HIGH COURT, CAPE COAST
Date: 20 OCTOBER 1973
EDWARD WIREDU J
CASE REFERRED TO
Punjabi Brothers v. Namih (1958) 3 W.A.L.R. 381.
NATURE OF PROCEEDINGS
APPEAL against the ruling of a district court granting the plaintiff s application for an order of interim injunction in an action for damages for trespass to land.
COUNSEL
Afrifah for the appellant.
B. G. Hutchful for the respondent.
JUDGMENT OF EDWARD WIREDU J
This is an appeal from the ruling of the District Court Grade I, Akim Oda, dated 23 August 1973. In that ruling the district court on the application of the plaintiff-respondent (who shall hereafter be referred to simply as the plaintiff) granted an interim order of injunction restraining both the plaintiff and the defendant-appellant (who shall also hereafter be referred to in short as the defendant) from interfering or dealing in any way with a number of timber trees felled by the defendant.
The brief facts of this case may be summarised as follows. The plaintiff is the ohene of Bontodiase in the Akim Kotoku area and the defendant is a concessionaire operating a timber concession in an area abutting the plaintiff s stool land. The facts on record show that in the course of the operations the defendant felled some logs in an area which was subsequently detected to lie outside the area of his concession. This area on the undisputed evidence fell within an area being claimed by the plaintiff s stool. As a result of this the plaintiff reported the matter to the appropriate governmental authorities, namely, the Lands, and Forestry Departments and the police. Following the report the Forestry and Lands Departments acting in concert under the Forests Ordinance, Cap.
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157 (1951 Rev.), the Trees and Timber Ordinance, Cap. 158 (1951 Rev.), the Administration of Lands Act, 1962 (Act 123), the Concessions Act, 1962 (Act 124), and the Forest Offences (Compounding of Trees) Act, 1959 (No. 83 of 1959), respectively, conducted a survey of the area where the trees were felled and on becoming satisfied that the trees were illegally felled imposed a fine of 0300.00 on the defendant. Following this the senior lands officer, Akim Oda, as the administrator of stool lands in the Akim Kotoku area impounded the trees, assessed the royalties payable on them and demanded the same from the defendant. The facts further show that by a letter dated 3 August 1973, and used as exhibit C and attached to the defendant’s affidavit in opposition to the plaintiff s application for an interim injunction, the Lands Department wrote to the defendant as follows:
“Following the inspection of your illegal timber operation in the above area by a combined team of police, forestry and officers of the Lands Department and a subsequent action of the Forestry Department under Trees and Timber Regulations, you are hereby authorised to remove the logs which stumps were checked, subject to payment of the tree royalties involved. This action is taken to prevent the logs from detiorating [sic.] thereby losing their commercial value.
The tree royalties, if paid, will be placed on deposit until the disputed area is resolved.
Meanwhile, I have to warn you that no additional tree should be felled in that area in the course of removing the logs and you should confine all your operations in the area approved for you by the Lands Commission.”
The dispute over the area where the trees were felled by the defendant as contained in exhibit C according to learned counsel for the defendant is between the plaintiff s stool and another stool which is still pending for determination.
In the meantime the plaintiff worried about the delay in taking action against the defendant by the authorities on 23 July 1973, applied for a writ of summons in the District Court Grade I, Akim Oda, against the defendant for the following relief:
“The plaintiff as the chief of Bontodiasi and customary owner of the Takraho lands near the Mfumso river in the Akim Kotoku area claims against the defendant herein substantial damages for open trespass on to the said lands and felling timber therefrom without his knowledge permission/concern and for perpetual injunction against the defendants.”
The plaintiff followed his summons later with an application for an interim order of injunction seeking to restrain the defendant from dealing with the timber trees. When the application came before the trial court arguments were submitted in support and against the grant. The plaintiff
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urging that the grant was necessary to avoid a breach of the peace and the defendant resisting the application on the grounds, first that the plaintiff was incompetent to maintain any action in relation to the trees by virtue of exhibits B and C and that the senior lands officer in his capacity as the administrator of stool lands has under section 2 of Act 123 vested title to the trees in him. The trial learned magistrate did not appear to have been persuaded by the submissions of learned counsel for the defendant and delivered the following ruling:
“This is a motion for an interim injunction in this suit in respect of timber felled on the defendant’s stool land. That the land is the defendant’s stool land is not in dispute. That the defendant or this stool he represents has an interest in the timber on his stool land in this case is clearly borne out by the law cited by counsel for the defendant in this case. That an interim injunction is desirable in this suit to preserve the status quo is in my view, both from the arguments and submissions of counsel for both the applicant and the defendant most apparent as well as real. In the premises after careful consideration of the motion paper and supporting affidavit and the affidavit in opposition with its annexed exhibits A, B and C as well as the receipt exhibit 1 and arguments of counsel, I am satisfied that this is a most proper case in which an interim injunction should be granted restraining both the defendant and the plaintiff, their servants or agents from dealing with the timber illegally felled by the defendant- respondent in this suit until the final determination of this suit. The defendant as well as the plaintiff are hereby accordingly restrained from dealing with the timber felled in this suit in any way until final determination of the suit. In my view the authorisation of the defendant- respondent by the Lands Department to remove the logs is a nullity and of no effect for a man shall never be allowed to profit by any wrongful act of his. It is hereby further ordered that the Forestry Department remove the logs the subject-matter of this suit and motion forthwith, sell same at the appropriate and lawfully authorised place and deposit the proceeds into court pending the final determination of the present suit.”
It is from this ruling that the present appeal has been brought on the following grounds:
“(a) The learned magistrate failed to consider the legal effects of exhibits A, B, C and D attached to the affidavit in opposition.
(b) The learned magistrate failed to consider the Administration of Lands Act, 1962 (Act 123), and the Concession Act, 1962 (Act 124), in relation to trees and timber on stool lands in Ghana.
(c) The learned magistrate completely failed to consider the plaintiff’s legal right and competence to institute the action, and thereby erred in granting the plaintiff’s application.
(d) The order made by the learned magistrate was founded on the wrong premise of the law in that it presupposes that plaintiff’s motion was maintainable. The order was therefore wrong in law.”
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Although four grounds of appeal were filed and argued under two main heads the arguments submitted on them were no different from those argued and rejected in the court below. Learned counsel founded his attack against the ruling of the learned district magistrate on the competency of the plaintiff to have maintained his action in relation to the trees and the failure on the part of the trial magistrate to have considered the effect of the Concessions Act, 1962 (Act 124), and the Administration of Lands Act, 1962 (Act 123), on the plaintiff s claim. Learned counsel referred to section 2 of Act 123 and section 16, subsections (3), (4), (5) and (6) of Act 124 and contended that the learrred trial magistrate erred in acceding to the request of the plaintiff.
Replying on behalf of the plaintiff, Mr. Hutchful posed the question for determination of this appeal as being whether the learned trial magistrate was right in granting the application or not? He argued that even though the President (now the Chairman of the National Redemption Council) was entitled to institute actions on behalf of various stools as a trustee, that right did not take away the inherent right of a stool occupant in maintaining an action in respect of his stool land. He argued that stool occupants as custodians of stool lands have an inherent right to maintain actions in respect of their stool lands under certain circumstances. He argued that the delay by the appropriate governmental departments caused some concern to the plaintiff hence his action against the defendant. He submitted that it was to avoid breach of the peace in the area which would have resulted from the removal of the logs which necessitated the application. Learned counsel submitted finally that there could not have been a better decision required by the justice of this case than the order made by the trial court.
Even though the point may not be relevant here I am of the view that section 2 of Act 123 does not take away the inherent right of occupants of stools to maintain actions in respect of their respective stool lands.
The very wording of section 2 of Act 123 recognises this fact where it states “The President may direct the institution . . . or intervention in, any proceedings relating to any Stool land.” The above quoted portion of section 2 of Act 123 contemplates that the proceedings in respect of which the President may intervene must have been pending and commenced by someone on behalf of the stool concerned. In law the proper person in this regard is the occupant of that stool. I therefore hold in my judgment that Mr. Hutchful’s view that section 2 of Act 123 does not take away the inherent right of a stool occupant to maintain an action in respect of his stool land is the correct construction of that section. It follows therefore that the plaintiff s action in so far as it relates to the trespass to his land is maintainable.
I have carefully considered the arguments submitted by learned counsel in this appeal and the ruling appealed from and have come to the conclusion that the appeal must succeed. In this regard a look at the plaintiff s claim (supra) and paragraphs (6) to (9) of his statement of claim which read as follows are pertinent:
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“(6) The plaintiff protested to the authorities by various letters—to the Forestry Department, Police.
(7) By his letter reference KD. 9/195 dated 17 July 1973, the Regional Lands Officer supported the plaintiff’s claim and ordered confiscation of the timber unlawfully cut from the plaintiff’s land.
(8) The plaintiff says that the defendant with full knowledge of this ban forcibly removed the ten logs from the plaintiff’s land for his own use.
(9) The plaintiff says that this is an unlawful act and claims substantial damages for the trespass.”
It is clear from the summons that the plaintiff s claim is substantially one for damages for trespass on to his stool land. It is also clear that the plaintiff lays no claim to the trees and that he recognises the proper authorities to deal with the trees to be the Lands and Forestry Departments. The averments in paragraph (8) of the plaintiff s statement of Claim is not supported by the contents of exhibit C (supra). Moreover exhibit C shows that since title to the area where the trees were felled was being disputed elsewhere between the plaintiff s stool and another stool the royalties to be paid in respect of the trees would be placed on deposit until the owner of the area was known. The facts of this case show that both the fine imposed and the royalties have been paid.
It is the duty of a court in dealing with applications for interim order of injunction to consider among other matters the following:
(a) the hardship that would be caused if the application is granted or refused; in other words the relative convenience or inconvenience which might result to the parties from granting or withholding an interlocutory injunction,
(b) whether on the facts before the court it is just and convenient for the preservation of the status quo;
(c) whether damages will afford an adequate compensation for the loss if the application be refused.
Where as in the instant case the respondent disputes the legal title of the applicant to the trees, the court will seldom (however clear the case may in its opinion be) grant an injunction before the applicant has established his legal rights: see Punjabi Brothers v. Namih (1958) 3 W.A.L.R. 381 at p. 382.
The applicant for an interim injunction must show a strong prima facie case in support of the title which he asserts and must make out a probability of the respondent’s case failing. The court however in dealing with such an application does not attempt to determine the rights of the parties: see Punjabi’s case (supra).
Now with the above analysis as a guide let us examine the facts of this case alongside with the ruling of the trial court to see how
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far the ruling can be supported. It is apparent from the facts of this case that the plaintiff is not claiming title to the trees in respect of which he is seeking to restrain the defendant’s dealings. The plaintiff himself recognised the authority of the Lands Department and the Forestry Department to deal with the trees. On the available facts and the application of the relevant laws relating to stool lands and timber trees on stool lands the plaintiff could not be said to have made out any case in relation to the trees. Exhibit C shows that the senior lands officer as an administrator of stool lands acting in concert with the Forestry Department have vested title to the trees in the defendant and have preserved the rights of the plaintiff s stool if it were able to establish its claim to the disputed area in the form of royalties collected. It is further clear from this nature of the plaintiff s claim that if he succeeds the court cannot grant him title to the trees. The ruling further appears to have overlooked that any attempt by threat or breach of the peace on the part of the plaintiff to prevent the carting away of the trees by the defendant as authorised would have amounted to the plaintiff taking the law into his own hands. The likelihood of there being a breach of the peace has never been held to be a legal ground for granting an interim order of injunction even though it may be urged in support of other legal grounds as are recognised. In this case copies of exhibit C were sent to the police, the plaintiff and his solicitor so as to avoid any doubt as to the person entitled to cart away the logs. I have no doubt that had the learned trial magistrate considered the factors to be taken into consideration when considering such an application and also the burden on an applicant for an interim order of injunction to establish a strong prima facie case then on the facts of the instant case he would have had no difficulty in holding that the equities favoured dismissing the application.
In my judgment therefore the appeal succeeds and it is accordingly allowed. The ruling appealed from is hereby set aside and the order restraining the defendant from carting the logs as authorised by exhibit C is hereby quashed. The defendant is hereby ordered to convey the logs. The action in respect of the trespass to proceed in the trial court.
DECISION
Appeal allowed.
Order for injunction set aside.
Action for trespass to proceed in court below.
S. Y. B.-B.
