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Property - Ownership -
Declaration of title - whether the decision of
the Court of Appeal in upholding
the plaintiff’s writ was in
accordance with the settled
practice of the court a -
whether there were legitimate
grounds for the Court of Appeal
to reverse the decision of the
trial court
HEADNOTES
The facts of this case appear
not to be seriously controverted
and fall within a very narrow
compass. The house in dispute
described as H/NO C78 (now B7/2)
Wenchi in the Brong Ahafo Region
was originally owned by one
Seidu Manje alias Seidu Banda,
alias Asiedu Manje. The
plaintiff/appellants/appellants
who for sake of brevity shall be
referred to as the appellants
commenced action at the High
Court, Wenchi against the
defendants/respondents/respondents
who shall be referred to in this
delivery as the respondents. The
first appellant is the niece of
one Kofi Amponsah, the father of
the second appellant. The third
appellant is the customary
successor of the said Kofi
Amponsah. The respondents are
the descendants of Seidu Manje
and they claimed he was their
grand uncle. It was the case of
the appellants that Kofi
Amponsah in his lifetime bought
the house in dispute from Seidu
Manje. This assertion was denied
by the respondents as they
contended that Seidu Manje never
at any point in time sold the
house to Kofi Amponsah but that
Seidu Manje only pledged a
portion of the house to Kofi
Amponsah for an amount of ε1. In
the trial court, the appellant
sought a declaration of title in
respect of the disputed property
and the respondents also
counterclaimed for substantially
the same reliefs as claimed by
the appellant -
HELD :-
The appeal before us
accordingly fails and I affirm
the decision of the Court of
Appeal in the matter herein. The
result is that the decision of
the trial High Court is set
aside and in place thereof is
substituted an order allowing
the claim of the plaintiff. As
earlier on said, from the nature
of the contest, the plaintiff’s
right to the injunctive reliefs
is predicated on title being
proved by him as the learned
justices of the Court of Appeal
found. Accordingly, the
plaintiff succeeds on the
reliefs claimed by the amended
writ of summons. On the facts of
this case, the learned justices
of the Court of Appeal were
right in amending the claim of
the plaintiff herein to include
a declaration of title in order
not to defeat justice by a mere
technicality as the action was
substantively contested by the
main parties on the question of
who had a better title to the
property.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil
Procedure) Rules, 2004, CI 47.
Order 2 rules 2 and 3 and 6 and
Order 3 rule 3
1992 Constitution Section
34(3) of the Transitional
Provisions Public Tribunals Law,
1984 (PNDCL 78) Public
Nungua Chieftaincy Affairs
(Nii Odai Ayiku IV)(Prohibition)
Instrument 1983 EI.18)
CASES REFERRED TO IN JUDGMENT Bloxam v Metropolitan Rly
Co (1868) 3 Ch. App 337 at 354;
Colls v Home and Colonial
Stores Ltd[1904] AC 179 at 188
Republic v High Court,
Tema Ex parte Owners of MV Essco
Spirits [2003-2004] SCGLR 689
In Re Nungua Stool
Affairs; Odai Ayiku IV v
Attorney-General (Borketey Laweh
XIV Applicant) 2010 SCGLR 413
Tsatsu Tsikata (No. 1) v
Attorney-General [2001-2002]
SCGLR 189.
Ellis v Attorney-General
[2002] SCGLR 24
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of
England, Fourth edition para 926
at page 522
ROA stated as follows;
“Case No. 287/85, The People Vrs
Akua Nyamekye Serwaah pages 268
to 283
DELIVERING THE LEADING
JUDGMENT
GBADEGBE, JSC:-
COUNSEL.
Nana Kwasi Boaitey for the
Defendant/Respondent/Appellant.
Samani Zakari for the
Plaintiff/Appellant/Respondent.
JUDGMENT
GBADEGBE, JSC:-
My lords and respectful brethren, the
question for our determination
in this appeal turns on whether
the decision of the Court of
Appeal in upholding the
plaintiff’s writ was in
accordance with the settled
practice of the court and also
whether there were legitimate
grounds for the Court of Appeal
to reverse the decision of the
trial court on the disputed
questions of fact? In this
delivery, the parties will
conveniently be referred to by
the designation which they bore
in the trial court.
As the question raised by the
appellant concerning the
validity of the writ affects the
jurisdiction of the trial court
in the matter, I would turn my
immediate attention to it. I
have carefully considered the
respective briefs of the parties
to the appeal herein and the
record of appeal before us and
have reached the conclusion that
as the right of the plaintiff to
the order of perpetual
injunction was resisted by the 2nd
defendant who also
counterclaimed for a declaration
of title to the disputed
property, the plaintiff was
required to prove his title to
the property and consequently
there was before the court a
claim that was substantive in
nature. It is well established
without any conflict of opinion
that a court cannot consider the
plaintiff’s right to a permanent
injunctive relief without first
considering the right on which
such a claim is based. In my
view therefore, the writ, which
was taken out by the plaintiff
in the action herein on May 02,
1986 was competent.
Although generally, an injunction may
not be granted for actionable
wrongs where damages would
suffice as adequate remedy,
there are situations in which
the wrong is irreparable and or
in respect of a contact or
agreement which is ‘sui generis’
such as that for the purchase of
a building as in the case before
us. In such cases, a court may
intervene at law if the right to
the remedy is clearly
established from the evidence
placed before the court.
Describing the cases in which
the court will intervene to
grant injunctive reliefs, the
learned authors in Halsbury’s
Laws of England, Fourth edition
para 926 at page 522 state as
follows:
“By Irreparable
injury” is meant injury which is
substantial and could never be
adequately remedied or atoned
for by damages.”
It appears from the authorities that
the fact that the plaintiff may
have a right to be awarded
damages is no objection to the
court’s exercise of the
jurisdiction to grant an
injunction in his favor. See:
(1) Bloxam v Metropolitan Rly Co
(1868) 3 Ch. App 337 at 354;
(2) Colls v Home and Colonial
Stores Ltd[1904] AC 179 at
188.In the action with which we
are concerned in these
proceedings, the plaintiff
sought the injunctive reliefs to
prevent the 1st
defendant from making an
improper transfer of the
property to the 2nd
defendant; a relief which is in
its nature substantive within
the scope and intendment of
Order 2 rules 2 and 3 and 6 and
Order 3 rule 3 of the High Court
(Civil Procedure) Rules, 2004,
CI 47. There can be no
justification in principle for
damages being in their nature
substantive and denying to
perpetual injunction a similar
attribute as the right to either
relief is based on the clear
establishment of a right to such
relief. Such is the substantive
nature of injunctive reliefs
that in appropriate cases,
damages may be awarded in
addition. Dealing with the
claims for the determination of
the trial court, there is the
common claim of both the
plaintiff and 2nd
defendant by which they each
seek injunctive reliefs against
the plaintiff. Whiles the
plaintiff seeks an order of
perpetual injunction restraining
the 1st defendant
from making a transfer of the
disputed property to the 2nd
defendant, the 2nd
defendant seeks to restrain
plaintiff from making a transfer
of the property to the
plaintiff. There can be no doubt
that in the circumstances, the
court was required to decide as
between the said claimants and
the 1st defendant who
had a better title to the
property at law; a consideration
which rendered the writ before
the court substantive in nature.
The 2nd defendant in his
submissions before us placed
great reliance on the case of
Republic v High Court, Tema Ex
parte Owners of MV Essco Spirits
[2003-2004] SCGLR 689 but the
said decision does not advance
his case as the facts in that
case are distinguishable; the
plaintiff having only endorsed
the writ with an order to
furnish security for an arbitral
award then pending between the
parties in London. In the
instant case, the writ was
endorsed for perpetual
injunctions. As said in the
preceding paragraph, perpetual
injunctions are substantive
reliefs and I have no doubt that
if from the nature of the
application with which the
learned justices were concerned
in the Exparte Owners of MV
Essco case (supra), it was open
to them to have considered the
relief of perpetual injunction
for the purpose of reaching a
decision in that matter, they
would have included it in the
examples of substantive reliefs
to which reference was made. The
non-inclusion of perpetual
injunction in the categories
mentioned in that judgment does
not therefore mean that it is
not in its nature a substantive
relief. It follows that the
interpretation which the 2nd
defendant sought to place on the
passage of the judgment to which
reference was made in support of
his contention as the only
instances in which endorsements
on a writ of summons might raise
substantive claims for
determination is not only wrong
but strained. The reliefs or
remedies mentioned in the said
passage are all like injunctions
dependent upon the establishment
of a right to be awarded
executory remedies by a court.
Damages, like injunctions are
executory remedies or reliefs
which a court might grant to a
party but such reliefs are not
on their own but predicated upon
the clear establishment by the
claimant of a right either under
contract or statute in his favor
against the party who denies the
existence of any such right. The
question of the validity of the
writ having been properly
determined by the Court of
Appeal, I now turn my attention
to the appeal on the merits.
The decision of the Court of Appeal
that is under attack before us
was from a careful reading of
judgment reached after the
learned justice who authored the
opinion to which his colleagues
expressed agreement, carefully
evaluated the rival versions of
fact placed before the trial
court as contained in the record
of appeal on which the
re-hearing was based. I think
that the judgment discloses a
well thought out approach and
find no legitimate complaint in
regard to the reasons provided
by the Court of Appeal for
intervening to reverse the
decision of the trial court
which was to a very large extent
influenced by the order for a
vesting of the property in the 2nd
defendant. In my view as the
tribunal which made the order
was exercising a criminal
jurisdiction, it lacked the
legal authority to have made an
order, which is only available
in civil proceedings. It is
trite learning that when a party
relies on a judgment before a
court in a subsequent case as
the basis of his title, the
first question that the court
must be satisfied on is whether
the decision was made within
jurisdiction. As this aspect of
the matter has been dealt with
in great detail by my worthy
brother Pwamang JSC, whose draft
opinion I have had the advantage
of reading and with which I
express my agreement, I am
content to leave any further
consideration of the said point
beyond saying that it was an act
made in excess of jurisdiction
and for that matter nothing of
consequence attaches to it.
On the preference of the Court of
Appeal for the version related
by the plaintiff , I would like
to say that the uncontroverted
evidence of the 2nd
defendant that when his vendor
was taking him to the property,
he abandoned him is a clear
indication that he knew that the
transaction was one in respect
of which he could not give the
purchaser, vacant possession and
it having been testified to by
the 2nd defendant as
part of her case is decisive to
the trier of fact of the fact
that the vendor, the 1st
defendant knew that some other
person had a better right to the
property namely the plaintiff
herein. It is clear from this
evidence which is one against
the interest of the 2nd
defendant that in the
circumstances of this case, her
cause of action must be against
the 1st defendant.
The question which arises from
the facts is why the plaintiff
should bear the consequences of
1st defendant’s
fraudulent conduct which was
subsequent to his purchase of
the property. It seems to me
that the circumstances in which
the 1st defendant
abandoned the 2nd
defendant in the course of
taking him to the property are
such that there was a duty on
him to speak and his silence
must be construed as an
admission of the title of the
plaintiff. Equally baffling is
the silence of the 2nd
defendant when his grantor
decamped from him at a very
critical time in the chain of
events by which he was required
to handover possession of the
property to him. The conduct of
the 1st defendant is
explicable only in terms of
fraud and justified the Public
Tribunal in convicting him on
that charge. On a total
consideration of the evidence as
we are indeed, bound to do, the
learned trial judge reached an
unreasonable and or perverse
verdict on the question of
ownership of the property and
justified the learned justices
of the Court of Appeal to
intervene for the purpose of
making a judicial correction in
terms of the effect of the
evidence contained in the record
of appeal and by so doing
putting an end to a glaring
instance of miscarriage of
justice.
The appeal before us accordingly
fails and I affirm the decision
of the Court of Appeal in the
matter herein. The result is
that the decision of the trial
High Court is set aside and in
place thereof is substituted an
order allowing the claim of the
plaintiff. As earlier on said,
from the nature of the contest,
the plaintiff’s right to the
injunctive reliefs is predicated
on title being proved by him as
the learned justices of the
Court of Appeal found.
Accordingly, the plaintiff
succeeds on the reliefs claimed
by the amended writ of summons.
On the facts of this case, the
learned justices of the Court of
Appeal were right in amending
the claim of the plaintiff
herein to include a declaration
of title in order not to defeat
justice by a mere technicality
as the action was substantively
contested by the main parties on
the question of who had a better
title to the property.
SGD. N. S.
GBADEGBE
(JUSTICE OF THE
SUPREME COURT)
PWAMANG, JSC:-
My Lords, I had the
benefit of reading beforehand
the lead judgment and agree with
the reasoning and conclusions
stated eruditely therein by my
respected brother Gbadegbe, JSC
that this appeal be dismissed.
However, I wish to comment on
the appellant’s ground of appeal
in which she complains that the
Court of Appeal purported to
interpret the 1992 Constitution
and in the process exceeded its
jurisdiction by questioning an
order of a Public Tribunal
established by the erstwhile
Provisional National Defence
Council (PNDC).
The brief facts relevant
to this delivery are that the
original owner of the house in
dispute indulged in a double
sale of it to the parties in
1985. When the appellant herein
was being taken to the house
after his purchase, the owner
abandoned him and ran away on
approaching the house. The
appellant got to know that the
original owner behaved that way
because she had earlier on sold
the same house to the respondent
herein who was in occupation of
it. The appellant reported a
case of fraud against the
original owner wherefore she was
prosecuted in the Ashanti
Regional Public Tribunal,
Kumasi. After convicting her the
Tribunal made an order vesting
the disputed house in the
appellant who was the
complainant in the case and then
sentenced the original owner to
3 months IHL. The appellant
thereafter laid claim to the
house wherefore the respondent
brought an action against the
original owner and the appellant
in the High Court, Kumasi for
injunction and other reliefs.
The respondent led evidence to
prove that his purchase was
earlier in time to that of
appellant but the High Court in
its judgment dated 23rd
July, 2010 held that the order
of the Ashanti Regional Public
Tribunal vesting the property in
the appellant prevailed over
whatever interest respondent
acquired in the house. The High
Court further held that it was
precluded by Section 34(3) of
the Transitional Provisions of
the 1992 Constitution from
questioning the order of the
Public Tribunal.
Upon an appeal the Court
of Appeal reversed the High
Court decision stating that the
1992 Constitution has given
every aggrieved person a right
to appeal or seek judicial
review so in the era of
Constitutionalism, the order of
the Tribunal which was made
contrary to the jurisdiction
conferred on it by the Public
Tribunals Law, 1984 (PNDCL 78)
could not stand. In her appeal
to this court, the appellant has
re-stated her case that the
order the Public Tribunal made
in her favour cannot be
questioned in any court by
virtue of the indemnity
provisions of the Constitution.
As legal authority she referred
to the cases of; In Re Nungua
Stool Affairs; Odai Ayiku IV v
Attorney-General (Borketey Laweh
XIV Applicant) 2010 SCGLR 413
whereby this court stated that
no court has jurisdiction to
question the Nungua
Chieftaincy Affairs (Nii Odai
Ayiku IV)(Prohibition)
Instrument 1983 EI.18) since
it was an Executive action of
the PNDC indemnified under
Section 34(3) of the
Constitution. There is also
Ellis v Attorney-General [2002]
SCGLR 24 where this court
declined jurisdiction to
question PNDCL 294, a
legislative action of the PNDC,
on account of Section 34(3) of
the Transitional Provisions of
the Constitution.
Section 34 (3) and (4) of
the Transitional Provisions
provide as follows;
“For the avoidance of
doubt, it is declared that no
executive, legislative or
judicial action taken or
purported to have been taken by
the Provisional National Defence
Council or the Armed Forces
Revolutionary Council or a
member of the Provisional
National Defence Council or the
Armed Forces Revolutionary
Council or by any person
appointed by the Provisional
National Defence Council or the
Armed Forces Revolutionary
Council in the name of either
the Provisional National Defence
Council or the Armed Forces
Revolutionary Council shall
be questioned in any proceedings
whatsoever and, accordingly, it
shall not be lawful for any
court or other tribunal to make
any order or grant any remedy or
relief in respect of any such
act.
(4) The provisions of
subsection (3) of this section
shall have effect
notwithstanding that any such
action as is referred to in that
subsection was not taken in
accordance with any procedure
prescribed by law.”
It cannot be disputed that
the indemnity provided for in
Section 34 (3) and (4) of the
Transitional Provisions of the
Constitution and upheld by this
court in the two earlier
decisions cited above appears to
be very wide. However the issue
in this case is different
because we are not here dealing
with an action of the PNDC as
was the case in the two earlier
cases but here it is at best an
action of appointees of the PNDC
since the panel members of the
Tribunal were appointed by the
PNDC. A close reading of Section
34(3) of the Transitional
Provisions reveals that when it
comes to actions of appointees
of the PNDC and AFRC, it is only
those actions that were taken in
the name of the PNDC or AFRC
that cannot be questioned by any
court. From a reading of the
provision, it seems to me that
actions that were not taken in
the name of the PNDC or AFRC are
not covered by the provision.
This is the plain meaning of the
words of the provision and it
ought to be applied since the
intention of the framers of the
Constitution is thereby made
abundantly clear. So the matter
to consider in this case is
whether the summons that issued
from the Ashanti Regional Public
Tribunal and its proceedings
were conducted in the name of
the PNDC.
I have examined PNDCL 78
though it has been repelled but
there is nothing in it to
suggest that Public Tribunal
proceedings were to be conducted
in the name of the PNDC. The
Public Tribunals established
under PNDCL 78 exercised
criminal jurisdiction and by the
provisions Section 62 of the
Criminal Procedure Code 1960
(Act 30), criminal summons are
to be issued in the name of the
Republic. However, the Public
Tribunals were mandated to
determine their own procedures
and they conducted their
proceedings in the name of the
People. The proceedings of the
Ashanti Regional Public Tribunal
that were tendered at the trial
and can be found from pages 268
to 283 of the ROA stated as
follows; “Case No. 287/85, The
People Vrs Akua Nyamekye Serwaah”.
What this means is that the
proceedings of the Ashanti
Regional Public Tribunals were
conducted in the name of the
People and therefore not covered
by the indemnity provisions in
Section 34 (3). The substantive
difference between criminal
summons and proceedings in the
name of the President (and here
you can substitute PNDC) as
against in the name of the
Republic (or the People) was
underscored in the Supreme Court
case of Tsatsu Tsikata (No.
1) v Attorney-General
[2001-2002] SCGLR 189.
Consequently the Court of
Appeal was right in dismissing
the contention of the appellant
premised on Section 34(3) of the
Transitional Provisions that it
had no jurisdiction to question
the order of the Ashanti
Regional Tribunal though it
assigned wrong reasons for its
conclusion. In my considered
opinion the order of the Ashanti
Regional Public Tribunal that is
being questioned in this case
was not an action taken in the
name of the PNDC and therefore
is not covered by Section 34(3)
of the Transitional Provisions
of the 1992 Constitution so the
courts have jurisdiction to
question it and grant relief in
respect of it.
SGD. G.
PWAMANG
(JUSTICE OF THE
SUPREME COURT)
SGD. ANIN
YEBOAH
(JUSTICE OF THE
SUPREME COURT)
SGD. P.
BAFFOE-BONNIE
(JUSTICE OF THE
SUPREME COURT)
SGD. Y.
APPAU
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
Nana Kwasi Boaitey for the
Defendant/Respondent/Appellant.
Samani Zakari for the
Plaintiff/Appellant/Respondent. |
