Court name
Court of Appeal
Case number
84 of 2008

Larbi and Another Vrs Adjetey and another (84 of 2008) [2008] GHACA 1 (13 May 2008);

Law report citations
Media neutral citation
[2008] GHACA 1
Piesare, JA
Apaloo, JA
Owusu, JA





                     APALOO, J.A.

                     MARIAMA OWUSU, [MS], J.A.



                                                                                                  FRIDAY 13TH JUNE, 2008


(1)  AKANSAH LARBI                         ]    …    PLAINTIFFS/RESPONDENTS

(2)  DAVID ADJEI LARBI                   ]

            V E R S U S




1st defendant/appellant present, the other parties absent.

Dr. Philip Anderson for S.K. Amoah for the 1st defendant/appellant present.

No appearance on behalf of the respondents.


                                         J  U  D  G  M  E  N  T



PIESARE, J.A.:-  This is an interlocutory appeal, brought by the 1st defendant-appellant, against the ruling of the High Court, Accra, delivered by Lartey-Young (J), dated 30th May, 2007.

            On 13th March, 2007, the plaintiff-respondents (hereinafter to be referred to simply as the “respondents”), issued a Writ of Summons against the 1st defendant-appellant (hereinafter to be referred to simply as the “appellant”), and some unspecified, or unknown persons described in the Writ, as Occupiers/Trespassers, claiming:

            (a)  A declaration of title to all the piece of parcel of land situate lying

                  and being at Zenu-Ashiaman in Greater Accra Region of the

                  Republic of Ghana containing an approximate Area of 8.08 Acres

                  and bounded on the North West by Landed Property measuring

                  1,100.00 feet more or less on the South East by Landed Property

                  Measuring 1035 feet more or less on the South West by Landed Property

                  540.0 feet more or less [EMPHASIS SUPPLIED].

            (b)  Recovery of Possession.

            (c)  Perpetual Injunction restraining the defendants, their assignees, agents

                   or persons claiming through them from entering on or developing or

                   interfering with the land.

            (d)  Damages for trespass.

            On 24th April, 2007, the respondents followed with an application for interlocutory injunction to restrain the defendants, their assigns, servants, agents, or anybody claiming through them from entering or developing the land in dispute pending the final determination of the suit.

            The main grounds upon which the respondents brought that application were:

            1.  That, they had been in possession of the land since time immemorial

                 and had been farming on it.

            2.  That, the land in dispute was also a subject-matter of Statutory Declaration

                 in favour of the plaintiffs’ family.

            3.  That, the defendants trespassed unto the land and were developing it at a

                  fast rate, without the consent of the plaintiffs.

            4.  And that if the defendants were not restrained by the court’s order of

                 interlocutory injunction, the defendants would cause a lot of hardship and

                 inconvenience which could not he adequately compensated in damages.

            Let me comment at this stage, that the Statutory Declaration (covering the land) which was allegedly published in favour of the plaintiffs, was not exhibited to that application for injunction.

            The appellant and the other respondents to that application, opposed the application on three main grounds:-

            1.  That, the application was frivolous because the applicants had failed to

                  Exhibit the Statutory Declaration upon which they were relying;

            2.  That, the application was again frivolous, because the applicants had failed

                 to establish the identity of the land they were claiming.

                 That, boundaries marked by Landed Property were vague, and did not show

                 the extent of the land claimed. 

                 That, a court would not grant injunction where the identity of the land was not

                  Clear.  The case:  ANANE & ORS. V. DONKOR & OR, [1965] GLR 188 (SC), was relied upon.

And     (3) That, the defendants would suffer extreme hardship if the application

                  was granted, since they had been in possession of their land for years.

            Now, at the end of the day, after the trial judge had heard the parties, the trial judge granted the application for interlocutory injunction against the defendants.

            Now, for clarity of judgment, I quote below, the full text of the ruling of the trial judge, which is as follows:-

            “RULING:-  The defendant-respondent admitted in his affidavit

            in opposition that the plaintiff also owns lands in the area and that the

plaintiffs’ land is separated by a motor road.  There is therefore an issue to

identify the plaintiffs’ land as distinct from the defendants’ land or the area in dispute.  However, the photos exhibits annexed to the plaintiffs’ affidavit show that the defendant is developing or has granted the land for development into real estates.  That is the defendant will deprive the plaintiff of the land before judgment  is delivered.  Since the plaintiff is using the land for farming and farming is the mainstay of the rural folk monetary compensation will not be adequate for the plaintiff.  There is therefore the need to preserve the status quo.  I therefore grant the application subject to the Statutory condition that the Plaintiff/applicant shall undertake to compensate the defendant adequately upon prove of any or damage which may be occasioned by this order of Interim Injunction. 

            It is therefore ordered that the defendant, his agents, servant, and privies are

            restrained from developing the land in real estates alienate any part of it for

            the said purpose until further orders in this suit.

            Plaintiff shall execute the undertaking and file it before this order shall be


            No cost awarded.”


                                                                                  [Sgd.]  Isaac Lartey-Young (J)


Now, this ruling appears to be very strange.  The plaintiff-applicants had not indicated anywhere, that a motor road marked the boundary between their land, and the defendants’ land.  It was, the defendants who had pleaded in paragraph 5 of their Statement of Defence, that the plaintiffs’ land was separated from theirs by a motor road.

The trial Judge appeared to have proceeded upon the basis that the motor road divided the two lands, and then proceeded:

            “There is therefore an issue to identify the plaintiffs’ land as distinct

              from the defendants’ land or the land in dispute…”

            It is my humble view, that the trial judge’s acceptance of the motor road as dividing the two lands, amounted to a rejection of the plaintiffs’ case.  It was therefore wrong for the trial judge to have granted the injunction in favour of the plaintiffs.  Again, the question is:  Where was the injunction to operate?  On the defendants’ side of the motor road, or on the plaintiffs’ side of it, or on both?

            Now, this is the ruling which the 1st defendant-appellant is aggrieved against, and has brought this appeal, on four grounds:

            (i)  The Learned Trail Judge misapprehended the facts giving rise to the

                   application for injunction and failed to give a proper consideration

                   to same.

            (ii)  The Learned Trial Judge erred in granting the application for injunction

                   in favour of Plaintiffs who could not sufficiently describe their land.

           (iii)  The Learned Trial Judge erred in the exercise of his judicial discretion.

           (iv)  The ruling was against the weight of evidence.

            The same arguments appeared to have been submitted for all these grounds; and these are :

            1.  That, the learned Judge misapprehended the facts of the case; and

            2.  That, the grant of the interlocutory injunction was not a proper exercise

                 of discretion, because the plaintiffs could not establish the identity of the

                 land they were claiming.

Cases relied upon included:

  1. Anane & Ors. Vrs. Donkor & Or. [1965] GLR 188 S.C.
  2. Traboulsi & Co. Ltd. Vrs. Paterson Zochonis & Co. Ltd. [1973] 1 GLR

133 (CA).

            It was contended on behalf of the respondents in this appeal, that both parties knew the identity of the land in dispute.  The identity of the land was therefore not in issue.  The Supreme Court case:  IN RE ASHALLEY BOTWE LANDS:  ADJETEY AGBOSU & OR. VRS. KOTEY & ORS [2003-2004] SCGLR 420 Holding 3 was relied upon, as authority for the proposition, that where the identity of the land is not in dispute, ANANE V. DONKOR [1965 GLR 188 (SC), is not applicable.

            Now, on this issue as to whether the identity of the land was in dispute, my answer is YES.

The respondents’ bizarre description of their boundaries, as bounded by LANDED PROPERTY, makes it impossible to identify the exact piece or parcel of land being claimed by the respondents.

            Moreover, in paragraph 5 of the Statement of defence, the appellant had pleaded that his land was separated from the respondents’ land, by a motor road, and that the respondents had crossed the road, and occupied a portion of the appellant’s land.  It is not clear whether the respondents were claiming all the lands on either side of the road, or what part of the appellant’s land.  The identity of the land was therefore clearly in issue.

            Now, the granting or refusal of injunction is a matter for the discretion of the trial


            In the case:

            MONTERO & OR,  V. REDCO LIMITED & OR. [1984 – 86] GLR 710 (CA)

Abban J.A. ( as he then was) said:  (page 714):

            “An interim injunction, like all equitable remedies, is discretionary and

              normally where there is a legal right which can be asserted either at law

              or in equity, the court has a discretion to grant an injunction in protection

              of that right.  Indeed the court’s jurisdiction to grant an injunction is

              practically unlimited and would be exercised in any case in which it is

              right or just to do so, having regard to “settled legal reasons or principles.”

            But the Court of Appeal has power to interfere with a trial court’s exercise of discretion, where the trial court has applied the wrong principles, or has reached a wrong conclusion which would work injustice between the parties, or where the trial judge has

misapprehended the evidence in the exercise of his discretion.

            Thus, in the case:

            YEBOA & OR. V. BOFOUR [1971] 2 GLR 199 (CA) at page 221 AZU CRABBE JA as he then was, said:

            “The Court of Appeal will not interfere with the exercise of that discretion

             unless it is satisfied that the Judge applied a wrong principle or can be

              said to have reached a conclusion which would work a manifest injustice

              between the parties.”

              And in the case:

              TRABOULSI & CO.


            PETERSON ZOCHONIS & CO. LTD. [1973] 1 GLR 133 (CA) per Azu Crabbe (JA) as he then was. Azu Crabbe said (page 139 paragraph 2):

            “…Where a Judge of first instance misapprehends the evidence in the

              exercise of his discretion, this will be sufficient justification for

              interference by the appellate court…”

            Now, did the learned trial Judge in this appeal, apply the right principles, in the exercise of his discretion, in granting the order of injunction?  Or simply, was the learned Judge right in granting the order of Interim Injunction against the appellant?

            In the off-quoted case of:

            VANDERPUYE V. NARTEY [1977] 1 GLR 428 (CA) per Amissah (JA) there was, an application for an order for interim preservation of property.  The Court of Appeal there held that the principle governing the granting or refusal of application for injunction is:

            [quote – page 432]:

            “Whether on the face of the affidavits there is the 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 court continued at the same page as follows:

            “The question for consideration in that regard revolves itself into

              whether on balance greater harm would be done by the refusal to grant

               the application than not.  It is not whether a prima facie case however

               qualified and with whatever epithet, has been made.”

            It is clear from this case, that where a Judge is seised with an application for the preservation of property, the Judge’s first duty is to determine whether the applicant’s case is not “frivolous or vexatious.:

            Indeed, in

VANDERPUYE V. NARTEY, the court did engage in this exercise as follows:

[quote – at page 432 of that case]:

            “Is the appellant’s action frivolous or vexatious?  We do not think so

              from a reading of the record.  Is the claim for relief sustainable in the

              light of the papers submitted?  Here is a case in which the pleadings,

              affidavits, disclose evidence in support of the appellant’s contention

              that the properties in preservation of which he asks for the appointment

              of manager pending the determination of the action are part of the

              estate left to him by his father.  There is further evidence that some

              properties which had at some time been held out by the respondent as part

              of the estate had been disposed of.  No account has been given of the

              administration by the respondent although one has been called for by the

              appellant for years.  That there is such evidence, cannot be denied.  True

              the respondent explains it.  But then at this point there is established

              the requirement of the seriousness of the claim.”

            In the instant appeal therefore, the question is:  Was the respondents’ claim “not frivolous or vexatious?”

            I am of the humble opinion that the respondents’ claim is frivolous.  By the bizarre description of the respondents’ land in the Writ, as it is, I dare say, that the respondents cannot have Judgment for a Declaration of title.  The Respondents have described their land as bounded on the North-West by Landed Property, South-East by Landed Property, and South West by Landed Property.

            This description of boundaries of land, is clearly frivolous.  It cannot identify the extent of the land which the respondents were claiming.  The learned trial Judge seriously erred because, instead of basing his ruling on the respondents’ own showing on their

boundaries, he premised his said ruling on the motor road boundary-mark as pleaded by the defence.  Having accepted the motor-road as marking the boundary between the respondents’ land and the appellant’s land, he should not have proceeded to grant the injunction against the appellant; for it is not clear, as to where the injunction was to operate; was it to operate on the respondents’ side of the road, or on the appellant’s side of the road, or on both lands?

            I am of the well-considered opinion that the identity of the land was in dispute.  The case of ANANE & ORS. VRS. DONKOR & OR. [1965] GLR 188 SC was therefore applicable.

            The law is clear, that an order of injunction cannot be granted by a court for the preservation of a piece or parcel of land, unless the land can be clearly identified, so that if the order is violated, the person in contempt can be punished.

            In the case:

            ANANE & ORS. VRS. DONKOR & OR. [1965] GLR 188 (SC) Ollenu (JSC) who read the opinion of the court, said at page 192 last paragraph as follows:

            “Where a court grants declaration of title to land or makes an order

               for injunction in respect of land, the land the subject of that

               declaration should be clearly identified so that an order for possession

               can be executed without difficulty, and also if the order for injunction

               is violated the person in contempt can be punished.  If the boundaries

               of the land are not clearly established, a judgment or order of the

               court will be in vain.  Again, a Judgment for declaration of title to

               land should operate as res judicata to prevent the parties relitigating

               the same issues in respect of the identical subject-matter, but it cannot

               so operate unless the subject-matter thereof is clearly identified.

               For these reasons a claim for declaration of title or an order for injunction

               must fail if the plaintiff fails to establish positively the identity of the

               land to which he claims title with the land the subject-matter of the suit.”

            In the result, I am satisfied that the learned trial Judge wrongly exercised his discretion in granting the order of Interim Injunction dated 30th May, 2007.  If the learned trial Judge had carefully considered the cases:

            1.  VANDERPUYE V. NARTEY [1977] 1 GLR 428 (CA).

            2.  And, ANANE & ORS. VRS. DONKOR & OR. [1965] GLR 188 (SC)        

and the principles laid down in them, he would not have granted the order of Interim Injunction of the 30th May, 2007.

            I am satisfied that the learned trial Judge exercised his discretion on wrong principles of law.

            The appeal is, in the circumstances, allowed.  The Ruling of the court below dated 30th May, 2007, is hereby set aside, together with all consequential orders made therein.




                                                                        [SGD.]                   E.K. PIESARE

                                                                                    JUSTICE OF APPEAL





I agree.                                                           [SGD.]      R.K. APALOO

                                                                                     JUSTICE OF APPEAL         





I also agree.                                                   [SGD.]   MARIAMA OWUSU [MS]

                                                                                    JUSTICE OF APPEAL