BOTWEY v. EDWEY IX

JUDGMENT OF ESSIEM J.A

On 15 November 1990 we allowed this appeal but reserved our reasons, which I now proceed to give. The writ in this case was issued on 23 July 1973. This appeal only concerns an interim order made by the High Court, Cape Coast on 30 May 1986. It is not plain from the record why this case has lasted for so long in the High Court, Cape Coast. As at now, the main case is still pending before the High Court. I can only express disgust at the way this matter has been allowed to drag on for so long before the High Court. Surely, if counsel had taken steps to have the case heard on its merits, the parties would have known their respective rights by now. Counsel would have thus rendered a more useful service to their clients and enhanced the administration of justice in this country than they seem to have done so far in this case.

The brief facts concerning this appeal arc that on 3 December 1973 the High Court, Cape Coast, per Sampson Baidoo J., restrained both sides in this dispute from putting up any house in the area in dispute. The full order states:

[p.181]

"As counsel for the defendants has today also applied for adjournment due to an attack of 'flu', and since it appears expedient that both parties be restrained from entering the land to avoid any breach of the peace, an interim injunction is hereby granted restraining both sides from putting up any house in the area in dispute. John Kweku D. Nunoo, representing the first defendant, and the other defendants have now got up to explain that they have dwelling houses and school buildings and a cemetery in the area.

Order: Both sides are restrained from putting up any new building in the area in dispute."

The record shows that the defendants appealed to the Court of Appeal on 29 April 1974. The Court of Appeal heard the appeal on 1 December 1975 and ordered as follows:

"We are still clearly of the opinion that the land should be preserved in a status quo at the date of the writ and while we order that neither the first defendant nor the appellant or any person claiming title through him should commence any new building, we think the balance of justice requires that the appellants be permitted to continue to complete the buildings they have commenced and which provoked this action. To that extent, we allow the appeal and vary the order of the court below as follows:

Both parties are restrained from commencing any new structures on the land in dispute save and except the buildings