DECOBUILD LIMITED VRS NEW JOESAM CONTRACTORS LIMITED & ANOTHER (H1/61/23) [2023] GHACA 175 (18 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA, AD 2023 CORAM: ANTHONY OPPONG, JA (PRESIDING) JANAPARE A. BARTELS-KODWO, JA EMMANUEL ANKAMAH, JA SUIT NO. H1/61/23 DATE: 18TH MAY, 2023 DECOBUILD LIMITED. .... ..... PLAINTIFF/APPELLANT VRS. 1. NEW JOESAM CONTRACTORS LIMITED 2. LA NKWATANANG-MADINA MUNICIPAL ASSEMPLY. ..... DEFENDANTS/RESPONDENTS J U D G M E N T ANTHONY OPPONG, JA: On or about 12th September, 2022, the High Court, Adenta, Accra delivered an interlocutory ruling in respect of an interlocutory application for injunction that the plaintiff/appellant (to be referred to as plaintiff hereafter) had filed against the defendants/respondents (also to be referred to as defendants hereafter). In the said ruling, the application was dismissed and the plaintiff being dissatisfied filed the instant appeal. Before I mention the grounds of the appeal, I may be indulged to give some background brief facts about the case. Plaintiff acquired a parcel of land situate and being at Nkwatanang, Accra, about 1.36 acres in size, from Nikoitse We of Nkwatanang, represented by the head, Nii Nikoi Kotey Jonas in 2011. There was not only an executed lease agreement evidencing this acquisition but also land title certificate obtained by plaintiff from Lands Commission. Plaintiff claimed it took possession of the acquired land from the time of the acquisition, that is 2011, until 2022 when 1st defendant who had been engaged by 2nd defendant violated the possessory right plaintiff had enjoyed over the land. In fact plaintiff described the defendants as trespassers. What was/is the case of defendants? 1st defendant was a construction firm and was on the land at the instance of 2nd defendant, a Municipal District Assembly headquartered in Madina, to carry out construction works. According to 2nd defendant, it owned the disputed land, the land having been vested in it by government which also acquired the land by virtue of compulsory acquisition that had been duly effected by the State through an Executive Instrument (E. I 21) dated 1983. By this defence, all the defendants are saying is that as far back as 1983, by virtue of the E. I. 21, plaintiff’s grantor, Nikoitse We of Nkwantanang had been divested of any interest in the land to purport to grant the same land to plaintiff, contending that the land title certificate plaintiff obtained might have been obtained by fraudulent means. As remarked earlier, pursuant to the institution of the action, plaintiff sought, by an interlocutory application, to restrain defendants and their servants or workers from proceeding to develop the land any further and the said application failed. The appeal filed against the ruling dismissing the application raised the following grounds: a. That the learned judge occasioned for the appellant a grave miscarriage of justice, when despite the possible evidence on record, held that the plaintiff/appellant’s application for injunction was without merits b. That the ruling by the Court dated 12th September, 2022 is against the weight of evidence on record c. Additional grounds to be filed upon receipt of the Record of Appeal It must be mentioned that no additional grounds were filed when the plaintiff received the Record of Appeal (ROA). It must be remarked that ground one was poorly formulated. However, mindful of doing substantial justice, this court would choose to look at the substance rather than the wording and proceed under the understanding that the plaintiff wants this court to agree with him that on the basis of the preponderance of the affidavit evidence on the record, the trial court should have granted its application rather than concluding that the application was without merits. I must also observe that the plaintiff did not proffer any argument on the second ground and so that ground would be regarded as having been abandoned. Arguing the appeal, Learned lawyer for the plaintiff referred to the principles that guide a court in considering whether to grant or refuse an application for injunction and cited cases like Beddow v. Beddow (1878) 9 CH D 89; Bramwell v. Halcomb (1836) 40 E. R. 1110; Preston v. Luck (1884) 27 CH D 497; Lardan v. Attorney General (1957) 3 WALR 55; Punjabi Bros. v. Namih (1958) 3 WALR 381 and Vanderpuye v. Nartey (1977) 1 GLR 428, CA. Plaintiff pointed it out in his argument before this court that the fact of plaintiff obtaining land title certificate dated 23rd, March 2012 constitutes prima facie evidence of title in the land being in plaintiff, and that plaintiff’s title entitled it to protection of the law by the grant of the injunction so as to preserve the status quo ante, pending the determination of the substantive suit. Learned lawyer for plaintiff concluded in his submission that plaintiff succeeded in strongly demonstrating that there is a clear likelihood of its legal rights being violated by the defendants and their workers and so the trial court failed to exercise its discretion properly by refusing the injunction application. He prayed this Court to reverse the decision of the court below and restrain the defendants from continuing their unlawful development of the land in dispute till the substantive dispute is determined. In response of the submissions of plaintiff, the defendants argued that the trial judge properly exercised her discretion according to law by considering the pleadings and affidavits filed by the parties as well as listening to their lawyers before coming to the conclusion that the application lacked merit. They referred to the case of Owusu v. Owusu-Ansah (2007-2008) SCGLR 870 where the Supreme Court made the point that in determining an application for injunction, it is of prime importance for the court to ascertain whether the applicant has a legal right or in equity and that that can be done by considering the pleadings and the affidavit evidence before the court The exposition of Order 25 of the High Court (Civil Procedure) Rules, 2004 (C. I.47) and the decided cases on the factors underlying the exercise of a court’s discretion in granting or refusing an application for injunction have been harped upon ad nauseum such that it is not worth the while to purport to repeat them here. Nevertheless, I may be constrained to refer to one or two decided cases that have an intrinsic bearing on the merits in determining this appeal. The first thing that comes to mind is what Lord Denning said in the case of Hubbard v. Vosper (1972) 2 WLR 389 at 396: “In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also the strength of the defence, and then decide what is best to be done” Generally speaking, in looking at the whole case on the strength of the pleadings and the affidavit evidence, there is the risk of prejudicing the merits of the substantive case as it is likely that certain comments might invariably tend to impinge on the merits while the case had not been heard or tried, an act that might be contrary to our civil litigation jurisprudence. In other words, I am trying to put up the caution that a court dealing with interlocutory matter either in the first instance or on appeal should not be seen as giving pre-emptive determination of the substantive case. That is to say that trial courts as well as intermediate appeal courts should desist from making positive pronouncements touching on the substantive case while they are both only engaged in determination of interlocutory matters before them. Nevertheless, in this case one cannot help but observe that, on the affidavits and exhibits presented before the Court below, the land the plaintiff was claiming had been acquired by the then PNDC government in 1983 by Executive Instrument 21 which can be found at pages 83 and 84 of the Record of Appeal (ROA). This established compulsory acquisition of the land by the State as shown by defendants make their defence so strong as to extinguish any acclaimed title by plaintiff, the land title certificate acquired by plaintiff notwithstanding, since by virtue of section 46 of Land Title Registration Act, 1986 (PNDC Law 152), the land title certificate plaintiff acquired is subject to certain overriding interests such as, for instance, where the lease registered does not exist in law on the basis of the grant being defeated by the nemo dat quod non habet principle or where there exists prior right on the land concerned by virtue of compulsory acquisition by the State. In Centracor Resources Ltd. v. Boohene & Others (1992-93) GBR Part 4 1512, this Court per Kpegah JA (as he then was) said: “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 an unjustified interference by the defendant and such interference is likely to continue. This to me will involve an examination of the relative strength of the cases of the parties” Kpegah JA made the point in the Centracor Resources Ltd. case supra that after the examination of the respective cases of the parties even at that stage, the relevant question that may have to be answered by the judge is whether it will be just to grant an injunction when the Plaintiff cannot be said to have shown that the legal right he seeks to protect really exists? And for the same reason whether it will also be convenient to do so? Looking at the ruling of the court below, it is my considered view that learned trial judge answered these questions correctly when she refused the application for injunction against the defendants. In other words this court has no basis to impugn the propriety of the exercise of the trial judge’s discretion as same was exercised within the confines of the law and the facts. Accordingly, the ruling of the trial court is hereby affirmed and the appeal is dismissed as without merit. Costs of GH¢6,000.00 awarded in favour of the Defendants/Respondents SGD ............................ JUSTICE ANTHONY OPPONG (JUSTICE OF THE COURT OF APPEAL) SGD I AGREE ........................... JUSTICE JANAPARE A. BARTELS-KODWO (JUSTICE OF THE COURT OF APPEAL) SGD I ALSO AGREE ............................. JUSTICE EMMANUEL ANKAMAH (JUSTICE OF THE COURT OF APPEAL) COUNSEL: NANA BRAGO BOATENG FOR PLAINTIFF/APPELLANT MOHAMMED AWAL FOR DEFENDNATS/RESPONDENTS 7