ANNOBIL v. ANNOBIL [1968] GLR 1080

DIVISION: HIGH COURT, CAPE COAST

DATE: 2 DECEMBER 1968

BEFORE: OWUSU J.

NATURE OF PROCEEDINGS

APPLICATION for an interlocutory injunction restraining the defendant from further management of a disputed house. The facts are sufficiently set out in the ruling.

COUNSEL

J. A. Osei for A. W. Acquaah for the plaintiff.

K. A. Sarpong for T. D. Brodie-Mends for the defendant.

JUDGEMENT OF OWUSU J.

This is an application for the appointment of receiver and manager to collect and pay the rents into court. In effect the application is for an interlocutory injunction restraining the defendant from further management of the house in dispute. The claim is against the defendant for:

“(a) A declaration of her title for herself and as a trustee of her children to house No. 16/4, Kojo Baidoo, Winneba.

(b) Perpetual injunction against the defendant members of his family their servants, etc. from interfering in any manner whatsoever with the said property.”

In her affidavit, the applicant deposed, inter alia, particularly in paragraphs (2), (6) and (7) that:

“(a) the building, subject-matter of the dispute, is owned partly by herself and partly by her deceased husband who gave his share as a gift to his children before his death;

(b) by virtue of letters of administration granted to the defendant, he collected and made use of the deceased’s entitlement under the Social Security Scheme for which her children had been named as beneficiaries, and it was with extreme difficulty that the money was refunded;

(c) consequently, if he continues to take the rent, he will be unable to refund it when after hearing of the case she is adjudged owner of the house and entitled to the rents accruing therefrom.” The defendant also contends, inter alia, in his affidavit that:

“(a) On completion of the building, the subject-matter of the suit, the deceased Kwesi Boye, invited many people including members of his own family and those of the plaintiff’s family to observe the opening of the said building.

(b) On that day the plaintiff and her children made a present of a cloth, a pair of sandals, sheep and whisky to their deceased husband and father.

(c) There and then, their said deceased husband and father, Kwesi Boye, also returned the compliment by making a gift of the sum of £G25 (N¢50.00) to the plaintiff and her children [p.1082] of [1968] GLR 1080 through his (the deceased’s) own head of family, Kofi Adeko, in the presence of the guests.

(d) The gift by the plaintiff and her children was nothing more than ‘well done’ after the deceased had completed the building, and the deceased’s own reciprocal gift was no more than ‘thank you’ for appreciating his effort.” In the absence of evidence to the contrary the presentation of the cloth, sandals, sheep and whisky to the deceased husband supports the contention that a customary gift of at least part of the house was made to the children; otherwise one may be tempted to ask whether members of the deceased’s family including the defendant also made a gift which could be interpreted to mean nothing more than “Thank you.” In an application for an interlocutory injunction, the plaintiff does not have to show that he would be entitled to relief at all events, but that the evidence before the court shows a prima facie case for relief: see Wiltshire Bacon Co. v. Associated Cinema Properties Ltd. [1938] Ch. 268, C.A. and also Snell’s Principles of Equity (24th ed.) at p. 588. Kerr on Injunctions (5th ed.) at p. 2 succinctly puts it thus: “It is enough if he can show that he has a fair question to raise as to the existence of the right which he alleges, and can satisfy the Court that the property should be preserved in its present actual condition, until such question can be disposed of.” The plaintiff has satisfied the court that in the event of her winning the suit, the defendant shall not be in a position to make good the rents collected by him. The defendant does not seriously challenge this, as in fact and in truth it was with extreme difficulty that the children of the plaintiff succeeded in retrieving moneys meant for them, but withdrawn by the defendant under the Social Security Scheme. I have known of no case where an interlocutory application has been refused purely on the ground that the writ is defective. The issues to be tried have been agreed upon and no mention has yet been made that the writ is defective. Even if the writ was defective, the defect can be cured at any time before or during the trial by an amendment. For the reasons above given, I shall grant the application and appoint the registrar, District Court Grade I, Swedru, as the receiver and manager.

DECISION

Application granted.

L. F. A.