CHARLES OSEI BONSU v. DOROTHY ABOAGYE & ABENA KONADU

SOPHIA ADINYIRA (MRS.) JSC (PRESIDING):

Facts

The parties entered an agreement on 20 March, 2008, under which:

Plaintiff was to construct a two-storey building on Defendants’ land on No. Plot 25, Block 11, Asokwa Residential Area, Kumasi, containing:

25 storerooms on the ground floor,

25 storerooms on the first floor,

A residential apartment on the second floor.

Plaintiff was to enjoy 2/3 of the building for 30 years from the date of completion of the ground and first floors. Defendants were to enjoy 1/3 of the building for 30 years, and the whole building after 30 years from the date of completion.

Plaintiff was to apply his own financial resources, labor, materials and equipment.

Plaintiff was to complete the ground and first floors within 2 years from March 20, 2008, and the second floor within 1 year from the completion of the ground and first floors.

Pursuant to the agreement, Plaintiff demolished an old structure on the premises and partially constructed a building, at an alleged cost of GHc400, 000 and US$1,000. Plaintiff was however unable to complete the building within the period agreed, leading to an abrogation of the agreement by the Defendants in May 2010. Plaintiff brought an action against the landowners to recover costs of construction, with interest, for the partially completed two-storey building Plaintiff continues to lease and collect rental income from the completed portions of the building, and possesses the keys to the storerooms. Its reasoning was that the Plaintiff seeks a purely financial remedy, thereby admitting that Defendants have the right to ownership of the disputed property.

The High Court referred to dictum in American Cyanamid Co. v. Ethicon Ltd [1975], All ER 504 HL that:

“If damages in the measure recoverable at common law would be adequate remedy and the defendants would be in a financial position to pay them, no interlocutory injunction would normally be granted, however strong the plaintiff’s claim appeared to be at that stage.”

The High Court therefore concluded that the Defendants must have the right to control and manage the property, to derive maximum financial income from the property so as to be able to satisfy Plaintiff’s demands at the end of the trial. Further the High Court was of the view that it is premature at that stage of the proceedings to determine that Defendants are incapable of refunding the Plaintiff’s financial investments.

On April 23, 2013, the Court of Appeal granted the Plai