Kunutsor Vrs Tetteh (H1/160/06) [2008] GHACA 35 (12 June 2008);
The court considered an appeal against an injunction to restrain the appellants from going onto the disputed land to demarcate, dig, construct etc. any tree on the land until the action had been finally determined. The court considered, 1) the weight of evidence and 2) the capacity of the respondent.
The respondent obtained a customary grant of land 22 years before the action. Later, he obtained a formal lease and was reallocated additional acres of land, which was used to cultivate cash and food crops. Due to development in the area, the respondent’s land was whittled away. The respondent alleged that the appellants trespassed on his land and undertook various activities such as alienation of portions of his land, in the premise.
On the ground of capacity, it was found that once a party’s capacity had been challenged, it should be determined as a preliminary point and the suit can only be heard after this is determined. The court held that the appellants did not raise capacity as a preliminary issue and as such, the manner in which it was raised was a ploy to confuse the trial judge.
On ground of the weight of evidence, the court found that if the injunction had not been granted, the respondents land would have been pillaged and its nature entirely changed. Thus, an injunction was necessary to ensure that irreparable damage was not caused.
The court found that the trial judge exercised his discretion properly and thus the appeal was dismissed and remitted to the trial court for continuation.
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM: DOTSE, J.S.C. [PRESIDING]
QUAYE, J.A.
APALOO. J.A.
H1/160/06
THURSDAY 12TH JUNE, 2008
WOEDEM KUNUTSOR … PLAINTIFF/RESPONDENT
V E R S U S
ADJIN TETTEH & ORS. … DEFENDANT/APPELLANT
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J U D G M E N T
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APALOO, J.A.:- This is an appeal from the decision of the Fast Track Division of the High Court in Accra dated 2nd February 2006. The decision was a ruling which restrained the Defendants/Appellants whether by themselves, agents, servants, assigns and privies from going on to the disputed land to demarcate, dig, construct, weed, harvest or fell any tree on the land until the action is finally determined by the court.
The Defendants/Appellants filed four grounds of appeal which attacked the ruling. In my view two of the grounds went into the merits of the substantive case and therefore deserve to be struck out as incompetent. The two grounds are
“(ii) The trial Judge misdirected himself on the law by failing to give
effect to the maxim, equity follows the law, thereby doing substantial
injustice to the appellants.
(iii) The trial judge failed to, do equity by his endorsement of Plaintiff’s
unjust enrichment at the expense of Defendants.”
Surely these two grounds may arise only after a full trial and at the conclusion of the case and not upon a ruling founded on an application for interlocutory injunction. In Vanderpuye Vrs. Nartey [1977] 1 GLR 428 at 431, Amissah JA stated that;
“For the traditional view for the grant or refusal of interlocutory
relief has been for the court to abstain…from expressing any
opinion upon the merits of the case until the hearing but to act to
minimize the sum total of irreparable damage to the litigants.”
Having disposed of the two grounds as incompetent, I shall proceed to consider the other grounds. The first being the challenge to the weight of evidence and the other on capacity of the Plaintiff/Respondent. I will wish to deal with the issue of capacity of the Plaintiff/Respondent presently. In Sarkodie Vrs. Boateng [1982/83] 1 GLR 715 the Supreme Court held that;
“It was elementary that a Plaintiff or Petitioner whose capacity
was put in issue must establish it by cogent evidence. And it
was no answer for a party whose capacity to initiate proceedings
had been challenged by his adversary, to plead that he should be
given a hearing on the merits because he had a cast iron case against
his appellant.”
Obviously therefore once a party’s capacity has been challenged it should be determined as a preliminary point or issue and the suit can be heard between the parties after the Plaintiff’s capacity has been determined. When the issue of capacity was raised before the trial court in the course of hearing the application for the injunction, the trial judge in his ruling delivered himself in the following words:
“But then the court has heard the motion for an order of interim
injunction and must pronounce on it. Capacity it is noted must
be determined summarily but upon evidence. So to properly
challenge capacity of a party, it must not only be specifically
pleaded but must also be raised as a preliminary issue for arguments.
Defendants/Respondents herein have not challenged Plaintiff’s capacity as a preliminary issue. It was raised with other issues on this motion and argued. I am aware, challenge to capacity can be raised at any time but not in the manner as done in the instant application. I will therefore not order the Plaintiff to prove his capacity in the instant application.”
I must observe that the trial Judge cannot be faulted on his rendition of the law. The motion before the court at the time of hearing the application was one for injunction.
At that time the Defendants/Respondents had not filed a defence from which the issue of capacity had been raised so as to ground an application for that issue to be determined. The conduct of Counsel for the Defendants/Respondents in raising capacity as an issue for argument when that issue has not been raised in the pleadings is diversionary and calculated to confuse the trial judge and the same must not be encouraged.
The trial judge was not in the least amused by the conduct of defence counsel he stated that:
“As pointed by Plaintiff’s counsel, Defendant’s counsel has flouted
Rule 1(4) of Order 25. That rule requires a Respondent to state
in his statement of case full arguments and legal authorities to be
relied upon. Counsel for the Respondents in his statement of case
cited three authorities but referred to two in his submissions.
But then he went out of his way to cite three other authorities thereby
springing a surprise on the Plaintiffs/Applicant’s counsel. Also in the
Defendant/Respondent’s affidavit in opposition sworn to by 1st
Defendant he averred that they will refer to all processes filed as well
as their statement of defence. This affidavit was filed on 14th
September 2005. But it was only on January 2006, the day this motion
was heard, that a statement of defence was filed. I was shown a copy
on the bench whiles the Plaintiff/Applicant had not seen it then, because
it was not served. Yet again counsel for the Respondent in his
submissions, outside the statement of case made reference to a motion
he had filed to dismiss the Plaintiff’s action as frivolous and vexations.
That motion was then not on file so unknown to the Plaintiff and the
Court …I must say these procedural lapses indeed
had taken Plaintiff/applicant’s counsel by surprise……….Let me
remind especially counsel for the Respondents that the rules of court are
not there to be complied with at pleasure.”
The trial judge’s observations on counsel’s conduct to say the least are not complimentary at all. Indeed in this court the substance of his grounds of appeal did not go to the root of the ruling delivered by the trial court. He rather went into the merits of the case. The statement of case for the Appellant disregarded what was at stake in this interlocutory appeal against the grant of interlocutory injunction. In my view what saved this appeal for consideration was the omnibus ground that the ruling was against the
weight of evidence. And where an appellant contends that a judgment or in this case a ruling is against the weight of evidence he throws a challenge by attacking the soundness of the ruling. Indeed he assumes the burden of showing from the affidavit evidence that it was in fact so. See Bonney Vrs. Bonney [1992-1993] GBR 979.
From the record the Plaintiff/Respondent’s writ of summons was endorsed with reliefs for Declaration of title, order for recovery of possession, order for perpetual injunction and general damages for trespass.
In his statement of claim he set out the details of his claim. His affidavit in support of the application further detailed the facts supporting the application.
According to the Plaintiff/Respondent he obtained a customary grant of land of about 90.61 acres from the Nii Sempe Mensah family of Ablekuma in Accra some 22 years before the commencement of the action. He later requested for and obtained a formal lease of the land on 1/1/84. Later his grantors re-allocated him 42 acres and was awaiting his grantors to add more plots to make up the difference.
Thirteen years after the grant the land became engulfed by rapid development in the area, and the land which was originally given for agricultural purposes was redesignated as residential land in a new layout. By 1998 the Respondent’s land had been whittled down to 9.65 acres of building plots in three lots described in the schedules to the statement of claim. Undaunted the Respondent held on to what was left of his land, exercised control over it and continued with his farming activities. He cultivated both cash and food crops with the assistance of farmhands.
It is the case of the Plaintiff/Respondent that the Appellants later trespassed onto portions of his land and undertook various unlawful activities such as unlawful demarcation and alienation of portions thereof, digging of trenches for foundations of building and actual construction works. The Defendant/Appellants, in the view of the Plaintiff/Respondent deformed the nature of the land, destroyed Plaintiffs/Respondent’s food and cash crops and disrupted his farming. The appellants and/or his agents uprooted cassava and took away the tubers. They cut down commercial trees planted by the Plaintiff/Respondent and they persistently threatened the Plaintiff/Respondent in various ways and as alleged by the Respondent, at the time of the application the activities of the Defendant/Appellant were still going on. The Respondent according to him sought the assistance of the court per his application to save his farm crops, commercial trees and his land from the lawless plunder pending the hearing and final determination of the suit. The affidavit in opposition to the application denied the assertions of the Plaintiff/Respondent but went further by a 30 paragraph affidavit to refer to matters that were remote and unconcerned with the issues deposed to by the applicant.
Order 25 Rule 1 of the High Court Rules C.1. 47 lays down the basis for the grant of interlocutory injunction and I reproduce it herein for its full effect.
“The court may grant an injunction by an interlocutory order in all
cases in which it appears to the court to be just and convenient to
do so, and the order may be made either unconditionally or upon such
terms and conditions as the court considers just.”
Having regard to the facts and circumstances before the trial court, could it be said that it appeared to the court to be just and convenient to make the order?
Would a refusal have caused an irreparable damage to the Plaintiff?
The facts indeed disclose that a refusal would adversely affect the Plaintiff/Respondent and going by the affidavit of the Plaintiff/Respondent, the disputed land would have been plundered and pillaged and its nature entirely changed by the time the suit is finally concluded considering the activities of the Defendants/Appellants on the land.
What are the guiding principles for the grant of interlocutory injunction. It appears from the authorities that for an applicant to succeed in an application for interlocutory injunction, he was required to satisfy the court that the claim was not frivolous or vexations; in other words there was a serious question to be tried. See Vanderpuye Vrs. Nartey [1977] 1 GLR 428. Amissah JA cited and relied substantially on the famous English case of Cynamid Co. Vrs. Ethicon Ltd. [1975] 1 All E.R. 504 where at p. 509 Lord Diplock stated that:
“In those cases where the legal rights of the parties depend on facts
that are in dispute between them, the evidence available to the
Court at the hearing of the application for interlocutory injunction
is incomplete. It is given on affidavit and has not been tested on cross-
examination.”
Indeed on p. 432 of Vanderpuye Vrs. Nartey [Supra] Amissah JA was of the opinion that “the governing principle should be whether on the face of the affidavit
there is the need to preserve the status quo in order to avoid
irreparable damage to the applicant provided his claim is not
frivolous or vexatious.”
What then is the status quo in this suit. By definition the status quo means “the situation that currently exists.” See Black’s Law Dictionary 7th ed. P. 1420. My view is that there was the need to preserve the status quo as the Defendants/Appellants would not have suffered any irreparable damage notwithstanding the grant of the order. On the other hand the irreparable damage will lay heavily on the Plaintiff/Respondent had the application been refused and the Defendants/Appellants had continued with their activities on the land. In this instance I am of the firm view that the trial Judge exercised his discretion properly in accordance with the law and the appeal against the ruling must fail. The case is remitted to the trial court for continuation.
R.K. APALOO
JUSTICE OF APPEAL
I agree. J. DOTSE
JUSTICE OF THE SUPREME COURT
I also agree. G.M. QUAYE
JUSTICE OF APPEAL
COUNSEL: MR. AGYABENG AKRASI FOR THE DEFENDANT/APPELLANT.
MR. SOMUAH ASAMOAH FOR THE PLAINTIFF/RESPONDENT.
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