GABRIEL JONAS DOWUONA- HAMMOND & PATIENCE DOWUONA-HAMMOND-WHITE vs. M & G PHARMACEUTICALS LTD.
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
GABRIEL JONAS DOWUONA- HAMMOND AND PATIENCE DOWUONA-HAMMOND-WHITE - (Plaintiffs/ Respondents)
M & G PHARMACEUTICALS LTD - (Defendant/Appellant)

DATE:  21ST JANUARY, 2016
CIVIL APPEAL NO:  H1/173/2015
JUDGES:  MARIAMA OWUSU J.A. (PRESIDING), C.J. HONYENUGA J.A., TANKO AMADU J.A
LAWYERS:  S.K. AMOAH ESQ. FOR DEFENDANT/APPELLANT
S.M. ASANTE ESQ. FOR PLAINTIFFS/RESPONDENTS
JUDGEMENT

Tanko Amadu J.A

In the High Court Accra, the Plaintiffs/Respondents (hereinafter referred to as ‘Respondents’) took out a writ of summons against the Defendant/Appellant (hereinafter referred to as the ‘Appellant’) for the following reliefs:-

(a) “Declaration of Title to the Land situate and lying at Bannerman Road, Accra bounded on the North-West by the Korleyna Road measuring 72 feet on the South-East, by the property of Laingoye Lartey measuring 50 feet, on one side and 25 ft on the other side, on the North- East by Bannerman Road measuring 72 ft, on the South-West by the property of Laingoye Lartey measuring 52 ft on one side and 22 ft 5 “ on the other side”.

(b) Recovery of possession

(c) Interlocutory injunction restraining the Defendant, their servants, agents workmen and assigns from dealing with the land.

(d) Damages for trespass

(e) Costs”.

 

In their accompanying statement of claim, the Respondents traced the history of their interest in the land which as alleged the Appellants claim to have acquired through one Rosemond Mark-Hansen a niece of the Respondents albeit without the requisite authority. According to the Respondents following attempts towards an amicable settlement which failed, the Appellant evinced an intention to develop the land in dispute by depositing building materials on same. Hence the Respondents’ action.

 

The Appellant filed a defence to the Respondents’ action and has set up a counterclaim. In defence, the Appellant not only challenged the capacity in which the Respondents brought their action but averred that the said Rosemond Mark Hansen from whom they acquired their interest executed their lease in her capacity as Head of Sarah Addo family to which the land in dispute evolved. The Appellant further contend as alleged by the Respondents that, they are beneficiaries of a lease dated 20th June 2000, between them and the said Rosemond Mark Hansen as Head of the Sarah Addo family which lease is duly certified under Land Certificate No.GA.18620.

 

In the counterclaim, the Appellant contends that having lawfully acquired the subject matter it will rely and claim benefit under to the provisions of Section 43(1) of the Land Title Registration Act 1986 (PNDCL 152).

 

 

On the strength of this defence, the Appellant counterclaims against the Respondents as follows:-

“(a) Declaration of leasehold title to all that parcel of land comprising an approximate area of 0.09 of an acre being parcel No.102 Block 6 Section 031 at Bannerman Road James Town Accra as delineated on Land Registry Map No.004/031/1991 annexed to Land Certificate No.GA.18620.

(b) Perpetual injunction restraining the Plaintiffs, their agents, assigns, servants and workmen from dealing with the land.

(c) General damages against the Plaintiffs for causing the Defendant to suspend the development of the land in dispute at considerable expense and inconvenience.

(d) Costs.”

 

From the record, we notice that even before the Appellant filed the defence and counterclaim, on 29/1/2014, Plaintiffs filed a notice of amendment pursuant to Order 16 Rule (1) of C.I.47 in which they sought to disclose the capacity in which they commenced the action. Further to the notice, the Respondents by leave of court filed an amended writ and statement of claim on 7/3/2014 while the Appellant also by leave filed an amended of defence and counterclaim by adding a paragraph 9(a) to claim adverse possession and plead limitation pursuant to Section 10 of the Limitation Act 1972 (NRCD 54). It must be placed on record that the Respondents filed an amended reply to rebut the Appellant’s averment of adverse possession and limitation.

 

On 15/1/2014 the Respondents by notice of motion sought an order for interlocutory injunction against the Appellant, agents, servants, workmen and assigns from further development of the land the subject matter of the action. The application was accompanied by an affidavit in support and statement of case as required by the rules of court.

 

The Appellant contested the application by an affidavit in opposition and a statement of case. In delivering herself, the learned trial judge upon a review of the affidavit evidence before her found that the Respondents (Applicants) were properly before the court as descendants and heirs of Sarah Addo their grandmother. She consequently held inter alia as follows:-

 

“Having regard to the state at which the proceedings of this case have reached, I find it just and convenient to grant the instant application so as to maintain the status quo.......…………………………………………………………………………………….…………………………. Let the Defendants, whether by their agents, servants, workmen and assigns be and are hereby restrained from further developing the land, the subject matter of this instant action, until the final determination of this suit”.

 

From this ruling the Appellant has appealed to this court and has set out three (3) grounds of appeal as follows:-

(i) The Learned Trial Judge erred by exercising her discretion in granting the application for injunction.

(ii) The Learned Trial Judge failed to give adequate consideration to the Defendant/Appellant’s case.

(iii) The ruling is against the weight of evidence on record.

 

In articulating the grounds of appeal in the written submission, the Appellant made exhaustive submissions in grounds (i) and (ii) which Appellant’s counsel argued together. With respect to ground (iii) which imposes a duty on the Appellant to refer us to the evidence on record which the trial judge failed to properly apply in its favour or wrongly applied in favour of the Respondents, the Appellant in my view, did not discharge the burden. I shall in due course deal with the inadequacy of the Appellant’s submission on this ground after I have considered the submissions on grounds (i) and (ii) of the appeal.

 

In the written submission, the Appellant rightly argued that the grant or refusal of an application for interlocutory injunction is an exercise of judicial discretion. And for that matter an appeal against the exercise of the discretion will fail because an appellate court cannot be invited to substitute its discretion for that of the trial court. In support of this legal position the Appellant has referred us to some leading cases and the legal principles therefrom. They are Blunt Vs. Blunt [1943] Ac 517 And Ballmoos Vs. Mensah [1984-86] I Glr 72 as well as Crenstil Vs. Crenstil [1962] 2 Glr 171.

 

It is further submitted on behalf of the Appellant that the instant case presents exceptional circumstances which should warrant the interference with the exercise of discretion by the trial court. To buttress this contention, the Appellant relies on the principle of law laid down by this court in the case of Vanderpuye Vs. Nartey [1977]I Glr 423 on interlocutory injunctions. With respect to the correctness or otherwise of the trial court’s exercise of judicial discretion, the Appellant further urged this court to disturb the ruling of the trial court by setting same aside for two additional reasons: They are that:-

“(1) The Court below did not take into account relevant matters such as a damages being awarded to the Respondents as adequate compensation if at the end of the day their action was successful.

(2) No consideration whatever was given by the Court below to the balance of convenience between the parties in granting or refusing the application. In so doing the court omitted to take relevant matters into account before granting the application”.

 

With respect to substantive facts the Appellant submits that the learned trial judge relied on the unproved fact that Rosemond Mark Hansen had no power or authority to delineate the land in dispute to the Appellant. In support of this, the Appellant has referred us to the evaluation of the affidavit evidence and conclusion arrived at by the trial judge at page 125 of the record. According to the Appellant, in making the statement aforesaid, the learned trial judge “acted under misapprehension of fact having given weight to an unproved fact and particularly so when nobody, not even the Respondents have challenged the headship of the Sarah Addo family by the said Rosemond Mark Hansen and ipso facto, the grant to the Appellant by setting same aside.”

 

In our view, the above submission and many others contained in the written submission with respect to the application of the exceptions to the rule in Malm Vs. Lutterodt [1963]1 Glr I are matters for the substantive trial which cannot be conclusively determined on the strength of affidavit evidence alone. As Lord Diplock held in the American Cynamid Co. Ltd Vs. Ethicon Ltd. [1975] Ac 396, which common law authority was cited by the Appellant’s counsel, albeit on a different guiding principle.

 

“It is no part of the court’s function to try and resolve conflicts of evidence on affidavits as to facts on which the claim of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature consideration. These are matters to be dealt with at the trial”.

 

In determining this appeal therefore, we will avoid making pronouncements on the correctness or otherwise of the trial judge’s findings and conclusions on substantive facts based only on the affidavit evidence of the parties in the suit. In our view, doing so may not only be premature and prejudicial but to say the least may result into injustice in the absence of admissible evidence adduced at the substantive trial. We shall however, determine the issue whether or not on the prima facie evidence before the trial judge, the exercise of the discretion is judicious and not capricious.

 

In response to the Appellant’s submissions on the two grounds, the Respondents made exhaustive submissions on the affidavit evidence the trial judge reviewed before granting the application in their favour. As we observed earlier in this judgment, the learned trial judge was limited to affidavit evidence only. The matters deposed to by either side were not subjected to cross-examination to test their veracity and credibility. That is why we have refrained from making definitive pronouncement on those matters. We think the learned trial judge had a duty to exercise her discretion based on the material before her. And she did so to favour the Respondents application for interlocutory injunction as it were to maintain the status quo between the parties.

 

As correctly submitted by the Respondents counsel citing the decision of the Supreme Court in the case of Owusu Vs. Owusu-Ansah & Another [2007-2008] SC GLR 870 where the court held inter alia that:- “While agreeing that in an interlocutory application for interim relief the court ought to refrain from expressing an opinion on the merits of the case, before hearing, we are of the view that this does not absolve the Trial Court from considering the material before it in order to guide it to either grant or refuse the request before the court. The guiding principle in such applications is whether the Applicant has by his pleadings and affidavit established a legal or equitable right which has to be protected by maintaining the status quo until the final determination of the action on its merits”. Relying on the principle above counsel for the Respondents submits that the Respondents did produce documents per their affidavit in support of their case and the trial judge did evaluate the pleadings and affidavit evidence before her to ascertain which of the parties had a better claim to the land in dispute.

 

While we agree with Respondents’ counsel on the position of law pronounced by the Supreme Court, we disagree with the submission that the trial judge ascertained that the Respondents had a better claim. We think the trial judge’s evaluation of the pleadings and affidavit evidence is consistent with the guideline by the Supreme Court in Owusu Vs. Owusu Ansah (supra). To suggest that the learned trial judge found that the Respondents have a better claim would be tantamount to a contention that there has been a premature and prejudicial determination of substantive issues which are to be determined after a full trial. The trial judge did make some crucial findings based on the affidavit evidence before her and the copious documents attached. The cumulative effect of those findings is to hold that the Respondents, (Applicants) in the injunction application have a right which the court can protect by interlocutory relief pending the final determination of the substantive suit.

 

 

It is the Appellant’s duty in this appeal is to demonstrate that the trial court failed to exercise its discretion properly and must do so convincingly before this court can make a determination in its favour by allowing the appeal. In determining the grounds of appeal from which this issue arises, it is important to state that it is not the role of this court where there is an exercise of discretion by the trial court to interfere with same merely on the ground that the appellate court would have exercised the discretion differently. In Hadmor Productions Ltd. Vs. Hamilton [1983] I Ac 191 at 220, it was held that such a practice by an appellate court is “an assault on justice and not within the statutory powers of the appellate court”. Therefore, whereas counsel for the Appellant referred us to a number of case law authorities, they ought to be treated as merely of guidance and not binding precedents in every situation. Lord Justice KAY once held a long time ago in the case of Jenkings Vs. Bushby [1891] Ch 434 At 495: that “……………….of course, in a question of discretion, authority are not of much value. No two cases are exactly alike and even if there were, the court cannot be bound by a previous decision to exercise its discretion”.

 

We are mindful of the position of the Supreme Court whenever there is a challenge as in this appeal on the exercise of discretion  by a trial court. In Sappor Vs. Wigatap Ltd. [2007-2008] SC GLR

676 the Supreme Court per Wood JSC. held inter alia in holding (i) as follows:-

 

“………………..The well known and time honoured legal principle is that an appeal against a decision based on the exercise of a court’s discretionary jurisdiction, could succeed in only those clearly exceptional cases where, in sum, the judge failed to act judicially. The applicable principle are: An Appellate Court would interfere with the exercise of discretion where the Court below applied wrong principles or the conclusions reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal”.

 

In other words, the circumstances under which the exercise of discretion by the trial court may be reversed on appeal include a failure by the trial court to exercise a discretion at all, or that the trial court applied the wrong principles of law, or an error of law simpliciter or where the trial court took into account irrelevant matters. It may also involve a situation where there has been a misinterpretation of the facts and therefore the exercise of the discretion was made in a manner in which no reasonable court or tribunal would have exercised it. In all these respects we do not think the discretion exercised by the trial judge granting the Respondents’ application can be impeached based on the evidential material on record. And our conclusion is not mitigated by the fact that the learned trial judge did make some crucial findings on the facts based on the affidavit evidence and documents before the court.

 

While we cannot in the instant appeal determine the correctness or otherwise of those findings, far from endorsing them, we do not think the trial judge can be faulted in the manner her discretion was exercised nor do we agree with the allegation that the trial judge failed to give adequate consideration to the Appellant’s case. On the contrary, we are of the view that the exhaustive evaluation of the respective strengths of the case of the parties was at this interlocutory stage of the proceedings unnecessary yet not fatal to the ruling.

 

Finally, in arguing the two grounds, the Appellant alleged that the trial judge failed to consider the question whether damages in the manner assessed at common law would not have been sufficient to compensate the Respondent. Further, that the trial court failed to take into account the balance of convenience to either party which should have been resolved in favour of the Appellant. We find from the ruling however that the trial judge considered one of the crucial elements in the grant or refusal of interlocutory injunctions in land litigation which is to ensure that the subject matter of the litigation is not compromised to prejudice either party’s rights and elected to rely on the need to keep the parties and subject matter in status quo. The failure to expressly make a pronouncement on the adequacy of damages and the balance of convenience is in our view not consequential to the outcome.

 

In ground (iii) the Appellant alleges that the ruling is against the weight of evidence. We would have thought that because grounds (ii) and (iii) are allegations relating to matters of evaluation of the evidence before the trial court, they could have been conveniently argued together. We notice that Appellant’s submissions on this ground is rather brief and save the statement on the legal position with respect to the ingredients necessary in determining the ground in that it will involve an examination of the entire evidence on record in order to determine whether or not the trial judge arrived at the correct conclusion having regard to the totality of the evidence, the Appellant does not appear to have adequately discharged the burden.

 

In order to succeed on such omnibus ground therefore, it is not sufficient for the Appellant to merely remind us of our duty under the principle of law in Tuakwa Vs. Bosom [2001-2002] Sc Glr 61 and other case law authorities which it sought to do. The Appellant has a duty to demonstrate to this court one or more of the following:-

(i) That the findings and conclusions of the trial court cannot reasonably be supported by the evidence.

(ii) That findings and inferences from established facts are wrong and that this court is in a position to draw the better inferences and arrive at the proper conclusions.

(iii) That the trial court had applied the wrong principles of law.

 

It is only when the Appellant is able to sufficiently demonstrate the prevalence of one or more of these in the ruling that this court by way of re-hearing will re-examine the evidence which the trial court relied on in making findings in favour of the Respondents and determine whether the trial court approached its assessment of the evidence correctly before it placed probative value on them.

 

On all these, we do not think the Appellant convinced us that the evaluation of the evidence by the trial judge before the ultimate exercise of discretion is erroneous. In consequence, this ground of appeal also fails and it is accordingly dismissed. We are however of the view that, having granted the application which the Appellant vehemently contested, and given the respective competing rights of the parties, the trial judge ought to have applied the provisions of Order 25 Rule 9 of C.I.47 and ordered the Respondents to file an undertaking in damages. This the trial court failed to do and in the exercise of our power pursuant to Rule 32(1) of C.I.19, we hereby order the Respondents to file an undertaking as to damages in the registry of the lower court in accordance with Order 25 Rule 9 of C.I.47 within 7 days from today. We further notice that in the endorsement of final reliefs in the writ of summons, the Respondents endorsed a relief of “interlocutory injunction”. Since an interlocutory order cannot be a substantive final relief, we think it is a matter to be corrected by the Respondents or the trial court as the rules of the lower court may apply. Save the above direction and observation this appeal fails, and we accordingly dismiss same.