NAIRAY ESTATE DEVELOPMENT VRS ISMAIL (J4/44/2024) [2025] GHASC 8 (26 February 2025)

INTHE SUPERIOR COURTOFJUDICATURE IN THESUPREMECOURT ACCRA–AD2025 CORAM: LOVELACE-JOHNSONJSC (PRESIDING) AMADUJSC ASIEDUJSC KWOFIEJSC DARKOASARE JSC TH 26 FEBRUARY,2025 CIVIL APPEAL J4/44/2024 NAIRAY ESTATE DEVELOPMENT ….. PLAINTIFF/APPLICANT/ RESPONDENT/RESPONDENT VRS MOHAMMED ISMAIL ….. DEFENDANT/RESPONDENT/ APPELLANT/APPELLANT Page 1of 18 JU DG MENT KWOFIEJSC: th This appeal has been launched against the judgment of the Court of appeal dated 16 November2023whichaffirmed arulingof the trialHighCourt Accra. The trial High Court had on 19-7-2022 granted an application for an order of interlocutory injunction pending the final determination of the substantive suit. An appeal by the defendant/appellant/appellant to the Court of Appeal was dismissed on th the 16 November, 2023. This Honourable Court is called upon to decide whether the Courtof Appeal erred inaffirmingthe trialcourt’s ruling. The facts which provoked the appeal in this case are not in dispute. By a Writ of th Summons filed on 9 March 2022, the Plaintiff/respondent/respondent (hereinafter referred to as the plaintiff claimed against the defendant/appellant/appellant) (hereinafterreferred toasthe defendant) the followingreliefs: a) A declaration that the plaintiff is the owner of all that piece or parcel of land situate lying and being at Roman Ridge, Ayawaso west, Accra containing an approximate area of 0.50 acre more or less and bounded on the North by lessor’s and measuring 181.9 feet more or less, on the South by lessor’s land measuring Page 2of 18 184.1 feet more or less, on the East by proposed road measuring 99.2 feet more or less andon thewest by lessor’sland measuring144.3feet moreorless. b) An order of interlocutory injunction restraining the defendant, his privies, assigns, agents and workmen from interfering with the plaintiff’s peaceful use and enjoyment of its land as described in paragraph (a) above pending the final determinationof thesuit. c) An order of perpetual injunction restraining the defendant, his privies, assigns, agents and workmen from interfering with the plaintiff’s peaceful use and enjoyment of itsland asdescribed inparagraphA above. d) An order for recovery of possession of any portion of the plaintiff’s land trespasseduponby the defendant. e) Damagesfor trespass. f) Costsincluding legal fees g) Anyother orders thatthis HonourableCourt may deemfittomake. Page 3of 18 The plaintiff traced its root of title to the land to a lease granted to it by the Nii Odoitso Odoi Kwao family of Accra sometime in 2014. The plaintiff pleaded that at the time she was granted the land in 2014 by the Nii Odoitso Odoi Kwao family, there was a 4- bedroom house with a 2-bedroom boy’s quarters on the land and the land was very bushy. After making full payment for the land, it was put in immediate possession and it cleared all the weeds on the land and made the place more habitable. According to the plaintiff, it proceeded to renovate the building by replacing all the doors, fans, furniture, lighting amongst others and deposited beds, mattresses and Jacuzzi in the building. It was the case of the plaintiff that it had been in lawful possession of the land and the building thereon since 2014 without any hindrance. Sometime in 2022, the plaintiff says it noticed the presence of the defendant on the land and the defendant started laying adverse claim to the land. The defendant hired bulldozers to demolish the four-bedroom house and the two-bedroom boy’s quarters that were on the land and destroyed all its properties on the land. The defendant had also removed the plaintiff’s gate and replaced it with the intention of blocking entry unto the land and to further develop the plaintiff’s land. The plaintiff contends that unless restrained by the HonourableCourt, the defendant willcontinuewith itsillegal activities onthe land. The defendant did not deny entering upon the disputed land but claimed that the plaintiff’s grantors did not have any title to the land. The defendant claimed that the land belonged to one Madam Phyllis Akyea Djamson who was represented at all times by lawyer Capt. Nkrabea Effah-Dartey. The defendant’s case is that Madam Phyllis Page 4of 18 Akyea Djamson became the beneficial owner of the subject land by virtue of a Vesting Assent executed in her favour by the Administrators of the estate of her late father Mr. Franz Ababio Yao Djamson. The defendant contended that the Government of Ghana acting through the Lands Commission consented to the vesting of the subject land in Phyllis Akyea Djamson and the said consent was required because the land is a government land. It is the defendant’s case that by a Deed of Assignment between himself and Phyllis Akyea Djamson, he acquired all of the unexpired interest of Phyllis Akyea Djamson inall that pieceor parcel of land described as plotNo. 71, Roman Ridge AmbassadorialEstate Extension intheGreater AccraRegion. The plaintiff then applied for an order of interlocutory injunction restraining the defendant, his agents and assigns from interfering with the peaceful use and enjoyment of the plaintiff’s land pending the final determination of the suit. The trial High Court judge granted the order of interlocutory injunction and restrained both parties from interfering with the disputed land pending the final determination of the suit. The trial judge’sreasoning forgranting the applicationwas asfollows: “It appears from the affidavit evidence consisting of the pleadings, the affidavit in support together with the various exhibits presented to this court by the plaintiff/applicant, that its claim to the disputed land is not frivolous. Once a seeming right has been shown, there is the need for this court to protect that seeming right before the actual hearing of the case. I am also mindful of the fact Page 5of 18 that the defendant/respondent has also by his affidavit evidence shown some right or seeming right to the disputed land. With this state of affairs, would it be just or convenient to restrain one party from interfering with the disputed land whilst granting the other party an unhindered right to develop or interfere with the land before a final decision is given by this court? I do not think so. It would serve the course of justice if both parties are restrained from interfering with the disputed land until the final determination of this suit. It has always been my conviction that where parties in a suit demonstrate by their affidavit evidence that they have some right to the disputed land, it would only be just or convenient to restrain both parties from developing the land. In this case, the structure on the land has been demolished implying no one is using same as his residence. The issue of irreparable damage would not arise in this case having regard to the state the disputed land is. So also, is the question of balance of convenience. Consequently, I restrain both parties, either by themselves, their privies, assigns, agents and workmen from interfering with the peaceful use and enjoyment of thedisputedland untilthe final determinationof the case” APPEALTO THE COURTOFAPPEAL The defendant, being dissatisfied with the ruling of the High Court appealed to the Courtof Appeal against the ruling on thegrounds that: Page 6of 18 a) That the ruling is against the weight of evidence adduced in the application for injunction b) Furthergrounds tobefiled uponthe receipt ofacopy of the ruling. Subsequently,the defendantfiledan additionalground of appealasfollows: a) That the learned trial judge erred when he held that the applicant had shown a righttothe land. Their Lordships of the Court of Appeal found that the defendant argued only the additional ground of appeal. The Court reviewed a host of legal authorities on interlocutory injunctions and appeal against the exercise of discretion by a trial judge th including Owusu vs. Owusu Ansah & Another (2007-2008)2 SCGLR 870, 18 July Limited vs. YehansInternational Ltd (2012) 1SCGLR 167at 168and Crenstil vs. Crenstil (1962)2GLR171and heldas followsindismissing the defendant’sappeal: “We therefore find that the learned trial judge properly applied the law in relation to the grant of injunctions. He thus exercised his discretion rightly and gave the proper weight and consideration to the facts and evidence available to him in restraining both parties until the final determination of the suit. We have arrived at this conclusion since the record presents serious questions to be tried Page 7of 18 between the parties and it will be just and convenient to maintain the status quo untilthe finaldetermination of theaction on itsmerit.” APPEALTO THE SUPREMECOURT Still unperturbed, the defendant has launched the instant appeal to this Court against thedecision of the Court ofAppeal on the following grounds: a) That the Court of Appeal erred when it held that the plaintiff/respondent/respondent hadestablished aninterest intheland b) That the ruling is against the weight of evidence adduced at the hearing of the applicationfor injunction It is worth pointing out that ground (b) of the ground of Appeal dealing with the omnibus ground i.e. that the ruling is against the weight of evidence adduced at the hearingof theapplication is clearlyunwarranted as the ruling whichhas resulted inthis appeal was not given after a plenary trial but one which was decided based on an application filed by the plaintiff. On that basis, the ground of appeal that the decision was against the weight of evidence seems curious. For it is trite that the purpose of this omnibus ground of appeal is an invitation to the court to consider the case as a matter of rehearing. See the cases of Tuakwa vs. Bosom (2001-2002) SCGLR 61; Djin vs Musah Page 8of 18 Boako (2007-2008) SCGLR 686 and Owusu-Domena vs. Amoah (2015-2016) 1 SCGLR 790. That ground of appeal that the judgment/ruling was against the weight of evidence presupposes that the matter has been fought and determined to its conclusion by the partiesadducing evidence attrial. In the case of Asamoah vs. Marfo (2011) 2 SCGLR 832 where judgment was taken at a time when there was no statement of defence filed, the first ground of appeal was that the judgment was against the weight of evidence. Anin Yeboah JSC (as he then was) speaking forthe apex courtnotedasfollows: “The first ground of appeal to us is completely misplaced given the facts of this appeal. The judgment obtained at the High Court, Kumasi did not go beyond the close of pleadings as no statement of defence was even filed....... it appears that at the time the motion for judgment was filed, the respondent who was the defendant had not filed any defence on record or made any admission on oath or otherwise in any manner or form. It thus sounds strange for counsel for the appellant to appeal against the judgment on the grounds that the judgment was against the weight of evidence. In our opinion, this ground is clearly misconceived andsameis dismissed asunmeritorious” Page 9of 18 Also, in the case of Zikpuitor Fenu & others vs. The Attorney General and others (2018) DLSC 2489 @ page 3 the apex court noted as follows on the omnibus ground as a groundof appealin instanceswhere therehadnot beenaplenarytrial that: “Theomnibus groundis usually commonin cases in whichevidence was led and the trial court was enjoined to elvaluate the evidence on record and make its findings of fact in appropriate cases. In cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvassed at all ......... We think this ground is clearly misconceived and same is hereby struck out as there were no disputed factual matters which called for findings by the lower court which merely determined the application for stay of proceedings on affidavit evidence which was not in controversy” Finally in the case of Atuguba & Associates vs. Scion Capital (UK) Ltd & Another (2017- 2020) 2 SGLR 196 the Supreme Court speaking through Amegatcher JSC on the formulation of grounds of appeal and the misuse of the omnibus ground of appeal statedas follows: “It has long been the practice among some legal practitioners to shirk the responsibility imposed on them to formulate specific grounds of appeal stating where the trial judges erred for the consideration of the appellate court. The Page 10of 18 omnibus ground has been a hideout ground; the responsibility in even minor appeals is shifted to the appellate judges to comb through the record of appeal, review the evidence and identify the specific areas the trial judge erred before comingout withthe court’s opinion on the merits or otherwise of the appeal.The situation is worrying when no viva voce evidence is proffered and a judge is called upon to exercise judicial discretion, such as in applications for injunction, stay of execution, amendment, joinder, judicial review and consolidation, just to mention a few. In our opinion, though the rules of court allow the omnibus ground to be formulated as part of the grounds of appeal, it would greatly expedite justice delivery if legal practitioners formulate specific grounds of appealidentifying where thetrial judgeerred inthe exercise of discretion” Clearly, ground (b) of the appeal is misconceived and is struck out as there were no disputed factual matters which called for findings by the lower court which merely determinedthe application forinterlocutory injunctionbasically on affidavit evidence. Ground (a) of the ground of appeal was that the Court of Appeal erred when it held that the plaintiff/respondent had established an interest in the land, It ought to be noted that this ground of appeal is against the concurrent findings made by the trial court and the Court of Appeal as the first or intermediate appellate court to the effect thatthe defendanthad establishedan interestorlegal rightinthe land. Page 11of 18 This Court, being the second appellate court will be slow to interfere or disturb the concurrent findings unless the appellant is able to demonstrate that the concurrent findings are not supported by the evidence on record or that wrong principles of law wereapplied. In the case of Koglex Ltd (N0. 2) vs. Field (2000) SCGLR 175 this court held in holding 2 thereofthat; “(2) Where the first appellate court had confirmed the findings of the trial court, the second appellate court would not interfere with the concurrent findings unless, it was established with absolute clearness that some blunder or error, resulting in a miscarriage of justice was apparent in the way in which the lowercourt dealtwith thefacts” Acquah JSC further gave instances where such concurrent findings may be interfered withasfollows: i. “Where the said findings of the trial court are clearly unsupported by evidence on record; or where the reasons in support of the findings are unsatisfactory: seeKyiafivs. Wono(supra) Page 12of 18 ii. Improper application of a principle of evidence: see Shakur Harihar Buksh vs Shakur Union Parshad (1886) LR141 A7; or where the trial court has failed to draw an irresistible conclusion from evidence see Fofie vs. Zanyo (1992) 2 GLR475at 490 iii. Where the findings are based on a wrong proposition of law: see Robins vs. National Trust Co. Ltd (1927) AC 515, where it was held that where the findings is so based on an erroneous proposition of law, that if that proposition iscorrected, the findingdisappears; and iv. Where the findings is inconsistent with crucial documentary evidence on record. The very fact that the first appellate court had confirmed the judgment of the trial court does not relieve the second appellate court of its duty to satisfy itself that the first appellate court’s judgment is like the trial court’s also justified by the evidence on record; for an appeal, at whatever stage, is by way of rehearing. And every appellate court has a duty to make itsownindependentexamination of the recordof proceedings.” In this instant case, the learned justices of the Court of Appeal after going through the record determinedas follows: Page 13of 18 “From the above, the trial judge believed both parties had established some right to the disputed land and since there was no one residing in the demolished property then, itwas just andconvenient torestrainboth parties” Thecourt furtherwenton: “The record reveals that the respondent was in possession of the property before he was removed. It is the claim of the respondent that he had been in undisputed possession of the land for close to 8 years. The respondent has attached pictures of clear acts of possession and the violence that ensued before the respondent was removed from the land. (See Exhibit NED 3 series pages 24 to 37). The appellant from his pleadings and affidavit evidence has indicated that he is responsible for demolishing the building on the land and taking possession of the land. Based on the above facts and the affidavit evidence available in this appeal, the case of the respondent is not frivolous. Serious issues have been raised by the appellant attacking the root of title of the respondent as well as the judgments attached in support of the respondent’s case. All these matters are serious questions to be tried. We are of the view that only by conducting a comprehensive trial and presenting evidence can one unravel these complex matters, prima facie the respondent has raised serious questions to be tried and hasestablished arightto beprotectedat thisstage” Page 14of 18 In making these finding that the plaintiff’s case is not frivolous and that he has established a right to the land that has to be protected, the Court of Appeal concurred with the findings made by the trial High Court. These findings are supported by the affidavit evidence and this Court as a second appellate court will not therefore with the concurrent findingsof the 2lowercourts. The concurrent findings of the trial judge and the Court of Appeal that the plaintiff has established a right over the land and its claim is not frivolous is in line with the factors that ought to guide a court to either grant or refuse the request before it. The guiding principle in such applications is whether an applicant has by his pleadings and affidavit established a legal or equitable right which has to be protected by maintaining the status quo until the final determination of the action on its merit; See the case of Thorne vs. British BroadcastingCorporation (1957) 1WLR1104. As Amissah JA put it so clearly in the case of Vanderpuye vs. Nartey (1997) 1 GLR 428 at432: “The governing principle should be whether on the face of the affidavits there is need to preserve the status quo in order to avoid irreparable damage to the applicant and provided his claim is not frivolous or vexatious. The question for consideration in that regard resolves itself into whether on balance greater harm Page 15of 18 would bedone by the refusalto grant the application thannot. It isnot whether a prima facie casehowever qualified andwithwhatever epithet,hasbeen made” Finally, it also has to be noted that in granting the application for interlocutory injunction, the trial High Court was exercising a discretion. But that discretion had to be exercised judiciously. In the exercise of such discretion, the trial judge ought to takeinto considerationthe pleadings and affidavit evidence beforeit; See thecaseof Pountney vs. Doegah(1987-88) 1GLR 111at116.There is along lineof cases thatshow that anappeal against the exercise of a court’s discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, but the appeal is not from the discretion of the court to the discretion of the appellate tribunal – See the cases of Blunt vs. Blunt (1993) AC 517 at 518, Owusu vs. Owusu-Ansah &Another (2007-2008) 2SCGLR870. This interlocutory appeal against the exercise of the High Court’s discretion has travelled all the way to the highest Court of the land when the substantive matter has been literally abandoned for the past 3 years at the trial court. The defendant has not been able to show that the trial court and the Court of Appeal were both wrong in the exercise of their discretion. We find no merit in the appeal and we hereby dismiss same entirely. Page 16of 18 (SGD.) H.KWOFIE (JUSTICE OFTHESUPREMECOURT) (SGD.) A.LOVELACE- JOHNSON(MS.) (JUSTICE OFTHE SUPREMECOURT) (SGD.) I.O. TANKOAMADU (JUSTICE OFTHE SUPREMECOURT) (SGD) S.K. A.ASIEDU (JUSTICE OFTHE SUPREMECOURT) (SGD.) Y. DARKOASARE (JUSTICE OFTHE SUPREMECOURT) Page 17of 18 COUNSEL KEN S.ANKUESQ.WITH MARCELLEWILLIAMS ANDMERSHACKASIEDU- YANKEY FOR PLAINTIFF/APPLICANT/RESPONDENT/RESPONDENT BOBBYBANSON ESQ.FOR DEFENDANT/ RESPONDENT /APPELLANT / APPELLANT Page 18of 18