JUDGMENT

AVRIL LOVELACE-JOHNSON JA:

This is an appeal against the ruling of the High Court granting an order of interlocutory injunction against the Defendants/Appellants

The Plaintiff/Respondents had sought the injunction against the Defendants and the court in its ruling had injuncted both parties.

Per their grounds of appeal, the Appellants contend that the trial Judge failed to exercise her discretion in accordance with the correct principles of law governing such applications and that the ruling is against the weight of evidence. On this basis, they seek a setting aside of the said ruling and a ruling made in their favour.

Regarding the first ground of appeal, it is to be borne in mind that an appellate court will be loathe to disturb the exercise of discretion by a lower court unless the circumstances are exceptional. See CRENTSIL V CRENTSIL (1962) 2 GLR 171 where the Supreme Court stated as follows

As to appeals from the exercise of the courts discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the court’s discretion save in exceptional circumstances

Such exceptional circumstances will include a judge allowing the exercise of his discretion to be interfered by irrelevant considerations or ignoring the relevant. See AGYEI V SIMILAO (2012) 1 SCGLR 127 @ 135 which also cites the English case of BLUNT V BLUNT 2 ALL ER 76, HL which states that an appeal not being from the discretion of the lower court to the discretion of the appellate one, to succeed on a ground of appeal such as the one under consideration, it has to be shown that

The court acted under a misapprehension of facts in that it either gave consideration to irrelevant or unproved matters or omitted to take relevant matters into account

The complaint here appears to be that the court failed to apply the laid down guidelines in considering whether or not to grant an application for interlocutory injunction. A reading of the ruling on appeal shows that the learned High Court Judge after discussing both local and foreign authorities injuncted both parties. It is clear from the ruling that she considered herself unable to make the order for injunction without going into the facts, an exercise she was not allowed to perform at that stage of the proceedings and so ‘threw up her hands in despair” so to speak and injuncted both parties as she had power to do under order 25 rule 1(1). Here, I refer to the power to make the grant on terms. She wrote about being ‘worried’ about the requirement to assess if there was a prima facie case established when at that stage one could not delve into the facts and even went further to ponder whether deciding on who loses more if the status quo was maintained did not amount to delving into the facts. Clearly the learned trial Judge had more questions about the propriety of the factors she was required to consider in such an application than an answer to the question of who merited the benefit of the exercise of her discretion. She did mention the factors and discussed them in her ruling but in spite of her misgivings and discomfort she was duty bound to state clearly whether after applying the factors to the circumstances of the case before her a grant of the application was what was warranted. Her ruling does not show that she did this before concluding that the just thing to do was to injunct both parties.

I am satisfied that from the record it is not clear that the learned High Court applied the necessary factors to the facts of the present case and that is more than sufficient reason to interfere with her exercise of discretion. In the result, I consider the first ground of appeal made out. It succeeds and is hereby upheld.

The second ground that the ruling is against the weight of evidence on record requires this court to exercise its statutory powers of rehearing under Rule 8(1) of the Court of Appeal Rules CI 19.

This power has been described in the case of ARYEH & AKAKPO V AYAA IDDRISU (2010) SCGLR 891 as a duty

“to consider comprehensively the entire evidence on record before coming to a conclusion on the matter” And also in TUAKWA V BOSOM (2001-2002) SCGLR 61 as a duty to

“..analyze the entire record of appeal, take into account the testimonies and documentary evidence adduced at the trial before arriving at its conclusion, so as to satisfy itself that on the balance of probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”

I will proceed to perform this statutory duty in the manner described in the above cited cases.

What were the pleadings before the High court and the arguments made by the parties in support and in opposition to the application for interlocutory injunction?

The Plaintiffs issued a writ for declaration of title to a piece of land, recovery of possession of same, damages for trespass and costs. The relevant portion of their statement of claim is that 1^st plaintiff purchased the land in question in the year 2006 from the then Head and Lawful Representative of the Agbawe Kplen We family of Oyarifa, was given a title deed which she lost and later got her grantor to execute another document on the land in the name of the 2^nd plaintiff her son. She claims that they were in undisturbed possession till sometime in 2012 when 1^st defendant trespassed unto the land. It is alleged that the latter was warned off by the Police. Thereafter P1 erected a one storey foundation on the land and travelled to Obuasi. She got information that her foundation had been dug up and that a house was being constructed on the land day and night. This turned out to be true. She found that 2^nd defendant who was building on the land had taken a grant from the 1^st Defendant

From the statement of defence filed by the defendants, they say that both 1^st defendant and his grantor one Alfa Musa had land title certificates on the land and that per a High court judgment dated 8^th march 2002, 1^st Plaintiff’s grantor had been injuncted from making grants of his family’s land so he could not have lawfully made any grant of land to her in the year 2006. Further Plaintiff’s grantor being a part of the family which granted the land to 1^st defendant’s grantor much earlier in 1995, the said family had no title to the disputed land which they could grant to 1^st plaintiff in 2006, which grant Defendants deny any way. Defendants also pleaded that the house on the land was put up by 1^st defendant and was already completed. In the alternative, they also pleaded the statute of limitations

To their application for interlocutory injunction, the Plaintiffs attached a copy of their title deed and a high court judgment they allege ordered the Land Commission to plot the land in question among others in the name of their grantor. They also attached photographs showing the ‘advanced stage’ the Defendant’s building had reached. They stated in paragraph 17 of the affidavit in support that if the Defendants were not stopped, Plaintiffs would lose their land ‘completely”.

In their affidavit in opposition, the Defendants recounted the basis of their claim and stated that the High Court judgment referred to by the Plaintiff did not order the land in question to be plotted in Plaintiff’s grantor’s name as claimed and attached a copy of the judgment to their affidavit. They attached a picture of the building on the land to show it was practically completed.

The Supreme Court case of 18^TH JULY LIMITED V YEHANS INTERNATIONAL LTD (2012) 1 SCGLR 167 @ 172 in consonance with earlier cases lays down the factors to be considered in determining an application for interlocutory injunction. These are that the applicant’s case should not be frivolous and he should demonstrate that he has a legal or equitable right which should be protected by the court. Further the court has to consider if there is a need to maintain the status quo to avoid irreparable harm to the applicant pending the hearing of the matter. The balance of convenience regarding hardship likely to be caused to each of the parties is also another factor to be considered.

The pleadings and attachments as at the time the application was brought included Plaintiffs’ exhibit A dated 1^st August 2013 and stated to commence on the same date. The 1^st Defendant attached to his affidavit in opposition, a Land Title Certificate in his name dated 16^th July 2015 covering the remainder of a 99 year lease which started to run from 18^th January 1995 eleven years before the year 2006. From the pleadings there is no dispute that the parties are litigating over the same piece of land.

It is true that the 1^st Plaintiff says she bought the land in the year 2006 and obtained a document which she lost but what is before the court at this stage is her 2013 document. Considering the rebuttable presumption that a holder of a Land Title Certificate has an indefeasible title, and being careful not to fall into the danger of going into the merits of the case at this stage, one can only say that at this stage, the Plaintiff applicants have NOT been able to establish that their case is not frivolous and that they have some right, legal or equitable which is threatened and needs to be protected by the court. This is not to say that there will be no serious question in that regard to be tried later during the trial but at this stage, this is not apparent from the materials before the court.

Have the Applicants show that they will suffer irreparable harm if the Defendants are not restrained?

In paragraph 17 of the affidavit in support the 1 ^st Plaintiff applicant says that if the Defendants are not stopped, she will ‘lose her land completely’. In paragraphs 9, 10 and 11 of her statement of claim, she states that while in Obuasi she was informed that her foundation had been uprooted and when she came to Accra she found that a house was being constructed on the land. She attached a picture of a roofed building on the land. The Defendants attached a picture of the same house this time walled and gated to their affidavit in opposition.

An irreparable damage is one which cannot be compensated for with damages or other legal recourse. The house on the land being complete and roofed, if the Defendants are not injuncted, will the nature of the land be so changed that the Plaintiffs cannot use it for their stated purpose? What is in dispute is land on which Plaintiffs allegedly had a foundation which has already been uprooted. Should the Plaintiffs win this case, an order to raze down the building at the cost of the defendants will result in Plaintiffs getting their land back and the inconvenience caused them made up for by an award of damages. Maintaining the status quo by issuing an injunction at this stage will not result in a return of their land with their original foundation on it. Should they win the case if there has indeed been irreparable harm, then it has already been done and an injunction will not cure it, an injunction’s purpose generally being preventive rather than curative. Damages and an order to pull down may be the better remedy at the end of the day

Finally having put the building up to the stage it is, on the balance of convenience, clearly greater hardship will be caused to the Defendants should judgment be given in their favour at the end of the day than that which will be caused to the plaintiffs by the refusal of this application.

For all the above reasons, I am satisfied that the trial judge’s decision to grant the injunction sought against the Defendants/Respondents is against the weight of the evidence and materials on record. The second ground of appeal also succeeds and is hereby upheld. In conclusion, the appeal succeeds in its entirety. The Trial court’s order of injunction against the Defendants/Respondents is hereby set aside. Costs of GH¢ 3,000.00