MARGARET AFRIYIE v. SAVIOUR BOAKYER

The plaintiff’s claim is as follows:

“an order for the removal of the two metal containers”. The first observation that a judge

or lawyer makes upon reading the plaintiff’s relief is that it is not a substantive relief.

Clearly, the plaintiff is seeking a mandatory injunction. A mandatory injunction is an

order which in effect requires the defendant to do a particular act. In the instant case, the

plaintiff per her writ is seeking to have the defendant do a particular act, that is, she is

seeking to have the defendant remove two containers from a piece of land. This being

the case, the plaintiff’s relief is not a substantive relief. The law is settled that a writ

claiming mere injunction or ancillary relief without a substantive relief is incompetent

and void; see Republic Vrs. High Court, Tema, Exparte M.V. ESCO Spirit [2003-2004]

1SCGLR 689.

Though, this case could be disposed of on the sole ground that the writ is void because it

has not been endorsed with a substantive relief, I will touch on the substance of the

plaintiff case. The plaintiff’s case as gathered from his evidence is that she won a court

case against the husband of the defendant in this court. That case involves the land that

the defendant in this instant suit has erected her two containers on. The plaintiff tendered

in evidence the judgment in the previous suit and it was marked Exhibit ‘A’. I find as a

fact that the plaintiff has such judgment in her favour. The defendant in the instant suit

was served with the writ of summons and hearing notices but she declined the invitation

to come and defend herself. A principle of law is that when a party has been given the

opportunity to defend himself of allegation made against him but he deliberately declines

the invitation, the court will proceed to hear the case and draw conclusions as well as

make findings of fact on the basis of the evidence on the record, see Republic Vrs. High

Court Accra, Ex parte Akita, civil motion JS/7/2010 dated 17/02/2010.

Since the plaintiff has already obtained judgment in her favour in respect of the land that

the defendant has erected her two containers on, the remedy of the plaintiff lies in a writ

of possession. She should have applied for a writ of possession to execute the judgment.

She cannot relitigate the matter. There must be an end to litigation. The plaintiff’s suit

is simply an abuse of the judicial process.

For the reasons given above, the plaintiff’s suit is dismissed