SAEED K. GYAN, JA

This is an appeal from the ruling or decision of the High Court, Agona Swedru presided over by His Lordship, Peter Dei Offei, J. The ruling was handed down on 5^th November, 2014. The Court, by its decision, refused the Plaintiff’s application for Interlocutory Injunction against the defendants. Conversely, the Court made an order in favour of the defendants by granting an order of Interlocutory Injunction restraining the Plaintiff Company, its officers, agents, assigns and all persons claiming their title from or through the Plaintiff “from having anything to do with” the res litigia, which is 31.38 acres of land, pending the final determination of the action.

The Court, however, evinced a desire to ensure an expeditious or early trial of the substantive action.

Being aggrieved with and dissatisfied by the decision of the trial High Court, the Plaintiff has mounted the instant appeal challenging the orders of the Court.

In furtherance of the appeal, the Plaintiff filed seven (7) grounds of appeal with the customary notification to file additional grounds upon receipt of the record of proceedings.

The record, however, does not show that any further or additional grounds of appeal were filed or argued.

The grounds of appeal contained in the notice of appeal are set out as follows:

“1) The decision is against the weight of evidence

2) The learned High Court Judge failed to exercise his discretion judicially when he restrained the plaintiff from dealing with or having anything to do with the land the subject matter in dispute.

3) The learned High Court Judge failed to exercise his discretion judicially when he failed to restrain the defendants from dealing with or having anything to do with the land the subject matter in dispute.

4) The learned High Court judge erred in law when he upheld the counter application for interlocutory injunction filed by the defendants and restrained the plaintiff from entering upon or dealing with the 31.38 acres of land the subject matter in dispute.

5) The learned trial High Court judge misdirected himself by non-direction when he failed to realize

that by the authority note of the 1^st defendant signed by the 2^nd defendant dated 8/1/12 all moneys payable under the contract thereafter were due from plaintiff to George Anim the grantor of the defendants: the conclusion, therefore, that plaintiff has breached its agreement with defendants by not discharging its obligations to the defendants and therefore had to be restrained was wrong in law.

6) The learned High Court judge erred in law by deciding the rights of the parties even before formal hearing when he purported to restrained the plaintiff on the supposition that the only remedy available to the plaintiff as things stood was compensatory damages, if any, when plaintiff has in fact, committed the total sum of GH¢80,000.00 under the contract to both the defendants and the said George Anim and was under the authority note of 8/1/12 only obligated to the said George Anim.

7) The learned High Court judge erred in law by referring to the sum of GH¢15,000.00 paid into court by the defendants as evidence of the abrogation of contract by the defendants requiring that plaintiff ought to be restrained by injunction when in fact as at the date of the authority note of 8/1/12 no further sum was payable to defendants in anyway whatsoever except the said George Anim.

8) Additional grounds will be filed when the record of proceedings is ready”

The Plaintiff/Appellant sought from this Court an order setting aside the order of Interlocutory Injunction made against it and all others claiming through it as well as a further order upholding its own application for Interlocutory Injunction which had been dismissed by the Learned trial judge and consequently making an order restraining the defendants and all those claiming through them from dealing with or having anything to do with the land in dispute pending the final determination of the suit.

The Plaintiff, a Limited Liability Company registered under the laws of Ghana, instituted the instant action against the 1^st Defendant and another limited liability Company as well as the 1^st Defendant’s Managing Director, Ben Kofi Asamoah.

The reliefs sought and indorsed on the writ of summons are as follows:

“1. A declaration that the Plaintiff is entitled to the remaining 31.38 acres now remaining of the subject land described in paragraph 5 of the Statement of Claim.

2. An order for specific performance of the 31.38 acres now remaining in the possession of the Plaintiff under paragraph 5 of the Statement of claim hereof

3. Damages for breach of agreement

4. Perpetual Injunction restraining the defendants by themselves, their agent, personal representatives, or howsoever from dealing with the said 31.38 acres

5. Further or other relief

6. Cost”

Accompanying the writ was a 31 paragraph Statement of Claim.

It was the case of the Plaintiff that the 1^st Defendant Company through its Managing Director, the 2^nd Defendant offered, for sale to it about 195.5 acres of land described in paragraph 5 of the Statement of Claim which it accepted to buy at a total cost of GH¢ 380,000.00. Upon paying an initial deposit of GH¢15,000 and going unto the land, the Plaintiff was suddenly challenged by one George Anim who challenged the Defendant’s root of title.

According to the Plaintiff, following the said challenge it was compelled to compromise its position in relation to the original agreement whereupon the Defendants’ offered various other alternative lands which faced similar challenges with the result that in the end the Plaintiff found itself remaining in possession of a paltry 31.38 acres of land, which piece of land the Defendants later granted to a property dealer named Mustapha Plus, the latter of whom took control of the aforesaid 31.38 acres of land.

It was the Plaintiff’s contention that the defendants were in breach of the agreement to sell land to the Plaintiff by reason of which the Plaintiff had suffered loss and damage. The Plaintiff described the conduct of the Defendants as being unlawful which action was worsened by a letter written by the defendants to the Lands Commission Secretariat in Cape Coast “not to register the said lands now in the hands of the Plaintiff”; wherefore the Plaintiff sued the defendants for “breach of agreement” and claiming the reliefs endorsed on the writ of summons.

The Plaintiff followed the writ with an ex parte application for Interlocutory Injunction which the trial Court dismissed urging it to apply on notice to defendants. It is the subsequent application on notice, which also suffered dismissal, that triggered off the instant appeal.

In the mean time before the hearing of the said application various other motions had interposed.

On 28/05/2014, the Defendants filed a 28 paragraph Statement of Defence. Despite its seeming incoherence and obvious confusion in presentation, what could possibly be deduced from that process filed by Counsel is that whereas the Defendants had offered to sell to the Plaintiff the land described in paragraph 5 of the Statement of Claim for which the Plaintiff paid an initial deposit of GH¢15,000, it turned out, subsequently, that the Defendants’ root of title to that land was defective, whereupon the parties agreed to various compromises including the offer of an alternative 100 acres of land out of the Defendants’ 116 acre acquisition from the same family; but this was not to be as other developments led to the Plaintiff being left with only 31.8 acres. According to the Defendants, the Plaintiff was to pay for the said parcel of land at GH¢500 per acre. No document was, however, executed in respect of this latter transaction. The Defendants averred that their inability to make available the land to the Plaintiff arose from the Plaintiff’s own act of treachery or betrayal as well as well as the loss of a vast portion of their 116 acre acquisition to a competitor with the result that only 31.8 acres was left for the Plaintiff. The Defendants maintained further that having failed to pay the cost of the land in accordance with the agreed terms, the performance of which would have enabled them to settle their own obligation to their grantor, namely one George Anim, the said George Anim, sold off the 31.8 acre land which was then available to the Plaintiff to one Alhaj Mustapha of Mustapha Plus Co. Ltd in order to recover an outstanding balance the Defendants owned him, by reason of which the Plaintiff was thus deprived of the said 31.8 acre of land. According to the Defendants, the Plaintiff’s loss of the land was due to their own breach of the original payment schedule and, accordingly, they were only entitled to a refund of the original deposit, which they paid into Court, in the sum of GH¢15000 and not any demise of the land.

The record shows that on 20/5/2014, before the Defendants filed their Statement of defence, they applied for a joinder of Alhaj Mohammed Mustapha as a defendant on the alleged ground that the land being claimed by the Plaintiff had been granted to the said Mustapha by the Defendants grantor following the Plaintiff’s failure to settle their financial obligation in relation to the said land.

The record does not establish that the said application had been disposed off one way or the other, though the Plaintiff company are on record to have filed an Affidavit opposing the said Motion for joinder.

On 19/08/2014 the Defendants also filed a motion on notice for Interlocutory Injunction against the Plaintiff Company.

It should be noted that at the time the Defendants filed their Motion the Plaintiff’s earlier application for Interlocutory Injunction filed on 27/2/2014 was still pending and had, for whatever reason yet to be determined.

The record suggests, however, that the Defendants’ original application for Interlocutory Injunction, filed on 19/8/2014, appears subsequently to have been withdrawn and replaced by another application on notice for Interlocutory Injunction filed on 4/9/2014, and schedule to be heard on 26^th September 2014.

The Learned trial judge in his ruling of 5/11/2014, refers to this latter application, filed on 4/9/2014, as a “cross-application”.

In his written submission, filed on 7/12/15 by Counsel for the Plaintiff/Appellant he refers to this same motion as having been filed on 11/09/14, and also characterises it as a “cross-application”.

The record also shows that on 26/9/2014 the Learned trial High Court judge decided to take the Plaintiff’s Motion for Interlocutory Injunction filed on 27/02/2014 as well as the Defendants’ application for Interlocutory Injunction filed on 4/9/2014 together and to hear and determine them in one ruling. That ruling delivered on 5/11/2014 is the subject of the instant interlocutory appeal.

As noted earlier on in this judgment, the Plaintiff/Appellant filed seven (7) grounds of appeal with the customary notification to file additional grounds upon receipt of the record of proceedings.

The record does not establish that any further or additional grounds of appeal were argued.

It is also worthy of notice that Counsel for the Appellant in his written submissions commenced by stating that he was going to argue grounds (1), (2), (3) and (4) together.

A critical examination of the entire written submission of Counsel indicates that he did no proceed further to tackle the remaining grounds of appeal, namely (5), (6) and (7) contained in the notice of Appeal found on page 256 of the Record of Appeal (ROA).

That being so, it is taken that Counsel had decided to abandon the aforesaid grounds (5), (6) and (7) of the notice of appeal and same are, accordingly, hereby struck out as having been abandoned.

It seems to me necessary at this point to point out two matters which Counsel for Plaintiff/Appellant alluded to in his written submissions filed on 7/12/15 which appear rather misleading. The first is

Counsel’s allusion to one George Anim as 3^rd Defendant in the suit. George Anim is stated as having executed exhibit PR10 with the defendant. Quite clearly, nowhere in the record is George Anim joined to the suit as 3^rd Defendant as Counsel asserts. George Anim from the record, however, seems to have played various roles in transactions affecting the land the subject matter of the dispute. What is obvious from the record is that the Defendants had sought to join one Alhaj Mohammed Mustapha of Mustapha Plus Company. The Plaintiff/Appellant had filed an affidavit in opposition to the said application. That motion was still pending at the time the Ruling being impugned in this appeal was delivered. Accordingly, only two (2) defendants remain in the suit. There is no evidence on record of any application for joinder of George Anim having been filed or granted. And no evidence of the writ of summons having been amended to reflect an order joining George Anim as 3^rd defendant.

The second point is the reference to documents alluded to by Counsel for the Appellant in relation to the Plaintiff’s affidavit in opposition to the defendants’ motion for Interlocutory Injunction. This is also misleading to the extent that it impliedtnat the Plaintiff had an affidavit in opposition filed against the defendants’ motion. The original application was withdrawn and replaced by one filed on 04/09/2014. The Plaintiff did not file an affidavit to this motion which is the subject of the Ruling dated 5/11/2014.

At the heart of Learned Counsel’s submissions in support of the Plaintiff/Appellant’s appeal is what is captured in his reply filed on 3/2/2017 to the following effect: “... from my critical examination of the evidence on record including particularly, Exhibits PR11 and PR12 (See pages 90 to 95 of the record of appeal) which are the essential pertinent pieces of evidence on record and relate to the suit commenced by the Plaintiff/Appellant, and these pieces of evidence ought not have escaped the learned trial judge. It is therefore submitted that by law, no court properly instructing itself, would have come to the conclusion, as did the learned trial judge, that the Plaintiff/Appellant cannot enforce Exhibit PR11 against the Defendants/Respondents”.

Counsel for the Plaintiff/Appellant was of the firm view that Exhibit PR12 which was the letter written by the Defendants/Respondents to the Lands Commission requesting the Commission not to register land documents submitted by the Plaintiff/Appellant and which was action intended to overreach the Plaintiff/Appellant was further justification for the trial Court to have granted the Appellant’s application for Interlocutory Injunction, considering that third parties including staff of the National Commission for Civic Education (NCCE) had obtained portions of the land in dispute from the Appellant.

It was the strenuous view of Counsel for the Appellant that the Learned trial judge was in great error in holding that the facts of the case before him could not justify the grant of specific performance but rather possibly damages for breach of contract especially considering the fact the defendants had paid into court the GH₵15,000 deposit which the Plaintiff had paid in relation to the original sale transaction involving 195 acres of land referred to in paragraph 5 of the Plaintiff’s statement of claim.

Counsel for the Defendants had, naturally, argued in his written submission, filed on 21/4/2016, that on the basis of all the affidavit evidence and the material before the Court, the Learned trial judge was clearly justified in law in dismissing the Plaintiff’s motion for Interlocutory Injunction and rather granting an injunction against the Plaintiff pending the final determination of the suit.

Having considered Counsel’s submissions in their entirety, I am satisfied that all the four grounds of appeal argued by Learned Counsel for the Plaintiff/Appellant could conveniently be subsumed or be covered by the first ground being the general or omnibus ground of appeal to the effect that the ruling or decision impugned in the appeal was against the weight of evidence led.

The two motions for Interlocutory Injunction heard and determined together by the Learned trial High Court Judge were considered solely on affidavit evidence. There was no oral evidence either standing on its own or being the result of evidence obtained from the cross-examination of any deponent of the numerous affidavits filed with the plethora of exhibits annexed thereto.

Now, it is trite learning, based upon a long chain of solid judicial opinion which has now crystallised into statutory provision (Rule 8(1) of CI 19) that an appeal is by way of rehearing. It is also now well established that where an appellant relies on the omnibus ground of appeal to the effect that the judgment or decision appealed against was against the weight of evidence, that obliges the appellate court to examine the entirety of the record so as to establish whether or not on all the evidence led and the material before the court the decision or order of the court impugned against in the appeal was justified or justifiable in fact or in law or both in fact and in law. In doing so, the appellate court was entitled to make its own inferences on the established or admitted facts and, accordingly, come to its own decision on the basis of its examination of the record. See AKUFFO-ADDO V CATHELINE [1992] 1 GLR 77 at 379; TUAKWA V BOSOM [2001-2002] SCGLR 65; F.K.A Co. Ltd & Anor v Ayikai Akramah II & 4 ors [2016] 10 G.M.J 186

Rule 8(8) of the Court of Appeal Rules, 1997 (C.I. 19) also provides that in deciding an appeal the Court shall not confine itself to only the grounds of appeal set out by the appellant.

It is also well established that a supplicant at the appellate court who complains that the decision appealed against was against the weight of evidence had a clear obligation to show that there exists on the record certain material evidence which if it had properly been applied to his case would have tilted the decision in his favour; or otherwise that certain evidence on record had wrongly been applied against him thereby prejudicing his case to his detriment: See: DJIN V MUSAH BAAKO [2007-2008] 1 SCGLR 686; ABBEY V ANTWI (2010) SCGLR 17; PRAKA V KETEWA [1964] GLR 483.

A motion for Interlocutory Injunction by its very nature is an application agitating the discretion of the Court. And as the eminent Akuffo-Addo, JSC stressed in the case of Agyeman v Ghana Railway Authority (1969) CC 60, CA, in the realm of the exercise of discretion there is no binding precedent. But, as is also well known, the Court is also enjoined always to exercise its discretion not capriciously or unfairly, but judiciously. This principle has now assumed constitutional validity by Article 296 of the 1992 Constitution of Ghana.

An application for Injunction falls under Order 25 of the High Court (Civil Procedure) Rules 2004, C.I.

47.

Rule 1(1) of Order 25 aforesaid simply provides as follows:

“The Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the Court considers just.”

This almost untrammelled power to grant an order of Interlocutory Injunction has in many respects been circumscribed by judicial edict imposed by the decisions of the Superior Courts, particularly the judgments of the Supreme Court.

Thus, it has been held that the order of injunction may be granted where a legal right can be ascertained either at law or equity and that the court is entitled to make such an order where it finds circumstances of any particular case to be right, just or convenient. This means that every case, ultimately, turns on its own merits: See: RANSFORD FRANCE (N0.1) V ELECTORAL

COMMISSION & ANOR [2012] 1 SCGLR 689; 18^TH JULY LTD V YEHANS INTERNATIONAL LTD [2012] 1 SCGLR 167.

Date-Bah, JSC in his inimitable fashion casts the position thus in the case of WELFORD QUARCOO V ATTORNEY-GENERAL & ANOR [2013] 1 SCGLR 259 at 260:

“It has always been my understanding that the requirements for the grant of an interlocutory injunction are: first, that the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favour of granting him or her the interlocutory injunction. The balance of convenience, of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief.”

In making the determination for an order of interlocutory injunction, the court should also not lose sight of the reliefs claimed and the pleadings upon which the case is being contested by the parties.

It bears re-iterating also that in considering an appeal, the decision or judgment of the court below will not be set aside or interfered with merely because the appellate court finds the reasoning of the court to be wrong, if the conclusion could be justified by the evidence on record; or even sometimes where the court misapprehended the law in some way. It is not the mandate of the appellate court to substitute its own discretion for that of the Court below. In other words, an appeal was not to the discretion of the appellate court.

See: IN RE BOB KWAME AND CO. LTD; GYINGYI V. BERNARD & ANOR [1989-90] 1 GLR 87

The issue raised for critical determination in this case is whether or not the Learned trial judge was justified in his decision in dismissing the Plaintiff/Appellant’s application for interlocutory injunction and on the other hand sub silenco granting the Defendants’ motion for interlocutory injunction in the circumstances of the case and on the material placed before the court for its consideration.

After a careful reading of the plaintiff’s motion paper and supporting affidavit and upon considering Counsel’s written submission as well as the defendants’ affidavit in opposition, and having equally considered the defendants’ own application for interlocutory injunction together with the written submissions filed on their behalf in connection with the instant appeal, together with the pleadings in this case, I am driven to the firm conclusion that he Learned trial judge appears to be right in dismissing the Plaintiff’s motion for injunction.

On the other hand, the judge could not, in all the circumstances of the case, be justified in his decision to merely place an injunction on the Plaintiff and, by implication, thereby giving free reign to the defendants to deal with the land in dispute and hence sub silenco grant the defendants’ motion for interlocutory injunction filed on 04/09/2014.

To begin with, it is obvious that the case of both the Plaintiff and the Defendants, as presented in their respective pleadings, appears to be jumbled up, confused, contradictory and confusing. While not making any firm statement or determination on the merits or outcome of the substantive case, which has to be dealt with at the plenary trial, it would appear on the face of the pleadings and the record, that the root of title upon which the respective applications for interlocutory injunction was founded and upon which the motions came to be determined at the court below was, to say the least, shaky.

The Plaintiff premised his case originally on a transaction involving 195.5 acres of land. This is the land described and identified in paragraph 5 of the statement of claim. From the plaintiff’s own account in the statement of claim, following a challenge of the capacity of William Kwarteng as Ebusuapanyin who executed the original lease upon which the Plaintiff’s assignment from the 1^st Defendant was based, the Plaintiff compromised and first accepted 100 out of the original 195.5 acres; then 50 acres of that was subsequently lost with the assurance of a replacement from a 116 acre land which was leased to the 1^st Defendant by one George Anim as Ebusua- Panyin of the same Chocho Family of Awutu. There was a further challenge which left the Plaintiff with a mere 31.38 acres. According to the Plaintiff, these successive losses of the land it had obtained from the defendants was due to a “subterfuge” by the latter, by reason of which the Plaintiff accused the Defendants of a breach of agreement (See paragraph 23 of the statement of claim)

It is indeed strange that the Plaintiff purportedly accepted land out of a 116 acre parcel of land without first conducting a search.

Worse still as the Plaintiff admitted, even the paltry 31.38 acres of land, which its various compromises with the Defendants earned it, suffered the ultimate betrayal when the Defendants sold that remaining piece of land to “one Mustapha Plus, a property dealer who has graded same”

Curiously, having admitted that even the last remaining 31.38 acres of land from its original transaction with the Defendants covering the vast 195.5 acres had been granted to Mustapha Plus, the Plaintiff failed to join the said Mustapha Plus to the suit in the litigation involving the very same 31.38 acres of land. Even more strangely, as the record shows, the Plaintiff opposed the Defendants’ application to join the said Mustapha Plus to the suit as defendants, with the result that Mustapha Plus, though now holding the said 31.38 acres of land is still not a party to the Plaintiff’s instant action.

It is equally worth noting that Exhibit PR11, being the document which the Plaintiff seeks to rely upon to claim the land in dispute, is a Deed of lease, which on the face of it is between “ASAMOAH PROPERTY” and the Plaintiff Company.

Of course, until extraneous evidence is admitted at the plenary trial to the contrary, one cannot in law maintain irresistibly that ASAMOAH PROPERTY is the same entity as Asamoah Properties Co. Ltd., the 1^st Defendant herein. (See page 91 of the ROA). Additionally, the Schedule to the said Lease shows clearly that the land leased in Exhibit PR11 is 31.83 Acres (12.88 Hectares).

Surely, this land area is obviously different from the 31.38 acres of land which the Plaintiff claims in their Writ of Summons.

To the extent that Exhibit PR11 appears to be the Plaintiff’s “Arch of the Covenant” upon which rests their root of title and serves as the foundation for their cause of action, Plaintiff had signally failed to establish a right or title to which it could properly and validly claim protection from a court of law by way of an order of Interlocutory Injunction.

There is every justification, therefore, on the basis of the evidence and material on record, to dismiss the Plaintiff’s application.

Furthermore, the numerous receipts exhibited by the Plaintiff as found from page 77 to page 84, on the face of each said receipt, demonstrate absolutely no linkage with the Plaintiff’s pleadings by way of the statement of claim and in relation to the land which is alleged to be the subject matter of the dispute.

In the light of the foregoing, the Learned Judge’s exercise of his discretion in refusing the Plaintiff’s motion for interlocutory injunction and his expression of an intention to facilitate a prompt and early hearing of the action could not be faulted in the peculiar circumstances of this case.

This is more so when it is considered that the Plaintiff claims “damages for breach of agreement” in respect of the transaction affecting the land which is the subject matter in dispute.

The difficulty with the trial Judge’s ruling, however, lies with his decision, after rightly dismissing the Plaintiff’s motion for injunction against the Defendants, to proceed to then slap an unconditional and wide-ranging order of Interlocutory Injunction on the Plaintiff.

The Court delivered of itself in the manner as follows:

“On the other hand, it would be just and convenient to grant the order of interlocutory injunction to restrain the Plaintiff’s Company, its officers, agents assigns and all person(s) who derive or claim their title from the Plaintiff’s herein from having any dealing with the 31.38 acres of land now in dispute until the final determination of this action.”

On the face of the order, it is immediately unclear in whose favour the order was made, except to imply that if the Court was as it were sub silenco granting the Defendants’ application for Interlocutory Injunction.

Ordinarily, one would say that the Plaintiff failed or neglected to oppose the Defendants’ application for Interlocutory Injunction filed on 04/09/2014, as noted earlier on in this judgment. The Plaintiff did not file an affidavit in opposition to the said application, neither did the Plaintiff file a Statement of Case in furtherance of their opposition.

Order 25 rule 4 specifically provides as follows:

“(4) A respondent who desires to oppose the application shall file an affidavit in opposition as well as a statement of case containing full arguments and the legal authorities to be relied on.”

On the face of the record, the order of Interlocutory Injunction would obviously have two beneficiaries in the circumstances of this case.

The first beneficiary is clearly Mustapha Plus or Alhaji Mohammed Mustapha, whom the pleadings, both of the Plaintiff and Defendants, demonstrate to be the entity or person currently in possession of the 31.38 acres, being the land supposedly in dispute. But this apparent direct beneficiary is not even a party to the suit yet.

The second beneficiary is the applicant for Interlocutory Injunction filed on 04/09/2014, namely the Defendants/Respondents herein, whose application by that order seems sub silenco to have been granted, though not openly so declared.

The fact that an application agitating the discretion of a court of law is not opposed does not mean it must of necessity be granted. This is particularly so where such an application seeks an order of Interlocutory Injunction. Order 25 of C.I. 47 clearly sets out the procedure and mode for accessing the said remedy.

And the superior courts have also given flesh to the process in obtaining the order of Interlocutory Injunction as outlined earlier on in this judgment.

If the order made by the Judge was, by implication, granting the Defendants’ motion for Injunction, was it justifiable? I believe not.

As noted earlier on, the Plaintiff company had clearly stated in their Statement of Claim that the 31.38 acres of land they were claiming in the instant action had been granted by the Defendants to Mustapha Plus, a property dealer and that the latter had actually taken possession thereof and “had graded same” (See paragraph 23 of the Statement of Claim found on page 6 of the ROA).

The Defendants on their part agree with the Plaintiff that the land claimed by the Plaintiff and which is the subject litigia is now in possession of “one Alhaji Mohammed Mustapha of Mustapha Plus Co. Ltd”.

The Defendants specifically state as follows in their Statement of Defence:                 

“23. The Defendants deny paragraph 23 seeing that following the reluctant acquiescence by the 2^nd Defendant to make payment to George Anim who was then the acknowledged head of the vendor family, the Plaintiff reneged on the payment schedule which compelled the said George Anim to decide to make a deal with the said Alhaji Mohammed Mustapha of the Mustapha Plus Co Ltd who agreed to pay off the remaining balance with the 2^nd Defendant’s consent.

24. The Defendant aver that the said Alhaji Mohammed Mustapha has since made payments to the said George Anim, receipts of which he acknowledged thereby denying the Plaintiff any claim to the land; the Plaintiff having refused to honour its obligations as per the initial agreement in respect of the land.

25. Paragraph 24, 25, 26, 27, 28, and 29 are denied.

26. In response to the paragraph 26, the Defendant aver that they took that decision when the time allowed by the agreement between the parties had lapsed without the Plaintiff paying the balance as agreed and seeing that the Plaintiff had by its conduct effectively circumvented the relationship regarding the land.

27. The Defendant aver that the Plaintiff having breached the agreement, he cannot pretend to have fulfilled its obligations and thus worthy of the reliefs it is seeking; the Plaintiff is thus not entitled to the reliefs or at all”.

In the circumstances outlined above, it is clear that the Defendants have unequivocally confessed that, at the time they applied for an order of interlocutory injunction, the land, the subject matter of the dispute, was not in their possession, they having been divested of it and same having previously been granted to Mustapha Plus.

Significantly, according to the Defendants, the said land had been granted to the said Mustapha Plus “with the second defendant’s consent”. (See paragraph 23 of the Statement of Defence)

The Statement of Defence almost gives one the creeping impression that it nearly lends credence to

the Plaintiff’s contention in their Statement of Claim that the Defendants, through the 2^nd Defendant, appear to have colluded with George Anim of the Chocho family to deprive the Plaintiff Company of the subject matter in dispute, in breach of the Plaintiff’s agreement with the Defendants.

For the purpose of the application for Interlocutory Injunction, however, the real import of the above development is that since the Defendants, upon their own confession or admission, had been divested of the land in dispute, with their own consent, there was no land to which they were entitled and for which they could justly seek the court’s protection by way of an order of Interlocutory injunction.

If the Learned Judge had appropriately applied his mind to this matter, he would not have been misled into granting an order of Interlocutory Injunction in favour of the Defendants, thereby appearing to reward them for their own wrong-doing, as alleged by the Plaintiff/Appellant herein. He who comes to equity must come with clean hands.

The ends of justice have not been truly served with the Interlocutory Injunction granted by the trial Court in the circumstance of this case.

Accordingly, it will be fair, just and against the Plaintiff/Appellant herein proper to set aside the Court’s order of Interlocutory injunction made against the Plaintiff/Appellant herein. The said order of Injunction made on 5^th November is hereby vacated accordingly.

Save for the order, vacating the trial Court’s order of Interlocutory injunction dated 5/11/2014, the appeal against the trial judge’s dismissed of the Plaintiff’s motion for interlocutory injunction fails and it is hereby, consequently, dismissed. The appeal in effect however succeeds in part in respect to the Court’s order of interlocutory injunction against the Plaintiff/Appellant.

The Court will, entreat the trial High Court, Agona Swedru, to take prompts steps to expeditiously hear the substantive action and determine same according to law.

SGD

…………………..

SAEED KWAKU GYAN

(JUSTICE OF THE COURT OF APPEAL)

SGD

                                               I AGREE                   …………………

HONYENUGA

(JUSTICE OF THE COURT OF APPEAL)

SGD

                                               I ALSO AGREE           …………………

SUURBAREAH

(JUSTICE OF THE COURT OF APPEAL)