DR. HAYFORD NSIAH & ANOTHER v. BEN KWABENA KUSI & OTHERS
2021
COURT OF APPEAL
GHANA
CORAM
- TANKO AMADU, JSC (Presiding)
- H.A. KWOFIE, J.A.
- A. OPPONG, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Equity and Trusts
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case concerns a land dispute at Anwomaso, Kumasi, involving two plots (Nos. 90 and 91, Block W) on the Osei Boa Stool Lands purchased by the Appellants from the 1st Defendant. Their title was affirmed in customary arbitration at the Anwomasohenes palace and later at the Asantehenes Land Court. The Respondents subsequently relied on a District Court (Asokwa-Kumasi) judgment, which the Appellants claim was procured without notice and by fraud. The Appellants sought an interlocutory injunction to restrain the Respondents from entering, selling, or otherwise dealing with the land pending trial. The High Court refused the injunction, reasoning that nemo dat could protect the Appellants. On appeal, Tanko Amadu JSC held that the High Courts discretion was injudicious, as it failed to consider the balance of convenience, status quo, hardship, irreparable harm, and the earlier customary award. The Court allowed the appeal, reversed the refusal, and ordered both parties to maintain the status quo under Rule 32(1) of C.I. 19.
TANKO AMADU JSC
(1) This appeal emanates from the ruling of the High Court (Kumasi) dated the 25th day of June 2018 wherein the Plaintiffs/Appellants (hereinafter referred to as the ‘Appellants’) application for interlocutory injunction was dismissed.
(2) In the High Court, the Appellants took out a writ of summons against the Defendants/Respondents (hereinafter referred to as the ‘Respondents’) for the following reliefs:
“a) A declaration that the judgment of the District Court
titled AKWASI ASANTE & 2 OTHERS VS. KWABENA KUSI SUIT NO.A11/39/2015 was procured by fraud.
b) An order of the court setting aside the judgment of the
District Court Asokwa Kumasi dated 15th day of September 2015 titled AKWASI ASANTE AND 2 OTHERS VS. BEN KWABENA KUSI with Suit No.A11/39/2015 on grounds of fraud.
(3) In an exhaustive amended statement of claim, filed subsequent to the motion for interlocutory injunction, the Appellants averred inter alia that sometime in 2010 they acquired a parcel of land from the 1st Defendant at Anwomaso Kumasi comprising two Plots numbered 90 and 91 Block W on the Osei Boa Stool Lands after sufficient enquiries had revealed that the land belonged to the 1st Defendant. Subsequently, the Appellants were provided with an allocation note and site plan in their joint names after which they went into possession, erected a fence wall around same, and constructed a two room structure on a portion of the land.
(4) According to the Appellants, the 2nd Defendant and a deceased brother of his, claimed ownership of the land and summoned the 1st Defendant at the palace of the Anwomasohene for an arbitration which was later withdrawn for settlement at which family elders resolved that the land belonged to the 1st Defendant which he validly sold to the Appellants. The 2nd Defendant and the deceased brother being dissatisfied with the settlement then took the matter to the Asantehene’s Land Court for arbitration at which it was resolved that the land belonged to the 1st Defendant and that he had validly sold same to the Appellants.
(5) Notwithstanding the aforesaid matters, by the return of the 1st Appellant from studies in the United States, the 2nd Defendant and his deceased brother had continued to lay claim to the land but the 1st Appellant now relies on a judgment dated 15th September 2016 obtained from the District Court Asokwa-Kumasi which they, the Appellants herein had no notice of at all. The Appellants therefore assert that given the status o