IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
DAVID OSEI BONSU OF FAWOHOYEDEN - (Respondents)
YAA DUKU AND KOFI ANKAMA - (Appellants)
DATE: 21 ST FEBRUARY, 2018
CIVIL APPEAL SUIT NO: H1/51/17
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE (MRS.) JA
The plaintiff/respondent referred to as plaintiff issued this writ of summons in the Circuit Court, Goaso in the Brong Ahafo Region against the defendant/appellant for the following reliefs: -
Declaration of title to all that cocoa farm/land situate and lying at “Asuboi” “Ahantamour” on the Fawohoyeden stool land and bounded by the properties of Op. Kofi Buor (deceased) (now in the possession of the defendants), Nana Ama Duah, Yaw Desmond Nkrumah, Georgina Duah and Kwadwo Agyemang.
An order of the honourable court directed at the defendants to refund the 45 bags of dried coca beans the defendants unlawfully carted away from the plaintiff’s cocoa/land or in the alternative render account for the proceeds of the 45 bags of dried cocoa beans its current value.
An order of perpetual injunction restraining the defendants, their assigns, privies, etc. from dealing with or interfering with the plaintiff’s quiet possession, enjoyment and use of the disputed farm/land.
General damages for unlawful trespass.
Any further orders(s) that the honourable court deems fit.
The plaintiff and defendants are farmers residing at Fawohoyeden near Goaso in the Brong Ahafo Region, Republic of Ghana. The plaintiff avers that the defendants are the children of his late grandfather Opanin Kofi Buor @ Koo Buor.
It is his case that his grandmother Maame Afia Bantama (deceased) and his brother Opanin Kofi Buor (deceased) acquired a large tract of land from the Fawohoyeden Chief, Nana Akosah, which is situate at “Asuboi” “Ahantamour” on the Fowohoyeden Stool land. This land plaintiff aver was divided into two among the siblings with boundaries clearly delineated by the valley, Tutukekerewa and Ntoma.
Plaintiff said the portion that went to his grandmother Maame Afia Bantama is situated at “Asuboi Ahantamour” on the Fowohoyeden Stool land bounded by the properties of her brother Opanin Kofi Buor, a valley, Asuboi Maame Yaayaa timber road, Nana Ampobeng (deceased). Opanin Kwakye and the Ahantamour Stream.
The plaintiff avers further that in 1993 during the lifetime of his grandmother Maame Afia Bantama she gifted inter vivos a portion of her land to him the plaintiff and he performed “aseda” in the form of Gh¢50.00 and a bottle of schnapps to her in the presence of witnesses to seal the gift and was immediately put in possession of the land so gifted to him.
It is the plaintiff’s case that the late grandmother also carved out portions of her land to some other relatives including one Nana Ama Duah, Yaw Desmond Nkrumah and Georgina Duah who are all currently in possession. Plaintiff said the land gifted him by the late grandmother is bounded by the properties of late Opanin Kofi Buor, Nana Ama Duah, Yaw Desmond Nkrumah, Georgina Duah and Kwadwo Agyemang.
Plaintiff said he cultivated cocoa and food crops on his land and also constructed a cottage on a portion which houses himself, the wife and his caretakers. He has been in undisturbed possession of this lands from 1993 until the defendants recent trespass unto same. The defendants who he said are currently in possession of their father late Opanin Kofi Buor’s land used his farm as a walkway to their farm but never raised any objection to his possession of the disputed land.
Plaintiff avered he recently visited his cocoa farm only to find same invaded by hoodlums and thugs at the instance of the defendants who are now laying adverse claim to his property amidst threat of death and harm. That the defendants have carted 45 bags of dried cocoa beans and also plucked all the ripe cocoa pods from the disputed farm without his consent. Plaintiff averred further he was inflicted with severe cutlass wounds when he protested to the defendant’s unlawful trespass to his farm and he has ‘X’ ray images to show. He lodged a complaint at the Goaso Divisional Police and is currently under investigation.
All attempts to ward the defendant and their agents off their continuous trespassory conduct have proven futile and are bent on their trespassory acts unless compelled by the honourable court to desist from same hence this suit.
The defendants in their defence said the 2nd defendant is known as Kofi Buor and his Stool name is Nana Kwasi Ankama, while plaintiff in the son of Akua Gyamfuah. It is their case that the adverse claim of the plaintiff herein is right in the farm, the subject matter of the judgment in Suit No. C1/43/04 initiated in the same Goaso Circuit Court on 16/06/2014 in which plaintiff’s therein had judgment. The Suit is titled: -
Madam Yaa Duku
Nana Akwasi Kobi
The defendants aver that 1st defendant herein was in effective control of her farm when defendants in Suit No. C1/43/04 including plaintiff’s mother trespassed unto same. The 1st defendant denied plaintiff and relatives as boundary owners and named Opanin Kwakye, Nana Ampobeng, Madam Abena Mansah and Madam Yaa Yaa as his boundary owners and that the land is situate at Ahantamourho and abuts the stream Ahantamour.
Defendant contends that the judgment of Suit No.C1/43/04 injuncted not only the plaintiff therein but his assignor, relatives and workmen etc from dealing with all the cocoa farm and adjoining fallow land lying, situate at “Asuboi” Ahantamour’. The plaintiff is an assignee and or relatives of the defendants in Suit No. C1/43/04. The plaintiff knew of the pendency of Suit No.C1/43/04 since he has been following his relatives to the court and was in court when judgment was delivered on 24/04/2015.
Defendant contends further that the plaintiff has no land in the area in dispute but trying to create one with the connivance of his relatives. That it is rather the plaintiff and some of his relatives and agents who shot and inflicted cutlass wounds on the 1st defendants labourers.
It is the case of the defendants that the plaintiff is estopped from re-litigating the subject matter herein per rem judicatam. That the 1st defendant’s mother gifted the land in dispute to her and she exercised effective control and occupation of same after ‘aseda’ had been rendered. She planted cocoa and food stuffs thereon.
1st defendant avers sometime in 1999 she notices one Kwabena Bonsu trespassed unto her land and harvested cocoa, this conduct she reported to Nana Akwasi Kobi (now deceased). Nana asked Kwabena Bonsu to stop his tresspassory acts but he failed to do so but rather issued a writ of summons against 1st defendant at the Community Tribunal Goaso in February 2000. One Nana Boakye Danquah withdraw the case and for amicable settlement and ruled to the effect that the 1st defendant is the owner of the land in dispute. Nana Boakye Danquah was assisted in all the settlement by Nana Obeng Manu, Abredonhene, Nana Kusi Appiah, Krontihene and the Ankobeahene Nana Kusi Ameyaw Toku. A bottle of Gin was provided by Nana Boakye Danquah to seal the settlement.
1st defendant avers further that Kwabena Bonsu ignored the terms of settlement and continued harvesting 1st defendant’s cocoa and plantain and nothing would stop him. She summoned him before the chief of Fawohoyeden but he failed to honour the invitation. His relatives and agents and assigns entered the 1st defendants land cultivated portions thereof with impunity and laid adverse claim to same. 1st defendant had no alternative than to commence the action in Suit No.C1/43/04 whose judgment was delivered on 24/04/2015. The 1st defendant says that the plaintiff, his agents, workmen, assigns etc. were estopped by their conduct, by the said settlement above mentioned before the Chief of Fawohoyeden and his elders and the judgment of the Ahafo Native Court, Goaso, Ashantihene’s Court Grade A2, Kumasi-Manhyia and the recent judgment of this very court dated 24/04/2015 to claim the land in dispute.
The plaintiffs claim to the land in dispute is false, and wrongful and his action constitutes a classic abuse of the court process and he is estopped per rem judicata and not entitled to any of his claims.
The plaintiff on 28th September 2015 filed a motion on notice for an order of Interlocutory Injunction [Order 25 C.I.47] praying the court for an order restraining the defendant/respondents herein, their servants, agents, assigns, privies etc from entering, dealing and interfering with the cocoa farm/land in dispute in anyway whatsoever until the final determination of this suit. His affidavit in support, in all material is virtually a repetition of his statement of claim. The plaintiff in his statement of claim submits that the prime purpose for the grant of interlocutory injunction is to prevent or mitigate, prior to the final determination of a suit, any waste, injury, damage or alienation for the very subject matter in dispute. That the court of law and equity have over the years sought to maintain the status quo and to prevent an erosion of their rights whilst the merits of the substantive case is determined. It is the applicants’ case that he the plaintiff has been in exclusive possession of the disputed land after same was gifted him by his late grandmother in the year 1993, about 25 years ago. That plaintiff has through his industry reduced same into the cultivation of cocoa and other food crops without any objection from the defendants who use his farm as a walkway to their father’s land which abuts the disputed land.
He submits further that the defendants have unlawfully and forcefully taken over the land and cocoa farm in dispute from the plaintiff and are enjoying the proceeds realized from same even though they have not spent even a pesewa on its cultivation amidst threat of harm, actual harm and threats of death directed at the plaintiff for the hoodlums and thugs hired by the defendant. He prayed the court to grant the application in order to forestall sanity and peace within the parties pending the final determination of the suit.
The defendants in opposing the application said the court will not stultify itself in granting the interlocutory injunction to restrain them when this very court on 24th April, 2015 injuncted the plaintiff/applicant his principal and relatives as regards the same land in the judgment tendered as Exhibit ‘DY2’. The defendants argued that they are in possession of the farm by right and by a judgment of the same court after litigating the principals and relatives of the plaintiff/applicant for more than 10 years. They averred further that the plaintiff/applicant is aware of the litigation by his principals, relatives and he plaintiff himself was present in court during the trial. Plaintiff is also aware of the settlement by Nana Boakye Danquah, Chief of Fawohoyeden even before they issued Suit No. C1/43/04.
It is their submission that the plaintiff is estopped form re-litigating the same case by conduct and per rem judicatam. That this suit is a classic abuse of the court process. Further, that, an interlocutory injunction is meant to preserve the status quo ante and the status quo ante is that the defendants/respondents are in possession and control of the cocoa fawn as a result of right and also of judgment of this very court dated 24th April, 2015.
The application should therefore be refused.
On a preliminary point, the trial court in its ruling said “Counsel (for respondent) also raised the issues of the applicant’s name on the Passbook KOFI DAVID being different from that which appears in the application as DAVID OSEI BONSU. The court found this to be a mere irregularity that can easily be cured by Order 81 of C. I. 47. And that the discrepancy in the name was not fatal to the applicant’s case.”
With the greatest respect to the learned trial Judge, Order 81 of C. I. 47 deals with “Non Compliance with Rules”. Non-compliance with rules not to render proceedings void.
Order 81 states: -
(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any doc, judgment or order in it.
(2) The court may, on the ground that there has been such a failure as stated in sub-rule (1) and on such terms as to costs or otherwise as it considers just
a. Set aside either wholly or in part the proceedings in which, the failure, occurred, any step taken in those proceedings or any document, judgment or order therein or
b. Exercise its powers under these rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considers just.
In the instant appeal, the plaintiff applied for an order of interlocutory injunction to restrain the respondents from taking his farm. In support of his motion, he tendered his Cocoa Passbook to convince the court he is in possession and control of the cocoa farm in dispute. This assertion the respondents vehemently deny. The issue for the court to decide is ownership of the disputed cocoa farm.
If therefore in support of his claim a party tenders an exhibit which does not bear his name, and this is raised and objected to by the other party and also the validity of same was questioned the onus shifted unto the one exhibiting same to explain why the difference in names. The passbook bears KOFI DAVID while the applicant is called DAVID OSEI BONSU. I think the trial Judge erred in glossing over same and taking the difference in names as a “mere irregularity that can easily be cured by Order 81 of C. I. 47”. With the greatest respect to the learned trial Judge, Order 81 is for non-compliance with rules and not issues such as difference in names. The trial Judge if in his opinion thinks the difference in name is immaterial or nothing serious to affect the justice of the case has the discretion so to rule but not to do so based on Order 81. That is an error because that Order is specific as to what it is intended to cure.
Coming to the application itself, the trial court in its ruling posited whether it will be fair and just, proper or convenient to grant or refuse the application as referred in Order 25 of C. I. 47. The Judge stated “the grant of interlocutory injunction is within the discretion of the court. It is not a matter of right by a party but a discretionary order by the court”.
The trial court ruled that “it will be just and convenient and also be in consonance with equity and good conscience to grant the application. The court thinks the application is not frivolous or vexatious. There are also triable issues to be determined in the case. “I hereby grant same as prayed by the applicant”. The effect is that the respondents, their agents, servants, assigns, privies, workmen, etc, and all those who may be claiming through them are hereby restrained from entering, dealing and interfering with the cocoa/farm land in dispute in anyway whatsoever until the final determination of the suit.”
The defendants/appellants, dissatisfied with the ruling of the Circuit Court filed this appeal on the following grounds:
The ruling is against the weight of the affidavit evidence.
The trial Judge erred when he granted the interim injunction in favour of the plaintiff/respondent when judgment had already been delivered in favour of the 1st defendant/applicant in the very Circuit Court, Goaso on 24/04/2015 in respect of a bigger land covering the subject matter herein in Suit No.C1/43/04.
The trial judge erred when he granted an interim injunction in favour of the plaintiff/respondent when there is already a perpetual injunction against the plaintiff/respondent who is a relative of the defendants in Suit No. C1/43/04 which land in that suit covers the subject matter herein.
Additional grounds of appeal will be filed upon receipt of the record of appeal
Relief sought is to set aside and or reverse the ruling.
Ground 1: Ruling is against the weight of evidence
Counsel for the appellant submit that, this appeal being interlocutory appeal is based on affidavit evidence. He said the fundamental rule therefore is that a trial court should consider whether the applicant has a legal right at law or in equity, which the court ought to protect by granting an interim injunction. This could only be determined by considering the pleadings and affidavit evidence before the court. See Owusu vrs. Owusu Ansah [2007-2008] SCGLR 870. It is his submission that the appellant in her statement of claim traced her root of title to her mother, the gift effected by her mother, settlement before the Chief of Fawohoyeden Nana Boakye Danquah, the judgment delivered by the same Circuit Court as recent as 24th April, 2015 perpetually injuncting the plaintiff/respondent’s relatives including his own mother, Akua Gyamfuah.
Counsel opined that had the trial Judge to scrutinized the judgment of Suit No. C1/43/04, he would have realized that the plaintiff/respondent having been perpetually injuncted as a nephew and son of the defendants in that suit, the application should have been dismissed.
When an appellant’s ground of appeal is the omnibus ground of ruling against the weight of evidence on record, what is required of the appellate court is now trite. Where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.
See (i) Djin vrs. Musah Baako [2007/08] SC GLR 686,
(ii) Tuakwa vrs. Bosom [2001/2] SC GLR 6,
(iii) Owusu-Domena vrs. Amoah [2015-16] SC GLR 790.
Our task in the instant appeal is not to determine ownership of the farm in dispute but rather to decide whether the trial judge was right in granting the interim injunction order prayed for by the plaintiff/respondent.
The appellant’s case in opposing the application is that the trial Judge in Suit No. C1/43/04 involving the larger tract of land including the cocoa farm in dispute, gave his judgment in favour of the 1st defendant who was the plaintiff therein.
The defendants therein were the following: -
Nana Akwasi Kobi
Kwadwo Afodour, all of Fawohoyeden
In the judgment, the judge delivered himself thus: -
“In conclusion, I declare the plaintiff as the owner of all of all that piece of cocoa farm and adjoining fallow land lying and situate at “Asuboi”, “Ahantamour” on Fawohoyeden stool land bounded by the properties of Opanin Kwakye, Nana Ampobeng, Madam Abena Mansah and Madam Yaa Yaa. I grant the plaintiff an order to recover possession of all of all that piece of cocoa farm and adjoining fallow land lying and situate at “Asuboi”, “Ahantamour” on Fawohpyeden stool land bounded by the properties of Opanin Kwakye, Nana Ampobeng, Madam Abena Mansah and Madam Yaa Yaa. I award Gh¢2000 as general damages for trespass. I further order that defendants to account to the plaintiff for all cocoa harvested from disputed land from 1999/2000 cocoa season till present. I restrain perpetually the defendants, assigns, relatives, workmen etc from dealing with all of all that piece of coca farm and adjoining fallow land lying and situate at “Asuboi”, “Ahantamour” on Fawohoyeden stool land bounded by the properties of Opanin Kwakye, Nana Ampobeng, Madam Abena Mansah and Madam Yaa Yaa. I award cost of Gh¢1000.00 against each defendant in favour of the plaintiff”.
To re-emphasize, the judge in the last paragraph said “I restrain perpetually the defendants, assigns, relatives, workmen, etc, from dealing with all of that piece of cocoa farm and adjoining fallow land lying and situate at Asuoboi Ahantamour at Fawohoyeden Stool land boarded by the properties of Opanin Kwakye,, Nana Ampoteng, Madam Abena Mensah and Madam Yaa Yaa.”
The plaintiff in his statement of claim said the late grandmother Maame Afia Boatema and the brother Opanin Kofi Bour (all deceased) acquired a large tract of land situate at Asuboi Ahantamour. They shared the land into two and the grandmother had her portion at “Asuboi Ahantamour” on the Fawohoyeden Stool land bounded by the properties of Opanin Kofi Bour, (now in the possession of the defendants) a valley, Asuboi Maame Yaa Yaa’s timber road, Nana Amponbeng, Opanin Kwakye and the Ahantamour Stream: [paragraph 7]. This averment was denied by the defendant in the statement of defence.
1st defendant in her statement of defence said her land is situate at Ahantamour bounded by Opanin Kwakye, Nana Amponbeng, Madam Abena Mensah, Madam Yaa Yaa and the Ahantamour Stream.
I went this length to make sure parties are ad idem about the identity of the land in issue. The location of the land described by the two parties is situate at Asuboi Ahantamour at Fawohoyeden. Some names as boundary owners repeat themselves in both cases for example Madam Yaa, Opanin Kwakye, Nana Amponbeng and the Ahantamour Stream. These to us meant that the land both parties are referring to is in the same or about same.
Relating this to Suit No. C1/43/04, held at the same Circuit Court Goaso, judgment dated 24th April, 2015, page 1 of the judgment described the land in issue therein as “Declaration of Title and Recovery of Possession of all that piece of cocoa farm and adjoining fallow land laying and situate at Asuboi Ahantamour on Fawohoyeden Stool land bounded by the properties of Opanin Kwakye, Nana Amponbeng, Madam Abena Mensah and Madam Yaa Yaa”. It is interesting to note the boundary owners of the disputed land in issue are the same four names as in the instant appeal.
I have already mentioned the parties and the final orders of the court in Suit No. C1/43/04. To recap, it declared in favour of the plaintiff therein and perpetually injuncted the defendants therein. The plaintiff therein, who won the case is the 1st defendant/appellant herein.
The court order perpetually injuncted all the six defendants, not only them but their assigns, relatives, workmen, etc. It is trite perpetual injunction goes on to include assigns, workmen, relatives, etc and all those who claim through the parties injuncted.
There is a difference between interim injunction and perpetual injunction. The former has a limited period and abates automatically after the final determination of the substantive suit unlike the latter. The latter operates even after the final determination of the substantive suit until it is overturned by a higher court on appeal. The interim injunction abates automatically after the final determination of the substantive suit and the reliefs declared as well as the orders of the court takes over.
The plaintiff/respondent herein is the son of the 5th defendant Akua Gyamfua as pleaded in paragraph 2 of the statement of defence and one of those perpetually injuncted and whose relatives were forbidden to enter that land nor to have anything doing with it. There is no evidence on record that the plaintiffs filed a reply to the statement of defence to controvert the assertion in paragraph 2 that he is the son of the 5th defendant Akua Gyamfua. There is affidavit evidence not challenged that the plaintiff in the instant appeal was aware of the Suit No. C1/43/15 at the Circuit Court Goaso. That he was attending court and was physically present in court when the judgment was delivered on the 24th of April 2015.
There is also no evidence on record that the judgment of Circuit Court Goaso in Suit No. C1/43/15 has been appealed against nor overturned. Until it is overturned on appeal, it stands like the rock of Gibraltar and anybody who disobeys any of its orders does so at his own peril and stands the risk of being cited for contempt.
In the circumstances, we cannot but agree with counsel for the appellant that the plaintiff cannot relitigate the case since that judgment is still standing and therefore estopped per rem judicatam. That being our holding, has the plaintiff got any legal right at law or in equity, which the trial court ought to protect by granting an interim injunction? We are by the affidavit evidence and facts available constrained to hold he has none. See Owusu vrs. Owusu Ansah (Supra). The trial court thus erred in granting him the application. The same court per its own judgment in C1/43/04 had given a final judgment on the larger tract of land encompassing the disputed land in the instant appeal. It has not been appealed against nor overturned and thus the court was wrong and erred in granting this application contradicting its own final judgment.
This appeal succeeds and the interim injunction order so granted is hereby set aside. The status quo ante must prevail until the final determination of the case.