IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
JULIANA BUCMAN -(Plaintiff/Respondent)
RUTH APPIAH - (Defendant/Appellant)
DATE: 27TH APRIL, 2017
CIVIL APPEAL NO: H1/34/2017
JUDGES: OWUSU J.A. (PRESIDING), WELBOURNE J.A., SOWAH J.A.
NATHAN YARNEY FOR APPELLANT
BABA AVIO FOR RESPONDENT
The plaintiff/applicant/respondent [hereinafter referred to as the plaintiff] filed her writ of summons and statement of claim on 17th April 2015 seeking declaration of title to a parcel of land, recovery of possession, damages for trespass and perpetual injunction. She followed this on 28th April 2015 with a Motion for interlocutory injunction. The defendant/respondent/appellant [hereinafter the defendant] filed her affidavit in opposition on 13th July 2015 whereupon the plaintiff filed a supplementary affidavit on 17th July 2015.
In the Ruling delivered on 25th August 2015, plaintiff's application was denied. The trial judge noted that it was “significant that the plaintiff did not file any supplementary affidavit in reaction to the affidavit in opposition ……” [See page 79 of the record of appeal].
The plaintiff filed a Motion for Review of the Ruling under Order 42 of C.I. 47 on 7th September 2015. She pointed out that her supplementary affidavit in support was inadvertently not placed on the courts file.
It is obvious that the trial judge found this fact to be correct; that her attention had not been drawn to the supplementary affidavit. She thus reviewed her Ruling, taking into consideration the averments in the supplementary affidavit and in a Ruling dated 6th October 2015, granted the application for interlocutory injunction.
Dissatisfied with the turn of events, the defendant filed a Notice of Appeal on 21st October 2015 with the following grounds of appeal:
i. The ruling is against the weight of evidence;
ii. The Judge erred in relying on the ruling of the High Court, Accra (Coram Mills Graves, J.) dated 11th February, 2014 to review her earlier ruling dated 25th August, 2015;
iii. The Judge erred in relying on a contract denied by the defendant/respondent in her statement of
defence and accordingly put in issue, to review her earlier ruling dated 25th August, 2015;
iv. The Judge erred in finding as a fact that the defendant/respondent had failed to honour her part of a bargain she has denied in her statement of defence;
v. The Judge erred in finding that the plaintiff/applicant appears to have a better claim to the land in dispute, while considering an application for interlocutory injunction; and
vi. Further grounds to be filed upon receipt of the record of appeal.
The grounds of appeal numbered 1, 3, 4 and 5 of the appeal were argued together by defendant’s counsel. He then argued the 2nd ground of appeal. I will reverse the order and first deal with the second ground of appeal.
Before doing so however, it is pertinent to note that no issue has been joined as to whether the trial court was right to review her Ruling on the basis of having overlooked plaintiff's supplementary affidavit which contested some averments made by the defendant in her affidavit in opposition to the application for interlocutory injunction.. There is no doubt that the trial court had the right to exercise its Review jurisdiction in these circumstances on account of the inadvertent error apparent on the face of the record.
Arguing the second ground of appeal, defendant’s counsel contends that the trial Judge erred in relying on a ruling by Mills-Graves, J dated 11th February, 2014 which related to the headship of the Opah family, the purported grantors of both parties. It is submitted that the defendant was not a party to that suit and so having had no opportunity to be heard, it was premature for the trial judge to determine that by that Ruling the plaintiff had shown a better title and so was entitled to the grant of injunction. Adjetey Agbosu &ors vs. Kotey & ors [2003-2004] 1 SCGLR 420 cited.
In the Ruling on appeal, the trial judge attempted to determine from the pleadings and the affidavits filed in support and in opposition to the application, which of the parties had a better title to the disputed land. Of course that in itself was not wrong since the fundamental principle in applications for interim injunction is for the court to ascertain whether the applicant has a legal right at law or equity which the court ought to protect by maintaining the status quo until the final determination of the action on the merits. In Food Specialities Ghana Ltd. v. Technicas De Multiconstruction S.A. [1987-88] 1 GLR 25, this court held that one of the factors which a court has to take into consideration in an application for an interim order to preserve the status quo is whether or not the plaintiffs' claim, on the facts, was maintainable. The court has absolute discretion either to grant or refuse an interim injunction, and it would not grant the remedy where it was of the opinion that the action was frivolous or vexatious.
In performing its duty of considering the material before it to guide it to either grant or refuse the application however, courts are cautioned to refrain from expressing an opinion on the merits of the case before the hearing. See: Owusu vs. Owusu Ansah & Anor [2007-08] 2 SCGLR 870
Therefore, in the sense that the learned judge appeared to be trying to decide the merits of some of the triable issues such as whether there was a binding agreement between the parties, and whether there was proof of a binding customary arbitration, the criticism levelled in ground 2 of the appeal has some merit. However, an error must be shown to have resulted in a substantial miscarriage of justice before a judgment will be set aside, altered or reversed on appeal or review. See: Agyei Osae vs Adjeifio [2007-08] 2 SCGLR 499, Achoro & anor vs Akanfela & anor [1996-97] SCGLR 209.
In the circumstance of this case, the trial judge may have expressed her opinion on the merits of the case, but we do not consider that the error has occasioned a substantial miscarriage of justice as to justify setting aside of the Ruling on this sole ground.
By Rule 8 (1) of the Court of Appeal Rules, 1997, C.I. 19, an appeal to this Court shall be by way of rehearing. This means that this court is under a duty to examine the record of proceedings and is entitled to make up its own mind on the facts and affidavit evidence and to draw inferences from them to the same extent as the trial court could. See the cases of Oxyair Ltd & Darko vs. Wood and ors [2005-06] SCGLR 1057, Koglex Ltd. (No.2) v. Field  SCGLR 175 and GIHOC V. Hanna Assi [2005-2006] SCGLR 458.
I shall therefore proceed to discuss the other grounds of appeal together as they can all be subsumed under Ground 1 of the appeal which states that the ruling is against the weight of evidence. It is trite that such a ground of appeal places a burden on the appellant to satisfy the appellate court that indeed the Judgment or Ruling is unreasonable having regard to the evidence on record. [Ampomah vs. Volta River Authority [1989-90] 2 GLR 28]
Grounds 1, 3, 4 and 5
The plaintiff alleged in her pleadings and affidavit in support of the motion that the parties had come to an agreement that the defendant would replace the land she had trespassed on, but she had reneged on that promise and was rather trying to speedily complete her building. The case of the defendant on the other hand was that there had been a customary arbitration which had decided that she should not be disturbed on the land and that their common grantor was to find a replacement land for the plaintiff.
The defendant’s counsel thus argues that the main issue for determination in the suit boiled down to either enforcing an alleged agreement between the parties as claimed by the respondent or the enforcement of a customary arbitration as alleged by the appellant. Thus, the success of one or the other did not make an order of interlocutory injunction necessary.
Order 25 of the High Court (Civil Procedure) Rules 2004, C.I. 47 provides that “the court may grant an interlocutory order in all cases in which it appears to the court to be just or convenient to do so…” The grant or refusal of an interlocutory injunction is thus an exercise of discretion, and indeed, if the discretion is exercised properly, an appellate court does not have a right to substitute Adu (per his lawful Attorney Akonnor) vs. Ghana Revenue Authority [2013-14] 2 SCGLR 1176its own views for that of the trial judge. See
The requirements for the grant of interlocutory injunction were stated by Date-Bah JSC in Welford Quarcoo vs. Attorney-General  1 SCGLR 259 thus:
“first, that the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favour of granting him or her the interlocutory injunction. The balance of convenience, of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief.”
I will apply the principles outlined above in the rehearing of the application.
In the substantive suit, the plaintiff is seeking declaration to a piece of land as described in her statement of claim, damages for trespass, recovery of possession and perpetual injunction. The defendant also counter-claimed for declaration of title to a parcel of land, perpetual injunction and costs. The main issue for determination before any trial court would be whether it was the same parcel of land that both parties were laying a claim to. There is no doubt that this is not a frivolous case but there is a serious question to be tried.
The next question to consider is whether the plaintiff would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted.
From the pleadings of the parties, the plaintiff acquired her grant before the grant to the defendant, and is alleging trespass by the defendant on a portion of her land. The subject of land ownership is a prickly one especially in the capital Accra as the availability of land diminishes and the same parcel of land is sold to multiple purchasers. A rightful owner who is deprived of his land thus stands to lose a lot since land in a particular area is not replaceable. It is for this reason that courts are likely to grant specific performance of an agreement relating to specific landed property. For the same reason, an interlocutory injunction may be granted directed at the person carrying on the construction works from proceeding with further development works on the disputed land pending final determination of the suit. This is because the construction may change the character of the land to the detriment of the true owner whilst the suit is pending.
Looking at the reliefs sought by plaintiff and the affidavits in support and in opposition to the application, we are of the view that the plaintiff has demonstrated a legal right that ought to be protected, and that she will suffer irreparable damage which cannot be remedied by the award of damages if the application is refused.
In coming to this conclusion, we have also considered the balance of convenience. It is clear that to refuse the application is tantamount to permitting the defendant to continue building on the disputed land pending final determination of the suit. That will not maintain the status quo.
Indeed our view is that it is in the mutual interest of both parties to grant an order of interlocutory injunction. The defendant’s interest is best served if she puts a hold on any further construction until a determination of the ownership of the disputed land rather than risk further expense on land which may be held to be for the plaintiff at the end of the trial. She will not suffer any irreparable damage if it turns out that the land is not for the plaintiff, but may be compensated in damages and costs on her counterclaim for any extra costs due to inflation and the delay. On the other hand, the plaintiff risks the character of the land being permanently changed by the trespass of the defendant if her claim is upheld.
On the whole, we are of the view that the trial judge exercised her discretion properly in coming to the conclusion that it would be just and convenient to grant the order for interlocutory injunction.
We accordingly affirm the Ruling of the trial judge and dismiss the appeal.