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JUDGMENT
GBADEGBE, J.A.
My Lords, we are in this appeal,
which arises from the refusal by
the Circuit Court, Mpraeso, to
accede to an application for the
grant of an interlocutory
injunction at the behest of the
appellant (to whom I shall for
convenience in these proceedings
refer as the plaintiff and to
the respondent similarly refer
as the defendant) concerned with
the question whether the
exercise of the discretion by
the court below was right? I now
pause to say that in determining
this appeal this court is not to
substitute its own discretion
for that of the court below but
on the contrary, examine the
exercise of the discretion in
the light of the materials
placed before him with a view to
discerning if he came to a
reasonable decision on the
application whose refusal has
resulted in these proceedings.
He must in this regard direct
himself properly in law by
directing his attention to all
relevant matters and excluding
from his attention those which
are irrelevant to the
determination before him. The
circumstances in which the
proceedings before us arise have
been stated by the learned trial
judge in great detail and I
think that what remains to be
done is for us to carefully
examine the exercise of his
discretion in refusing the
application, a refusal that has
provoked the instant
proceedings.
I have examined the record
before us and I am of the
considered view that having
regard to the nature of the
controversy before the court
below the refusal to grant the
interlocutory injunction was
wrong. I am of the opinion that
having rightly stated the
principles which must in such
cases guide the court the
learned trial judge misapplied
the law as declared by him to
the facts of the case. What this
means is that on the materials
placed before him in the
application which was tried by
resort to affidavit evidence the
learned trial judge came to a
view of the matter which upon a
proper and reasonable
consideration ought not to have
led to its dismissal. In this
wise, I wish to refer to pages
45 to 47 of the record of
proceedings before us at which
the learned trial judge
expounded the applicable law in
a manner which I accept as
correct by reference to decided
cases on the matter. In
particular, I refer to his
reference to the case of
American Cyanamid v. Ethicon
Ltd. (1975) A.C 398 and the
quotation of some passages from
the said judgment in the course
of his ruling as follows:
"…….the governing principle is
that the court should first
consider whether if the
plaintiff were to succeed at the
trial in establishing his right
to a permanent injunction he
would be adequately compensated
by an award of damages for the
loss he would have sustained as
a result of the defendant’s
continuing to do what was sought
to be enjoined between the time
of the application and the time
of the trial."
In my thinking the above
exposition coming as it were
after he had referred to the
relevant case law regarding the
requirement that the applicant
must show that the action before
the court in respect of which
the application was brought was
not rooted in vexation and or
frivolity, the learned trial
judge cannot be in any way be
faulted on his exposition of the
law but when one goes further to
consider after he had asked
himself the right questions at
page 48 regarding the
consideration of whether on the
facts of the case either party
was likely to suffer irreparable
injury, that is injury of a
nature not remediable by the
grant of an award in damages in
the event of a refusal of the
application, there is a clear
indication at page 49 of the
record that he delivered himself
erroneously when he said as
follows:
"In my opinion considering the
pleadings and the affidavits
filed by the parties, I am view
that the defendant is likely to
suffer irreparable damage if the
application is granted and he
eventually succeeds at the
trial. For example, the cost of
building materials would be
higher, considering the nature
of the inflation spiral in the
country.
On the other hand the plaintiff
would have nothing to lose if at
the end of the case judgment is
given in his favour. This is
because in assessing damages the
Court will take into
consideration the fact that
throughout the period of the
trial he has been deprived of
the use of the land by the
defendant. Also the court can
order the defendant to demolish
to the ground level whatever
structure the defendant would
have built on the land."
In view the learned trial
judge's decision on the nature
of damages to be occasioned to
the plaintiff was wrong in that
at the state of the proceedings
before him when he was required
to rule on the conflicting
rights of the parties to the
action none of the rights
asserted had been clearly
established which meant that
there was a credible dispute as
to those rights and accordingly
he ought to have prevented
either party from proceeding to
exercise as against the other
any of those disputed rights
particularly as was the case
regarding the act of the
defendant it was such as was
reasonably likely to change the
character of the disputed land.
I think that on the facts the
learned trial judge came to an
unreasonable view of the matter
by not granting the application
for an interlocutory injunction
as sought by the plaintiff
against the defendant subject to
the plaintiff giving an
undertaking in respect of
damages which might be sustained
by the defendant in the event of
the plaintiff not succeeding at
the end of the trial, the
damages in this regard being the
difference in the building cost
as a result of the order of
injunction. It is clear from the
processes placed before the
court below in respect of the
application that the plaintiff
was possessed of the land for a
considerable time either in fact
or constructively before the
defendants entry on same and as
such in my opinion the ocurt
ought not to have enabled the
defendant to continue with his
act in respect of which the
action was commenced until a
final determination of the rival
claims to the disputed land. I
think that taking into account
all the circumstances the order
as substituted in this delivery
is one which does no injustice
to any of the parties; for
beyond treating them equally by
not giving undue advantage to
either of them it preserves to
them the right to deal
subsequently with the land in a
manner which he thinks fit after
their respective rights have
been finally determined by the
court.
I wish to observe that very
often our court in considering
applications for interlocutory
injunctions do not appear to
advert their minds to the
requirement in Order 50 rule
7(2) that such orders "may be
made either conditionally or on
such terms or conditions as the
court thinks just". I am of the
opinion that this aspect of the
exercise of the court's
jurisdiction in the grant of
interlocutory injunctions is
quite important; for it enables
the court to take into account
matters such as in the case
before us the need to balance
the respective conflicting
rights in a manner which accords
with the requirements of “good
conscience" and "good faith",
the principles which guided the
Courts of Chancery of old in
developing a system of law that
is now commonly known as
"equity" by the imposition of a
term or condition regarding the
order which has been appealed to
us by way of an undertaking by
the defendant whose objection to
the grant was upheld for
instance that when he loses the
action he would quietly yield up
possession of the disputed land
in favour of the plaintiff. This
way in my thinking the court
would have been exercising its
jurisdiction with a view to
doing real justice in a manner
that led to the development of
the equitable jurisdiction which
today in our jurisdiction is
part of the common law. Clearly
the making of the order appealed
without due regard to the
imposition of reasonable terms
or conditions having regard to
the to the conflicting rights
of the parties in the matter
also provides a legitimate
ground for impeaching the
order.
Therefore, in my judgment I
proceed to allow the appeal
herein and in place of the order
of dismissal of the application
for the grant of an
interlocutory injunction made an
order directed at the defendant
by himself, workmen agents and
assigns restraining them from
carrying out construction works
on the land in dispute pending
the final determination of the
action herein in the court
below. This order is to last
until further or other order.
(SGD)
GBADEGBE
JUSTICE OF APPEAL
TWENEBOA-KODUA, J.A.
I agree.
…………………………
JUSTICE OF APPEAL
ADDO: J.A.
I also agree.
……………………………
JUSTICE OF APPEAL
COUNSEL
E.A. ANSAH FOR APPELLANT.
KOFI ASIAMAH SAMPONG FOR
HIMSELF. |
