NUMO NMASHIE FAMILY VS DR. GBOBILOR FLEISCHER (H1/244/2020) [2023] GHACA 151 (30 March 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA AD. 2023 CORAM: JUSTICE ANGELINA DOMAKYAAREH J. A. (PRESIDING) JUSTICE JENNIFER A. DODOO (MRS) J. A. JUSTICE JEROME NOBLE-NKRUMAH J. A. CIVIL APPEAL No: H1/244/2020 30TH March, 2023 NUMO NMASHIE FAMILY PLAINTIFF/APPELLANT VRS DR. GBOBILOR FLEISCHER DEFENDANT/RESPONDENT JUDGMENT DODOO, JA (MRS) The Plaintiff/Appellant instituted suit against the Defendant/Respondent (see p. 2 of the Record of Appeal {ROA}) claiming the following reliefs: a. b. c. d. Declaration of title to all that parcel of land described in the Schedule A, B, C attached. Recovery of possession Damages for trespass An order to injunct the Defendant, his agents, privies and assigns of whatever description from entering the land or further developing same. e. Cost of Litigation The parties will simply be referred to as the Appellant and the Respondent respectively. It was the Appellant Family’s case that they were the allodial owners of the Adjancote Hills and all the lands, towns and villages contiguous to it and are descendants of the founder of Teshie, Nii Okang Nmashie. The Appellant stated further that on 26th February, 1976 the Land Tribunal adjudged the Berekuso Stool and the Appellant family as allodial owner of all the lands, towns and villages surrounding the Adjancote Hills. The Appellant stated that it appealed against the said judgment to the Court of Appeal which in Suit No. 49/80 declared it as the allodial owner of the Adjancote Hills and all the lands, towns and villages contiguous to the Adjancote Hills. The Appellant stated also that it had since exercised ownership over the said parcel of land and had been battling stools, families and individuals to secure its lands which it described as follows (see pp. 34-35 of the Record of Appeal {ROA}): SCHEDULE “A” ALL THAT PIECE OR PARCEL of land situate at Abokobi-Sesemi in the Ga East District of Accra covering a total area of 41.5 acres more or less commencing from SGGA pillar 1/33/01/68/148 on a bearing of 856°00 at a distance of 510.0 feet bordering the land of the Annan Abokobi family to a pillar marked B on a bearing of 290°00 covering a distance of 290 feet bordering the Annan Abokobi family to a pillar marked C thence on a bearing of 193 00 over a distance of 800 feet bordering the Annan Abokobi family to a pillar marked D hence on a bearing of 244°00 covering a distance of 120 feet to a pillar marked E on a bearing 234°00 covering a distance of 120 feet to a pillar marked F on bearing of 135°00 over distance of 150 feet to a pillar marked G on bearing of 338°00 over a distance of 880 feet boarding the Briandt family land to a pillar marked H on a bearing of 35°00 over a distance of 600 feet bordering the Elias Bou Nackles family land pillar marked I thence on a bearing 03°00 over a distance of Nii Kwei Obubua’s land to pillar marked K thence on a bearing of 58 00 over a distance of 780.00 feet crossing the Sesemi-Abokobi Road to a pillar marked M on bearing of 123°00 over a distance of 970.0 feet thence to a pillar marked back and enclosing the commencement pillar A. SCHEDULE “B” ALL THAT PIECE AND PARCEL of land situate at Abokobi-Sessimi in the Ga East District of the Greater Accra Region covering an area of 29.5 acres. SCHEDULE “C” ALL THAT PIECE AND PARCEL of land situate at Abokobi-Sessimi in the Ga East District of the Greater Accra Region covering an area of 23.5 acres portion of which was pawned to the Presbyterian Church of the Gold Coast. The Respondent who described himself in his Statement of Defence (see pp. 106-109 of the ROA) as the Head of Family of the Paul Fleischer family of Osu Ashante-Blohum denied that he had trespassed on the Appellant’s land. He laid claim to the land stating that the judgment in Suit No. 49/80 had been set aside as having been procured by fraud by the High Court in Suit No. BL 619/2007 in the case entitled BOI STOOL vrs. DANIEL ADDOQUAYE ADDO, BENJAMIN TETTEH ADDO, NUUMO NMASHIE FAMILY (as per head, DANIEL ADJETEY ADJEI) The Respondent averred that the Paul Fleischer family acquired the land and had been in possession for a long time and as far back as 1951 when the family’s title was proven in Suit No. 89/1950 intituled HENRIETTA BADU DJOLETO (as head of family of the Paul Fleischer family) vrs. AKOTEY ALLOTEY which judgment ordered the production of a judgment plan. The Respondent stated that the Paul Fleischer family had granted portions of the land to third parties and had also established a village called “Dravaga” which had been on the land for over 90 years. The Respondent therefore made a counterclaim against the Appellant for a declaration of title and also that they are owners in possession of all the lands described in schedules A, B and C as follows: SCHEDULE “A” ALL THAT PIECE OR PARCEL of land situate at Abokobi-Sesemi in the Ga East District of Accra covering a total area of 41.5 acres more or less commencing from SGGA pillar 1/33/01/68/148 on a bearing of 856°00 at a distance of 3560 feet to a pillar marked A hence on a bearing of 302°00 over a distance of 510.0 feet bordering the land of the Annan Abokobi family to a pillar marked B on a bearing of 290°00 bordering the land covering a distance of 290 feet bordering the land of the Annan Abokobi family to a pillar marked C thence on a bearing of 193°00 over a distance of 800 feet bordering the Annan Abokobi family to a pillar marked D thence on a bearing of 244°00 over a distance of 300 feet to a pillar marked E on a bearing 234°00 covering a distance of 120 feet to a pillar marked F on bearing of 135°00 over distance of 150 feet to a pillar marked G on bearing of 338°00 over a distance of 880 feet boarding the Briandt family land to a pillar marked H on a bearing of 35°00 over a distance of 600 feet bordering the Elias Bou Nackles family land pillar marked I thence on a bearing 03°00 over a distance of Nii Kwei Otubua’s land to pillar marked K thence on a bearing of 58° 00 over a distance of 780.00 feet crossing the Sesemi-Abokobi Road to a pillar marked L thence on a bearing of 130°00 over a distance of 800.0 feet to a pillar marked M on a bearing of 123°00 over a distance of 530.0 feet thence to a pillar marked back and enclosing the commencement pillar A. SCHEDULE “B” ALL THAT PIECE AND PARCEL of land situate at Abokobi-Sessimi in the Ga East District of the Greater Accra Region covering an area of 29.5 acres under full occupation, habitation and cultivation of Plaintiff’s tenant farmers within which the village of “DRAVAGA” has been established as a farming community as far back as 1915. SCHEDULE “C” ALL THAT PIECE AND PARCEL of land situate at Abokobi-Sessimi in the Ga East District of the Greater Accra Region covering an area of 23.5 acres portion of which was pawned to the Presbyterian Church of the then Gold Coast and factually so held in the Judgment of the Land Appeal No. 89/1950 in the case intituled: HENRIETTA BADU DJOLETO (as Head of Family of the late Paul Fleischer) vrs. AKOTEY ALLOTEY AND KOFI AHELE NUNOO per Jackson J. While the suit was pending, the Appellant applied for an order of interlocutory injunction restraining the Respondent either by himself, his agents, privies, assigns, workmen, servants or otherwise howsoever from dealing with the lands subject matter of this suit in anyway, including entering, selling or leasing or processing documents covering same until the final determination of the suit. (See pp. 42-45 of the ROA). The trial court in its Ruling stated that it was only in Schedule A that the land was described in detail and that Schedules B and C had only been described as covering an area of 29.5 and 23.5 acres respectively. As a result, the court held that the Appellant had failed to satisfy the litmus test as stated in Anane v. Donkor (1965) GLR 188 where an Applicant for injunction was enjoined to describe the subject matter adequately by detailing the boundaries so that when the injunction order is violated, the culprit can be conveniently taken on for contempt. The application was therefore refused. Aggrieved by this decision, the Plaintiff/Appellant has filed a Notice of Appeal (see p. 236 of the ROA) which contains the following grounds of Appeal: i. That the learned Judge erred in the exercise of his discretion when he failed to make critical consideration of all the relevant and material evidence on the record such as the detailed description of the land in Schedule A in the Statement of Claim. ii. The learned judge erred when he totally ignored the fact that the description of the lands in Schedule B and C is virtually the same as the description of the lands in Schedule B and C of the Defendant’s counterclaim making the identity and boundaries of the lands undisputed and therefore requiring no further proof, rendering Anane v. Donkor (1965) GLR 192 principle inappropriate. The Appellant in its written submission stated that they had demonstrated a legal or equitable interest in the land which required protection by its pleadings and documentary proof of allodial ownership. They argued further that in the Respondent’s Defence and Counterclaim he had given the same description of the land that the Appellant had given and that meant the parties were ad idem on the identity of the land they were disputing. The Appellant argued that they would face greater hardship if the order of interlocutory injunction was not granted. The Respondent is naturally opposed to the Appellant’s case as being unmeritorious. It is his contention that the trial court’s ruling that the Appellant had failed to establish the test outlined in Anane v. Donkor (1965) GLR 188 be upheld. An appeal as indicated by Rule 8(1) of the Court of Appeal Rules CI 19, is by way of rehearing. What this provision seeks to say is that the appellate court will deal with the matter as if it was hearing the matter at first instance. See the cases of Mamudu Wangara v. Gyato Wangara (1982-83) GLR 639 @ 655 CA; Ansu-Agyei v. Fimah (1993- 94) 1 GLR 299 at 305-306 SC and Praka v. Ketewa (1964) GLR 423 @ 426, SC. In rehearing the matter, the appellate court is required to examine the whole record of appeal, taking into account all the evidence, oral and documentary, to satisfy itself that the judgment is amply supported by the evidence on record, upon the preponderance of the probabilities. See Koglex Ltd (No. 2) v. Field (2000) SCGLR 175 @ 184; Tuakwa v. Bosom (2001-2002) SCGLR 61 @ 65 and Ackah v. Pergah Transport Ltd (2010) SCGLR 729. Based on its evaluation of the evidence on record, the appellate court may interfere with the findings made by the trial court, where good reasons exist for such interference. A cursory look at the description of the land in Schedules A, B and C of the Appellant’s Statement of Claim and in the Respondent’s Counterclaim show that both parties have laid claim to parcels of land all totaling in area 94.5 acres. There is therefore no dispute as to the dimensions of the land being claimed. It is rather the ownership of the land that is in dispute as issues have been joined in that regard. However, the question of who owns the land is not a question before this court. It is left to the trial court to determine ownership. What is before this court is a determination of whether or not an order of interlocutory injunction should be granted in respect of the land which is the subject matter of the dispute. Apart from Schedule A which has a detailed description of the land the Appellant wishes an injunction over, Schedules B and C do not. Whether or not these parcels of land described in Schedules A, B and C are contiguous cannot be determined by the descriptions given. Order 25 r 1(1) of the High Court (Civil Procedure) Rules, 2004 CI 47 states: “The court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just.” In the case of American Cynamid v. Ethicon Ltd (1975) 1 AER 504 the court stated at p. 509 thus: “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 him 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.” An applicant applying for the grant of an interlocutory injunction must establish the existence of a legal right. See the cases of Poutney v. Doegah (1987-88) 1 GLR 1512 and Centractor Resources v. Boohene (1992/93) GBR 1513. In the instant case, the Appellant family has stated that they are the allodial owners of the Adjancote Hills and the lands, towns and villages contiguous to it. They have also stated that in a judgment dated 15th December, 1982 in Civil Appeal No. 49/80 they were declared the allodial owner of the said property. (See p. 32 of the ROA) On the other hand, the Respondent has stated that the judgment in Civil Appeal No. 49/80 has been set aside as having been procured by fraud. He said that as far back as 1951, the Paul Fleischer family had been proven in Land Appeal No. 89/1950 to be owners of the same land. (See pp. 106-110 of the ROA). Both parties have each asserted a legal right to the lands in question as both have made reference to certain judgments which had gone in their respective favour. The Court would also grant an order of interlocutory injunction if there is a serious question to be tried between the parties. In Centractor Resources v. Boohene (1992/93) GBR 1513 @ 1516 Kpegah JSC said: “My approach has always been that a Plaintiff who seeks an order for interim injunction must show that the right he seeks to protect really exists and that there has been unjustified interference by the Defendant and such an interference is likely to continue. This to me will, involve an examination of the relative strengths of the parties.” The court has studied the relative strengths of the parties based upon the evidence in the record of appeal which consists of the pleadings, affidavits in support and in opposition and the attachments to the application for interlocutory injunction. We believe that in the interest of justice, both parties be injuncted from any further dealing with the land, subject matter of the dispute from this day forth until a final determination is made of their competing claims to the said land as regards the land described in Schedule A of both parties’ pleadings. The ruling given by the trial court refusing the application for interlocutory injunction in respect of Schedule A is hereby reversed and in its place an order of interlocutory injunction is imposed on both parties restraining the Appellant and Respondent either by themselves, their agents, privies, assigns, workmen, servants or otherwise howsoever from any further dealings with the land described in Schedule A, subject matter of this suit in anyway, including entering with a view to selling or leasing or processing documents covering same until the final determination of the suit. The Appellant has however not been able to delineate the boundaries of the lands described in Schedules B and C apart from telling the court that these lands cover an area of 29.5 and 23.5 acres respectively and are situate at Abokobi-Sessimi in the Ga East District of the Greater Accra Region. The principle is that to succeed in an action for declaration of title to land, injunction and recovery of possession, the plaintiff must establish by positive evidence the identity and limits of the land he claims. See Agyei Osae & Others v. Adjeifio & Others (2007-2008) SCGLR 499. See also Nortey (No. 2) v. African Institute of Journalism and Communication & Others (No. 2) (2013-2014) SCGLR 703 which quoted with approval Anane v. Donkor; Kwarteng v. Donkor (Consolidated) (1965) GLR 188 at 192-193 as follows: Where a Court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject matter of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain … For these reasons a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land to which he claims title with the land the subject matter of the suit. It is therefore essential that an applicant for interlocutory injunction must positively identify the disputed area through the pleadings and affidavit evidence before an order could be made in his favour. The land, the subject-matter of dispute must first be established with certainty before other factors like whether the applicant has a right at law or equity, the balance of hardship and convenience in land disputes could be considered. The Appellant failed to clearly identify the boundaries of the land in Schedule B to enable the Court to rule in their favour. A Court can only grant an injunction over clearly defined land boundaries. As such, it would be impractical to place an injunction on the area in Schedule B which has not been appropriately described. Similarly, the boundaries in respect of Schedule C have not been specifically delineated in the Appellant’s writ. Without taking evidence, the Court is disabled from placing an order of interlocutory injunction over land which boundaries have been left at large. The Appeal against the refusal of the order for interlocutory injunction succeeds in part as pertaining to the land described in Schedule A only. The suit is hereby remitted to the trial court and is to take its normal course. sgd JENNIFER A. DODOO (MRS) (JUSTICE OF APPEAL) sgd I AGREE ANGELINA DOMAKYAAREH (MRS.) (JUSTICE OF APPEAL) I ALSO AGREE JEROME NOBLE-NKRUMAH sgd (JUSTICE OF APPEAL) COUNSEL EDWARD ANOKYE FOR PLAINTIFF/APPELLANTS GEORGE ANKOMAH MENSAH FOR DEFENDANT/RESPONDENT 14