Tawiah and Another Vrs Kwetey and 14 Others [2023] GHAHC 63 (23 January 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HELD AT TEMA ON MONDAY THE 23RD DAY OF JANUARY 2023 BEFORE HER LADYSHIP JUSTICE RITA AGYEMAN-BUDU (MRS) Time: 9:44 am SUIT NO: E1/127/2021 NUMO FREDERICK TAWIAH … PLAINTIFF TETTEH ADEYENAH VRS TEYE KWESI KWETEY & 14 ORS … DEFENDANTS ================================ PARTIES Plaintiff– represented by Francis Mawuna Terkutey 1st Defendant – Present 2nd Defendant- Absent 3rd Defendant-Absent 4th Defendant- Absent 5th Defendant-Absent 6th Defendant –Absent 7th Defendant – Absent 8th Defendant – Absent 9th Defendant- Absent 10th Defendant –Absent 11th Defendant – Absent 12th Defendant –represented by Mustapha Nartey Djetor 13th Defendant – Present 14th Defendant –Absent 15th Defendant - represented by Douglas Peter Narh Animle LEGAL REPRESENTATION 1 |E1/127/2021 Mr. Yaw Akrasi-Sarpong for the Plaintiff/Applicant– Present Mrs. Kezia Kenneth Azumah for the 1st, 12th and 13th Defendants and holding brief for Counsel for 15th Defendant– Present. Paa Joy Akuamoah Boateng for the 3rd and 4th Defendants/Respondents- Absent Mr. Nicholas Bartels for the 7th Defendant- Absent Mr. Ohene Amankwah Gyan for the 15th Defendant/Respondent – Absent. =========================================================== ============== RULING =============== Plaintiff/Applicant herein Numo Frederick Tawiah Tetteh Adeyenah has filed this Application for an Order for Interlocutory Injunction against the fifteen (15) aforementioned Defendants/Respondents praying the Court to restrain the said Defendants/Respondents, their Servants, Agents, Assigns, Privies, Workmen or Successors and all who claim through them from further interfering or dealing with or developing the subject matter land in any manner whatsoever adverse to the Plaintiff/Applicant’s interest pending the final determination of the instant suit. This Application is being opposed by the Defendants/Respondents through their various Affidavits in Opposition to the Application. The 1st, 12th and 13th Defendants/Respondents filed their Affidavit in Opposition and a subsequent Supplementary Affidavit in Opposition deposed to by 1st Defendant/Respondent Nene Teye Kwesi Kwetey II. The 3rd and 4th Defendants/Respondents also entered appearance and filed Affidavit in Opposition. The 7th Defendant also entered appearance and filed Affidavit in Opposition through their Counsel. The 15th Defendant/Respondent also filed his Affidavit in Opposition and subsequent Supplementary Affidavit in Opposition deposed to by himself Nene Aadegbor Ngmongmowuyaa Kwesi Animle VI. 2 |E1/127/2021 I have perused all the evidence adduced in respect of this Application and have heard the legal arguments put forward by respective Counsel for Plaintiff and also for the Defendants/Respondents who were represented by their respective Counsel and have filed their Affidavit in Opposition. I have also applied the relevant statutes and case laws and the guiding principle in Interlocutory Injunction as espoused therein. It is my considered opinion that, in the instant Application, Plaintiff/Applicant has not convincingly demonstrated to this Court that indeed they have protectable legal interest in the disputed land which same cannot be remedied by monetary compensation should he come out victorious in the pending suit. In the Case of the American Cynamid Co. vrs. Ethicom Ltd. (1975) A. C. 396, Lord Diplock opined thus: “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”. Fortified with the principle in the provision of Order 25 rule provides: “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 3 |E1/127/2021 may be made either unconditionally or upon such terms and conditions as the Court considers just” Akuffo-Addo JSC opined as follows: in the Case of Agyeman vrs. Ghana Railway Auhtority (1969) CC60, C. A “in the realm of the exercise of discretion there is no binding precedent. But, as is also well known, the Court is also enjoined always to exercise its discretion not capriciously or unfairly, but judiciously. This Principle has now assumed constitutional validity by Article 296 of the 1992 constitution of Ghana”. Dr. Date-Bah, JSc in his inimitable fashion casts the position thus in the case of Welford Quarcoo vrs. Attorney General & Anor. (2013) 1SCGLR 259 at 260; “It has always been my understanding that the requirement for the grant of an Injunction are: first, that the Applicant must establish that there is a serious question to be tried, secondly, that he or she will suffer irreparable damage which cannot be remedied by the award of damages, unless the Interlocutory Injunction is granted, and finally that the balance of convenience is in favour of granting him or her the Interlocutory Injunction. The balance of convenience of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief”. The Plaintiff/Applicant deposed to his Affidavit in Support of the Motion stating that Defendants have engaged in construction activities on the disputed land. Defendants/Respondents herein represented also claim ownership of the disputed land. 4 |E1/127/2021 In an Application for the grant of Interlocutory Injunction, the Court must not be saddled with issues, that go to the merit of the case. The issue of ownership of land is a triable issue which is determined after going through full trial”. Lord Diplock L. J in the leading Case of American Cynamid Co. vrs. Ethicom Ltd (1975) AC 396 (Supra) stated the position of the law thus: “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 may 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”. Order 25 rule 1 gives the Court the discretionary power to grant an Application for Interlocutory Injunction if the Court finds it just and convenient to do so, however, from the evidence adduced I do no deem it to be just and convenient to grant this instant Application and also it is my considered opinion that this Application is seemingly frivolous because the Plaintiff/Applicant has not fully met the conditions precedent in demonstrating their protectable legal interest in the said disputed land in this Application. There are a lot of triable issues which will be determined after the trial. Plaintiff/Applicant has not demonstrated to this Court that the balance of convenience will tilt adversely against him should this Injunction be refused. I therefore dismiss this Application for Interlocutory Injunction against the Defendants/Respondents herein. This matter will take its normal course as expeditiously as possible. 5 |E1/127/2021 Cost of Two Thousand Ghana Cedis (GH¢2,000.00) in favour of 1st, 3rd, 4th, 7th, 12th and 15th of the Defendants/Respondents herein. H/L: RITA AGYEMAN-BUDU (MRS) (JUSTICE OF THE HIGH COURT). sb.a 6 |E1/127/2021