IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2016
BEN HAASTRUP QUORNOOH - (Plaintiff/Respondent)
BASHIR PATTY - (Defendant/Appellant)
DATE: 21ST APRIL, 2016
SUIT NO: H1/151/15
JUDGES: OFOE J.A, KORBIEH J.A, WELBOURNE J.A
JUSTICE SREM SAR FOR DEFENDANT/APPELLANT
KIZITO BEYUO FOR PLAINTIFF /RESPONDENT
I have read the appeal records and I don’t think this a case that should give me any labour. I will present the facts of this case in its most sketchy form but ensuring that the essence is not lost on the reader as to what happened in substance between the parties.
The claim the plaintiff is making against the defendant is for a declaration from this court that an agreement of sale made between him and the defendant on the 2nd of May 2012 concerning land noted in Land Title Certificate No. GA34595 has been abrogated or at an end. He is asking for a further order that not only should the defendant surrender the original Land Title Certificate No GA38934 issued in the name of Project and Business Development Center but that the Land Registry should also cancel and delete from its register this Certificate.
Plaintiff is in court because a misunderstanding has arisen between him and the defendant on the sale agreement in respect of a piece of Land within the environs of Osu. There is no dispute on the facts that the plaintiff has property in the environs of Osu registered in his name but the Land Title Certificate on the said land was with a bank as security for a loan he took from the bank. His family friend, the defendant, was to assist him canvass for the sale to interested purchasers to enable him raise money to pay the bank. It was subsequently agreed to sell to the defendant. A sale agreement was entered at a price of GH¢230,000 which was to be paid latest the 30th May 2012. It is not in dispute that the defendant failed to meet this payment deadline and with the indulgence of the plaintiff the payment stood unpaid for some time. Because the defendant was not able to pay the purchase price by this date there was the understanding that the defendant raise an amount of GH¢61,000 to enable the plaintiff pay the bank and retrieve his land document, which in any case will be needed to perfect any sale of this land. This was done and the bank was paid. To enable the defendant apply for the loan it was understood that the property will be turned over into the defendant’s company name which will then use it to take a loan from a bank and pay the plaintiff the purchase price of GH¢230,000 less the GH¢61,000. According to the plaintiff from the time the property was vested in the defendant he has been dodgy, elusive and completely went at large for some time. Eventually the defendant came out on the 11th of October 2012 with an apology offering three options to the plaintiff. Either the plaintiff gives him more time to pay or plaintiff refunds his deposit and defendant in turn return the Land Certificate to him or the land is sold and his refund given to him. According to the plaintiff he chose the option of selling the land and refunding the defendant’s deposit. He eventually sold the land to a third party and informed the defendant accordingly. All efforts to get the defendant to take his deposit back and return the Land Title Certificate issued to him in his company name has proved futile. According to plaintiff on the 20th January, 2014 the defendant belatedly informed him he had now paid the balance on the purchase price into plaintiff’s account. This was rejected and the plaintiff directed his bank to return the payment to the defendant, which they did. Recent development has it that even though the defendant is aware that the land has been sold to a third party he has entered the land and deposited sand and stones along those put there by the third party who the plaintiff sold the land to. It is amidst these circumstances that the plaintiff sought an injunction to restrain the defendant from entering unto the land for any purpose including depositing materials unto the land or dealing whatsoever with this land.
The trial judge after listening to the parties concluded:
“I think the plaintiff/applicant has amply demonstrated that he has an interest in the land which this court must protect, otherwise the land may not be available at the time that this suit is determined. I therefore grant the plaintiff/respondent’s application.
The defendant, his servants, workers, assigns, privies etc. are restrained from entering, developing and from having anything to do with the land in dispute pending the determination of this suit”.
It is against this grant that the defendant has appealed to this court. He has three grounds of appeal. I think two of the grounds can be restated into a ground of appeal questioning whether the trial judge has exercised his discretion properly having regard to the facts of the case. The other ground of appeal is that the trial judge erred in failing to consider the important question of the balance of convenience in exercising his discretion in favour of the plaintiff.
I think it will advance our course better and lighten our duty in rendering this opinion if we acknowledge the fact that the authorities are now in unison that the grant or refusal of an application for injunction is an exercise of discretion to be exercised by the court and this discretion can be interfered with by an appellate court in only well-defined circumstances. Refer to the cases of In Re Bob Kwame &Co ltd: Gyingyi vrs Bernard(1989-90)1 GLR 87,Ball moos vrs Mensah(1984-86) 1 GLR 724,Owusu vrs Owusu Ansah(2007-2008)2 SCGLR 870, Sappor vrs Wigatap Ltd(2007-2008)SCGLR 676, Adjei vrs Similao(2012) 1 SCGLR 127.
On the authorities like Ballmoos vr Mensah(1984-86)1 GLR 725 and Kyenkyenhene vrs Adu (2003-2004)1 SCGLR 142 such discretion can be interfered with only where wrong principles were applied or where the trial judge applied wrong or inadequate material or the conclusion reached by the trial judge would work manifest injustice.
And in the Supreme Court case of 18th July Limited vrs Yehans International Ltd (2012)1 SCGLR 167 the court said:
“Even though it is a discretion, we are of the view that the trial court in determining an interlocutory application must first consider whether the case of the applicant is not frivolous and had demonstrated that he had legal or equitable title which a court should protect. Secondly a court is also enjoined to ensure that the status quo is maintained so as to avoid irreparable damage to the applicant pending the hearing of the matter. The trial court ought to consider the balance of convenience and should refuse the application if its grant would cause hardship to the other party”.
A lot has been said by way of submissions by both parties for our consideration backed by case law, well known to practitioners of the law. But as it usually the case, it is not the paucity of case law on matters of this nature that confronts the courts, but their application to the variety of circumstances that emerge case by case. It is for this reason that the legal authorities have maintained that in the exercise of a courts discretion no two cases are the same.
In the case before us the appellant contends that the respondent has no interest in the land the subject matter of the injunction. On a review of the pleadings I must confess that I have difficulty accepting this position of the appellant. On the pleadings of the parties the respondent contends that the understanding for which he transferred his interest in the land to the appellant was to enable the appellant apply for a loan from the bank and pay the purchase price for the land. There is a further contention that payment of the purchase price should be made before the 30th May 2012.This is admitted by the appellant. What happens if the appellant does not honour this payment by this deadline? The respondent contends that in such eventuality the sale is abrogated and the property revests in the respondent. On reading the pleadings and the submissions of the appellant, it appears to me his view of the matter is that, despite his breach in the closing date for the payment of the purchase price of the land, the respondent has no right to claim the land since he continued to deal with him despite the breach. The respondent’s relief is only to ask for the balance on the purchase price. This is the view of the appellant. Until these rival contentions of the parties are resolve by the court why would the appellant think that the respondent has no interest, either equitable or legal, in the land to have come for a restraining order of injunction? I have no hesitation dismissing this thought of the appellant as not supported by the records. In fact counsel for the plaintiff relying on the cases of Atta vrs Adu(1987-88)1 GLR 233 and Joseph vrs Boakye (1977) 2 GLR 397 submitted on the contrary that the respondent is entitled to the return of his plot and not balance on the purchase price as contended by the applicant.
The appellant’s next complain against the trial judge was that he failed to consider the balance of convenience of the parties in granting the injunction. My understanding of the appellant’s submission on this ground is that nowhere did he make reference to this vital ingredient which needs consideration in every case of application for injunction. Counsel for the respondent thinks the trial judge did consider this issue of the convenience of the parties before granting the order. Counsel quoted the trial judge thus:
“I think that the plaintiff/ applicant has amply demonstrated that he has an interest in the land which the court must protect, otherwise the land may not be available at the time that the suit is determined. I therefore grant the plaintiff/applicant’s application”(emphasis supplied)
To counsel it is implicit in this statement of the trial judge that he considered the balance of hardship and convenience of the parties before arriving at his order granting the injunction.
I would have wished a more detailed consideration would have been taken of this issue of hardship and convenience by the trial judge. In this appeal we doing a rehearing and as such I am entitled to review the record in whole and to find out whether the trial judge faltered in a way as to invite a positive decision in support of the appeal. In a rehearing, if there is evidence to support the trial judge’s conclusion, whether he failed to assess, wrongly assesses or fails to assess the evidence adequately, an appellate court like ours is entitled to sustain the judgment, if re assessing the evidence on a whole will still give support to the trial decision. In this case before us I cannot think of allowing the appellant in the circumstances of this case to proceed to deal with the disputed land any way he thinks fit when there are serious triable issues for the determination of the trial court. It appears to me that if the defendant is allowed to do a construction on the land, dispose it of, or in any way encumber this land at this stage when no development has started on the land yet, retrieval of the land if the plaintiff wins his case, may be cumbersome, hardship and inconvenience may be visited on him recovering this land. It is worth noting that the respondent said he has sold the land to a third party to the knowledge of the appellant. What happens to the party who has bought from the respondent, if the appellant is allowed to deal adversely with this land? In a situation like this where the appellant has not shown the degree of hardship he will go through if the injunction is granted, the best the court will offer is to grant the injunction to maintain the status quo awaiting final determination of the case. We think there is good reason to confirm the trial judge’s grant of the injunction. In any case he has not faltered in any way as to invite our interference with the discretion he exercised. I will dismiss the appeal.