IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2016
CHRISTOPHER DZAH - (Plaintiff)
JOSHUA KODZO AGBO AND 3 OTHERS - (Defendant)
DATE: 21ST JUNE, 2016
SUIT NO: E1/39/2014
JUDGES: JUSTICE IMORU ZIBLIM HIGH COURT 3 JUDGE
MR. GODWIN KPOBLE FOR THE PLAINTIFF/APPLICANT
MR. S.M.K. DZIKUNU FOR THE DEFENDANTS/RESPONDENTS
On the 17th March, 2014 the Plaintiff who calls himself a principal member of the defendants clan sued the defendants herein for several reliefs. Indeed the reliefs are seven (7) but the most germane to the discussion of this Motion for Injunction is only the following:
“Declaration that the defendants can only deal with the clan's lands with the full concurrence of all its principal members and head and not only a few of them."
In his statement of claim, the plaintiff averred, that as a principal member of the Gazi Clan, he has its interest at heart, its progress for that matter and as a principal member, institutes the instant suit to protect its interest and ensure accountability. That the headship of the Gazi Clan rotates among the families and currently the 2nd defendant is the head. That the children of the members, by practice and convention, since time immemorial, continue to farm portions their fathers farmed on before. That the defendants have however disturbed this time tested convention and practice by indiscriminately disposing of lands being used, occupied and possessed by members of the clan aside those not occupied. The plaintiff averred also that the defendants have been talked to severally to stop their acts but to no avail. The plaintiff further said that the defendants have disposed of lands and continue to do so despite several persistent or consistent pleas by the members not to do so. Finally, the plaintiff, in his statement of claim, deposed to the fact that the defendants, despite the sales have refused to account to members of the clan despite several demands.
So these have been the concerns of the plaintiff when he issued the Writ and tacked same with his Motion for an interim injunction. The plaintiff says that he is suing as a principal member of his family. Actually he has sued the principal members of his family including the second defendant who is the head of the Gazi Clan. The question is whether the plaintiff has locus standi in this matter to sue and for that matter to apply for an interim injunction. It can be seen from the Writ that the plaintiff is suing as a principal member of the Gazi Clan. He has also sued other members. The members sued are also principal members of the Gazi Clan. Indeed the clan that the plaintiff belongs to. And, the 2nd defendant Togbe Agbo III is the head of the Gazi Clan. And so, even though the principle is that; if the plaintiff were to be suing as a principal member of his family, the Writ he issued should have had such indorsement. In any case, if even the principal members were seen to be dissipating family property to the detriment of the whole family, the plaintiff, if even a junior member, could sue on the authority of Kwan v. Nyieni. Here in respect of this case, the plaintiff has not sued any stranger on behalf of his family members to protect family property but has sued the principal members themselves including the head of the Gazi family. In the instance, I believe that the plaintiff is properly here. In discussing this matter, i.e. an application or Motion on Notice for interim injunction, one should be careful not to go into the merits of the case. This being a land matter, the merits of the case will be;
“whether or not the defendants have been selling other lands apart from Degloe land and whether or not the defendants have been accounting to the clan or family and whether or not the defendants consult the broader family/clan members before using or disbursing its monies."
As I said, in discussing this matter, one should be careful not to discuss the merits of the case. This is to say that at this stage, the legal rights of the parties should not be determined. This is more so when this application is an interlocutory one.
Frimpong v. Nana Asare Obeng II (1974) 1 GLR 16. But as I was saying, the defendants have pleaded and have denied paragraph 4 of the statement of claim and says that except that the headship rotates, the 1st defendant is the head of the Gazi Clan. The defendants further added in their pleadings that there is only Togbi Agbi III in the Gazi Clan who is also one of its principal members. Therefore it is said that when a defendant pleads ownership and a plaintiff applies for injunction, then the title of the plaintiff is in issue Nkyi II v. Kumah (Badu) Substituted (1959) GLR 281 Van Lare. In this matter again and as I said, the defendants have claimed ownership of the land in issue when the defendants pleaded that they the defendants sold land from Degloe land for several reasons. Among the reasons are to prevent further sale of the land in the area by Letsa family and to finance land litigation the clan is or may be involved in. And so, from the challenges as put forth by the defendants, the plaintiff, in praying for an injunction, must show a legal right and a prima facie case to warrant the grant, and that his case is not frivolous and vexatious. What is more, the plaintiff's application must be in relation to the subject matter and here the subject matter is land. Anane and others v. Donkor and another and Kwarteng and another (consolidated) SC. (1965) GLR 188. Vanderpuye v. Nartey (1971) 1 GLR 428 C.A. In Vanderpuye v. Nartey the Court of Appeal was of the opinion that if the application for injunction was not granted, the administrator of the deceased or the personal representative of the deceased will dissipate the property of the deceased such that if the applicant who happened to be the son of the deceased, gets judgment or wins the case, he will only have a hollow judgment. It was also established in that case, that the applicant had established a legal right for the grant and that the case of the applicant is not frivolous and vexatious.
When the courts talk of a prima facie case and a legal right to be made out by an applicant, it means a lot. Here, the applicant had given a power of attorney to one Benjamin Dzah on the 22nd day of May, 2015 to prosecute the case on he the applicant's behalf. This power of attorney was subsequently revoked by the Plaintiff on the 19th May, 2015. The instrument of the 19th May, 2015 is said to have revoked an instrument of 30th March, 2013 appointing Benjamin Dzah and Nelson Ohene as the applicant's lawful attorneys for the prosecution of this case. Confusion galore. But I shall, in this write up think about only the substance of this application and not the form. The substance being that; it is no longer the attorney of the plaintiff who is applying for the injunction but the plaintiff by himself who is said to have the legal right and who is said to be able to make out a prima facie case. Again I have seen from the pleadings that the subject matter has not been described even though the requirement is that the subject matter of an application for injunction must be properly delineated. Indeed, both the applicant and the respondents have not delineated the boundaries of their respective areas of the land in their pleadings. In these matters especially issues about land, it is good to describe the boundaries so that if an order or judgment is made or given, it will be in respect of a specific area. This, if done, will avoid multiplicity of suits. In any case, I will discuss this matter of injunction regardless. This is because the parties, by their pleadings, know what we are talking about especially the area of land or areas of land in contention. I thought that the plaintiff had revoked the power of attorney offered one Benjamin Dzah to prosecute this case but my reading of the case docket showed that when the application for this interim injunction was filed, it is Benjamin Dzah the attorney of the plaintiff who swore the affidavit. Too much confusion. I would have said at once that there is no application before me. This is because an application or a Motion cannot be filed by a non-existent person. A non-existent person because the power of the deponent in respect of the conduct of the whole case has been revoked. And it has not also been suggested that the plaintiff has personally taken over the conduct of his own case. If the plaintiff had taken over the personal conduct of his case it would have been shown on the record. The plaintiff would have sworn personally to the affidavit in support of the application for the grant of injunction. The plaintiff never did. But we have come too far and I just intend to discuss the merits of this application regardless!!
And so, in his application in support, the plaintiff averred that the defendants/respondents have continued to engage in the indiscriminate sales of the family's lands despite the pendency of this suit. The defendants have refused to account up till date for the long period the defendants have indiscriminately sold portions of the family land. That the defendants have rather intensified the sales. The plaintiff is therefore praying that the Status Quo Ante be maintained until the final determination of this matter. And that the defendants would suffer no inconveniences and hardships if the injunction is granted in the interim. Yes, the status quo and balance of convenience. Who will suffer greater hardship or hardships per se if the injunction is granted or refused. In his scanty statement of case, counsel for the plaintiff/applicant, in support of the grant said;
“The plaintiff avers that it is very important that the Status Quo is maintained until the case is finally determined. The defendants would suffer absolutely nothing if the interim injunction is granted either by way of hardship or inconvenience. The court must in the interest of justice, fairness and equity grant the Motion for interlocutory injunction.”
The defendants have opposed this application. The defendants have opposed this application because the application is incompetent, as the deponent to the affidavit in support of the grant of the interim injunction is not known. He i.e. the applicant, is not the real plaintiff and the applicant has no power of attorney. This aspect has already been observed somewhere in this judgment. Apart from the above, the defendants are opposed to the grant of the interim injunction along these reasons;
(12) The proceeds from the sale were used partly for the clan stool, to pay for litigation involving the clan and on a school building for the Hoviepe Community Part of the money was also given to each of the three families for the benefit of the membership of the family.
(13) A portion of land was sold to other people in order to encourage people to settle in the Hoviepe area in order to increase the population of Hoviepe which always has been denied some projects by the District Assembly on account of low population. For example, because Hoviepe has less people than one thousand inhabitants; it was denied CHIPS Compound.
(14) Before the land was sold, the clan met and took a decision. An announcement was made in the community at a community rally to inform that the clan was offering land to people to settle in the community. Part of the money realized from the sale was used for the clan. A portion of the money went to the youth of Hoviepe.
(15) The clan sells land after the purpose for sale was considered and approved of by the leadership of the clan.
(16) The clan gave a portion of land for the schools in Hoviepe, to E. P. Church for a chapel and the Hoviepe Community cemetery. All these were done after a decision was made by the clan leadership.
(17) To stop the clan from selling land will mean to prevent the clan leadership from raising money, when necessary, for clan use to satisfy other development needs.
(18) The family has not sold any portion of the land since the present case commenced..................”.
And in his submission of case in opposition to the grant, Counsel for the defendant/respondent opined;
“In this case the plaintiff, a member of the clan is seeking an order of interlocutory injunction to restrain the clan from selling clan's land. This order if made will stifle the clan and work hardship for it. A decision to sell clan land should be made by the leadership of the clan taking into account the needs of the clan. At best the members of the clan may demand an account rendered to them if they can prove that family land was sold for causes either than the genuine requirements of the clan.”
Yes, we talked of preserving the Status Quo and balance of convenience. The hardship principle and the party who suffers most if there is a grant or not. The theory of "balance of convenience,” the theory of “preservation of the status quo”, the theory of "greater hardship" and the theory of "threatened and infringed rights” have met varying concepts and interpretations. It has been advocated that an applicant for an interim injunction must show that his rights are threatened or infringed. I have already observed that an applicant must also show that he has a legal right to protect and he must establish a prima facie case to protect that right. And when greater hardship will cause a respondent, an interim injunction will not be granted. Also there must be a serious question to be asked or dealt with and whether on the pleadings, such serious question is disclosed to warrant the grant and whether one party has shown a serious question than the other. Whether on the balance of convenience, it will be equitable to grant same. In Pountney v. Deogah C.A. (1987/88) GLRD 13 at 26 the often quoted case in matters of applications for injunction, the Court of Appeal discussed the issue of balance of convenience and that the applicant's case should not be frivolous and vexatious. And that the requirement that a prima facie case be first established is not sacrosanct and that if at the time of the application, there are documents and affidavits showing title and a legal right, then a prima facie case has been established. The other decided cases under consideration may be the following;
Amoah v. WAEC
(1971) 1 GLR 63
Mensah v. Moro
(1981) GLR 728
(3) Majolagbe v. Larbi
(1959) GLR 90
Food Specialities (Ghana)
Ltd. v. Technicas
(1987/88) GLRD 4 at 7 C.A.
And in the case of N artey and another v. Apeadu (No.2) (1993/94) GBR the court declared that to grant or not to grant an interlocutory injunction is a discretionary exercise for the court. I believe however that the use of that discretion should be fair and candid and should be used judicially and of course that is to say that taking the above laid down principles into consideration. One instance in which the court used its discretion was in the case of Odonkor v. Amartei S. C. (1987/88) GLRD 54 at 118. In that case both parties claimed land from the same ancestors. The court restrained both parties to prevent waste so that a successful party at the end of the case will not find that his judgment is nugatory. The court was also of the opinion that if the status quo ante is kept to the end, then multiplicity of suits may be avoided. In respect of this application before me, I am of the considered opinion that not only is the applicant's application tardy, it is also bereft of any legal title. The applicant has not adduced any prima case to warrant the grant of an interlocutory injunction. Indeed the applicant, from the facts, is not in possession. The defendants are. And so, to grant this application will cause greater hardship to the defendants. I am saying this because if the defendants are restrained, the development of the Hoviepe community will stall. Anaman v. Osei Tutu (1970) 1 GLR III. Indeed, the affidavit of the defendants have shown the greater works they are doing for their community out of the judicious use of the land. If at the end of the case, and the court sees that the plaintiff, being a member of the defendants' clan is entitled to compensation, the court will surely sanction the grant or offer compensation. In the instance therefore, this application is dismissed. I award costs of GH¢1,000.00 against the plaintiff and in favour of the defendants.