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J U D G M E N T
SOPHIA ADINYIRA (MRS.) J.S.C.:
On 14 June 2002, the Court of
Appeal overturned the grant of
an order of interim injunction
by the High Court Kumasi. That
judgment is the subject of the
present appeal.
The appellant was the
co-defendant at the High Court
and the respondent was the
plaintiff. On 20 October 2000,
the plaintiff/respondent
(hereinafter referred to as
plaintiff) who claims to be the
Odikro of Twedie and caretaker
chief of all Twedie lands on
behalf of Toasehene, sued the
defendant a citizen and
Assemblyman of Twedie, for
declaration of title, damages
for trespass, recovery of
possession and perpetual
injunction in respect of a piece
and parcel of land earmarked for
Durbar Grounds for the community
by the Bosomtwe-Atwima Kwanwoma
District Planning Authority. His
complaint was that the defendant
had sent a caterpillar to clear
the land and had deposited sand
on the land for development.
The defendant admitted entering
upon the land, which he claimed
was allocated to him by the
Anantahene whom he claimed to be
the owner of the Twedie lands.
The Anantahene applied and was
joined as co-defendant to the
action. The
co-defendant/appellant
(hereinafter referred to as
co-defendant) counter-claimed
for the usufructuary or
possessory title of the whole of
Twedieland which is bounded by
rivers Amoakowaa, Danyame and
Ayankoa, which he claimed was
demarcated from part of
Toaseland to settle subjects of
Anantahene upon the orders of
Otumfuor Opoku Ware I about 300
years ago. The co-defendant
applied for an order of interim
injunction restraining the
plaintiff from making allocation
of plots of land of the
properties in dispute pending
the final determination of the
action.
The trial court granted the
order of interim injunction
against the plaintiff. His
reasoning was as follows:
“It is noted that the land in
dispute and other lands in the
area are subject of protracted
litigation since 1946 between
the co-defendant and the
Toasehene. The exhibit tendered
also indicates that the
co-defendant has a petition
pending before the Kumasi
Traditional Council in respect
of the land in the area
including the disputed land.
That dispute is between the
co-defendant and the Toasehene
and the plaintiff in this case
is alleging that he is the agent
of the Toasehene.
From the pleadings and the
submissions the co-defendant
says he is the Odikro of Twedie
and the plaintiff says he is the
Odikro of Twedie and/Agyekum.
This contention raises serious
legal issues, which borders on
chieftaincy, an issue, which is
outside this court’s
jurisdiction. According to the
plaintiff he is the Odikro of
Twedie and Agyekum and an agent
of Toasehene. Since there is a
pending litigation involving the
land in the area including the
land in dispute between the
Toasehene and the co-defendant
who is also the Odikro of
Twedie, I think there are series
of legal issues to be determined
in this case and considering the
interests of the various parties
in this case it is my view that
there is the need to preserve
the status quo. In my view
therefore, prima facie, the
applicant’s claim is not
frivolous or vexatious and in
the circumstances therefore I
grant the application.’
The plaintiff being
dissatisfied appealed to the
Court of Appeal against this
ruling on the grounds that:
1.
The ruling is against the weight
of evidence.
2.
The trial judge erred in law
when he based his ruling on
matters not in evidence.
His Lordships at the Court of
Appeal were of the view that if
the trial judge had considered
the pleadings and affidavit
evidence before him he would
have found that the plaintiff
had a better claim to the
disputed land than the
co-defendant and would not have
granted the order of interim
injunction. They accordingly set
aside the order of interim
injunction. The co-defendant
obviously not satisfied with the
decision of the Court of Appeal
launched this appeal before us
on the sole ground that the
judgment is against the weight
of evidence.
The only substance in the
rather cursory statement of case
filed by the co-defendant in the
appeal before this Court was
that “on the face of the
pleadings and affidavits of the
appellant his claim is not
frivolous or vexatious; there is
therefore the need to preserve
the status quo to avoid
irreparable damage to the
appellant”
It is trite law that the
granting or refusal of an
injunction is at the discretion
of the trial court, but that
discretion has to be exercised
judiciously. In the exercise of
such discretion the trail judge
ought to take into consideration
the pleadings and affidavit
evidence before it. See the
case of Pountney v. Doegah
[1987-88] 1 GLR 111 at
116.
It is pertinent at this stage
to look at the relevant
pleadings and affidavit on the
record. The affidavit in support
of the application by the
co-defendant was basically the
same as the averments in his
statement of defence. The
co-defendant after recanting how
the Ananta Stool acquired the
land about 300 years ago from
the Toase Stool upon the
instructions of Otumfuor Opoku
Ware I, stated further in
paragraphs 5, 6 and 7 that:
“Paragraph 5. The possessory or
usufructuary title or interest
in the land prevents the Toase
Stool from alienating or
allocating part of the land
without the consent of the
Ananta Stool. Consequently the
Ananta Stool is the only
traditional authority with power
to make allocation of plots at
Twedie.
“Paragraph 6. The plaintiff
who confesses in his statement
of claim that he is an agent of
the Toasehene is alienating part
of the land described in
paragraph 3 supra to developers
and collecting large sums of
money from them. The plaintiff’s
continued allocation of the
plots at Twedie will cause
financial loss to the Ananta
Stool.
“Paragraph 7. It will therefore
be just, proper and equitable
that the plaintiff be restrained
from making allocations of plots
at Twedie pending the final
determination of the case.”
In his affidavit in opposition,
the plaintiff admitted
allocating plots of land as the
caretaker of the lands with the
consent of his overlord the
Toasehene, who owned the land.
He said the Anantahene and his
subjects have been on the Twedie
lands all these years with the
permission of the Toasehene. He
further alleged in paragraphs 7,
8 and 9 that:
“Paragraph 7. That since 1946
there has been three
arbitrations on this matter
between Toasehene or his agent
and Anantahene and his agent and
all three of them determined
that Toasehene is owner of
Twedie land. See Exhibits NK 1,
2, and 3.
Paragraph 8. That
co-defendant/applicant is
estopped from litigating the
same issue, let alone ask for
injunction against me the
rightful adjudged owner of the
land.
Paragraph 9. That to that extent
this application is brought in
bad faith and only calculated to
frustrate the effort of the
development of the town Twedie.”
The appellate court in the
ruling of Farkye JA examined the
certified true copies of the
proceedings of these
arbitrations and came to the
conclusion that the decision
before the Kumasi Division
Council in 1946 was that the
land the subject matter in
dispute was for the Toasehene
and it had not been reversed by
any court of competent
jurisdiction. He therefore came
to the conclusion that:
“From the pleadings and
affidavit evidence, the
plaintiff/appellant demonstrated
that he has a better claim to
the land in dispute in other
words the
co-defendant/respondent has not
shown that he has a serious
claim to the land in dispute.’’
Counsel for the appellant
lamented that the appellate
court ought to have abstained
from expressing an opinion upon
the merits of the case until
hearing and referred to the case
of Vanderpuye vs. Nartey
[1977] 1 GLR 429. While
agreeing that in an
interlocutory application for an
interim relief the court ought
to refrain from expressing an
opinion on the merits of the
case before hearing, my thinking
is that this does not absolve
the trial court from considering
the material before him in order
to guide him to either grant or
refuse the request before him.
As the guiding principle in such
application is, whether an
applicant has by his pleadings
and affidavit established a
legal or equitable right, which
has to be protected by
maintaining the status quo until
the final determination of the
action on its merits. See
the case of Thorne v. British
Broadcasting Corporation [1957]
1WLR 1104. For as Amissah
J.A. succinctly put it at page
432 of the Vanderpuye
case supra:
“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 or
vexatious.
The question for consideration
in that regard resolves 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.”
In American Cyanamid Co. v.
Ethicon Ltd. [1975] 1 All E.R.
504, H.L Lord Diplock stated
at p. 510 thus:
The court no doubt must be
satisfied that the claim is not
frivolous or vexatious; in other
words, that there is a serious
question to be tried."
The fundamental rule therefore
is that a trial court should
consider whether the applicant
has a legal right at law or in
equity, which the court ought to
protect by granting an interim
injunction. This could only be
determined by considering the
pleadings and affidavit evidence
before the court. Their
Lordships in the appellate court
applied the above principle and
came to the conclusion that the
plaintiff had a better claim to
the land and accordingly set
aside the order of interim
injunction.
I cannot fault the appellate
court for coming to that
conclusion. For here is a case
in which the pleadings,
affidavits and supporting
documents disclosed evidence in
support of the appellant's
contention that the Toasehene is
the owner of Twedie land and
would therefore suffer greater
hardship if restrained. The
co-defendant claimed it would
loose revenue if the plaintiff
were not restrained from
allocating portions of the land
pending the final determination
of the action. I do not see the
basis of this complaint, as from
the last arbitration in 1999 it
was agreed that any revenue
accruing from the Twedie land
was to be shared between the
Otumfuor, the Toasehene, the
Anantahene and the Odikro of
Twedie in proportions mentioned
in the record. For that matter,
I would say that the
co-defendant ought to have asked
for an account and his share of
revenue accruing from Twedie
lands as the plaintiff admitted
on the pleadings that he has
been making grants of portions
of the Twedie lands rather than
for an order of interim
injunction against an overlord
disposing of vacant land. In
any event the appellate court
per Omari- Sasu J.A and Wood JA
(as she then was) considered
this question of hardship also
and came to the conclusion that
on the balance the plaintiff
would rather suffer greater
hardship in respect of land,
which has been demarcated and
earmarked for community use as
durbar grounds.
Permit me to digress for
a moment to make this brief
remark. Day in and day out in
this country and elsewhere, our
land, plant and fauna, water
bodies, the sea and the
atmosphere is being degraded and
polluted in pursuit of economic
development. Often for the
people on the ground, such
economic development is rather
at the expense of their human
rights and basic needs, leading
to human insecurity without
serving the cause of social
justice. It is therefore
laudable that one of the
projects set down to commemorate
the Golden Jubilee celebration
of Ghana’s Independence, is the
establishment of parks in each
District in the country. Apart
from providing recreational
grounds for the community, this
project would also contribute to
land and environmental
conservation and should
therefore be extended to each
constituency.
Now back to this judgment. As
pointed out earlier in this
judgment, the granting or
refusal of an injunction was at
the discretion of the trial
court. The exercise of this
discretion must be based on the
material before him, which is
contained in the pleadings and
affidavit evidence. Unless this
discretion is properly
exercised, an appellate court
has a duty to interfere. It is
appropriate to refer to the case
of Blunt v Blunt [1943] A.C.
517 at 518, H.L where
the House of Lords had this to
say in the head note:
"An appeal against the exercise
of the court's discretion may
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 matters into account."
In my view, Farkye JA
accordingly hit the nail on the
head when he concluded in his
judgment that;
“Granting an interim injunction
is a discretionary remedy. The
learned trial judge should have
considered the pleadings and
affidavit evidence. If he had
done that, he would have found
that the plaintiff/appellant had
a better claim to the disputed
land than the
co-defendant/respondent and he
would not have granted the
interim injunction.”
Omari-Sasu J.A held further
that:
“From the pleadings of the
litigants and the various
affidavits including reference
to three arbitrations the
litigations have attended (sic)
between 1946 and 1999 which
arbitrators involved the
Otumfuor the Asantehene their
common overlord. It is my
considered view that the learned
trial judge had ample material
at his disposal which material
should have guided him to refuse
to grant the request of
co-defendant/respondent.
A close examination of the
record shows the learned trial
judge erred when he said there
was a pending litigation between
co-defendant and Toasehene. This
is not supported by the record.”
I quite agree with their
lordships, as this wrong
assessment of the pleadings and
affidavit by the trial judge led
him to conclude that:
“Since there is a pending
litigation involving the land in
the area including the land in
dispute between the Toasehene
and the co-defendant who is also
the Odikro of Twedie, I think
there are series of legal issues
to be determined in this case
and considering the interests of
the various parties in this case
it is my view that there is the
need to preserve the status quo.
In my view therefore, prima
facie, the applicant’s claim is
not frivolous or vexatious and
in the circumstances therefore I
grant the application.’
With due deference to the
learned trial judge he acted on
a misapprehension of the
pleadings and affidavit evidence
before him and thereby exercised
his discretion wrongly in favour
of the co-defendant. From the
foregoing, it is my considered
opinion that the appellate court
did not err by setting aside the
order of interim injunction made
by the trail court. The appeal
accordingly fails and it is
hereby dismissed. The ruling of
the Court of Appeal is hereby
affirmed.
S. O. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
A.K.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Apatu Plange for Appellants
Mr. Sam wood for Respondent. |
