Posted on : www.dailyguideghana.com
By William Yaw Owusu
Tuesday July 13, 2010
THE TAMALE High Court has restrained Sofo Azorka from developing 2.62 acres of land located at Gbanyamni-Nabtin Block ‘C’ residential area in the Tamale Municipality pending final determination over its dispute.
The application for interlocutory injunction was filed by Baba Ibrahim, a businessman against Azorka who is also the First Northern Regional Vice Chairman of the ruling National Democratic Congress (NDC) and Inusah, the Gundaaawulana purported to have sold the land to Azorka.
In the substantive suit, Baba Ibrahim is claiming ownership of the land which he intends to develop into a hotel but Azorka who is also claiming ownership has already started developing it.
In the reliefs sought in the writ of summons filed on May 22, 2009 the Ibrahim wants a declaration that “the parcel of land marked ‘site for hotel’ at Gbanyamni-Nabtin Block ‘C’ Residential Area covering a total of 2.64 acres belongs to the plaintiff to the exclusion of everyone else including the defendants.”
He also wants the court to declare that the acts of Azorka amount to trespass and an ‘equitable’ order of perpetual injunction to restrain both Azorka and Gundaaawulana from ‘trespassing’ of his property as well as damages arising out of the ‘trespass.’
Moving the application for interlocutory injunction filed on March 30, 2010, Mohammed Shaibu Abdulai counsel for Baba Ibrahim told the court presided over by Justice Gyamfi Danquah that his client bought the land from Seidu Kayaba who is the Natin-Na and it was the chief “who caused a layout of the land to be mad.”
Counsel told the court that his client first conducted a search at the Lands Commission before “embarking on any move to acquire the land saying the search showed that the land was unencumbered. A file was opened for the applicant and he applied for 99-year lease.”
“The lease was prepared awaiting the signature of the Ya-Na, but the execution was delayed as a result of the death of the Ya-Na. One Yakubu was put in charge of the land by the applicant right from the time it was acquired on September 17, 2001.”
The plaintiff said when he attempted to erect pillars around the land, Azorka had gone ahead to start developing the same land and any attempt to settle the matter failed because Azorka was allegedly in the business of developing the land.
Counsel prayed the court that where an applicant demonstrates that he has both legal and equitable interest in a matter, the court needed to step in to show who really owns the land.
In his application opposing the plaintiff’s claims, A.F Yakubu, counsel for Azorka said the applicant has waited for his client to “sink huge resources into the land before bringing this application.”
“From his conduct, it means that the applicant intentionally waited for the project to get to the current stage before bringing the application so as to lock up the first respondent’s capital with the grant of an interlocutory injunction.”
Interim injunctions are granted where prevailing conditions are just and convenient and they are meant to hold the scales evenly between the parties, but with the state of affairs in this particular case where one party has sunk so much capital, it would be inconvenient and unjust for the first respondent if the application is granted.”
“The applicant has no claim for recovery of possession in his endorsement on the writ of summons so in effect where the applicant gets judgment in his favor, the court will not grant him recovery of possession but he would be entitled to only the reliefs endorsed on his writ so the interim injunction should not be granted.”
The judge in granting the plaintiff’s application said “from the documents filed by both parties, it appears there is a serious question for determination by the court.”
The court said “the applicant has established a right in law or equity which needs protection by the court. In effect the case of the applicant is neither frivolous, vexatious and as the principle earlier discussed showed, a court would grant an interim injunction in such situations to preserve the status quo ante.”
The court said “if the first respondent is allowed to continue with the development on the land the plaintiff cannot be adequately compensated when he succeeds on his claim for declaration of title and perpetual injunction.”
The court however awarded GH¢300 in favor of the Gundaaawulana against the plaintiff for joining him in the interlocutory application.