Makwali v Rashid (BE/KTP/DC/A1/22/2025) [2024] GHADC 778 (21 November 2024)

IN THE DISTRICT COURT KINTAMPO HELD ON THURSDAY 21ST NOVEMBER2024BEFOREHIS WORSHIP KWAMEADJEIMANU ESQ. SUIT NO:BE/KTP/DC/A1/22/2025 AMADUYAKUBU MAKWALI - PLAINTIFF/APPLICANT Suing per his lawfulattorney LukemanHakim Busi VRS MR. RASHID - DEFENDANT RULINGONMOTION FORINTERLOCUTORYINJUNCTIONFILEDON 9TH SEPTEMBER, 2024. 1. Introduction 1.1. The Court is under duty to exercise its discretion judiciously in injunctive applications where the applicant establishes a right which is being violated. Injunction being a discretionary relief to be granted wheneverthe court considers it justified, the exercise of this discretion cannot be capriciously, arbitrary or in a manner constituting an abuse of discretionary power. The court must consider the justice of the case as a paramount consideration in determining an application for interlocutory injunction, so the grant of such an injunction as an equitable remedy must be considered andmade in accordance with law. Applicant’s case 1.2. Plaintiff/Applicant who for ease and congruence is referred subsequently to as Applicant brings his motion seeking an order restraining Defendant/Respondent from dealing with the disputed land which he Page1of8 identities as Plot numbered 104 Block D Sector 3 Kintampo on Paagor Royal family stool land, which Applicant seeks to establish his ownership of with Exhibits A and B attached to his Application being an allocation note and a site plan. Applicant also alleges ownership of this land. Exhibit C is also a photograph of development on a land which Applicant alleges is Respondent’s trespassory conduct on the land, the latter having used Applicant’ssand to mouldblocksand is building ontheland. Respondent’scase 1.3. Repondent’s case is also that the land on which he is building is plot numbered 106 Block D sector 3 Kintampo and not the 104 claimed by Applicant. He also attached the judgment of the High Court Sunyani in suit number C12/08/2018 which according to him established one Aminu Alhassan as the owner of plot number 104 claimed by Applicant and plot number 106 as belonging to Respondent herein, who was Defendant/Appelant in that suit which was an appeal against an earlier decision ofthis Court differentlyconstituted. 1.4. Without speaking at length about the High Court judgment, it is quiet clear that the court in dismissing that appeal stated in its conclusions which affirmed the judgment of the court below that Defendant’s plot is plot number 106.That is found in the first line ofpage 8of the judgment in evidence in this application. The High Court also concluded that plot number 104 had been declared in favour of Plaintiff therein being Aminu Alhassan. Applicant’s supplementary affidavit 1.5. This affidavit filed by Applicant on 21st October 2024 alleged a host of additional facts including potential third party interest in Plot 104 which Applicant claims in this suit. Applicant claims that one teacher Abrefa has ahalfplot withinplot 104which wasalienated tohim byAminuAlhassan. Page2of8 Interlocutoryinjunction 1.6. Order 13 Rule 1 of the District Court (Civil Procedure) Rules 2009 (C.I. 59) provisionis made onapplications forinjunctionas follow: (1) TheCourtmay, by aninterlocutoryorder grant aninjunction either unconditionally or upon terms and conditions that the Courtconsiders just. (2) A party to a cause or matter may apply for the grant of an injunction before, at or after the trial of the cause or matter, whether or not a claim for injunction is included in the party's writ, counterclaimor otherclaim. (3) The applicant for an injunction shall attach to the motion paper a supporting affidavit which sets out fully the facts in support oftheapplication. (4) A respondent who desires to oppose the application shall within seven days of being served with the application file an affidavit in opposition containing all the facts the respondent seekstorely on. (5) In case ofurgency aparty may make theapplication ex parte, supported byanaffidavit. (6) An application made ex parte under subrule (5) may be granted if the applicant gives sufficient reason for making the application ex parte and specifies some irreparable damage or mischief which will be caused to the applicant if the applicant proceedsbygiving noticeto therespondent. (7) An order made as a result of an application made ex parte under subrule (5), shall not remain in force for more than ten days. Page3of8 (8) If an application on notice is not made to extend the order, theorder shalllapseten daysafter it hasbeen made. (9) The Court may, on application by a party affected by an order made under subrule (1) or (6), set aside the order on terms thattheCourtconsiders fit. (10) A party shall not make an application under this rule before the issue of the writ or the filing of a counterclaim or otherclaim under these Rules. 1.7. In Owusu v. Owusu-Ansah & Another [2007-2008] SCGLR 870, the Supreme Court discussed the grounds upon which an interim injunction much likean interlocutoryinjunctionmay be granted at page870thus: "The fundamental principle in application for interim injunction is whether the applicant has a 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”. 1.8. In American Cyanamid v. Ethicon Ltd [1975] 2WLR 316 at 321 Lord Diplock speaking through the House of Lords discussed the purpose for thegrant ofinterlocutoryinjunctionin these words: "The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty wereresolved inhis favour at the trial." Page4of8 2. Merits oftheapplication 2.1. Having considered the facts of this suit, and the affidavit evidence so far given in support of the motion, I am hesitant to grant the motion. Admittedly, the High Court in the Appeal found for Aminu Alhassan in respect of PLOT NO 104, the same land claimed by Applicant herein. Defendant’s case as I can at this point glean from his opposition to the motion is that his building is situate on plot number 106 which shares boundary with Plot no.104 and is shown by exhibit 2 as attached to the affidavit inopposition. This is the planofthearea. 2.2. Parties from their depositions are not ad idem on one point, and that is whether their tussle in this suit is over plot no. 104. Defendant insists that he is on plot number 106. The court cannot in the context of this motion make a finding on this issue which is clearly in contention as it would be completely dispositive of some essential factual issue to be proved in the substantive suit, and this ought not to happen in the context of an interlocutory application of such nature. There is at present insufficient affidavit evidence on record to positively identify the land on which Defendant admits he is beyond the site plans put in evidence. As to how that plan relates to actual position of the parties on the ground, it is yet to be determined bythe Court. 2.3. Still, I am of the view that the fact of the identity of the land occupied by Defendant is one capable ofproofby affidavit evidence if it were notin the middle of such sharp dispute, or at least that sufficient proof to equip the court with sufficient undergirding evidence to properly exercise its discretion could be given in the context of this application. So, a party relying on such evidence to obtain the court’s indulgences on his request orto ground apoint takenonit bears the duty ofpresenting such evidence Page5of8 to the Court. The evidential burden on a party even in the context of applications of such nature was discussed in Republic v. Court of Appeal Ex Parte: James Gyakye Quayson (2022) JELR 109695 (SC) by the court in these words: “when a party files an application, the rules enjoin him or her to, in appropriate cases, add a supporting affidavit duly sworn to on oath. He or she may attach all relevant documents on which he relies to the affidavit. The practice has evolved where Applicants indicate in their affidavit in support that they shall seek leave to refer to relevant documents already before the Court. This serves as sufficient notice to the opposing party or his counsel as well as the Court that the scope of the application may involve some other processes which counsel may seek leave to refer to while on his or her feet. Where an indication is given, that certain processes may be referred to, such processes do not become part of the proceedings of the day unless leave is actually sought, and the processes referred to in the course of moving the application. Every application is determined on the strength of the motion paper, supporting affidavit and documents annexed thereto. A court of law cannot act in aid of a party in our adversarial system of justice, by fishing for documents or introducing documents to support a party’s case against his adversary. That would be tantamount to an “unbiasedumpire”descendingintothe arenaof conflict.” 2.4. In this application, I am not convinced that the ends of justice would be served by the making of an order restraining parties from dealing with plot no. 104 when Defendant insists that he is on plot numbered 106. I cannot also justify stretching the order to deal with the plot numbered 106, as malleable as judicial creativity or the court’s power to justify the grant Page6of8 of discretionary reliefs may be, this would be the kind of order liable to be disobeyed and the administration ofjustice thereby brought into disrepute. ACourt will not stultify itself by making an order which it cannot enforce or the obedience of which may become an impossibility as explained in Levandowsky vrs. Attorney-General(1971) 1GLR 49C.A. 2.5. Additionally, ifApplicant’s own depositions are anything to go by, there is a third-party interest in plot numbered 104 which has not been properly prosecuted, and the court has not received sufficient context to satisfy itself that Teacher Abrefa’s right to quietly enjoy his property will not be negatively impacted by an order of injunction against him. In any case, Applicant has not so far in any of his processes on record disclosed the precise or approximate size or extent of the land as claimed by him. Same wasnot done withthat ofTeacherAbrefa whoApplicant allegesowns part of the plot of land that he is in this suit for all intents and purposes attempting to surreptitiously obtain a declaration of title to the entirety of. I am hesitant to conclude otherwise when the existence of the High Court judgment is not controverted and TeacherAbrefa’s predecessor as deposed by Applicant as Aminu Alhassan was declared owner of the plot numbered104entirely. 2.6. I do not also hold the view that the character of the disputed land if it is found at the end of the suit to belong to Applicant would have changed beyond redemption. Parties agree that it is a building plot. Damages should suffice to compensateApplicant if at the end of the suit he emerges victorious, and the land has been developed by Defendant in a manner Plaintiff finds undesirable and he will takestepsto remedy this. Page7of8 2.7. Finally, an injunction as an equitable remedy is ordinarily granted to prevent irreparable injury which cannot be itself compensated for in damages. That is notthe case here. Conclusion Plaintiff’s motion fails. The motion is accordingly refused. Costs in the sum of GHS 1500.00infavour ofDefendant/Respondent, which shall be costsin the cause. SGD. KWAMEADJEI MANU ESQ. (DISTRICTMAGISTRATE) Parties present Justice Seidu Anafure esq. forPlaintiff/Applicant DanielKorang Esq. forDefendant/Respondent. Page8of8