DANIEL ELIAS WILLIAM JOSEPH vs. OKOMFO ANKYE AND THE LANDS COMMISSION [2013]DLSC2706

Date	2013-02-27
Suit No.	CIVIL APPEAL NO. J4/12/2012
Citation No.	[2013]DLSC2706

ATUGUBA JSC. (PRESIDING)

DR. DATE-BAH JSC

ADINYIRA (MRS) JSC

DOTSE JSC

GBADEGBE JSC

AKWASI AFRIFA FOR THE PLAINTIFF/APPELLANT/APPELLANT.

K. A. ASANTE-KROBEA FOR THE 1ST DEFENDANT /RESPONDENT / RESPONDENT.

NO APPEARANCE FOR THE 2ND DEFENDANT/RESPONDENT/RESPONDENT.

[2013]DLSC2706
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													<main id="main" class="content" style="min-height: 60rem" >DANIEL ELIAS
WILLIAM JOSEPH<o:p></o:p>vs.<o:p></o:p>OKOMFO ANKYE AND THE LANDS COMMISSION <o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/12/2012&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE: 27TH FEBRUARY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AKWASI AFRIFA FOR THE
PLAINTIFF/APPELLANT/APPELLANT.<o:p></o:p>K. A. ASANTE-KROBEA FOR
THE 1ST DEFENDANT /RESPONDENT / RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO
APPEARANCE FOR THE 2ND DEFENDANT/RESPONDENT/RESPONDENT.&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p>ATUGUBA JSC. (PRESIDING),
DR. DATE-BAH JSC, ADINYIRA (MRS) JSC, DOTSE JSC, GBADEGBE JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>GBADEGBE
JSC:<o:p></o:p>On 7 November 2011 when
the matter herein came before us in open court, we raised for the consideration
of the parties by virtue of the authority conferred on us under rule 6(8) of
the Supreme Court Rules, CI 16 a point of law that was carefully crafted by us
as follows: <o:p></o:p>“Whether having regard to the time
frames provided for in Rule 8(1) (a) of the Supreme Court Rules, CI 16 the
appeal herein is properly constituted?”<o:p></o:p>Before proceeding further,
we wish to say that the instant appeal arises from the refusal by the Court of
Appeal to set aside a previous decision of the High Court by which an
application for interlocutory injunction that was sought by the Appellant
herein was refused. By its decision, the Court of Appeal affirmed the order of the
trial court refusing the application for interlocutory injunction. The appeal
to this court therefore from the decision of the Court of Appeal is in respect
of the interlocutory injunction. The decision on appeal to us was delivered by
the Court of Appeal on29 July 2011 while the notice of appeal to us was filed
on 19 August 2011.<o:p></o:p>&nbsp;The parties having complied with the order of
the court by submitting their respective responses to the said question, we now
proceed to determine the question concerning the timeliness of the appeal
herein. As the said point touches and concerns jurisdiction, we think it must
be determined before the consideration of the appeal on the merits. In response
to the question raised by us, learned counsel for the Appellant was of the view
that the decision, the subject-matter of the appeal was final in nature and
that the appeal which was filed therefrom on 19 August 2011 was filed within
time. Learned counsel for the respondent, however, was of the opinion that the
ruling the subject matter of the instant appeal was interlocutory and that in
filing an appeal therefrom after the expiry of twenty-one days the appeal was
improperly constituted and should be dismissed without a consideration of the
merits. We observe that implicit in the response of the appellant to the
question raised by the court is an admission that if indeed, the nature of the
order appealed is interlocutory then the appeal is improperly constituted as
having been filed out of the statutory twenty-one days provided for by the
applicable rule. Accordingly, our decision is limited to the question whether
an interlocutory injunction is final or interlocutory.<o:p></o:p>We have carefully
considered the submissions of learned counsel in the matter and have without
any hesitation come to the conclusion that learned counsel for the respondent
is right. In our view, the nature of an interlocutory injunction which is
ordinarily made in between the issue of the writ and before judgment in an
action is not final but interlocutory and it is surprising that notwithstanding
the clear nature of such an order, we have been invited to accept a contrary
view by the appellant. The urgings of learned counsel for the appellant is the
more surprising when one considers the fact that at page 8 of the record of
appeal in the body of the motion on notice for the order on which this case
turns, he described the order sought in the following words:<o:p></o:p>“…..praying this Honourable Court for
an order of Interlocutory Injunction to restrain the 1st
Defendant/Respondent………………”<o:p></o:p>In our view, an
interlocutory injunction is one of the remedies available to disputants as an
interim measure. Its purpose is to provide protective or provisional remedies
to the parties between the commencement of the action and its final trial or
determination. As an interim relief, it cannot in our thinking be transformed
into a final order of the court by virtue only of an appeal therefrom to a
higher court. Our courts have always construed such interim or interlocutory
orders as not being final in their nature. See: REPUBLIC V HIGH COURT (FAST
TRACK DIVISION) ACCRA; Ex-parte STATE HOUSING COMPANY LIMITED AND ANOTHER
[2009] SCGLR 185.Since appeals are creations of statute, a party who desires to
appeal must in order to confer jurisdiction on the appellate court first
satisfy the requirement of th</main>