IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
G.P.R.T.U. (ARTICULATOR STATION BRANCH) -(Plaintiff/Applicant/Respondent)
SPARE PARTS & MECHANICS (ARTICULATOR STATION BRANCH) - (Defendant/Respondent/Appellant)
DATE: 26 TH APRIL, 2018
SUIT NO: H1/64/2018
JUDGES: M. OWUSU (J.A.) – PRESIDING, AYEBI (J.A.), SOWAH (J.A.)
AMY DALRYMPLE-HAYFORD FOR PLAINTIFF/APPLICANT/RESPONDENT
DANIEL EVANS DZAM FOR DEFENDANT/RESPONDENT/APPELLANT
MARIAMA OWUSU, J.A.:
On 14th June, 2017, the High Court, General Jurisdiction, Accra restrained the defendant/respondent/appellant either by itself, assigns, privies, servants and workmen and all people claiming through it from entering, interfering and dealing in any manner whatsoever with applicant’s land pending the final determination of this suit.
Dissatisfied with the decision of the court, the defendant/respondent/appellant filed a notice of appeal against the ruling.
The grounds of appeal are:
That the trial Judge erred in holding that the balance of hardship would be greater against plaintiff/respondent;
That the trial Judge erred in holding that plaintiff/respondent continues with construction works on the land which is the subject matter of this suit;
Further grounds of appeal to be filed upon receiving record of trial court.
The relief sought from the court of appeal is a reversal of the ruling of the High Court (General Jurisdiction Division), Accra.
At this stage, let me put it on record that the defendant/respondent/appellant did not file additional ground(s) of appeal.
Also, in this appeal, the plaintiff/applicant/respondent would be referred to as respondent while the defendant/respondent/appellant would be referred to as appellant.
The facts leading to the instant appeal are that, the respondent issued a writ of summons against the appellant claiming the following reliefs:
1. Declaration that defendant Association vacate their business from plaintiff’s land;
2. A declaration that by the acts and or omissions of the defendant Association members they cannot continue to operate on plaintiff’s land as licensees;
3. Perpetual injunction on defendant’s members from interrupting plaintiff’s peaceful execution of their construction project.
4. Costs incidental to this suit.
In the 18-paragraph statement of claim which accompanied the plaintiff’s writ of summons, the latter averred that, it is a business entity registered under the laws of Ghana with its offices at Avenor, Accra popularly called Articulator Station. The appellant is also an Association registered under the laws of Ghana with its office premises at Avenor, Accra.
The respondent averred further that for sometime now, appellant’s Association has been operating their shops in containers on a portion of respondent’s land.
It is the case of the respondent that cordial relations have existed between its members and the appellant’s members until sometime in 2016 when the latter started interrupting the respondent’s Union desire to construct a Modern Bus Terminal. It continued that in August 2016, a Memorandum of Understanding was agreed between the parties, through respondent’s financier Chief Sugru Lama and the Executive Members of appellant’s Association for peaceful development of respondent’s land at Avenor, Accra into a Modern Bus Terminal. Pursuant to the MOU, the respondent will approve of an application of the Mechanics Association for the development of a portion of the land into shops for the operations of its members with the prior approval of respondent.
The MOU also provided that the appellant should abide by all rules and regulations laid down by the respondent for purposes of developing the land belonging to respondent.
It is the case of the respondent that, sometime in December, 2016, the appellant’s Association embarked upon a development project of their own completely different from the building plans of the Union without seeking the approval from respondent’s Association and agreed upon under the MOU. In addition, the appellant’s members have disrupted an ongoing construction works of the Modern Bus Terminal through violent acts, destroying offices and shops constructed by the respondent thereby creating an atmosphere of insecurity and chaos at the constructional site. This according to respondent, has affected its business activities which have caused it a considerable amount of money hence this action.
Subsequent to the writ, the respondent filed motion on notice for an order of interlocutory injunction seeking to restrain the appellant, its assigns, privies, servant and workmen and all people claiming through appellant’s Association from entering and interfering in the disputed land or dealing with it in any manner pending the final determination of the matter.
In the accompanying affidavit, the respondent’s complaint was that the appellant’s Association members are abusing the privilege granted them to put their temporary wooden kiosks and containers on respondent’s land which land was leased to the latter by the Ghana Railway Development Authority. It is the case of the respondent that, the appellant has acted contrary to the provisions of the MOU and gone ahead to dig foundations in preparation for the construction of their shops without the approval of the Union. That the construction by the appellant and its members are complete deviation from and contrary to the plans approved by the Accra Metropolitan Assembly under the building permit granted it.
When appellant’s members were asked to stop work on the structures they are constructing, they physically assaulted the members of the respondent which action is currently under police criminal investigations. That the appellant’s Association members are bent on continuing their acts of violence and destruction of properties belonging to the respondent’s Union unless restrained by the court.
The defendant/respondent/appellant in its statement of defence and counterclaim denied the respondent’s claim and put the latter to strict proof of its averments. In particular, the appellant averred that, its members operate their business in shops and metal containers on a portion of land, the subject matter of this suit. The appellant averred further that, the land in dispute belongs to the Accra Metropolitan Assembly (A.M.A.) and not the the respondent.
Secondly, the appellant is also a licensee of A. M. A. It continued that, its members pay rent to the A. M. A. It continued that, the decision to construct proper structures on the land in dispute was taken by the parties and at no point in time was a decision taken to construct a bus terminal on the disputed land. The appellant concluded that when the MOU was executed in August, 2017, one Sugru Lama agreed to pre-finance the project. As a result, the A. M. A. requested the parties to present a common plan for approval by A. M. A. for the construction of the shops and other facilities on the land. Unknown to it, the said Sugru Lama purported to acquire a lease from the Ghana Railways Corporation when he presented himself as the owner of the land together with the respondent. The appellant concluded that, the representation by the respondent and Sugru Lama as well as the purported acquisition of a lease from the Ghana Railway Authority is fraudulent.
The appellant gave the particulars of Fraud as:
i. Plaintiff representing that plaintiff and Sugru Lama are entitled to be granted a lease by Ghana Railway Authority when the plaintiff knew that it cannot acquire any such interest in the land the subject matter of this suit.
Furthermore, the appellant argued per the MOU, the respondent through Sugru Lama is only entitled to construct fourteen (14) stores on the land, a mosque, a commercial toilet and a bath house whilst appellant is entitled to develop the remaining parcel of land. The appellant therefore counterclaim for:
1. A declaration that defendant is entitled to develop a portion of the land as per the MOU
2. An order that plaintiff desist from preventing defendant from developing the land as per the MOU
In its affidavit in opposition, the appellant insisted that, the land, the subject matter of this suit does not belong to the respondent as both parties are licensees of A. M. A. and the Ghana Railway Authority. The appellant continued that, the respondent’s application is inequitable, unjust and unfair in the sense that, whilst the latter seeks to continue developing the land the subject matter of this suit, it is seeking to restrain the appellant from doing same.
The appellant deposed further that, the clashes between the parties that ensued, members of its Association were wounded and the police had to intervene. It concluded that, it would be just, convenient and equitable for the court to restrain both parties.
See paragraphs 4 to 14 of the affidavit in opposition filed on 14th February, 2017.
In arguing ground (i) of the appeal, counsel for the appellant stated that one of the principles that should guide a court of equity in determining whether or not to grant an order of interlocutory injunction is the balance of hardship on the parties to the suit. The balance of hardship further determines whether it is just and convenient to grant or refuse the application. He cited the case of Ekwam Vs. Pianim No. 1 [1996-97] SCGLR 117.
Counsel then submitted that in considering the hardship, the trial court ought to have taken into consideration the fact that respondent continuous construction of shops on the land would permanently deny appellant the use of the land on which its members conduct their daily business for livelihood.
Secondly, the court should hold the balance evenly between the parties pending the final determination of the case. The trial court should therefore have restrained both parties. Restraining the appellant means that, even before the determination of the suit on its merits, the appellant would be removed from the land as the respondent’s construction works disables the appellant’s members from operating their business.
Thirdly, in the event that the trial court eventually comes to the conclusion that the appellant is entitled to the land after a full trial hardship caused members of appellant Association would be irredeemable, the reason being that the lost of its members livelihood over a period of the trial cannot be adequately compensated.
Counsel then submitted that, the reliance of the trial Judge on Exhibit ‘KA1’ in arriving at the conclusion that the respondent would suffer hardship if restrained from going on with the construction of stores on the land is a wrong exercise of discretion which ought to be vacated. Counsel cited the case of Pountney Vs. Doegah [1987-1988] 1 GLR III and submitted that from the pleadings, the appellant’s case is not frivolous or vexatious and therefore its equitable rights ought to be protected as its members have been on the disputed land plying their trade for sometime now.
But more importantly, its members are on the land as licensees of A. M. A. and not licensees of the respondent. He concluded on this point that, since the respective case of the parties are not frivolous, this court should restrain both parties from further development pending the final hearing and determination of this suit.
On the balance of hardship, counsel for the appellant submitted that, same weighs heavily in favour of its members than the respondent.
After pinpointing allege loopholes in the respondent’s case, counsel for the appellant concluded that, the trial Judge should have considered the pleadings as a whole in coming to its decision instead of relying on the affidavits filed by the parties.
In response to the appellant’s submissions, counsel for the respondent submitted that, the trial Judge considered the pleadings, the respective affidavits of the parties and applied the principles laid down in leading cases on application for interlocutory injunction like;
1. American Cyanamid Vs. Ethicon Ltd.  AC 386, HL;
2. Vanderpuye Vs. Nartey  1 GLR 428;
3. Pountney Vs. Doegah [1987-88] 1 GLR III
4. Odonkor Vs. Amartei [1987-88] 1 GLR 578 and
5. Welford Quarcoo Vs. The Attorney General  1 SCGLR 259 among others.
He continued that, the appellant is impugning the decision of the trial Judge that the balance of hardship weighed in favour of the respondent. Counsel argued that, the trial Judge subjected the pleadings and the respective affidavits as well as the exhibits attached to the affidavits to judicial scrutiny and satisfied herself that the respondent had a right to be protected at law and by so doing maintained the status quo ante. For instant, the building permit issued by the Accra Metropolitan Assembly, Exhibit ‘KA4’, ‘KA5’ and ‘KA6’. Counsel submitted on this point that on the basis of the Exhibits put before the trial Judge by the respondent, the former formed the view that the respondent’s application was not frivolous and that it had demonstrated that there existed a right which the court should protect.
He therefore concluded that, in the absence of a contrary evidence, the trial Judge was within her discretionary powers to come to the conclusion she did. On the other hand, counsel argued, the appellant failed to establish any right in the land by providing any document to prove that indeed it is a licensee of A. M. A. or the Ghana Railway Development Authority as alleged.
Secondly, the trial Judge carefully examined the MOU which the appellant sought to rely on and noted that, from the said MOU, the appellant required the approval of the respondent to develop a portion of the land but failed to show that it had obtained the approval of the respondent to do so.
Based on the foregoing, counsel for the respondent invited us to dismiss the appeal on ground (i).
On ground (ii). Counsel for the respondent referred to the appellant’s counterclaim and submitted that, since the latter was relying on the MOU, it was required of it to observe the terms and conditions contained therein. Counsel continued that the portion of land being developed by the respondent is not the portion that the appellant would be given approval to develop.
He argued that, at the the time the application which has culminated in the instant appeal was heard, the appellant had not triggered that approval. Counsel therefore concluded on this point that the trial Judge was right in maintaining the status quo by ordering the respondent to continue with the construction works. He urged us to dismiss this ground of appeal also as it is without merit. Furthermore, counsel submitted, the appellant has not demonstrated whether the trial Judge misapplied the law or there was misapprehension of fact resulting from relying on irrelevant or unproved matters or that the court failed to take relevant matters into consideration.
Order 25, rule 1 (2) of the High Court (Civil Procedure Rules) 2004, C I 47, gives the High Court jurisdiction to grant interlocutory injunction. The order provides:
“A party to a cause or matter may apply for the grant of an injunction before or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party’s writ; counterclaim or third-party notice.”
Even though granting an interim injunction is discretionary, there are guiding principles to be observed, which principles included the following:
1. The court must consider whether the case of an applicant was not frivolous and had demonstrated that, he had legal or equitable right which a court should protect;
2. The court should ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter and;
3. The court must consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party.
See the case of 18th July Ltd. Vs. Yehan’s International Ltd.  1 SCGLR 167, 168.
Both counsel for the appellant and respondent relied heavily on the Memorandum of Understanding (MOU) in their written submissions and pleadings. So the question is, what is contained in this MOU? The MOU is captured as Exhibit ‘GPRTU 3’. At page 29 of the record of appeal, the general terms of the MOU can be found. We would reproduce same for purposes of emphasis.
2.1 states: Chief Sugru Lama will construct 14 pair of stores on the parcel of land.
2.2 There will be accessible routes between the stores to fulfill fine services regulations.
2.3 Put up a commercial toilet and a bath-house agreed upon by the spare parts and Mechanic
Association at articulator station.
2.4 Build a place of worship (Mosque) for the Islamic worshippers of Allah.
2.5 The spare parts and mechanics association will use the same permit acquired by Chief Sugru Lama
to develop the remaining parcel of land.
2.6 The spare parts and mechanics association will apply for approval of the development of the
remaining piece of land through GPRTU of TUC at Articulator Station.
2.7 The spare parts and mechanics association will abide by all rules and regulations laid down by
GPRTU of TUC
3. Other provisions
3.1 The tripartite assume that this agreement does not go against the rules and regulation of the
Constitution of Ghana
This MOU is dated 31st August, 2016 and had been signed by:
1. Chief Sugru Lama
2. Mr. Ensiyan Musa for and on behalf of Spare Parts and Mechanics Association (Articular Station) and witness by Harisu Abideen)
3. Ibrahim Yussif, Chairperson of GPRTU of TUC signed for the respondent.
In her ruling, the trial Judge held that:
“In the first place, I must say that from the pleadings and the affidavits in support of applicant’s application, as well as the exhibits attached, I am satisfied that they have right which has to be protected at Law. As per Exhibit ‘KA1’ attached to the supplementary affidavit in support dated 17th March, 2017, they have obtained a lease from the Ghana Railway Development Authority for a term of twenty-one (21) years with an option of renewal at its expiry…”
The trial Judge came to this conclusion when she examined Exhibit ‘KA4’, the building permit, the respondent obtained from Accra Metropolitan Assembly. The appellant in its statement of defence and counterclaim as well as its affidavit in opposition maintained that it is also a licensee of the Accra Metropolitan Assembly but was unable to provide any evidence, documentary or otherwise to support its contention. On the contrary, the MOU the appellant heavily relied on states that they can only “develop the remaining parcel of land after it has obtained the approval of the GPRTU of TUC at Articulator Station”. (our emphasis)
Clearly as between the appellant and the respondent, the latter demonstrated through Exhibits ‘KA4’, ‘KA5’ and ‘KA6’ that it has a legal right to carry out the construction on the disputed land and that right has to be protected. On the other hand, the appellant has not demonstrated that they have obtained the approval it needed from the respondent.
From the foregoing, the trial Judge was on point when she held that the respondent has the right to put up the structure as it claims and the law must protect it.
Ground (ii) fails and it is accordingly dismissed.
Ground (i) relates to the balance of hardship which the trial Judge resolved in favour of the respondent.
On this ground, this is what the trial Judge said:
“Further, there are time restrictions both for the building permit, the fire permit and the lease. The hardship respondent says they will suffer is that, if the application is granted, it will change the character of the subject matter of this suit. But I do not intend to go into the merits of this matter. Respondent has not provided me with anything to show their rights to the land as I have observed above, in order to assert that a change in character of the subject matter it will encounter would cause it hardship or inconvenience as compared to applicant.
Should I refuse to grant the application and at the end of the day it is shown that, the applicants has successfully proved their case, while the respondent has not, the applicant would suffer greater hardship which will be difficult to compute by way of damages in particular, given that there are timelines set for the permits and the lease.
On the other hand, should I grant the application and restrain the respondent, the hardship respondent may suffer, will appear to be incomparable to that of the applicant.
In my view, the applicant will suffer greater hardship if the application is refused than not…”
The trial Judge ended on this issue this way:
“The balance of hardship is in favour of the applicant.”
We agree with the trial Judge on the conclusion she reached on the balance of hardship. We say so for the simple reason that, quite apart from the timelines contained in the permits, the respondent has also invested considerable sums of money already in the construction considering the pictures exhibited especially the ones captured at pages 37, 38 and 68 that is Exhibit ‘CA’ and ‘KA7’.
Ground (i) of the appeal fails and it is accordingly dismissed.
On the maintenance of the status quo, as stated supra, the appellant relied heavily on the Memorandum of Understanding. But from the MOU, the appellant is required to obtain the approval of the respondent before carrying out any development on the land to conform with the permit A. M.
A. issued to the latter. As at the time the application was heard, this approval has not been obtained neither did the appellant indicate in the processes it filed that it had done so.
The trial Judge was therefore right in restraining the appellant from carrying out any construction works on the disputed land.
From all of the foregoing, there is no merit in the appeal and it is accordingly dismissed.