KIVERTY IVY VICTORIA OBENG vs WELBECK MENSAH YEMOH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    ACCRA - A.D 2018
KIVERTY IVY VICTORIA OBENG - (Plaintiff)
WELBECK MENSAH YEMOH - (Defendant)

DATE:  8 TH NOVEMBER, 2018
SUIT NO:  GJ/1747/16
JUDGES:  HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS: 
RULING

 

By this application the Plaintiff/Applicant is praying the court for the grant of an order of interlocutory injunction to restrain Defendant and his agents and assigns from dealing with the subject matter of the dispute being at Baatsonaa. She also ask for a further order appointing the Registrar of the court to receive rents and manage the property pending the final determination of the suit. In the affidavit that accompanied the application the applicant claim that the res litiga was acquired by the applicant but placed in the joint names of the parties whiles they were married in England. She claim that the marriage was dissolved in England making Respondent relocate to Ghana. Applicant depose that without the consent of her Respondent has taken control of the property, rented it out to tenants and failed to account for same.

 

It is therefore the prayer of the Applicant that an injunction be placed on further receipt of the rent by Respondent and a receiver in the person of the Registrar of the High Court appointed to collect the rent till the final determination of the suit. Respondent on the other hand has strongly resisted the application claiming that though the property is in their joint names but was solely acquired by him. He depose that he contracted his own brother to build property and paid for same. Respondent further contends that he relocated to Ghana not to escape his responsibility as a father to the two children of the marriage but instead he was discharged by the Brentford County Court on a charge of molestation brought against him by the Applicant. To Respondent the Batsonaa property was solely built by him as the Applicant who worked just two hours a week could not have made any meaningful contribution and Applicant was therefore not entitled to any 50% share in that property. This is more so as Respondent signed a consent order during their divorce proceedings relinquishing his claim to the property in England on the understanding that Applicant would have no share in the property in Ghana.

 

Finally Respondent makes the claim that the house is under renovation with no rent being paid and in the same breath claim that the house under renovation is occupied by him and his spouse.

Order 25 Rule 1 of the High Court (Civil Procedure) Rules, C. I. 47 states as follows:

“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”

 

In an application for interlocutory injunction it is the duty of the applicant to demonstrate that there is a right that ought to be protected at law or in equity, that greater and irreparable hardship will be occasioned by the refusal of the application, that the application is not frivolous or vexatious and that compensation may not be adequate remedy. See the following cases: OWUSU v OWUSU ANSAH [2007-2008] SCGLR 870 at 875, VANDERPUYE v NARTEY [1977] 1 GLR 428; AMERICAN CYNAMID CO v ETHICON CO. LTD [1975] AC 396, THOMAS APPIAH ANSAH v NANA KATAKYIRE II Suit No. H1/154/11CA.

 

The applicant accompanied the application with what it claims to be an indenture, being Ex ‘FA1’ that shows that the Baatsonaa property is in the joint names of the parties before the court. I have carefully examined the order from the Brentford County Court and the letter from the Solicitors of Applicant. Whiles it is not the duty of the court to make findings of fact at this stage it suffices to state that the claim of Applicant of being a part owner of the property is not frivolous nor vexatious. The exhibits demonstrate a right that ought to be protected in law or in equity before the final determination of the suit. Nonetheless, the establishment of a right that merit protection alone is not the only factor worth considering in an application of this nature. Applicant is calling for the appointment of the Registrar of the court to be the receiver/manager to receive the rent and manage same.

 

The appointment of a receiver/manager is not governed by Order 25 of the High Court (Civil Procedure) Rules, C. I. 47 but rather Order 27 which states as follows:

Appointment of receiver

(1) The Court may appoint a receiver 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 thinks just.

(2) Any party to a cause or matter may apply to the Court for the appointment of a receiver.

Ancillary injunction

2. (1) An application for an injunction ancillary to an order appointing a receiver may be joined with the application for such order”.

 

I think the application is more rooted in Order 27 rather than Order 25 as the Applicant ask for both injunction and appointment of a receiver. The Rule 3 of Order 27 provides that the court may order the receiver shall first give security to be fixed by the court and has to account for his stewardship. The security may even be by Bank guarantee as provided by the Rules. And this security must be posted and filed with the Registrar as he becomes superintendent of the work of the receiver. It is therefore completely wrong for an applicant to propose the appointment of a Registrar of a court as the receiver as he cannot undertake the work of receivership and police himself. Besides, the Registrar is a judicial officer under article 149 of the Constitution. He is remunerated by the Republic for the performance of his work as a Registrar. If he is appointed he would receive extra income and that cannot be correct. For the court to deploy him as a receiver/manager of receiving rent from the property of parties fighting in court would be employing the Registrar for causes which he was not employed to undertake. Indeed in a paper delivered in 2009 by Justice Dr. Seth Twum, then a Justice of the Supreme Court, titled Fundamental Review of Methods of Execution of Judgment called for the practice of appointing Registrars as receivers to be stopped as is an abuse of the role of the Registrar and is not within the intendment of the rule of court. I fully endorse the findings and conclusions of the learned Judge on this matter.

 

Grant of injunction being a discretionary remedy that also calls for a demonstration by the Applicant that compensation may not be adequate at the end of the trial, I do not think I have been satisfied on this point. Where the Applicant succeeds at the end of the trial as one half owner of the property, it is not difficult for the court to make an order for Respondent to account for all monies collected and ask for their refund to Applicant. And in this respect money will be apt and adequate compensation at the end of the case.

 

On this ground and on my reluctance to make a Registrar as receiver as that is contrary to the purpose of the Rules, I will decline the application for injunction and the appointment of a receiver.

I make no order as to cost.