OYEWOLE VRS. REDROW DEVELOPMENT LTD AND OTHERS (LC/138/2022) [2023] GHAHC 608 (28 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ – HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA – BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON TUESDAY THE 28TH OF NOVEMBER 2023. SUIT NO LC/138/2022 ___________________________________________________________________ TUNJI OYEWOLE PLAINTIFF/APPLICANT VRS 1. 2. 3. 4. REDROW DEVELOPMENT LTD FRANCIS NANA ANTWI JORDAN ANTWI PAUL MICHAEL ADJEI DEFENDANTS/RESPONDENTS ___________________________________________________________________ PARTIES: PLAINTIFF REPRESENTED BY MANFRED YAW OWUSU ANSAH RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS D1 AND D3 ABSENT D2 AND D4 REPRESENTED BY YAW OWUSU WILSON ___________________________________________________________________ RULING ON A MOTION FOR INTERLOCUTORY INJUNCTION AND FOR AN ORDER TO DISJOIN THE 4TH DEFENDANT/APPLICANT 1. INTRODUCTION & FACTS OF THE PLAINTIFF/APPLICANT’S CASE [i] This matter has quite an interesting history. The Plaintiff/Applicant herein contends that in or around 2010 he acquired two plots of land at Santeo, Quartey Papafio Hills through the 1st Defendant Estate Company and obtained the requisite documents covering same. The Plaintiff then immediately went into possession by placing a caretaker thereon, to secure and protect the said land. [ii] In spite of the acquisition of all documents covering the land, including a land title certificate, and despite the presence of a caretaker, the Plaintiff was informed that the 4th Defendant was developing the land for and on behalf of the 2nd and 3rd Defendants; and the Plaintiff averred that his further checks revealed it was the 1st RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS Defendant Chief Executive Officer, who had purportedly sold the Plaintiff’s land to the 2nd and 3rd Defendants. Not having authorised any person to sell and/or dispose of the disputed land on his behalf, the Plaintiff instituted an action against the Defendants herein, contending that the 1st Defendant’s allegations that the Plaintiff authorised the 1st Defendant to sell the disputed land on the Plaintiff’s behalf is wholly untrue. [iii] The Plaintiff therefore sought recovery of possession and damages for trespass against the Defendants, among other reliefs, on the writ of summons issued against the Defendants before this Court. From the record, there were issues with serving the 2nd and 3rd Defendants, but I believe eventually, all the Defendants were duly served; and the Plaintiff has thereafter brought an application for injunction, seeking to restrain the Defendants from entering and undertaking any development or construction works on the dispute plot. [iv] Among others, the Plaintiff contended that the 1st Defendant purported to execute an indenture for and on behalf of the Plaintiff for the 2nd and 3rd Defendants by forging the Plaintiff’s signature. According to the Plaintiff, he was in the U. K at all material times and he could not have executed the said indenture dated the 19th August 2015. Until the final judgment of the matter before the Court, therefore, the Plaintiff prayed the Court to grant an injunction against the Defendants, as the 1st Defendant no longer has the right to alienate the disputed land to anyone else, having sold same to the Plaintiff herein. RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS 2. 1ST DEFENDANT/RESPONDENT’S AFFIDAVIT IN OPPOSITION [v] As is usually the case, the 1st Defendant denied the averments and the allegations made against him by the Plaintiff; reiterating that it was the Plaintiff who authorised him to sell the Plaintiff’s land. The 1st Respondent further sought to annex and did annex to his affidavit in opposition some messages said to have emanated from the Plaintiff and authorizing the 1st Defendant to sell off the disputed land. Among others, the 1st Defendant repeated the assertions that he was authorised by the Plaintiff to sell off the disputed land and he did. 3. AFFIDAVIT IN OPPOSITION OF THE 4TH DEFENDANT/RESPONDENT [vi] The 2nd and 3rd Defendants did not appear to have filed any affidavit in opposition, but the 4th Defendant did, averring that he is only a building contractor who was contracted by the 2nd and 3rd Defendants to construct a building for them on the disputed land, and so apart from acting upon the instruction of the 2nd and 3rd Defendants, the 4th Defendant stated that the 2nd and 3rd Defendants have lawfully acquired the disputed plot and exhibited a deed of assignment said to have been executed between the 1st Defendant on the one part and the 2nd and 3rd Defendants on the other part. [vii] 4th Defendant further stated that he had commenced the construction and was now on the second floor and so the 2nd and 3rd Defendants would rather suffer irreparable loss if the application was granted, among others. RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS 4. EVALUATION OF THE AFFIDAVIT EVIDENCE ADDUCED AND THE LAW [viii] All Counsel filed their respective statements of case and this Court is enjoined to determine whether or not the injunction application ought to be granted in the Plaintiff/Applicant’s favour. [ix] There are numerous cases on the principles to be applied in the grant or otherwise of an injunction and the locus classicus is the case of American Cynamid Co vrs Ethicon Ltd [1975] 1 ALL ER 504. All Counsel also cited very relevant cases on the grant or otherwise of injunction application in their respective statements of case. [x] From the entirety of the issues surrounding this case, I find that the parties are ad idem on the fact that the Plaintiff is the original owner of the disputed plot, and he did purchase same through the 1st Defendant. The 1st Defendant does not deny that assertion. The defence of the 1st Defendant however is that the Plaintiff herein authorised the 1st Defendant to sell the property; but the 1st Defendant subsequently lost touch with the Plaintiff and so the purchase price of USD$40,000 is still available and ought to be paid to the Plaintiff herein. Meanwhile, the 2nd and 3rd Defendants contend they legitimately purchased the disputed plot, and they therefore also do not deny that they have commenced construction thereon. Indeed, in the 4th Defendant’s affidavit in opposition, he averred that the structure was at the 2nd floor. [xi] The gravamen of the Plaintiff/Applicant’s case is that he has never authorised the 1st Defendant to sell the disputed land; and so he still retains an interest and RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS ownership in the disputed property. The 1st Defendant vehemently denies this assertion and attached some messages purportedly coming from the Plaintiff/Applicant and also purportedly instructing the Chief Executive Officer of the 1st Defendant company to sell the disputed land. These messages and documents attached, I find, form part of the defence of the 1st Defendant; and once these exhibits have not been subjected to scrutiny under cross-examination and in a trial properly so-called, this Court cannot rely firmly on them. [xii] The presumption therefore remains that the Plaintiff still has title and interest in the disputed land; and until this presumption is rebutted in a full trial, I hold that this Court ought to protect the interest the Plaintiff seemingly has in the disputed land. In the case of Yaw Osarfo Marfo V EOCO [2012] 45 AMJ 85, it was held: “Ordinarily, in an application for interlocutory injunction, the Courts are to consider the common law principles such as whether on the pleadings and the affidavits, and the other processes filed the Applicant has been able to demonstrate that he has a right in law and at equity and that right should be protected...” [xiii] I again find that the case of the Plaintiff is neither frivolous nor vexatious and this Court is mandated to make a determination in the trial as to whether or not the Plaintiff/Applicant herein authorised the 1st Defendant to sell off his plot of land, as held in the case of NPP V EC (NO1) [1992-93] 1 GBR S. C. Further in Centracor Resources V Boahene & others [1992-93]4 GBR 1512, the Court of Appeal held: RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS “My approach has always been that a Plaintiff who seeks an order for interim injunction must know that the right he seeks to protect really exists and that there has been an unjustified interference by the Defendant and such an interference is likely to continue” Indeed, as per the NPP V EC case (supra), I again find that there are serious questions of law involved in the determination of the substantive case. [xiv] The 2nd and 3rd Defendants also have acquired the disputed plot from the 1st Defendant; and the 1st Defendant does not deny alienating the disputed plot to the 2nd and 3rd Defendants. The 2nd and 3rd Defendants have also started developing same. [xv] From the entire circumstances of this case, I hold that both the Plaintiff and the 2nd and 3rd Defendants stand to suffer hardship to some extent, which ever way the application goes, and in order to do justice and being guided by common sense, fair play and equity, I find that I would have to exercise my discretion in favour of the Plaintiff/Applicant herein and grant the injunction pending the final determination of this case or until this Court otherwise orders. RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS The Plaintiff shall however sign an undertaking to indemnify the 2nd and 3rd Defendants in the event that he is not successful at the trial, pursuant to order 25 rule 9 of C. I 47. [xvi] for the foregoing reasons, the application for injunction be and is hereby granted and the Defendants are restrained from further developing the disputed land until otherwise ordered. 5. MISJOINDER OR NON-SUITING THE 4TH DEFENDANT [xvii] With respect to the misjoinder of the 4th Defendant, I find it prudent to grant same as the Plaintiff admits that he was informed that the 4th Defendant/Respondent was developing the disputed land for and on behalf of the 2nd and 3rd Defendants, who are said to have purchased the disputed land from the 1st Defendant. it is therefore obvious that the 4th Defendant has no stated interest in the disputed land; and that he is only developing the land on the instructions of the 2nd and 3rd Defendants. For that reason, the 4th Defendant be and is hereby non-suited, but he is hereby ordered not to continue with any construction on the disputed plot until the final determination of this case There will be no order as to costs. RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA, GREATER ACCRA REGION. 28TH NOVEMBER 2023. COUNSEL: SAMUELLA ASAREWAA KWARTENG PRESENT, HOLDING THE BRIEF OF JAMES ENU ESQ, COUNSEL FOR THE PLAINTIFF/APPLICANT FRANCIS KWAME OFFIN ESQ. PRESENT, HOLDING THE BRIEF OF MAAME SARPONG, COUNSEL FOR THE 4TH DEFENDANT RULING – TUNJI OYEWOLE vrs REDROW DEV. LTD & 3 ORS 9