IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
KUMASI - A.D 2018
MADAM AKOSUA ATTA - (Plaintiff/Applicant/Appellant)
ABENA NKYEM & THREE OTHERS -(Defendants/Respondents)
DATE: 24 TH JULY, 2018
SUIT NO: H1/28/2017
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
YAHAYA SEIDU FOR PLAINTIFF/APPELL/ APPELLANT
SAMUEL BOAFO AMENULIO FOR DEFENDANT/RESP/ RESPONDENT
ADUAMA OSEI JA:
In this judgment, the Plaintiff/Applicant/Appellant is referred to as “the Plaintiff”, and the Defendants/Respondents/Respondents are referred to as “the Defendants”.
On the 1st of April, 2015, the Plaintiff caused a writ of summons to be issued in the High Court, Kumasi, seeking against the Defendants jointly and severally declarations and orders which included:
i) a declaration that the Plaintiff is the only surviving spouse of the late Nana Dwumah-Ababio also known as Nana Kofi Dwumah, also known as Joseph Kofi Frempong (who shall hereafter be referred to as “the Deceased”);
ii) a declaration that a Will purportedly made by the Deceased, was not his deed and was fraudulently obtained;
iii) a declaration that the properties listed or mentioned in the said Will were all properties acquired by the Deceased jointly with the Plaintiff; and
iv) an order of perpetual injunction.
Before pleadings closed in the action, the Plaintiff on the 13th of October, 2015, filed an application for interlocutory injunction praying the High Court for orders:
i) to restrain the Defendants, their agents and privies from dealing and interfering with the properties in dispute as their self-acquired properties until the final determination of the suit;
ii) to compel the Defendants to file accounts of all proceeds from the cocoa farms, the subject matter of dispute, at the Registry of the High Court;
iii) to direct the parties to appoint two representatives each, and with the Registrar of the High Court as Manager/Receiver, to manage, superintend, or run the Menka Hotel, Kumasi and specified cocoa farms;
iv) to restrain the Defendants, their agents and privies from renting out any room to any third party;
v) to restrain the Defendants, their agents and privies from entering the matrimonial home to harass, bully, or intimidate her.
The grounds for the application, as contained in the supporting affidavits were:
i) that notwithstanding the pendency of the action, the Defendants had been frequenting the matrimonial home to attack and harass the Plaintiff;
ii) that various stores and rooms in the matrimonial home had been broken into and the Defendants had rented them all out and collected huge sums of money as rent advances;
iii) that the Defendants had, since the death of her late husband, been running and managing Menkah Hotel without accounting to anybody;
iv) that the Defendants had organised armed persons to break into the matrimonial home and had ransacked the premises and taken away gold nuggets;
v) that the Defendants had rented out a store owned by the Plaintiff’s late husband at the Kumasi Central Market;
vi) that as surviving spouse, the Plaintiff is entitled by law to a reasonable percentage of her husband’s estate;
vii) that as surviving spouse, the Plaintiff stands to lose a lot if the application is refused, while the Defendants, on a balance of the probabilities stand to lose nothing if the application is granted.
In their affidavit in opposition, the Defendants denied the claim of the Plaintiff that House No. MM78, Mmrom, Kumasi, was the matrimonial home of the Deceased. They alleged that the said property belonged to the 3rd Defendant, the same having been acquired for her by the Deceased. The Defendants also alleged that the Deceased had contracted an Ordinance marriage and the Plaintiff could not have been validly married to the Deceased at the time of his death. The Plaintiff was therefore not the surviving widow of the Deceased. The Defendants again denied having applied for probate of the Deceased’s Will as alleged by the Plaintiff and they contended that, contrary to what the Plaintiff was saying, indications were that the Will was the deed of the Deceased. The Defendants also denied the allegations of attacks, harassment, intermeddling, and other wrong-doings in respect of the estate of the Deceased made by the Plaintiff against them.
They also alleged that even though some of the beneficiaries under the Will of the Deceased had applied for letters of administration with Will annexed and the Plaintiff had been served with the application, the Plaintiff had not filed any process challenging the validity of the Will. The Defendants contended in their affidavit that a refusal of the Plaintiff’s application would not cause her any hardship or inconvenience. They considered that having regard to the issues raised in the application, the best course was to ensure a speedy trial of the action and also ensure that the beneficiaries under the Will enjoyed their benefits.
Having heard Counsel for the parties in the application, the trial Court apparently considered that the interest of justice would better be served by limiting its restraining orders to the protection of the Plaintiff against harassment. Accordingly, on the 26th of February, 2016, the trial Court made an order restraining the Defendants from “interfering with harassing and doing anything that would affect the Plaintiff/applicant’s occupation of the matrimonial home until all matters in dispute are determined with finality”.
It is against this ruling that the Plaintiff has filed this appeal. And the grounds on which the Plaintiff is appealing are that the trial Court did not exercise its discretion judicially, and that “(c)onsidering the efficacy, import , tenor, etc. of Exhibits A, D, E, F and G attached to the affidavit in support of the motion and which same was filed on 13-10-2015, the learned trial judge was wrong when he failed to grant the application requested for by the Plaintiff/Applicant/Applicant’s counsel”.
The ruling of 26th February, 2016, is found at pages 208 and 209 of the record of appeal, and the notice of appeal is at pages 210 and 211 of the same record. At the hearing of 26th February, 2016 during which the ruling appealed against was read, the trial Court indicated that “full reasons shall be made available”. I do not however find in the record of appeal any proceeding subsequent to that of 26th February, 2016, at which reasons for the ruling appealed against were read. What I find in the record is a proceeding dated 19th February, 2016, at which a ruling said to be in respect of a motion for interlocutory injunction filed on 13th January, 2015 was read. Reading that ruling, one gets the impression that it is in respect of the application in issue in this appeal. The fact however is that the application in issue in this appeal was filed on 13th October, 2015, not 13th January, 2015 as stated in the ruling of 19th February, 2016.
Considering that the record does not disclose any application for interlocutory injunction filed on 13th January, 2015, I have cause to think that the motion referred to in the ruling of 19th February, 2016 is the Plaintiff’s motion filed on 13th October, 2015, which appears at page 39 of the record. I had considered treating the date of the motion as stated in the ruling of 19th February, 2016 as a clerical error which could be corrected by the Court. But unfortunately, Order 16, rule 7 of the Rules of the High Court, CI. 47, which deals with correction of documents in proceedings, is explicit in its sub-rule (2) that “the rule shall not apply in relation to a judgment or order”. And matters are not helped with the Plaintiff specifying in her notice of appeal that her grievance in this appeal is in respect of the ruling dated 26th February, 2016. Indeed, the Plaintiff has emphasised in the notice that the relief she is seeking in this appeal is the reversal or setting aside of the ruling or decision dated 26th February, 2016. The position therefore remains that the ruling of 19th February, 2016, is in respect of a motion filed on 13th January, 2015, and may not be considered in respect of a motion filed on 13th October, 2015. I shall in the circumstance refrain from considering the ruling dated 19th February, 2016 in this judgment.
And I wonder whether Counsel for the parties herein feel comfortable about this unfortunate situation. When Form 6 is received and the parties have procured copies of the appeal record, Counsel for the parties are obliged to study the record to satisfy themselves that the record is devoid of material errors – errors that are likely to obstruct a just, fair and satisfactory determination of the issues raised in the appeal. If they discover such errors and they are diligent, they will file appropriate applications to facilitate the correction of those errors. In a few cases, however (and I count the present case among them), Counsel are not diligent and they neglect their responsibilities much to the detriment of their clients.
In her notice of appeal, the Plaintiff indicated an intention to file additional grounds of appeal upon receipt of the appeal record. There is however no record of additional grounds filed and the grounds of objection in this appeal therefore remain the two mentioned above, which are that the trial Court did not exercise its discretion judicially, and that “(c)onsidering the efficacy, import , tenor, etc. of Exhibits A, D, E, F and G attached to the affidavit in support of the motion and which same was filed on 13-10-2015, the learned trial judge was wrong when he failed to grant the application requested for by the Plaintiff/Applicant/Applicant’s counsel”.
In the very first paragraph of the submissions filed on behalf of the Plaintiff, Counsel declares that this appeal is against the ruling of the High Court dated the 20th of February, 2016. This is in spite of the repeated statements in the notice of appeal that it is the ruling of the trial Court dated the 26th of February, 2016, that is in issue herein. And proceeding further in the reading of the submissions, it is noted that the ground of objection that the trial Court did not exercise its discretion judicially has been argued under what has been described as Ground 4, even though there are only two grounds of objection in this appeal, which have been identified in the notice of appeal as Grounds (a) and (b). These errors also exemplify the lack of diligence on the part of Counsel in their preparations for proceedings before the courts which have been commented upon above. Failure to check processes meant for use by the courts for errors, and the filing of sloppy processes do not extend to the courts the respect that they deserve and they do not also project offending Counsel as organised and diligent. These are only kind words to keep Counsel reminded about the grave demands of their profession.
Now, to the arguments of Counsel. Arguing in support of the contention that the trial Court did not exercise its discretion judicially, Counsel for the Plaintiff cited the case of Sappor Vs, Wigatap Limited [2007-2008] SCGLR 676, in acknowledgment of the principle that “an appeal against a decision based on the exercise of a court’s discretionary jurisdiction would succeed in only the clearly exceptional cases where in sum, the judge failed to act judicially”. Counsel also acknowledged that in situations where an Appellant is questioning the proper exercise of judicial discretion by a court, the Appellant bears a responsibility to demonstrate to the appellate court that the discretion was not fairly exercised.
Having thus acknowledged the burden the Plaintiff bears as an Appellant in this case, Counsel contended that the conclusion drawn by the trial Court in the present case was uninformed and ought to be reversed by this Court. Counsel argued that reading the affidavits and the exhibits filed by both parties left no doubt that triable issues were raised before the trial Court which demanded the grant of the interlocutory injunction the Plaintiff sought. In his further criticism of the decision of the trial Court, Counsel noted that in refusing to grant the injunction the Plaintiff asked for, the trial Court failed to consider relevant material placed before it, particularly, the pleadings, the affidavits in support and the exhibits. Counsel also lamented the failure of the trial Court to assign reasons for its ruling.
Under Ground (b), Counsel for the Plaintiff contended that in the face of Exhibits A, B, E, F and G, the trial Court was wrong in failing to grant the Plaintiff’s application. Counsel observed that if those exhibits had been properly considered, they would have tilted the scales of justice in favour of the Plaintiff.
Counsel concluded his submissions in support of this appeal by reminding this Court that an appeal is by way of re-hearing and that it is within the competence of this Court review the material that was placed before the High Court in the application for injunction and make its own determination.
Counsel for the Defendant dealt with the two grounds argued on behalf of the Plaintiff together. In his filed submissions, Counsel for the Defendant disputed the Plaintiff’s contention that the trial Court did not exercise its discretion judicially. Counsel also rejected the submission made on behalf of the Plaintiff that considering the exhibits made available to the trial Court by the Plaintiff, the trial Court ought to have granted the Plaintiff’s application.
In his attempt to demonstrate that in the light of the ruling appealed against, there were no bases for the submissions made on behalf of the Plaintiff, Counsel for the Defendant found himself making references to the ruling of 19th February, 2016, instead of that of 26th February, 2016, which is the subject matter of this appeal. This seems to suggest that even as at the time of filing his submissions, it had not occurred to Counsel that the rulings of 19th February and 26th February raised difficulties which should have been resolved through the instrumentality of Counsel before the appeal came up for hearing. This takes us back to the observations made above concerning the lack of diligence often demonstrated by Counsel in the prosecution of cases on their briefs.
Now, in this appeal, the main criticisms against the decision of the trial Court are in respect of its exercise of judicial discretion and its evaluation of the exhibits placed before it in the application for interlocutory injunction. The exercise of judicial discretion involves making a choice in the absence of a fixed rule for decision making. The choice is between two or more legally valid solutions, and it should not be arbitrarily or capriciously made. What is aimed at in making that choice is the attainment of what is fair and equitable having regard to the circumstances of the particular case and the law.
But the question is, when a lower court has made a choice guided by its reading of the circumstances of the case before it and with the attainment of fairness and equity in view, has an appellate court any mandate to interfere with that choice? In Sappor Vs. Wigatap Limited [2007-2008] SCGLR 626 (679), cited by Counsel for the Plaintiff, Georgina Wood JSC, as she then was, was of the view that “an appellate court would interfere with the exercise of discretion where the court below applied wrong principles, or the conclusion reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate material”.
Also to be noted is what Lord Wright had stated in Evans Vs. Bartlam  2 All ER 486
that the appellate court is “not entitled simply to say that if the judge had jurisdiction and all the facts before him, the Court of Appeal cannot review his order unless he is shown to have applied a wrong principle”. In the view of Lord Wright, the appellate court must “if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order”.
The position as I have understood it is that the appellate court should not be too eager to accommodate the decision of the trial court for the reason that the trial court acted within its jurisdiction and there is nothing on the face of the record to show that it applied a wrong principle. The circumstances of the particular case may necessitate the appellate court re-examining the facts that were placed before the trial court in order to exercise a discretion the outcome of which may be different from that of the trial court. And it is significant in this respect to note that in the present case, Counsel for the Plaintiff has reminded this Court that an appeal is by way of re-hearing. We also note that for the exercise of this jurisdiction, rule 32 (1) of our Rules, CI. 19, empowers the Court to give any judgment and make any order that ought to have been made by the trial Court.
The decision against which the proper exercise of discretion by the trial Court is being tested in this appeal appears at pages 208 and 209 of the appeal record. It is not a long decision, and I will set it out in full:
“1. The Defendants/Respondents are restrained from interfering with harassing and doing anything that will affect the Plaintiff/applicant’s occupation of the matrimonial home until all matters in dispute are determined with finality. In effect the motion for interlocutory injunction is granted in part as afore-stated.
“2. The full reasons shall be made available.
“3. No cost is awarded.
“4. Case is adjourned to 15th March, 2016”.
In paragraph 1 of the ruling, we have a bare order that provides no factual or legal basis for its making. In paragraph 2, we are told that full reasons “shall be made available”. In the record however, the only proceeding in which the trial Court discussed an application for interlocutory injunction is that of 19th February, 2016, which pre-dates the ruling in issue herein. And that proceeding is the delivery of a ruling in an application said to have been filed on 13th January, 2015. The application in issue in this appeal was filed on 13th October, 2015. Without any explanation therefore, the ruling of 19th February, 2016, cannot be taken as providing the full reasons referred to in paragraph 2 of the ruling of 26th February, 2016. And indeed, there is nothing anywhere in the record that connects the ruling of 19th February, 2016 to the “full reasons” referred to in paragraph 2 of the ruling of 26th February, 2016. In paragraph 4 of the ruling in issue herein, we are told of an adjournment to 15th March, 2016. But, again, there is nothing in the record about a 15th March, 2016 proceeding.
This then is a clear case where this Court cannot say the trial Court exercised a discretion within its jurisdiction and therefore, that, there being nothing on the face of the order to show that in making it the trial Court applied a wrong principle, this Court cannot interfere with it but must necessarily affirm same. In my view, the absence of an explanation as to the factual and legal bases of the order rather gives cause to this Court to examine anew the relevant facts and circumstances of the present case to enable this Court to exercise a discretion which may or may not result in a reversal of the order.
The application in which the order in issue was made is an application for interlocutory injunction. An injunction is a judicial order directed at one or more of the parties in a civil trial to refrain from doing some specified act of acts. Though not commonly made, an injunction, called mandatory injunction, may also order the doing of a specified act or acts. Halsbury’s Laws of England, Fourth Edition Reissue, Volume 24, states the object of an interlocutory injunction as the preservation of “matters pending the trial of matters in dispute” (par. 804). Indeed, under rule 1 (1) of Order 25 of the Rules of the High Court, CI 47, 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”.
The reliefs the Plaintiff is claiming in the Court below have been set out above. Essentially, they concern the validity of a Will said to have been made by the Deceased, the marital status of the Plaintiff in relation to the Deceased, the distribution of the self-acquired properties of the Deceased, and the rendering of accounts in respect thereof. It is in support of the reliefs claimed that the application for interlocutory injunction has been filed.
The reliefs claimed in the application have been set out above. In it, the Plaintiff is seeking orders to restrain dealings with the properties in dispute, to restrain entry by the Defendants into the matrimonial home and their harassment of the Plaintiff thereat, to compel the filing of accounts, and to appoint receivers/managers in respect of specified properties. Looking at the indorsements on the writ of summons and the motion paper together, I understand the Plaintiff to be saying that while the Court takes its time to go into the matters raised in the action, let the subject matter of the action be preserved by making the orders sought.
In the past, for an applicant to succeed in an application for interlocutory injunction, in addition to showing that he has a cause of action in law entitling him to substantive relief, he had to establish a prima facie case. In the case of American Cyanamid Company Vs. Ethicon Limited  1 All ER 504, however, the House of Lords in England rejected the prima facie requirement, and the American Cyanamid position has been firmly established in Ghana since this Court’s decision in Vanderpuye Vs. Nartey  1 GLR
Now, it is considered sufficient for the applicant to show that the claim he is making in the action is not frivolous and vexatious and that, in the light of the papers submitted at the hearing of the application, it has a reasonable prospect of succeeding at the trial, or that there is a serious question to be tried.
What the court now does when faced with an application for interlocutory injunction is first, to consider from the papers before it whether the applicant has demonstrated a sufficient probability of right, and if he has, to make a determination as to the adequacy of damages or other relief, followed by a determination as to what the relative positions of the parties would be if interlocutory relief is not granted. This represents what may be considered the classical approach to deciding whether or not to grant the application.
But, as noted from Halsbury’s (supra), the object of an interlocutory injunction is to preserve the matters in issue in the action, pending the trial of the action. And, indeed, this is what the Plaintiff was seeking to achieve by filing her application – the preservation of the subject matter of her action while the trial Court takes its time to go into the issues raised in the action. The reliefs indorsed on the writ of summons are many, and each appears different from the other. When they are closely examined, however, it will be realised that they all share a common fate. They stand or fall as claims, depending on the validity or otherwise of the Will in issue. It is a declaration of the Will in issue as invalid that will render worthy of consideration the claims not directly touching the Will. There is a high probability of the entire action collapsing if there is a determination that the Will is valid. A determination as to the validity or otherwise of the Will is therefore the key issue in the action and, looking at the pleadings, that determination shows prospects of being straightforward.
Having identified the validity or otherwise of the Will as the key issue in the action, I proceed to consider the reliefs claimed by the Plaintiff in the application for interlocutory injunction which, as noted, is aimed at preserving the subject matter of the action. In the application, the Plaintiff was asking the trial Court to restrain the Defendants from dealing and interfering with the properties in dispute, to restrain the Defendants from entering the matrimonial home to harass, bully, or intimidate the Plaintiff, to compel the Defendants to file accounts of all proceeds from the cocoa farms at the Registry of the High Court, to direct the parties to appoint two representatives each, and with the Registrar of the High Court as Manager/Receiver, to manage, superintend, or run the Menka Hotel, Kumasi together with specified cocoa farms, and to restrain the Defendants from renting out any room to any third party.
It is clear from the reliefs sought in the application that at the time the Plaintiff filed the application, she was contemplating a very long period of trial during which a hotel and cocoa farms would need to be managed, superintended, or run by the Registrar of the High Court together with representatives of the parties. In an appropriate case, it may be helpful for orders for appointment of receivers/managers to be made. But, as we always say, each case has to be determined on its own facts and circumstances.
Order 25, rule 5 (1) of CI. 47 provides that where an application for an injunction or the appointment of a receiver or the making of orders under rules 2, 3, and 4 of the Order is heard before the trial of the cause or matter and it appears to the Court that “the matter in dispute can be better dealt with by an early trial than by considering the whole merits for the purposes of the application”, the Court may consider ordering an early trial. In my view, this sub-rule serves as a guard against the making of an interlocutory order which may rather divert attention from the matter in dispute to the servicing and supervision of the interlocutory order.
As I have observed above, I see as the key issue in the action a determination as to the validity of the Will and I also see the proceedings towards making that determination more straightforward than the proceedings towards making some of the interlocutory orders sought and providing an efficacious machinery for their implementation. In my view, the course the Plaintiff’s application has taken so far is an example of how the pursuit of an interlocutory relief can undermine or even defeat the determination of a cause or matter before the Court. The writ that has commenced this suit was issued on 1st April, 2015, and the application for interlocutory reliefs was filed on 13th October, 2015. A statement of defence, a reply and an application for directions have since the filing of the application been filed. But instead of settling the issues for trial and having them determined, for over three years since the issuance of the writ, all efforts and time have been focused on matters relating to the interlocutory relief sought. Would the action be still pending if upon the filing of the application for directions on 26th November, 2015, directions for trial had been given and the trial had commenced? I do not think so. But meanwhile, what has been happening in respect of those matters on which interlocutory orders are being sought?
There is the case of Davies and Another Vs. Helix Limited, 22nd November, 2007, in which in a preliminary hearing for an interim injunction to prevent patent infringement, the English High Court pointed out that the technology involved was so simple that a very streamlined procedure would be suitable, resulting in a trial within a few weeks. In that circumstance, the court felt that it made no sense to proceed to a full hearing of the application for an interim injunction. The court considered that a speedy trial rather than a fully fought interim injunction complied with the overriding objective of the Civil Procedure rules. In Ghana, this overriding objective is expressed under Order 1, rule 1 (2) of CI. 47 as the interpretation and application of the Rules “so as to achieve speedy, and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”.
I am in agreement with the principle that guided the decision in the Davies case and, having closely considered the relevant material placed before the trial Court in the Plaintiff’s application for interlocutory injunction, I hold that an early trial of the action will serve the cause of justice better than a sustained dispute over interlocutory matters. Considering what it will take to have the action heard and the issues raised therein determined completely, effectively and with finality, I do not think the making of potentially diversionary interlocutory orders will do justice to the parties and other persons mentioned in the Will as beneficiaries. From my reading of the processes filed in the application, the interlocutory measure I consider necessary to be put in place pending the trial of the action is that which affords protection to the Plaintiff from harassment in the matrimonial home. And this appears to be the purpose for the trial Court’s order of 26th February, 2016, which has given rise to this appeal.
The words in which the trial Court made its said order are that, “The Defendants/Respondents are restrained from interfering with, harassing and doing anything that will affect the Plaintiff/applicant’s occupation of the matrimonial home until all matters in dispute are determined with finality”. I affirm the said order of the trial Court with the consequence that the Plaintiff’s appeal has failed. The appeal is hereby dismissed.
The order appealed against having been affirmed and the appeal dismissed, the parties are directed to take steps for directions in the trial before the High Court to be given, and such directions shall include an early trial of the action.