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JUDGMENT
MRS. WOOD, J.A.:
I agree that the appeal
be allowed. In the application for the order of interim
injunction, the appellant’s principal prayer, was for
the respondents to be restrained from action i.e.
operating and or loading in total disregard of an order
of the court specifically dated the 12th of December,
1997. By the application, then, they sought for an
affirmation of the order and by extension or necessary
implication another order by which the IMC was to permit
vehicles of both parties to loads at the stations in
accordance with GPRTU rules and regulations. Again, by
the very nature of the application, the respondents
wanted the orders to remain in full force and effect.
The appellants
contended that the application was necessitated by the
respondents acting in total disregard of the courts
order and the fact also that by their actions they
rendered the work of the interim management committee
ineffective. The respondents, as they were entitled to
do, opposed the application and in the main denied
having violated or breached any orders of the court. It
is pertinent to note that in opposing the application
they do not deny the existence of the orders in
question, neither do they even in the remotest sense
challenge its validity.
In my view, given the
type of application before him, the learned trial Judge
was in law only entitled (1) after investigating the
competing claims to (2) if the circumstances justify
make such orders as would give full force and effect to
his earlier order of 11/12/87. Certainly, he was not
entitled to make orders that would derogate from, or
vary the order concerned. Instead, he (1) failed to
investigate the competing claims before him and (2) he
introduced a new order he described as a compromise
order. My concern is not so much with the description
given to the order but the more important fact that the
judge failed to determine the respective claims of the
parties and the fact also that he altered the character,
full force and effect of the order on which the
application was based i.e. 11/12/97.
The principle stated in
Poku vrs: Frimpong 1972 1 GLR. 230 at 241 is that an
appellate court would be empowered to interferes with an
order made in the exercise of discretionary power and
which is made on material that is illegitimate or
violates some principle of substantive right (emphasis
mine).
I think when the court
made this fresh order it violated the rights of the
appellant. The order itself was illegitimate, it not
being bases on or warranted by any known rule of law
procedure. The principle stated in Adjei vrs: Foriwaa
1981 GLR namely that in application for interim
equitable reliefs a court was not restricted in any way
to the granting or refusal of the remedy sought but
might make any such order as the justice of the case
demands is sound law, but it is not an inflexible rule
of law. I also think that it is inapplicable to this
present case.
I think that in interim
applications for equitable reliefs, where as in this
instant case, the remedy sought is for an affirmation,
endorsement or enforcement of all earlier existing valid
orders, a court may not have that kind of latitude, and
may find itself restricted in the orders it can make.
In my view, the court certainly ought not to make such
orders that would conflict or be inconsistent with all
earlier existing orders. In short, it ought not to
review or vary its own existing orders.
So clearly this appeal
should succeed. But as I have already pointed out, it
being plain that the primary or basic facts on which the
application was founded were not investigated, the
proper order we ought to make after setting aside the
order of the court below is to remit the motion for
trial in the court below before a different judge.
MRS. G.T. WOOD
JUSTICE OF APPEAL COURT
BENIN, J.A.:
I would also allow the
appeal, but would like to express a few words. To begin
with, the suitability of the application itself was
questionable, and that might have contributed to the
error that the trial Court fell into. For I should
think that since the complaint was that a party had
violated a court order, the appropriate application was
not one to restrain the defaulting party for an act
which it had already completed.
It was a case of
contempt of court if the facts as recounted in the
affidavit in support were true. As it turned up, the
trial court treated the application as a fresh
application for an injunction. But it was an
application to ensure compliance with the court’s own
orders which orders were still valid and subsisting.
The Court was thus not entitled to make any order/s
which had the effect of vacating the existing order when
it had not been called upon to do that by an appropriate
application.
A court is entitled to
discharge or vacate an order of injunction if an
application is made for it and if appropriate or
reasonable grounds exist therefore. For instance, if
the order is difficult or impossible to implement or
comply with; or if one of the parties who is peculiarly
placed in a position to ensure compliance is not putting
in place the relevant mechanisms to carry out the order;
or more particularly, if both parties agree on the need
to have the order vacated.
In the application
before the court, the parties never sought a dissolution
or even a vacation of the existing valid order; what the
application sought was a compliance therewith, so the
question of vacating some was not called for. The court
should have determined it on its merits. The fact that
the application entitled the court to exercise a
discretionary power did not mean it could make any order
which had no bearing on it or did not flow from the
application.
It clearly amounted to
setting up an entirely different case from what the
parties had put before the court. The court’s decision
cannot thus be supported.
A. A. BENIN
JUSTICE OF APPEAL COURT
TWUMASI, J.A.:
On the 4th February,
1997 an action was instituted at the High Court, Accra
by the Kaneshie/Cape Coast/Takoradi Co-operative
Transport Society Ltd, Accra against the Ghana Private
Road Transport Union of the T.U.C. Accra for a
declaration that certain buildings, furniture and
equipment and other assets at the Kaneshie Lorry Station
were the properties of another body called the Kaneshie
Drivers Association. The plaintiffs claimed that they
were licenses in possession of those properties.
In that capacity, they
prayed for an order of perpetual injunction against the
G.P.R.T.U, defendants in the action. The writ of
summons was duly served and a memorandum of appearance
was entered by the defendants. On the 6th February
1997, the plaintiffs fill motion for interim injunction
in which they prayed for an order to restrain the
defendants from interfering with the subject matter of
the action? The defendants were duly served with the
motion but before it could be heard the defendants
invaded the properties subject matter of the suit “vi et
armis” and prevented the plaintiffs from entering the
place. On the 18th November, 1997, the High Court found
the defendants guilty of contempt but deferred sentence
to enable the defendants purge their contempt by:
(a) sending back to
their original place all the items forcibly taken by the
defendants
(b) the Interim
Management Committee to permit vehicles of both the
plaintiffs and defendants to operate at the station in
accordance with G.P.R.T.U rules and regulations.
The record shows that
on the 11th December, 1997 the Court imposed a “sentence
of ¢100,000.00 fine on the crutemnors and made an order
of additional to the directives made on the 18th
November, 1997 that “both representatives of plaintiffs
and defendants be always permitted at the loading centre
to ensure that the loading on first come first service
basis is strictly complied with.” Barely a week after
the court had made this order the defendants filed yet
another motion on notice “for an order of interim
injunction restraining the plaintiffs herein from
operating/loading at the Kaneshie/Cape Coast/Takoradi
station of the GPRTU in total disregard of the order of
the Court dated 11th December, 1997. In an affidavit in
support, the defendants accused the plaintiffs of
various acts of vandalism including assault on the
defendants and their agents and servants and theft of
hard currency at their office at the station. The
defendants alleged that the plaintiffs had by their
conduct rendered the work of the Management Committee
ineffective and prayed that the court order the
defendants to comply with the order of the court made on
the 11th December 1997. In their affidavit in
opposition the plaintiffs also made counter-allegations
against the defendants and accused them in particular of
violating the order of the Court. They explained in
paragraph 8 of their affidavit:
“that in view of the
persistent total disregard of this honourable court’s
orders in this case and having regard to the serious
hardships the members of the plaintiff co-operative
society have had to endure in consequence for over six
(6) months a number of them decided to exercise their
legal right as members of a Co-operative Transport
Society to load the vehicles of their own members so
that they and their families would not starve and that
is all that they did and that in doing so they did not
violate any of the orders of this honourable court.”
When the defendants’
motion came on for hearing on the 22nd December, 1997,
Counsel for the plaintiffs was absent with an excuse and
the hearing was adjourned to the 13th January, 1998. On
the due date it was further adjourned to the 6th
February, 1998. In the supervening period, however, the
plaintiffs as though they were taking cue from the
defendants also filed a motion for interim injunction on
the 22nd January, 1998 to be taken on the 6th February,
1998. Their motion asked the court for an order to
restrain the defendants from flouting the order of the
court but it was not pursued before the 26th March,
1998 when the court delivered a ruling on the motion.
In his ruling the learned trial judge delivered himself
as follows:—
“I must say that this
application is just one of several brought by the two
parties ever since the instant motion commenced.
Hearing of the suit has commenced. In accordance with
the above and having listened to counsel for both sides
argue……….and especially considering the submission made
by Mr. Peter Ala Adjetey, learned Counsel for the
plaintiffs/respondents, I have decided to give a ruling
which I consider to be a compromise ruling to ensure
that the main suit is determined as expeditiously as
possible. I hereby order that the Chief Labour
Officer…… should supervise the operation of the premises
in dispute…….As I have stated this is an
interim/compromise ruling to ensure that no application
is brought by either side to delay the trial.”
It is against this
compromise/ruling that this appeal has been lodged
urging this court to reserve the said ruling and to
grant the motion for interim injunction filed by the
appellants.
After a very anxious
and exhaustive research I was not able to lay hands on
any case which fell on all fours with the instant case
but I succeeded in laying hands on a dictum of
Adumua-Bossman, J.S.C. (as he then was) in Dam vrs:
Addo 1962 2 GLR.200 at 203 where the learned judge said:
“The process of
consideration and weighing up of the evidence of the
respective cases of the parties by which the learned
judge arrived at the conclusion at which he did arrive,
would appear to have involved the substitution by him
proprio motu, of a case substantially different from and
inconsistent with the case put forward by the
respondents…….The acceptance in favour of a party of a
case different from and inconsistent with that which he
himself has put forward in and by his pleadings, has
been consistently held to be unjustifiable and
fundamentally wrong both by the English Superior Courts
and our local Superior Courts.”
It seems to me that
this statement of the law bears the closest affinity to
the instant case and indeed it is transferable. The
appellants never asked for a compromise/ruling or order
but the learned trial judge foisted one upon them. Such
an approach to the resolution of disputes between
parties can work injustice because it smacks of a
lottery as it is prone to shower victory on a silver
platter to a party over something he may not have asked
for or expected. Although the learned judge appears to
have been persuaded by the powerful submissions by Mr.
Peter Ala Adjetey, that does not render what was
fundamentally wrong to be right on principle.
Learned Counsel for the
respondents cited the case of Adjei vrs: Foriwaa 1981
GLR. 378 (holding 2) which reads.
“Whenever an
application was made to a court for an order granting an
equitable relief, the court was not restricted in any
way to the granting or refusal of the specific remedy
sought but might make any such order as conscience
dictated and the justice of the case demanded.”
In my view the
application of this principle must depend on the
particular facts of each case but certainly I do not
understand it to imply that the court can make an order
totally inconsistent with the relief sought. In Adjei
vrs: Foriwaa the specific relief was for an order to let
certain persons undertake to be of good behaviour while
they lived in a certain house and the trial judge
decided that it was better to remove them from the
house. This of course advanced justice because the
order was consistent with the relief sought by the
applicant. It is not so in the instant case. The order
which the trial judge made in the instant case
masqueraded as an order for manager/receiver totally
inconsistent with relief sought by the appellants. For
these reasons I would allow the appeal, set aside the
order of the court below but would remit the case to the
court below to hear the motion.
P. K. TWUMASI
JUSTICE OF THE APPEAL. |
