IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
MCKEOWN INVESTMENT COMPANY LTD - (Plaintiff/Appellant)
COMET PROPERTIES LTD - (Defendant/Respondent)
DATE: 25TH JANUARY, 2018
SUIT NO: H1/81/2017
JUDGES: OWUSU J.A. (PRESIDING), AYEBI J.A., SUURBAAREH J.A
LAWYERS: MR. ISAAC F. BOATENG PLAINTIFF/APPELLANT MISS VICTORIA ENCHIL FOR DEFENDANT/RESPONDENT
This is an appeal against the ruling of the High Court, Land Division, Accra, delivered on 14th November, 2016 in which it refused an application for interlocutory injunction filed by the plaintiff/appellant, hereinafter called the appellant.
On 12th July, 2016, the appellant herein, issued out a writ against the defendant/respondent, simply called the respondent hereinafter, claiming the following reliefs:
“i. Declaration of title to all that piece and parcel of land situate, lying and being at Kwabenya in the Greater Accra Region of the Republic of Ghana and containing an approximate area of 173.792 acres or 70.332 hectares which said piece and parcel of land is more delineated and edged with pink colour on Survey Plan No. X3272.
ii. Recovery of possession of the portion of plaintiff’s land that Defendant has trespassed upon.
iii. Damages for trespass.
iv. Perpetual injunction restraining the Defendant, its agents, assigns, servants, workmen or whoever from disturbing the quite enjoyment of plaintiff’s land.
v. Cost including legal and administrative cost.”
The writ was followed the very next day by an application seeking to restrain the respondent and all persons claiming by or through it from developing the land, subject matter of the suit, pending the determination of the action. The application was supported by a twenty six paragraph affidavit to which numerous documents were exhibited, in which the appellant gave the history and account of its acquisition of the disputed land, and went on in paragraph 15 to give a graphic description of same. It then went on to allege that the respondent, who purports to own land at Berekuso in the Akwapem South District of the Eastern Region has recently trespassed onto its land by extending its boundaries onto appellant’s land. The appellant who went on to allege that the respondent had refused to heed the warning to desist from its acts of trespass and was busily undertaking constructional works, had secured the services of the police to intimidate the appellant.
The appellant who exhibited photographs of the constructional works allegedly being undertaken by the respondent, went on to refer to the respondent’s claim about having plotted its land at Koforidua, and contended that this could only have been done fraudulently as the land is at Kwabenya in the Greater Accra and not in the Eastern Region. The appellant went on to give the particulars of fraud in paragraph 24 of its affidavit in support and concluded that unless restrained the respondent would persist in its acts of trespass. The motion paper and the affidavit in support thereof were accompanied by a statement of case containing the facts being relied upon and the principles and legal authorities governing such applications.
The respondent who entered appearance to the writ on 21st July, 2016, filed a statement of defence
and counterclaim on 25th July, 2016 in which it not only denied the appellant’s allegations of trespass against it, but also went on to recount its acquisition of its land in 2002 from various families of Berekuso in the Eastern Region of Ghana and how it has since been in undisturbed possession and occupation. It went on in paragraph 7 of its statement of defence to describe its land and contended in paragraph 9 that the appellant’s purported registration of its land could only be by fraud and went to give the particulars thereof.
In its affidavit in opposition, filed five minutes after its statement of defence and counterclaim, the respondent repeated the averments in its statement of defence and counterclaim and also exhibited documents of its root of title as well as judgments affecting the land and contended that the land being claimed by the appellant was not even contiguous to the Nii Odai Ntow Family land, its southern boundary owner occupied by Paytell. The appellant who contended that it stood to suffer irreparable loss and damages, which cannot be compensated and which the appellant may not be capable or willing to pay, prayed the court to dismiss the application and concluded that there were no serious issues in contention in the case.
In its statement of case filed alongside its affidavit in opposition the respondent referred to the provisions of Order 25 of the High Court (Civil Procedure) Rules, 2004 C.I.47 as well as various legal authorities touching on the factors that guide courts in dealing with applications for interlocutory injunctions and concluded by calling on the court to refuse the application.
The statement of defence and counterclaim and the affidavit in opposition filed by the respondent provoked a supplementary affidavit from the appellant in which it emphasised that the land was in the Greater Accra Region and that the Aduana Abrade family of Berekuso has no land in the area it could grant to the respondent. It also denied that its title certificate was obtained by fraud and contended that the photographs exhibited by the respondent about development on the land was not true as a greater portion of the disputed land was vacant, virgin and undeveloped and went on to exhibit photographs to support its contention about portions of the land being vacant.
The trial court, after considering the affidavit evidence before him, and taking into account the various positions of the parties in their statements of case, refused the application against which the present appeal has been lodged on the following grounds:
“i. The ruling is against the weight of affidavit evidence on record.
ii. The learned trial judge erred when he failed to grant an order of interlocutory injunction against the defendant even though there is evidence on record to show that it is not the entire land in dispute which has been trespassed upon by the defendant.
iii. The learned trial judge erred when he held that because of the high rate of unemployment in the country, defendant should continue with the development of the land in dispute because granting the interlocutory injunction would cause artisans to lose their jobs.
iv. The learned trial judge erred when he refused to grant the order of interlocutory injunction on grounds that defendant has been in possession of the land since 2002 (an allegation denied by the plaintiff) and the Odai Ntow family has never asked defendant to attorn tenant to the said family.
v. Additional grounds of appeal would be filed upon receipt of the record of appeal.”
An interlocutory injunction is a discretionary remedy that the court may grant if it thinks that it is just or convenient so to do. The remedy may be granted unconditionally or upon such terms and conditions as the court shall think just (See Order 25 r. 1(1) of C.I.47). What the courts consider in such applications therefore is the balance of convenience and whether the grant would be just or convenient. The decision to grant or refuse is taken based on the material put before the court by the parties. The court exercises a discretion in such an application but its exercise is circumscribed by the provision of article 296 of the Constitution 1992.
As the trial court in this case refused the application, the appeal is one against the exercise of discretion by the trial court. This being the case, this Court is not at liberty to merely substitute its own discretion for that already exercised by the trial judge. Over the years, the courts have laid down clear principles for the guidance of appellate courts in such matters. The appellate court should not reverse the order merely because confronted with the same facts it would have acted differently. The appellate court is however not precluded from interfering where from the facts and circumstances of the particular case it is clear that there has been a wrong exercise of discretion, in that no weight or sufficient weight was given to relevant matters or that there was a misapprehension of the facts.
In Crentsil v. Crentsil  2 G.L.R. 175, the Supreme Court held that it was a well-established and deep rooted rule of law that an appellate court will not interfere with the exercise of discretion by a court except in exceptional circumstances and went on to quote with approval the following passage from the judgment of Viscount Simmonds L.C. in Blunt v. Blunt  A.C. 517 at 518.
“An appeal against the exercise of the court’s discretion can only succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under misapprehension of fact, in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, but the appeal is not from the discretion of the court to the discretion of the appellate tribunal.”
In Kyenkyenhene v. Adu [2003-2004] 1 S.C.G.L.R. 142 at 153, the court referred to the case of Traboulsi v. Patterson Zachonis  1 G.L.R. 133 at 138 C.A., which held that where the court of first instance is shown to have misapprehended the evidence in the exercise of its discretion, that would be sufficient justification for interference.
In Traboulsi v. Patterson Zachonis (supra), the court also held that an appellant who impugns an order made by a judge in the exercise of his discretion assumes the burden of clearly satisfying the appellate court that the discretion has been exercised on wrong principle or that there has been a miscarriage of justice. The appellant in this case therefore has the onerous duty of pointing out how or in what way the trial judge failed to exercise its discretion properly if it is to get a favourable response from this court.
Even though in an application for interlocutory injunction the court exercises a discretion, this is usually done by considering the material before it, i.e. the pleadings and affidavit evidence. See Owusu v. Owusu Ansah [2007-2008] 2 S.C.G.L.R. 870 at 873.
From the authorities, it can be stated that an appeal against the exercise of discretion by a court will succeed where the following circumstances have been shown:
a) Where the exercise of the discretion was based on wrong or inadequate material;
b) Where the court acted under a misapprehension of fact;
c) Where the court applied wrong principles; or
d) Where the conclusions reached would work manifest hardships.
The Supreme Court in Kyenkyehnhene v. Adu (supra) however reiterated that only arbitrary, capricious and uninformed conclusions will be interfered with. Bearing these principles in mind, I shall now proceed to consider the submission of the parties with a view to determining whether the discretion already exercised by the trial judge should be interfered with or not.
Arguing the first ground of appeal about the ruling being against the weight of the evidence, learned counsel for the appellant submitted that if the trial judge had properly considered the issues of hardship, the convenience or inconvenience of a grant or refusal, and whether damages would afford adequate compensation, the application should have been granted as large tracks of the disputed land were shown to be vacant and undeveloped. It was also submitted that the trial judge seemed to have accepted, without any evidence, the respondent’s claim of occupation since 2002, despite its denial.
After recounting facts about its acquisition and the registration of its interest, it was submitted that since it initiated the action following the extension of the respondent’s boundary onto its land, all what it had to do was show that it has a legal or equitable interest which needed protection in the
interim, relying on the cases of 18th July Ltd. v. Yehans International Ltd.  1 S.C.G.L.R. 167 and Ekwam v. Pianin (No.1) [1996-97] S.C.G.L.R. 117.
It was also submitted on behalf of the appellant that whilst by attaching to its motion paper the land certificate and lease agreement with Nii Odai Ntow family, it had demonstrated that its case was not frivolous as these satisfy the provisions of section 1(1) of the Conveyancing Decree 1973 (N.R.C.D. about its interest, the respondent only exhibited a planning scheme without a site plan, without which the respondent’s land cannot be identified.
Learned counsel for the appellant, in dealing with the second ground of appeal, submitted that it was able to demonstrate in its supplementary affidavit that, contrary to what the respondent tried to show, large portions of the disputed land were vacant and undeveloped and as such no hardships would be occasioned to anyone upon a grant. The refusal, in the view of learned counsel, would entitle the respondent to go onto the undeveloped land and which could result in bloodshed. Referring to the case of Welford Quarcoo v. A.G. and Another  1 S.C.G.L.R. 259 on what an applicant must show to earn a favourable response in such an application, it was submitted that as large portions of the land in contention were shown to be bushy and vacant, the balance of convenience favoured a grant.
On the ground of appeal about the refusal based on high unemployment rate to avoid artisans losing their jobs, learned counsel for the appellant was blunt in saying that this was bad law that should not be allowed on the law books. In his view, once an applicant for interlocutory injunction has demonstrated the existence of a legal or equitable right which needs protection, it would be absurd to refuse the application on such a ground. In conclusion, the appellant reiterated the point about the trial judge’s belief of the respondent’s occupation since 2002, despite its denial and in the absence of any corroborative evidence.
In reaction to these submissions, learned counsel for the respondent began by setting out the events leading to the application, the ruling and the grounds of appeal against same. Learned counsel also referred to statutory provisions and decided cases on the burden on parties in civil matters, and submitted that as far as this appeal is concerned the provisions of section 5 of the Evidence Act 1975 (N.R.C.D. 323) was central and went on to quote it in extenso.
After an evaluation of the respective cases of the parties as brought out by their pleadings and affidavit evidence, it was submitted that the respondent had demonstrated that the appellant’s claim was caught by laches and acquiescence as well as the Limitation Act, N.R.C.D. 54. It was also submitted that as the appellant’s case was frivolous and vexations and also smacked of fraud and misrepresentation, the balance of convenience favoured a refusal and that the respondent would have suffered irreparable loss of its investment if the court had held otherwise.
In reaction to the submission about the refusal despite evidence that not all the disputed land had been trespassed upon, learned counsel for the respondent submitted that, the appellant, who made the allegation in its supplementary affidavit, did not identify the land in respect of which the prayer was sought. It was also submitted that the respondent not only denied the trespass, but had shown that it has been in occupation since 2002 and undertaken development and that what appellant considered vacant land was indeed land granted third parties who were not before the court.
Whilst learned counsel for the respondent made no attempt to defend the refusal based on the high unemployment rate, he pointed out that it was not the only reason for the refusal and that the trial court considered the balance of convenience based on the evidence put forward by the parties.
In reaction to the submission about the trial judge’s acceptance of it claim of prior acquisition and occupation since 2002, despite denial of same, it was submitted on behalf of the respondent that in land litigation, the length of occupation by the parties cannot be overlooked. It was also submitted that as the appellant admitted that the respondent had land but had extended its boundary onto the appellant’s land, it would be absurd for the appellant, whose acquisition was in 2014, to determine the boundary of the respondent who acquired its land earlier in time.
In conclusion, it was submitted on behalf of the respondent that since section 5 of the Evidence Act 1975 (N.R.C.D. 323) imposes a duty on an appellant to demonstrate that a ruling/judgment is not only erroneous but will also result in a substantial miscarriage of justice, that as the appellant failed to demonstrate this and also made no attempt to impugn the manner the trial judge exercised his discretion, the ruling should not be disturbed being one based on the respective cases of the parties.
As the case of Traboulsi v. Patterson Zachonis (supra) show, an appellant who impugns the exercise of discretion by a trial court must clearly demonstrate it to the appellate court before it can interfere. This may be done by showing that the trial court either acted on wrong principle, overlooked or failed to consider material matters or took irrelevant matters into account. The appellant may also show that the court was bias or capricious in the manner it exercised its discretion or that it did not observe the rules of natural justice.
The trial judge who was faced with conflicting claims or demands had to exercise a discretion one way or the other. This discretion is however not exercised in a vacuum or by merely looking at the faces of the parties or those of their representatives. It is exercised based on the material put before the court by the parties from their pleadings and affidavit evidence. In exercising the discretion, the court also considers the balance of convenience that will result in a grant or refusal and whether damages would afford adequate compensation.
In this case, as the trial judge exercised a discretion, this court must caution itself that this is not a call to it to substitute its discretion for that exercised by the trial judge and that it should not interfere even if upon the available facts it would have acted differently in exercising the original discretion.
Bearing in mind the principles which guide appellate courts in such appeals, I shall now proceed to consider the grounds of appeal beginning with the one based on the high unemployment rate. As indicated, learned counsel for the appellant did not mince words in calling it a bad law that should not be allowed to see the light of day. Learned counsel for the respondent did not attempt to defend it but only opined that it was not the only reason for the refusal. The trial judge made an attempt to expand the frontiers or principles on applications for interlocutory injunctions, but, as submitted by learned counsel for the appellant, the principle enunciated is bad law and this court is in perfect agreement that it should not be allowed in the law books.
Grounds one, two and four of the grounds of appeal though couched in different ways, all seem to have the same effect that the trial judge, in refusing the application, failed to consider the evidence or facts properly. Whilst ground one is the omnibus ground about the judgment/ruling being against the weight of the evidence, ground two complains about failure to consider the fact that not all the disputed land had been trespassed upon. Ground four on the other hand is about the trial judge’s acceptance of the respondent’s story despite denial by the appellant without corroborative evidence.
It is true that the appellant, in its supplementary affidavit, denied the respondent’s contention that following the approval of a development scheme the entire land has been developed and went on to depose to the fact that large portions were undeveloped and exhibited exhibit Cw8 series in support. As however submitted on behalf of the respondent, the appellant failed to identify the land in respect of which it was seeking the injunction. The respondent also denied that there were any vacant lands as electricity and water had been extended to these areas in accordance with the development scheme and further that those portions have been granted to third parties.
As the authorities show, the trial judge had to consider the facts put before it by the parties especially the acquisition of their respective lands, the time of the acquisitions and the activities being undertaken on their lands. The trial judge in this case did just that and even went on to make comments about the legal effect of their documents of title. He also considered the balance of convenience and inconvenience and came to the conclusion that having regard to the circumstances of the case, the respondent stood to suffer greater hardship and then refused the application.
In dealing with this appeal, this court must consider whether the finding of the trial court, which is being assailed, is supported by the evidence on record, and it is only where the findings are not supported by the evidence on record that this court can interfere. See Amoah v. Lokko and Alfred Quartey (subst.) Gloria Quartey & Others  1 S.C.G.L.R. 505 at holding (1) in the headnote.
In an application for interlocutory injunction a lot of factors are taken into account. These include the balance of convenience; the hardships that would be occasioned upon a grant or refusal and whether damages would afford adequate compensation. The court takes a decision on these matters based on the material put before it. In Anaman v. Osei Tutu  1 G.L.R. 111 it was held that for an applicant to succeed in such an application, he must put up a strong case to convince the court that there was a likelihood of his legal rights being violated by the real, apprehended or threatened acts of the respondent or his agents. It also held that an interim injunction being an equitable remedy would not be granted if it would cause unnecessary hardship to the respondent.
In this case, the trial judge, in his ruling, considered the claims by the parties and at page 3 of the ruling on page 49 of the record of appeal, the court referred to the appellant’s root of title through Nii Ngleshie Addy family and the cancellation of the family’s certificate in Suit No. BL.746/2005 and concluded that it was on that basis that the appellant went to the Odai Ntow family to reacquire land it has already been issued with a land certificate. It earlier referred to the fact that this reacquisition was by a lease dated 19th February, 2014.
The trial judge also considered the claim of the respondent and at page 2 of the ruling, appearing at page 148 of the record of appeal remarked that even though its lease agreement was executed on 15th May, 2002 and processed, there was no indication that it had been registered and went on to refer to Asare v. Brobbey  2 G.L.R. 331 on the effect of an unregistered instrument. It cannot therefore be said that the trial court accepted the respondent’s claim of prior acquisition and occupation without any evidence despite denial of same. The respondent exhibited its indenture as well as its development scheme.
It is true that the appellant in its supplementary affidavit tried to show that portions of the disputed land were vacant and undeveloped, no attempt was however made to identify these portions so as to enable the court make an order in respect of those portions. This is however an admission that the respondent has a development scheme and has undertaken development on portions of its land. Without identifying the vacant and undeveloped land, there was no way the trial court could make an order in its favour.
In such an application, the court considers the relative merits of the cases put forward by the parties as well as the activities being undertaken by them. In this case the trial court in its ruling at page 3 on page 150 of the record of appeal took these factors into account and concluded that the respondent has shown that it stood to suffer more hardships. It also considered what the parties said they had done on their respective lands in his decision on who stood to suffer more hardships. These findings are amply borne out by the evidence and as such this court cannot interfere.
As also submitted on behalf of the respondent, the appellant made no attempt to show that the trial judge did not exercise his discretion properly so as to warrant an interference. In sum therefore, the appeal is dismissed as same is without merit. Cost of Gh¢2,000.00 is awarded against the appellant and in favour of the respondent.