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Practice and
Procedure - Land - Declaration
of title - Long possession of
the land - Interlocutory appeal
– Balance of hardships -
Capacity – Whether or not the
appellant, the law clerk lacked
capacity to swear positively to
the affidavit -
HEADNOTES
The
respondent herein commenced an
action at the High Court, Accra
for
declaration of title to a
piece of
land at the Light Industrial
Area, Accra. As usual with
actions for declaration of
title, other ancillary reliefs
were sought against the
appellant herein. the respondent
hfiled a motion on notice for
interlocutory injunction. the
respondent exhibited an
indenture and Land Certificate
and deposed to the fact that the
respondent would change the
nature of the land in dispute if
not restrained by an injunction
The writ was accompanied by a
statement of claim in which the
respondent pleaded its root of
title and
long possession of the land,
the defendant filed a statement
of defence, traversing virtually
all allegations of facts pleaded
in the statement of claim The
High Court granted the
application, the second
defendant who is the appellant
herein filed a motion on notice
to vacate the order of
interlocutory injunction which
application was resisted by the
respondent herein but was
subsequently withdrawn,
respondent had on record already
filed a motion on notice for
interlocutory injunction to
restrain the appellant. The
motion was moved before the same
judge and same was granted. The
appellant lodged an
interlocutory appeal to the
Court of Appeal which was
dismissed This appeal is the
second appeal in the
interlocutory injunction granted
by the High Court which was
dismissed by the Court of Appeal
HELD
It does
appear that the discretion is
vested in the court and
depending on the circumstances
of each case it may decide to
exact an undertaking before
granting interlocutory
injunctions. Since this point
was adequately covered by the
judges at the Court of Appeal,
we do not wish to proceed to
discuss it in detail again in
this judgment. We are,
however, satisfied that the
learned judges of the Court of
Appeal adequately considered the
appeal both on the facts and the
law and arrived at a conclusion
which could not be faulted. We
accordingly proceed to dismiss
the appeal as without merits.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Edusei v.
Dinners Club Suisse S.A [1982 –
83] GLR 809 CA
America
Cynamide Co. v. Ethicon Limited
[1975] AC 396,
Vanderpuye v.
Nartey [1977] 1GLR 428,
Odonkor & Ors
v. Amartei [1987-88] 1GLR 578 SC
Owusu v.
Owusu-Ansah [2007-08] SCGLR 870
Pountney v.
Doegah [1987-8] 1GLR III
Crenstil v
Crenstil [1962 2 GLR 171
Ballmoss v
Mensah [1984-86] 1GLR 724
The Republic
v High Court, Koforidua Ex Parte
Ansah-Otu [2009] SCGLR 141
Hoffman – La
Roche & Co A – G & Ors v.
Secretary of State for Trade &
Industry [1974] 2 ALL ER 1128 HL
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH, JSC
COUNSEL
DANIEL OWUSU-NYAMPONG FOR THE 2ND
DEFENDANT/ APPELLANT.
GABRIEL PWAMANG FOR THE
PLAINTIFF/RESPONDENT.
______________________________________________________________________
J U D G M E N T
______________________________________________________________________
ANIN YEBOAH, JSC
On the 30/11/2011 we dismissed
the
interlocutory appeal from
the unanimous decision of the
Court of Appeal and reserved our
reasons. We now proceed to
offer our reasons for the
dismissal of the appeal.
The respondent herein commenced
an action at the High Court,
Accra on 22/12/2006 for
declaration of title to a piece
of land at the Light Industrial
Area, Accra. As usual with
actions for declaration of
title, other ancillary reliefs
were sought against the
appellant herein.
On the 30/01/2007,
the
respondent herein filed a motion
on notice for interlocutory
injunction.
In a rather terse affidavit
sworn to by one Pendagrass
Borketey Alabi,
the
respondent exhibited an
indenture and Land Certificate
and deposed to the fact that the
respondent would change the
nature of the land in dispute if
not restrained by an injunction.
The writ
was accompanied by a statement
of claim in which the respondent
pleaded its root of title and
long possession of the land.
The writ of summons was issued
against THE DEVELOPER but
appearance was entered by a
solicitor who proceeded to file
a statement of defence
thereafter. On 6/2/2007,
the
defendant filed a statement of
defence, traversing virtually
all allegations of facts pleaded
in the statement of claim.
Virtually all the facts pleaded
in the statement of claim were
denied with a counterclaim
against the respondent herein.
The affidavit in opposition to
the interlocutory application
was equally supported by
exhibits in the nature of Land
Certificate and correspondence
which was relied on to resist
the application for
interlocutory injunction.
The case attracted several
interlocutory applications which
we do not find it necessary in
determining this appeal. When
the application for
interlocutory injunction was
moved against the original
defendant who was styled as THE
DEVELOPER, His Lordship Justice
Abada on the 28/2/2007
granted
the application. On the
24/5/2007, however,
the
second defendant who is the
appellant herein filed a motion
on notice to vacate the order of
interlocutory injunction
granted on the 28/02/2007. The
application was resisted by the
respondent herein but was
subsequently withdrawn. The
respondent had on record already
filed a motion on notice for
interlocutory injunction to
restrain the appellant
herein.
The motion was moved on
24/07/2007 before the same judge
and on 26/10/2007 same was
granted.
The
appellant lodged an
interlocutory appeal to the
Court of Appeal on
6/11/2007. The Court of Appeal
on the 18 /02/2010 dismissed the
appeal.
This appeal is the second appeal
in the interlocutory injunction
granted by the High Court which
was dismissed by the Court of
Appeal.
Before us, several grounds of
appeal were filed by the
appellant which were all argued
in detail. The first ground of
appeal argued, sought to attack
the
capacity of the deponent to
the affidavit in support of the
motion for interlocutory
injunction at the High Court.
According to counsel for
the
appellant, the law clerk lacked
capacity to swear positively to
the affidavit. According to
counsel, this was a fundamental
issue which was ignored by the
Court of Appeal. This was well
addressed in our view, by the
High Court. Indeed, the
affidavit contained several
exhibits concerning the disputed
land which the trial judge found
to be regular. We have not been
referred to any case law or
procedure which prohibits a law
clerk in the chambers of a
lawyer handling the case from
swearing to an affidavit in
support of an application for
interlocutory injunction. If
the clerk could disclose his
source of information, this will
be regular. Order 20 rule 8 (1)
and (2) of C147 which regulates
this issue, states the position
as follows:
8(1) An affidavit shall contain
only facts that the deponent can
prove, unless any provision of
these Rules provides that it may
contain a statement of
information or belief or both.
(2)
An affidavit sworn for the
purpose of being used in
interlocutory proceedings may
contain a statement of
information or belief or both
with the source of information
and the grounds of the belief.
[Emphasis ours]
We are of the opinion that if a
deponent can disclose his source
of information as it occurred at
the High Court, the requirements
of the above rules would be
deemed satisfied. We find no
merit in this ground of appeal.
Indeed, the case of
EDUSEI
V. DINNERS CLUB SUISSE S.A
[1982 – 83] GLR 809 CA
established the above principle
even though it was decided in a
summary judgment application.
After disposing of the appeal,
the Court of Appeal in the
exercise of its discretion
restrained both parties. The
appellant herein complains on
the grounds that the Court of
Appeal failed to consider the
balance
of hardships and that, if it
had considered it, the appellant
would not have been restrained.
References were made to Land
Certificate and the root of
title of the appellant to
demonstrate that the respondent
failed to demonstrate that it
was in possession of the land.
The Court of Appeal in its
judgment after referring to
virtually all the leading cases
on this area of the law like
AMERICA CYNAMIDE CO. V.
ETHICON LIMITED [1975] AC
396, VANDERPUYE V.
NARTEY [1977] 1GLR 428,
ODONKOR & ORS V. AMARTEI
[1987-88] 1GLR 578 SC and
others, laid down the basic
principles governing application
for interlocutory injunction as
follows:
I.
That the status quo should as
much as possible be maintained.
II.
That the court should ensure
that the successful party does
not have a hollow victory at the
end of the day.
III.
That the order does not work
greater inconvenience to either
party than is reasonably or
absolutely necessary.
IV.
That the question of hardship to
either party must be seriously
considered.
We are of the opinion that the
Court of Appeal did not propose
to lay down any hard and fast
rules or principles to regulate
the determination of
interlocutory injunctions. Even
though it is discretionary, we
are of the view that a trial
court in determining
interlocutory application must
consider whether the case of an
applicant is not frivolous and
had demonstrated that he had
legal or equitable right which a
court should protect. The court
is also enjoined to ensure that
the status quo is maintained so
as to avoid any irreparable
damage to the applicant pending
the hearing of the matter.
Thirdly, the trial court ought
to consider the balance of
convenience and should refuse
the application if its grant
would cause serious hardships to
the other party. See
OWUSU
V. OWUSU-ANSAH [2007-08]
SCGLR 870 and POUNTNEY V.
DOEGAH [1987-8] 1GLR III.
The question is, did the trial
judge consider these principles?
From the judgment of both the
trial court and the Court of
Appeal, the judges adequately
considered the above principles
governing the grant. Before us
nothing has been urged on us to
demonstrate whether the learned
judges of the Court of Appeal in
affirming the judgment of the
High Court misapplied the law or
there was misapprehension of
fact resulting from relying on
irrelevant or unproved matters
or that the court below failed
to take matters which were
relevant into consideration.
See
CRENSTIL V CRENSTIL [1962 2
GLR 171 and BALLMOSS V MENSAH
[1984-86] 1GLR 724. We find
no merit in this ground of
appeal as the basic principles
governing the grant of the
interlocutory injunction were
adequately considered by both
courts.
Another point which was argued
related to undertakings in
granting interlocutory
injunction which point in our
view was adequately addressed by
the Court of Appeal. We may,
however, wish to point out that
undertakings could be waived by
the trial court as pointed out
in the recent case of
THE
REPUBLIC V HIGH COURT,
KOFORIDUA EX PARTE ANSAH-OTU
[2009] SCGLR 141. In any
case as pointed out in EX PARTE
ANSAH-OTU, supra, it is
discretionary and it is a
discretion vested in the court.
This was made clear by LORD
DIPLOCK in HOFFMAN
– LA ROCHE & CO A – G & ORS V.
SECRETARY OF STATE FOR TRADE &
INDUSTRY [1974] 2 ALL ER 1128 HL,
at 1150 when he said as follows:
“The
court has no power to compel an
applicant for an interim
injunction to furnish an
undertaking as to damages. All
it can do is to refuse the
application if he declines to do
so. The undertaking is not
given to the defendant but to
the court itself. Non –
performance of it is contempt of
court, not breach of contract
and attracts the remedies
available for contempt; but the
curt exacts the undertaking for
the defendant’s benefit”
[Emphasis ours]
It does appear that the
discretion is vested in the
court and depending on the
circumstances of each case it
may decide to exact an
undertaking before granting
interlocutory injunctions.
Since this point was adequately
covered by the judges at the
Court of Appeal, we do not wish
to proceed to discuss it in
detail again in this judgment.
We
are, however, satisfied that the
learned judges of the Court of
Appeal adequately considered the
appeal both on the facts and the
law and arrived at a conclusion
which could not be faulted. We
accordingly proceed to dismiss
the appeal as without merits.
ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R.
C. OWUSU
JUSTICE OF THE SUPREME COURT
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL:
DANIEL OWUSU-NYAMPONG FOR THE 2ND
DEFENDANT/ APPELLANT.
GABRIEL PWAMANG FOR THE
PLAINTIFF/RESPONDENT. |
