HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

ANIM, JA.

The is an interlocutory appeal against the ruling of His Lordship Mr. Justice Anin-Yeboah J. (as he then was) delivered on the 28th day of July 2003 at the High Court, Accra, which restrained both parties herein, their privies, agents and assigns from having anything to do with the subject matter of this case till the order was disposed of or the case was finally disposed of. The Defendants/Appellants/Applicants (hereinafter referred to as Defendants") seek from this Court an order vacating the order of injunction handed down on the said date.

The facts giving birth to this appeal may be summarized as follows. By a writ  issued by the  Plaintiffs/Respondents/Respondents (hereinafter referred to as "Plaintiffs") on 11th April 2003, they claimed against the Defendants the following reliefs:-

(a) Declaration of title to all that piece or parcel of land with House No. D930/3 situate lying and being at the junction of THORPE ROAD and CLUB Road SOUTH WEST OF THE SUPREME COURT building bounded on the NORTH by STATE INSURANCE property measuring 60 feet more or less on SOUTH by CLUB ROAD measuring 90 feet more or less on the EAST by THORPE ROAD measuring on 95 feet more or less on the WEST by the late ALFRED GBORGE'S property measuring 86 feet more or less.

(b) A declaration that the lease dated 31st December 1977 and made between one Emmanuel Cofie Hagan of Korle Wokon who unlawfully acted as Head of Herbert Charles Kotey family of one part and the Defendants—Buagwan Asnani and Sammy Williams of the other part is null and void.

(c) Perpetual injunction to restrain Defendants from trespassing on the said land

(d) Damages for trespass

(e) Recovery of possession.

After pleadings had closed Summons for Directions was taken on 9th July 2003, and the case was adjourned to 16th October 2003 for hearing.

Meanwhile on the 18th of July 2003, the plaintiffs filed a motion for interim injunction praying for an order restraining the Defendants and their agents from constructing building on the land in dispute. The said motion was fixed for hearing on Monday the 28th of July 2003. On the said date when the motion was moved the learned trial judge gave a ruling in which the court granted the application for interim injunction against both parties in the suit. Dissatisfied with and aggrieved by the said decision the Defendants have appealed to this court.

The grounds of the Appellant's prayer as set out in the Notice of Appeal filed on 5th August 2003 are as follows:

(a) That the trial High Court erred in the exercise of its discretion in granting the order of injunction.

(b) That the trial judge failed to analyze the exhibits attached to the defendant/appellant's application and thus failed to appreciate the fact that the rights of the parties have already been determined by our Courts and he is even bound by the said judgment and thus the suit is an abuse of the legal system

(c) That the trial judge failed to consider that the land in dispute is not bare land but that the defendant/appellant upon leave of court pursuant to judgment of Court of Appeal and Supreme Court went into possession by demolishing offending structures on the land.

Clearly, the thrust of the learned counsel for the defendants' argument as can be gleaned from his submissions in all the 3 grounds of appeal filed is that the learned trial judge's holding that the action is not frivolous is untenable in that he failed to analyze the exhibits attached to the defendants' affidavit in opposition and thus failed to appreciate that the rights of the parties have been thoroughly determined by our Courts and he is even bound by the said judgment. Thus the plaintiffs' suit is an abuse of the legal process.

Learned Counsel for the plaintiffs resisted this submission and referred to the statement of claim filed in which it was stated that their father Herbert Charles Kotey and his brother Robert Kotey had purchased the land with building thereon No. D930/3 from a Nigerian by name Seidu Akore in 1925. That Robert Kotey died leaving the land and building to his brother Herbert Charles Kotey. When Herbert Charles Kotey also died in 1955, Salomey Aku Allotey their sister's daughter was granted Letters of Administration to administer the property. The said Salomey Aku Allotey died and Emmanuel Cofie Hagan, who was not a member of the Kotey family and who was not granted Letters of Administration unlawfully acted as Head of Kotey family without the consent and authority of the Kotey family demised the land in dispute to the defendant by virtue of a lease dated the 31st December, 1977.

Counsel traced further that trouble brewed between Sarah Lartey the daughter of Salomey Aku Allotey on the one hand and the rest of the Kotey family on the other hand and this resulted in the Court Case i.e. Suit No. 19/90 Albert C. Kotey & 3 others vrs. Sarah Lartey 2 others. That on 16th March 1993, His Lordship Asare-Kwapong gave judgment for the plaintiffs and declared the plaintiffs as the owners of the land in dispute. Counsel submitted that no appeal has been filed against this judgment, which is binding on the defendant.

Counsel contended that during the trial of this case, the Kotey family headed by the plaintiffs and the maternal family headed by Sarah Lartey & Ors. Discussed the Ollenu judgment of 23rd October 1961 and compromised portions thereof i.e. that the land and the building thereon be enjoyed by both the maternal and paternal family of both Herbert Charles Kotey and Robert Kotey.

Learned Counsel contends that notwithstanding the said suit No. 19/90 which settled the dispute within the Kotey family about the land in dispute, the defendant SAMMY WILLIAMS the appellant herein brought suit No. 466/98 in the Circuit Court against the tenants working on the land without the mandate of the Kotey family. That the suit titled SAMMY WILLIAMS VRS RAZSAW ENTERPRISE & 19 ors was presided over by Justice Ofoe who delivered judgment in favour of the plaintiff for the following reliefs:

(a) Recovery of possession and (b) perpetual injunction.

Strangely enough learned Counsel submits forcefully that there is an appeal pending against the said judgment but he failed to state whether the said appeal has been heard or not in the face of the exhibits attached to the affidavit in opposition which were served on him. Counsel submits that the said judgment is not against the Kotey family. That the OLLENU judgments referred to had been compromised by the contesting parties and the land in dispute is for the paternal and the maternal KOTEY family.

Counsel submitted finally that in dealing with the interlocutory injunction, the Learned trial judge was not called upon at this stage of the trial to determine whether the rights of the parties have been determined by the courts or that the suit is an abuse of the legal system.

In the leading case of VENDERPUYE VRS. NARTEY (1977) 1 GLR 428, AMISSAH JA, delivering the judgment of the Court of Appeal held:-

"The governing principle 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 and vexatious. The question for consideration in that regard revolves itself into whether on balance greater harm would be done by the refusal to grant the application than not. It is not whether a prima facie case however qualified and with whatever epithet has been made."

It is instructive to note that the case relied upon by the Court of Appeal is AMERICAN CYANAMID CO VRS ETHICON LTD (1975) 1 ALL ER 504. These principles have been followed since then in a number of cases notably, for example, POUTNEY V. DOEGAH (1987-88) 1 GLR 111 C.A and MUSICIANS UNION OF GHANA VRS. ABRAHAM (1982-83) GLR 337

The modern authorities however, do not rule out the application of the principle that the applicant should still satisfy the Court that the legal right sought to be protected really existed i.e. that the applicant’s case is legally maintainable and further that the entire action is not frivolous and vexatious.

Indeed, these were the express holding in FOOD SPECIALITIES GHANA LTD V. TECHNICALS de MULTICONSTRUCTION SA (1887-88) 2 GLR 179 CA.

I have already stated the arguments of both counsel before us. I only wish to recapture the gravamen of Counsel for the appellant’s case i.e. that the holding by the learned trial judge that this action is not frivolous is untenable in that the failed to analyze the exhibits attached to the Defendant’s affidavit in opposition and thus failed to appreciate that the rights of the parties have been thoroughly determined by the courts.

The Accra Central Local Court judgment of 1960 ie suit No. 289/60 exhibit "A" determined the rights of the respondents' predecessors and the grantor of the appellants and came to the conclusion that the respondents’ predecessors had no interest in the property according to Ga Customary law. Effectively the said land by the Court’s ruling became vested as family property in the maternal niece Salomey Aku Allotey (since deceased) as successor and as Head of family of the said Herbert Charles Kotey (deceased).

In exhibit "B" the said land thereafter became the subject matter of Suit No. L25/61 in the High Court, Accra, presided over by His Lordship Justice OLLENU entitled:—

EMMANUEL COFIE HAGAN

[(Acting Head of Family, substituted for

Salomey Aku Allotey as successor for

And Head of family of the late Herbert Charles

Kotey (deceased)]

Vrs.

1. SACKITEY-BI-KOTEI KOTEY

2. SACKITEY-BI-AASSA KOTEY

3. AYIKO-BI-KOTEI KOTEY

4. E.O. QUARTEY

By his judgment dated 23rd October 1961 therein, Justice OLLENU held in effect that the said land was vested in the lessor (the plaintiff) as Head of the maternal family of the said Herbert Charles Kotey (deceased) as against the first three defendants, his own children, and the 4th Defendant, his grandchild.

This decision of the High court by Ollenu J (as he then was) went on appeal to the Court of Appeal as indicated in exhibit "B" on 17th February 1969 and the appeal was dismissed after the appellants’ counsel had asked for leave to abandon the appeal.

Based on the decision of the High Court in 1961 and the Court of Appeal in 1969, the Appellant secured a lease from Emmanuel Cofie Hagan on 31st December 1977 and later obtained judgment in the Circuit Court as per exhibit "C" i.e. SAMMY WILLIAMS VS. RAZSAW ENTERPRISES & 16 ORS. It is interesting to note that the Defendants therein initially claimed to be tenants of Emmanuel Cofie Hagan but after the judgment in 1993 by Justice Asare-Kwapong they attorned tenancy to the respondents and even called Joseph Amon Kotey to give evidence as to title of the Kotey family. This is exhibited as exhibit "D".

Being dissatisfied the tenants i.e. the Defendants in the SAMMY WILLIAMS case appealed to the Court of Appeal where they lost after the Court of Appeal had analyzed all the judgments recited above i.e. "A", "B", "C", "D" including the Asare-Kwapong judgment, which judgment of the Court of Appeal was attached as exhibit "E".

It is to be observed that in his submission of case, Learned Counsel for the Respondents in the case before us contended that the OLLENU judgment had been compromised by the contesting parties and that it was agreed by all that the land in dispute is for the maternal and the paternal Kotey family. Counsel therefore submitted that the compromise was binding on the respondent in exhibit "C".

From the exhibits attached to the affidavit in opposition it should be plain to Learned Counsel for the respondents that the judgment of the Circuit Court exhibit "C" delivered on 20th October 2000 did not rest there. It went on appeal to the Court of Appeal where it failed and was thus dismissed.

Significantly, one important ground of appeal argued by learned counsel for the appellants in Exhibit "E" ie Court of Appeal concerned the issue of whether the OLLENU judgment was compromised, and if so, whether the compromise could be said to have affected the lease granted to the respondent. This is what the Court said after hearing both counsel:—

"The import question, however, is whether such compromise could bind the respondent? The appellants had been made aware of the respondent’s lease as at 1979 when the latter instructed his solicitors to serve the appellants with a notice to quit the land. (See exhibit "C"). Indeed the learned trial judge made positive findings of fact of the appellant’s awareness of the respondents right to the property. In the circumstances, the argument of counsel for the appellant could hold water only if there had been positive evidence adduced by the appellants that the compromise took place before the land was leased to the respondent by Hagan. No such evidence was found either in Asare-Kwapong J’s judgment or any evidence tendered by any of the witnesses in that trial. In my view if there had been such a compromise the appellants would not have promised the respondents to quit the land. The trial judge was therefore right when he held that the respondent had a valid lease."

After the issue of the alleged compromise had been decided upon by the Court and the entire Appeal dismissed, the Court of Appeal had no difficulty in refusing leave to appeal to the Supreme Court. The Supreme Court also refused special leave to appeal to the Supreme Court on the following grounds:—

"The applicant has not satisfied us that this is a case in which there is such a substantial point of law which needs to be decided by the Supreme Court."

I have scrutinized the entire exhibits. A common thread runs through all of them i.e. piece or parcel of land with house No. D930/3 situate at the THORPE Road and Club road South-West of the Supreme Court building, Accra. I hold the view that there are grave legal objections to the Plaintiffs’ claim; I do say so without intending to deciding the point and must not be taken to have so decided. My view is that the Supreme Court having refused special leave to appeal to the Supreme Court rendered the judgment of the court of Appeal a final judgment which is binding on the High Court. Thus the OLLENU judgment of 1961 having been confirmed on appeal in 1969 and having further been clarified on appeal in exhibit "E" that the disputed land was vested in the lessor (the plaintiff) as Head of the maternal family of the Herbert Charles Kotey (deceased) as against the children, can it be said that the Plaintiffs in the matter before us, have satisfied the court that they, as children, have a better claim to the land in dispute than the appellants? In view of the grave legal queries that Plaintiff’s claim attracts, I do not think it was proper to have granted them the interim injunction relief sought.

On the issue of balance of convenience the evidence points to the fact that the plaintiffs have not made any outlay on the said land but the Defendants have done so. They therefore stand the chance of suffering greater hardship.

Reviewing all the issues involved, I am of the view that this appeal should succeed, and I hereby allow the appeal. Accordingly, I set aside the order of interim injunction of 28-7-2003.

I am convinced that this is a case, which should have gone for an early trial rather than the delay it has suffered by reason of this application. I hereby order that trial of the substantive matter be expedited.

(SGD.)

S.Y. ANIM

JUSTICE OF APPEAL

MISS OWUSU J.A.:-    

I have had the opportunity to read the Judgment of my brother just read and I am in entire agreement with the decision arrived at and the reasons thereby assigned.

(SGD.)

R.C. OWUSU (MISS)

JUSTICE OF APPEAL

AKAMBA, J.A.

I also agree.

(SGD.)

J.B. AKAMBA

JUSTICE OF APPEAL

COUNSEL

MARY GOLD ALLOTEY FOR NATHANIEL MYERS FOR APPELLANTS

S.A.X. TSEGAH FOR RESPONDENTS