IN THE SUPEIROR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM:-- PIESARE, J.A. [PRESIDING]
APALOO, J.A.
MARIAMA OWUSU, [MS], J.A.
FRIDAY
(1) AKANSAH LARBI
(2) DAVID ADJEI LARBI
VERSUS
(1) IBRAHIM MENSAH ADJETEY
(2) OCCUPEIRS/TRESPASSERS
13TH
H1/84/2008
JUNE, 2008
] … PLAINTIFFS/RESPONDENTS
]
]
]
… DEFENDANTS/APPELLANTS
1st defendant/appellant present, the other parties absent.
Dr. Philip Anderson for S.K. Amoah for the 1st defendant/appellant present.
No appearance on behalf of the respondents.
---------------------------------------------------------J U D G M E N T
---------------------------------------------------------PIESARE, J.A.:- This is an interlocutory appeal, brought by the 1st defendant-appellant,
against the ruling of the High Court, Accra, delivered by Lartey-Young (J), dated 30th
May, 2007.
On 13th March, 2007, the plaintiff-respondents (hereinafter to be referred to
simply as the “respondents”), issued a Writ of Summons against the 1st defendantappellant (hereinafter to be referred to simply as the “appellant”), and some unspecified,
or unknown persons described in the Writ, as Occupiers/Trespassers, claiming:
(a) A declaration of title to all the piece of parcel of land situate lying
and being at Zenu-Ashiaman in Greater Accra Region of the
Republic of Ghana containing an approximate Area of 8.08 Acres
and bounded on the North West by Landed Property measuring
1,100.00 feet more or less on the South East by Landed Property
Measuring 1035 feet more or less on the South West by Landed Property
540.0 feet more or less [EMPHASIS SUPPLIED].
(b) Recovery of Possession.
(c) Perpetual Injunction restraining the defendants, their assignees, agents
or persons claiming through them from entering on or developing or
interfering with the land.
(d) Damages for trespass.
On 24th April, 2007, the respondents followed with an application for
interlocutory injunction to restrain the defendants, their assigns, servants, agents, or
anybody claiming through them from entering or developing the land in dispute pending
the final determination of the suit.
The main grounds upon which the respondents brought that application were:
1. That, they had been in possession of the land since time immemorial
and had been farming on it.
2. That, the land in dispute was also a subject-matter of Statutory Declaration
in favour of the plaintiffs’ family.
3. That, the defendants trespassed unto the land and were developing it at a
fast rate, without the consent of the plaintiffs.
4. And that if the defendants were not restrained by the court’s order of
interlocutory injunction, the defendants would cause a lot of hardship and
inconvenience which could not he adequately compensated in damages.
Let me comment at this stage, that the Statutory Declaration (covering the land)
which was allegedly published in favour of the plaintiffs, was not exhibited to that
application for injunction.
The appellant and the other respondents to that application, opposed the
application on three main grounds:1. That, the application was frivolous because the applicants had failed to
Exhibit the Statutory Declaration upon which they were relying;
2. That, the application was again frivolous, because the applicants had failed
to establish the identity of the land they were claiming.
That, boundaries marked by Landed Property were vague, and did not show
the extent of the land claimed.
That, a court would not grant injunction where the identity of the land was not
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Clear. The case: ANANE & ORS. V. DONKOR & OR, [1965] GLR 188
(SC), was relied upon.
And
(3) That, the defendants would suffer extreme hardship if the application
was granted, since they had been in possession of their land for years.
Now, at the end of the day, after the trial judge had heard the parties, the trial
judge granted the application for interlocutory injunction against the defendants.
Now, for clarity of judgment, I quote below, the full text of the ruling of the trial
judge, which is as follows:“RULING:- The defendant-respondent admitted in his affidavit
in opposition that the plaintiff also owns lands in the area and that the
plaintiffs’ land is separated by a motor road. There is therefore an issue to
identify the plaintiffs’ land as distinct from the defendants’ land or the area in
dispute. However, the photos exhibits annexed to the plaintiffs’ affidavit show
that the defendant is developing or has granted the land for development into real
estates. That is the defendant will deprive the plaintiff of the land before
judgment is delivered. Since the plaintiff is using the land for farming and
farming is the mainstay of the rural folk monetary compensation will not be
adequate for the plaintiff. There is therefore the need to preserve the status quo. I
therefore grant the application subject to the Statutory condition that the
Plaintiff/applicant shall undertake to compensate the defendant adequately upon
prove of any or damage which may be occasioned by this order of Interim
Injunction.
It is therefore ordered that the defendant, his agents, servant, and privies are
restrained from developing the land in real estates alienate any part of it for
the said purpose until further orders in this suit.
Plaintiff shall execute the undertaking and file it before this order shall be
effective.
No cost awarded.”
[Sgd.] Isaac Lartey-Young (J)
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Now, this ruling appears to be very strange. The plaintiff-applicants had not indicated
anywhere, that a motor road marked the boundary between their land, and the defendants’
land. It was, the defendants who had pleaded in paragraph 5 of their Statement of
Defence, that the plaintiffs’ land was separated from theirs by a motor road.
The trial Judge appeared to have proceeded upon the basis that the motor road divided the
two lands, and then proceeded:
“There is therefore an issue to identify the plaintiffs’ land as distinct
from the defendants’ land or the land in dispute…”
It is my humble view, that the trial judge’s acceptance of the motor road as
dividing the two lands, amounted to a rejection of the plaintiffs’ case. It was therefore
wrong for the trial judge to have granted the injunction in favour of the plaintiffs. Again,
the question is: Where was the injunction to operate? On the defendants’ side of the
motor road, or on the plaintiffs’ side of it, or on both?
Now, this is the ruling which the 1st defendant-appellant is aggrieved against, and
has brought this appeal, on four grounds:
(i) The Learned Trail Judge misapprehended the facts giving rise to the
application for injunction and failed to give a proper consideration
to same.
(ii) The Learned Trial Judge erred in granting the application for injunction
in favour of Plaintiffs who could not sufficiently describe their land.
(iii) The Learned Trial Judge erred in the exercise of his judicial discretion.
(iv) The ruling was against the weight of evidence.
The same arguments appeared to have been submitted for all these grounds; and
these are :
1. That, the learned Judge misapprehended the facts of the case; and
2. That, the grant of the interlocutory injunction was not a proper exercise
of discretion, because the plaintiffs could not establish the identity of the
land they were claiming.
Cases relied upon included:
1. Anane & Ors. Vrs. Donkor & Or. [1965] GLR 188 S.C.
2. Traboulsi & Co. Ltd. Vrs. Paterson Zochonis & Co. Ltd. [1973] 1 GLR
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133 (CA).
It was contended on behalf of the respondents in this appeal, that both parties
knew the identity of the land in dispute. The identity of the land was therefore not in
issue. The Supreme Court case: IN RE ASHALLEY BOTWE LANDS: ADJETEY
AGBOSU & OR. VRS. KOTEY & ORS [2003-2004] SCGLR 420 Holding 3 was
relied upon, as authority for the proposition, that where the identity of the land is not in
dispute, ANANE V. DONKOR [1965 GLR 188 (SC), is not applicable.
Now, on this issue as to whether the identity of the land was in dispute, my
answer is YES.
The respondents’ bizarre description of their boundaries, as bounded by LANDED
PROPERTY, makes it impossible to identify the exact piece or parcel of land being
claimed by the respondents.
Moreover, in paragraph 5 of the Statement of defence, the appellant had pleaded
that his land was separated from the respondents’ land, by a motor road, and that the
respondents had crossed the road, and occupied a portion of the appellant’s land. It is not
clear whether the respondents were claiming all the lands on either side of the road, or
what part of the appellant’s land. The identity of the land was therefore clearly in issue.
Now, the granting or refusal of injunction is a matter for the discretion of the trial
Judge.
In the case:
MONTERO & OR, V. REDCO LIMITED & OR. [1984 – 86] GLR 710 (CA)
Abban J.A. ( as he then was) said: (page 714):
“An interim injunction, like all equitable remedies, is discretionary and
normally where there is a legal right which can be asserted either at law
or in equity, the court has a discretion to grant an injunction in protection
of that right. Indeed the court’s jurisdiction to grant an injunction is
practically unlimited and would be exercised in any case in which it is
right or just to do so, having regard to “settled legal reasons or principles.”
But the Court of Appeal has power to interfere with a trial court’s exercise of
discretion, where the trial court has applied the wrong principles, or has reached a wrong
conclusion which would work injustice between the parties, or where the trial judge has
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misapprehended the evidence in the exercise of his discretion.
Thus, in the case:
YEBOA & OR. V. BOFOUR [1971] 2 GLR 199 (CA) at page 221 AZU
CRABBE JA as he then was, said:
“The Court of Appeal will not interfere with the exercise of that discretion
unless it is satisfied that the Judge applied a wrong principle or can be
said to have reached a conclusion which would work a manifest injustice
between the parties.”
And in the case:
TRABOULSI & CO.
V
PETERSON ZOCHONIS & CO. LTD. [1973] 1 GLR 133 (CA) per Azu
Crabbe (JA) as he then was. Azu Crabbe said (page 139 paragraph 2):
“…Where a Judge of first instance misapprehends the evidence in the
exercise of his discretion, this will be sufficient justification for
interference by the appellate court…”
Now, did the learned trial Judge in this appeal, apply the right principles, in the
exercise of his discretion, in granting the order of injunction? Or simply, was the learned
Judge right in granting the order of Interim Injunction against the appellant?
In the off-quoted case of:
VANDERPUYE V. NARTEY [1977] 1 GLR 428 (CA) per Amissah (JA) there
was, an application for an order for interim preservation of property. The Court of
Appeal there held that the principle governing the granting or refusal of application for
injunction is:
[quote – page 432]:
“Whether on the face of the affidavits there is the need to preserve the
status quo in order to avoid irreparable damage to the applicant and
provided his claim is not frivolous or vexatious.”
The court continued at the same page as follows:
“The question for consideration in that regard revolves itself into
whether on balance greater harm would be done by the refusal to grant
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the application than not. It is not whether a prima facie case however
qualified and with whatever epithet, has been made.”
It is clear from this case, that where a Judge is seised with an application for the
preservation of property, the Judge’s first duty is to determine whether the applicant’s
case is not “frivolous or vexatious.:
Indeed, in
VANDERPUYE V. NARTEY, the court did engage in this exercise as follows:
[quote – at page 432 of that case]:
“Is the appellant’s action frivolous or vexatious? We do not think so
from a reading of the record. Is the claim for relief sustainable in the
light of the papers submitted? Here is a case in which the pleadings,
affidavits, disclose evidence in support of the appellant’s contention
that the properties in preservation of which he asks for the appointment
of manager pending the determination of the action are part of the
estate left to him by his father. There is further evidence that some
properties which had at some time been held out by the respondent as part
of the estate had been disposed of. No account has been given of the
administration by the respondent although one has been called for by the
appellant for years. That there is such evidence, cannot be denied. True
the respondent explains it. But then at this point there is established
the requirement of the seriousness of the claim.”
In the instant appeal therefore, the question is: Was the respondents’ claim “not
frivolous or vexatious?”
I am of the humble opinion that the respondents’ claim is frivolous. By the
bizarre description of the respondents’ land in the Writ, as it is, I dare say, that the
respondents cannot have Judgment for a Declaration of title. The Respondents have
described their land as bounded on the North-West by Landed Property, South-East by
Landed Property, and South West by Landed Property.
This description of boundaries of land, is clearly frivolous. It cannot identify the
extent of the land which the respondents were claiming. The learned trial Judge seriously
erred because, instead of basing his ruling on the respondents’ own showing on their
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boundaries, he premised his said ruling on the motor road boundary-mark as pleaded by
the defence. Having accepted the motor-road as marking the boundary between the
respondents’ land and the appellant’s land, he should not have proceeded to grant the
injunction against the appellant; for it is not clear, as to where the injunction was to
operate; was it to operate on the respondents’ side of the road, or on the appellant’s side
of the road, or on both lands?
I am of the well-considered opinion that the identity of the land was in dispute.
The case of ANANE & ORS. VRS. DONKOR & OR. [1965] GLR 188 SC was
therefore applicable.
The law is clear, that an order of injunction cannot be granted by a court for the
preservation of a piece or parcel of land, unless the land can be clearly identified, so that
if the order is violated, the person in contempt can be punished.
In the case:
ANANE & ORS. VRS. DONKOR & OR. [1965] GLR 188 (SC) Ollenu (JSC)
who read the opinion of the court, said at page 192 last paragraph as follows:
“Where a court grants declaration of title to land or makes an order
for injunction in respect of land, the land the subject of that
declaration should be clearly identified so that an order for possession
can be executed without difficulty, and also if the order for injunction
is violated the person in contempt can be punished. If the boundaries
of the land are not clearly established, a judgment or order of the
court will be in vain. Again, a Judgment for declaration of title to
land should operate as res judicata to prevent the parties relitigating
the same issues in respect of the identical subject-matter, but it cannot
so operate unless the subject-matter thereof is clearly identified.
For these reasons a claim for declaration of title or an order for injunction
must fail if the plaintiff fails to establish positively the identity of the
land to which he claims title with the land the subject-matter of the suit.”
In the result, I am satisfied that the learned trial Judge wrongly exercised his
discretion in granting the order of Interim Injunction dated 30th May, 2007. If the learned
trial Judge had carefully considered the cases:
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1. VANDERPUYE V. NARTEY [1977] 1 GLR 428 (CA).
2. And, ANANE & ORS. VRS. DONKOR & OR. [1965] GLR 188 (SC)
and the principles laid down in them, he would not have granted the order of Interim
Injunction of the 30th May, 2007.
I am satisfied that the learned trial Judge exercised his discretion on wrong
principles of law.
The appeal is, in the circumstances, allowed. The Ruling of the court below dated
30th May, 2007, is hereby set aside, together with all consequential orders made therein.
[SGD.]
E.K. PIESARE
JUSTICE OF APPEAL
I agree.
[SGD.]
R.K. APALOO
JUSTICE OF APPEAL
I also agree.
[SGD.] MARIAMA OWUSU [MS]
JUSTICE OF APPEAL
COUNSEL- DR. PHILIP ANDERSON FOR S.K. AMOAH FOR 1ST APPELLANT.
~eb~
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