Isaac Nii Pardie Opey Vrs Victoria Nartekie Nartey & 5 Ors. [2023] GHACC 543 (8 June 2023)

IN THE CIRCUIT COURT OF JUSTICE, SITTING AT ASHAIMAN ON MONDAY THE 8TH DAY OF JUNE, 2023, BEFORE HIS HONOUR SIMON GAGA SUIT NO. C1/15/23 ISAAC NII PARDIE OPEY SUING AS A BENEFICIARY OF THE PLAINTIFF/RESPONDENT ESTATE OF THE LATE MOSES TEI OPEY ASLAN - PRAMPRAM VRS 1. VICTORIA NARTEKIE NARTEY 2. EMMANUEL TETTEH OPEY alias TETTEH ABBEY 3. EMMANUEL NARH OPEY 4. WILLIAM NARTEH OPEY alias AZIZ APPLICANTS 5. FRANCIS OPEY 6. KENNEDY OPEY ALL OF ABEKOPE, DAWHENYA DEFENDANTS/ _____________________________________________________________________________ ___ RULING ON MOTION ON NOTICE FOR INTERLOCUTORY INJUNCTION ______________________________________________________________________ Order 25 rule 1(1) of the High Court (Civil Procedure) rules, 2004 (CI 47) provides as follows, “(1) The Court may grant an injunction by an interlocutory order in all cases which it appears to the Court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the Court considers just.” The purpose of an interim injunction has been outlined in the case of Owusu vrs, Owusu-Ansah (2007/08) SCGLR 870, which states at holding (1) as follows, ISAAC NII PARDIE OPEY VRS. VICTORIA NARTEKIE NARTEY & 5 ORS. “The fundamental principle in applications for interim injunction is whether the applicant has a legal right at law or in equity, which Court ought to protect by maintaining the status quo until the final determination of the action on its merits. This could only be determined by considering the pleadings and affidavit evidence before the Court.” SEE also the case of Pounteny vrs. Doegah (1987/88) I GLR 111 CA. On the 24th February, 2023, the Plaintiff/Applicant filed a Writ as a beneficiary of the estates of Mosei Tei Opey at this Court claiming the following reliefs against the Defendants, 1. Declaration that all that piece of land measuring 5 acres known as ‘Aboɔ’ situate at Zezekpon at North West of Dawhenya is the bonafide property of the late Moses Tei Opey and same forms part of the estate of the deceased. 2. A declaration that plaintiff as a beneficiary of the Estate of the late Moses Tei Opey is entiled to occupy all that piece of land measuring 0.11 Acre or 0.04 hectares located at Zezekpon at North West of Dawhenya and is bounded on the North by the Abey Road and on the South with Tetteh Kuttor on the West with 1st Defendant, Tetteh Abbey and on the East with Mr. Kwame and it is shown on the site plan of the Plaintiff. 3. Recovery of possession of all that piece of land described in (2) above. 4. Declaration that the Defendants are intermeddling in the estate of the late Moses Tei Opey. 5. Perpetual Injunction restraining the Defendants herein, their agents, assigns, privies, workmen, etc., and all those claiming through them from interfering with the Plaintiff’s quite enjoyment of the disputed land and from further dealing with the estate of the deceased. 6. General damages for trespass. 7. Cost. It is as a result of the reliefs being sought that the Plaintiff/Applicant brought an application praying the Court to restrain the Defendant/Respondents, their assigns privies, agents, etc., from dealing with the disputed land mentioned in relief (2) supra, in any manner whatsoever. ISAAC NII PARDIE OPEY VRS. VICTORIA NARTEKIE NARTEY & 5 ORS. It is very interesting to note that on the 7th of March, 2023, the Defendants also filed a motion on notice for an order of interlocutory injunction praying the Court to retrain the Plaintiff/Respondents, his baker, agents, assigns, etc., from dealing with the disputed land till the case is determined by the Court. I believe that the Defendants/Applicants filed the motion for injunction under Order 25 rule 1(2) of the CI 47, which states as follows, “(2) 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 the injunction was included in the party’s Writ, Counterclaim or third party notice.” Since both applications are in respect of the same subject matter, I am going to discuss and evaluate them together. The issue then is whether to grant or to refuse the application for interlocutory injunction for Plaintiff/Applicant or Defendants/Applicants. As a discretionary remedy, one of the requirements for the granting of such an injunction is that the applicant must establish that there is a serious question of law to be tried. SEE: Welford Quarcoo vrs. AG & Another (2012) 1SCGLR 259. It must be observed that all parties are laying claim to the subject matter in dispute. The Plaintiff/Applicant in his affidavit in support deposed in the following paragraphs as follows, (8) That my late father Moses Tei Opey in or about March, 1974 acquired a land from Numo Tetteh Tukpoh, which is known as ‘Aboɔ’ which is situated at Zezekpon at North West of Dawhenya and was given a receipt covering the purchase. The size of the land is five (5) acres. Copy of the receipt is attached and marked as Exhibit ‘A’. (9) That my late father took possession of the land and put blocks and cement on part of the land. He also farmed watermelon and pepper on the land. He also put up a small structure on the land. ISAAC NII PARDIE OPEY VRS. VICTORIA NARTEKIE NARTEY & 5 ORS. (10) That my late father allowed the 2nd Defendant/Respondent and I to also put up temporary structures and we lived on the land for several years before I moved to Ashaiman to learn a trade. The Plaintiff/Applicant further deposed that after the death of his father, the Defendants/Respondents have unlawfully sold part of the land his father acquired in 1974. He further deposed that through the intervention of the 1st Defendant/Respondent, who took him to one Philip Tei Blessman, he was given 0.11 acre of the land, which he provided ‘thank you’ drinks to the Defendant/Respondents which he prepared site plan on same, which is marked as Exhibit ‘B’ and he has gone ahead to rent a portion of it to a baker since 2017. The Defendants/Applicants on the other hand in their affidavit in support, which was sworn to by the 1st Defendant deposed in the following paragraphs as follows, (4) The plot in issue was one of the fourteen (14) plots my husband and I jointly acquired during the subsistence of our marriage. (5) The eldest of my children had been given two (2) plots to occupy in protection of the entire land. (6) Thereafter, my husband unilaterally sold nine (9) of the remaining twelve (12) plots after which I stopped him from selling the remaining three plots which we both agreed had to be owned by me. The 1st Defendant/Applicant further deposed that having brought up the Plaintiff/Respondent during his formative years, she considered him as her son. So in the year 2020, she granted two plots to the Plaintiff/Respondent, which he has sold. The 1st Defendant/Applicant further deposed in paragraph 9 that the two parcels of land she voluntarily granted the Plaintiff/Respondent did not include the instant land which she has reserved for her personal use. All the parties in the dispute are represented by Counsel. Having examined all the documents attached to the affidavits in support and opposition, reading their respective statements of cases filed and having listened ISAAC NII PARDIE OPEY VRS. VICTORIA NARTEKIE NARTEY & 5 ORS. to submission by their Counsel, on the balance of convenience, I find it just and convenient in granting the application in part. This is to the effect that the Plaintiff/Applicant, Plaintiff/Respondent, Defendants/Respondents, Defendants/Applicants, their agents, assigns, workers, privies, etc., are restrained from interfering with the disputed land mentioned in relief (b) supra till the final determination of the case. However, the tenant of the Plaintiff/Applicant who is a baker, who both parties have admitted that the said tenant is a baker on the land is to continue with the bakery but cannot expand the structures of the area of operation till the final determination of the case. No order as to cost. (SGD) (H/H) SIMON GAGA (CIRCUIT COURT JUDGE) - COUNSEL FOR PLAINTIFF – SUZANA TETTEY FOR MOHAMMED ATTAH, ESQ. – PRESENT. - COUNSEL FOR DEFENDANT – EUGENE AYITEY – PRESENT. OAAQ/. ISAAC NII PARDIE OPEY VRS. VICTORIA NARTEKIE NARTEY & 5 ORS. 5