ADOLF ANKRAH & 6 ORS. VS NII ADJABENG ANKRAH II (H1/208/21) [2022] GHACA 153 (3 February 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA - GHANA CORAM: ACKAH-YENSU, J.A (Presiding) BARTELS-KODWO, J.A KOOMSON, J.A SUIT NO. H1/208/2021 3RD FEBRUARY, 2022 ADOLF ANKRAH & 6 ORS. ---- DEFENDANTS/APPELLANTS VRS NII ADJABENG ANKRAH II ---- PLAINTIFF/RESPONDENT. J U D G M E N T BARTELS-KODWO, J.A: At the instance of the Plaintiff/Applicant/Respondent hereinafter called ‘the Respondent’, the High Court, Land Division, Accra on the 18th of September, 2020 delivered a ruling granting an Interlocutory Injunction against the Defendants/Respondents/Appellants hereinafter called ‘the Appellants’. Dissatisfied with the ruling of the court the Appellants filed this instant Appeal. 1 FACTS OF THE CASE By an Amended Writ of Summons the Respondent sought the following reliefs from Appellant at the High Court: a. A Declaration that the Defendants are not related to Mantse Ankrah Royal Family by Blood or in the alternative b. A Decaration that the Defendants are not members of Mantse Ankrah Royal Family of Dadebanaa Otublohum, Accra. c. An order for the Defendants to vacate the Mantse Ankrah Royal Family House at Kaneshie. d. An Order directing the Defendants to hand over the keys to the Mantse Ankrah Royal Family Cemetery at Kaneshie near Azumah Nelson Sports Complex. e. Recovery of Possession of land described in Schedule “A”. f. An Order of perpetual injunction against the Defendants, their agents, assigns, privies, workmen, servants, successors and all those who derive their authority through them from having anything to do with Mantse Ankah Family Lands at Mayera Akoto, the Mantse Residence and the Mantse Ankrah Cemetery at Kaneshie. g. An Order restraining the 6th Defendant from holding himself as Headman of Mayera Akoto’ h. Damages for Trespass. The Appellants in the trial court filed their defence which was amended on the 15th of December, 2016 - see pages 25-29 of the Record of Appeal hereinafter known as “the ROA”. Thereafter on the 30th of October, 2019 as seen on pages 179- 182 they filed an Application for Interlocutory Injunction “praying the court for an order of interlocutory injunction restraining the Plaintiff from developing any portion of Mantse Ankrah Family land situate at Kaneshie, Accra and dealing in any manner with the Mantse Ankrah Royal Family properties as Head of Family pending the determination of the 2 suit…” to which the Respondent filed an affidavit in opposition (ROA page 202). This application was dismissed on 28th November, 2019 by the court, the ruling can be found at pages 252 – 253 of the ROA. In the concluding parts of the ruling this is what the court had to say “The principles governing the grant or refusal of this equitable relief are well settled. It must be added that an Applicant must identify the Land for which he seeks this relief. In the instant case, the Applicants have not identified the specific land on which they seek to injunct the Plaintiff/Respondent. See the case of NYIKPLORKPOR V ADOBOTOR [1987-88] 1GLR 165. Again granted it is a land located in the premises of where the Respondent lives I will still refuse to grant the Application since he is in possession of the Property and the grant will cause hardship to him as compared to the Applicants who have nothing to lose if the Application is refused. See the case of 18TH JULY LTD. V YEHANS INTERNATIONAL LTD [2012] 1 SCGLR 167 where the Supreme Court per Anim Yeboah JSC as he then was held that an Application for Interlocutory Injunction should be refused if its grant will cause greater hardship to the Applicant. Application is therefore dismissed.” Following the dismissal of this Application, the Respondent then filed an Application on the 19th of August 2020 for an Order of Interlocutory Injunction restraining the Appellants from burying any persons who are not members of the Mantse Ankrah Family in the Mantse Ankrah Royal Mausoleum, Kaneshie, restraining them from entering or carrying on any development on the disputed land, and restraining them from entering or carrying on any development on the disputed land, and retraining them from holding or permitting Social Activities to be held in the Fore Court of the Mantse Ankrah Palace at North Kaneshie until the final determination of the suit. See page 254-256 of the ROA. This application was opposed with an affidavit, see page 296 ROA. The court now differently constituted granted the Respondent’s Application. The grant of the Respondent’s Motion triggered this Appeal on two grounds which are: 3 1. The Learned trial Judge erred by failing to adequately consider the application before granting same. 2. The ruling is against the weight of the evidence. In arguing the Appeal, learned Counsel for the Appellants submitted that in considering an Appeal against a trial court’s exercise of discretion in the case of BLUNT V BLUNT [1943] AC 517 @ 518 the court held that: “An appeal against the exercise of the 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 unapproved 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.” He also referred to the cases of CRENTSIL V CRENTSIL [1962] 2 GLR 171 @ 175 and BALLMOOS V MENSAH [1984-86] 1 GLR 724 where the courts made it clear that the Court of Appeal will not interfere with the exercise of the Court’s discretion except in exceptional circumstances. That will be the case if the discretion was based on wrong or inadequate materials and it can be shown that the court gave weight to irrelevant or unproven matters or failed to consider relevant matter and did not take same into account. Learned Counsel for the Appellants stated that in his view the Appeal had exceptional circumstances that called for this court to intervene with same. He pointed out that the Court in its ruling at page 337 of the ROA said as follows: “There is evidence before me that on the 28th of November, 2019 this court differently constituted refused an Application for Injunction brought against the present Applicant by the Respondents. A copy of the said Ruling was exhibited by the Applicant as Exhibit “NA 1”. 4 In the said ruling, the Court made a finding of fact that the Applicant is in possession of the subject matter in dispute for which reason the Application of Injunction was refused. It is my candid opinion that the acts complained of would obviously affect the possessory rights of the Applicant for which reason I accordingly grant the Application for Injunction as prayed pending the final determination of the issues set down for trial including the issue of capacity”. He argued that, the learned trial judge, in arriving at the conclusion that there was an earlier finding of fact that the Respondent was in possession of the subject matter in dispute and for that reason the application was refused had misapprehended the facts in support of the application and taken irrelevant matters into account whilst neglecting matters that were relevant in considering the application. He submitted further that the earlier motion for the Interlocutory Injunction filed by the Appellants against the Respondent sought to restrain him from “developing my portion of Mantse Ankrah Family land situate at Kaneshie, Accra and dealing in any manner with Mantse Ankrah Family properties as Head of the Family pending the determination of the suit” See page 179 ROA. The Appellants deposed in paragraph 6 of their affidavit in support of the motion that the Respondent was holding himself out as the Head of Mantse Ankrah Family and was not only alienating portions of the family’s land but was harassing the grantees of the Mantse Ankrah Family who were in lawful possession of their lands at Mayera-Faase, Mayera- Akoto and Afiaman. Counsel stated that the Respondent never asserted in paragraphs 15, 16 & 17 of his affidavit in support that he was in possession of the lands above mentioned. Rather he only denied that he had alienated lands there and was neither harassing persons who had encroached on the land. He rather stated without doubt that it is the Appellants who had demarcated and conveyed portions of the land in issue. See page ROA 204. 5 Again the Appellants had alleged in paragraph 7 of their affidavit in support that the Respondent was developing a portion of the Mantse Ankrah Family land at North Kaneshie as per the photographs attached to their affidavit. He also deposed in his affidavit in opposition to the application that the building the injunction had targeted was long in existence and walled to which he was only carrying out renovations. See page 204 ROA. He exhibited pictures of the said building. On this the Court ruled (page 252 ROA) that the Appellants had failed to identify the specific land on which they were seeking to injunct the Respondent hence the application should fail. The Learned Judge in his ruling said “granted it is a land located in the premises where the Respondent lives, I will still refuse the application since he is in possession of the property and the grant will cause him greater hardship”. This finding of the court that the Respondent was “in possession of the property” related only to the North Kansehie property which the Respondent stated he had walled and had been living there and only carrying out renovations so he could not be injuncted. Consequently, the finding of fact that the Respondent was in possession of the property will not be in reference to all other Mnatse Ankrah Family lands at Mayera-Faase, Mayera- Akoto and Afiaman. Yet at page 252 of the ROA which shows the ruling on the application upon which this Appeal is born, the learned trial judge states as a finding of fact that the Respondent was in possession of the subject matter in dispute. Learned Counsel for the Appellant was of the view that upon reading the Respondent’s application it was clear that the injunction being sought meant to restrain the Appellants from carrying out any development on the land, burying anyone who was not a member of the Mantse Ankrah Family in the Mantse Ankrah Royal Mausoleum t Kaneshie and from holding or permitting social activities to be held at in the forecourt of the Mantse Ankrah Palace. These places are distinct from his house or premises 6 which the judge in the first injunction had found him to be in possession of. Therefore it is not the case that the same judge found him in possession of other properties or lands belonging to the Mantse Ankrah Family. Consequently, if the court had not misapprehended the fact that the Respondent had been found to be in possession of the Mayera- Akoto lands, Mantse Ankrah palace and the Mantse Ankrah Royal Mausoleum, he would not have granted the injunction in Respondent’s favour. The learned trial Judge in his view, had granted the injunction by taking irrelevant matters into account namely that the Respondent was in possession of the subject matter of the dispute. When the finding related to only the house he was in possession of and occupied which was not what the injunction was in respect of. In doing so he failed to take into consideration relevant matters laid before it by both parties in considering the application. He referred to the Appellant’s affidavit in opposition from paragraph1 – 7 seen on page 296 of the ROA as pertinent matters which the court failed to take into account and was rather weighed down by the finding of fact made from the earlier ruling of the court that the Respondent was in possession of premises where he lived yet this finding was over stretched to include the property in dispute which reasoning cannot be deduced from the actual finding of the trial court differently constituted. Learned Counsel for the Appellant, for these reasons, urged this court to interfere in the exercise of the trial court’s discretion as same cannot be said to have been exercised judicially. Learned Counsel for the Respondent in support of his submissions calling upon this court to dismiss the Appeal referred to the Order of the Court granting the Injunction which is the subject matter of this Appeal, where the Court ordered as follows: “It is hereby ordered that the Defendants, their servants, workmen, agents, or assigns, are restrained from entering, carrying on any 7 development on the disputed land, burying persons who are not Members of the Mantse Ankrah Royal Family in the Mantse Ankrah Royal Mausoleum, Kaneshie, and also holding or permitting Social Activities to be held at the Forecourt of the Mantse Ankrah Palace at North Kaneshie until the final determination of the suit.” See ROA 339. He then went ahead to tackle the Grounds of Appeal. He argued them together but gave prominence to the second ground of appeal that is the ruling being against the weight of the evidence. He pointed out that it was the duty of the Appellants who came by such a ground to pinpoint exactly what was amiss which if the trial court had taken into consideration could have changed the decision in their favour. He referred to decided cases which uphold this principle. See AKUFFO-ADDO V CATHERINE [1992] 1 GLR 377; ABBEY V ANTWI [2011] 26 GMJ 151; TUKWA V BOSSOM [2001-2002] SCGLR 6; ACKAH V PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728. In other words it is required of the Appellants to show pieces of evidence on Record which the Court below failed to appreciate or attach any import to in coming to its decision. See BONNEY V BONNEY [1992-93] 2 GBR 779 SC holding 4. It is also this Court’s duty to analyze or go through the entire ROA, and consider all the evidence, testimonies and otherwise adduced at the trial in order to come to a decision on the matter. See holding 3 of AKUFFO ADDO supra. Learned Counsel for the Respondent submitted that with reference to the Motion on Notice of Interlocutory Injunction filed on 19th August, 2020 see page 254-295 ROA they prayed the court in paragraph 23 of the affidavit in support of the Application thus; “That, I pray for an Order of Interlocutory Injunction to restrain the Defendant/Respondents their agents, workmen, assigns, servants, and all those who claim through them from entering onto the land at Mayera Faase, Mayera Akoto and Afiaman also by restraining them from allocating Burial Grounds at the Mantse Ankrah Royal Cemetery near Azumah Nelson Sports Stadium also for holding of other Social 8 Activities in the Fore Court of the Mantse Ankrah Family Residence until the final determination of the suit.” They also went further to exhibit the activities that the Appellants were carrying on, on the land mentioned in a number of Exhibits in support of their assertion against the Appellants. See ROA 263-279. It is very clear he submitted on the surface of these Exhibits that the acts complained of are not acts being carried out in urban Kaneshie but in the rural enclaves of Mayera Faase, Akoto and Afiaman. Learned Counsel for the Respondent submitted that in his ruling, the learned trial judge in the second motion, whose ruling is on Appeal, could differentiate or tell the difference between these two sets of places. He thus could tell from the Exhibits the acts ongoing in urban Kaneshie where the Respondent is resident and which was the subject matter of the previous injunction application and those acts pertaining to the rural lands which are now the centre of the application. He pointed out that the various Exhibits the Respondent tendered to support his application for the injunction all showed that the Appellants were permitting the use of the Mantse Ankrah Premises for social activities like funerals, they also allowed non- members of the Mantse Ankrah Royal Family to be buried at the Royal Mausoleum by offering burial grounds to them as can be seen in Exhibit NA 5- ROA 285. Therefore it is not the case that the judge did not consider all these bare facts laid before it. He proceeded in his submissions by making reference to the case of OWUSU V OWUSU- ANSAH [2007-2008] SCGLR 870 holding 1 where the Courts in the grant or refusal of an Interlocutory Injunction are enjoined to consider “whether the Applicant has a legal right at law or in equity, which the court ought to protect by maintaining the status quo until the final determination of the suit. This could be determined by considering the pleadings and affidavit evidence before the court.” Hence in his view the Court in granting the Order of Injunction took into consideration the Pleadings and affidavit evidence which was in 9 the form of their Exhibits showing the actions and inactions of the Appellant with regard to the subject matter of the instant litigation. It was thus just and convenient in the Court’s view to so grant same in line with Order 25 rl 1(2) of C.I. 47. Consequently it was proper for the court to have granted the injunction to prevent the Appellants from causing irreparable damage to the Respondent by their acts. The Court in its estimation never erred in granting the order so it cannot be that the ruling is against the weight of the evidence since the judge had considered the application before doing so and never did err. He prayed the Court to dismiss the Appeal. It is trite knowledge that the grant or refusal of an injunction is a discretionary exercised applied judiciously. There is no doubt that in the earlier injunction the trial judge made the point that the Respondent lived in the premises where the land the subject matter of that earlier application was concerned with hence he was not persuaded to grant that injunction since in his view the Respondent will suffer greater hardship. The current ruling under appeal was granted as follows: “In the said ruling, the Court made a finding of fact that the Applicant is in possession of the subject matter in dispute for which reason the Application of Injunction was refused. It is my candid opinion that the acts complained of would obviously affect the possessory rights of the Applicant for which reason I accordingly grant the Application for Injunction as prayed pending the final determination of the issues set down for trial including the issue of capacity”. The Appellant’s beef is that the Judge relied on the former ruling which stated that the Appellant was in possession of the subject matter of dispute which differs from the subject matter here to grant the ruling on appeal. For that reason if he had not done so he would not have granted the injunction. 10 The basic principle in the grant of an injunction is for the trial court to weigh whether the Applicant has a legal right at law or in equity which needed protection. To do this it is important for the court to consider the pleadings and affidavit evidence put before it. In the motion for the injunction order under attack and its supporting affidavit on pages 256-259 the Applicant makes a case that its family lands were in danger of being sold off by the Respondent. Also people who did not belong to their Royal family were being laid to rest in their Mausoleum. The Applicant attached various Exhibits including the ruling that dismissed the earlier injunction sought by the Appellants as Exhibit NAI attached to which are various photographs showing the extent to which his family lands were being trespassed upon. From the earlier ruling it is clear that the Respondent lives in the Kaneshie premises which he says is the Mantse Ankrah Family Residence. Hence upon considering the affidavit evidence in support of the application the court ruled that with the Respondent being in possession of the Family residence, as was ruled upon earlier, he was of the candid opinion that the acts complained of will affect the Respondent’s possessory rights and so granted the application for an interim injunction order in respect of the present application. The question is what acts were complained off? Apart from Exhibit NA 1, he also had NA 2- NA 3 series which show the trespass on the Respondent’s family land as shown by them. Again Exhibit NA 4 series show the use of the Family Residence forecourt in Kaneshie for social services for commercial gain without lawful authority. Likewise Exhibit NA 5 is evidence that non-royals are buried in the Mausoleum without lawful authority. Then again Exhibit NA 6 series show that the Royal Family Residence premises are used as an off-loading point for goods not belonging to their family members. These are the various acts complained about by the Respondent. It is clear from the above that the court did not merely grant this order based upon the earlier finding in the first ruling that the Respondent is in possession of the subject 11 matter. From the pleadings, affidavit evidence including all the Exhibits in reference it is obvious the court considered the matter that had been put before it in the application under consideration. It weighed both sides of the matter and was of the view that the respondent had a legal and equitable right in need of protection and ruled on same. See the case of POUTNEY DOEGAH (1987-87) 1 GLR 111. We therefore hold the view that the learned trial judge acted rightly when he considered the material put before the court in granting the application. It is our considered opinion that learned trial Judge did not err by failing to adequately consider the application before granting same. His ruling is not against the weight of the evidence since he exercised his discretion judiciously in favour of the Respondent. We are therefore not minded to interfere in the grant of the application. The Appeal accordingly fails and is hereby dismissed. The ruling of the trial court is affirmed. Cost of Gh¢5,000.00 awarded in Respondent’s favour. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) (Sgd.) Ackah-Yensu, J.A. I agree BARBARA ACKAH-YENSU (JUSTICE OF APPEAL) 12 (Sgd.) Koomson, J.A. I also agree GEORGE KOOMSON (JUSTICE OF APPEAL) COUNSEL: ❖ Nana Ama Panyin Amoah for Defendant/Appellant ❖ G. N. K. Phixon Owoo for Plaintiff/Respondent 13