IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
K. K OFORI -(Plaintiff/Appellant)
POSITIVE DRIVE INVESTMENT, ANNAS MUSAH AND ABRAHAM MENSAH ASHONG - (Defendants/Respondents)
DATE: 15 TH NOVEMBER, 2018
SUIT NO: H1/105/20 18
JUDGES: MARIAMA OWUSU (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), HENRY A. KWOFIE (JA)
KWABENA ANKAMAH OFFEI BADU FOR PLAINTIFF/APPELLANT
MUNIRU M. KASSIM FOR DEFENDANTS/RESPONDENTS
AVRIL LOVELACE-JOHNSON (J.A):
This is an appeal against the ruling of the High Court Accra dated 28th July 2017 by which it denied the Plaintiff/Appellant’s application for interlocutory injunction.
The appeal is brought on the sole ground that the learned trial judge wrongly exercised his discretion when he dismissed the said application. On this basis, the Appellant seeks from this court an order granting the said interlocutory injunction.
The background to this case is that the Plaintiff/Appellant on 23rd May 2017 issued a writ against the
1st and 2nd Defendants for declaration of title to the land in dispute, damages for trespass, recovery of possession and perpetual injunction. One Abraham Ashong applied to be joined to the suit and was so joined as the 3rd Defendant. The Plaintiff/Appellant then applied for interlocutory injunction against the Defendants which was refused, leading to the present appeal.
In refusing the application, the learned trial judge stated in part as follows:
“This therefore goes to show that both have legal rights to the subject matter which requires the protection of this court…..Looking at the stage of the development on the land it is my candid consideration that it will not be just to grant the application since doing so will create a lot of inconvenience to the Respondent”
The Courts have over the years laid down clear guidelines for the grant or refusal of interlocutory injunctions even though its grant lies within the discretion of the judge who hears the application. However, where this discretion is not exercised judiciously, (that is, where it is not exercised in accordance with these guidelines), in spite of the reluctance by an appellate court to interfere with an exercise of discretion by a court of first instance, this court, by virtue of its statutory powers of rehearing under rule 8(1) of The Court of Appeal Rules 1997 C I 47 can and will do so in the interest of justice. See the case of OWUSU V OWUSU-ANSAH and ANOR [2007-2008] SCGLR 870, Holding (2)
The principles governing the grant of such applications have been stated in cases such as
AMERICAN CYNAMIDE CO V ETHICON LTD  1 ALL ER 504, ODONKOR V AMARTEI [1987-88] 1 GLR 587, OWUSU V OWUSU-ANSAH [2007-2008] 2 SCGLR 870, 18TH JULY LTD V YEHANS INTERNATIONAL LTD  1SCGLR 167.
These cases have not sought to lay down all the factors to be considered but running through these has been what has been described as “the fundamental rule” which is a demonstration by an applicant that he has a legal right at law or in equity. OWUSU V OWUSU-ANSAH (supra). Surely, all the other factors are dependent on the ability of the applicant to prove this. To determine this, in spite of the need to restrain itself from pronouncing on the merits of the case before the trial proper, a Court has to consider the pleadings and material before it.
How successful was the applicant in doing this? The summary of paragraphs 1 to 18 of the Applicant’s statement of claim is that both he and one Regimanuel Gray Co Ltd acquired land from the Katamanso Stool in 1995 and 1996 respectively. His land was inadvertently included in the leasehold document prepared for the said Co. Due to the fact that at the time this anomaly was detected, the said Co’s document had already been registered, it was agreed that the applicant be given a deed of Assignment by the Co which was now the registered owner of the land. This was done by a deed of Assignment dated 24th July 2001. The Applicant, after going through all the necessary processes obtained a Land Title Certificate No TD 0838. All this while, he continued to be in effective possession of the land from when he acquired it from the Katamanso Stool in 1995 till the 1st Defendant Co encroached on it.
The 1st and 2ND Defendants in the affidavit in opposition based their presence on the land on the authority of the 3rd Defendant who, according to the applicant, had earlier sold the land to Regimanuel Gray Co which had given the applicant his deed of assignment over the land and over which he held the earlier mentioned land title certificate.
The applicant reproduced the averments in his statement of claim in the affidavit in support of his application for interlocutory injunction and annexed many documents including pictures of his dwelling house on the property, a recreational business he has set up, his Irokko Ltd factory, products ie door frames being carted to the factory site, two judgments of the High Court declaring Title to the land in dispute in him, a search report reflecting the deed of assignment between Abraham Ashong and Regimauel Gray Co. Ltd, the deed of assignment between him and Regimauel Gray Co. Ltd, and his Land Title Certificate among other annexures.
At the time of this application, the Respondents had not filed a defence. The 3rd Defendant stated in the affidavit in opposition that he authorized the first two defendants to work on the land and that he acquired the land from the Nungua stool in 1981, farmed on it and gave out portions to grantees who had put up residential buildings on it. He attached his indenture as exhibit 1.
The learned trial Judge stated that both parties exhibited their respective title documents to the land in dispute. That was just a statement of fact. The judge had to decide if the applicant had established a legal or equitable right at this stage. Clearly, the Land title certificate alone, at this stage was sufficient to establish that legal right. It is to be borne in mind that the law is that such a certificate can only be set aside for fraud or mistake. No Defence having been filed, at this stage, that certificate stood clothed in its indefeasibility. Let me hasten to say that a defence put up and evidence led could raise doubts about or remove this attribute. Very clearly, the applicant had established a legal right which needed protection by the court.
The learned trial Judge also stated that “Looking at the stage of development on the land it is my candid consideration it will not be just to grant the application since it will create a lot of inconvenience to the Respondent”
What development was the learned Judge referring to? The 3rd Respondent attached his indenture to the application. He did not attach any evidence in support of the alleged grants he had made to others and his allegation that these grantees had put up buildings on the land. In any case an order of interlocutory injunction seeks to preserve the actual, peaceable, uncontested status quo before the actions of a Defendant whose actions have changed it to a new state. In other words the status quo means the position prevailing at the time the Defendant embarked on the activity sought to be restrained. See FELLOWS VS. FISHER 1976 QB 122 @ 141.
This would call on the Respondents to show some evidence that these alleged grants were made before the Appellant acquired the disputed land. On the other hand the Applicant annexed many pictures showing his activities on the land including work going on in his factory so contrary to what the learned trial Judge said, the justice of the case called for the grant of the injunction sought since from the evidence on record, the balance of hardship favoured the applicant.
While the judicial authorities lay down more that the above two factors discussed, without a statement of defence to consider, it can be said that with the material before the court being what it was at the time of making the present application, the conclusion could only be that, (the balance of hardship tilting in favour of the applicant in the light of the extent of his development on the land), an award of damages cannot make up for this hardship should he be victorious at the end of the case. It is proper therefore that an interlocutory injunction be put in place.
I am satisfied that the Applicant’s complaint that the Learned Trial Judge exercised his discretion wrongly is borne out by the record. The sole ground of appeal is upheld.
For all the above reasons, the appeal succeeds. The order of the Learned Trial Judge is set aside and in its place we grant the interlocutory injunction sought.
The Defendants/Respondents by themselves, their agents, servants, assigns, workmen, grantees, privies or by whosoever claiming through them are hereby restrained from entering unto any portion of the land described in the schedule to the endorsement of the writ of summons and from continuing to carry out any further physical development on it or from interfering with the said land in whatsoever manner pending the final determination of the suit.
Costs of GH¢2,000.00 in favour of the Appellant