Domeh Vrs Mensah and 6 Others [2023] GHAHC 56 (5 February 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD IN TEMA ON WEDNESDAY THE 15TH DAY OF FEBRUARY, 2023 BEFORE HER LADYSHIP JUSTICE RITA AGYEMAN-BUDU (MRS) Time: 9:39 am SUIT NO. E1/061/2022 EBENEZER NARH DOMEH - PLAINTIFF VRS ERIC DOE MENSAH & 6 ORS - DEFENDANTS ====================== PARTIES: Plaintiff - Present 1st Defendant - Present. 2nd Defendant- Present 3rd Defendant- Present 4th Defendant- Present 5th Defendant-Present 6th Defendant-Present 7th Defendant-Absent

LEGAL REPRESENTATION Ms. Joyce Agyepong holding brief for Mr. Edward Sam Crabbe for the Plaintiff/Applicant - Present. Mr. Edward Mettle Nunoo for the Defendants/Respondents- Present ==========================================================

RULING ============ ============ 1 |E1/061/2022 This Ruling is in respect of a Motion on Notice for Interlocutory Injunction filed by Counsel for and on behalf of the Plaintiff/Applicant herein Ebenezer Narh Domeh seeking to restrain the Defendants/Respondents herein; their Agents, Servants, workmen or labourers from entering and/or remaining on all that piece or parcel of land described in the schedule of the Writ of Summons and Statement of Claim from digging and erecting any structures thereon, or changing the nature of the land or developing, leasing, assigning or in anyway whatsoever pending the final determination of the suit. This Application emanated from a Writ of Summons and Statement of Claim filed by Plaintiff/Applicant on the 8th of July, 2022 against the Defendants/Respondents herein, praying for the following reliefs: a) A declaration of title to the land as described in the schedule. b) A declaration that the destruction of Plaintiffs land described in the schedule by the digging of foundation trenches on the land is wrongful and unlawful. c) Recovery of possession of the land in dispute. d) Damages for destruction of the land. e) Damages for trespass. f) An order of perpetual injunction restraining the Defendants and their agents, assigns, privies from interfering with Plaintiff’s title and quiet possession and enjoyment of the land by constructing, building,

leasing, assigns or in anyway whatsoever. 2 |E1/061/2022 g) Plaintiff’s cost, expenses and legal fees in this suit on a full recovery basis. In the supporting Affidavit/Plaintiff avers through Deponent Raymond Dornyor that: Plaintiff commenced this action to protect and assert his rights in the disputed land which he acquired same per an Indenture dated 10th October, 2022 from the Kudjiragbe Clan (Exhibit RD1). Plaintiff then started farming on the said land. (Photographs of the said farm attached as Exhibit PD2). It is Plaintiff’s case that Defendants/Respondents herein their agents, assigns, privies forcibly entered the land and started destroying the farm and digging foundation trenches on the land. (Attached is Exhibit RD3 series) Photographs of the activities of the Defendants’ assigns etc. on the Plaintiff’s farm). Plaintiff is therefore praying the Court to grant this Application and to restrain Defendants/Respondents from destroying Plaintiff’s farm and changing the nature of the disputed land pending the determination of the suit. Defendants/Respondents herein, though legally represented did not file any Affidavit in Opposition even though they were given ample time to do same. This presupposes they are not opposed to this Application. However, being guided by the Principle of the Republic Vrs. Court of Appeal Eastern Alloys Company Ltd. reported in 1SCGLR 2007-2008 at

page 371 whereby the Supreme Court opined that nothing prevents a Court from electing to hear and decided on its merits a Motion that has not been moved. This Motion has been moved by Counsel for Plaintiff/Applicant. However there is no Affidavit in Opposition on record and Counsel for Defendants/Respondents is not in Court to respond to same. There is a Statement of Defence filed by the 3 |E1/061/2022 Defendants/Respondents who are also claiming the disputed land. They aver in Paragraph 6 of their Statement of Defence as follows: Paragraph 6 Defendants denies Paragraph 6 and further states that Kudjirabe Clan, the allodial owners of the whole land of Ada township gifted a vast portion of the land to our ancestors (the Kabiawetso Clan) measuring approximately 434.40 acres and have settled on the land for decades since 1834 and will put Plaintiff to strict proof at trial. In the Case of the American Cynamid Co. vrs. Ethicom Ltd. (1975) A. C. 396, Lord Diplock espoused the guiding principle in granting an Interlocutory Injunction as follows: “The Plaintiff’s need for such protection must be weighed against the corresponding need of the (Respondents) to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the (Applicant’s) undertaking in damages if the uncertainty were

resolved in the Defendant’s favour at the trial. The Court must weigh one need against another and determine where the balance of convenience lies”. In determining whether or not to grant this instant Application, I have analyzed the Motion paper and its Supporting Affidavit together with the annexures as well as legal argument of Counsel for Plaintiff/Applicant. I have also perused the Statement of Defence filed by Defendants/Respondents. This Court fortified by the Principle in the case of American Cynamid Co. Vrs. Ethicom Ltd. 1975 AC396 where Lord Diplock opined thus: 4 |E1/061/2022 “It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence on Affidavits as to facts on which the claims of either party must ultimately depend, not to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at trial”. The Court is not minded to go into all the triable issues at this stage. The Court is only to determine whether or not to grant the Application for Interlocutory Injunction. The question which arises at this stage is whether or not to grant the instant Application for Injunction. Again in the American Cynamid Co. Vrs. Ethicom Ltd. 1975 AC396 case (Supra); “The Plaintiff’s need for such protection must be weighed against the corresponding need of the

(Respondents) to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the (Applicant’s) undertaking in damages if the uncertainty were resolved in the Defendant’s favour at the trial. The Court must weigh one need against another and determine where the balance of convenience lies”. In the instant Application, it seems to me that Plaintiff/Applicant has demonstrated that he has some protectable equitable rights in the said disputed land and if this Injunction is not granted the balance of convenience will tilt adversely towards him. There is also the need for the status quo ante to be maintained. 5 |E1/061/2022 The Court hereby grants this Motion for Interlocutory Injunction and restrains the Defendants/Respondents herein from digging and erecting any structures thereon or changing the nature of the land or developing, leasing, assigning or in whatsoever way pending the final determination of the suit. Cost of One Thousand Ghana Cedis (GH¢1,000.00) in favour of the Plaintiff/Applicant. H/L: RITA AGYEMAN-BUDU (MRS.) (JUSTICE OF THE HIGH COURT). sb.a 6 |E1/061/2022