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This ruling
is in respect of an application
by the Attorney-General, who is
the 3rd respondent in this case,
filed on 02-06-2010 for an order
for interlocutory injunction to
restrain the applicant, Hon.
Shirley Ayokor Botchway, from
constructing buildings on the
property the subject matter of
her application for the
enforcement of her human rights.
On 20-04-2010, Hon. Shirley
Ayokor Botchway, as applicant,
invoked the jurisdiction of this
court for an order enforcing her
fundamental human rights. The
respondents are Brig-General (rtd)
Joseph Nunoo Mensah, Lt. Col. (rtd)
Larry Gbevlo Lartey and the
Attorney-General. The brief
facts upon which the applicant
in the main application relies
for her said application are
that by a lease between the
President of the Republic of
Ghana, acting by the Chairman of
the Lands Commission as lessor
and the applicant as lessee, the
lessor, on 17-04-2007, leased a
piece or parcel of land known as
plot no. 12 A situate at Ridge
Residential Area in Accra to the
applicant for a term of
ninety-nine (99) years with
effect from 01-12-2006. Since
the execution of the lease, the
applicant has been in lawful
possession. She has developed a
dwelling house thereon which is
at an advanced stage of
completion, having roofed same
and is now proceeding with other
works towards completion at a
cost running into several
thousands of Ghana cedis.
Applicant says that on
15-04-2010, while her workmen
were busily at work on her said
property a group of men claiming
to be National Security
operatives sent by and acting on
the authority of the 1st and 2nd
respondents purporting to act in
their official capacities as
National Security Advisor and
National Security Co-ordinator
respectively, visited the site
and ordered the applicant's
workmen to stop work
immediately. The said operatives
also erected a signboard with
the inscription "Government
Property. Stop Work. Keep Off.
By Order." on the land and left
some telephone numbers with an
order that the applicant should
call these numbers. On
16-04-2010, the said National
Security Operatives, claiming to
be acting on similar
instructions, visited
applicant's property once again
and this time took away various
construction tools belonging to
her workmen with orders to them
to stop work once again. It is,
therefore, the case of the
applicant that, by the
provisions of the 1992
Constitution, she has a right to
own property and no person shall
be subjected to interference
with the privacy of his or her
home or property except as may
be necessary in a free and
democratic society for public
safety and thus as the bona fide
and lawful owner of the
property, the conduct of the
respondents and their agents
have grievously infringed on her
human and constitutional rights.
The applicant, thus, seek from
this court the following reliefs:
(a) A declaration that the
respondents interference with
her right to develop, use and
enjoy her said land is wrongful
and an unlawful interference
with her right to property and
constitutes a violation of her
fundamental human rights. (b)
Damages for wrongful and
unlawful interference and
violation of applicant's human
rights. (c) An order of
perpetual injunction restraining
the respondents; their
successors in their official
offices as National Security
Advisor and National Security
Co¬ordinator, their duly
authorized officers and
servants, workmen, agents,
operatives and hirelings
howsoever described from
entering, preventing applicant's
men from working on and further
construction of applicant's
property and/or interfering with
applicant's land on the ground
that it is the property of the
government of Ghana. The main
application is yet to be heard
but the 3rd respondent (the
Attorney-General) on 02-06-2010
brought the instant application
for interlocutory injunction to
restrain the applicant
(respondent in this motion) from
constructing buildings on the
property, the subject-matter of
her application for enforcement
of her human rights. The grounds
for the instant application are
contained in two affidavits
deposed to by an unnamed
Assistant State Attorney, on
02-06-2010 and 04-06-2010. The
grounds are stated in paragraphs
4, 5, 6 and 7 of the said
affidavits. In the said
affidavits, the grounds are
that, by a Cabinet decision on
21-01-1999, a Committee on the
redevelopment of residential
properties headed by the
Minister for Water Resources,
Works and Housing was set up.
The Committee was required to
submit its report to an
Oversight Committee for
consideration and onward
transmission to cabinet for
approval. The allocation of plot
no. 12A situated at Ridge
Residential Area in Accra by the
Lands Commission in the name of
the President to the
applicant/respondent was without
the authority and approval of
cabinet as such the said
allocation was illegal (a copy
of the cabinet report has been
exhibited). The
applicant/respondent by an
affidavit sworn to by one
Patrick Tetteh, a law clerk in
the law firm of the lawyers of
the applicant/respondent and
flied on 22-06-2010 opposes the
application for interlocutory
injunction. The grounds
canvassed in the said affidavit
are virtually a repetition of
the applicant/respondent's case
in support of her main
application for enforcement of
her human rights which have been
stated hereinbefore. The
applicant/respondent, however,
adds the following significant
points in the affidavit: “6.
That ... the 3rd
Respondent/Applicant lacks
capacity to bring the instant
application. 10. ... this
Honourable Court in determining
the instant application ought to
consider whether or not the
Applicant/Respondent has a legal
right that ought to be protected
in law and equity. 12.
Applicant/Respondent had
demonstrated that she rather
than the 3rd
Respondent/Applicant has a right
that ought to be protected at
law and in equity. 13. ... that
this Honourable Court is also
obliged in determining the
instant application to consider
whether or not the claim is not
frivolous or vexatious in that
there is a serious question of
law to be tried. 14. .. the
government of Ghana is a
government in perpetuity such
that when the government of
Ghana under a particular
President has executed a legally
binding instrument ..., a
successor government of Ghana
cannot contend that was not
executed with approval. 17. ...
that in determining the instant
application, this Honourable
Court: is duty bound to consider
whether on the balance of
convenience, the applicant will
suffer more harm if the order
sought for is not granted. 20.
that one of the factors a court
has to take into consideration
when invited to make an
interlocutory order to preserve
the status quo is whether or not
the applicant's claim ... on the
facts is maintainable. 21. that
the instant application, based
on the facts as filed, is not
maintainable at all." Order 25,
rule 1(1) of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47) governs the grant of
interlocutory injunctions. It
states as follows: "The Court
may grant an injunction by an
interlocutory order in all cases
in which it appears to the Court
to be just or convenient to do
so, and the order may be made
either unconditionally or upon
such terms and conditions as the
Court considers just." In the
commentary of the learned
authors of Halsbury's Laws of
England, the words "just" and
"convenient" have been defined
at paragraph 919 at page 519 of
vol. 24 in the 4th edition as
follows: "just and convenient
does not mean that the court can
grant an injunction simply
because it thinks it convenient,
but mean that it should grant an
injunction for the protection of
rights or prevention of injury
according to legal principles.
They confer neither arbitrary
nor unregulated discretion on
the court, and do not authorize
it to invent new modes of
enforcing judgments in
substitution for the ordinary
modes." The Court of Appeal in
Centracor Resources Ltd v
Boohene & Others [1992-93] Part
4 of GBR 1512 explained the
principle thus: A plaintiff who
seeks an order of interim
injunction must show that the
right he seeks to protect really
exists and that there has been
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 will it be just to grant
an injunction when the plaintiff
cannot be said to have shown
that the legal right he seeks to
protect really exists? And for
the same reason will it also be
convenient to do so?" Also in
Vanderpuye vrs. Nartey [1977] 1
GLR 428 Amissah JA similarly
stated that principle thus: "The
governing principles should be
whether on the face of the
affidavits there is need to
preserve the status quo in order
to avoid irreparable damage to
the applicant and provided his
claim is not frivolous or
vexatious." In the instant
application, it is the
Government of Ghana who is the
applicant. The Government of
Ghana must show that it has a
legal right which it is seeking
to protect. The case of the
Government is that the
respondent lease is irregular,
without authority and therefore
void. As such the land is the
property of the Government so
the respondent should be stopped
from constructing her building.
To support the position of
government, the 3rd
respondent/applicant has
exhibited a copy of a Cabinet
report and explains that by the
said report, which is from a
Cabinet meeting in 1999, a
Committee on the Redevelopment
Scheme which was chaired by the
Minister for Water Resources,
Works and Housing was required
to submit an evaluation and
recommendations to an Oversight
Committee for consideration and
onward transmission to Cabinet
for approval. The Minister
failed to seek such approval but
allocated the plot meant for
redevelopment to prospective
developers without following
laid down procedure, which
included approval by cabinet. I
have critically examined the
exhibit. It is undated and in
particular nowhere in the said
exhibit is plot no. 12A, Ridge
Residential Area, which is the
subject of dispute, mentioned.
Furthermore, the Cabinet
decision was allegedly arrived
at on 21-01-1999 but the
respondent acquired her lease on
17-04-2007. And the lease was
executed by the Lands Commission
on behalf of the Government. By
section 37(1) of the Evidence
Act, 1975 (NRCD 323), it would
be presumed that if there was
even such a Cabinet decision the
requisite approval was given.
Section 37(1) of NRCD 323 states
as follows: "It is presumed that
official duty had been regularly
performed." Article 258 (1) (a)
of the 1992 Constitution also
provides as follows: "There
shall be established a Lands
Commission which shall, in
co-ordination with the relevant
public agencies and governmental
bodies, perform the following
functions- (a) on behalf of
Government, manage public lands
and any lands vested in the
President by this Constitution
or by any other law or any lands
vested in the Commission;" Thus
the plot in issue being a public
land the Government of Ghana
represented by the President and
acting by the Lands Commission
could lease it to any person. In
this case, the Government leased
the said plot to the
applicant/respondent. It is thus
presumed that the Lands
Commission performed its duty
officially unless there is
evidence to the contrary. The
3rd respondent/applicant in this
case, apart from the bare
assertion, has not provided any
evidence to the contrary. It
follows, therefore, that the
Government of Ghana, having
properly leased out the plot in
issue to the
applicant/respondent no more has
any legal right to protect that
would entitle it to a grant of
an order of interlocutory
injunction. Furthermore, even if
the Government of Ghana shows
that the grant it made to the
applicant/respondent is void,
the latter to the knowledge of
the Government has put up a
building and has roofed same
leaving finishing works. The
applicant/respondent stands to
suffer more harm if this
application is granted for she
has expended a fortune on the
building. The Government of
Ghana would not suffer any harm.
An interlocutory injunction,
being an equitable relief, would
not be granted if it will cause
unnecessary hardship to the
respondent - (See Vanderpuye V.
Nartey supra). For the above
reasons, the application by the
3rd respondent/applicant for an
interlocutory injunction to
restrain the
applicant/respondent from
constructing a building on plot
no. 12A, Ridge Residential Area,
lacks merit and same is hereby
dismissed. COUNSEL: Mr. Cecil
Adadevoh (Senior State Attorney)
for 3rd Respondent/Applicant.
Mr. Egbert Faibille Jnr. appears
for Applicant/Respondent.
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