equitable owner and the plaintiff who holds the legal estate interest is in the balance due and owing.
6. Indeed, prior to the Defendant travelling out side the jurisdiction, there was a positive rapport between the Plaintiff an