i. Introduction:

[1] T-Tekpor Energy Limited is a Company registered under the laws of Ghana and describes itself as being in the business of selling petroleum products including liquefied petroleum gas (LPG) with many outlets in the country. The suit which has triggered the instant application is in regards to the Company’s outlet located at Afariwaa Junction within the Ashaiman Municipal Assembly in the Greater Accra Region within Communities 21 and 22, Tema. The Company (Applicant) is in Court because the National Petroleum Authority (NPA) has by a letter dated November 7, 2018 suspended its operation at the said location on the grounds that the Company’s operations pose a risk to two schools located within the proximity of its activities and the residents of the area.

[2] The recent gas explosions in the country seem to have been the catalyst for the protests of citizens of the area which culminated in the letter referred to above and therefore there are some who might see in this case as an illustration of what in popular western culture is referred to as “NIMBYISM” (Not In My Backyardism) where residents oppose the proximity of construction, settlements or infrastructure etc. on the grounds of perceived potential harm to the community. It could also be seen as citizen mobilization and action to avert catastrophes that have happened elsewhere.

[3] Order 25 r 1 of CI 47 stipulates that the court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just. In deciding whether or not to grant an order of interlocutory injunction it has been held that the court would consider the justness and convenience of the order[1].

[4] Drawing inspiration from the provision of the law cited herein, learned Counsel for the Plaintiff/Applicant to whom I refer simply as the Applicant has filed in this court on November 27, 2018, an application praying for:

“… an order of this Honourable Court directing Respondent to lift suspension on operation of Gas Filling station and supply of gas products upon grounds set out in the accompanying affidavit”

ii. The case of Plaintiff/Applicant:

[5] Speaking to the motion, learned Counsel for the Applicant, Mr. Barfo-Bonney relied on all the averments as set out in the original accompanying affidavit filed on December 10, 2018 and the Supplementary Affidavit filed January 14, 2019 and submitted that the Applicant is relying on the inherent jurisdiction of the Court for the application and also on Order 25 of the High Court Civil Procedure Rules, 2004 C.I. 47.

[6] Learned Counsel submitted that what provoked the instant suit is a letter dated November 7, 2018 which is exhibited as Exhibit “TTE1” and in paragraph 2 which states “You will recall that several petitions were sent to the Ministry of Energy and the National Petroleum Authority (NPA) against the sitting and operations of your LPG refilling plant at the said location. The petitioners were concerned that the operations of the facility posed a significant risk to the two adjoining schools (Tema International School and Tema Ridge School) in view of the hazardous nature of LPG hence their request to the Authorities to suspend the operations of the LPG refiling plant”.

[7] Counsel rehashed the fact of the case and in particular paragraph 11 of the affidavit filed on December 10, 2018 in support application and part of Exhibit TTE1 by which the Respondent stated that “We wish to inform you that the National Petroleum Authority (NPA) in consultation with the Ministry of Energy has approved the recommendation of the Multi-Stakeholder Committee. Consequently, we regret to inform you that your authorization to operate the said refilling plant will not be renewed after 31^st December, 2018”. Counsel submitted that in a matter of this nature, one would have expected that an independent body should have studied the matter and then issue a report. In this case, Counsel submitted that the “so-called” report was not authored by an independent body but by a Multi-Stakeholder Committee which is not known to the statute that created the NPA. According to Counsel the letter is based on suspicion of those who complained to the Committee which was set up by the CEO.

[8] Counsel further submitted that the Respondent is a creature of statute and therefore its actions ought to be in consonance with the provisions of the Statute which created it. To that extent Counsel submitted that all the decisions ought to have been taken by the board and not the Chief Executive Officer (CEO) who wrote the letter which is Exhibit TTE1 but failed to copy the Board. According to learned Counsel the decision to suspend the Applicant’s operations was a unilateral decision of the CEO and not the Board.

[9] Counsel referred to Section 10 of the National Petroleum Act (NPA Act 2005, Act 691) and submitted that it gives details of the establishment of the board and there is no room for a “multi-stakeholder committee”. To that extent it is the case of the Applicant that the Committee whose report is the basis for Exhibit TT1 was illegal and therefore the decision has no basis in law.

[10] Mr. Barfo-Bonney further referred to the certificates issued to the Plaintiff/Applicant by such agencies as the Environmental Protection Agency (EPA), Exhibit TTE8 issued on October 25, 2013 and

expired on April 24, 2015 and Fire Service – Fire Certificate issued on 20^th May 2018 for a period of 12 months attached as Exhibit TTE3 and submitted that these exhibits together with others from the Ghana Standards Authority Certificate of Verification (Exhibit TTE5) contradict the Committee’s report based on which the termination was written.

[11] Further, it is the case of the Applicant that upon the expiration of the 2017 EPA license the Applicant applied for the 2018 permit but it was notified that by the “EPA to hold on until the hostility between the parties in this suit is amicably resolved”. Counsel referred to the attached Atomic Energy report and other exhibits and submitted that no reference was made about any significant risk and therefore the Respondent’s letter is not anchored on any expert advice of risk. Counsel submitted that in situations like this the decision should have been based on expert advice – especially as the Plaintiff has operated for over 13 years at the said location.

[12] According to Counsel the CEO cannot usurp the powers of the board. Counsel submitted that by Sections 17, 18 and 19 of the NPA Act, it is the Board that should have made the decision and not the CEO. According to Counsel the decision made did not comply with the procedure for revocation of license as laid down under the law, Act 691 and therefore illegal. Consequently, it is the case of the Applicant that the suspension should be lifted, and then an expert committee set up to study the situation.

[13] Based on all of the above facts, Counsel has submitted that the Applicant seeks “an order directed at the Respondent to lift the suspension, reinstate Applicant on its portal so that it can lift gas products to Afariwaa station until such time that this matter is fully determined by this Court”. Counsel referred to the attached Statement of Case and prayed the Court to grant the application.

iii. The Defendant/Respondent:

[14] In response, learned Counsel for the Respondent, Mr. Akoto Ampaw submitted that the Respondent relies on the 40 paragraph affidavit in opposition deposed to by Miss Esther Anku filed on January 4, 2019 together with the statement of case filed on the same day. Learned Counsel further submitted that the Respondent first objects to the process by which the Plaintiff/Applicant invoked the jurisdiction because according to Counsel based on the reliefs endorsed on the writ of summons what the Applicant is seeking is not known to the rules of Court.

[15] According to Learned Counsel there is nothing “interim” about what the Plaintiff seeks in the instant application. This is because according to Mr. Ampaw the application is not an “interlocutory application” because it is the same as the relief “b” endorsed on the writ of summons. Counsel for the Respondent further submitted that if anything at all the Plaintiff should have come by a “judicial review” because the Applicant is making “an ultra vires claim or excess of jurisdiction” on the part of the Chief Executive Officer (CEO) based on the materials filed. To that extent, it is case of the Respondent the Writ of Summons issued by the Applicant together with the instant application are not sustainable. Learned Counsel therefore prayed the Court to dismiss the suit.

[16] Alternatively, and on the merits Mr. Ampaw further submitted that the Applicant’s application is made in utter bad faith because the allegations are unfounded and misleading based on the materials filed and the exhibits attached. On the question of the legality of the “Multi-Task Committee”, learned Counsel referred to Section 2 (f) (g) (h) of the NPA Act and submitted that these provisions setting out the Authority gives it space to do what was done in the circumstances of the instant case. Learned Counsel referred to the composition of the Multi-Task Committee and submitted that in terms of qualified persons or bodies, no better body could have been set up.

[17] Mr. Akoto Ampaw further submitted that the stakeholders committee is an administrative body that the Respondent (NPA) uses for its operations. Counsel submitted that by Section 2(2) (2) (h), the “any other function” under the law is so broad and an omnibus clause such that it covers the setting up of the committee and the work it did and therefore according to Counsel the NPA had the legal backing for what it did and so there is nothing illegal about it.

[18] Mr. Akoto Ampaw further submitted that the NPA is vested with the requisite authority to act and therefore it does not require any expert body at all times in order to do its work or performs its functions. According to Learned Counsel to accede to the Applicant’s submission to appoint “experts” is to ask the NPA to go on a “wild goose chase” in the performance of its statutory functions. In this case Counsel referred to the affidavit evidence and submitted that the Committee made damning findings and so it would have been irresponsible on the part of the NPA not to act. According to Counsel had the NPA failed to act and thereafter a disaster happened, the authority would not have had any explanation for the people of Ghana and those to be affected.

[19] According to learned Counsel, it is important to reiterate that the license of the Applicant has not been revoked or suspended and therefore the Applicant as a corporate body continues to operate at other locations where it has permission to operate. To substantiate the submission that the Applicant’s license is not cancelled Counsel submitted that the Applicant has been advised by the Respondent that “it could go and fill out cylinders at a different location and then come and to distribute same at the present location” but it cannot fill out the cylinders at the present location because of the potential the operations pose to its neighbours, particularly the student population of over 800 in the adjoining schools. According to Mr. Akoto Ampaw the suggestion made to the Applicant by the Respondent is one of common sense with the sole purpose of protecting the school children should a disaster strike.

[20] According to the Defendant the report based on which the letter the Applicant attacks was authored and signed cites “human excesses and also technical defects and so the report is that in the event of technical deficiency or human errors, the risk of damage would be very high”. In this case it is the case of the Respondent that the NPA acted to protect the interest of the general public as against the private economic motive of the Applicant to make money for himself.

[21] Learned Counsel further submitted that the original license issued to the Applicant was for a petrol filling station and not for a gas filling station. To that extent Counsel submitted that the Plaintiff/Applicant has flouted the license issued to it. Counsel further submitted that “it should also be noted that there is no EPA license as of now because same has not been renewed”.

[22] Responding to the arguments of the Applicant and the submission that the Board should have acted instead of the CEO, Counsel submitted that the Board revokes corporate license which is not the case in this suit so the argument that the Board should have acted is misconceived. Further, referring to the Section 18 of the NPA Act, Act 691 Counsel submitted that it would be an absurdity to say that until the Board meets and acts, nothing can be done. Learned Counsel submitted that by the combined effect of Section 2 of the Act, it is the Authority (NPA) that acts and not the board. Based on all of the above Learned Counsel submitted that the Applicant’s case is devoid of merit and should be dismissed. Finally, learned Counsel concluded his submission by stating that “in the interest of faithfulness to the law and the lives of the school children and persons living in the community and the findings of the committee, the application should be refused”.

[23] In a quick rebuttal Counsel for the Applicant submitted that in response to the contention by the Respondent that issuing a writ of summons was wrong but rather a judicial review should have been filed, the Applicant relies on Articles 140 and 141 of the Constitution because they are in Court “for mixed claims” and therefore an application under Order 55 would not have suffice. Counsel therefore prayed the Court to order the Respondent to “lift the suspension on operation of the gas filing station, reinstate the Applicant on Respondent’s portal so that the Applicant can lift products to its Afariwaa Gas filling station till such time that the Respondent is able to demonstrate to the satisfaction of this Court that there are indeed some breaches of safety measures under Act 691”.

iv. The Court’s Opinion & Analysis:

The General and Inherent Jurisdiction of the Court:

[24] I note that the Applicant did not indicate on the application the grounds on which the application was premised, Counsel on his feet said it was based on the inherent jurisdiction of the Court and also Order 25 of C.I. 47. To my mind therefore, it is desirable to first deal with the subject of inherent jurisdiction of the court because it is gradually becoming a default option in the face of clear rules of procedure or principles of law to many practitioners. At common law, the High Court has jurisdiction to hear any matter brought before it unless a statute or some other rule of law limits that authority of the court to do so. Where a statute gives an exclusive jurisdiction to a court or tribunal to deal with a particular matter other than the High Court, the High Court is said not to be seized with the power to deal with the matter for want of jurisdiction.

[25] Put differently, a court is said to lack jurisdiction when the subject matter is wholly foreign to its express jurisdiction and is totally unconnected with its recognized jurisdiction. It is common knowledge that there are two (2) categories of jurisdiction in Ghanaian jurisprudence, the general and the inherent jurisdiction. The general jurisdiction of the High Court is conferred on it by the 1992 Constitution, Article 140 whereas the inherent jurisdiction is by its nature, imbedded in the power of the court to do justice.

[26] Jurisdiction of a Court to deal with a matter is so fundamental that it may be raised at any stage of the proceedings and even on appeal. It is material to point out that although the High Court may lack jurisdiction to deal with a particular matter or issue for reasons stated herein, it nevertheless has the residue of power known as “inherent jurisdiction” that it is prayed in aid by the court to preserve or protect the integrity of its proceedings. It is not defined or provided for in the rules of court but is customarily inherent or vested in the court to do justice in any given case. The Supreme Court in a recent undecided case titled REPUBLIC v HIGH COURT, GENERAL JURISDICTION, ACCRA EX PARTE MAGNA INTERNATIONAL TRANSPORT GHANA TELECOMMUNICATION COMPANY LIMITED Civil Motion No: J5/66A/2017 delivered on November 7, 2018 per Benin JSC stated that “it is well settled principle that every Court has an inherent jurisdiction...the inherent jurisdiction of the Court is derived from the Common Law which is part of the laws of Ghana by virtue of Article 11(1)(e) of the 1992 Constitution”. The apex relied on the writing of the renowned Canadian jurist and author Sir J.H. Jacob in his article the Inherent Jurisdiction of the Court[2].

[27] It is pertinent to note that in the Canadian case of, MONTREAL TRUST CO v CHURCHILL FOREST INDUSTRIES (MANITOBA) LTD [1971] 21 DLR 3rd ed) @ 75, [1971] 4 WWR 542 Sir Jack Jacob speaking for the Province of Manitoba Court of Appeal is credited with statement of the law when he attempted to define the inherent jurisdiction of the Court as follows:

“Inherent jurisdiction is the reserve or fund of powers, a residue source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”


[28] It is also to be noted that the inherent jurisdiction of the Court gives the Court the power to prevent the improper use of its machinery from being used as a means of vexatious and oppression in the process of litigation[3]. The category of cases in which the court may invoke its inherent jurisdiction is at large and cannot be closed, as each case depends upon its own facts. It should be noted, however that, the Court’s inherent powers cannot be exercised in direct contravention of clear provisions of a statute and/or the Constitution of the land. Where a rule of law which is also recognized as a rule of practice has the merit of doing justice and providing fairness to parties in litigation the Court should be prepared and willing to employ it to achieve justice rather than invoking its inherent jurisdiction. The inherent jurisdiction of the court is therefore invoked when it is

 called upon to guide its proceedings. For instance when there is the need to vacate its void orders, or to right the wrong that the court lacked jurisdiction to do originally.[4]

[29] In ACHEAMPONG v ASARE-MANU (1976) 1 GLR 287 @ 289 Osei-Hwere J (as he then was) stated the law that inherent jurisdiction is invoked by the court in areas where it is necessary to prevent wrong or injury being inflicted by its own judgment. He explained that this includes the power of the court to vacate its judgments obtained by mistake; of relieving judgments procured by fraud; and of undoing what it had no authority to do originally. See also: OMABOE v KWAME (1978) GLR 122 and the unreported case of this Court titled Charlotte Osei v. Maxwell Opoku Agyemang[5]. In my respectful opinion, in this case the Applicant did not provide any cogent explanation as to why it invoked the Court Inherent jurisdiction for an application it says is for an injunctive order in the face of Order 25 of C.I. 47. Be that as it may, I shall go ahead to determine the application as presented before the Court for my consideration.

[30] To begin with, a host of respectable authorities have settled the principle that an injunctive order is an equitable remedy and discretionary and the court shall only grant it when it is just and convenient to do so. Not only that, the order is also granted to protect a right where that legal right could be asserted either at law or in equity. In the exercise of that discretion the court is not bound to follow precedents as each case has to be determined on its own merits.

[31] In BAIDEN v. TANDOH [1991] 1 GLR 98, Kpegah J. (as he then was) opined that the Applicant has to establish a prima facie case that the right he was seeking to protect existed. Additionally, he should show that there has been a breach of the same and a threat of it continuing so as to cause him irreparable damage if the defendant was not restrained. The Applicant having passed that test the Court would then consider the issue of the balance of Convenience.

[32] In the case of 18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED [2012] 1 SCGLR 167 the Supreme Court delivered itself per his Lordship Anin-Yeboah JSC and opined after analyzing the earlier cases including VANDERPUYE v NARTEY (1977) GLR 428 @ 431 and ODONKOR v AMARTEI (1987-1988) GLR 578 as follows:

“We are of the opinion that the Court of Appeal did not propose to lay down any hard and fast rules or principles to regulate the determination of interlocutory injunctions. Even though it is discretionary, we are of the view that a trial court in determining interlocutory application must first consider whether the case of the applicant was not frivolous and had demonstrated that he had a legal or equitable right which a court should protect. Second, the court is also enjoined to ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter. The trial court ought to consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party”.

[33] To my mind, the apex Court has undoubtedly laid down a tripartite test for the Court’s consideration in interlocutory injunction applications. It is worthy of mention that in the classic case of AMERICAN CYNAMID CO. LTD V ETHICON LTD (1985) AC 396 which was adopted by the Ghana Court of Appeal and applied in the case of VANDERPUYE V NARTEY (1977) GLR 428 @ 431, The House of Lords through Lord Diplock expressed himself by asserting the traditional opinion that where the court was considering the application for interim injunction while the substantive suit was still pending for determination on its merits, it has no duty at that stage of the litigation to resolve conflicts of evidence on affidavits as to facts on which the competing claims of the parties may ultimately depend. The Ghana Court of Appeal in VANDERPUYE V NARTEY (1977) GLR 428 reiterated the above legal position. I wish therefore wish to abide by the above caution in making my decision in regards to the merits or otherwise of the instant application.

[34] Having said that, I wish to state that I have closely looked at the Statement of Claim and the affidavit evidence filed in this case and I have also reviewed the statement of Defence and the Statement of Cases filed by legal counsel in respect of the application and has also given due regard to all the able submission of Counsel. I am in agreement with Mr. Akoto Ampaw that a closer look at what the Applicant seeks is the same as its relief (b) as endorsed on the writ of summons. It is however to be noted that a Court’s jurisdiction to grant an injunction is not fettered because granting same would be granting the main relief in a suit if there is a legal basis to grant same. In this case I note that in the main, the Applicant is seeking declaratory reliefs and since it is trite learning that declaratory reliefs cannot be made without evidence, I have decided not to deal with the legal issues raised by the Respondent including whether or not the Court’s jurisdiction ought to have been invoked by a judicial review or by writ of summons in this application.

[35] Based on the law I am of the respectful view, having regard to the pleadings filed and the arguments advanced anchored on the affidavit evidence before the court, that this case raises fundamental issues for determination. First, the Court ought to make a determination as to whether or not the process adopted by the Plaintiff is proper or not. The supplemental issue then would be the legal validity of the Plaintiff’s claim before the Court and whether or not it is sustainable.

[36] Second, there is the issue as to whether or not the Respondent has breached the tenets of the statute that created it and acted ultra vires its powers etc. That determination of these matters in my respectful opinion cannot be resolved based on the documents filed by the parties in the instant application.

[37] Now, in considering the Applicant’s prayer I wish to state that the basic consideration for the grant of interlocutory injunction are two-fold. First and foremost the Applicant ought to establish that it has a right in law or at equity to protect and that its action is neither frivolous nor vexatious. The second consideration is the balance of convenience where the Applicant has to prove that it will suffer hardship or inconvenience if the application was not granted. In this case I hold the view that by being a license holder the Applicant has a right at law worthy of protection if indeed the statute that guides the operations of the Defendant is flouted. At this preliminary stage as well I hold the respectful view that the suit is not frivolous or vexatious.

[38] The law now appears settled that where the court is of the view that the case of the Applicant for injunction is not frivolous or vexatious the application has to be considered on the balance of convenience. In assessing the balance of convenience, it is imperative for the court to take into account all the relevant factors as well as the strength of the respective cases of the parties based on the evidence put before the Court. In the words of venerable Lord Denning:

“In considering whether to grant an interlocutory injunction the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also the strength of the defence and then decide what is best to be done.” (Emphasis highlighted). See: HUBBARD v VOSPER (1972) 2 WLR 389 at p 396.

[39] In this case, on the issue of balance of convenience, I am of the view that no evidence was proffered by the Applicant to the Court. I note that the Respondent’s contention that the Applicant’s license has not been revoked stands unchallenged so also is the fact that the Applicant failed to contest the Respondent’s claim that the Respondent has been advised that it could go and fill out the cylinders at different location and then come to distribute same at the present location.

[40] On the other hand, the Respondent’s case is that the operations of the Applicant’s LPG refilling plant posed a significant risk to the two adjoining schools, being Tema International School and Tema Ridge School in view of the hazardous nature of the LPG. The Respondent also contends that they acted based on the report of the Multi-Task Committee to protect the general public from the danger of any possible explosion. I also note that the Applicant does not dispute the fact that as of now it does not have a renewed EPA license to operate. That is a very persuading fact because I am of the view that this Court cannot at this stage without any further evidence compel the EPA to renew the license to enable the Applicant to operate.

[41] In my respectful opinion whilst the Applicant as a license holder may have a legitimate complaint, it failed to demonstrate on the balance of convenience the hardship to be suffered by it which cannot be adequately compensated for should it be successful after the trial should the application be refused. Accordingly, with the Applicant failing to prove that it would suffer hardship and inconvenience if the application was refused and the Respondent rather demonstrating that it has a duty to protect the general public including the citizens of the area where the Applicant operates and so shall suffer irreparable damage if it was restrained from performing its statutory duties specified under Act 691, the application ought to be refused.

[42] The law is settled that when a body is created by statute and it is given a statutory duty to perform the court should be careful not to use interlocutory interim injunction to prevent it from performing its statutory function except where the body has improperly exercises its statutory discretion. The above position was reaffirmed by the Supreme Court in the case of REPUBLIC v.

HIGH COURT (FAST TRACK DIVISION ACCRA); EX PARTE NATIONAL LOTTERY AUTHORITY (GHANA LOTTERY OPERATORS ASSOCIATION & OTHERS INTERESTED PARTIES) [2009] SCGLR 390. The Court at page 400 speaking through Atuguba JSC (as he then was) held as follows:

"It is not surprising therefore that it has been held by this court that when a body is entrusted with statutory discretion, the courts should be careful not to clog its exercise with injunctions. See Attorney General vs. Commission on Human Rights and Administrative Justice [1999-2000]

1 GLR 358, SC. This however, does not mean that an interim injunction cannot lie against the improper use of statutory discretion. See Amoah vs. West African Examination council [1971] 1 GLR 63"

[43] Based on all of the above and having regard to the competing claims of the parties and given the facts and the background of the case and on the balance of convenience, and basing myself on the rule as stated by the Supreme Court per Kpegah JSC in EKWAM v PIANIM SUPRA, having regards to the totality of the evidence so far filed in this case, I hold that based on the law on the grant or refusal of injunction as stated above that it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 or even if the Court was to invoke the inherent jurisdiction of the Court to consider this instant application. In the light of the foregoing reasons above, the application for an order “lifting suspension on operation of Gas Filling Station and Supply of Gas Products” is REFUSED.

[44] Though cost follows the event Counsel for the Defendant/Respondent informed the Court that cost should not be awarded against the Plaintiff. There shall therefore be no order as to cost.