KLU VRS AMOCAD (H1/166/2021) [2022] GHACA 123 (20 October 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: G. SIMON SUURBAAREH JA PRESIDING P. BRIGHT MENSAH JA RICHARD A. FRIMPONG JA BETWEEN: SUIT NO. H1/166/2021 20TH OCTOBER 2022 NII EWULU ADJEI KLU … PLAINTIFF/APPLICANT/APPELLANT AMOCAD vs … DEFENDANT/RESPONDENT/RESPONDENT ========================================================= JUDGMENT BRIGHT MENSAH JA: My Lords, the instant appeal is an invitation to us to interfere in the exercise of judicial discretion by the High Court, Adentan near Accra in this case per a Ruling delivered 25/03/2021. The lower court had refused an application for an order of interlocutory injunction sought by the plaintiff/appellant herein. The ruling appears on pp 104-110 of the records of appeal [roa]. Being dissatisfied with, and aggrieved by the decision of the lower court, the plaintiff/appellant has appealed to this court on the sole ground that: “That the learned trial judge failed to exercise his discretion judicially thereby occasioning a ,miscarriage of justice to the plaintiff/appellant.” See: p. 112 [roa] The plaintiff/appellant proceeded to give the particulars of the said error of law committed by the lower court as follows: (a) The learned trial judge failed to appreciate the case of the plaintiff/ appellant that the plaintiff/appellant had a legal right in the subject matter of the interlocutory injunction to be protected. (b) The learned trial judge failed to appreciate the case of the plaintiff/ appellant against the backdrop that the plaintiff/appellant will suffer greater hardship if the defendant/respondent was not restrained or injuncted, and having allowed the defendant/ respondent to develop the subject matter of the interlocutory injunction/application, changes the nature and character of the subject matter to the detriment of the plaintiff/appellant. c) The learned trial judge failed to appreciate the fact that damages in any form would not adequately compensate the plaintiff/ appellant by allowing or giving the defendant/respondent liberty to develop, and sell portions of the subject matter of the interlocutory injunction application, thereby enabling the defendant/respondent to change the nature and character of the subject matter to the detriment of the plaintiff/appellant. d) The learned trial judge failed to appreciate the fact that the balance of convenience in the circumstances of the case tilted in favour of the plaintiff/appellant necessitating the grant of the interlocutory injunction application than its refusal or dismissal. In this appeal, the parties shall henceforth be referred to simply as the appellant and the respondent, respectively. Before proceeding to consider the merit or otherwise of the appeal, it is not only desirable but also appropriate to discuss the law on the appellate court interfering in the exercise of judicial discretion by a lower court. As a general rule, an appellate court cannot or would not ordinarily substitute its own discretion for the court exercising a discretion. However, there may be exceptional circumstances justifying questioning the exercise of judicial discretion. The principles governing exercising judicial discretion and the power of an appellate court to interfere in the exercise of a court’s discretion were considered extensively in Sappor v Wigatap (2007-2008) SCGLR 676 in which case the Supreme Court set the perimeters of the rules as follows: “………. [A]n appellate court would [only] interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work mani- fest injustice or that the discretion was exercised on wrong in- adequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” It is worth noticing that Crabbe JSC in R v Registrar of High Court; Exparte Attorney General (1982-83) GLR 407 @ 420 has reiterated that the grounds upon which the exercise of judicial discretion may be impeached include: i) where it can be demonstrated that the judge or judicial officer violated the duty to be fair and candid; ii) where the discretion was exercised capriciously or arbitrary; iii) that the judge or judicial officer was biased either by resentment or prejudices; iv) the trial judge did not act in accordance with due process of law. It bears stressing that there are no binding precedents in exercise of judicial discretion as each case is decided on its own merit provided the judge or judicial officer took into consideration, all the necessary facts and circumstances of the case; the judge or the judicial officer was not biased or capricious or that he did not take into account, extraneous matters. See: Agyeman v Ghana Rly & Ports Auth. (1969) CC 60 C/A. In summary, therefore, there are no hard and fixed rules as to how the judge or judicial officer must exercise his discretion in an application put before him except that the conclusion reached was not perverse or occasioned any miscarriage of justice. If the conclusion was supported by the [affidavit] evidence on record, the exercise is said to be right and judicially exercised. Consequently, the appellate court will not interfere with the exercise of the court’s discretion save in exceptional circumstances. See: Nartey Tokoli v Valco No. 3 (1989- 1990) 2 GLR 530. I now proceed to consider the merit or otherwise of the appeal. To begin with, the law is certain that an appeal is by way of re-hearing the case. For, it is provided in the rules of the Court of Appeal, rule 8(1) of C. I 19 that any appeal to the Court shall be by way of re-hearing. This rule has received judicial interpretation in a legion of cases to mean that the appellate court is enjoined by law to review the whole evidence on record and to come to its own conclusion as to whether the findings of the lower court both on the law and on the facts were properly made and supportable. Thus, in R v High Court (General Jurisdiction 6); Exparte Attorney General (Exton Cubic – Interested Party (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle as follows: “Appeal is an invitation to a higher [appellate] court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.” The appellant has strongly been urged on us to take critical look at the entire appeal records, ie the pleadings the parties filed, the affidavit evidence and the various exhibits put before the lower court, and to evaluate it and review same for this court to come to its own conclusion. That is an appropriate call on the mandate of the appellate court. So, what are the perimeters set for considering an application for an interlocutory injunction? My Lords, the legal basis for a grant or refusal of an injunction is founded on Order 25 r 1 of the High Court (Civil Procedure) Rules, 2004 [CI 47] which stipulates that the court may in all cases in which it appears just and convenient, make an order of injunction. The grant or refusal of an application for an interlocutory injunction is an exercise of the discretionary authority of the court. In Owusu v Owusu-Ansah [2007-2008] SCGLR 870 Holding 1 the Supreme Court held: “The granting or refusal of an injunction is at the discretion of the Court but the discretion has to be exercised judiciously………………” The Supreme Court speaking through Kpegah JSC in Ekwam v Pianin (No.1) [1996-97] SCGLR 117 propounded that in deciding whether or not to grant an order of interim injunction, the court would consider the justness and convenience of the order. The apex court in considering the totality of the case, held in that case that the applicant could not be denied the temporary relief sought, for equality was equity. My Lords, the term “just” or “convenience” is a term of art and has been so defined in Halsbury’s Laws of England 4th ed Re-issue para. 819 in the following terms: “The words ‘just and convenience’ do not mean that the court can grant an injunction simply because it thinks it is convenient but mean that it should grant an injunction for the protection of rights or the prevention of injury according to legal principles. They confer neither arbitrary nor unregulated discretion on the court.” Significantly, in the exercise of the discretionary power to either grant or refuse an application for an interlocutory injunction, the courts have overtime developed some principles of law that serve as a guide. This was re-echoed and captured in the case of 18th July Ltd v Yehans Int. Ltd [2012] 1 SCGLR 167 where the Supreme Court identified those principles as that the courts should: 1. Consider whether the case of the applicant was not frivolous and applicant has demonstrated that he had legal or equitable right which a court should protect. 2. Ensure that the status quo was maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter; and 3. Consider the balance of convenience and should refuse the application if its grant would cause serious hardship to the other party. Needless to emphasize, I have critically evaluated the entire records of appeal, particularly the affidavit evidence and the pleadings the parties filed. Now, having regard to the pleadings; the affidavit evidence put before the lower court as well as the submissions of the lawyers, I do roundly agree with learned Counsel for the respondent that the learned trial was perfectly right on the law and his analysis of the issues before him and as a result came to the right conclusion in the given circumstances of the case. Stated differently, the learned trial judge exercised his discretion judicially and correctly to the facts of the case in refusing the application for the order of interlocutory injunction the appellant sought. Without prejudice to the generality and the merits of the case at the trial in the lower court, I think the appellant’s claim and or proposition that he has a legal right that out to be protected by the court is of doubtful validity. First, the respondent per its pleadings and the affidavit in opposition annexed with some exhibits clearly showed the respondent lawfully acquired from the legitimate owners of the land, the subject matter in dispute. Evidence abounds that the respondent represented by its managing director at the time, Emmanuel Nii Adjei-Owusu (now deceased) acquired the land, which the disputed land forms part in the late 1980s and early 1990’s for real estate development from the real owners of the land, the Otswe We Family of Danfa. It is common ground that the Otswe We Family comprises of five (5) ancestries whose representatives including that of the appellant formed the team that negotiated with the respondent. See: paragraphs 7-9 of the affidavit in opposition [p.44 roa]. It is particularly important to note on record that the appellant admits this material fact. See: para. 3 of the Reply [p. 99 roa]. However, the appellant claims in para. 4 of the Reply that his representative, Theodore Klu Adjei opted out of the negotiations at the early stage of the negotiations. However, the affidavit evidence of the respondent proves the contrary. Granted that the appellant’s assertion that his representative opted out of the negotiations was even true, I think the decision by the other four (4) representatives of the family to negotiate with the respondent’s representative and took consideration for the sale and purchase of the land was binding on the whole Otswe We Family of Danfa Otswe We Family of Danfa including the appellant’s section of the family. Significantly, also is the fact that the respondent averred to some material facts in its affidavit in opposition which material averments the appellant never denied. It was averred to, for eg., in paragraphs 10 and 11 of the affidavit in opposition that as part of the negotiations it was demanded that the respondent at its own cost was to engage a licensed surveyor to prepare a cadastral survey plan for the Otswe We Family entire 383.29 acres of land which it did, was never denied by the appellant. See: [p.45 roa] It was additionally averred to in paragraphs 16 – 18 of the affidavit in opposition that when in the year 2020 the respondent took a decision to commence work on the disputed land some members of the family resisted them and the matter went before the Danfa Traditional Council and the said Council after listening to both sides asked the respondent to pursue their legitimate business on the disputed land was also never denied by the appellant. See: [p. 46 roa] It was equally averred to in paragraph 25 of the affidavit in opposition [p.47 roa] that all farmers whose farms were affected by the respondent’s purchase or acquisition of the land were duly compensated. In support of that assertion, the respondent tendered in evidence Exhibit NOA 7. See: [p.47 roa] All the averments enumerated supra, among other averments contained in the respondent’s affidavit in opposition, were material and any court minded to do justice in the matter could have not ignored them. Indeed, once those material averments were never denied the cardinal presumption of law was that the appellant admitted them albeit sub silentio. For, the law is succinctly clear that where a party made a material averment and that averment was not denied, no issue was joined and no evidence needed be led on that averment. It was presumed that the party against whom that material averment was made admits the averment sub silentio. See: Hammond v Amuah (1991) 1 GLR 89. See also: Fori v Ayirebi (1966) GLR 627 SC. The case, Ibrahim v Abubakari (2001-02) 1 GLR 540 illustrates the principle that: “……………..if the respondent in his affidavit in opposition did not deny specifically a particular allegation of fact contained in a supporting affidavit or did not answer the point of substance in the supporting affidavit, he was deemed to have admitted the fact. Consequently, it was not enough to depose to a general traverse in answer to specific allegation of facts.” Insofar as the appellant never denied specifically deny by way of supplementary affidavit those material averments contained in the respondent’s affidavit in opposition some of which have been outlined supra, it is my considered opinion that the lower court did exercise its discretion judicially. To me, the lower court correctly applied the principles to the case when in the face of the affidavit evidence and the circumstances of the case, it refused to grant the application for interlocutory injunction against the respondent. Now, having regard to the pleadings, the affidavit evidence and the circumstances of the case generally, it cannot be put to any serious doubt that the grant of the order for interlocutory injunction would have caused irreparable damage and greater hardship to the respondent. In the final analysis, I roundly agree with the submissions that the appellant has been unable to make a case well deserving to warrant any interference in the discretion the lower court exercised. Indeed, the appellant failed to establish the lower court applied the wrong principles or reached a wrong conclusion that it did. The appeal therefore fails and it is hereby dismissed in its entirety. Costs for respondent assessed at Ghc P. BRIGHT MENSAH JUSTICE OF APPEAL 10