IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
CEPHAS AHIAKU - (DEFENDANT/APPELLANT)
SHAMIMA OPOKU AMANKWAA - (PLAINTIFF/RESPONDENT)
DATE: 17TH FEBRUARY, 2017
CIVIL APPEAL NO: H1/21/2015
JUDGES: E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
LAWYERS: MR. AUGUSTINE OBUOR FOR DEFENDANT/APPELLANT MR. ASANTE-KROBEA WITH HIM KYEI AND J. B. DANQUAH FOR THE PLAINTIFF/RESPONDENT
On 7th May 2015, the plaintiff/respondent sued the defendant/appellant for (a) declaration of title to plot No. 19 Block X, Ayeduase, Kumasi, (b) an order for recovery of possession, damages for trespass and (d) an order of injunction restraining the defendant/appellant or his agent from in any manner interfering with her ownership of the subject plot.
Then on 8th May 2015, the plaintiff filed a motion for an interlocutory injunction praying the court to restrain the defendant, his agents, workmen and assigns from in any manner interfering with her ownership of plot No. 19 Block X, Ayeduase and particularly from carrying out any constructional activity on same pending the final determination of the suit. The motion was in accordance with the law, accompanied by an affidavit in support and a statement of case.
Defendant upon service of the writ of summons and statement of claim entered an appearance unconditionally. He also opposed the motion and filed a statement of defence and a counter-claim.
On 10th July 2015, the High Court in its ruling on the plaintiff’s motion for an interlocutory injunction, restrained both parties from entering upon, building on or in any way dealing with the disputed land until the final determination of the suit. The evidence on record shows that the defendant is putting up a building on the land. This appeal is against the said ruling of the High Court by the defendant. His prayer is that, this court should set aside the ruling restraining him more or less from continuing with the building.
The plaintiff is an infant and her next friend is her biological father. The basis of her claim is that in 2002, her next friend, the father, acquired the plot for her from the Ayeduase stool through the occupant Nana Opoku Agyemang Bawuah Nsafo III. Upon the acquisition of the plot, an allocation note and a site plan were issued in her name. In response to an inquiry by the Liaison Officer of the Asantehene’s Lands Secretariat to the Lands Commission that the plot was free from any encumbrance, the Asantehene Otumfour endorsed the allocation to her in 2005.
In addition to the above, she has got a lease engrossed in her favour awaiting execution by the Ayeduase stool and the Asantehene. A search from the Lands Commission confirmed the engrossment of lease in her favour. In support of the motion, the plaintiff attached the allocation paper as Exhibit A, the site plan as Exhibit B, the endorsement of the Asantehene as Exhibit C and the search result as Exhibit D. That apart, the plaintiff stated that she had procured a cadastral plan of the plot. She added that her next friend has been paying all rents and charges in respect of the plot.
It is plaintiff’s case that when she visited the plot recently (that was in 2015) with her next friend, she found that the land has been trespassed upon as constructional activity was going on. According to the plaintiff, the trespasser and or his agents were unknown to them and all efforts to find and stop them from their unlawful activity proved futile. The motion prays that unless the trespasser(s) is/are restrained, the trespasser(s) will not desist from his/their unlawful activity.
In opposing the application, the defendant asserted that if the application is granted, perpetual hardship will be caused to him and his sister, which no amount of compensation will be an adequate remedy. But the plaintiff had nothing to lose in the circumstance. The defendant gave his reasons for this position he asserted as follows:
He admitted he is developing the land which the plaintiff is claiming. The building he is putting up has reached lintel level. According to him, his late father Charles K. Ahiaku was the Regional Engineer of Electricity Company of Ghana for Ashanti Region from 1982 to 1995. In that capacity, he helped the chiefs and elders to access electricity to their area. Upon completion of the project, the chief Nana Opoku Agyemang Bawua Nsafo III who is still on the stool and his elders rewarded his late father with plot No. 19 Block X by a letter, allocation paper and a site plan.
He continued that his late father put the plot in hands of caretaker, one Job up to 2006 who was replaced by one Anaaba who was still farming on the land. In 2008, the chief gave him a new site plan because as a result of several transfers, his late father’s documents were misplaced. He then caused the chief and his elder called Akowuah to mould 3000 pieces of blocks on the land for him. He attached in support of his averments in the affidavit in opposition, Exhibit CA1 series being pictures of the building and blocks on the land.
It is the defendant’s case that before he started the building project in December 2015, he informed the chief. He explained that he and his sister were about to enroll for various courses of study at Kwame Nkrumah University of Science and Technology. And in order to save cost on hostel accommodation for the duration of their programmes, they decided to put the three bedroom house. And as at the time plaintiff brought the action against him, they have spent GH¢43,000.00 on the building.
He concluded that plaintiff had no legal interest in the disputed plot to be protected by the court as compared with their equitable interest. On the grounds of hardship which he and his sister will suffer if the application is granted and inadequacy of any monetary compensation should his counterclaim be upheld, he prayed that the motion for an interlocutory injunction be dismissed.
In his ruling the trial judge observed:
“Both sides to this suit claim a grant of the plot in dispute from the Ayeduase stool with Nana Opoku Agyemang Bawuah Nsafo III as occupant. Their grantor then is one and the same. The issues to be resolved will then not be complicated. We should go for early trial. So pleadings should be brought to a close for early trial to be done”.
As regards the prayer of the plaintiff against the defendant, the court restrained both parties as follows:
“Meanwhile, both sides whether by themselves, their agents, assigns workmen, servants etc. are hereby restrained from entering upon, building on or in any way dealing with the plot in dispute until the final determination of the main suit.
Case docket to go back to E-Distribution Centre”.
Dissatisfied with the ruling, the defendant appealed against same on the grounds that:
(a) The ruling is against the weight of documentary evidence adduced before the court.
(b) The ruling is wrong in law.
(c) The ruling is a wrong exercise of discretion by the court below.
In ground (a) of the appeal, the defendant/appellant has alleged that the ruling is against the weight of documentary evidence adduced before the court. In the submission of counsel, he referred to the case of Addae Aikins vrs Daniel Dakwa  58 GMJ 187 in which this court stated that in reality, what that ground of complaint meant is that the evidence given at the trial inclines in favour of the appellant and yet the court found in favour of the respondent. In Djin vrs Musa Baako [2007/08] SCGLR 686 at 687, the Supreme Court held that the onus is on the appellant whose complaint is that the judgment is against the weight of evidence to clearly and properly demonstrate to the appellate court the lapses in the judgment appealed against. In other words, the appellant must show from the evidence on record, where and how the trial court went wrong in its judgment.
In this ground of appeal, the defendant/appellant limited his complaint to only the documentary evidence placed before the court. Why the complaint was limited to only the documentary evidence is not explained. Yet there are other pieces of evidence on the record particularly the pleadings, the affidavits for and against the motion and the statements of case of both parties, all of which the court was duty bound to take into consideration in determining the motion.
According to the submission of counsel for the defendant/appellant, Exhibit CA series show amongst others the state of the plot from 1994 to 2014, the 3000 pieces of blocks which had gathered moss over the years and the different levels of the house he is putting up on the land. In law, counsel submitted, the defendant/appellant has shown that he is a complete user of the land by physically possessing it since it was granted to his late father. The submission asserted on the authority of Deliman Oil Company Ltd. vrs HFC Bank Ltd.  99 GMJ 1 @ 24 and section 48 of the Evidence Act, 1975 (NRCD 323) that since the defendant/appellant is in effective possession of the land, he is presumed to be owner of it. This is because possession in law is possession in fact.
On the part of the plaintiff/respondent, she exhibited an allocation paper, a site plan, a letter from the Lands Commission and a search result. These documents according to the defendant/appellant do not show that the plaintiff/respondent is in possession of the land. The lease engrossed in favour of the plaintiff/respondent, yet to be executed, does not amount to a lease in law. So compared to the defendant/appellant’s possession of the plot, the plaintiff/respondent has failed to establish a prima facie case to be entitled to the grant of an order of interlocutory injunction. In other words, based on Exhibit CA series, the court should not have restrained the defendant/appellant from continuing with his building project.
Settled principles guide the courts in determining whether to grant or refuse an application for interlocutory injunction. Before the English case of American Cyanamid Co. vrs Ethicon Ltd  AC 396; 1 All ER 504 was decided, an applicant for an order of interlocutory injunction must establish a prima facie case in support of the right claimed – see the cases Lardan vrs Attorney-General [No.1] (1957) 3 WALR 55 and Punjabi Bros vrs
Namih  3 WALR 381 and Others.
The American Cyanamid case (supra) introduced the factors which must be considered in determining the application in the order as set down as follows:
(a) It must be disclosed from the affidavits that there is a serious question to be tried.
(b) It must be considered whether damages would be adequate compensation to the respondent.
(c) Balance of convenience when the application is granted or refused.
Thus at page 510, Lord Diplock observed that:
“The use of such expressions as “a probability” ‘a prima facie case’, or ‘a strong prima facie case’ in the context of the exercise of a discretionary power to grant an interlocutory injunction leads to confusion as to the object sought to be achieved by this form of temporary relief. The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried”.
21. The case of Vanderpuye vrs Nartey  1 GLR 428 was decided following “the serious question to be tried” test enunciated in the American Cyanamid case (supra). But that it is not to say that courts in Ghana and even England have completely done away with the prima facie test. In Poutney vrs Doegah [1987/88] 1 GLR 111 and John Bilson vrs Rawlings [1993/94] 2 GLR 413, the prima facie test was applied. But in Owusu vrs Owusu-Ansah [2007/08] SCGLR 870, although the case of Vanderpuye vrs Nartey (supra) was cited, the court shied away from referring to any of the tests and held that:
“The fundamental rule therefore is that the trial court should consider whether the applicant has a legal right at law or in equity, which the court ought to protect by granting an interim injunction. This could be determined by considering the pleadings and affidavit evidence before the court”.
22. In the American Cyanamid case (supra), Lord Diplock described the affidavit evidence as incomplete and untested evidence. As such, it is premature to determine the merits of the case on such incomplete and untested evidence. It is the same practice in our courts as demonstrated in Vanderpuye vrs Nartey case (supra) and In Re Yendi Skin Affairs; Yakubu II vrs Abdulai [1984/86] 2 GLR 226 where despite arguments on the merits of the appeal, the courts refuse to comment on it.
23. In the instant case, the counsel for the defendant/appellant has argued this ground of the appeal based on the fact of possession as if it has been proved on the preponderance of probabilities. Possession per se is not the determining factor in the grant or refusal of an application for interlocutory injunction. As I have demonstrated above, the establishment of a prima facie case which translates into the existence of a serious question to be tried between the parties is the determinant factor.
24. Indeed, the submissions of counsel suggest that because of the defendant/appellant’s acts of possession of the land, he is indeed owner of the land and should not be restrained. But as stipulated in section 48 of the Evidence Act, possession is a presumption of ownership. It is rebuttable at the trial by the adduction of evidence. In transactions concerning land, especially at customary law, possession or occupation could be consistent with either ownership, licence or pledge as well as with trespass. Therefore the mere fact that the defendant/appellant had a long possession of the land as alleged is not conclusive evidence of his title as owner of the land – see Kyiafi vrs Wono  2 GLR 98 and Campbell vrs Mensah  2 GLR 98.
25. Following on that premise, the Supreme Court made it clear in Odonkor vrs Amartei [1987/88] 1 GLR 528 that:
“a person in possession can be restrained from using the land contrary to agreement, or from, say committing waste or from doing any act which may prejudice the outcome of an action pending against him”.
26. In the circumstances, I do not find that the ruling of the trial judge is against the weight of defendant/appellant’s documentary evidence on possession. In the case of the plaintiff/respondent, she has in her name an allocation paper and an endorsement in her favour, documents which directly relate to the grant of the land to her. In Boateng (No.2) vrs Manu (No.2) [2007-08] 2 SCGLR 1117, the view is held that although an allocation paper by itself does not represent acquisition, it is an initial process to evidence that the land has been acquired. In equity, an agreement for a lease is as good as a valid lease. On that basis, it would appear that the plaintiff/respondent has made out a strong prima facie case against the defendant/appellant. And yet he was also restrained by the ruling. There is therefore no merit in ground one of the appeal. It is dismissed.
27. In ground (b) of the appeal, the defendant/appellant simply stated that the ruling is wrong in law. Rule 8 of the Court of Appeal Rules, 1997 (C.I. 19) as amended has the heading “Notice and grounds of Appeal”. And in subrule (4) of the rule, it is required that “where the grounds of appeal allege misdirection or error in law, particulars of misdirection or error shall be clearly stated”.
28. In his bid to comply with the rule that particulars of misdirection or error in law must be stated, counsel stated the particulars of error in the written submission. However, counsel for the plaintiff/respondent submitted that notwithstanding the attempt by appellant’s counsel to provide some particulars of error in the written submission, ground (b) of the appeal is incompetent and should be struck out without giving any consideration to anything said under it.
29. He relied on the case of Dahabieh vrs S. A. Turqui & Bros. [2001/02] SCGLR 498 in which the Supreme Court held that a ground of appeal alleging error of law without particulars of error is incompetent and inadmissible. That indeed is the position of the law and the incompetency of ground (b) of the appeal is not contestable. Rule 8 of C.I. 19 consist of nine (9) subrules, all directing what should be contained in the notice of appeal and how the grounds of appeal should be couched or formulated. Rule 8(4) is not satisfied by arguing the particulars of error in the written submission as counsel for defendant/appellant has done.
30. In Zabrama vrs Segbedzi  2 GLR 221 cited with approval in the Dahabieh case (supra) Kpegah JA (as he then was) explained the rule and its rationale as follows:
“I did not think it meets the requirements of these rules to simply allege “misdirection” on the part of the trial judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. To state in a notice of appeal that “the trial judge misdirected himself and gave an erroneous decision” without specifying how he misdirected himself is against the rule and renders such a ground of appeal inadmissible. The rational is that a person who is brought to an appellate forum to maintain or defend a verdict or decision which he has got in his favour shall understand on what ground it is impugned”.
31. Proceeding on the same rationale, this court speaking through Tanko Amadu JA in its judgment dated 29th November 2013, in Civil Appeal No.H1/65/13 in Enyidado Company Ltd. vrs Odeefuo Owusu Amoah Nye held as follows:
“I am aware that in the case of Addae Aikins vrs Daniel Dakwa  58 GMJ 187 at 2000, the court held that particulars of error, like pleadings were to give notice of the appellant’s grounds of dissatisfaction of the trial judge’s conclusion on the particular issue and define the scope of that dissatisfaction and then give directions on a logical manner in the arguments proferred in the written submission. But we have held emphatically that, once particulars of error alleged are not provided, the ground is unarguable notwithstanding that the same has been argued in the written submission. To that extent ground (iii) of the notice of appeal is incompetent and it is accordingly struck out”.
For the same reason, we hold that ground (b) as stated in the notice of appeal is incompetent and so inadmissible and for that matter unarguable. It is struck out.
32. In ground (c), the defendant/appellant alleged that the ruling amounts to a wrong exercise of discretion by the court. It is trite learning that, in all cases, an order of injunction is only granted when it is just or convenient to do so. Thus Order 25 rule
1(1) of C.I. 47 provides:
“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, and the order may be made either unconditionally or upon such terms and conditions as the court considers just”.
33. As provided by the rule, the court grants or refuses to grant the order in the exercise of its discretion. Although the rule says the court should grant the application if it appears to it just or convenient, the application of the rule by the courts shows that before the application is granted it must not only appear to the court just but also convenient. In other words, the grant of the application in the particular circumstances must be seen to be fair – see Ekwam vrs Pianim (No.1) [1996/97] SCGLR 117.
34. There is always awareness on the part of the court that in all such applications there are two competing interests at stake. Therefore in exercising its discretion, the court is guided by broad dictates of justice, common sense and fair play as directed in article 296 of the 1992 Constitution. Therefore in the exercise of its discretion to grant or not to grant, the court is enjoined to take into consideration matters such as the facts of the case, the relevant rules and the principles which must be applied. In so doing the court must necessarily give due regard to the pleadings of the parties and then go on to ascertain whether the affidavit of a party corresponds with the pleading filed by that party.
35. In the instant case, the trial court in its ruling ordered an early trial of the suit and went on to restrain both parties from dealing with the land pending the determination of the suit. Both orders are in accordance with rules 1(1) and 5(1) of Order 25 of C.I. 47. The purpose of those orders in my view is to preserve the status quo ante and to hold the balance evenly between the parties.
36. In the In Re Yendi Skin Affairs case (supra), Adade JSC justified the grant of an interlocutory injunction in the following words in holding (1) thus:
“the courts had consistently operated on the principle that where two parties were litigating, every care must be taken to ensure that the party who eventually won did not find his judgment useless in his hands. Hence, at first instance, there were rules for interim preservation of the subject of litigation and for injunction to prevent waste. At the same time the courts have tried to hold the balance evenly between the parties so that one did not take undue advantage of the other during the course of the litigation. Those principles have been applied, subject to the balance of the convenience in particular situation and to the hardship which the making or the refusal of an order might have on one or the other of the parties …”.
37. As it is evident on the record because the defendant/appellant is building on the land, he is emboldened to launch this appeal against the ruling of the trial court. Although it was the plaintiff/respondent who prayed the court to restrain the defendant/appellant from continuing with the construction of the building on the land pending the determination of the suit, the court in the exercise of its discretion restrained both parties. This appeal and in particular ground (c) of the appeal challenges the trial court’s exercise of discretion in restraining the defendant/appellant.
38. In order to succeed on this ground (c) of the appeal, the defendant/appellant must prove or demonstrate to the satisfaction of this court any or all of the following lapses in the ruling:
(a) That there was evidence on record which the trial judge failed to act on judicially.
(b) That the trial judge applied wrong principles or otherwise reached wrong conclusions which have the effect of working manifest injustice on him.
(c) That the trial judge exercised his discretion on wrong or inadequate principles.
(d) That there was on the record evidence of arbitrariness, capriciousness and uninformed conclusions.
(e)That on the evidence, the trial judge acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into consideration.
See Sappor vrs Wigatap Ltd. [2007/08] SCGLR 676.
39. I have perused the submissions of counsel for appellant on this ground of appeal. He accused the trial judge of omitting to take into account the fact of his possession and development of the land in arriving at the ruling he rendered. He alleged in his favour the fact his possession of the land without any challenge since 1992; that he identified the chief of Ayeduase as his grantor without a challenge but the plaintiff/respondent could not so show and had no lease on the land either; that he had spent GH¢43,000.00 on the building on the land and by the ruling he will suffer hardship if he had to find money to rent a respectable accommodation and lastly, if the plaintiff/respondent says she acquired the land in 2002, then this action launched in 2015 is statute-barred.
40. I have no need to analyse these lapses alleged against the trial judge because it is a pack of factual inaccuracies. As I stated, in determining the application the court took into consideration the pleadings as well as the affidavits of the parties. Even if the trial court failed to do so (which is not the case despite the short ruling), the court as a function of rehearing, will do so.
41. These alleged lapses labelled against the ruling of the trial court by the defendant/appellant are oblivious of and contrary to his own pleadings and the plaintiff/respondent’s Reply to his defence and counter-claim. In paragraph 12 of the statement of defence, the defendant pleaded that a search his sister conducted on the advise of the chief (his grantor) showed that the land was registered in the name of the plaintiff/respondent but the chief said he did not know the plaintiff/respondent because he did not sell any plot to her (paragraph 14). Then in paragraph 16, defendant/appellant pleaded that at a meeting between the interested parties, it showed that it was a case of mistaken identity on the part of the plaintiff/respondent and his grantor.
42. In Reply, the plaintiff/respondent pleaded in paragraph 6 that she first learnt of plaintiff’s father’s interest in the land at the Otumfour’s Land Secretariat in 2002. And defendant/appellant’s father surrendered his interest through Otumfour’s Land Secretariat (paragraph 2) and the Secretariat accordingly informed the defendant/appellant (paragraph 15). With the surrender of the land by defendant’s father, she was given a fresh allocation paper and a site plan (paragraph 4). She concluded that the defendant/appellant’s father’s papers on the land were not lost or misplaced as he alleged but were surrendered.
43. It is clear to me from the pleadings that as far back as 2002, the defendant/appellant knew about the challenge to his father’s claim to the land by the plaintiff/respondent. Further, from the result of the search conducted by the defendant/appellant’s sister, he got to know that the plaintiff/respondent’s registration had encumbered the land. Inspite of all these knowledge, rather than take appropriate steps in the proper forum to secure his interest, the defendant/appellant decided to build on the plot and then claim unchallenged possession.
44. The defendant/appellant’s own pleading as shown above does not show so. The remedy of injunction is an equitable relief. In the light of this pleading, the defendant/appellant cannot be said to have acted in good faith and with honesty. By putting up a building on the land, the defendant/appellant only intended to overreach the interest the plaintiff/respondents in the land. To arrive at the truth, all these assertions including whether or not the action is statute-barred must be investigated hence the need for the restraint order. The defendant/appellant must thank his stars that the trial judge restrained the plaintiff/respondent as well from dealing with the land until the suit is determined. I do not find from the record, any basis to disturb the trial judge’s exercise of discretion in the ruling he rendered.
Ground (c) of the appeal is not made out. It is dismissed. We affirm the ruling of the trial judge dated 10th July 2015 and dismiss the appeal as a whole.