Stanley Okoe Lamptey Vrs Abigail Pappoe [2023] GHACC 48 (22 March 2023)

IN THE CIRCUIT COURT (11) HELD IN ACCRA ON WEDNESDAY, 22ND DAY OF MARCH 2023 BEFORE H/H HALIMAH EL-ALAWA ABDUL-BAASIT SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE SUIT NO. C2/109/2022 1. STANLEY OKOE LAMPTEY 2. SOPHIA FOFOE LAMPTEY PLAINTIFFS ALL OF H/NO. B650/18, ABELE STREET, NORTH KANESHIE-ACCRA VS. ABIGAIL PAPPOE ACCRA PARTIES: Absent DEFENDANT LEGAL REPRESENTATION: Joycelyn Ashidam Esq. Plaintiff/Respondent Doreen A. Quansah Esq. for Y. A. Frimpong Esq. for the Defendant/Applicant RULING for Emmanuel Hammond Esq. for the MOTION ON NOTICE FOR INTERLOCUTORY INJUNCTION PURSUANT TO ORDER 25 OF C. I. 47 BACKGROUND On the 14th of March 2022, the Plaintiffs issued a Writ of Summons and a Statement of Claim sealed at the Registry of this Court against the Defendant praying for the following; Stanley O. Lamptey and Anor vs. Abigail Pappoe 1. 1st Plaintiff claims against the Defendant the sum of Fifteen Thousand Ghana Cedis (Ghc15, 000.00) being the accrued consideration for the acquisition of 1st Plaintiff land. 2. 1st Plaintiff claims against the Defendant interest on the sum of Fifteen Thousand Ghana Cedis (Ghc15,000.00) at the prevailing commercial bank lending rate from 30th November till date of final payment. 3. 1st Plaintiff claims against the Defendant general damages for breach of contract. 4. 2nd Plaintiff claims against Defendant a declaration that no contract has been entered into between 2nd Plaintiff and Defendant for the sale of the land described in the second schedule. 5. An order for perpetual injunction in favour of 2nd Plaintiff restraining the Defendants and her agents, privies, assigns and servants from entering unto or in any way disturbing or interfering with 2nd Plaintiff’s or her assign’s interest in the land. The Defendant filed a Statement of Defence on the 15th of March 2022 and Counterclaimed as follows; 1. A declaration of title of all that piece and or parcel of land situated and lying at Sakaman, South Odorkor, Accra measuring an approximate area of 0.32 acres of land, bounded on the North by land belonging to Gbawe Kwatei Family measuring 140.7 feet more or less, on the North East Gbawe Kwatei Family measuring 100.0 feet more or less, on the South East by a proposed road measuring 140.4 feet more or less, on the South West by Gbawe Kwatei Family measuring 100.0 feet more or less. Stanley O. Lamptey and Anor vs. Abigail Pappoe 2. An order of perpetual injunction in favour of the Defendant restraining the Plaintiffs, their assigns, representatives and all parties claiming through them. 3. Recovery of possession 4. General damages and costs. On the 15th of March 2022, the Defendant/Applicant filed a Motion on Notice for Interlocutory Injunction against praying for an Order granting interlocutory injunction against the Plaintiffs, their assigns, representatives and all parties claiming through them from any further development on the disputed land and entering the land until the final determination of this suit. The Application was brought under Order 25 of the High Court Civil Procedure Rules, C. I. 47 which Order 25 Rule 1 provides as follows: ‘…the Court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either conditionally or upon such terms and conditions as the court considers just…’ Order 25 Rule 1(2) further provides that ‘…a party to a cause or matter may apply for the grant of an injunction before or after the trial of the cause or matter, whether or not a claim for injunction was included in the party’s writ, counterclaim or third party notice... ‘. It is a settled principle that an injunctive order is an equitable remedy and discretionary as the court shall only grant it when it is just and convenient to do so. Additionally, the order is granted to protect a right where that legal right could be asserted either at law or in equity. This was buttressed in the case of Baiden vs. Tandoh [1991] 1 GLR 98, when Kpegah J. (as he then was) opined that the Applicant has to establish a prima facie case that the right he was seeking to protect existed. Additionally, he should show that there has been a breach of the same and a threat of it continuing so as to cause Stanley O. Lamptey and Anor vs. Abigail Pappoe him irreparable damage if the defendant was not restrained. The Applicant having passed that test the Court would then consider the issue of the balance of Convenience. Submissions of Counsel Counsel for the Defendant in his Statement of Case submitted that the instant Application is a classic matter that falls within the rules of granting injunction applications as the Applicant has demonstrated that she has a legal interest in the land as well as the need to protect and keep the status of the land since damages cannot adequately be used to settle any damage that may occur because the change in status quo will lead to an irreparable damage. The following cases were cited by Counsel; American Cyanamid Co vs Ethicon [1975] 1 AER 504, HL; National Lottery Authority vs Airtel Ghana (2011) 36 GMJ 190; Pountney vs. Doegah [1987-88] 1 GLR 111-117; Owusu vs Owusu-Ansah [2007-2008] SCGLR 879; Attorney General vs Hallet (1947) 16 M & W 569; Vanderpuye vs Nartey (1977) 1 GLR 428; and Odonkor and Others vs Amartei (1987-88) 1 GLR 578-582. Counsel for the Plaintiffs also submitted that the Defendant is not entitled to the grant of the Application because from the pleadings and affidavits, all parties claim ownership through the Gbawe Kwartei Family with the Plaintiff’s acquiring their interest on 5th June 1997 whist the Defendant acquired the same parcel of land on 4th October, 2019. He submits further on the balance of convenience and whether damages would be adequate compensation that the Defendant would suffer no hardship and irreparable damage if the instant Application is refused. He relied on Brown vs Quashigah [2003-2004] SCGLR 930; Chou Sen Lin vs Tonado Enterprises Ltd [2007-2008] 1GLR 135. Stanley O. Lamptey and Anor vs. Abigail Pappoe Analysis In the case of Owusu vs. Owusu-Ansah [2007-2008] SCGLR 879, the court held that ‘the fundamental principle in applications for interim injunction is whether the Applicant has a legal right at law or in equity, which ought to protect by maintaining the status quo until the final determination of the action on its merit could only be determined from the pleading and the affidavit before the court’. With respect to the status quo of this case, it is deduced from the pleadings that the Defendant acquired an interest from the Sempe Stool in 2019 through the Chief of Sempe and subsequently levelled the land with sand because it was a dump site and swampy. She then put up her structure but was approached by someone who claimed ownership prompting her to conduct a Search at the Lands Commission which revealed that the land belonged to the Gbawe Kwartei Family. The Defendant then paid for the land at the Palace and also paid to the person who had initially requested payment for the land though there is an outstanding balance to be paid. The Defendant’s Exhibit ‘AP 2’ is an Indenture which indicates that she acquired her interest on the 14th October 2019. The Plaintiffs acquired their respective interests from the Gbawe Kwartei Family in June 1997 and immediately went into possession of which Exhibits SFL 1 and SFL 2, being their respective indentures were attached. The Defendant however agreed to acquire 1st Plaintiff’s land for Ghc32, 000.00 and subsequently made part payment to that effect of which she is currently in occupation by building temporary structures on the land as a Church. It must however be emphasized that the 2nd Plaintiff has no agreement with the Defendant with respect to her portion of the land and is currently constructing a fence wall. In the case of 18th July Limited vs. Yehans International Limited [2012] 1 SCGLR 167 the Supreme Court held that: ‚Even though it is discretionary, we are of the view Stanley O. Lamptey and Anor vs. Abigail Pappoe that a trial court in determining interlocutory application must first consider whether the case of the applicant was not frivolous and had demonstrated that he had a legal or equitable right which a court should protect. Second, the court is also enjoined to ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter. The trial court ought to consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party‛. As such, on the balance of convenience, it is the Defendant’s case that she has demonstrated that she has a legal interest in the land as well as the need to protect and keep the status of the land. She states further that damages cannot adequately be used to settle any damage that may occur because the change in status quo will lead to an irreparable damage. On the other hand, the Plaintiffs say that the payment the Defendant made was to the 1st Plaintiff and it is in respect of a land which is not being developed. The 2nd Plaintiff is the one building a wall and granting the Application would deny the 2nd Plaintiff the use of her land when no agreement exists between them and having expended so much money to construct the fence wall, it will be inconvenient for 2nd Plaintiff if the application is granted. The pleadings reveal that the land is situate in the waterlogged area and the fence wall which has been constructed will most likely breakdown when there is a torrential rainfall because the wall is yet to be concreted to the pillars erected in between the walls. In Odonkor vs. Amartei (1987-1988) GLR 578, the court held that ‘the basic purpose of an interim order was, as much as possible, to hold the balance evenly between the parties pending the final resolution of matters in difference between them, and also to ensure that at the end of the day, the successful party did not find that his victory was an empty one or one that brought him more problems than blessings’. Stanley O. Lamptey and Anor vs. Abigail Pappoe Conclusion Now, having regard to the pleadings, the competing claims of the parties, the totality of evidence so far filed, the balance of convenience, the issue of hardship to be suffered by the parties, and in maintaining the status quo. I am of the opinion that it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 to grant this instant application. This is because although the Defendant may have a legitimate complaint, she has failed to demonstrate on the balance of convenience the hardship to be suffered by which she cannot be adequately compensated for should she be successful after the trial. The pleadings show that the Defendant made part payment to the 1st Plaintiff for a portion of his land and not the 2nd Plaintiff who has since assigned her interest to one James Nwi-Tanoe who in turn has commenced the construction of a fence. I do not see the injury to be suffered by the Defendant as there is no construction on the portion of her land where the church structure is placed. Should there be any injury to the Defendant at all, to my mind, it can be adequately compensated for by way of damages at the end of the trial if she is successful. In the light of the foregoing reasons above, the application for interlocutory injunction is REFUSED. Finally, I am again of the opinion, a timely adjudication of the suit would ensure that justice is done to both parties. The Application for Injunction is hereby dismissed. H/H Halimah El-Alawa Abdul- Baasit Circuit Court Judge Stanley O. Lamptey and Anor vs. Abigail Pappoe 7