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Practice and Procedure - Interim
injunction - Principles
governing grant - Delay fatal to
application - Duty of court to
protect status quo ante.
On 3 May 1984 the plaintiffs
commenced an action in the High
Court as the trustees of the
Ghana Muslim Mission against the
defendant, then a member of the
Ghana Muslim Mission and
headmaster and manager of Ghana
Muslim Primary School, Ghana
Muslim Middle School and Ghana
Muslim Secondary School. The
plaintiffs claimed, inter
alia, for a declaration of
title to specific properties and
assets including the schools and
the King Khalid mosque which
stood on plots allegedly
purchased by the mission and an
order for account for moneys
received by the defendant. The
plaintiffs contended that the
defendant was appointed as a
headmaster to manage the schools
on their behalf and that the
moneys for the construction of
the mosque were provided by the
mission from funds realised from
a convention held by the mission
in 1979 and therefore were
entitled as owners to possession
of the assets and properties in
the care and management of the
defendant. The defendant on the
other hand claimed the
properties as his self-acquired
properties and maintained that
he put up the mosque from funds
he realised from an appeal for
funds launched by him and also
from his own resources.
Hearing of the action commenced
in February 1987 and the
plaintiffs closed their case on
3 June 1990 after calling 23
witnesses. In the course of the
hearing, while the plaintiffs
claimed they had dismissed the
defendant from the mission, the
defendant contended that he
broke away to form a new
association, namely the Ghana
Islamic Mission. The defendant
then placed the use of the
properties in dispute at the
disposal of his association and
its members. One month after
closing their case, on 3 July
1990, the plaintiffs filed an
application for interim
injunction to restrain the
defendant and his agents from
interfering with or continuing
to manage or administer the
schools as well as the mosque
and from the use of the
properties in dispute for the
Ghana Islamic Mission. The
plaintiffs also prayed for an
order for the appointment of a
receiver and manager to manage
the schools and the mosque
pending the determination of the
suit. The basis of the
plaintiffs’ application was that
the defendant was unduly
delaying the hearing of the suit
and was exploiting the
advantageous position in which
he was placed to the detriment
of the plaintiffs.
The High Court granted the order
of interim injunction and
appointment of a receiver and
manager. Dissatisfied, the
defendant appealed on the
grounds that the court erred in
applying wrong principles and
that the plaintiff-applicants
failed to explain the
unreasonably long delay in
applying for the order of
interim injunction.
Held,
Lamptey JA, dissenting:
(1) Delay was a good ground for
a court to refuse to grant an
application for interim
injunction and on the facts the
trial judge ought not to have
granted the application. It was
the delay in the pending case
and perhaps tension generated by
the continued presence of both
parties in the premises that
necessitated the application.
Whatever it was the blame did
not lie at the doorstep of
either party. Vanderpuye v
Nartey [1977] 1 GLR 428
distinguished.
(2) The facts disclosed by the
affidavits of the parties did
not show that the defendant had
been misappropriating school
fees, was unable to pay his
teachers or that standards in
education were falling in the
schools. No order for accounts
generally was being sought. The
defendant was not paid by the
mission and was not accountable
to the plaintiffs in the
day-to-day running of the
schools. The interest of the
students ought to be protected
as changes in the teaching staff
and management personnel were
not likely to enhance the smooth
running of the school and might
cause damage to the moral fibre
of the students. Moreover the
mission had led the defendant
into believing that he could
continue to manage the schools
while the case dragged on and so
the plaintiffs could not turn
round at that stage to deny him
that right. The appeal would
therefore be allowed.
Cases referred to:
Barnieh
II v Mensah [1984-86] 2
GLR 20, CA.
Yendi Skin Affairs, In re,
Yakubu v Abudulai
[1984-86] 2 GLR 231, SC.
Joseph v Jebeile
[1963] 1 GLR 387, CA.
Odonkor v Amartei
[1987-88] 1 GLR 578, SC.
Vanderpuye
v Nartey [1977] 1 GLR
428.
APPEAL against the decision of
the High Court, Kumasi granting
order of interim injunction.
Nana Akufo-Addo
for the appellant.
T Totoe
for the respondents.
AMUAH JA.
This is an appeal from a ruling
of Owusu J granting the
plaintiffs’ application for an
order for interim injunction
pending the full determination
of the case between the parties.
An application for an order for
the appointment of a receiver
and manager was also granted
because the learned trial judge
found that there was need for
it.
The facts leading to this appeal
are briefly set out as follows:
According to the
plaintiffs-respondents
(hereinafter called “the
mission”) they acquired (a) Plot
Block P Suame, Kumasi and (b)
Plot Open-Space Suame Extension,
Kumasi from the Atutue stool and
the Ghana Government
respectively and built houses on
them which are now being used as
schools. The funds for the
erection of the mosque were
donated during a convention
organised by the mission in
1979. They further claimed that
the defendant-appellant,
hereinafter called the “the
defendant”, was appointed by the
mission as a headmaster of the
schools to manage them and that
the mission is entitled to
possession.
On the other hand the defendant
described himself not as an
agent of the mission but as
proprietor and owner of the said
properties. He also claimed that
he built the mosque from funds
he realised on launching an
appeal and also from his own
resources.
These conflicting claims went
before the learned trial judge
for adjudication. The learned
trial judge settled the issues
for trial in September 1984.
Hearing did not start until
February 1987 and it took the
plaintiffs more than four years
to close their case on 3 June
1990 having called about
twenty-three witnesses. The
defendant was yet to open his
case. At this stage the mission
brought a motion “for an order
for an interim injunction
restraining the defendant, his
agents, servants and/or privies
from interfering with or in any
way continuing to manage,
administer or otherwise oversee
the affairs of the Ghana Muslim
School (Primary and Middle), the
Islamic Secondary School as well
as the King Khalid mosque, all
in Kumasi and being properties
of the Ghana Muslim Mission and
part of the properties in
dispute in the instant action;
and from the use of the said
King Khalid mosque and, or any
part of the Ghana Muslim School
(Primary and Middle) and the
Islamic Secondary School
aforesaid for the purpose of, or
in furtherance of his personal
activities and operations and,
or for the work or operation of
the Ghana Islamic Mission or
organisation which the defendant
herein had established following
his expulsion from the Ghana
Muslim Mission, to the prejudice
and detriment of the
plaintiffs-applicants herein and
the Ghana Muslim Mission; and
for the appointment of an
independent administrator and
receiver to administer and
oversee the work and affairs of
the Ghana Muslim School (Primary
and Middle), the Islamic
Secondary, and the King Khalid
Mosque pending the final hearing
and determination of the suit
upon grounds set out in his
accompanying affidavit”.
Paragraphs 24 and 25 of the
accompanying affidavit set out
the main grounds for filing the
motion on 3 July 1991. They are:
“Ground 20:
The plaintiffs maintain that the
defendant has been conducting
himself in such a way and manner
as tends to delay the due and
early hearing of the case.
Ground 21:
That the plaintiffs further
contend that the defendant’s
obvious dilatory and dirty
conduct is the result of the
fact that he is currently placed
in unfair advantageous position
to exploit and benefit directly
from the properties now in
dispute to the detriment and
annoyance of the plaintiffs
herein the Ghana Muslim Mission
and the entire membership of the
Mission.”
The defendant in his affidavit
in opposition denied that he had
conducted himself as alleged and
further contended that “if the
applicants are minded of the
welfare and well-being of the
schools and the mosque they
would not take such steps”.
The learned trial judge after
listening to arguments and
referring to authorities,
granted the application for an
order of injunction restraining
the defendant “from interfering
with or in any way continuing to
manage, administer or otherwise
oversee the affairs” of the
three said properties, the
subject-matter of the
application. The defendant was
also restrained “from using the
said properties for the purpose
of or in furtherance of his
personal activities and
operations and for the work or
operation of the Ghana Islamic
Mission except that the members
are permitted to worship in the
said mosque”. The application
for an order appointing an
independent administrator and
manager or body of
administrators and managers was
also granted.
It is against this decision or
ruling that the defendant has
appealed since, in his view, the
learned trial judge applied the
wrong principles in
consideration of the application
before her. It will be observed
from the judgment of the learned
trial judge that she relied
heavily on the principles set
out in the celebrated case of
Vanderpuye v Nartey [1977] 1
GLR 428. In Vanderpuye v
Nartey the ground which
necessitated the application was
that the property was being
wasted. In this instant case it
is delay and perhaps tension
generated by the continued
presence of both parties on the
premises. Whatever it is, the
learned trial judge cannot lay
the blame for the delay “at the
doorstep” of either of the
parties and in a case where one
side has called about 23
witnesses, she cannot say that
the other side is not entitled
to call just as many. Amendments
are made in the course of the
trial and if they are irrelevant
and causing unnecessary delay,
it is for the court to refuse to
grant them. This has not been
the turn of events in this
instant case.
The tension which is alleged to
have taken form over the years
did not erupt suddenly, and if
it existed in 1985, at the time
when the defendant either broke
away or was expelled, the
mission could not have found it
difficult then to move the court
for this interim order now being
sought.
She concluded as follows:
“The scale of justice leans
more in favour of the
application being granted.”
Here I do not agree with her.
The facts disclosed by the
affidavit do not show that the
defendant has been
misappropriating school fees, is
unable to pay his teachers or
that standards in education are
falling in the schools. No order
for accounts generally is being
sought. The defendant is being
called upon to account for
specific amounts which the
mission alleges came into his
hands. The defendant is not paid
by the mission and is not
accountable to them in the day
to day running of the schools.
Moreover the interest of the
students must be protected;
changes in the teaching staff
and management personnel are not
likely to enhance the smooth
running of the school and may
cause damage to the moral fibre
of the students. If the learned
trial judge had adverted her
mind to these matters she would
have found that the mission have
not advanced any good reason why
the application should be
granted; it is a maxim of equity
that “delay defeats equities”.
The mission having lulled the
defendant into believing that he
could continue to manage the
schools while the case drags on
they cannot turn round at this
stage to deny him that right.
Delay is a good ground for a
court to refuse to grant an
application for interim
injunction. In Snells’
Principles of Equity 23rd
edition at page 17, this passage
appears:
“In the words of Lord Camden the
Court of Equity has ‘always
refused its aid in stale demand,
where a party has slept over his
right and acquiesced for a great
length of time. Nothing can call
forth this Court into activity
but conscience, good faith and
reasonable diligence, where
these are wanting, the Court is
passive, and does nothing’ ...”
In all these cases the court
must look at the case for the
plaintiff as well as the case
for the defendant and decide on
which best course to take. The
grant of interlocutory
injunction, since it is an
equitable remedy, is so useful
and should not be fettered by
rules. I agree with the
defendant when he says that the
application was made in bad
faith and that the learned trial
judge applied wrong principles
in arriving at the decision.
It is for these reasons that I
strongly hold the view that the
appeal should be allowed.
FORSTER JA.
I agree that the appeal should
be allowed.
LAMPTEY JA.
On 3 May 1984 Ishaqa Martey and
others in their capacity as
“trustees” of the Ghana Muslim
Mission, Accra issued a writ of
summons accompanied by a
statement of claim against
Sheikh Adam Appeadu. The reliefs
claimed by the trustees included
a declaration of title to
specific properties and an order
for account for moneys received
by Appeadu. The claims of the
trustees were resisted by
Appeadu. By 5 June 1990 the
trustees had closed their case
after having called 23
witnesses. At the commencement
of the action Appeadu was a
member of the Ghana Muslim
Mission. He was also the General
Manager of the schools being run
by that mission. He was also
effectively in charge of the
real properties of that mission.
During the pendency of the
dispute, the trustees claimed to
have dismissed Appeadu from his
appointment and relieved him of
all the powers he exercised over
the properties and assets of the
Ghana Muslim Mission. Appeadu
did not accept the statement
that he had been dismissed; his
case was that, he broke away
from the Ghana Muslim Mission.
Appeadu then founded and formed
a new society which he called
Ghana Islamic Mission. He,
without the consent and
permission of the Ghana Muslim
Mission, placed the use of the
real properties in dispute at
the disposal of the Ghana
Islamic Mission. This new turn
of events provoked the
application by the trustees to
the court below for an order of
interim injunction to restrain
Appeadu, his agents and servants
and in particular the members of
the Ghana Islamic Mission, from
the use of the properties in
dispute. That this was the case,
was stated by the trustees in
paragraphs 17, 18, 19, 20 and 21
of the affidavit in support of
the application. In reply to and
in opposition to the averments
stated above, Appeadu deposed in
paragraph 10 of his affidavit as
follows:
“10. That I deny paragraphs 17,
18, 20, 21, 22, 23, 24, 25, 26
and insist that I am the
proprietor and owner of the
properties in dispute.”
The learned trial judge heard
the application on the merits
and in her ruling granted the
application of the trustees. She
accordingly restrained Appeadu
as prayed for. Appeadu was
aggrieved by the ruling of the
learned trial judge and appealed
to this court.
Before us learned counsel for
appellant argued one ground of
appeal namely:
“(a) The learned judge had
applied the wrong principles in
her consideration of the
application before her.”
He submitted that the learned
judge erred in law when she
granted the application. He
stated that the application had
not been brought timeously by
the trustees. He stated that the
application was brought six
years after the writ of summons
was sealed. He argued that in
such a case the trustees must
give a satisfactory explanation
for the unreasonably long delay
on their part in applying for
the order of interim injunction
at the time they did. He pointed
out that the trustees gave no
explanation to the court below.
In reply, learned counsel for
the trustees stated that the
reasons for making the
application at the time it was
brought were deposed to in the
affidavit in support of the
application. He contended that
the application was brought when
Appeadu “broke away” and formed
a rival Ghana Islamic Mission,
and placed the properties in
dispute at the disposal of
members of the rival mission.
Before the lower court, Appeadu
admitted that he broke company
with the Ghana Muslim Mission
and ceased to be a member during
the course of the trial. He
admitted further that he,
Appeadu, founded and formed the
Ghana Islamic Mission after he
broke away from the Ghana Muslim
Mission. Finally, he Appeadu
admitted that he had
unilaterally authorised and
permitted members of the Ghana
Islamic Mission to use and enjoy
the properties in dispute. In my
opinion the above matters gave a
new dimension to the dispute
which was being tried before the
lower court. The conduct of
Appeadu, as was shown by his
admission recited above,
undoubtedly disturbed the
status quo ante that existed
at the date the writ of summons
issued. In these circumstances a
court minded to do justice must
preserve and protect the
status quo ante, namely, by
making an order which would as
far as possible restore the
parties to the position they
each occupied at the time the
writ of summons was issued. This
was exactly what the learned
judge did when she made the
order and granted the prayer of
the trustees. In coming to her
conclusion I do not find that
she breached any principle of
equity. In the special
circumstances of the instant
case, time for the trustees to
act must be reckoned not from
the date the writ issued but
rather, from the date Appeadu
permitted the members of the
Ghana Islamic Mission to use and
enjoy properties in dispute
which conduct substantially
changed and prejudiced the
position of the members of the
Ghana Muslim Mission.
The other matter that was urged
by learned counsel for the
appellant was that the learned
judge was wrong when she held
that the appellant would not
suffer hardship and therefore
granted the application. He
submitted that since appellant
was in possession of the
properties in dispute his
possession should have been
protected by the lower court.
This principle of law was
restated by the Supreme Court in
Odonkor v Amartei
[1987-88] 1 GLR 578 at holding
(2) as follows:
“2. A person in possession of
land could be restrained by
injunction from using the land
contrary to agreement, or from
committing waste or from doing
any act which might prejudice
the outcome of an action pending
against him.”
The Supreme Court cited the case
of In re Yendi Skin Affairs,
Yakubu II v Abudulai II
[1984-86] 2 GLR 231. In the
Odonkor case, supra,
the Supreme Court held further
that “the basic purpose of
interim orders was as much as
possible, to hold the balance
evenly between the parties
pending a final resolution of
the matters in difference
between them and also to ensure
that at the end of the day the
successful party did not find
that his victory was an empty
one, or that brought him more
problems than blessings”.
I agree with the statement of
the law by learned counsel for
Appeadu that the court must
protect the party in possession.
In the instant case, the facts
were not as simple as stated by
learned counsel for Appeadu. The
facts were that at the date the
writ of summons issued there was
only the Ghana Muslim Mission in
existence. The members enjoyed
the exclusive use of the
properties in dispute. There was
not in existence the Ghana
Islamic Mission. This other and
later mission was the
brain-child of Appeadu. The
right of the members of the
Ghana Islamic Mission to use and
enjoy the properties in dispute
during the hearing of the
substantive action provoked the
bringing of the application. It
would be seen that the members
of the Ghana Islamic Mission, an
association which was not in
existence at the date the writ
issued and the members of which
were not parties to the suit,
could not complain of any
hardship they would suffer by
the grant of the application.
Before the lower court it was
not shown by the affidavit the
nature and specie of hardship
he, Appeadu, would suffer if the
application was granted. Before
us no evidence was pointed out
which sought to show the
hardship that the making of the
order caused or continued to
cause Appeadu as a party.
As already pointed out Appeadu
claimed and exercised the right
and power to permit third
parties to use and enjoy the
properties in dispute when the
issue of ownership was yet to be
determined. In the view of the
judge, Appeadu who had broken
away from membership of the
present Ghana Muslim Mission and
founded another and a rival
mission must, in the interim, be
restrained from exercising any
right and power over the
disputed properties which right
and power he did not enjoy when
the writ issued. It had not been
shown that she applied wrong
principles of law in coming to
the above conclusion.
The principle to guide a court
when faced with such a situation
were stated by the Supreme Court
in the case of In re Yendi
Skin Affairs, Yakubu II v
Abudulai II [1984-86]
2 GLR 231 at p 232. The court
held:
“(1) The courts had consistently
operated on the principle that
where two parties were
litigating, every care must be
taken to ensure that the party
who eventually won did not find
his judgment useless in his
hands ... At the same time the
courts have tried to hold the
balance evenly between the
parties so that one did not take
undue advantage of the other
during the course of the
litigation....Where, however, an
appeal had to delay, from one
cause or another, either party
was entitled, by applying to the
court, to seek such interim
remedies as would protect his
interests, if he should
eventually win the appeal.”
It is clear from the statement
of the principle that the test
to apply in each case is whether
or not a successful litigant
would find his victory rendered
nugatory if the application was
refused. This is the test which
was laid down in the celebrated
case of Joseph v Jebeile
[1963] 1 GLR 387. The principle
was applied by the Court of
Appeal in the case Barnieh II
v Mensah [1984-86] 2 GLR 20.
In the instant case the issue
was which of the litigants would
suffer greater hardship. The
learned judge decided that the
trustees would suffer greater
hardship than Appeadu. I find
she exercised her discretion
judicially, I cannot disturb her
conclusion.
I find that the ruling of the
judge is sound in law. I find
that the appeal fails. I
accordingly dismiss it.
Appeal allowed.
Kizito Beyuo, Legal
Practitioner. |
