NII KPAKPO AMAATE II vs DANIEL SACKEY QUARCOOPONE & 3 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
    ACCRA - A.D 2018
NII KPAKPO AMAATE II - (Plaintiff)
DANIEL SACKEY QUARCOOPONE AND 3 OTHERS - (Defendants)

DATE:  10 TH DECEMBER, 2018
SUIT NO:  GJ/273/2019
JUDGES:  JUSTICE KWEKU T. ACKAAH- BOAFO
LAWYERS:  MR. KWASI ADJENIM-BOATENG FOR THE PLAINTIFF
MR. ANDREW N.O. TETTEH FOR THE 1ST, 2ND AND 3RD DEFENDANTS
RULING

 

i. Introduction:

[1] The Plaintiff issued a writ on the 15th day of November, 2018 at the registry of this court for the reliefs set out here below:-

i. A declaration that it is the Occupant of the Obom Stool who ought to preside over the funeral rites of the Mankralo, Nii Ebenezer Yemo Odoi;

ii. A declaration that the activities of the Defendants in trying to organize the burial and funeral rites of the late Mankralo of Obom is contrary to the customary law practices, customs and traditions of the Obom people of the Sempe Paramountcy;

iii. A declaration that the Naa Okaikar and Naa Okailey family is not known at Obom and neither does it have any role to lay in the burial and funeral rites of the late Mankralo of Obom;

iv. An order of the court directed at the Defendants to hand over all documents covering the deposit of the body of the late Mankralo of Obom to the Plaintiff to enable him take the body and organize the burial and final funeral rites of the said Mankralo of Obom.

v. Perpetual injunction restraining the Defendants, their assigns, agents, privies, workers and servants or whomsoever from taking taking the body of the late Mankralo of Obom, Nii Ebenezer Yemo Odoi from the T. Cribb and sons Funeral Home at Nsawam and a further order restraining them from organizing the burial and/or funeral rites of the said late Mankralo of Obom.

vi. Any further order or orders as the Honourable Court may deem fit.

vii. Costs

 

[2] The Plaintiff filed the instant application for an order of Interlocutory Injunction to restrain the Defendants together with the Writ of Summons sealed with reliefs above. Order 25 r 1 of CI 47 stipulates that 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 deciding whether or not to grant an order of interlocutory injunction it has been held that the court would consider the justness and convenience of the order[1].

 

[3] Informed by the provision of the law cited herein, learned Counsel for the Plaintiff/Applicant whom I refer to simply as the Applicant by the application filed is praying for:

an order for interlocutory injunction restraining the Defendants whether by themselves, their assigns, agents, privies, workers and servants or whomsoever from taking the body of the late Mankralo of Obom, Nii Ebenezer Yemo Odoi from the T. Cribb and Sons Funeral Home at Nsawam and further restraining them from organizing the burial and/or funeral rites of the said late Mankralo of Obom pending the determination of this suit”

 

ii. Arguments for and against the Application:

[4] The application is accompanied by the initial 23 paragraph affidavit and later a 33 paragraph supplementary affidavit of the Plaintiff, Nii Kpapko Amaate II. According to the Applicant he is a member of the “Nee Kofi Appiah We of Obom and the Divisional Chief of Obom Stool which stool owes allegiance to the Sempe Stool Paramountcy of the Ga State”. He has deposed that he has instituted this action on his own behalf and on behalf of the Obom Stool. It is also case of the Applicant that there are two royal families, namely Nii Appiah We and Nii Armah and they together make up the Obom Family. The Applicant has also deposed that the Chief always comes from the Nii Appiah We.

 

[5] It is the case of the Applicant that the 1st and 2nd Defendants who are residents of Gbawe and Kwashieman, Accra respectively are holding themselves out as head and member of “Naa Okailey of Obom Mayera”. He also says the 3rd and 4th Defendants who are members of the Appiah We of Obom and “direct sibling and nephew respectively of the Plaintiff” together “with the 2nd Defendant are holding the 1st Defendant as the head of the said Naa Okaikor and Naa Okailey family of Obom Mayera”.

 

[6] According to the Applicant, to the best of his knowledge there is no town called Obom Mayera and neither is there any family called “Naa Okailey Family” at Obom as claimed by the Defendants. According to the Applicant the said Naa Okailey family of Obom is only a “creation of the 1st Defendant/Respondent supported by the other Defendants”. The Applicant gives a historical narration to say that “Obom and Mayera are two separate and distinct towns from each other and do not share any kinship relationship. He says he was enstooled in 1992 together with certain individuals including the deceased Nii Yemoh Odoi who was a Mankralo.

 

[7] It is the case of the Applicant that “by customary law practices and custom of the Ga people including the people of Obom, it is the Occupant of a stool who in conjunction with the Occupant of the Sempe Paramount Stool organizes and presides over the burial and funeral rites of deceased persons who occupied traditional offices/positions such as the office the deceased occupied in his life time”. The Applicant has deposed that when his father, Nii Obom Armah passed on to join his ancestors when he was the then chief of Obom, it was the paramount chief, Nii Adote Obuor II and his elders as chief mourners who presided over the burial and the funeral rites. He has attached as Exhibit NKA1” an Obituary notice he says is that of his late father.

 

[8] It is also the case of the Applicant that in his capacity as the Divisional Chief of Obom, he presided over the funeral of the following people: Naa Yaaley I, Nii Ammon Okai, Kwame Yeboah and Asafoanye Jama who were installed together with him between 2004 and 2015. In regards to the present suit, he has also deposed that “recently it came to my notice that the Mankralo of Obom, the said Nii Ebenezer Yemoh Odoi, has passed and the body is deposited at T. Cribb & Sons Funeral Home at Nsawam in the Eastern Region of Ghana”.

 

[9] He has also deposed that it has come to his knowledge and attention that funeral and burial plans have been made and same was set for the weekend of November 23, 2018 and November 24, 2018. A copy of the publication has been attached as ExhibitNKA2”. According to the Applicant once he became aware of the publication which was without his knowledge and consent, he sent for the Defendants to come and explain to him why they put out the publication without any recourse to him but he says they refused to honour the invitation.

 

[10] It is the case of the Applicant that the Respondents attempt to take the body of the Mankralo from the morgue and to organize the burial and funeral rites is contrary to the Ga customary law practices, customs and traditions of the Obom people. He also says the Defendants’ activities amount to a challenge of his authority and “breakdown the customary law practices, customs and traditions of the Obom people and that will lead to the breach of the peace of the Obom people”. The Applicant further contends that he is being deprived the right to exercise and perform his “customary function as the Chief of Obom to organize the burial and final funeral rites of the late Mankralo of Obom in accordance with the said customary law practices, customs and traditions of the people of Obom”. Based on all of the above the Applicant has prayed the Court to grant the Application.

 

iii. Responding Affidavit:

[11] The 1st to 3rd Respondents have totally denied all of the allegations contained in the affidavit of the Applicant and specifically stated that the Applicant is not the Chief of Obom. According to them he was destooled by the late Mankralo, coincidentally, the person whose burial and funeral is the subject matter of this litigation. A joint affidavit in opposition sworn to by Daniel Sackey Quarcoopome, the 1st Defendant/Respondent on his own behalf and the 2nd and 3rd Defendants he has deposed that the application is misconceived and not supported by the rules of Court. The deponent says he is the Lawful Head of the Naa Okailey and Naa Okainkor Family of Obom, Mayera and that fact is well-known to the Plaintiff. According to the 1st, 2nd and 3rd Respondents “there is a pending suit against the Plaintiff, i.e. Suit No. LD/0812/18 challenging his right as a family member”.

 

[12] According to the 1st Respondent the Plaintiff has been destooled twice as Chief of Obom by the deceased former Mankralo for his “unchiefly behavior and cannot therefore continue to hold himself as a Chief of Obom”. The Respondents attached as ExhibitDQ1” photographs they say confirm the destoolment. It is the case of the Respondents that “Obom and Mayera do not have a stool but a family with the lawful family head of the Naa Okailey and Naa Okaikor families of Obom Mayera. To the Respondents therefore there is nothing like the Obom Stool as averred by the Plaintiff”.

 

[13] According to the 1st to 3rd Respondents it is not true that there is a “Nii Appiah We in our joint families being the Naa Okailey Family and Naa Okaikor Family of Obom, rather the Arnah and Appiah families which are sub families of the Naa Okailey and Naa Okaikor families of Obom”. The Respondents also contend that there is nothing like Obom Mayera as stated by Plaintiff but rather Obom and Mayera with family members residing in both villages.

 

[14] The Respondents further say even though Obom is under the umbrella of the Sempe Stool its lands are family lands and therefore “there cannot be a stool such as Obom Stool as stated by The Plaintiff”. The deponent further averred that “the 3rd and 4th Defendants are the principal members of the Naa Okailey and Naa Okaikor families of Obom and Mayera and not Appiah We of Obom. The 4th Defendant is the officially recognized Mankralo of Obom and Mayera”. The Respondents further contend that “2nd Defendant was appointed to act as the Chief of Obom by the Ga Traditional Council when the Plaintiff was destooled by the late Makralo and the Council restrained him from acting as a chief. The deponent attached as ExhibitDAQ2” he says is a copy of the decision made by the Ga Traditional Council.

 

[15] The Respondents denied paragraphs 6th and 7th together with paragraphs 9 to 17 of the affidavit in support and have deposed that they will put the Plaintiff to strict proof of those averments. According to the Respondents the Plaintiff “never played any role in the burial of members of their joint families and that members like “Naa Yaaley I, Queen Mother, Kwame Yeboah, Asafoatse Jama and Auntie Oye Appiah were buried by the family and not the family”. According to Mr. Sackey Quarcoopome the Plaintiff’s Exhibit “NKA1” attached to his affidavit does not support or relate to the family of the former Mankralo of Obom but rather all the said persons are all Chief mourners at the funeral of the late Nii Obom Armah. It is the case of the Respondents that the deceased Mankralo “belongs to a family and therefore his funeral should not be an issue or concern of the Applicant who claims to be the Chief of Obom”.

 

[16] It is the further case of the Respondents that “a dead person’s body belongs to his family of which the 1st Respondent deponent is the head of family and not the chief of the town”. It is the further case of the Respondents that the instant application has been brought in utter bad faith because according to the deponent the Plaintiff is revenging against the deceased Mankralo because he was the one who destooled him. The Respondents also contend that even if the Plaintiff is a Chief of Obom, a position they deny he has no oversight role and active role in the “burial of the previous and retired Mankralo of Obom and thus should not have brought the instant application”.

 

[17] The Respondents have also averred that a lot of preparation and money have spent in the organization of the burial of the late Mankralo which was originally scheduled for November 23 and 24, 2018 but same had to be postponed due to the instant action. It is the case of the Respondents that the instant application has caused them great financial loss. They contend that they have spent close to Gh50, 000 in making the preparation. They have attached as Exhibit “DQ3”, receipts of some of the expenses they claim to have incurred. Based on all of the above the Respondents have prayed the Court to dismiss the application.

 

iv. Applicant’s Rebuttal Supplementary Affidavit:

[18] With the leave of the Court the Applicant filed a Supplementary Affidavit on December 6, 2018 to answer the contentions of the Respondents. The Applicant first and foremost denied all of the allegations of the Respondents and deposed that Suit No. LD/08/2018 referred to by the Respondents relates to lands in Obom and not as contended by the Respondent. Copies of the Statement of Claim and the Statement of Defence filed in the case are attached as Exhibits “NK2A” and “NK2B” respectively.

 

[19] In reaction to the allegation of his destoolment, the Applicant says the 1st Respondent with the aid of Land Guards armed to the teeth kidnapped him from Bawjiase in the Central Region through Adeiso in the Eastern Region to Obom M.A. School Park to strip him half naked and forcibly cut his beads. According to him the incident is what is captured in the Respondents’ ExhibitDQ1”. The Applicant identifies the late Mankralo as the person wearing red attire in the photograph – ExhibitDQ1”. The Applicant has further deposed that he reported the incident which he describes as an assault to the police who arrested his assailants including the late Mankralo, prosecuted them before the District Court and were found guilty. A copy of the ruling of the Amasaman District Court dated February 15, 2016 is attached as Exhibit “NK3”.

 

[20] In further denial of the Respondents’ affidavit, the Applicant deposed that Exhibit “DQ1” shows the “performance of customary rites during the installation of the stool father in the person of Nii Nmai II (known in private life as Philip Aryee)”. This exhibit according to the Applicant “contradicts the Respondents claim that Obom has no stool”. The Applicant further submitted that the Respondents “as recently as 26th November, 2015 purported to organize a funeral and accordingly prepared for the purpose”. He submitted ExhibitsNK4”, “NK5” and “NK5A” which are Obituary notice and an Extract from the Gold Coast Chief Lists and Extract from the Local Government Bulletin No. 31”.

 

[21] In further response to the contentions of the Respondents, the Applicant has deposed that in September 2017, the Paramount Chief of the Sempe Stool wrote to the Acting president of the Ga Traditional Council, Nii Doodo Nsaki II to withdraw the suit which was pending at the Judicial Committee of the Ga Traditional Council for settlement. He says the request was granted and the matter was subsequently settled. He attached as Exhibits “NK5B”, NK6, “NK7”, “NK7A” and “NK8” being the correspondence between the Sempe Stool and the Ga Traditional Council. According to him per the settlement he became the only recognized an d legitimate Chief of Obom.

 

[22] The Applicant further deposed that “notwithstanding the peaceful settlement of the said Suit the Defendants/Respondents kept fomenting trouble at Obom and as a result of which Sempe Stool suspended the 1st Defendant/Respondent and others and appointed one Nii Ayi Acquaye to act as an Interim Head of Family”. A copy of the said letters of suspension and appointment have been attached as Exhibits “NK9” and “NK9A”.

 

[23] The Applicant in further reaction to the Respondents affidavit repeats his earlier deposition and states that “I shall say that if the late Mankralo is to be buried by his paternal Odoi family of La as Ebenezer Yemo Odoi, late of La where his father came from, I shall not have any issue with it but if the funeral rites are to be performed at Obom and he is to be buried at the Royal Mausoleum of Obom and as Mankralo of Obom, then it cannot be done without recourse to me as the Chief of Obom”. This, according to him is because by the customary practice of the Ga people of which Obom people are part, the burial and funeral rites of a sub-chief can only be organized by the substantive chief as well as the granting of funeral space at the royal Mausoleum. The Applicant further denied the other allegations and prayed the Court to grant his application.

 

v. Legal Arguments of Counsel:

[24] As required by the Rules of Court both Counsel filed their statement of cases together with the application and the affidavit in opposition respectively. Due to scheduling challenges, the initial position of the Court to allow Counsel to make oral submission and to highlight to the Court certain parts of their cases did not materialize. Be that as it may, the Court notes that Counsel for the Applicant later submitted to the Court some legal authorities he said could assist the Court in making it decision. It is titled “List of Authorities” and same was handed over to the Court through the clerk after the matter had been adjourned. The Court has read the authorities cited and where appropriate has considered same in this decision. The original copy is in the Court’s docket.

 

[25] The Applicant in his statement of case filed by Counsel submitted that he is entitled to the grant of the injunctive order because he has “established a prima facie case because as the Chief of Obom, he is entitled by custom to take the body of the late Mankralo of Obom and organize the burial and funeral rites of the late Mankralo in accordance with the customary law practices, customs and traditions of the Obom people”. Counsel quoted and relied on such cases as FRIMPONG v. NANA ASARE OBENG II (1974) 1 GLR 16, CENTRACOR RESOURCES LIMITED v. BOOHENE & OTHERS (1992-93) GBR 1513, VANDERPUIYE v. NARTEY (1977) 1 GLR 428 and others to submit that on the strength of the Applicant’s case, the Respondents should be restrained by the Court to “avert the breach of the customary law practices, custom and traditions of the Obom people and the breach of the peace”.

 

[26] The Court notes that in the later list of authorities submitted by Counsel for the Applicant Learned Counsel referred to Justice Brobbey’s book “The Law of Chieftaincy in Ghana pages 335-337 and the case of AMARTEI v. HAMMOND (1981) GLR 300 @ 338. On the right of a Chief to partake in the burial and funeral rites of a deceased sub-chief, Counsel referred the Court to the case of NSIAH v. AMEYAW II (1994-95) 2 GBR 583-592.

 

[26] Mr. Andrew Tetteh on his part has submitted in his statement of case that the Applicant as a Chief cannot “hold and stop the funeral of the late Mankralo who belongs to a family namely the Naa Okailey and Naa Okaikor families of Obom and Mayera”. According to Learned Counsel the “Plaintiff if he claims to a Chief…is not the rightful person to perform the funeral rites of a member of a family rather it is the family per its lawful head which can and should supervise the funeral and burial of the late of Mankralo”. Counsel further submits that it is trite law that “it is a person’s family that buries him and not the state or stool”. Counsel cited and relied on the case of NEEQUAYE & ANOTHER v. OKOE [1993-94] 1 GLR 538.

 

[28] It is also the submission of Counsel that “it is widely known that a Chief does not go near dead bodies” to that extent, Counsel has submitted that the Applicant’s suit and the instant application is only an abuse of the process of the Court. Counsel also submitted that there is a current Mankralo installed by the deceased and therefore if there are any rites same should be performed by the said Mankralo.

 

[29] Further Counsel submitted that the Applicant has not shown by the application what irreparable damage he will suffer if the application is refused. Rather, it is the case of the Respondents that they together with the children of the deceased have expended substantial resources in preparing for the funeral. Counsel has also submitted that the Respondents continue to pay mortuary fees and therefore it shall be against their interest should the application be granted.

 

[30] Counsel for the Respondents also submitted that the Applicant has not shown any legal right which is being infringed upon since it is trite that the dead body belongs to his family and they must organize the funeral and the burial. Counsel relied on the case of OWUSU v. OWUSU (2007-2008) 2SCGLR 870 and the case of VANDERPUIYE v. NARTEY SUPRA for the submission. Based on all of the above learned Counsel submitted that the application is not well-grounded, it is mischievous and therefore it must be dismissed with costs.

 

vi. Analysis & Opinion of Court

[31] It is trite learning that a host of respectable authorities have settled the principle that an injunctive order is an equitable remedy and discretionary and the court shall only grant it when it is just and convenient to do so. Not only that, the order is also granted to protect a right where that legal right could be asserted either at law or in equity. In the exercise of that discretion the court is not bound to follow precedents as each case has to be determined on its own merits. However, where guidelines have been laid down in established cases the courts are willing to follow those guidelines.

 

[32] It is also worthy of mention that in the classic case of AMERICAN CYNAMID CO.

LTD V ETHICON LTD (1985) AC 396, the House of Lords through Lord Diplock expressed himself by asserting the traditional opinion that where the court was considering the application for interim injunction while the substantive suit was still pending for determination on its merits, it has no duty at that stage of the litigation to resolve conflicts of evidence on affidavits as to facts on which the competing claims of the parties may ultimately depend.

 

[33] The above legal position was adopted by the Ghana Court of Appeal and applied in the case of VANDERPUIYE V NARTEY SUPRA where the Court of Appeal Coram: Amissah, Kingsley-Nyinah and Hayfron-Benjamin JJ.A.) reiterated the above legal position through Amissah JA who delivered for the unanimous Court that ‘the general and obviously safer rule is that, in interlocutory applications, adjudicators must avoid making definitive findings on disputed issues, particularly where the facts are not only material but are for some reasons obscure or highly contentious’. I wish to abide by the above caution in making my decision in regards to the merits or otherwise of the application.

 

[34] In 18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED [2012] SCGLR 167 the Supreme Court delivered itself per his Lordship Anin-Yeboah JSC and opined after analyzing the earlier cases including VANDERPUYE v NARTEY SUPRA @ 431 and ODONKOR v AMARTEI

(1987-1988) GLR 578 as follows:

“We are of the opinion that the Court of Appeal did not propose to lay down any hard and fast rules or principles to regulate the determination of interlocutory injunctions. Even though it is discretionary, we are of the view that a trial court in determining interlocutory application must first consider whether the case of the applicant was not frivolous and had demonstrated that he had a legal or equitable right which a court should protect. Second, the court is also enjoined to ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter. The trial court ought to consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party”.

 

[35] In effect, the apex Court has laid down a tripartite text and it is that the applicable law to the grant or refusal of an application for interim injunction is that the Applicant must, prima facie demonstrate a legal right that is in danger of continuous threat if the status quo ante was not maintained. Also, the Applicant shall demonstrate that on the balance of convenience irreparable damage shall be caused to him or her if that legal right was not protected for the time being.

 

[36] The ultimate question in this law suit for my consideration is who has the right to prepare and to organize the burial and funeral rites of the late Mankralo, Nii Ebenezer Yemo Odoi. I say so because even though both parties have made depositions as to whether or not the Plaintiff is a chief, in my respectful opinion this Court cannot make that determination because it is established that this Court has no jurisdiction to deal with a cause or matter affecting Chieftaincy. For our purpose now however, it is my view that who has the right to organize the burial and funeral of the late Mankralo is what the Court is to determine. It is to be noted that it is well settled at common law that there is no property right in a dead body[2]. Also, under Ghanaian customary law, it is well settled that the corpse does not form part of the estate of the deceased; it belongs to the customary family of the deceased and it is this family that decides on matters of burial and funeral[3].

 

[37] The above statement notwithstanding, I have found it useful reading the case of NSIAH v. AMEYAW II SUPRA referred to me by Counsel for the Applicant. The brief facts of that case is that the Plaintiff-Respondent, who described himself as the Chief of Effiduase in the Asante Mampong traditional area and Acting President of the Asante Mampong Traditional Council issued a writ in the High Court against the family head Opanin Kwabena Nsiah of the deceased (Nana Boateng) who was one of the kingmakers of Effiduase stool with the customary right and prerogative to participate in the installation of the Effiduasehene for a declaration that as the chief of Effiduase he ought to be customarily informed of the death of the sub-chief failing which the burial and funeral could not take place. The Defendant-Appellant contended that the sub-chief, a kingmaker, did not participate in the enstoolment of the Defendant-Appellant and had never recognised him as the chief hence the refusal to comply with the Defendant-Appellant’s demand. Before pleadings closed the Plaintiff-Respondent obtained an order for an interim injunction to restrain the burial and funeral unless he was notified.

 

[38] On appeal, Counsel for the Defendant-Appellant contended that since the status of the Plaintiff-Respondent as chief was yet to be determined the trial judge erred in granting the order for injunction because by doing so the trial High Court had adjudged the Plaintiff as a chief, thus prejudging the matter. He also contended that even if the Plaintiff-Respondent were the chief non-performance of the custom was no ground for prohibiting the burial. Counsel for Plaintiff-Respondent contended that his client was recognised in the Local Government Bulletin; and also the deceased sub-chief alone could not invalidate the installation of the Plaintiff-Respondent.

 

[39] The Court of Appeal – Coram: Essiem, Brobbey, Forster, JJA held firstly that the Trial Court did no wrong because “the Local Government Bulletin appearing in the Gazette was prima facie evidence that the Respondent had been recognised by the Government as a chief. The effect of the Government recognition was to make the Respondent the chief. Their Lordships also held among other that “the Appellant had conceded in the statement of defence that the Respondent had performed chiefly duties and was recognised as such over two years before the sub-chief died”. To my mind, the important part of the decision for our purpose in this matter is the general position of the law stated by the Court. At Holding 2, the Court stated that:

“As a general principle the performance of the custom of notification was not a sine qua non to the burial of the sub-chief. However once a person became a chief his private life became submerged in the general will of his people. That explained why a chief was given royal burial. It was incongruous to contend that a chief should be buried ordinarily by his family. If the deceased were not the sub-chief, his burial would have been a private family affair but since he was the sub-chief, he was a chief and therefore the argument could not apply to side-step the mandates of custom”.

The Court further stated that the customs which are performed for persons who hold chiefly positions upon their death distinguish royal burials from ordinary burials and therefore what custom mandates to be done by the dead man’s family and his people by virtue of his position as a chief ought to be done. The Court also stated that purification rites come into play where custom is broken unconsciously or unknowingly.

 

[40] Guided by the principle postulated by Lord Diplock and the statement of law by the above-quoted Court of Appeal decisions, and given the pleadings filed in the instant case as well as the affidavit evidence, I hold the respectful view that it cannot be denied that there is a justiciable controversy between the Plaintiff and the Defendants, in particular whether or not Obom has a stool and if so whether or not the Plaintiff is the Chief of Obom etc. Consequently, I hold that the claim before this court is neither frivolous nor vexatious.

 

[41] The law now appears settled that where the court is of the view that the case of the Applicant for injunction is not frivolous or vexatious the application has to be considered on the balance of convenience. In assessing the balance of convenience, it is imperative for the court to take into account all the relevant factors as well as the strength of the respective cases of the parties. In the words of Lord Denning:

“In considering whether to grant an interlocutory injunction the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also the strength of the defence and then decide what is best to be done.” (Emphasis highlighted). See: HUBBARD v VOSPER (1972) 2 WLR 389 at p 396.

 

[42] In WELFORD QUARCOO V. ATTORNEY GENERAL & ANOTHER [2012] 1 SCGLR 259 the Supreme Court per the venerable Date Bah JSC further stated the law as follows:

‘It has always been my understanding that the requirements for the grant of an interlocutory injunction are: first, that the applicant must establish that there is a serious question to be tried; secondly, that he or she would 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”

 

[43] Now, having regard to the competing claims of the parties and given the affidavit evidence and facts of the case it can be discerned from the pleadings that all was not well between the deceased late Mankralo and the Plaintiff. From the evidence the deceased is the one who allegedly “kidnapped” the Plaintiff from Bawjiase to Obom and where he was stripped half-naked. Consequently, the deceased and others were convicted by a Court of competent jurisdiction for assaulting the Plaintiff as the Complainant and the star prosecution witness. The Defendants have confirmed the bad blood that existed between the deceased and the Plaintiff whilst he was alive and therefore accuse him of using the instant action as a transparent ruse to retaliate and embarrass him even after his death. To that extent sitting as a judge I should ask myself whether or not under the colour of custom, the burial and funeral of the deceased should be organized by the Plaintiff? To my mind the answer is No. Granting the Applicant’s wish would amount to giving him the right to organize the funeral of his adversary. To my mind that would not be in accordance with good conscience and common sense.

 

vii. Conclusion:

[44] Based on all of the above and having regard to the competing claims of the parties and given the facts and the background of the case and on the balance of convenience, and basing myself on the rule as stated by the Supreme Court per Kpegah JSC in EKWAM v PIANIM SUPRA, having regards to the totality of the evidence so far filed in this case, I hold that it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 to grant this instant application.

 

[45] In the opinion of the court whilst the case of NSIAH v AMEYAW II SUPRA unequivocally states and recognizes that rites are performed for those who hold chiefly positions upon their demise, I do not understand their Lordships to say that the funeral and burial should be organized by the sitting Chief. He is to be informed by the family and he is to be allowed to perform customary rites.

 

[46] I further hold that on the balance of convenience the Respondents, the children and the estate of the deceased shall stand to suffer greater hardship and irreparable damage should the application be granted because monies meant for the immediate family which could be used to help pay for the education of young children for instance would be “thrown away” by using same to pay for mortuary fees etc. In the contemporary market economy, that will be unconscionable in terms of public policy. The court takes judicial notice of the fact that traditional authorities have taken notice of the inimical and deleterious ramifications of high funeral expenses and some have taken steps to arrest the incurring of such expenditures because what is effectively an “economy of death” cannot be rationalized in contemporary times in the name of custom. The Respondents have already shown that they have spent huge sums of money in preparing and organizing the funeral which was in practice injuncted when the instant application was filed. The lives of the bereaved are virtually on hold awaiting closure until the deceased is buried. Even though the Plaintiff denied the claim, no contrary reason was given as to why the deposition by the Respondents are not true. Also, he did not provide the Court with any alternate plan in regards to who will fund this funeral and burial.

 

[47] The Plaintiff/Applicant, on the other hand, shall suffer no loss if it was refused in so far as a room is created for him and his elders to perform the rites that custom demands to be performed.

Based. In the light of the foregoing reasons above, the application for interlocutory injunction is refused. The Court however make the following orders:

1. The Court notes that the Respondents have not denied that the deceased was a Mankralo and therefore based on the law and custom the principle in Neequaye v Okoe Supra is not wholly applicable. Recognition ought to be given to the people whom he served in his life time and they must have a role to play during his burial represented by the elders.

2. However, the Respondents and the immediate family have the prerogative to organize the burial and funeral of the late Ebenezer Nii Yemoh Odoi but in consultation with the Chief and elders of Obom who shall be afforded the opportunity to perform the required customary rites before the burial of the deceased.

3. For the purposes of this application, the above orders, the burial and funeral ONLY the Plaintiff shall be given the recognition as the Chief of Obom so that peace and tranquility shall prevail during the preparation and burial of the deceased.

4. The parties are ordered to respect these ORDERS and none shall unreasonably withhold any right and or/authority to be exercised in regards to the burial and the funeral celebration.

5. The Divisional Commander of the Ghana Police Service in whose jurisdiction Obom falls and/or the place the burial and funeral is to take place shall detail personnel to assist to keep the peace of the area during and after the burial and funeral.

 

[48] I hope that all the parties shall bury the hatchet so that the late Ebenezer Nii Yemoh Odoi, Mankralo shall be giving a befitting farewell from this world, a journey which started peacefully some weeks ago when he passed on and to finally have a peaceful rest with his maker.

 

[49] Having dismissed the Applicant’s application which was filed a week before the original burial date and thus prevented the burial and funeral from taking place, ordinarily, I should award cost against the Applicant as a sign of public opprobrium and rebuke for embarking on such costly litigation only one week to the planned date for the burial and funeral. However, in the interest of unity for and among the people of Obom and to foster peaceful co-existence at least for the burial and funeral rites, I make no order as to Costs.

Accordingly Ordered.