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JUDGMENT
GBADEGBE, JA:
This is an
interlocutory appeal from the ruling of an Accra High
Court whereby the learned trial judge refused an
application at the behest of the appellant (to whom I
shall for convenience in these proceedings refer to as
the plaintiff) for an order of interlocutory injunction
restraining the respondent (to whom I shall for
convenience in these proceedings refer to as the
defendant) from among others proceeding with a building
on the disputed land. The circumstances in which the
application with which we are now concerned are these.
The plaintiff claiming to be the owner of the disputed
property took out a writ of summons against the
respondent claiming a declaration of title, recovery of
possession, and general and special damages for trespass
as well as perpetual injunction on the ground that the
defendant had unlawfully entered its land and demolished
a building which was on the same and was in the process
of putting up a new building thereon. The defendant did
not deny the acts urged against him in particular the
demolition of an existing building on the disputed plot
but claimed that he had done so as of right having
acquired the land from a third party whom he alleged was
the real owner. It would appear that when after the
demolition of the existing building which the plaintiff
claimed as his the defendant had caused blocks to be
placed on the land with a view to erecting a new
building thereon the plaintiff applied to the court for
what was described as an interim injunction but which
having regard to the relief prayed for was in substance
an application for an interlocutory injunction. The said
application went through a full scale hearing the ruling
on which is the subject matter of these proceedings. As
said earlier on the learned trial judge dismissed the
application that sought essentially to have the
defendant restrained from proceeding with the building
works on the disputed plot.
Following the said
ruling the plaintiff has appealed to this court and
seeks to have the said order reversed on the grounds
urged in the notice of appeal dated 7-2-2000. Since this
appeal is from the exercise of a judicial discretion, I
think what this court has to consider is whether the
exercise of the said discretion was wrong? I wish in
particular to refer to the case of Re O (infants){1971}
2All ER 744 at 748 per Davies LJ as follows:
“In my considered
opinion the law now is that if an appellate court is
satisfied that the decision of the court below is wrong
it is its duty to say so and to act accordingly. This
applies whether the appeal is an interlocutory or a
final appeal,. …Every court has a duty to do its best to
arrive at a proper and just decision. And if an
appellate court is satisfied that the decision of the
court below is improper, unjust or wrong, then the
decision must be set aside. I am quite unable to
subscribe to the view that a decision must be treated as
sacrosanct because it was made in the exercise of
‘discretion’: so to do might well perpetuate
injustice.”
In my view the above
statement of the law is in agreement with what was said
by the Supreme Court in Crenstil Vs. Crenstil [1962] 2
GLR 171 at 175 thus:
“An appeal against the
exercise of the court’s discretion can only succeed on
the ground that the discretion was exercised on wrong or
inadequate materials if it can be shown that the court
acted under a misapprehension of fact, in that it either
gave weight to irrelevant or unproved matters or omitted
to take relevant matter into account; but the appeal is
not from the discretion of the court to the discretion
of the appellate tribunal”
It is important to bear
in mind that even where an appellate court would have
decided the case the other way it can only interfere
with the exercise of discretion if it comes to the view
that its exercise was wrong. Therefore, I proceed to
examine the materials, which were before the court below
to find out if the exercise of its discretion can be
said to have been wrong. Whiles both parties to the
action in the court below asserted rival claims of
ownership in respect of the disputed property there was
doubt as to which of them actually owned the land a
matter which required a decision of the court. Indeed
having regard to the pleadings filed in respect of which
directions had been filed though not taken there cannot
be any issue as to the frivolity of the action, it
having raised serious issues for trial it was necessary
that the status quo should be preserved until the
questions to be tried in the action were finally
disposed of. See-Texaco Ltd v Mulberry Filling Station
Ltd {1972} 1 All ER 513. Thus, in the said circumstance
the court below was required to have exercised its
discretion by considering the balance of convenience in
the event of a grant or a refusal of the application
mindful of the fact that its duty was to protect rights
or prevent injury according to legal principles. See-Aslatt
Southampton Corpn. (1880) 16 Ch D 143 at 148. The power
conferred on the court in such case is not arbitrary but
guided by regulated discretion in a manner which accords
with justice. Although it is impossible to lay down a
general guideline to regulate the court in all cases one
can say from the available case law on the point that
each case must be decided on the basis of fairness,
justice and common sense in relation to the peculiar
facts and law which arise in the matter. See-Hubbard v
Vosper {1972} 1 All ER 1023 at 1031, per Megaw LJ. In
the instant case whiles not disputing that neither party
had clearly established its right there was from the
processes filed a threat to the rights as asserted by
the plaintiff which if not restrained was likely to be
violated by the defendant if he was enabled to proceed
with his development works on the land having demolished
a building on the same which the plaintiff claimed as
his. The question which the court below in my view ought
to have considered as far as the relative balance of
convenience was concerned is the extent of disadvantage
to either party being incapable of compensation in
damages if at the end of a full scale trial or hearing
it succeeded in making out its case and the burden of
proving that the plaintiff would suffer a greater
inconvenience than that of the defendant lies on the
plaintiff, it having taken out the motion. See- (1)
American Cyanamid Co v Ethicon Ltd {1975} 1 All ER 504;
(2) Hampstead and Suburban Properties v Diomedous,
{1968] 3 All ER 545.
I have carefully
examined the processes before us and in particular those
on which the discretion of the court below was based and
I am of the opinion that the exercise of the discretion
was wrong. In particular I am of the thinking that since
both parties were contesting substantially the same plot
of land it was incumbent on the court to have protected
them against any threatened violation of their alleged
rights to the land in respect of which they were
disputing otherwise at the end of the day one of them
would be deprived of the same. Considering the relative
inconvenience, which the plaintiff would suffer in the
event of a refusal if he should succeed at the end of
the day against that of the defendant, I think that the
balance tilts in favour of the plaintiff and for that
matter the application ought to have been acceded to. I
also think that what was in issue was the ownership of
the land and the anciliary right of its possession by
way of its development and therefore to have enabled the
defendant to proceed with his works on the land in the
absence of he having clearly established his right to
the land was wrong. I note in this regard that although
the learned trial judge in his ruling the subject matter
of these proceedings at page 50 lines 32-35 adverted her
mind to the relative inconvenience to the parties in the
event of a grant or refusal she answered the said
significant and or relevant question wrongly by
considering the matter as though the plaintiff was
unlikely to suffer any hardship or inconvenience if the
application was refused once he was compensated in
damages. I do not think that the mere fact that the
defendant subsequent to his self help of demolishing the
building which the plaintiff claimed as his and bringing
blocks on to the land had done that which tilted the
balance in his favour. On the contrary, I am of the
opinion after a consideration of their relative claims
and the inconvenience to be sustained by either of them
in the event of a grant or refusal of the interlocutory
injunction that the justice of the matter required that
the application be acceded to. I think that the refusal
of the application was an instance of injustice to the
plaintiff and this court having taken the view that the
refusal was wrong must set the said ruling aside.
Consequently, I hereby set aside the ruling the subject
matter of these appeal and in place thereof make an
order in terms of the motion filed before the trial
court until further or other order. The result is that
the appeal is
allowed.
N. S. GBADEGBE
JUSTICE OF APPEAL.
ESSILFIE-BONDZIE, JA:
I agree.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
AKOTO-BAMFOR, JA:
I also agree.
V. AKOTO-BAMFOR (MRS)
JUSTICE OF APPEAL
COUNSEL
VDM
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