LARRY BLACKMORE vs. BERNARD KLUTSEY
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2017
LARRY BLACKMORE - (Plaintiff/Appellant)
BERNARD KLUTSEY - (Defendant/ Respondent)

DATE:  27TH APRIL, 2017
CIVIL SUIT NO:  H1/26/2017
JUDGES:  M. OWUSU (J.A.) – PRESIDING, WELBOURNE (J.A.), SOWAH (J.A.)
LAWYERS:  JUSTICE ABDULAI FOR APPELLANT
JOE ABOAGYE DEBRAH FOR RESPONDENT
JUDGMENT

MARIAMA OWUSU, J.A.:

Order 25 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 deals with interlocutory injunction, interim preservation of property.

 

Order 25 rule 1 (1) of C. I. 47 provides that:

“The court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just and convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just.”

 

On 5th August, 2015, the plaintiff/applicant/appellant (herein referred to as appellant) filed motion on notice for interlocutory injunction pursuant to order 25 rule 1 (1) of C. I. 47 seeking to restrain the defendant/respondent/respondent (herein referred to as respondent) from dealing with the land in dispute.

 

The basis of the application was that, the High Court on 1st September, 2011 granted an interim injunction to restrain the respondent from a wall he was constructing. Subsequent to the said injunction, the respondent commenced series of construction works, building a house on portions of the land belonging to the appellant. It is the case of the appellant that, he has owned his land since 2002 and has been in peaceful possession until now. The appellant concluded that, the earlier application was in respect of the piece of land the respondent was developing and not necessarily the wall the latter was constructing at the time. That the continuous developing of the land by the respondent will negatively affect the nature of appellant’s land/property, which cannot be compensated for in monetary terms, hence the application.

 

The respondent vehemently opposed the application and filed affidavit in opposition to that effect. In particular, the respondent deposed that, the High Court had already ruled on the same application and granted an order of injunction against both parties on the same set of facts in respect of the disputed land and that the current application was an abuse of the court’s process.

 

Secondly, the respondent has not entered the appellant’s land but rather is the latter who has encroached on the respondent’s land. He concluded that, the suit between the parties is essentially a boundary dispute and in view of the pending order of injunction, the application should be refused as same is unmeritorious.

 

After going through the respective affidavits, the statement of case as well as the exhibits attached to the affidavit in support and in opposition, the High Court dismissed the application.

 

In her ruling, the trial High Court Judge held that it would not be just and convenient to restrain the respondent. To do so will occasion hardship on him as the balance of inconvenience weighs heavily in his favour. Secondly, that was the third time the appellant filed an application for an order to injunct the respondent on the same facts and that was an abuse of the court’s process.

 

Dissatisfied with the decision of the High Court, the appellant filed the instant appeal to the Court of

Appeal on the following grounds:

i. The ruling is against the weight of evidence adduced before the Honourable High Court.

ii. The Honourable Judge erred in holding that the composite site plan (Exhibit JAYE) is not clear enough.

iii. The Honourable Judge erred in holding that plaintiff/appellant did not tell the court where exactly the defendant/respondent herein is building.

iv. The Honourable Court erred in holding that defendant/respondent herein had demonstrated enough per her lease agreement to have equitable right to the land he is building on.

v. The Honourable Court erred in holding that, it was in doubt on the face of the overwhelming evidence adduced before it.

vi. The cost awarded in favour of the defendant/respondent and against the plaintiff/appellant is excessive.

vii. Other grounds of appeal to be filed upon the receipt of the record of appeal.

 

At this stage, let me put it on record that the appellant did not file any additional ground of appeal.

 

The reliefs sought from the Court of Appeal are:

 

To overturn the ruling of the Honourable High Court and rule in favour of the plaintiff/appellant.

 

To set aside the cost awarded in favour of the plaintiff/appellant.

 

Any other reliefs as the Honourable Court shall deem appropriate.

 

Before dealing with the arguments advanced in support of this appeal, I will give a brief background of the case.

 

The appellant in this case by his amended writ of summons, claims the following reliefs against the respondent:

 

A declaration of title to ALL THAT PIECE OR PARCEL of land in extent of 0.14 hecters (0.35 of an acre) more or less being parcel No. 626 Block 7 Section 180 situated at Kwabenya in the Greater Accra Region of the Republic of Ghana as delineated on Registry Map No. 006/180/1993 in the Land Title Registry, Accra, shows and edged with pink colour on Plan No. 42/2004.

 

Damages for trespass.

 

Recovery of possession.

 

An order of perpetual injunction restraining defendant by himself, his servants, agents, assigns, workmen and persons acting by or under the authority of defendant from interfering or entering the said land.

 

Cost.

 

In the 12 paragraph amended statement of claim, which accompanied the writ of summons, the appellant averred among other things that, in the year 2002, he purchased 2 plots of land, situate at Ashongman Residential Area, described supra, from Nii Iddrisu Aya Tettey. He averred further that, after the said purchase, he caused the land to be registered at Land Title Registry with Certificate No. GA 22098 Volume 76, Folio 116 on the 20th of January, 2006.

 

He thereafter took possession of the land by building a five bedroom house on the land but have not walled the house. The appellant continued that, recently, the respondent has encroached on a portion of his land and has started building a fence wall and digging a foundation with speed. He therefore reported the matter to the Accra Metropolitan Assembly (AMA) who ordered the respondent to stop work but the latter ignored the warning from AMA and has been building in the night to outwit the city authorities. It is the case of the appellant that, all efforts to stop the respondent from continuing trespassing on his land has proved futile hence this action.

 

The respondent on receipt of the appellant’s writ of summons and statement of claim reacted by filing his defence. In his amended statement of defence, the former denied the latter’s claim and put the appellant to strict proof of his averments. In particular, the respondent averred that it is rather the appellant who has encroached on his adjoining land. The respondent averred that, he acquired two plots of land in 2009 from one Mr. Jacob Lamptey who had purchased the said land from Nii Iddrisu Ayaa Tettey, the appellant’s grantor.

 

The respondent also gave the dimensions of his land. It is his case that he has taken steps to register his land and has lodged all his documents with the Land Title Registration Department of the Lands Commission.

 

He concluded that the issue between the parties is a boundary dispute as opposed to who owns a particular piece of land and that the land he is developing is his own. Therefore, the appointment of a surveyor will resolve the matter as both parties procured their land from the same vendor. The respondent also counterclaimed for a declaration of title to the land whose description is given in paragraph 24 of his amended statement of defence filed on 24th August, 2011.

 

On 15th August, 2011, the appellant filed application for interlocutory injunction seeking to restrain the respondent from continuing developing and trespassing on his land. The respondent resisted the application and filed affidavit in opposition to that effect.

 

After hearing the parties, the High court, on 1st September, 2011, granted the application in part by restraining the respondent either by himself, his agents, workers, etc. from carrying out any further works on his fence wall. The court further ordered both parties to submit their respective site plans to the Regional Surveyor of the Survey and Mapping Division of the Lands Commission for a superimposition to be drawn.

 

Then on 20th June, 2013, the appellant filed another application for interlocutory injunction to restrain the respondent from developing the land in dispute. The High Court on the 1st September, 2015 restrained both parties from carrying out any development on the land in dispute.

 

On 5th November, 2015, again, the appellant filed the application for interlocutory injunction (which has culminated in this appeal) to restrain the respondent either by himself, assigns, servants, etc from entering, interfering with or carrying constructional works on the land the subject matter of the dispute.

 

In refusing the application on 11th January, 2016, as stated supra, the High Court held that it would not be just and convenient to restrain the respondent as this will occasion hardship on him. In the opinion of the court the balance of convenience and hardship weigh heavily on the respondent. Secondly, the application was an abuse of the court process in that that was the third time the appellant has filed an application for an order to injunct the respondent.

 

It is this ruling that is in contention before us.

 

Let me state that, the respondent did not file any process in this appeal.

 

In arguing the appeal, counsel for the appellant conceded that, the appellant filed series of applications for injunction to be placed on the construction of the respondent’s building. His reason being that with changing circumstances, the encroachment by the respondent was not only in respect of the wall the latter was constructing hence the subsequent applications.

 

In this appeal, ground two reads:

“The Honourable Judge erred in holding that the composite site plan (Exhibit JAY5) is not clear enough”.

 

Counsel then submitted on this ground that, the evidence of CWIA established three important facts:

 

That the land shown by the respondent on his site plan is markedly different from the land shown on the ground.

 

That the respondent had encroached on the appellant’s land.

 

That the land shown by the appellant is almost 90% the same as the land indicated on his site plan.

 

Quite apart from the above, counsel submitted that, the appellant is in possession of his land. He has also registered same with the Land Title Registry in accordance with the law unlike the respondent. Counsel referred us to the case of Marina Hotel Ltd. Vs. Stephen Ofosu Mensah [2016] 92 GMJ 141

145-146 which had held that a conveyance that has not been registered does not confer any legal title. He continued that, in exercising her discretion, the trial Judge had a duty to comparatively take into consideration the entire facts before her and rule in his client’s favour. This is because, the appellant had a registered title as against the respondent’s document. Secondly, from the Court Expert’s Report, the appellant demonstrated enough evidence for the court to exercise its discretion in his favour at least looking at the affidavit evidence before the court.

 

Based on the foregoing, counsel for the appellant invited us to allow the appeal on ground (2).

 

In the ruling in contention before us, the trial Judge in dismissing the application for interlocutory injunction gave two reasons. The first was that, it was not just and convenient to restrain the respondent from building on a piece of land he has equitable right to per his lease agreement, when the appellant has built on a portion of his land and was living in same.

 

This in the view of the trial Judge would occasion hardship on the respondent. Secondly, the appellant was abusing the judicial process in that, that was the third time he has filed the same application on the same facts which application have been ruled upon. The trial Judge also held that the parties should rather concentrate on having the case heard.

 

Having gone through the record of appeal, we think the trial Judge was right in coming to the conclusion she did. We say so for the simple reason that, the appellant first complained about a fence wall the respondent was constructing on his land. This necessitated the trial court to restrain the respondent from carrying out any further work on his fence wall until the surveyor appointed by the court carried out the superimposition on the respective site plans of the parties. By granting the limited injunction, the status quo ante was maintained. The grant and or refusal of interlocutory injunction is discretionary. This discretion must however be guided by the following principles:

 

The court must consider whether the case of an applicant was not frivolous and he had demonstrated that he had legal or equitable right which a court should protect.

 

To ensure that the status quo was maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter and

 

The court must consider the balance of convenience and should refuse the application if its grant would cause serious hardship to the other part (our emphasis)

 

See the case of 18th July Ltd. Vs. Yehans International Ltd. [2012] 1 SCGLR 167, 172. See also the case of Ndebugre (No. 1) Vs. Attorney General, Aker Asa & Chemu Power Co. Ltd. (No. 1) [2013-2014] 2 SCGLR 1134, 1136 holding (1) thereof where their Lordships held in holding (1) that:

 

“…In determining whether or not to grant an injunction, the court is obliged to consider the comparative convenience, that is to say, it is granted or refused according to the side to which the balance of convenience is inclined…”

 

Relating the cases cited supra to the case under consideration, from the pleadings and especially the appellant’s statement of claim, he had built a five-bedroom house on his land and is living in same even though his house is yet to be walled. The respondent also exhibited an indenture which was signed by the appellant’s grantor. Clearly, the respondent has an equitable right which ought to be protected. Since the grant or refusal of interlocutory injunction is discretionary, the trial Judge exercised her discretion by refusing the application.

 

In doing so, she took into consideration the comparative convenience of such a grant on the parties and refused the application. In the case of Adu (per Attorney) Akonnor Vs. Ghana Revenue Authority [2013-2014] 2 SCGLR 1176,1177, holding (3). The Court held that:

The Supreme Court would not interfere with the exercise of the trial court’s discretion save in exceptional circumstances. An appeal against the exercise of the court’s discretion might succeed on the ground that the discretion was exercised on wrong or inadequate materials if it could be shown that the lower court had acted under a misapprehension of fact in that it had either given weight to irrelevant matters or unproved matters or omitted to take relevant matters into account…”

 

In the instant case, the trial Judge was on point when she held that it would not be just and convenient to injunct the respondent from developing his land since the appellant had built a five-bedroom house on his land and was living in same.

 

Secondly, the trial Judge was right in coming to the conclusion that the appellant was abusing the judicial process. This is because the application that has culminated in the present appeal was the third one the appellant filed to injunct the respondent, instead of taking steps to have the substantive case heard. These series of applications were filed and heard between 2011 and 2016, a period of about five (5) years.

 

For these reasons, the appeal in ground (2) fails and it is accordingly dismissed. The above reasons also dispose of grounds (1), (3), (4) and (5) of the appeal as all the arguments advanced in support of these grounds border on the expert witness report and the registration of the appellants documents which arguments go to the substantive matter.

 

This brings us to ground (6) of the appeal which is that, the cost awarded in favour of the respondent and against the appellant is excessive.

 

On this ground, counsel for the appellant submitted that, since the latter demonstrated that the application was not frivolous or vexatious, the amount awarded as cost against him was unjustified and too excessive. He therefore invited us to reverse the amount awarded as cost against him and instead award cost against the respondent for causing him to bring these applications and the appeal.

 

To begin with, cost is at the discretion of the Court. See Order 74 Rule (1) of the High Court (Civil Procedure) Rules, 2004, C. I. 47.

 

Order 74 Rule (2) (4) provides what a court should take into account in assessing the amount of cost to be awarded to a party.;

 

The amount of expenses, including travel expenses reasonably incurred by that party or that party’s lawyer or both in relation to the proceedings;

 

The amount of court fees paid by that party or that party’s lawyer in relation to the proceedings.

 

The length and complexity of the proceedings;

 

The conduct of the parties and their lawyers during the proceedings and

 

Any previous order as to costs made in the proceedings.

 

Appling this provision and or order to the present case, the appellant filed three applications for interlocutory injunction based on the same facts spanning a period of five (5) years, that is from 2011 to 2016 when he being the plaintiff, could have taken steps to have substantive matter heard.

 

On all these occasions, the respondent filed affidavit in opposition and engaged the services of counsel to resist the said applications.

 

Taking all these into consideration, we think the cost awarded is not harsh and excessive. This ground of appeal also fails and it is hereby dismissed.

 

From all of the foregoing, there is no merit in the appeal and it is hereby dismissed.