Tesano Evangelical Church v Reindorf (LD/0494/22) [2024] GHACA 46 (14 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD - 2024 CORAM: ALEX POKU-ACHEAMPONG J.A. (PRESIDING) HAFISATA AMALEBOBA (MRS) J.A. JENNIFER DADZIE J.A CIVIL APPEAL NO: LD/0494/22 14TH MARCH 2024. TESANO EVANGELICAL CHURCH - DEFENDANT/RESPONDENT/ APPELLANT VRS. CARL JOSIAH REINDORF - PLAINTIFF/APPLICANT/ RESPONDENT JUDGMENT AMALEBOBA (MRS), J.A. 1 INTRODUCTION The jurisdiction of this Court has been invoked by a Notice of Appeal filed by the Defendant/Respondent/ Appellant (hereinafter referred to as the Defendant), against a Ruling of the High Court (Land Division 7), Accra dated 22nd March 2023, granting an Order of Interlocutory injunction prayed for by the Plaintiff/Applicant/Appellant (hereafter referred to as the Plaintiff). The High Court restrained both parties, their agents and assigns from having anything to do with the land, until the final determination of the suit. BACKGROUND The facts preceding this Appeal are that the Plaintiff as Head of Onamrokor Adain Family, sued the Defendant church in the High Court, claiming title to all that parcel of land from Kpehe through part of the Abeka village to Ofankor and Kwabenya and Southwards along the Odaw River to Kpehe and covering an approximate area of about 12. 27 square miles. The Plaintiff prayed for recovery of the said land, damages for trespass, an order of perpetual injunction and an order for cancellation of the Defendant’s Land Title Certificate on grounds that same was obtained by fraud. Though the Plaintiff sued for a larger parcel of land, the case of the Plaintiff by his pleadings is that in 1959, the family conveyed land measuring 0.865 of an acre to one Mrs. Agnes Hansen, to hold same absolutely. The Plaintiff stated that after the demise of the said Mrs. Agnes Hansen, her successor by name Mrs. Georgina Monney, conveyed 0.16 of an acre of the said land to the Defendant in the year 1990. According to the Plaintiff, the Defendant has, however, succeeded in fraudulently registering and procuring a Land Certificate for an area of 0.57 of an acre which is a larger 2 tract of land than was granted it. The Plaintiff asserted that by so doing, the Defendant succeeded in fraudulently registering a portion of his family land which was never granted to Mrs. Agnes Hansen, thereby trespassing on same. The Plaintiff who asserted that searches at the Lands Commission has confirmed his family’s position, filed an Application for an Order of Interlocutory Injunction reciting in essence the facts contained in his pleadings. The Plaintiff contended that the Defendant is in the process of constructing a building on the land in dispute and that unless restrained, the Plaintiff’s family will be permanently deprived of the use of their land. The Defendant by its pleadings denied the assertions of the Plaintiff. The Defendant contended that following the sale of the land by Plaintiff’s family to Mrs. Agnes Hansen in 1959, the said family executed a Deed of variation in favour of the Mrs. Agnes Hansen in 1988. The Defendant said it acquired the first portion of its land in 1990 from the Mrs. Georgina Monney who is the successor to Mrs Agnes Hansen and made a part payment for same. The Defendant said that, however, in the course of registering the land in 1991, it became clear that same was inadequate for the purpose of building a chapel, a children’s block, offices and the residence of a Pastor. That, therefore, the Defendant approached the said Mrs. Georgina Monney (the vendor), to purchase the remaining parcel of her land which was sold to it and finally paid for in 1997. The Defendant averred that it had already registered the first parcel of land measuring 0.16 of an acre prior to the acquisition of the second parcel of land. That, therefore, after the purchase of the remaining parcel of land, it had a site plan prepared for the entire parcel of land originally belonging to Mrs. Agnes Hansen and obtained a Land Certificate for same, without the necessity of executing another conveyance to cover the second parcel which it subsequently acquired. 3 The Defendant contended that it has exercised acts of possession over the land for the past thirty (30) years and save for the parcel in dispute, the land acquired has been developed. The Defendant stated that the parcel or portion of land in dispute had been used as a car park over the years and had on it a Kiosk for training the youth of the Church in kente weaving, with an inscription on the fence wall indicating that the land belonged to the Defendant. The Defendant averred that the Plaintiff’s action was caught by limitation, laches and acquiescence. The Defendant further averred that in any case, the Plaintiff’s family having divested their title in the land to Mrs. Agnes Hansen by outright sale some sixty – three (63) years ago, they had no title to the land in dispute and could not maintain an action for same. The Defendant filed an Affidavit in opposition to the Application for injunction, praying that same be dismissed. DECISION OF THE HIGH COURT On 29th July 2022, after considering the Application, case law and the principles governing the grant of injunctions, the trial Judge made the following order: “There is evidence before me that the Defendants are the grantees of the Plaintiff /Applicant. The nucleus of the instant action is whether or not the Respondents have exceeded the size of the land granted them by the Plaintiff. In the circumstances I shall grant the Application pending the Report of the Regional Surveyor for which reason I accordingly order the Regional Surveyor to draw a composite Plan indicating whether or not, the Defendant have exceeded the size of land granted them by the Plaintiff. The parties are accordingly ordered to file their survey instructions for the purpose within (2) weeks. They are to bear the cost involved”. 4 After the appointed Surveyor (CW 1) had carried out his work and drawn a composite plan, he attended Court to give his testimony. See pages 172 A – 172M of the Record of Appeal (ROA). After the said testimony the trial Judge directed the parties to file written submissions. On 22nd March 2023, the trial Judge granted an order of Injunction restraining both parties from having anything to do with the land in dispute pending the final determination of the suit. NOTICE OF APPEAL By its Notice of Interlocutory Appeal at page 202 of the ROA, the Defendant seeks to set aside the entire Ruling of the trial Judge. As many as nine (9) Grounds of Appeal were filed as follows: GROUNDS OF APPEAL (i) The Ruling is against the weight of the Court Witness’s evidence which the Judge ordered on 8th March, 2023 should be the basis of written submissions on the conditional interim injunction order made on 29th July, 2022. (ii) It was wrong and strange for the Judge who appointed the Court witness to determine whether or not the Defendant exceeded the size of land it acquired from the Plaintiff's grantee as a basis of the grant of an interlocutory injunction to make a complete turn after the Court Witness established that the Defendant 5 did not exceed the size of the land granted to now rule that there is a claim of ownership to the land so both parties are restrained. (iii) No determination of ownership arises in this matter involving Plaintiff as the common grantor and the size of land actually granted by the Plaintiff to the Defendant's vendor and the size of land the said vendor transferred to the Defendant on the ground has been established clearly by the Court Witness. (iv) The Court Ruling of 22nd March, 2025 amounts to substituting a different case for the Plaintiff despite the clear, simple and straight forward case of the Plaintiff captured by the Judge on page 5 of the ruling dated 29th July, 2022 the basis of which the interim order was made stopping Defendant's construction at the first-floor deck level. (v) The Judge misconstrued parts of the evidence of the Court witness. (vi) The Judge ignored the clear and incontrovertible evidence before the Court to the effect that contrary to the clear and unambiguous claim of the Plaintiff that his family granted 0.865 of an acre of land to the Defendants vendor, the size or acreage of land actually granted to the Defendant’s vendor on the ground is a smaller 0.57 of an acre and it was the same 0.57 of an acre that was sold to and developed by the Defendant with a remaining smaller portion being used for the construction. (vii) The injunction order made against the Defendant on 22nd March, 2023 to last for duration of the suit after the same Court’s interim order of 29th July, 2022 6 stopping Defendants construction at the first - floor deck level in the circumstances of this case and based on the evidence of the court witness is unfair, unjust and a wrongful exercise of judicial discretion. (viii) The Ruling is contrary to established judicial principles guiding the consideration of an application for interlocutory injunction. (ix) The Judge did not give any consideration to the defendant's case at all. (x) Additional grounds to be filed on receipt of the record of proceedings. Notwithstanding ground (x) above, no additional grounds of appeal were filed. DEFENDANT’S NON – COMPLAINCE WITH RULE 8 OF THE COURT OF APPEAL RULES, 1997 (C.I 19). We have observed that some of the grounds of Appeal filed by the Defendant are improperly formulated and not in compliance with the rules of this Court. Therefore, before we proceed to determine the merits of the Appeal, we ought to first determine the admissibility of the said grounds for determination of this Appeal. An appeal being a creature of Statute, a party who seeks to invoke the jurisdiction of this Court, must comply with conditions set out in the enabling statute. This age-old position of the law has been reiterated in several decisions of the Supreme Court. 7 In the case of SANDEMA -NAH V. ASANGALISA and Others, the Supreme Court per Acquah JSC (as he then was), quoted with approval the dictum of Akuffo -Addo C.J in NYE V. NYE [1967] GLR 76 @ 82 – 83 C.A (Full Bench), as follows: “It must be appreciated that there is no inherent right of appeal, in a litigant; nor indeed is there an inherent power in any court to hear appeals. Both the right and the power are creatures of statute, and unless the enactment creating the right of appeal and the power to hear an appeal is explicit, clear and unambiguous in its language, no such right and no such power can ever materialise. When however, the right and the power do materialise, they are exercisable only within the framework of the conditions imposed for their exercise”. The rules of Court Committee is the body constitutionally mandated to make rules and regulations of practice and procedure for all Courts in Ghana”. The rules made by the Rules of Court Committee for practice and procedure in the Court of Appeal is the Court of Appeal Rules,1997 (C.I9), as amended. Rule 8 of CI 19 states as follows: “8. Notice and grounds of appeal. (1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as "the notice of appeal". (2) The notice of appeal shall be filed in the Registry of the court below and shall- (a) set out the grounds of appeal. (b) state whether the whole or part only of the decision of the court below is complained of and in the latter case specify the part. 8 (c) state the nature of the relief sought; and (d) state the names and addresses of all parties directly affected by the appeal. (3) The notice of appeal shall be as in Form I provided in Part I of the Schedule to these Rules and shall be accompanied with sufficient number of copies for service on all parties. (4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated. (5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (6) No ground which is vague or general in terms or which: discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion, or on application by the respondent. (7) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just. (8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”. 9 We have considered Rule 8 of C.I 19, particularly, Rules 8 (4), 8 (5) and 8 (6) thereof. From a reading of these rules, it is clear that where an error of law or misdirection is alleged, particulars of same shall be clearly stated. Furthermore, the grounds of appeal shall be set up concisely under distinct heads and shall not contain a narrative or argument. No ground of appeal which is vague or in general terms, such that it does not disclose a reasonable ground of appeal, shall be permitted, unless the said ground is that the Judgment is against the weight of evidence. Any ground of appeal which is not permitted by Rule 8 may be struck out by the Court on its own motion, or upon application by the Respondent. A failure to comply with rules in formulating the appropriate grounds of appeal may therefore cause same to be struck out. This position of the law was applied by the Supreme Court in the case of DAHABIEH V. SA TURQUI & BROTHERS [2001- 2002] SCGLR 498. In the case of FAUSTINA TETTEH VS. T CHANDIRAM & CO. GH LTD & 3 ORS; CIVIL APPEAL NO; J452/2018, the Supreme Court per MARFUL SAU JSC, relied on the case of DAHABIAEH V. SA TURQUI, supra and in striking out offending grounds of appeal, held thus: “The Appellant failed to particularize the errors alleged by the said grounds to enable this Court effectively address same as required by law. The errors alleged cannot be inferred sufficiently from the wording of the grounds to enable us address same. Accordingly, the offending grounds (1) – (10) will be struck out as they are non -complaint with the Rules of Court”. We have considered the grounds of Appeal before us and find that none of these grounds have been set out under distinct heads. We, however, hold the view that the grounds of 10 Appeal should not be struck out simply for the above – stated reason, if same can be saved to do justice to the Defendant. More fundamentally, however, grounds (ii), (iii), (iv), (vi), (vii) and (ix) contain a narrative and or are in general terms. We find that grounds (ii), (iii), (iv), (vi) and (ix) of the Appeal are vague such that we are unable to infer from the wording, the errors complained of, for determination by this Court. Though ground(vii) is a narrative, we are able to infer from same that the error or misdirection complained of, is the trial Judge’s wrongful exercise of his discretion. In the circumstances will save ground (vii) and strike out the offending grounds (ii), (iii), (iv), (vi), and (ix) and same are accordingly struck out. This Appeal will therefore be determined on grounds (i) , (v), (vii) and (viii), which for ease of reference and clarity will again be reproduced below as follows: (i) The Ruling is against the weight of the Court Witness’s evidence which the Judge ordered on 8th March, 2023 should be the basis of written submissions on the conditional interim injunction order made on 29th July, 2022. (v) The Judge misconstrued parts of the evidence of the Court witness. (vii) The injunction order made against the Defendant on 22nd March, 2023 to last for duration of the suit after the same court’s interim order of 29th July, 2022 stopping Defendants construction at the first - floor deck level in the circumstances of this case and based on the evidence of the court witness is unfair, unjust and a wrongful exercise of judicial discretion. 11 (viii) The Ruling is contrary to established judicial principles guiding the consideration of an application for interlocutory injunction. SUBMISSIONS OF COUNSEL FOR THE PARTIES The submissions filed by both Counsel, including Counsel for Defendant’s submissions in Reply to Counsel for Plaintiff’s submissions, will be considered in the determination of this Appeal. On grounds (i) and (v), Counsel for Defendant submitted that the Ruling of the Court is against the weight of evidence of the Court Witness and further that the trial Judge misconstrued the said evidence. Counsel for Defendant argued that on 29th July 2022, the trial Judge ruled that the nucleus of the action was to find out whether, the Defendant had exceeded the land granted to it by the Plaintiff. That for this reason a Surveyor was appointed, a composite plan drawn up, and the testimony of the Surveyor heard. It is the case of the Defendant that the Plaintiff’s family never granted any land to it, as the land was acquired from the grant made to Mrs. Mary Hansen by the Plaintiff’s family. Counsel for Defendant further submitted that though the evidence of the Surveyor established that the land given to Defendant by Mrs. Agnes Hansen was 0. 57 acres as per Plaintiff’s Land Certificate, and that the Defendant was on the land granted it and had not exceeded same, the Court proceeded to grant an injunction to restrain the Defendant from continuing with construction of its storey building which was at the first-floor deck level. According to Counsel for Defendant, the Defendant has already acquired huge quantities of building materials and same will deteriorate as a result of the injunction. 12 Counsel for Defendant citing the case of HAYFORD V TETETH substituted by LARBI & DECKER [2012 ]1 SCGLR 417 and SARKODIE V. FKA CO LTD [ 2009] SCGLR 65, argued that the Plaintiff had completely divested itself of its title to the land in dispute and could make no claim to same. Stating the legal principles which ought to guide the Court in the grant of an injunction, Counsel for Defendant referred to several authorities among them, BAIDEN V. TANDOH & 7 ORS [ 1991] 1 GLR 98; VANDERPUYE V. NARTEY [1977[ 1 GLR 428; OWUSU V. OWUSU ANSAH [ 2007- 2008] SCGLR 870 @ 877. According to Counsel for Defendant, since Defendant has established that it acquired 0.57 of an acre of the land in dispute originally belonging to Mrs. Agnes Hansen and obtained a Land Title Certificate for same, it succeeded in establishing a legal right to the land in dispute. Counsel argued that all principles for the grant of an injunction, including the balance of convenience and hardship and the fact that damages is an adequate remedy for the Applicant, tilted in favour of the Defendant. He said that being so, the trial Judge exercised his discretion wrongly in granting the injunction and same ought to be set aside. On his part, Counsel for Plaintiff citing the case of OWUSU VS. OWUSU – ANSAH, (supra), and WELFORD QUARCOO VS. ATTORNEY GENERAL & ANOR [2012] 1 SCGLR 259, argued that the trial Judge deemed it fit after considering the Affidavits and pleadings of the parties, to order a composite plan to be drawn up to enable him to exercise his discretion rightly. Counsel for Plaintiff argued that though in the Deed of Variation between the Plaintiff’s family and Mrs. Georgina Monney the successor to Mrs. Agnes Hansen, the size of the land conveyed to the latter was varied to 0.33 of an acre, the Defendant who allegedly acquired the said parcel of land from Mrs. Georgina Monney, managed to obtain a Land Certificate for 0.57 of an acre, which exceeded the land size of his grantor. According to Counsel for the Plaintiff, the Defendant also failed to submit the said Deed of variation being its root of title to the Surveyor for the 13 composite plan to be drawn up and rather submitted the original site plan of Mrs. Agnes Hansen which covered a larger parcel of land. According to Counsel for Plaintiff, after due consideration of the evidence of the Surveyor, the trial Judge concluded that the since both parties are contesting the disputed land, ownership could only be determined at the end of the trial and accordingly restrained both parties. Counsel contended that the trial Judge exercised his discretion correctly and the Defendant cannot be heard to complain about the order of the Court. DETERMINATION OF THIS APPEAL We deem it appropriate to determine the grounds of Appeal together. An appeal against an order of interlocutory injunction as in this case, is an appeal against the exercise of the discretion of the trial Judge. Order 25 r 1 of the HIGH COURT CIVIL PROCEDURE RULES 2004 (CI 47) grants a Judge the said discretion in the following terms: “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”. The position of the law is that generally, an appellate Court must be slow to interfere in the exercise of the discretion of the trial Court, unless it can be established that in the said exercise of discretion, the Judge misdirected himself or herself, by taking into account irrelevant matters or ignoring relevant matters. This was the position taken by the Supreme Court in ATUGUBA & ASSOCIATES V. SCIPION CAPITAL UK LTD & ANOR [ 2019] GHASC 18; 3RD APRIL 2019. 14 Where an appellate Court finds that the said discretion has been wrongly exercised, however, it has the duty to interfere with same. In the case of OWUSU V. OWUSU ANSAH [2007- 2008] SCGLR 870 @ 877, ADINYIRA JSC emphasizing the grounds upon which an appellate Court may interfere with the exercise of a lower Court’s discretion, referred to the House of Lords decision in the case of BLUNT V. BLUNT [1943] AC 517@ 518, wherein the Court stated thus: “An appeal against the exercise of the Court’s discretion may succeed, on the ground that the discretion was exercised on wrong and inadequate materials if it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant matters or omitted to take relevant matters into account.” SEE ALSO: KOJACH LIMITED V. MULTICHOICE GHANA LIMITED J4 /3/2013; 2014 GHASC 149 (19 MARCH 2014), unreported. This Court will be guided by the foregoing in the determination of this appeal. We take note of the omnibus ground of Appeal that the Ruling of the Court is against the weight of evidence adduced by the Court Witness. Such a ground opens the entire case for a re- hearing and requires an appellant to demonstrate which pieces of evidence were wrongly applied against him and which pieces of evidence were not applied and if applied, will turn the decision of the Court below in his favour. This position of the law on the omnibus ground was stated by the Court of Appeal in AMPOMAH V. VOLTA RIVER AUTHORITY [1989-90] 2 GLR 28 and reiterated by the Supreme Court in the case of DJIN V. MUSA BAAKO [2007 – 2008] SCGLR 686 (HOLDING 1). An order of interlocutory injunction like most interlocutory applications are ordinarily determined on the Affidavits and pleadings, without a need for viva voce evidence to be taken on oath. 15 Therefore the Supreme Court has held that in respect of Interlocutory injunctions, where no evidence was led, the omnibus ground of appeal is usually not canvassed. SEE: FENU & ORS V. ATTORNEY GENERAL, CIVIL APPEAL NO. J4/40/2018, PER ANIN YEBOAH JSC (as he then was). In the case of SINO AFRICA DEVELOPMENT CO LTD. V. ROYAL BELL INVESTMENTS & KWAME BLAY [2023[ GHASC 65 (CIVIL APPEAL NO. J4/02/2023, DATED 14TH JUNE 2023), the Supreme Court clarified the position of the Court in canvassing the omnibus ground that the Judgment is against the weight of evidence, where no evidence was led. The Court took the position that “where in an interlocutory application the Affidavit evidence of the respective parties is disputed, a ground of appeal which states that the decision is against the weight of the evidence would not be totally out of place”. In this case, the Surveyor who was ordered by the Court to draw a composite plan in respect of the land in dispute was called to give oral evidence on oath. In the circumstances, since the trial Judge heard evidence on the Application, the omnibus ground of Appeal in the circumstances is admissible. In the case of KOJACH LIMITED V. MULTICHOICE GHANA LIMITED (supra), the Supreme Court recognised that upon an interlocutory application where, vital matters necessary to the determination of the application remained unresolved, a party could apply to cross- examine the deponent to the Affidavit before the Court. The Supreme Court also affirmed the position that where material facts deposed to by the parties were in conflict, such that the Court cannot make a finding without resolving the conflict, the Court has a duty to hear oral evidence on the conflict and for this neither party need apply. The Court stated thus: 16 ”It must be pointed out that in virtually all interlocutory applications that come before our courts, evidence in support would be in the nature of affidavit evidence as required under Order 19 Rule 4 of the High Court (Civil Procedure) Rules 2004 CI 47. In the normal course of determining interlocutory applications the courts would rely on the affidavits filed together with exhibits, if any. However, if any of the parties to the application is of the opinion that certain vital issues appear unresolved, a party may with the leave of the court, orally apply to the court to cross- examine a deponent to the affidavit to assist the court in resolving the crucial issue, the determination of which may have a decisive effect on the determination of the application. This practice is supported by a passage from Atkin’s Encyclopedia of Court Forms in Civil Proceedings page 37 of the second edition which states the practice succinctly as follows: “In the Queen’s Bench Division an application for leave to cross-examine a deponent in interlocutory proceedings is made at the hearing of those proceedings. For example, if on the hearing of an application for an interlocutory injunction, a party wished to cross-examine a deponent on his affidavit the application (in the absence of consent) would be made there and then to the judge. If the judge makes the order sought and the deponent was not present, the judge would adjourn the matter for him to attend; if the deponent was present the cross-examination would proceed at once”. The Supreme Court continued thus: A similar passage from Civil Procedure in Nigeria by Fedilis Nwadialo (second edition) at page 558 supports the above quotation from Atkin’s book as follows: “The need for oral evidence does not arise frequently and when it does it is for cross- examination of a deponent to an affidavit. Oral evidence is, however, imperative, when there is conflict on material facts as deposed to in an affidavit on the other hand, and in the counter affidavit, on the other hand. Without resolving such a conflict, 17 the court cannot make a finding on that material issue of fact. The only way to resolve the conflict is by the court taking oral evidence of the deponents and witnesses on the material issues of fact. The deponent to the affidavit and the deponent to the counter affidavit are each cross-examined by the respective opposite party. The court has a duty to receive oral evidence in the case of such conflict and no party need make any application for that purpose.” The Supreme Court further stated as follows: “This our position does not mean that the Plaintiff who sought the interlocutory injunction was to establish a prima facie case on the merits. In his invaluable book: A Practical Approach to Civil Procedure (16th edition), Professor Stuart Sime at page 455 in discussing the oft-quoted case of AMERICAN CYANAMID CO. v ETHICON Ltd. [1975] AC 396 said as follows:- “The court needs to be satisfied only that there is a serious question to be tried on the merits. The result is that the court is required to investigate the merits to a limited extent only. All that needs to be shown is that the claimants’ cause of action has substance and reality.” Our esteemed sister, Adinyirah JSC in OWUSU v OWUSU-ANSAH supra offered enough guidance to trial courts in determining interlocutory applications at page 875 as follows: “While agreeing that in an interlocutory application for an interim relief, the court ought to refrain from expressing an opinion on the merits of the case before the hearing, we are of the view that this does not absolve the trial court from considering the material before it in order to guide it to either grant or refuse the request before the court. The guiding principle in such applications is, whether an applicant has, by his pleadings and affidavit 18 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 merits.” If from the record there is no serious question to be tried on the substantive claim, the reliefs may be refused. See NATIONAL COMMERCIAL BANK JAMAICA LTD. v OLINT CORPORATION LTD [2009] 1 WLR 1405 and opinion expressed by Lord Hoffmann”. From the foregoing, what remains clear to us is that notwithstanding that evidence can be heard upon an interlocutory application for injunction, as was done in this case, the purpose of the evidence should be to assist the Court in determining among others, whether upon consideration of all the principles for the grant of an injunction, it will be just and convenient to grant same. The purpose of the said evidence is therefore not for a determination of the merits of the case between two opposing parties. The principles governing the exercise of the Court’s discretion in the grant of such an application, are trite and have been accurately spelt out by both Counsel and several authorities cited in support of same. These principles have been set out by several cases including: 18TH JULY LTD V YEHANS INTERNATIONAL LTD [2012] 1 SCGLR 167; NARTEY V VANDERPUYE [1977] 2 GLR 428; AMERICAN CYNAMID CO. V. ETHICON [1977] 1 AER 504; ODONKOR V. AMARTEI [1987 /88] 1GLR 578; OWUSU V. OWUSU ANSAH [2007-2008] SCGLR 870; POUTNEY V. DOEGAH [ 1987 – 88] 1 GLR 111. From the above cases some principles this Court ought to consider in the grant of an injunction can be summed up as follows: 1. Whether there are serious questions for trial? 2. Whether the Applicant has established a legal right in equity or law, which requires protection from the Court? 19 3. Whether the injury is irreparable and the adequacy of damages. 4. The necessity for the Court to consider the balance of convenience. 5. The need for the Court to maintain the status quo pending the determination of the rights of the parties.” These principles stated supra will be applied in the determination of this Appeal, where same are necessary. By the pleadings and Affidavit of the parties there is no contest that the land in dispute measuring 0.57 of an acre, falls within a larger parcel of the Onamrokor Adain family land and that the Plaintiff is the Head of that family. There is also no dispute that the Plaintiff’s family sold a parcel of land to the Defendant’s predecessor -in- title, Mrs. Agnes Hansen per Deed of Conveyance dated 1st December 1959, Exhibit B (Page 150 of the ROA). The said land per the recitals in the Deed of Conveyance measured 0.865 of an acre. There is also no controversy between the parties that there was a Deed of variation signed between the Plaintiff’s family and Mrs. Georgina Monney, the successor of Mrs. Agnes Hansen 19th April 1988, by which the size of the land granted to the latter on 1st December 1959 was substituted with another parcel of land. In paragraph 5 of the Defendant’s Affidavit in opposition (page 62 of the ROA), it has recited the original grant in 1959 to Mrs. Agnes Hansen and the Deed of Variation as being its root of title, stating that it acquired the entire land sold to Mrs. Agnes Hansen. From the recitals in the Deed of variation attached by the Defendant as Exhibit GEC 1 (page 71 of the ROA), the land which was originally granted to Mrs. Agnes Hansen measuring 0.865 of an acre was replaced with a parcel of land measuring 0. 33 of an acre. There is also no controversy that the parcel of land claimed by the Defendant has been largely developed and that the portion in dispute is a smaller undeveloped parcel of land 20 across the road from the Defendant’s other structure and which the Defendant contends forms a part of its grant. Now one of the points of departure between the parties is that while the Defendant contends that the Plaintiff has divested itself of its title to the land in dispute by outright sale and cannot be heard to claim ownership of the land in dispute, the Plaintiff contends that it has title to the said land in dispute as same was never the subject of a grant to the Defendant’s grantor. The Defendant also contends that the entire land granted to Mrs. Hansen and subsequently varied was acquired by it in two separate transactions. The first being a parcel of land measuring of 0.16 of an acre for which it obtained a Conveyance on 28th November 1990 (Exhibit B), and the remaining parcel which it only obtained receipts for, without the necessity of a Conveyance. That both parcels measured 0.57 of an acre as acknowledged by the Land Title Registry which issued a Land Certificate for same. The Plaintiff on its part contends that by the Deed of Conveyance, it granted Mrs. Hansen 0.865 of an acre of land and that the latter in turn granted the Defendant 0.16 of an acre only of her land. The Plaintiff asserts that the Defendant’s land Certificate which registered 0.57 of an acre of its family land is fraudulent and that same covers Plaintiff’s family land which was never granted to Mrs. Agnes Hansen. Counsel for Plaintiff submitted that as the Deed of Variation granted an area of 0.33 of an acre to Mrs. Hansen, the Defendant could not have acquired a parcel larger than its grantor’s land, for which reason Defendant’s registration of Plaintiff’s family land measuring 0.57 acres was clearly fraudulent. The Plaintiff also alleges that the refusal of the injunction will result in the loss of its land while the Defendant contends that it has commenced a three - storey building already 21 past the first-floor level and has purchased materials which will go to waste if the injunction is granted. After the conclusion of the evidence of CW1 and the submissions of Counsel, the trial Judge upon evaluating the evidence of the Surveyor concluded that the parties were making rival claims over the same land. The trial Judge stated in part as follows: “This clearly depicts the parties are contesting ownership of the subject land. Whiles the Plaintiff contest [sic] the Defendant grantor's land does not include the in dispute, the Defendant contend [sic] they validly acquired the disputed land. The question of ownership of the subject land can only be determined at the trial. In the circumstance I hereby restrain both parties, tier agents, assigns from anything to do with the subject land pending the final determination of the suit. The Plaintiff is ordered to file his reply within seven (7) days. I further order for an expeditious trial”. Upon the foregoing and consideration of the record before us, we find in circumstances of this case that, there are serious questions or issues raised by the Plaintiff for trial, which include a determination of: i. How the Defendant obtained 0. 57 acres in excess of the 0.33 acres of Plaintiff’s family land allegedly granted to Mrs. Agnes Hanson, the Defendant’s predecessor in title. ii. Whether the smaller undeveloped parcel of land forms a part of the Defendant’s grant. iii. The assertions of fraud and how that affects if it all, the Defendant’s Land Certificate. The Defendant’s Defence of limitation, laches and acquiescence will also be considered. 22 From the foregoing, the Plaintiff’s case is neither frivolous nor vexatious and it has succeeded prima facie, in establishing a right necessary of protection by this Court. Will irreparable harm be caused the Defendant by the grant of this injunction such as cannot be compensated in damages? We find that damages will be an adequate remedy for the Defendant who can be compensated for any delay in completing the construction work and for any materials which may deteriorate as a result of the grant of the injunction in this suit, should the Defendant succeed after the trial. Having found that damages will be an adequate remedy, there is no necessity for consideration of the balance of convenience as stated by Lord Diplock in AMERICAN CYANAMID V. ETHICON, (supra) @ page 511. Notwithstanding the above, we find that greater harm or hardship will be caused to the Plaintiff by the refusal of an injunction in this case, than to the Defendant by the grant. For in balancing the convenience we find that the Defendant who will be compensated in damages if it should succeed at this trial can proceed to complete its building, while should the Plaintiff succeed on this action, it will be confronted with a three - story building constructed by the Defendant, thereby totally changing the nature and character of the land. We have taken the time to consider the principles for the grant of an injunction in the light of the Defendant’s grounds (vii) and (viii), by which it complains that the trial Judge exercised his discretion wrongly and that the Ruling was contrary to the judicial principles guiding consideration of interlocutory injunctions. On the evidence adduced by the Surveyor (CW 1), it is our considered view that the trial judge had adequate materials on the face of the Affidavits and pleadings to have determined this Application, without recourse to the composite plan and evidence of CW1. 23 Having, however, admitted the said evidence we find that the trial Judge was right in concluding upon the evidence that the land in dispute being same, both parties be restrained. We find that the trial Judge exercised caution and rightly so, in refraining from determining the merits of the case upon the evidence of CW1, since the issue before him was for consideration of an order of interlocutory injunction. We therefore find no merit to grounds (i) and (v) of the Appeal and same are dismissed. We find upon the Application for Injunction, that the trial Judge’s exercise of his discretion was right and fair and that in the circumstances, it was just and convenient to grant the Order of interlocutory injunction. We therefore find no merit to grounds (vii) and (viii) of the Appeal and same are hereby dismissed. Order 25 r (9) of the HIGH COURT CIVIL PROCEDURE RULES 2004 (CI 47), permits the High Court to order an Applicant for an injunction to give an undertaking to a person opposing the application, to pay any damages the person may suffer it turns out that the Applicant was not entitled to it. The Court at the end of the proceedings, will assess any damages liable to be paid by the Applicant and order same to be paid to the opposing party. The trial Judge in this case, did not make an order for such an undertaking to be given by the Plaintiff who is the Applicant in this case. We are of the view that having determined that damages will be an adequate remedy for Defendant should it succeed in the suit, it will be just in the circumstances to make such an order. Quite apart from the fact that an appeal is by way of rehearing as provided by Rule 8 (1) of the Court of Appeal Rules, 1997 (CI 19), this Court has the power under Rule 32 of CI 19, to make orders which the Court below ought to have made. Rule 32 of CI 19, provides as follows: 24 32. Power of Court to give judgment and make an order ( I ) The Court shall have power to give any judgment and make any order that ought to have been made, and to take such further or other order as the case may require including any order as to costs. (2) These powers of the Court may be exercised notwithstanding that the applicant may have asked that part only of a decision be reversed or varied and may also be exercised in favour of all or any of the respondents or parties, although the respondents or parties may not have appealed from or complained of the decision. In the circumstances, we order the Plaintiff to within fourteen (14) days from today give an undertaking to the Registrar of the Court below, to pay to the Defendant any damages that may be adjudged by the High Court to be due the Plaintiff at the end of the proceedings, as a result of the grant of the Order of Interlocutory injunction. Consequently, save for the above variation making an order for an undertaking, to be given by the Plaintiff, we affirm the decision of the trial Judge and dismiss the Appeal as being unmeritorious. There shall be no order as to costs. HAFISATA AMALEBOBA (MRS) JA. (Justice of Appeal) 25 I agree. ALEX B. POKU - ACHEAMPONG JA. (Justice of Appeal) I also agree. JENNIFER ABENA DADZIE JA. (Justice of Appeal). COUNSEL: PETER HAYIBOR ESQ. FOR THE DEFENDANT/APPELLANT. FAUSTELL COFIE ESQ. FOR THE PLAINTIFF/RESPONDENT. 26 27