February 10, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose from the Accra High Court’s refusal to grant an injunction in a family property dispute tied to the estate of Lt Col. (rtd) John Kwame Koomson. The appellant, his brother and customary successor/executor, sought to restrain Emmanuel Kwame Koomson, one of the deceased’s children, from actions alleged to constitute intermeddling, including breaking locks and occupying the master bedroom of House No. C95/23 at Alogboshie, Achimota. Emmanuel contested that the property belonged to his mother, Capt. (rtd) Dora Naa-Akuyea Koomson, under a 1965 conveyance, with letters of administration granted in 2009. Applying Order 25 r 1(1) and the Vanderpuye/American Cyanamid guidelines, and the strict limits on appellate interference with discretion, the Court of Appeal found serious issues to be tried but held the respondent was in possession with a prima facie claim. It affirmed the refusal and required an undertaking to preserve the status quo pending trial, with no order as to costs.
BRIGHT MENSAH JA:
My Lords, this appeal is an invitation to this court to interfere in a judicial discretion that the lower court, the High Court, [General Jurisdiction], Accra exercised per its Ruling delivered 14/09/2020. In a short Ruling, the learned trial judge has held:
“By Court:
The application for injunction filed on the 27th of May 2020 is
hereby refused. The defendant/respondent is to sign an under-
taking before the 21st of September 2020.”
See: p 73A of the record of appeal [roa].
The ruling was given against the backdrop of a motion on notice for an order of interlocutory injunction filed against the defendant which motion, together with its supporting affidavit, annexures/exhibits as well as statement of case, was filed with the lower court on 12/12/2019. And that appears on pp 17 - 24 [roa]. A supplementary affidavit was subsequently filed on 27/03/2020. See: pp 46-73 [roa]. An affidavit in opposition to challenge the application was also filed 08/07/2020 including Counsel’s statement of case and which also appears on pp 27-42 [roa]. In the final analysis, the lower court refused the application. It is against the refusal of the application that the instant appeal has been launched.
Per a notice of an interlocutory appeal filed with this court on 05/10/2020 as appearing on pp 74-75 [roa], the plaintiff/appellant stated the grounds of the appeal as follows:
a) The decision to refuse the injunction application has no basis
in law.
b) Further grounds of appeal will be filed on receipt of the Ruling
of the court.
On record, no further grounds of appeal were filed. In this appeal, the plaintiff/appellant shall simply be referred to as the appellant and the defendant/respondent, the respondent.
Brief facts:
The case involves the estate of Lt Col. [rtd] John Kwame Koomson who died testate on 10/01/2018. He was survived by seven [7] children including the respondent. The appellant is a brother to the deceased; his customary successor and one of the Executors appointed by the Last Testament and Will of the Testator, Lt Col. [rtd] Koomson. The Accra High Court has granted Probate to his Will.
The appellant claims that the Testator owned House No. C95/23, Alogboshie, Achimota, Accra, the subject matter of the suit which he devised in his Will to all his children. The appellant pleaded that the testator in his lifetime gave the outhouse to the main house to the respondent herein so confirmed in the Will. The respondent