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JUDGMENT
FARKYE, J.A.
This judgment is in respect of
an appeal against the ruling of
His Honour Anthony Oppong,
Circuit Court Judge, Accra,
sitting on the 22nd day of
October, 2003. The facts leading
to the bringing of this appeal
are that, on the 30th day of
May, 2003 an advert appeared in
the Ghanaian Times announcing
that a public auction sale was
going to take place on the 3rd
day of June, 2003. The
Co-Defendant/appellant attended
the said public auction sale,
put in a bid and was adjudged
the highest bidder. After
complying with all the statutory
requirements, the
Co-Defendant/Appellant was
subsequently issued with a
Certificate of Purchase by the
Circuit Court.
On the 9th day of July, 2003,
His Honour Kwadwo Owusu sitting
at the Circuit Court Accra,
granted an Order for the
repossession of the unnumbered
house now described by the
Plaintiff/Respondent as plot No.
15 Community 16, Lashibi, which
was the subject matter of the
said public auction sale and
which is the subject matter of
the present suit.
On the 7th day of August, 2003,
pursuant to the Order made on
the 9th July, 2003, all the
occupants of the house plot No.
15, Community 16, Lashibi
including Edmund Kwame Kutsokey,
the judgment debtor, were
lawfully ejected and the
Co-Defendant/Appellant put into
lawful possession of the said
house.
Later the same day i.e. 7th day
of August, 2003, the said Edmund
Kwami Kutsokey and others in
flagrant disregard of the Order
of His Honour Judge Kwadwo Owusu
unlawfully moved back the
re-took possession of the said
house No. 15, Community 16,
Lashibi.
Before the
Co-Defendant/Appellant could
take any legal action against
the Plaintiff/Respondent, the
Plaintiff/Respondent filed
another suit in another Circuit
Court challenging the public
auction sale, which was validly
and lawfully conducted.
When the Plaintiff/Respondent
took the action at the Circuit
Court, he applied for and
obtained on the 9th day of
September 2003, an Order of
Interim Injunction granted by
His Honour Judge Anthony Oppong
also a Circuit Judge. This
interim injunction restrained
the Defendants and their agents
from ejecting the
Plaintiff/Respondent from the
said house into which the [the
Plaintiff/Respondent] had moved.
This was in flagrant disregard
of the Order of His Honour
Kwadwo Owusu made on the 9th day
of July, 2003
Dissatisfied with the said order
of interim injunction, the
Co-Defendant/Appellant filed a
Motion on Notice to vacate the
order of Interim injunction
granted on the 9th day of
September, 2003.
On the 22nd day of October,
2003, the said motion was argued
by Counsel for both parties and
the Circuit Judge declined to
grant the motion to vacate the
order of the Interim Injunction
granted on the 9th day of
September, 2003.
Not satisfied with the ruling of
the Circuit Court dated 22nd day
of October, 2003, the
Co-Defendant/Appellant has
appealed to the Court of Appeal
to set aside the said ruling.
The only ground of appeal filed
by the Learned Counsel for the
Co-Defendant/Appellant is as
follows:—
The Circuit Judge erred in
refusing to vacate its order or
Interim injunction dated the 9th
day of September, 2003 in
flagrant disregard to the Order
of possession dated 9th day of
June, 2003, made by His Honour
Mr. Kwadwo Owusu, Circuit Judge
in respect of the same subject
matter.
On Friday May, 30th 2003 there
was an advertisement in the
Ghanaian Times that there was
going to be an auction sale of
unnumbered house at Lashibi near
Sakumono, Accra property of
Edmund Kwami Kutsokey
Judgment/Debtor. The auction
sale was to come on the 3rd day
of June, 2003 at 10.00 a.m. The
sale was ordered by Circuit
Court “B” Accra.
The Co-Defendant/Appellant
attended the said auction, put
in a bid and his bid turned out
to be the highest bid at the
public auction. The
Co-Defendant/Appellant was
subsequently issued with a
certificate of purchase, Exhibit
“B”. Exhibit “B” is as follows:
This is to certify that Samuel
Tandoh has been declared the
Purchaser of the right, title
and interest of Edmund Kwasi
Kotsokey in the un-numbered
house at Lashibi, near Ashiaman.
On the 9th day of July, 2003,
the Co-Defendant/Appellant was
granted re-possession of the
un-numbered house at Lashibi,
the subject matter of this suit
by the Circuit Court, Accra,
presided over by His Honour
Judge Kwadwo Owusu.
On the 7th day of August, 2003,
all the occupants of the said
un-numbered house were ejected
and the Co-Defendant/Appellant
was put into possession.
On the 9th day of September,
2003, the Plaintiff/Respondent,
Wilson Kofi Kutsokey, applied to
the Circuit Court, Accra
presided over by His Honour,
Anthony Oppong, for an interim
injunction against the
Defendants and their agents,
when this interim injunction was
granted, the order of possession
granted by the Circuit Court
presided over by His Honour
Kwadwo Owusu had not been
vacated; therefore the
Co-Defendant/Appellant was the
bona fide owner of the
un-numbered house at Lashibi.
The Co-Defendant/Appellant filed
motion on notice to vacate the
Order of Interim injunction
granted on the 9th day of
September, 2003. The motion to
vacate the interim injunction
was refused.
The Learned Circuit Judge in his
ruling of 22nd day of October,
2003, stated as follows:—
"I am in agreement with learned
counsel for
Co-Defendant/Applicant that to
the extent that this court was
not made aware of the order of
His Honour Kwadwo Owusu. I was
misled more or less into
granting the interim injunction
order.”
From the above quoted dictum by
the Learned Circuit Judge, His
Honour Anthony Oppong when he
granted the interim injunction
on the 22nd day of October,
2003, there had been an order of
possession by His Honour Kwadwo
Owusu on 9th day of July, 2003.
The affidavit of the
Plaintiff/Respondent in
opposition to the motion to
vacate the interim injunction
granted by the Circuit Court on
the 9th day of September, 2003,
paragraph 5 states as follows :
—
"That the Court was very much
aware of the orders made by His
Honour Judge Kwadwo Owusu, i.e.
grant of writ of possession,
before granting the interim
Injunction pending the
determination of the suit."
On the 22nd October, 2003, when
the Learned Circuit Judge
Anthony Oppong was called upon
to vacate the interim injunction
granted by him on the 9th day of
September, 2003, he should have
vacated his order because on the
9th day of September, 2003, he
was misled more or less into
granting the interim injunction.
By the rule of Court the
Plaintiff/Respondent could have
appealed to Superior Court of
competent jurisdiction to have
the Order of His Honour Kwadwo
Owusu set aside or he
[Plaintiff/Respondent] to apply
for review of the said order or
on the other hand he could have
filed an inter pleader.
In my candid opinion it was not
proper or rather an abuse of
court process for the
Plaintiff/respondent to ask for
an interim injunction while the
proper and legitimate order of
His Honour Kwadwo Owusu was
existing.
The failure of His Honour Judge
Anthony Oppong to vacate the
Interim injunction granted by
him on 9th September, 2003 is
wrong as a court of Co-ordinate
jurisdiction cannot make an
order i.e. interim injunction,
to subvert a valid and existing
Order of another cordinate
Court.
The appeal by the
Co-Defendant/Appellant is
meritorious and is allowed. The
ruling of the Circuit Court
presided over by Mr. Anthony
Oppong dated 22nd October, 2003
is quashed. The Interim
injunction granted by the
Circuit Court on the 9th
September, 2003, is vacated.
S. T. FARKYE
JUSTICE OF APPEAL
TWENEBOA-KODUA, J.A.
I agree
K. TWENEBOA-KODUA
JUSTICE OF APPEAL
ASIAMAH, J.A.
I also agree.
S. K. ASIAMAH
JUSTICE OF APPEAL
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