IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
IBRAHIM ADJETEY MENSAH -(Plaintiff/Appellant)
CHIEF MASAUDU MORO GARIBA -(Defendant/Respondent)
DATE: 22 nd NOVEMBER, 2018
SUIT NO: H1/165/2018
JUDGES: MARIAMA OWUSU (J.A) PRESIDING, AVRIL LOVELACE-JOHNSON (J.A), HENRY A. KWOFIE (JA)
MOHAMMED ATTA WITH S. TETTEH FOR DEFENDANT/RESPONDENT K.
S. A. AMOAH WITH NANA A. P. AMOAH FOR PLAINTIFF/APPELLANT
AVRIL LOVELACE-JOHNSON (J.A):
This is an appeal against the ruling of the High Court dated 13th October 2017 by which it refused the application by the Plaintiff/Appellant to restrain both parties from dealing with the land in dispute pending the final determination of the suit.
The court based its refusal on two grounds. The first was that the Plaintiff/Appellant (to be referred to as Appellant hereon) was unable to show his interest in the subject matter. The second ground was that he did not file a supplementary affidavit in response to the Defendant/Respondent’s (to be referred to as Respondent hereon) contention, supported by a document that the Appellant had earlier granted the land to him.
This appeal is brought on the following grounds
i. The learned trial judge erred by taking into account irrelevant matters or by not taking into account relevant matters in determining the application for judgment
ii. The Learned trial judge erred by refusing to grant the application for injunction
iii. The ruling is against the weight of evidence
In consequence of the above, the Appellant seeks from this court an order setting aside the ruling in question and a further order granting the interlocutory injunction sought.
Both counsel argued the first two grounds of appeal together. I will follow suit.
The submissions of counsel for the Appellant on these two grounds in sum are that, the court in exercising its discretion whether or not to grant the application misapprehended the facts thus creating exceptional circumstances for this, court as an appellate one to interfere with that exercise of discretion. It is submitted that this misapprehension is in relation to the capacity in which the Appellant brings this action and the import of a document attached to the Respondent’s affidavit in opposition and the conclusion drawn from the said document.
In response to these submissions, counsel for the Respondent states that, the Appellant having failed to make the appropriate indorsement on the writ as he is mandatorily required to do, the learned trial judge was right in finding that he had capacity. Further that if he was indeed a beneficiary of the estate as he himself alleges then as required by law, he can only bring this action if the he has been granted a vesting assent. In relation to the judge’s conclusions on the document attached by the Respondent to his affidavit in opposition, counsel contends that, it being one of the materials before the court, the trial judge, in line with authorities on the issue was, required to take it into consideration even at this stage of the proceedings.
It is clear from the ruling that the issue which was dominant on the trial judge’s mind was one of the capacity of the Appellant which the learned trial judge ‘struggled’ with. This was because the said capacity was not “reflected in the title of the suit as required by law”
It is true that the title of the writ did not disclose the capacity in which the Appellant issued the writ but paragraph 1 of the accompanying statement of claim immediately reveals this capacity. The said paragraph states as follows
1. Plaintiff is the Administrator of the estate of the late Nii Mensah Bediako 1 (Chief of Zenu) and brings this action for and on behalf of the estate.
Counsel for the Respondent refers to Order 2 rule 4 (1)(a) which states as follows Before a writ is filed it shall be endorsed
(a) Where the Plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues. and submits that this provision being mandatory, the writ by which this case was commenced is defective and a nullity.
Order 81 of the High Court rules appears to have robbed the word shall of some of its power regarding compliance with the rules stated therein. In line with Order 1 rule 1(2), the courts are moving away from a strict and technical application of the rules and as much as is within their power are applying these in a manner which will not turn away any litigant from the judgment seat in their bid to do justice. It is my considered opinion that failure to meet the requirement of the above quoted rule will, in the light of this new approach and the authorities does not render a writ such as the present a nullity.
The case of Republic v High Court Accra; Ex parte Aryeetey cited by counsel for the Respondent in his written submissions states why there is the need for such an indorsement as to capacity. The said case states in part as follows
“…is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the legal right to sue. This includes the submission that the requirement also enables a defendant, if he is minded, to challenge the capacity the plaintiff claims he has and such a challenge may be taken as a preliminary issue.”
Is the Respondent able to embark on the above exercise if he wishes so to do with the writ and statement of claim as they presently are? The answer is yes, in my considered opinion, so long as the two processes are read together. In any case, Order 2 rule 6 and Order 11 rule 1(1) require every writ to be filed with a statement of claim and the two to be served together on a defendant. Further, the courts have also held that a defective indorsement can be cured by the delivery of a proper statement of claim. See the case of Opoku & Others ( NO 2) V Axes Co Ltd ( No2) 2012 SCGLR 1214 which also made reference to the dictum of Devlin J in the case of Hill v Luton CORPORATION  1 All ER 1028@ 1031.
The learned trial judge again states that paragraph 15 (actually paragraph 6) of the affidavit in support of the application suggests that the suit is a personal action and since there is no evidence that the property has been vested in the Appellant, it makes the issue of capacity more “complicated”.
With respect, the learned trial judge by the above exercise, concerned himself with an unnecessary matter at this stage of proceedings. The Appellant, having clearly stated the capacity in which he brought the present action and attached Letters of Administration in proof of this, the material before the Court were the pleadings and annexures including the unimpugned LA. The Appellant’s statement that he was also the beneficiary of the estate for which he had obtained LA without more should not affect his stated capacity at this stage of proceedings. He never stated in his pleadings or his affidavit in support of the application that he was bringing the action in his capacity as a beneficiary of the estate.
The court was at liberty to set that issue down for determination and at this stage of proceedings, not conjecture on the possible effect of the Appellant’s statement that he was also the sole beneficiary of the estate. The court was required to use the material before it to determine the fundamental issue of what interest or right the Appellant had at law or equity, and whether this interest or right was one worthy of protection by an order for interlocutory injunction. This was not done.
The court also stated in conclusion that
“ Aside this fundamental issue of capacity, the defendant contends that the plaintiff granted the land to him. He tendered a document signed by the applicant in proof of his assertion. Applicant could not file a supplementary affidavit to respond to this fact. All the Applicant did was a bare denial and nothing more. What it means is that even if the Plaintiff had been authorized to deal with the land, he had conveyed his interest and is stopped by his own conduct and written statement”
While it is true that a court has to consider the pleadings and any other material before it in order to decide whether to grant an application such as the present, the last but one statement of the ruling cannot have been properly made when evidence had not been taken or full legal arguments heard on the issue. The case of Owusu v Owusu-Ansah and Another [2007-2008] 2 SCGLR which counsel for the Respondent seeks to use to justify the court’s statement above also clearly admonishes a trial court in hearing such an application prior to a full trial, to refrain from expressing an opinion on the merits of the case. Clearly, the statement emphasized above was an opinion of the court on the merit of the whole action brought by the Appellant. His case has been found to be without merit even before the hearing.
From all the above, I am satisfied that the learned trial judge took into consideration irrelevant matters in considering the application before him and so by virtue of its statutory power of rehearing, this court can interfere with this wrong exercise of discretion. See holding 2 of Owusu v Owusu-Ansah and Another (supra)
In addition to the above case, other cases like Odonkor v Amartei [1987-88] 1 GLR 587, 18th July Ltd v Yehans International Ltd  1 SCGLR 167 have laid down the guidelines for the grant of such applications. These are not exhaustive but as stated earlier, the fundamental of all these is a demonstration by the applicant that he has a legal right at law or equity.
The Appellant supported his claim of having a legal right regarding the property by tendering his letters of administration. On the other hand, the Respondent attached a document which he says is a receipt given him by the Appellant when the latter gave him the disputed land as payment for services rendered. At this stage of proceedings, the LA held by the Applicant gives him the required interest in the land to warrant him asking for an order protecting it because it covers the movable and immovable properties of the person mentioned in paragraph 2 of the statement of claim. As quoted by counsel for the Respondent from the case of Okyere (DECD) (subst. by) Peprah v Appenteng & Adomaa  1 SCGLR 65, Holding 2
“…when a person dies testate or intestate, his estate devolves on the executor or personal representative respectively until a vesting assent has been executed to the beneficiaries or devisees….”
See also Djin v Musah Baako [2007-2008] 1 SCGLR 686. Holding 2 cited by counsel for the Appellant where it was stated that
“The right of action to recover land of an interstate accrues from the date of grant of letters of Administration”.
The Respondent’s interest having been established, has he provided any evidence that there is the need to protect it prior to a trial to determine the merits of the case? According to paragraph 17 of the statement of defence, at present, whatever development the Respondent had on the land has been destroyed by the Appellant. This is an indication that the former was indeed doing some work on the land. This also appears to be contrary to paragraph 13 of the affidavit in opposition where he states that he has not commenced development on the disputed land. The Appellant states that his annexures are evidence that the Respondent has made some developments on the land.
Surely, the annexures by both parties show that one or both of them has done some development on land. In the light of this and the respective cases put up by the pleadings of the parties, it is my considered opinion that had the trial judge properly considered the laid down guidelines in respect of such applications and applied them to the circumstances of this case he would have seen that the justice of the case called for granting the present application in the terms sought by the Appellant that is restraining both parties from dealing with the land in dispute.
The first two grounds of appeal succeed and are upheld.
The third ground of appeal that the ruling is against the weight of evidence calls for an analysis of the entire record on both the facts and the law. See the case of Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790
Counsel for the Appellant, in respect of the earlier grounds of appeal pointed out pieces of evidence wrongly applied against the Appellant such as the failure to indorse the writ with his capacity and the import of the Respondent’s receipt attached to the affidavit in opposition. He has also submitted successfully that had, the learned trial judge considered the legal significance of the Letters of Administration and coupled this with the statement in paragraph one of the statement of claim, he would not have concluded that the Appellant did not capacity.
In the light of this, one can only conclude that that the ruling is indeed against the weight of evidence.
See Holding 1 of Djin v Musah Baako supra.
That ground of appeal also succeeds and is upheld.
In conclusion the appeal succeeds in its entirety and the relief sought from this court is granted by the issue of an order of interlocutory injunction restraining both parties, their agents etc from developing the land in dispute or dealing with it in any manner pending the final determination of the suit.
Cost of GH¢3,000.00 in favour of Appellant against Respondent
(JUSTICE OF THE COURT OF APPEAL)
I Agree …………………
(JUSTICE OF THE COURT OF APPEAL)
I also agree …………………
HENRY A. KWOFIE
(JUSTICE OF THE COURT OF APPEAL)