Mohammed v Ashalle and Others (TRS/E1/HCKO/175/2024) [2025] GHAHC 154 (21 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT “2”), HELD AT KASOA-OFAAKOR ON THURSDAY THE 21ST DAY OF FEBRUARY, 2025 BEFORE HIS LORDSHIP JUSTICE EDWARD TWUM J, JUSTICE OF THE HIGH COURT ALHAJI TAHIRU MOHAMMED … PLAINTIFF VS. SUIT NO. TRS/E1/HCKO/175/2024 1. NII ACQUAYE ASHALLE (SUBST. BY ALEX DONKOR) 2. KING DAVID ACQUAH (NII YEDU) 3. OFORI ABUBAKAR 4. ISAAC ARYEE a.k.a SOBODJOR 5. FAISEL 6. ISAAC NII BARNOR 7. DANIEL ADUQUAYE 8. ABU ABDALA DEFENDANTS PARTIES Plaintiff - Present Defendants - Absent LEGAL REPRESENTATION Nicholas Egyin Boadu for the Plaintiff/Applicant – Present Edmund Oppong for 1st and 2nd Defendants – Present Other Defendants not represented RULING Introduction 1. This is a ruling on an application christened by the Applicant/Plaintiff (hereinafter “Plaintiff”) as “variation” praying this court for an order “varying” the injunction application which was dismissed by this court. Background 2. The Plaintiff sued the Defendants for the following reliefs: i) A declaration of title to all that piece or parcel of land situate lying and being at Kasoa Oduponkpehe Residential Area in the Awutu-Efutu-Senya District of the Central Region of Ghana described as ALL THAT piece or parcel of land containing an approximate area of 0.50 Acre known as Sector 15 Block “A” Plot Nos. 361 & 363 Residential Area layout in the Kasoa-Oduponkpehe in the Awutu-Efutu-Senya District in the Central Region of the Republic of Ghana bounded on the North by proposed road of 60 feet measuring 95 feet more or less on the North-East by a link measuring 30 feet more or less on the East by proposed road of 40 feet measuring 180 feet on the South by Plot No. 359 measuring 110 feet more or less on the West by Plot Nos. 360 & 362 measuring 205 feet more or less which piece or parcel of land is more particularly delineated on the plan attached thereto and thereon shown edged pink. ii) Recovery of possession of portions of the Plaintiff’s aforementioned land which the Defendants have trespassed upon and are wrongfully laying false claim to. iii) Damages for trespass committed by the Defendants to portions of the Plaintiff’s land. iv) An order of perpetual injunction restraining the Defendants whether by themselves, their agents, servants, assigns etc. from entering upon, occupying, constructing or carrying out any building activities thereon and interfering in any way with the Plaintiff’s ownership and possession of the aforementioned land. v) Cost including legal costs for prosecuting this suit. Application for Interlocutory Injunction 3. The Plaintiff filed an application for interlocutory injunction against the Defendants on the 19 July, 2023 but same was dismissed by this court in its ruling of 19 December, 2024. Instant Application 4. The Plaintiff brings the instant application filed on the 3 January, 2025 praying this court to vary its order for interlocutory injunction declined on 19 December, 2024. 5. The case of the Plaintiff is that this court on the 19 December, 2024 refused his interlocutory injunction application on the ground that Plaintiff failed to attach a site plan to indicate that the disputed land is the same land being claimed by the Defendants. Another grounds for the refusal of this court to grant the said interlocutory was that the Plaintiff failed to exhibit any photographs to indicate the activities of the Defendants which could be considered as encroachment on the disputed land and indicated that the hearing of the interlocutory injunction application, this court did not advert its mind to the supplementary affidavit the Plaintiff filed on the 10 April, 2024 exhibiting photographs depicting the trespassory activities of the Defendants on the disputed land. 6. The Plaintiff therefore prayed this court to vary the order and restrain the Defendants or all the parties until the rights of the parties are fully determined in the substantive suit. Case of the 1st and 2nd Defendants 7. The 1st and 2nd Defendants (Defendants) opposed the application. According to the Defendants, the instant application is incompetent and alien to our civil jurisprudence because per the rules of court, variation can only be sought when there is an existing court order. The Defendants said the Plaintiff has clothed a repeat application as an application for variation. The Defendants prayed this court to dismiss the instant application. The Law and this Application 8. In its ruling of 19 December, 2024, this court discussed the law and various authorities on the grant or refusal of interlocutory injunction in relation to that application and came to the conclusion that the Plaintiff has not made enough case for this court to aid him by granting him interlocutory injunction against the Defendants. 9. In reaching that conclusion, this court stated in paragraphs 27 and 28 at pages 9-10 of the Ruling as follows: ‚27. Alternatively, the Plaintiff should have exhibited photographs of activities or constructions being undertaken on the encroached land, supposedly by the Defendants, to assist this court to relate the Plaintiff’s case to those activities or constructions going on at the moment on the disputed land. Plaintiff could also not establish any hardship that will be occasioned to him if the said application is not granted. Indeed, this court did not find Plaintiff evidence very convincing enough to compel this court to come to his aid to protect a right which is being infringed upon by the 1st and 2nd Defendants. 28. This court has no doubt that the Plaintiff may have a legal or equitable right in the property he claims is being encroached upon by some persons in view of the documents he has exhibited in this application. But in this application, Plaintiff has not been able to provide any evidence to link the Defendants directly to the said encroachment. Apart from the 1st and 2nd Defendants who deny Plaintiff’s claims, Plaintiff could also not provide any evidence linking directly the 3rd to 8th Defendants’ to any purported activities on the disputed land which has negatively affected the Plaintiff’s legal and equitable rights. In such a situation, how could this court assist the Plaintiff to protect a right the Plaintiff himself has failed to assert?‛ 10. Before proceeding to deal with the instant application, it is important for this court to put this suit in its historical context to understand some of the issues arising from herein. This suit was commenced by the Plaintiff with the issuance of writ of summons and statement of claim at the Registry of the High Court, Agona Swedru on 26 April 2023. The Plaintiff followed this up with an interlocutory injunction application filed on the 14 July, 2023 seeking for interlocutory injunction against the Defendants till the determination of the substantive suit. 11. Per an order of the High Court, Agona Swedru dated 24 October, 2023, His Lordship Kwame Polley, the presiding judge referred the docket of this suit to the Honourable Chief Justice for an order of transfer of the suit to this court pursuant to a motion on notice filed by the 1st and 2nd Defendants on 16 April, 2023 objecting to the jurisdiction of High Court, Agona Swedru to hear the matter based on the location of the subject property and for the transfer of the suit to this court. 12. Subsequently, the suit was transferred to this court. It is important to note that nearly all the processes on the court’s docket were filed at the Registry of the High Court, Agona Swedru before the subsequent transfer of the suit to this court. 13. At the hearing of the earlier application, this court did not have the opportunity to see and consider the Supplementary affidavit filed by the Plaintiff on the 10 April, 2024 at the High Court, Agona Swedru. Exhibit “B” attached to this application is proof, and this is not challenged by the Defendants, that indeed the Plaintiff filed supplementary affidavit exhibiting photographs of the Defendants’ trespassory activities on the disputed land. Admittedly, from the findings of this court in its ruling of 19 December, 2024, the conclusions it reached would have been different if this court had got the opportunity to consider Exhibit “B”. 14. The main grounds of the Defendants opposing this application is that there was no order of this court to “review” as the injunction the Plaintiff seek to review was dismissed, and technically speaking, there is no order of this court in existence. This court is in total agreement with this assertion by the Defendants. However, it appears to this court that the wrongful title of the Plaintiff’s application should not disentitle the Plaintiff from asserting his rights if “new” evidence has become available to him, and which upon review by this court, this court will come to the conclusion that if the said evidence had been made available at the hearing of the earlier application, it would have tilted the scales in favour of the Plaintiff, nothing stops this court from considering the repeated application on its merit. What should be the guiding principle to this court is to do substantial justice and make a determination as to whether on the face of the affidavits of both parties there is the need to preserve the status quo in order to avoid irreparable damage to the Plaintiff, provided his claim is not frivolous or vexatious. 15. In the case of Okofoh Estates Limited v. Modern Signs Limited [1996-97] SCGLR 224 the Supreme Court stated at page 259 of the report as follows: “The wrong heading of the application for an order of certiorari could not in any material manner, derogate from the nature of the application itself. Since the Supreme Court was a court of final resort, in the absence of specific prescriptions in the Supreme Court Rules, 1970 (C. I. 13) or any other relevant statute, what was more important was whether the application had any substance regardless of the form in which it has been instituted.” (Emphasis mine.) 16. In this application, what is important for this court to consider is the substance of the application and not the form, i.e. whether or not the application has any substance worth considering irrespective of the wrongful heading of the Plaintiff’s application. Moreover, this court has the inherent jurisdiction to amend the heading of the Plaintiff’s motion, and it is so amended since it is the considered view of this court that doing so will not occasion any injustice or prejudice to the Defendants’ case since this court is concerned with doing substantial justice to the parties in this case than any other consideration. 17. In the case of Vanderpuye v. Nartey [1977] 1 GLR 428, the facts which are gleaned from the headnotes are that an application by the appellant for an order for the interim protection of property pending the final determination of the case between the parties was dismissed by Griffiths-Randolph J. on the ground that the appellant failed to show a reasonably fair or strong prima facie case in support of his application. A second application by the appellant alleging that he had discovered material which entitled him to move the court anew on the same issue was dismissed by Edusei J. on the ground that the appellant had already brought a similar application unsuccessfully on the same issue. On appeal to the Court of Appeal one of the grounds of appeal which is relevant to this application was that (i) Edusei J. was wrong in dismissing the application on the preliminary objection that he had already brought a similar application unsuccessfully on the issue. 18. Allowing the appeal, the Court of Appeal held that if there was a new matter which changed the positions of the parties, a court should look at it to determine whether the prayer in a motion for interlocutory relief ought to be granted despite the fact that a similar motion had already been disposed of in relation to the same question. The Court of Appeal stated that it was satisfied that the learned judge ought not to have shut out the appellant on the preliminary objection that he had already brought a similar application unsuccessfully on the issue, thus treating it as res judicata. The Court held further that the appellant has raised fresh points which appeared genuine enough and which, if true, might on a fair examination induce a court to grant him the relief that he sought. 19. In the respectful view of this court, if Exhibit “B” had been available to this court at the determination of the earlier application, the court would have reached a different conclusion than it did in its ruling of 19th December, 2024. In the instant application, the Plaintiff provided proof (Exhibit “B”) to the effect that the Defendants or persons acting for and on their behalf are seriously developing the disputed land. 20. Per Order 25 rule 1 of the High Court (Civil Procedure) Rules, 2004 (C. I.47) this Court may grant an interlocutory injunction in all cases if it appears to it to be just and convenient to do so. In determining justice and convenience, the Court ought to consider the following: a) Whether or not there is a serious issue to be tried or in the alternative, whether or not the case of the Plaintiff or Applicant, as the case may be, is not frivolous, or is relatively strong. b) Whether damages would suffice, or alternatively, whether the status quo ante ought to be preserved. In determining this, the question that should be answered is whether a successful party would be presented with a fait accompli in the event of such success. c) The balance of convenience as held evenly on a scale between the parties. 21. Lord Diplock LC in the House of Lords case of American Cyanamid Co. v. Ethicon Ltd. [1975] 1 All ER 504 at page 509 also explained the purpose of interlocutory injunction and the reasons for granting it in the following terms: ‚My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff’s legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesi the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour at the trial. The court must weigh one need against another and determine where ‘the balance of convenience’ lies.‛ 22. The question to answer is has the Plaintiff made adequate case for the relief of interlocutory injunction to be granted in this repeated application? His Lordship Amissah JA in the Vanderpuye v. Nartey case (supra) stated as follows: ‚…although there was justification in seeking an end to interlocutory applications on the same point, there was nothing preventing the presentation of a fresh motion if fresh material on the issue became available. The applicant was, therefore, not advocating an unrestricted right to bring any number of motions on the same subject before the court. He recognised the limitations which the court's power to dismiss applications for frivolity or vexatiousness imposed on the unsuccessful applicant considering a fresh application. But he contended that this power, the dimensions of which were left to the discretion of the court to determine, was wide enough to control the applicant who after losing once on an application decided to importune the courts with further applications based on the same request. Once some fresh material which could weigh with a court in deciding the merits of the application afresh is introduced, however, the situation was different. The applicant was entitled to re-apply even though he had lost in the previous round. The submission seems to us to have much merit. This is not an area where reported decisions are available. And counsel did not refer us to any. But one practical example ought to put his case beyond dispute. Assume an applicant in a land case bringing a motion for an interim injunction but failing to secure it on the ground that the respondent has not been responsible for activities occurring on the land. Assume subsequently there is irrefutable evidence that the respondent has been carrying on such activities. Would the court summarily dismiss the fresh application brought summarily on the ground that a similar application on the point had been dealt with? If that were so parties to a case would acquire immunity from a simple victory in an interlocutory matter, thereby obtaining a licence to act exactly as they please on the issue, however adversely that may affect the interest of their opponents while the substantive case is in progress. But it is well known that the situation of the parties in relation to one another during the currency of a case may keep altering from time to time and the courts would find themselves incapable of giving interlocutory relief if some principle like res judicata were to be introduced into this area to fix positions which cannot and, indeed, ought not to be so fixed.‛ 23. In the circumstances of this application and in view of Exhibit “B”, it is the considered view of this court that the Plaintiff has made enough case to convince this court to come to his aid. In the circumstances, the prayers of the Plaintiff is hereby granted. It is the considered view of this court that both the Plaintiff and the Defendants must be injuncted and it is hereby ordered that the Plaintiff and the Defendants, their assigns, servants, workmen and anyone legally claiming through the Plaintiff and the Defendants are hereby injuncted from dealing with the disputed property in any form or manner until the final determination of the substantive suit. 24. It is further ordered that the ruling of this court dated 19th December, 2024 in respect of this matter is hereby set aside. (SGD) EDWARD TWUM J. (JUSTICE OF THE HIGH COURT) 10