CHINA SHANDON INTERNATIONAL LTD. vs. MRS. VIVIAN ACHEAMPONG AND NANA SERWAAH ACHEAMPONG [2018]DLCA6176

CHINA SHANDON INTERNATIONAL LTD. vs. MRS. VIVIAN ACHEAMPONG AND NANA SERWAAH ACH... [2018]DLCA6176

Date	2018-12-13
Suit No.	CIVIL APPEAL NO.H1/196/2018
Citation No.	[2018]DLCA6176

AGNES M. A. DORDZIE (MRS.)

J.A. (AS SHE THEN WAS) (PRESIDING)

F.G. KORBIEH J.A.

I.O.TANKO AMADU J.A.

OPOKU AMPONSAH FOR THE APPELLANT

HUMPHEREY MODZAKAH RESPONDENTS

[2018]DLCA6176
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													<main id="main" class="content" style="min-height: 60rem" >CHINA SHANDON
INTERNATIONAL LTD.<o:p></o:p>[APPELLANT]<o:p></o:p>vs.<o:p></o:p>MRS. VIVIAN ACHEAMPONG
AND NANA SERWAAH ACHEAMPONG<o:p></o:p>[RESPONDENTS]<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO.H1/196/2018&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; &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; &nbsp; &nbsp; DATE: 13TH DECEMBER, 2018<o:p></o:p>

</div>COUNSEL:&nbsp;<o:p></o:p>OPOKU
AMPONSAH FOR THE APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

HUMPHEREY
MODZAKAH RESPONDENTS<o:p></o:p>

</div>CORAM: <o:p></o:p>AGNES
M. A. DORDZIE (MRS.), J.A. (AS SHE THEN WAS) (PRESIDING), F.G. KORBIEH J.A.,
I.O.TANKO AMADU J.A.<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;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>F.G.
KORBIEH, J.A.<o:p></o:p>We deem it absolutely necessary to preface this
judge with the following comments. This appeal was heard on the 24/7/2018 and
adjourned to last week for judgment. It was for unavoidable reasons that we
could not sit last week and therefore had to adjourn the delivery of the
judgment to today. It was noted by the panel at the hearing of the appeal that
only the appellant had filed its written submissions and that the said written
submissions had been duly served on the respondents through counsel for the respondents.
Since the respondents had failed to file an Answer within the stipulated time
as prescribed by the Rules of Court, we proceeded to hear the appeal and
accordingly adjourned it for judgment. Only a week or so to the return date for
judgment, we received copies of the respondents’ written submissions filed
purportedly on the basis of leave granted by a panel of the Court of Appeal
(differently constituted) which had heard an application for leave for
extension of time to file written submissions. The said application had been
filed on the 23/7/2018 (the eve of the hearing of the appeal) and fixed for
hearing on the 22/10/2018. On the return date the application was granted and
the respondents/applicants purported to file their written submission on the
8/11/2018 copies of which were given to members of the panel on the 26/11/2018.
Ordinarily there is nothing wrong with a party applying for extension of time
within which to file one process or the other but the law is clear that a party
seeking an equitable relief such as an extension of time must be candid and
forthright with the Court in the supporting affidavit. In the applicants’
supporting affidavit in this case, even though they were very well aware that
the case had been set down for hearing of the appeal on the 24/7/2018, they
failed to disclose this very relevant fact to that Court. This would have put
the Court on its guard to find out whether or not the appeal had already been
heard since if it had been heard, granting the leave to file out of time would
be an exercise in futility. Granting leave to file out of time is an equitable
relief and as we all know, equity does nothing in vain. As it turned out, the
appeal was heard the very next day after the motion was filed and adjourned for
judgment. We could not have and did not therefore take account of the
respondents’ written submissions which, to all intents and purposes, were filed
out of time and were considered and treated by this panel as such.&nbsp; <o:p></o:p>Be that as it may. This appeal emanates from the
ruling of an Accra High Court dated 5/12/2017 wherein the
defendant/respondent/appellant (hereinafter only referred to as the appellant)
was injuncted from entering or proceeding with its construction works on the
disputed land pending trial. The appellant therefore filed a notice of appeal
against the order of interlocutory injunction on the following grounds:<o:p></o:p>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The
ruling is against the weight of evidence.<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp; The Court
erred in relying on the allegation of fraud alleged by the
plaintiffs/respondents in their affidavit in support of the application for
interlocutory injunction against the defendant/appellant when the alleged fraud
is against third parties who are not parties to the suit and same have not even
been particularized as required by law.<o:p></o:p>c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court
erred when it failed to determine that the balance of convenience weighed
strongly in favour of the defendant/appellant.<o:p></o:p>d)&nbsp;&nbsp;&nbsp;&nbsp; The Court
erred in law and on the facts by failing to appreciate that the
plaintiffs/respondents have no legal and/or equitable title to the land which
is worthy of protection by an order of interlocutory injunction in their
favour.<o:p></o:p>