IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2014
KING ODAIFIO WELENTSE III - (Plaintiff/Respondent)
T & T PROPERTIES LTD. AND TORGBOR MENSAH - (Defendants/Appellants)
DATE: 26TH JUNE, 2014
CIVIL APPEAL NO: H1/144/2013
JUDGES: KUSI APPIAH (JA) (PRESIDING), V D OFOE (JA) AND MARGARET WELBOURNE MRS. (JA)
MARGARET WELBOURNE J.A.
The Plaintiff’s (hereinafter refer to as Respondent) appeal is against the ruling of the High Court delivered on 20th February 2013.
On 2nd November 2012, the Respondent filed a motion on notice for Interlocutory injunction seeking to restrain the Defendants (hereinafter referred to as Appellants), their workmen, assigns and privies from changing the status quo of the land in dispute. The Respondent contended that the Appellants were given an assignment of the land by Ghanachix Farms. The Respondent claimed that the land in dispute is part of Nungua Stool Lands which was taken over by the Tema Development Corporation (TDC) and that the Appellants are building on the land notwithstanding all caution and warnings. The Appellants opposed the Respondent’s application and contended that the Respondent does not own the land and that neither does he have any title or right or interest in the land in dispute.
The Appellants applied to the TDC who thereafter leased a piece of land (which is part of the land acquired by the Government) to the Appellants for a term of 60 years. He further applied to TMA to develop the land and was granted a building permit. Thus as far as the Appellants was concerned, it had duly acquired a right title and interest in the land in dispute from the TDC; the rightful owner of the land. It was the contention of the Appellants that after the acquisition of the land by the Government in 1952, the Respondent lost any title, right or interest in the land in dispute.
The Appellants contended that although the Respondent in paragraph 5 of his affidavit in support of his application stated that he has duly registered the land in dispute, he failed to exhibit the said registered document to his application.
On 29th November 2012, the leaned trial Judge dismissed the Respondent’s application as devoid of any merit and awarded cost of GH¢500.00 against him.
On 19th December 2012, the Respondent filed the same application before the same Court and deposed to the same facts which were deposed to in the earlier application that was dismissed. The only difference was that the Respondent attached a site plan which he claimed is the site plan of the Appellants. The Appellants in their Affidavit in Opposition to the motion relied on the averments in the earlier affidavit filed on 14th November 2012 in opposition to the Respondent’s first motion.
The Appellants contended that the second application was irregular because no fresh points or facts had been raised. It is against the ruling that this instant appeal had been made.
The grounds of appeal are the following:
The trial Judge erred in granting the Respondent’s application for interlocutory injunction when the Respondent failed to establish a right or interest in the land, the subject matter of the suit.
Counsel for the Appellants argued that the leaned trial Judge erred in granting the Respondent’s application for the following reasons: In the first place the second application did not raise any fresh points or facts. In fact Exhibit MA1 relied on by the Judge which was attached to the Respondent’s second application and found at pages 63 and 64 of the Record of Appeal. These are pictures attached to the Plaintiff/Respondent’s supplementary affidavit filed on 21st November 2012 in support of its first application and which was dismissed on 29th November 2012. (Pages 57 and 58 of the ROA).
Secondly, Exhibit MA2, which was also attached to the Respondent’s affidavit in support of application and which can be found in page 65 of the ROA is the site plan that the Respondent claims as that approved by the TDC for the Appellants and that the Appellants have exceeded their boundaries.
Counsel submitted that this is not a fresh fact as laid down by Amissah J.A. in Vanderpuye vrs Nartey 1977 1 GLR 428 at 430. The reason being that the site plan is not for the Respondent and they have not even established the identity of the land they claim as theirs. Also they have not indicated the boundaries of the land that they allege that the Appellants has encroached upon or trespassed on and which they applied for an order to restrain them. This submission in our view is right.
In the case of Anane & Others vrs Donkor & Anor. 1965 GLR 188, the Supreme Court laid down the principle that a claim for declaration of title or an order of injunction must always fail, if the Respondent fails to establish positively the identity of the land claimed with the land, the subject matter of the suit. Even though the Respondent in his affidavit in support of the application stated in paragraph 5 that he is the allodial owner of Nungua lands and has duly registered same, he failed to exhibit the site plan or any document(s) of registration of the land which he sought to restrain the Appellant.
Furthermore, he failed to establish positively the identity or boundaries of his land vis a vis the Appellant’s land. In Anane & Others vrs Donkor and Anor. (supra) Ollenu JSC stated at page 192 as follows:
“Where a court grant declaration of title or makes an order or injunction in respect of land, the land the subject matter or that declaration should be clearly identified so that an order for possession can be executed without difficulty, also if the order for injunction is violated, the person in contempt can be punished . If the boundaries of such land are not clearly established, a judgment or order of the will be in vain.”
The Respondent claims that he is the allodial owner of the Nungua lands. The Defendant/Appellants however claims that the Nungua lands, including the land in dispute, were acquired by the Government of Ghana in 1952 and leased to the TDC. A copy of the lease is attached to the Appellant’s affidavit in opposition to the first application which was refused and this can be found on page 19 of the ROA. This fact was not denied by the Respondent.
The Appellants therefore contend that after the acquisition of the land by the Government of Ghana in 1952, the Respondent lost any title, right of interest in the land in dispute. In the case of Centracor Resources vrs Boohene (1992-93) part 4 GBR 1512 CA (Centracor) Kpegah JSC at 1516 said:
“My approach has always been that a Plaintiff who seeks an order for interim injunction must show the right he seeks to protect really exist and that there has been an unjustified interference by the Defendant and such interference is likely to continue. This to me will involve an examination of the relative strength of the parties.”
Kpegah JSC relied on American Cynamid Co. vrs Ethicon Ltd 1 AER 504 & Wakefield vrs Duke of Buccleugh 91865) 12 LT 628. Similarly, Sophia Adinyira JSC in Owusu vrs Owusu Ansah & Anor [2007-2008] SC GLR 870 at 876 stated as follows:
“The fundamental rule therefore is that a 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 only be determined by considering the pleadings and affidavit evidence before the court.”
It is the Appellants’ contention that after the acquisition of the Respondent’s land, including the land, the subject matter of this suit in 1952, by the Government, the Respondent lost any title, right or interest in the land.
The land acquired by the Government from the Nungua Stool has not been re-vested to the Nungua Stool and remains government land and not stool land. This position is supported by Prof. Modibo
Ocran JSC in the Supreme Court case of Omaboe III & Others vrs Attorney General and Lands Commission (2005-2006) SC GLR 579 where he held that:
“Upon a true and proper construction of article 267 (1) of the 1992 Constitution, the Accra-Tema City Stool Lands (Vesting instrument, 1964 (E1 108 of 1964), made under Section 7 (1) of the Administration of Stool Lands Act, 1962 (Act 123) has not lapsed. The purpose of the framers of the 1992 Constitution, whether viewed in term of original intent or a purposive or contemporary intent, was to resolve the old problem of vesting stool lands in favour of stools as clearly reflected in the language of article 267 (1) of the Constitution. However article 267 (1) did not de-vest the President of the Government of Ghana of all lands which were once stool lands but had become so vested under section 7 of the Administration of lands Act, 1962, (Act 123), nor did article 267 (1) have the effect of retroactively re-vesting all those lands in original owing stools. In effect, article 267 (1) does not cover lands that were not stool lands on the coming into force of the 1992 Constitutions”.
In the case of Musicians Union of Ghana vrs Abraham 1982-83 GLR 337, Cecelia Koranteng Addo J in considering a similar application for an interim injunction at page 343 said as follows:
“This is an interlocutory application for an injunction, even though the courts have moved from the old stance of insetting on the establishing a prima facie case, to a stand where the balance of convenience is now the factor which should in a large measure weigh with the court, it is necessary to be satisfied that the applicant’s case is not frivolous or vexations. The Plaintiffs are claiming that there is a violation of their rights so they must at least show that they have those rights which have been infringed. They must show that they cannot be compensated in damages.”
The learned judge then proceeded to consider and adopt with approval the reasoning of the House of
Lords in the case of American Cynamid Company vrs Ethicon Ltd (1975) AER 504 at 509 as follows:
“The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of the rights for which he could not be adequately compensated in damages if the uncertainties were resolved in his favour at the trial, but the Plaintiff’s need for such protection must weighted against the corresponding need for the Defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights from which he could not be adequately compensated. The court must weigh one need against the other and where the balance of convenience lies”.
Furthermore, in the case of Memuna Moudy & Ors vrs Antwi [2003-2004] SCGLR 967, Holding 1 per Wood JSC, it was held that:
Land compulsorily acquired by government under the Public Ordinance. Cap 134 (1951) Rev; vests automatically in the government upon a publication in the gazette, and further that by virtue of S.11 of the Ordinance, the acquisition operates to bar and destroy “all other estates, rights, titles, remainders, etc.
The rights, estates, imitations etc are those existing on the land at the date of the acquisition i.e. at the date of the publication of the gazette. Those are the interest which are forever barred or destroyed.
Thus indeed, the Respondent failed to establish a legal right or interest in the land thus the trial judge in the first application was right to dismiss the application and the judge in the second ruling was in error when he granted the injunction. From the principles to be considered in the grant of such applications, the Appellants stand to suffer a greater hardship than the Respondent.
From the foregoing discourse, the appeal has merit and is accordingly allowed. The case is to be remitted to the court below for continuation.