SOWAH J.A.

This is an interlocutory appeal against the Ruling of the Koforidua High Court dated 4^th July 2016.

In the Ruling being appealed, the trial court dismissed plaintiffs’ application seeking ‘an order of interim injunction restraining the defendant, his servants, etc from (a) developing and/or alienating any portion of the plaintiffs’ land (b) continuing to cause great nuisance and disturbing plaintiffs’ quiet enjoyment of its property until the final determination of this suit.’

Dissatisfied, the plaintiff/appellant filed a Notice of Appeal on 11^th July 2016 praying that the Ruling and orders made by the trial court be set aside and for an order of interlocutory injunction.

The grounds of appeal are as follows:

1. The trial High Court Judge erred in law and in fact when in the determination of an application for interlocutory injunction, he held that the plaintiff/appellants have no title to the disputed land and yet proceeded to say that the suit should take its normal course.

2. The discretion to either grant or refuse an application for interlocutory injunction was not exercised judicially by the trial High Court.

3. The Ruling is against the weight of evidence.

4. The award of cost by the trial court was excessive.

5. Further grounds of appeal shall be filed upon receipt of the

It is placed on the record that no additional grounds were filed as had been indicated in the notice of appeal.

The third ground of appeal invokes the jurisdiction of this appellate court to evaluate the entire record of appeal to satisfy itself that the discretion of the trial judge was reasonably and properly exercised on the evidence before him; and to re-hear the original application. [Koglex No.2 vs. Field [2000] SCGLR 175, Djin vs. Musah Baako [2007-2008] 1 SCGLR 687].

I therefore propose to first deal with grounds 2 and 3 of the appeal which were argued together by plaintiffs'/appellants' counsel.

Hereafter, the parties will be referred to by their designations at the trial court.

In his written submissions, the plaintiffs' counsel recapped the plaintiffs' case on the pleadings and on the affidavit evidence; namely, that the plaintiffs’ owned plots numbered 91 and 94 at Koforidua as described in their statement of claim. The defendant had trespassed onto a portion of the land by drilling a bore hole on it. In addition, without necessary permits from the relevant authorities, the defendant had opened a drinking bar opposite plaintiffs' hotel where loud music is played day and night to the inconvenience of plaintiffs' guests, hence the application for interlocutory injunction.

The defendant resisted the application, contending that the lease from the Government of Ghana to Samuel Sarpong who was plaintiffs' assignor, and his assignment to the plaintiffs' showed an area of 0.89 acres. However, the site plan attached to exhibit D [at page 25 of the record] had been extended by 80 feet beyond the grant to Samuel Sarpong to now cover an area of 0.90 acres instead of 0.89 acres. According to the defendant, it was this 80 feet which is in excess of the area shown by plaintiffs' lease and site plans that is the subject of the dispute. The defendant contends that in the light of the inconsistency in plaintiffs' documents and irreconcilable difference, the application for injunction had to fail. The defendant also contends that the bore hole it is drilling is not on a portion of plot 91 but beyond the plaintiffs' boundary.

Plaintiffs' counsel takes issue with several of the trial judge’s findings regarding the land in dispute and the total acreage claimed by the plaintiffs'. He contends that the findings were not borne out by the pleadings and affidavit evidence. Moreover, the findings were based on wrong application of the law and an improper exercise of discretion. It is submitted that the decision in Anane & ors vs. Donkor & anor [1965] GLR 188 which the trial judge relied on, respecting the duty on a plaintiff to prove the identity of the land in dispute, was inapplicable to plaintiffs' case. Furthermore, the principle of maintenance of the status quo to avoid irreparable damage was wrongly applied by the trial Judge.

At this juncture, it will be worthwhile to briefly recall the key principles for interlocutory injunctions. As enacted in Order 25 rule 1 (1) of the High Court (Civil Procedure) Rules 2004, C.I. 47, the Court may grant an injunction 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. However, the discretion has to be exercised judicially. There are settled principles which guide the court to either grant or refuse the application. If the discretion is exercised properly, an appellate court does not have a right to substitute its own views for that of the trial Judge.

In Welford Quarcoo vs. Attorney General [2012] 1 SCGLR 259 at 260, his Lordship Dr. Date-Bah JSC summed up the fundamental principles to consider in an application for interlocutory injunction thus:

‘… the requirements for the grant of an interlocutory injunction are: 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’.

Establishing that there is a serious question to be tried involves the applicant demonstrating that his case is neither frivolous nor vexatious but that he has a legal right at law or equity which the court ought to protect by maintaining the status quo to avoid irreparable harm. A plaintiff who seeks an order for interim injunction must show that the right he seeks to protect really exists and that there has been an unjustified interference by the defendant.

In its unanimous decision in the case of Owusu vs. Owusu Ansah & Anor [2007-2008] SCGLR 870, the Supreme Court held in part as follows, as per holding (1) of the head notes:-

“…The fundamental principle in applications for interim injunction is whether the applicant has a legal right at law or in equity, which the court ought to protect by maintaining the status quo until the final determination of the action on its merits. This could only be determined by considering the pleadings and affidavit evidence before the court…”

When the issue of preservation of the status quo arises, the question is whether or not the plaintiffs' claim, on the facts, is maintainable. [See: Vanderpuye vs. Nartey [1977] 1 GLR 428 and Pountney vs. Doegah [1987-88] 1 GLR 111 both of which applied American Cyanamid Company vs. Ethicon Limited [1975] 1 All E.R. 504, H.L, Owusu vs. Owusu Ansah & Anor [supra]. See also 18^th July Ltd. Vrs. Yehans International [2012] 1 SCGLR 167 where the Supreme Court per Anin Yeboah JSC held that the trial court ought to consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party.

From the record and submissions of the parties in this appeal, the facts that appear clear are that the plaintiffs claim title to plots 91 and 94 whilst the defendant lays claim to plots 92 and 93. The parties are thus adjoining land owners. The area in dispute is 80 feet of space which plaintiff claims to be part of its plot 91. The defendant has drilled a bore hole on this disputed portion and says the plaintiffs’ claim is not borne out by the documents of title it exhibited. The trial judge agreed with the defendant.

We have carefully examined the Record of proceedings and after an analysis of the facts and affidavit evidence, and bearing in mind the applicable law and principles for the grant or refusal of an application for interlocutory injunction, have come to the conclusion that the trial judge cannot be faulted for declining to exercise his discretion in favour of the plaintiffs considering their failure to demonstrate a reasonable legal or equitable interest in the disputed portion of land vis-a-vis the implications of an interlocutory order of injunction on the business of the defendant.

As noted earlier, and as the trial judge rightly pointed out, a cardinal principle is for an applicant for an order of interlocutory injunction to demonstrate that a legal or equitable right in the subject matter of the dispute actually exists. The trial court deduced from plaintiffs' statement of claim and affidavit evidence that the trespass complained of related only to plot 91 and not plot 94. In that regard, he found that plaintiffs' were confused and uncertain as to the location of the alleged acts of trespass when they alleged in their affidavit in support that the trespassory acts was on plot 94. The trial judge did not stop there but went ahead to examine the exhibits relating to plot 94 and found that there was a material conflict in the lease to Samuel Sarpong and the assignment of his interest to the plaintiffs' predecessor. The size of land assigned by Samuel Sarpong was bigger than the land leased to him by the Government. On these grounds the trial judge was not satisfied that the plaintiffs' had established an interest in the disputed 80 feet of land sustainable in law or equity to ground a grant of their application.

As to the issue of excessive noise making and the refusal of the trial judge to grant an interlocutory injunction in that respect, we quite agree with the reasoning of the trial judge that there was no pleadings or proper basis laid that grounded an action in noise nuisance, nor any evidence that noise levels had been exceeded beyond Environmental Protection Agency guidelines. The allegations being made were not evident on the exhibits. In such circumstance the court was perfectly right to maintain the status quo by refusing the application sought.

As with all discretions, an appeal against the exercise of the court’s discretion can only succeed where it is shown that the discretion was exercised on wrong or inadequate materials, or shown that the court acted under a misapprehension of fact, in that it either gave weight to irrelevant matters or omitted to take relevant matter into account. [Blunt vs. Blunt [1943] HL AC. 517 at 518.

We have weighed the disadvantages of granting the relief against the disadvantages of not granting the relief and share the view of the trial judge that the balance weighs in favour of refusing the application as its grant would exact hardships to the defendant whilst the plaintiffs can be compensated in damages at the conclusion of the trial.

Grounds 2 and 3 of the appeal thus fail.

This brings me to the first ground of appeal which states that the trial High Court Judge erred in law and in fact when in the determination of an application for interlocutory injunction, he held that the plaintiff/appellants have no title to the disputed land and yet proceeded to say that the suit should take its normal course.

Counsel contends, relying on the Supreme Court cases of Republic vs. High Court, Kumasi; ex parte Appiah [1997-98] 1 GLR 503, Universal Merchant Bank Ltd vs. FBN Ghana Ltd & anor Civil appeal No. H1/103/2015 dated 19^th May 2016 (Unreported) and Owusu vs. Owusu-Ansah [2007-08] SCGLR 870 that since the purpose of plaintiffs' application was to restrain the defendant from doing an act in the interim, the trial judge’s finding at page 80 of the Record of Appeal that the plaintiffs' had no title to the disputed portion of land effectively determined the main and substantive dispute between the parties and was legally defective. Counsel invites this court on the authority of Republic vs. High Court, Accra; ex parte Appiah [2000] SCGLR 389, to set aside the erroneous determination of the merits of the suit.

This submission seems to us to have merit. Although we have concluded that the outcome of plaintiffs' application at the trial court is supportable on the facts and in law, we are nevertheless also of the view that the trial judge went too far in his 11 page Ruling in making pronouncements that suggest that he had made up his mind as to the merits of plaintiffs' case in the substantive suit. It was premature to use the case of Anane & ors vs. Donkor & Anor [supra] which relates to positive proof of the identity of land in the substantive suit.

In Vanderpuye vs. Nartey [supra], this court reiterated the traditional view that the courts' duty in an application for interlocutory relief is to act to minimise the sum total of irreparable damage to the litigants but must abstain from expressing an opinion upon the merits of the case until the hearing since the proper test is not whether a prima facie case has been made to justify the grant of the relief. The court is only required to determine whether the claim for interim relief is sustainable in the light of the papers submitted; whether the pleadings, affidavits and supporting documents disclose evidence in support of the applicants’ case. The question for consideration should be whether on balance greater harm would be done by the refusal to grant the application than not.

Lord Diplock advised in American Cyanamid Co. v. Ethicon Ltd. [supra at 509] that pronouncements in interlocutory applications which pre-determine the issues for trial should not be encouraged.

In Owusu vs. Owusu [2007-2008] 1 SCGLR 870, the Supreme Court per Adinyira JSC reiterated the need to avoid making a pronouncement on the merits of the case in an application for interlocutory injunction.

This ground of appeal succeeds. We will make a recommendation to the Chief Justice to transfer the matter to the High Court differently constituted to ensure that justice is seen to be done in the substantive suit.

Ground 4 of the appeal complains that the award of cost by the trial court was excessive.

The question of costs is always at the discretion of the trial court but is regulated by Order 74 of C.I.

Rule 2 (3)(a)(b) provides that an award of costs is designed to compensate for expenses reasonably incurred and court fees paid by the party in whose favour the award is made and also provide reasonable remuneration for the lawyer of that party in respect of work done by the lawyer.

The trial judge did not give any reasons for the award of ¢6,000.00 to the defendant. However, on the face of the affidavit in opposition which was filed (see page 42, 43 of the Record), the defendant paid a little over ¢110.00 in filing fees. The application was filed on 20^th April 2016 with return date of 5^th May 2016. The affidavit in opposition was filed and served on the same day thus necessitating an adjournment to 10^th May 2016. The application was eventually moved on 6^th June 2016 [see page 61] and Ruling delivered on 4^th July 2016. There is no indication on the Record the reasons for adjournment. Be that as it may, this cannot be said to have been a protracted application. Together with reasonable travelling expenses and remuneration for counsel, our opinion is that the award of ¢6,000.00 was on the high side for the simple interlocutory application.

We are of the view that the trial judge did not exercise discretion judicially. We accordingly set aside the costs of ¢6,000.00 awarded by the trial court and substitute thereof costs of ¢2,000.00 in favour of the defendant against the plaintiff. We think that this is a more reasonable sum to compensate the defendant for expenses and reasonable remuneration for the lawyer.

In conclusion, the appeal succeeds in part. The Ruling of the trial court is varied in terms of the costs to be paid, and we recommend to the Chief Justice to transfer the suit to the High Court differently constituted. We however dismiss the ground of appeal seeking to set aside the order which dismissed the application for interlocutory injunction.