ASHIATEY VRS. TEKPETE AND OTHERS (FAL/580/2015) [2023] GHAHC 594 (27 October 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON FRIDAY THE 27TH DAY OF OCTOBER 2023, BEFORE HER LADYSHIP, NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. FAL/580/2015 PETER ASHIATEY CHARTEY - PLAINTIFF VRS 1. EMMANUEL A. TEKPETE - DEFENDANTS 2. LAWOE SAKPA a.k.a ELVIS NARTEY 3. STEPHEN ASAASE 4. KWASI ASRA 5. NUUMO NARH LARWEH CHARTEY ODOKORTSU 6. NENE TEI DJANHENE KORABO IV R U L I N G BACKGROUND The action was initially instituted by Nene Narh Adrah as 1st Plaintiff and Peter Ashiatey Chartey as 2nd Plaintiff against four Defendants, by a writ and statement of claim filed on 27th May 2015. The Plaintiffs by the action seek the following reliefs: a. Declaration of title to land described in the schedule, b. Recovery of possession c. Damages for trespass d. Perpetual injunction to restrain the Defendants from encroaching on the land, and e. Costs. The Writ and Statement of Claim was amended after the 5th Defendant was joined to the suit. SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 1 of 10 On 17th November 2021, this Court differently constituted granted the Plaintiff’s application for interlocutory injunction and made an Order restraining the 1st, 2nd, 3rd, 4th and 5th Defendants from interfering with the subject land pending the final determination of the suit. The 6th Defendant was subsequently joined to the suit and an Amended Writ and Statement of Claim was filed on 22nd September 2022. It was stated in the Amended Statement of Claim that the 2nd Plaintiff will pursue the action as the only Plaintiff to the action and as acting Head of Family for the reason that the original 1st Plaintiff, Nene Narh Adrah who was the head of family had passed on. APPLICATION FOR INTERLOCUTORY INJUNCTION On 21st June 2023, the Plaintiff filed the instant application seeking an Order of the Court to restrain the 6th Defendant from interfering with the subject property pending the final determination of the suit. PLAINTIFF/APPLICANT’S CASE In the affidavit in support of the application, the Plaintiff/ Applicant hereafter referred to as “Plaintiff” stated that the 6th Defendant is not the owner of the subject land and yet workmen of the 6th Defendant and other persons claiming through him are speedily developing the subject land whilst the suit is pending before the Court and that in recent times these persons have intensified their developments on the subject land. The Plaintiff attached pictures marked as Exhibit E series and Exhibit G in support of this claim. The Plaintiff referred to the Order of interlocutory injunction restraining the 1st to 5th Defendants granted on 17th November 2021 and stated that the subject property would be preserved by restraining the 6th Defendant as well. 6TH DEFENDANT/RESPONDENT’S OPPOSITION In an affidavit in opposition filed on 5th October 2023, the 6th Defendant/ Respondent hereafter referred to as “6th Defendant” maintained that he is the owner of the subject land. SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 2 of 10 He stated that the Plaintiff has no capacity to maintain the action nor file the instant application because the Plaintiff cannot be head of the family known as Martey Chartey Awah Stool family as there is no family known by that name. The 6th Defendant also stated that by a judgment of the High Court dated 19th February 2021, delivered in suit number LD/009/2017 entitled Peter Ashiatey Chartey vs Clement Agu Kwao Mensah and Another, a copy of which is attached to the affidavit in opposition and marked as Exhibit MC1, the Court has already determined that the Plaintiff lacks capacity to institute an action in respect of lands which adjoin that which is the subject of the present action and the Plaintiff is thus estopped by the principle of estoppel per rem judicatem from relitigating or instituting the present action. The 6th Defendant stated that the instant application is therefore unmeritorious and same should be dismissed. APPLICABLE LAW: Order 25 rule 1(1) of the High Court (Civil Procedure) Rules, 2004, (C. I. 47) provides thus: “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 unconditionally or upon such terms and conditions as the court considers just”. (Emphasis added) From the Rules of Court, the grant of an interlocutory injunction is discretionary and where it is granted the Order may be made unconditionally or on such terms as the Court considers just. In exercising its discretion on whether or not to grant the Order, the Supreme Court has provided guidance to trial Courts on what matters may be considered. By this guidance, the law is settled that in granting an order of interlocutory injunction, the court must take into consideration the legal or equitable right of the Applicant and weigh up the disadvantages of granting the relief against the disadvantages of not granting the relief. Where the Applicant would suffer irreparable injury or damage, or the grant of the Order would result in serious hardship to the other party, the application must be refused. SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 3 of 10 In their recent Ruling in the case of Michael Ankomah-Nimfah v James Gyakye Quayson & 2 Ors [Unreported; Writ No. J1/11/2022; 13 April 2022], the Supreme Court speaking through His Lordship Kulendi JSC cited with approval the previous decisions of the Supreme Court on interlocutory injunctions and provided a summary of the law on interlocutory injunctions. His Lordship referred to the case of Republic v High Court, Koforidua; Ex parte Asah Otu [2009] SCGLR 141 and stated that in that case, “the celebrated Anin Yeboah, JSC (as he then was) made the following profound statement of the law at page 152 of the report: The Jurisdiction to grant the interlocutory injunction is exercisable by both the Superior Court of Judicature and the Lower Courts in Ghana… It is a relief which the common law courts have always granted, in the exercise of their discretion, when the circumstances appear to be just and convenient It is, however, granted to protect rights and in some cases prevent any injury or damage in accordance with laid down legal principles which have developed as a result of case law over the years.” His Lordship continued that, “In my opinion,…I think the circumstances of the case must be looked at in considering the grant or refusal of the application for interlocutory injunction.” The Supreme Court also stated that: “The principles that govern applications for injunction, interim or interlocutory are settled in a plethora of cases. In Owusu v Owusu-Ansah [2007-2008] 2 SCGLR 870, this 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 the 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.” (Emphasis added) Also see Vanderpuye vrs. Martey [1971]1GR 428, CA; Lardan vrs. Attorney General (1957) 3 WAL. R S5; Punjabi Bros vrs. Namih (1958) 3 WALR 381; American Cyanamid Co v Ethicon Ltd 1975 1 All ER 504; Pountney v Doega and Musicians Union of Ghana v Abraham 1982 - 83 GLR 337; Frimpong v Nana Asare Obeng II (1974)1GLR 16.” SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 4 of 10 ISSUE RAISED FOR DETERMINATION: From the pleadings and affidavit evidence, the Court considers that the issue raised for determination by the present application is: Whether on the balance of convenience, it would be just and convenient in the instant case to grant the order of interlocutory injunction sought by the Plaintiff ANALYSIS AND OPINION Order 25 Rule 1(3), (4), (5) and (6) of C. I. 45 provide as follows: (1) The applicant shall attach to the Motion paper and supporting affidavit, a Statement of Case setting out fully arguments, including all relevant legal authorities, in support of the application. (2) A respondent who desires to oppose the application shall file an affidavit in opposition as well as a Statement of Case containing full arguments and the legal authorities to be relied on. (3) Whenever possible, a draft of the order sought (copies of which may be obtained from the Fast Track High Court) should be filed with the application to facilitate speedy preparation and sealing of the order. (4) The application may be considered on the basis of the papers filed and the court may direct, where necessary, the lawyer address it on specific points of law and facts. (Emphasis added) Pursuant to Order 25 Rule 1(6) of C. I. 47, the instant application has been considered on the basis of the papers filed which include the legal arguments Counsel the parties intend to rely on. Legal or equitable right The Court considered whether or not by the affidavit evidence presented, the Plaintiff had provided evidence of a legal or equitable right in the subject property which this Court is SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 5 of 10 called upon to protect, for as held by the Supreme Court in Owusu vrs Owusu Ansah & Anor (supra) "The fundamental rule therefore is that a trial court should consider whether the applicant has a legal right at law or in equity, which the court ought to protect by granting an interim injunction. This could only be determined by considering the pleadings and affidavit evidence before the court." (Emphasis added) In the case of 18th July vs. Yehans International Ltd (2012) SCGLR 167 at page 172, the Supreme Court held inter alia per His Lordship Anin-Yeboah JSC (as he then was) as follows: “Even though [the grant of injunction] is discretionary, we are of the view that a ... court in determining interlocutory application must first consider whether the case of an applicant was not frivolous and had demonstrated that he had legal or equitable right which a court should protect.” In ascertaining whether or not the Plaintiff has demonstrated that he has a legal or equitable right which the Court is called upon to protect, the Court considered the site plan dated 1st June 1975, relied on by the Plaintiff in support of the claim to ownership of the subject land, marked as Exhibit A and attached to the affidavit in support of the application. The Court notes that on the site plan, it is stated that it is the plan of land in respect of the “PROPERTY OF LEKPEDJIDOM ROYAL FAMILY LAND, SITUATE AT LAWLAWVAW – SHAI HILLS.” (Emphasis added) From the pleadings filed, the Court noted that in the amended Statement of Claim filed on 22nd September 2022, the Plaintiff claimed that his family owns a portion of land at “Lolorvor” measuring approximately 13,266.467 acres. The Plaintiff also stated in the amended Statement of Claim that his family belong to the “Lekpedje Division”. The Court thus considers that for the purpose of the present application, the Plaintiff demonstrated sufficient interest in the subject land which the Court is called upon to protect pending the final determination of the Suit. Case not frivolous or vexatious SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 6 of 10 In the case of Poutney v. Doegah [1987-88] 1 GLR 111 at 115(CA), it was held in the unanimous decision delivered by Abban JA (as he then was) that: “There is no rule requiring the plaintiff to establish a prima facie case. The rule is that the Court must be satisfied that the plaintiff’s case is not frivolous and once that has been established then the governing consideration is the balance of convenience: see American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL.” (Emphasis added) In the present case, the 6th Defendant does not deny the claims by the Plaintiff that the on- going developments on the subject land are being undertaken by workmen of the 6th Defendant or persons claiming through him. His opposition is essentially that the Plaintiff has no capacity to institute the present action as he is not head of family and also that the present action is barred by the operation of the principle of estoppel per rem judicata. The Court notes that the 6th Defendant’s reasons for opposing the present application are the real issues raised for determination between the 6th Defendant and the Plaintiff, which issues were stated in the 6th Defendant’s application for further directions filed on 5th April 2023 and adopted by the Court as issues for determination between the Parties on 20th April, 2023. The Court is therefore satisfied that there are serious issues raised for determination between the parties and the present application is not frivolous or vexatious. The Court will however decline the invitation by the 6th Defendant to make pronouncements on whether or not the Plaintiff has capacity to institute the action and for that matter file the present application or whether or not the Plaintiff is estopped from initiating the action for the reason that that would be making pronouncements on the real issues for determination during the trial, and may amount to determining the action at this interim stage. Balance of convenience In explaining the balance of convenience, in the case of Welford Quarcoo v. Attorney- General& Anor (2012) SCGLR 259, His Lordship Date Bah JSC (as he then was) stated that “The balance of convenience of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief.” SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 7 of 10 In weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief, the Court considered especially the fact that an Order of interlocutory injunction has been made by this Court differently constituted on 17th November 2021, restraining the 1st, 2nd, 3rd, 4th and 5th Defendants from interfering with the subject land pending the final determination of the suit so as the preserve the status quo or keep the balance even. The Court is thus of the considered opinion that to refuse the present application would result in a situation in which the 1st to 5th Defendants have been restrained by this Court to preserve the status quo since the year 2021, whilst the 6th Defendant is permitted to develop the same property that has been preserved all these years. In the often-cited case of Odonkor v. Amartei [1987-1988] 1 GLR 578 the Court held per Adade JSC (as he then was) at pg. 581 that: “The purpose of interim orders is as much as possible to hold the balance evenly between the parties pending a final resolution of matters in difference between them and also to ensure that at the end of the day the successful party does not find that this victory is an empty one that brought him more problems than blessing”. In the case of Michael Ankomah-Nimfah V James Gyakye Quayson & 2 Ors (supra) the Supreme Court held that “Further, injunctions being primarily discretionary, the bonafides and malafides of the parties cannot be ignored in ascertaining whether to grant or refuse. [See Owusu vrs Owusu-Amsah (Supra)]” In the instant case, the Court finds from the pleadings that even though the Plaintiff by his action seeks inter alia an order of perpetual injunction to restrain the Defendants from further interference with the subject land, in his affidavit in opposition, the 6th Defendant does not deny that despite the service of the Writ and Statement of Claim on him, his workers and persons claiming through him are still developing the subject land. The Court considers this to amount to bad faith and may well be contemptuous of Court. For all of the above reasons, the Court is of the considered opinion that it would be just and convenient under the circumstances to restrain the 6th Defendant as well to preserve the status quo pending the final determination of the suit. SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 8 of 10 Condition for grant of the application After a careful consideration of the pleadings and affidavit evidence, the Court considers that the justice of the case also demands that the present order for interlocutory injunction should not be made unconditionally, but rather upon the condition stated in Order 25 Rule 9 of C. I. 47. The Court therefore Orders the Plaintiff to provide or file an undertaking in Court for service on the 6th Defendant, within fourteen (14) days from today that he undertakes to pay any damages that the 6th Defendant may suffer as a result of the grant of the present application if it turns out that he is not entitled to the order. To avoid unnecessary delays in the conduct of the suit, and to prevent greater hardship to the Parties, the Court directs that the 6th Defendant may apply for the present order to be reviewed after six (6) months if the Plaintiff does not take the necessary steps for the case to be conducted as speedily as possible. No order as to costs. [SGD] NABEELA NAEEMA WAHAB (MS) J. (JUSTICE OF THE HIGH COURT) COUNSEL DAVID DJENTUH HOLDING BRIEF OF VINCENT GARR FOR THE PLAINTIFF – PRESENT ALIDU MOHAMMED FOR THE 1ST – 4TH DEFENDANTS – ABSENT GOSFORD SAWYERR FOR THE 5TH DEFENDANT – ABSENT SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 9 of 10 ISSABEL AHIAFOR WITH RICHARD ARTHUR HOLDING BRIEF OF BERNARD AHIAFOR FOR 6TH DEFENDANT - PRESENT CASES REFERRED TO: 1. Michael Ankomah-Nimfah v James Gyakye Quayson & 2 Ors [Unreported; Writ No. J1/11/2022; 13 April 2022]. 2. 3. 4. 5. 6. 7. 8. 9. Republic v High Court, Koforidua; Ex parte Asah Otu [2009] SCGLR 14 Owusu v Owusu-Ansah [2007-2008] 2 SCGLR 870 Vanderpuye vrs. Martey [1971]1GR 428, CA Lardan vrs. Attorney General (1957) 3 WAL. R S5 Punjabi Bros vrs. Namih (1958) 3 WALR 381 American Cyanamid Co v Ethicon Ltd 1975 1 All ER 504 Pountney v Doega and Musicians Union of Ghana v Abraham 1982 - 83 GLR 337 Frimpong v Nana Asare Obeng II (1974)1GLR 16 10. 18th July vs. Yehans International Ltd (2012) SCGLR 167 at page 172 11. Poutney v. Doegah [1987-88] 1 GLR 111 at 115(CA) 12. American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL 13. Welford Quarcoo v. Attorney-General& Anor (2012) SCGLR 259 14. Odonkor v. Amartei [1987-1988] 1 GLR 578 SUIT NO: FAL/580/2015 – Peter Ashiatey Chartey vrs Emmanuel A. Tekpete & 5ORS Page 10 of 10