• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
  ACCRA - A.D 2018
  

INDEPTH NETWORK - (Plaintiff/Applicant/Respondent)

vs.

DANIEL KOFI BAKU & NINE OTHERS - (Defendants/Respondents/ Applicants)

MOTION FOR INTERLOCUTORY INJUNCTION

---

 

i. Introduction:

 

[1] There are two (2) Applications for Injunction before this court namely: a) the first application was filed by the Plaintiff on May 24, 2018 and; b) the 2nd application was filed by Counsel for the 1st to 7th Defendants on July 13, 2018. Due to time and space constraints, and also for convenience, I discuss and determine both applications in this Ruling.

 

 

 

[2] 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].

 

 

 

[3] Informed by the provision of the law cited herein, learned Counsel for the Plaintiff/Applicant whom I refer to simply as the Plaintiff by the application filed is praying for:

 

“a) An order for interlocutory injunction restraining forthwith the 1st, 2nd, 3rd, 4th, 5th, 6th, and 7th Respondents from holding themselves out as subscribing members and executive council members of the Applicant Company;

 

b) An order for interlocutory injunction restraining forthwith the 1st Respondent from holding himself out as Company Secretary of the Applicant Company;

 

c) An order for mandatory interlocutory injunction compelling the 8th and 9th Respondents to allow the Applicant Company to have access to its accounts;

 

d) An order for interlocutory injunction restraining forthwith the 10th Respondent from interfering with or altering the records of the Plaintiff Company without the knowledge consent and authorization of the foundational members and directors as the case may require per regulations of the Companies Act”.

 

 

 

[4] The instant application was filed together with the Writ of Summons sealed at the registry of this Court by the Plaintiff seeking the following judicial reliefs

 

i) A declaration that the 1^st Defendant is not the Company Secretary of the Plaintiff Company;

 

ii) A declaration that the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants are neither subscribers nor executive council members of the Plaintiff Company;

 

iii) An order of perpetual injunction restraining the 1^st Defendant from holding himself out as Company Secretary of the Plaintiff Company;

 

iv) An order of perpetual injunction restraining the 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants from holding themselves out as subscribing members and executive council members of the Plaintiff Company;

 

v) An order directed at the 10th Defendant from interfering with or altering the records of the Plaintiff Company without the knowledge consent and authorization of the foundational members and directors as the case may require per the regulations of the Companies Act;

 

vi) An order compelling the 8th and 9th Defendants to allow the Plaintiff Company to have access to its accounts;

 

vii) Damages awarded against the 8th and 9th Defendants for breach of contract

 

viii) Costs, including Solicitor’s fees;

 

 

 

ii. Arguments for and against the Application:

 

[5] The application is accompanied by the initial 32 paragraph affidavit and later 21 paragraph affidavit of Titus Tei who says he is a Subscribing Member of the Plaintiff Company which is limited by guarantee and operates exclusively for charitable, scientific and educational purposes. Moving the application learned Counsel for the Plaintiff Nana Agyei Baffour Awuah referred to both the initial affidavit filed together with the writ of summons and the Supplementary Affidavit filed on October 19, 2018 and the statement of case filed in support of the application. Counsel referred to Exhibit “A” the incorporation document and submitted that the legal effect of the incorporation is as stated in Section 14 of the Companies Act, 1963 Act 179. According to Counsel, there is no dispute that the Company was registered and that the fact of the registration is not disputed by the Defendants. To that extent, Counsel submitted that the Plaintiff has a prima facie right that ought to be protected by the Court.

 

 

 

[6] According to Counsel for the Plaintiff, a recent search at the office of the 10th Respondent by the Plaintiff disclosed that without the knowledge and consent of the subscribing members –Professor Fred Binka, Titus Tei and Dr, Stephen Tallman who are also Executive Council members or Directors – the 1st and 2nd Respondents together “with their co-conspirators had removed the named subscribing members of the Applicant Company and replaced them with other persons, including themselves”. Counsel referred to Exhibit “B”, an extract from the search result.

 

 

 

[7] According to learned Counsel the 1st and 2nd Respondents exploited a directive issued by the 10th Respondent directing all companies to re-register with its office within a specified time frame to effect the said changes of removing the original subscribers names from the records. Counsel submitted that the said act of the 1st and 2nd Respondents are not only fraudulent and unlawful but a breach of their fiduciary duties to the Applicant Company.

 

 

 

[8] It is the further case of the Plaintiff that following the removal and replacement of the original subscribers, the 1st and 2nd Respondents together with the purported members of the Executive Council dissolved the Company without the knowledge and consent of the “foundational or subscribing members, contrary to law”. The Plaintiff’s Counsel further submitted that following the dissolution of the Applicant’s Company, in breach of the Companies Act, 1963 (Act 179), the 1st and 2nd Respondents have relocated the Company’s assets from Ghana to Senegal.

 

 

 

[9] Counsel for the Applicant relying on the affidavit deposition further submitted that “on 27^th March, 2018 a resolution was passed at a meeting of the subscribers to remove the 1st Respondent as Company Secretary and the decision was communicated to the 1st Respondent in a letter dated 29^th March, 2018”. A copy of the said letter has been attached as Exhibit “D” to this application. The Plaintiff Counsel also referred to Exhibit “E”, which according to Counsel is the rectification of the records following the alteration. In speaking to the effect of Exhibit “E”, Counsel submitted that being a certified true copy of that document its legal effect is supported by Section 37 of the Evidence Act. According to Nana Agyei Baffour Awuah the Supreme Court in the case of OKUDZETO ABLAKWA (No. 2) v. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 pronounced on the effect of Section 37 presumption.

 

 

 

[10] To that extent, Counsel submitted that it is the Respondents who have the burden under Section 20 of the Evidence Act to rebut the presumption. In this case Counsel submitted that the Defendants have failed to lead cogent evidence to rebut the presumption and in effect support their contention that the three named persons are not directors.

 

 

 

[11] Further, Counsel submitted that there is no resolution appointing the individuals the Respondents say are appointed directors and also there is no letter of acceptance by the said appointed individuals to the Plaintiff. Counsel cited the case of QUARCOOPOME v. SANYO ELECTRIC TRADING COMPANY & ANOTHER (2009) SCGLR 213 to support the submission.

 

 

 

[12] According to learned Counsel all the 1st to 7th Respondents have brought is Exhibit “DKB3” which is only a printout from the internet and has no signature on it to show that it has been adopted by the Company per Section 18 of Act 179. Further, Counsel says there is no evidence of registration at the Registrar General and there is no evidence that they are directors or officers of the Company. The lack of registration according to learned Counsel undermines the Respondents contention that the people they appointed are directors. Counsel referred to Section 24 of Act 179 and further submitted that Exhibit “DKB3” is not and cannot be the valid Regulations of the Applicant Company.

 

 

 

[13] The case of the Plaintiff is that the injury the Respondents are causing the Plaintiff is also not disputed, Counsel referred to paragraph 37 of the supporting affidavit as an example of the injury caused. To demonstrate the injury the Plaintiff contends that based on the instructions of the 1st Respondent, the 8th and 9th Respondents have refused the Applicant access to its account and thus, it is unable to make withdrawal to fund its operations. According to the Plaintiff the 8th and 9th Respondents continue to “indulge the 1st Respondent” despite the letters written to them and various meetings conveyed to explain the situation to them. Exhibit “G”, being some of the letters written have been attached to this application.

 

 

 

[14] Plaintiff further contends that due to the actions of the 1st and 2nd Respondents it is unable to pay its workers and fund projects which are ongoing, According to Counsel, no financial compensation can compensate for the breach of statute caused by the Respondents and should costs be awarded, it would also be inadequate. The argument is further based on the fact that according to Learned Counsel apart from the 1st Defendant who holds himself as the Secretary, the others are non-residents of Ghana.

 

 

 

[15] Responding to the 1st to 7th Respondents’ materials filed, Counsel referred to Exhibit “DKB8” and submitted that there is an inherent inconsistency in what they seek to rely on because according to Mr. Agyei Baffour Awuah by Exhibit “DKB4”, the 1st Respondent is listed as a member even though he has always maintained that he is a Secretary. Further, according Counsel all the documents filed and which the Respondents are relying on show that they are not in charge of the Company. Consequently, Counsel prayed the Court to grant the Plaintiff’s request as spelt out in the application.

 

 

 

[16] In the statement of case filed on behalf of the Plaintiff, Counsel has submitted that there is a serious question to be tried by the Court; that the claim is not frivolous and therefore there is the need for this Court to grant the application.

 

 

 

iii. Responding Arguments:

 

[17] The 1st to 7th Defendants/Respondents are opposed to the Plaintiff’s application for injunction and contend that the Applicant’s claim should be dismissed but pray the Court to make an order to “restrain the 8th and 9th Defendants/Respondents from honouring transactions authorized by Fred Newton Binka and Sixtus Apaliyah on the accounts that the Plaintiff holds with them”. Counsel for the 1st to 7th Respondents told the Court that they rely entirely on the affidavit in opposition filed on July 18, 2018 to oppose the application.

 

 

 

[18] In his brief submission to the Court, Counsel said he did not intend to make further submissions except to say that Exhibit “TAT2” of the Applicant’s supplementary affidavit is the same as “DKB9”. Further Mr. Amenuvor submitted that in Exhibits “DKB14”, “DKB15” and “DKB16”, Michael Tanner has explained the circumstances that led to his role in Exhibit “TAT2” and “DKB9”. Based on that, it is Counsel’s submission that the Court should place no weight on Exhibit “TAT2” at all.

 

 

 

[19] Further, according to Mr. Amenuvor, even though the Applicant says the various people named in Exhibit “DKB13” are not members, the Applicant relies on the same people for directions. The Court notes that in the affidavit in opposition deposed to by Daniel Kofi Baku, it is averred that Mr. Titus Tei was an employee of the Plaintiff until he retired on 31st December 2014 after he attained the age of 60 years. According to the deponent Mr. Tei was offered a one year post retirement contract/consultancy and same was renewable until 31st December, 2017. The Deponent attached as Exhibit “DKB1” and “DKB2” letters dated December 17, 2014 and January 9, 2017 respectively to confirm the averment.

 

 

 

[20] In further denying the Applicant’s claim and prayer for injunction, the 1st to 7th Respondents’ representative (Daniel Kofi Baku) denied that he has ceased to be a Secretary of the Plaintiff. He deposed that “the subscribing members of the Plaintiff are Health and Demographic Surveillance Sites (HDSSs) in Africa, Asia and Oceania admitted into membership in accordance with Sections 10, 11 and 12 of the Regulations of the Plaintiff”. The deponent attached as Exhibit ‘DKB3’ and Exhibit “DKB4”, which according to them is the list of the subscribing members of the Plaintiff and their leaders.

 

 

 

[21] The 1st to 7th Respondents have totally denied all of the allegations contained in the affidavit of the Applicant and specifically stated that Mr. Titus Tei who was at the Annual General Meeting (AGM) of the Plaintiff in Dubai in the United Arab Emirates in December 2017 “did not participate in the proceedings in recognition of the fact that he is not a subscribing member of the Plaintiff”. According to the deponent, Mr. Tei was only present to “to plead with the Executive Council/Board of Directors of the Plaintiff to extend his employment with Plaintiff beyond the 31st day of December 2017”. The 1st to 7th Respondents say at the meeting Mr. Tei was not recorded as either present or absent subscribing member and he did not protest.

 

 

 

[22] According to the 1st to 7th Respondents it is not true that the 2nd to 7th Respondents have been holding themselves out as subscribing members. According to them the said individuals were validly elected “to the Executive Council/Board of Directors at the 15^th AGM of the Plaintiff held in Kampala, Uganda in November 2016”. According to the deponent, the 2^nd Respondent was appointed to the Executive Council/Board of Directors ex officio as the Executive Director of the Plaintiff since 2008. The other averments of the 1st to 7th Respondents in denial of the Plaintiff’s claims are well articulated in paragraphs 18 to 21 of the affidavit.

 

 

 

[23] The 1st to 7th Respondents in further denial stated what they termed to be the condition for the re-registration as required by the 10^th Respondent. The contesting Respondents like the Plaintiff also contend that certain individuals including Counsel for the Plaintiff committed forgery on the Plaintiff. At paragraph 28, it is deposed that the attention of a certain “Peter Byass, a current Director was drawn to the letter marked as exhibit DKB11, his name being a part of the members of the board that authorized the said resolution, he wrote the attached exhibit “DKB12” to disassociate himself from the acts of Marcel Tanner, Fred Newton Binka and Sixtus Apaliyah”. The deponent further states at paragraph 29, that “Marcel Tanner and Nana Agyei Baffour Awuah, the lawyer for the

 

Plaintiff in the instant action signed a resolution on the 31^st day of March 2018 on a forged letterhead of the Plaintiff at a time when the 2^nd Defendant was still the Executive Director of the Plaintiff”. A copy of the said resolution is attached to the affidavit in opposition as Exhibit “DKB13”.

 

 

 

[24] The 1st to 7th Respondents further deposed that Marcel Tanner was appointed to the Board of the Plaintiff in 2010 and he was elected the Chair in 2011 until he stepped down in November 2016. According to the affidavit filed, Marcel Tanner after signing a resolution of the board as chair later admitted his error and wrote to the 10^th Respondent on the “1^st, 7^th and 13^th May 2018 to explain his conduct and requested the 10^th Respondent to register the 3^rd to 7^th Defendants as the validly elected and appointed Directors of the Plaintiff”. Exhibits “DKB15A, “DKB15B” and “DKB15C” have been attached to support the deposition.

 

 

 

[25] Dr. Kofi Baku conceded that a complaint was made to the Police Criminal Investigation Division of the CID by Mr. Titus Tei against him and others. He however, stated that “I have furnished a full response to the allegations that Titus Tei made against us”. He also denied that “Titus Tei, Sixtus Apaliyah and those working with them are employees of the Plaintiff”. Based on all of the above and the other depositions contained in the 42 paragraph affidavit, the 1st to 7th Respondents have implored the Court to dismiss the Plaintiff’s application for injunction.

 

 

 

[26] The 8th, 9th and 10th Respondents did not file any process in answer to the application and take no position on this application.

 

 

 

iv. I now turn to the second application

 

As indicated above, there are two applications for injunctions for my consideration. I intend to discuss the merits of both in a single opinion. I hereby turn my attention to the application filed by Mr. Amenuvor for his Clients on July 13, 2018.

 

 

 

[27] Also informed by the provision of the law, the 1st to 7th Defendants whom I refer to simply as the Applicants in this instance are praying for:

 

“… an order of interlocutory injunction to restrain the Plaintiff and any other persons acting on its behalf, their agents and privies from operating any account of the Plaintiff Company held at the 8^th and 9^th Defendants banks until a final determination of this action”

 

 

 

[28] The application is accompanied by 13 paragraph affidavit in support deposed by Dr. Kofi Baku. In the affidavit in support reference is made to the action mounted by the Plaintiff and the relief by which the Plaintiff seeks an order “compelling the 8^th and 9^th Defendants to allow the Plaintiff Company to have access to its accounts”. It is deposed by the deponent that “I verily believe that the Plaintiff Company has been hijacked by persons who have nothing to do with the operations and running of the Plaintiff Company”. According to the deponent the persons he believes have hijacked the Plaintiff Company intend to have access to the Company’s accounts “ostensibly to pay nonexistent staff”.

 

 

 

[29] The Applicant attached as Exhibits “DKB1” and “DKB2” to say the Plaintiff Company is an international non-governmental organization set up “solely for research and currently has as its subscribing members Health and Demographic Surveillance Sites in Africa, Asia and Oceania”. According to Dr. Baku Exhibit “DKB2” is a list of the current Board of Trustees of the Plaintiff Company elected at the 2016 and 2017 Annual General Meetings of the Plaintiff held in Kampala, Uganda and United Arab Emirates. It is the case of the Applicant that the Exhibit “DKB2” list does not “include the persons who in their attempt to usurp the powers of the Plaintiff Company, have commenced the action herein and are seeking the reliefs” endorsed on the writ of summons.

 

 

 

[30] The Applicants therefore contend that if the persons who have initiated the action are not restrained “they would dissipate the accounts of an international NGO such as the Plaintiff to which they are not accountable and bring grave hardship upon the real members and trustees of the Plaintiff and for that matter those who properly represent the Plaintiff, being the 1^st to 7^th Defendant herein”.

 

 

 

[31] The Applicants further attached exhibit “DKB3” and contend that it is a list of the “funders of the Plaintiff Company and says the information is verifiable at the Plaintiff’s website being http://indepth-network.org. According to the Applicant it is important that an order is granted to prevent the individuals behind the Plaintiff from having access to the account because their action is “most disingenuous and fraudulent and designed to embarrass the Plaintiff Company and the 1^st to 7^th Defendants”.

 

 

 

[32] In moving the application, learned Counsel for the Applicants, Mr. Justin Amenuvor relied on all of the depositions in the affidavit and statement of case filed and prayed the Court to grant the application because according to Counsel there is no opposition to the application.

 

 

 

[33] The Plaintiff/Respondent in the instant application relied on a 3 paragraph affidavit filed by Naa-Amakuma Barnor, a lawyer at the office of the Plaintiff’s Counsel. The pith and substance is to the effect that the Plaintiff relies on the affidavit and supplementary affidavit in support of its motion supra in answer to the instant application. No statement of case was filed by the Plaintiff as required by the rules of Court.

 

 

 

[34] Nana Agyei Baffour Awuah contended at the oral hearing that not filing a statement of case was not fatal because according to him the Applicants by their motion have failed to disclose any right this Court ought to protect. He reiterated that he is relying on the Plaintiff’s affidavit and statement of case filed in the earlier application and implored the Court to dismiss the application.

 

 

 

v. Court Opinion - Preliminary Matters:

 

[35] Before considering the merits or otherwise of both applications, it is important to deal with two preliminary matters being, the failure of the Plaintiff to file a statement of case and the argument of the Plaintiff’s Counsel and the submission of Mr. Amenuvor that because there was no statement of case filed there is no opposition to the application and therefore same should be granted.

 

 

 

[36] It is a requirement of the law that if an application for interlocutory application was being opposed, the respondent shall file an Affidavit in Opposition as well as a Statement of Case setting out the arguments of the opposing party. That provision of the law merits reproduction. It is provided in Order 25 r 1(4) of CI 47 as follows:

 

“A Respondent who desires to oppose the application shall file an affidavit in opposition as well as a

 

Statement of Case containing full arguments and the legal authorities to be relied on.” (Emphasis supplied)

 

Taking cognizance of the fact that the provision uses the word “shall” it is trite learning that it is imperative and not optional.

 

 

 

[37] Further, the settled rule of law is that when an enactment has prescribed a procedure it ought to be followed see in BOYEFIO v NTHC PROPERTIES (1997-98) 1 GLR 768 SC the Supreme Court held at Holding 3 thus:

 

“The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed.

 

 

 

[38] In OPPONG v ATTORNEY-GENERAL & ORS. [2000] SCGLR 275, where the Plaintiff purported to invoke the original jurisdiction of the Supreme Court under Articles 2 (1) (b) and 130 of the 1992 Constitution as well as under rule 45 of the Supreme Court Rules, 1996 (CI. 16) but filed no writ and thus failed to comply with the rules of procedure the Court, Bamford-Addo JSC made this important point that:

 

 

 

“Many a time litigants and their Counsel have taken the rules of procedure lightly and ignored them altogether as if those rules were made in vain and without any purpose…”

 

I have made reference to the above judicial decisions of the apex Court not to necessarily condemn Counsel but to make the point that it was most unfortunate that even though Mr. Agyei Baffour Awuah is presumed to know the rules he rather chose to argue with the bench on the point by taking refuge under Order 81 of C.I. 47.

 

 

 

[39] That defect notwithstanding, the Court notes that in the interest of justice, Counsel for the Plaintiff/Respondent was allowed to make his submissions in response to the arguments of Counsel for the Applicants and same is considered by the Court in this decision.

 

 

 

[40] I next consider the submission made by Mr. Amenuvor that because that rule of Court has not been complied with there is no opposition to the application. Undoubtedly, Order 25 rule 1(6) of C.I. 47 empowers the Court to consider any application under Order 25 on the basis of the documents filed without viva voce arguments.

 

 

 

[41] The question which immediately confronts the Court in the light of the conduct of the Plaintiff/Respondent and its Lawyer in not filing the necessary papers is whether in such circumstances, the Applicant is automatically entitled to the relief sought on the application. In my respectful opinion the direct answer to the question is NO.

 

 

 

[42] An Interlocutory Injunction is a discretionary remedy and as such it cannot be granted merely because out of slothfulness, negligence or even recklessness a Respondent does not file the appropriate papers. Indeed such an order cannot be automatically granted even if the Respondent openly declares that he is not opposed to it. The Court must in all such cases be satisfied that in the circumstances of each particular case the order is deserving to make in the sense that it is just and/or convenient to grant or refuse the application. Order 25 rule 1(1) states 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”. Any such order made may be conditional or unconditional as the Court may determine.

 

 

 

[43] In REPUBLIC v. COURT OF APPEAL, ACCRA; EX PARTE TSATSU TSIKATA (2005-2006) SC. GLR 612 at 614 the Supreme Court when dealing with an interlocutory application stated that an Applicant is not entitled “to an automatic grant of a prayer” on the ground that the Respondent has not filed an Affidavit in Opposition and therefore the facts in the Applicant’s affidavit are deemed to have been admitted. The apex Court emphasized that “where it was the Court’s discretionary jurisdiction which was being invoked, the Court or Tribunal seized with the matter, was under a legal obligation to determine whether, in any event, on the merits the applicant was entitled to the prayer sought”. (See Holding 3).

 

 

 

vi. Analysis & Opinion of Court – Re: Applications:

 

[44] 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.

 

 

 

[45] Equally, the Ghana Court of Appeal in VANDERPUYE V NARTEY (1977) GLR 428 Coram:

 

Amissah, Kingsley-Nyinah and Hayfron-Benjamin JJ.A.) reiterated the above legal position. Amissah JA speaking for the unanimous Court stated that the general and obviously safer rule is that, in interlocutory applications, adjudicators must avoid making definitive findings on disputed issues, particularly where the facts are not only material but are for some reasons obscure or highly contentious. I wish to abide by the above caution in making my decision in regards to the merits or otherwise of the applications.

 

 

 

[46] It is trite learning that 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. However, where guidelines have been laid down in established cases the courts are willing to follow those guidelines.

 

 

 

[47] In 18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED [2012] SCGLR 167 the Supreme Court delivered itself per his Lordship Anin-Yeboah JSC and opined after analyzing the earlier cases including VANDERPUYE v NARTEY SUPRA @ 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”.

 

 

 

[48] In effect, the apex Court has laid down a tripartite text and it is that the applicable law to the grant or refusal of an application for interim injunction is that the Applicant must, prima facie demonstrate a legal right that is in danger of continuous threat if the status quo ante was not maintained. Also, the Applicant shall demonstrate that on the balance of convenience irreparable damage shall be caused to him or her if that legal right was not protected for the time being.

 

 

 

[49] I have closely looked at the pleadings filed in this case and I have also reviewed the statement of cases filed by legal counsel in respect of the main application and regard has also been given to all the authorities cited by both Counsel being the statutory provisions and the case law. I am of the respectful view, having regard to the pleadings filed and the affidavit evidence before the court, that this case raises fundamental issues for determination. First, the Court ought to make a determination as to who are the subscribers of the Plaintiff Company presently and whether or not the foundational subscribers still remain the Subscribers who have the ultimate powers in regards to the Plaintiff Company.

 

 

 

[50] Second, there is the issue as to the allegations of fraud and forgery made by the parties against each other to be investigated by the Court. That determination in my respectful opinion cannot be resolved based on the documents filed by the parties. It is the settled principle of law that fraud cannot be determined based on affidavit evidence.

 

 

 

[51] Third, there is the other issue as to who are the present staff of the Company and entitled to be paid, the projects the Company is presently engaged in and whether or not the Plaintiff as a Company has been illegally relocated to Senegal contrary to the Companies Act, Act 179 as deposed to by Mr. Titus Tei representing the Plaintiff Company. These matters, I think, are some of the serious issues which shall engage the attention of the court in the trial. In the light of the above, I hold the respectful view that the case is not frivolous or vexatious.

 

 

 

[52] 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. In the words of 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.

 

But before considering the balance of convenience in the present suit, I pose the question, what is the basic purpose of an interim order?

 

 

 

[53] The question was succinctly answered by the Supreme Court in ODONKOR V AMARTEI SUPRA that the basic purpose was, as much as possible, to hold the balance evenly between the parties pending the final resolution of 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 a pyrrhic one and/or an empty one or one that brought him more problems than blessings.

 

 

 

[54] Also, in WELFORD QUARCOO V. ATTORNEY GENERAL & ANOTHER [2012] 1 SCGLR

 

259 the Supreme Court per the venerable Date Bah JSC further stated the law as follows:

 

‘It has always been my understanding that the requirements for the grant of an interlocutory injunction are: first, that the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favour of granting him or her the interlocutory injunction. The balance of convenience, of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief”

 

 

 

[55] Now, having regard to the competing claims of the parties and given the affidavit evidence and facts of the case it is clear that the respective cases have a single strand running through them and it is who has the right to control the heart and soul of the Company called “Indepth Network”.

 

 

 

[56] As may be gleaned from the Plaintiff’s affidavit in support, with particular, reference to paragraphs 10 to 18 thereof, the instant application is essentially grounded on the allegation that the Plaintiff’s Officers who are in Court have the right to control the Company. They therefore accuse the 1st to 7th Defendants as people who have illegally taken control of the Company. By reason of that alleged fact, the Plaintiff considers that it will “suffer irreparable damage and inconvenience” if the application is refused. As stated above that determination is clearly part of the decisions this Court will have to make at the end of the trial.

 

 

 

[57] It can also be discerned from the pleadings that some of the Defendants, in particular the 1st Respondent appear to be a member of the Plaintiff Company or had a role to play in the Plaintiff Company until this suit no wonder the Defendants contend this is a clear case where the Plaintiff has sued its own members. Even though the Plaintiff does not entirely accept that contention and posits that the 1st Defendant does not continue to have any role to play in the Company by virtue of Exhibit “D”, because he has been removed as a Secretary. Again, to my mind that contention of the Plaintiff appears to be an admission of the 1st Defendant’s role in the Plaintiff Company whether as it exists now or in the past and one of the reasons the parties are in Court. As noted earlier on, who has the right to control the Plaintiff Company is the centerpiece of this litigation and therefore this Court ought to avoid making any definite findings at this moment in time.

 

 

 

[58] With that in mind and on the balance of convenience, I hold that it shall not be just and convenient to grant either the Plaintiff’s request for an injunctive order nor that of the 1st to 7th Defendants/Applicants. I note that one of the questions the Court posed to Learned Counsel for the Plaintiff was if indeed the Plaintiff’s officers are in charge as it is contended then how did the Defendants take control of Company? Counsel’s response was that they did so illegally and fraudulently. To that extent therefore to grant the prayer of the Plaintiff in the manner it is sought or couched is precisely to place it as the one with the right to control the Plaintiff Company before the determination of the reliefs it seeks together with the Counterclaim filed by the Defendants. With that in mind it is clear this Court ought to rather hold the scale evenly by rather maintaining the status quo as it existed prior to the issuing out of the writ of summons and as it exists presently pending the determination of the real issue. In the Court’s opinion in weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief, the disadvantages of not granting far outweigh those of granting same at this time.

 

 

 

[59] In my view, based on the facts, this is not a case for such an order at this time based on the evidence before the Court now. Should the situation change the Court may be willing to alter its position but at this time I am of the view that it would not be just and convenient to grant the application. Whatever loss the Plaintiff and or the Defendants’ Applicants may suffer can be compensated for in damages should it succeed after the trial in my opinion. Consequently, 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 in maintaining the status quo it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 to grant this instant application.

 

 

 

[60] Order 25 rule 1(1) empowers the Court, in dealing with an application for an order of Interlocutory Injunction, to make an order “either unconditionally of upon such terms and conditions as the Court considers just”. Duly informed and fortified by Order 25 rule 1 (1), I believe the circumstances dictate and enjoin that the rights and privileges of the parties, be controlled, regulated or otherwise limited, in a way, pending the final trial and determination of the substantive action. Accordingly, I order that, pending the final trial and determination of this suit, and starting from today, both parties being the Plaintiff and 1st to 7th Respondents are hereby restrained from making orders to 8th and 9th Respondents to release funds to them.

 

 

 

[61] Finally, in my opinion a timely adjudication of the suit would ensure that justice is done to both parties. Consequently, by virtue of the powers conferred on me by Order 25 rule 5 of CI 47, I order the Plaintiffs to file a reply if need be and take out Application for Directions within 14 days for the case to proceed to an early trial.