A.M. DORDZIE JA:-

 FACTS:

 The plaintiff who is the appellant herein instituted an action in the High Court, Accra seeking the following reliefs:

A declaration that by a conveyance dated 8^th March 1986 made between the plaintiff and Nii Nortey Adjiefio acting for the Kle Musum family, the interest in the land describe herein was conveyed to the plaintiff.

A declaration that any registration of the said land by the 2^nd defendant in the name of 1^st defendant is irregular and or by mistake and therefore null and void.

A declaration that the registration of the land in the name of the 1^st defendant was procured by fraud and therefore is null and void.

An order for the cancellation of any land certificate standing in the name of the 1^st defendant.

Recovery of possession and damages for trespass against the 1^st defendant.

Perpetual injunction against the 1^st defendant his workmen and servants from further trespassing on the land.

Plaintiff claims she is the owner of the disputed land. She acquired the said land from the Kle Musum Family of Teshie in 1986. She has a Deed of Conveyance dated 8^th of March 1986 as an evidence of the transaction. She lodged the said document with the 2^nd defendant since 1994 for registration but this has delayed because part of her land was mistakenly registered in the name of one Comfort Afriyie. Plaintiff maintained the land she acquired forms part of a larger truck of land of which her grantors were adjudged owners by the Supreme Court in a judgment dated 19^th April 1994.

According to plaintiff she went into possession of the land, put a wooden structure on it and put a caretaker thereon. She later erected a fence wall around the land and commenced building on part of it, which building was up to lintel level. According to the plaintiff the 1^st defendant recently entered the land demolished her fence wall and started building on the land; all efforts to stop him failed.

The defendants resisted plaintiff’s claims. Though the 1^st defendant admitted that before he acquired the land he came to know about plaintiff’s suit against a third party and the Registrar of Lands for a mistaken registration of the disputed land in the third party’s name and that he is aware judgment was given in favour of the plaintiff in that suit, he maintains there was no declaration of title in favour of plaintiff. According to 1^st defendant his grantors were adjudged owners of the land by a Supreme Court judgment dated 15^th May 2014. 1^st defendant said he has obtained land tile certificate in respect of the land and is in effective possession of same.

The matters that led to this appeal are that the plaintiff applied to the High Court for an interim injunction order to restrain the 1^st defendant from further development of the disputed land until the suit is determined. In her affidavit accompanying the motion paper plaintiff repeated her averments in her statement of claim some of which I have recounted above and maintain that the 1^st defendant is rapidly developing the land and if he is not restrained he will completely change the character of the land even before trial commences.

In an affidavit opposing the application 1^st defendant deposed that the land he is developing is different from the plaintiff’s. He repeated his averment in his statement of defence and further deposed that the plaintiff has not made a prima facie case against him and therefore not entitled to any restraining order against him. Though the trial court found that both parties have rights, legal and in equity in respect of the disputed land that need to be protected it dismissed the application hence this appeal.

Grounds of Appeal

The plaintiff /appellant canvassed three grounds of appeal and these are:

The trial judge wrongly exercised his discretion in refusing the plaintiff’s application for interlocutory injunction.

The ruling is not supported by the affidavit evidence.

The cost of GH¢2,000.00 awarded against the plaintiff was excessive.

The plaintiff appellant’s prayer to this court is to set aside the ruling of the trial court and grant the interim restraining order against the 1^st defendant.

At the time of hearing this appeal that was 8^th day of March 2017 the 1^st defendant respondent had not filed any written submission. The court deemed it that he had waived that right, the appeal was adjourned to today the 11^th of May for judgment. The court’s attention has been drawn to written submission filed on behalf of the respondent on the 8^th of May pursuant to leave granted him on the 24^th of April. The step taken by the respondent to seek leave to file a written submission out of time was taken 6 weeks after the appeal was heard, and the submission was filed three days to the date of judgment. This court had no chance to consider the submissions at the hearing of the appeal and had not been given the chance to consider it before writing the judgment. In the circumstances we are not able to consider the said submissions in this judgment.

In arguing ground (a) counsel for the plaintiff submitted that he concedes that the grant or refusal of an interim injunction is at the discretion of the court but such discretion must be exercised judicially. Counsel referred to the case of Ballmoos v Mensah [1984-86] 1 GLR 724 and argued that where the discretion is exercised based on wrong or inadequate material, for example in the grant or refusal of an application for interim injunction, the appellate court may interfere.

On ground (b) counsel argued that the facts before the court as contained in the pleadings do not support the trial court’s conclusion that the 1^st defendant has an indefeasible title to the land.

On the excessiveness of the cost awarded counsel submitted that the trial court did not take into consideration the guidance provided in Order 74 of the High Court (Civil Procedure) Rules, 2004 C. I. 47 in the exercise of his discretion in awarding cost .This court should therefore set aside the ruling.

The Supreme Court in a recent decision in the case of 18th July Ltd. v Yehans International Ltd [2012] 1 SCGLR 167 re-outlined the guiding principles in the grant or refusal of an application for interlocutory injunction. The court held as follows:“Even though granting an interim injunction was discretionary, a trial court in determining an application for an interlocutory injunction order must be guided by the following:

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

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

Consider the balance of convenience and should refuse the application if the grant would cause serious hardships to the other party.”

The trial court in its ruling found that the pleadings and the affidavits put before it show that the parties have demonstrated to the court that they both have rights, both at law and in equity that need to be protected. However in the trial judges reasoning in the ruling refusing the grant of the application, he came to conclusions which in my opinion amount to prejudging issues joined between the parties in their pleadings. The trial Court concluded that “Since the grantors of the respondent have been declared owners of the land by the Supreme Court it follows that even if the applicant has been on that land, with the said Supreme Court Judgment her grant is a nullity. More so the respondent has been given land title certificate. This implies that as at now the defendant has a superior title to the disputed property and it will be unjust to restrain such a person from developing his land.” This, apart from prejudging issues contradicts the court’s own finding that both parties have rights both in law and in equity that ought to be protected pending determination of those rights.

Until the court makes a decision on the conflicting rights of the parties the justice of the circumstance demands that the status quo remains until the final determination of the suit.

Some of the factors the trial court failed to consider in reaching the conclusions it came to, include the averments in the plaintiff’s pleading that she acquired the land as far back as 1986 and had been in effective occupation until the 1^st defendant trespassed. She also pleaded the title of her grantors and the Supreme Court judgment that confirmed the grantors title at that time.

Further the 1^st defendant / respondent in paragraph 10 of his statement of defence admitted that before he even acquired the land in dispute his investigation revealed that the plaintiff and one Adwoa Konadu (whose agent was Comfort Afriyie) were litigating over the land.

In paragraphs 12 & 13 of his statement of defence the 1^st defendant / respondent further averred that when he started building a fence wall on the land the plaintiff and agents of Adwoa Konadu confronted him to stop but he ignored them. He further averred in paragraphs 14 to 17 that his opponents made a report to the police and he stopped work on the land but the outcome of the police investigations favoured him so he continued to work on the land, completed the fence wall and fixed a gate. He further averred that his opponents did not give up, Adwoa Konadu issued a writ against him in the High court in respect of the same land and the said case is still pending in the High Court.

In the face of these facts coming from the respondent, the reasonable and prudent thing for him to do was to suspend investing in the land by way of developing it until the rights of all the interested parties are determined. Having failed to do that, the plaintiff applied to the court to have the scale evenly held between the parties until their rights are determined by the court. From the writ of summons and the pleadings there are serious identifiable legal issues that need to be determined. The trial court however failed to consider these circumstances when he refused the application on the ground that the defendant has a title certificate to the disputed land that implies that he has a superior title. The trial judge, by so reasoning had prejudged the issues before him. Meanwhile the plaintiff has pleaded fraud on the part of the defendant in obtaining the title certificate.

It is clear from the 1^st defendant / respondent’s pleadings that he commenced building on the land in the face of resistance from his opponents. That to my mind is negligent on his part and it is a risk he has taken which he must be responsible for if he loses the case.

By refusing the grant of an injunction order, the respondent has been allowed to take advantage of his opponents as he is in the process of changing the character of the land which will result in irreparable damage. It is therefore just and fair that this court allows the appeal and order the status quo to remain while the rights of the parties are determined.

On the question of hardship the respondent’s conduct does not justify any complaints of hardship on his part; as I have said earlier in this judgment he took a risk to invest in the land though he was aware of pending court suits challenging his presence on the land. By the affidavit evidence his activities on the land are seriously changing the character of the land, plaintiff appellant would suffer irreparable damage if she should win the case.

The Court of Appeal considering a similar circumstance in the case of Pountney v Doegah, [1987-88] 1

GLR 111 held per Abban JA (as he then was) thus:

“On the question of hardship, it seems to me that from the nature of the claim, the pleadings, affidavits and all the documents filed in the application, the plaintiff-appellant was likely to suffer substantial and irreparable damage if the application was refused and she eventually succeeded at the trial. The various affidavits filed in the matter clearly indicated that the defendant-respondent was warned off the plot when he started digging the foundations. Thus, the defendant-respondent had been aware of the plaintiff-appellant's adverse claim long before the action was instituted. It is therefore fair and just that building operations on the land should cease forthwith to await the outcome of the trial.”

Another decision of the Court of Appeal in which the court took a similar view is the case of Nana Ntri Panin II v Kofi Asiamah Sampong Civil Appeal N0:H1/43/204 (unreported) dated 5^th March 2004

In that case, the trial judge refused the grant of an interim injunction in a land suit before him in which he found that both parties have rights to be protected. The court of appeal over turned the decision to refuse the grant and made orders granting an interim injunction. The court per Gbadegbe JA (as he then was) held as follows: “In my view the learned trial judge’s decision on the nature of damages to be occasioned to the plaintiff was wrong in that the state of the proceedings before him when he was required to rule on the conflicting rights of the parties to the action, none of the rights asserted had been clearly established which meant that there was a credible dispute as to those rights and accordingly he ought to have prevented either party from proceeding to exercise as against the other any of those disputed rights particularly as was the case regarding the acts of the defendant, it was such as was reasonably likely to change the character of the disputed land.”

For the reasons stated above I would allow grounds (a) & (b) of the appeal and order that the respondent, his heirs and assigns, agents and workers cease any development work on the land until the substantive suit is determined.

Order 25 Rule 9(1) & (2) mandatorily requires that the applicant of an interim injunction order makes an undertaking to pay damages the opposing party may suffer if it turns out that the applicant is not entitled to the order.

Order 25 Rule 9 (1) & (2) of C. I. 47read:Where an application is made under rules 1 and 2 of this Order the Court shall, if the application is opposed, require, before making an order, that the applicant shall give an undertaking to the person opposing the application to pay any damages that person may suffer as a result of the grant of the application if it turns out in the end that the applicant was not entitled to the order.

(2) The giving of an undertaking required under sub rule (1) shall be a precondition to the making of any order under rules 1 and 2 of this order.

The mandatory nature of this rule had been criticized by the Supreme Court. The Supreme Court thinks that this provision in C. I. 47 a subsidiary legislation seeks to limit the court’s discretion vested in it by the 1992 Constitution. The Supreme Court therefore has taken the stand that the circumstances of each case must inform the judge whether it is necessary to make an order of undertaking or not.

In the case of Republic v High Court; Koforidua; Ex parte Ansah-Otu & Another(Koans Building Solutions Ltd. Interested Party) [2009]SCGLR 141 at 144, the court held:“if the courts should consider themselves bound by the strict adherence to interpret the word ‘shall’ in rule 9(1) & (2) of Order 25 to be so mandatory so as to nullify the grant of interlocutory injunctions in the absence of any undertaking, the courts would be placing serious fetters on their jurisdiction to grant such an important relief.……..the circumstances of each case must inform the judge whether it is necessary or not to make an order of undertaking in any particular case as the discretion is inherit in the court itself.”

In the case of 18^th July Ltd. v Yehans International Ltd. [2012]1SCGLR 167 (a more recent decision) the Supreme Court restated its position on the issue and held at page 173 that “….undertakings could be waived by the trial court…..it is discretionary and it is a discretion vested in the court.”

The Supreme Court backed its position by making reference to the holding per Lord Diplock in the case of Hoffman-La F Roche & Co AG v Secretary of State for Trade & Industry [1974]2 All ER 1128 at 1150 that: “The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages. All it can do is to refuse the application if he declines to do so. The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract and attracts the remedies available for contempt; but the court exacts the undertaking for the defendant’s benefit.”

In this case the defendant by his own pleadings knew that there were adverse claimants of title to the disputed land. They have persistently taken steps to prevent him from developing the land at a time when the land was vacant, yet he went ahead and built on the land, he took a risk the consequences of which he must bear. These circumstances in my opinion warrant a waiver of an order of undertaking and I hereby waive same.

The appellant herein in his last ground of appeal maintain the award of GH¢2, 000 is excessive. Award of cost is indeed at the discretion of the court, however Order 74 Rule 2(4) of C. I. 47 gives guidelines as to how cost should be accessed. The said rule reads:

(4) In assessing the amount of costs to be awarded to any party, the Court may have regard to

(a) the amount of expenses, including travel expenses, reasonably incurred by that party or that party's lawyer or both in relation to the proceedings;

(b) the amount of court fees paid by that party or that party's lawyer in relation to the proceedings;

(c) the length and complexity of the proceedings;

(d) the conduct of the parties and their lawyers during the proceedings; and

(e) any previous order as to costs made in the proceedings”

The appellant’s argument is that the parties and their lawyers live in Accra where the proceedings were held, and the application was dealt with expeditiously.

The trial court in awarding cost did not state the circumstances he took into consideration in awarding GH¢ 2,000 .00 as cost. In such a situation I will be guided by the Supreme Court’s decision in Baiden v Odoi [1963]1GLR 488 which says: “Where a judge has not given adequate or precise reasons or one cannot see from his judgment exactly what he took into account; whether he took into account something he ought not or omitted something he should, this court can only look at the total amount and consider whether it is excessively high or unreasonably low and so amounts to an erroneous estimate.”

Considering the fact that the main trial of the case is yet to commence and the application did not take much time to be decided and the parties and their lawyers did not spend much on travel since they all reside in Accra, I consider the GH¢2,000 award as cost excessive. I consider GH¢1, 000.00 to be reasonable in the circumstances and I award same.

The appeal succeeds in its entirety, the ruling of the High Court dated 26^th July 2016 is hereby set aside.