DORDZIE JA:-

By a writ of summons issued on the 19^th of November 2010 the plaintiff commenced this action against the defendants for the following reliefs:

Termination of lease between the plaintiffs and defendants for breach of covenant and for nonpayment of rent.

An order that the existing tenant becomes the tenant of the plaintiffs

Any further orders that the court may deem fit

Pursuant to leave granted to the plaintiffs, they filed an amended writ and statement of claim on the 2/12/2013.The defendants filed their statement of defence on the 31/3/2013.

The plaintiff’s amended writ and statement of claim were struck out as incompetent on the 5/3/2014.

On 10/6/2014 the defendants, by a motion, applied for interim injunction order; the ruling on that application is the subject matter of this appeal.

On the 11/6/2014 the plaintiffs filed a notice of change of solicitor and on the same day filed a motion for leave to amend the writ and statement of claim.

The record before us does not disclose that the application was heard and the writ and the statement of claim were amended before the application for interim injunction was heard.

This means the original writ and statement of claim issued on 19/11/2010 are what this court can work with.

Background

The background facts to the present appeal is that the plaintiffs are owners and lessors of a property situate at Osu known as House N0 F665/1.

The property was originally leased to one Abu Latif and Hani Jojo in 1958 for 50yrs. In 1964 the unexpired term of the lease was assigned to one Victoria Ofei (deceased). In 1995 Victoria Ofei leased the unexpired term to Standard Chartered Bank.

It is the plaintiffs’ contention that the defendants who are the administrators of the estate of Victoria Ofei refused to pay rent due on the property despite repeated demands. The defendants also failed to renew the plaintiff’s consent for continued leasing of the property to Standard Chartered Bank. The plaintiffs therefore instituted an action in the High Court for the reliefs earlier stated.

While the case was still pending in court, the plaintiffs per a letter from their solicitor dated 29^th May 2014 notified the defendants that the plaintiffs have re-entered the property. By another letter bearing the same date the tenant, Standard Chartered Bank was also notified of the re-entry by the plaintiffs.

The defendants therefore applied to the court for an interim injunction order to restrain the plaintiffs from interfering with their possession and peaceful enjoyment of the property.

The trial court heard and granted the application ordering the status quo to remain pending the final determination of the suit.

In this appeal the appellants are praying this court for the following reliefs:

“To nullify the interlocutory injunction granted defendant-respondent and affirm lawfulness of the re-entry by the plaintiff-appellants.

To perpetually restrain the defendant-respondents from dealing with the property in any way whatsoever”.

Grounds of Appeal:

The appellants originally filed 3 grounds of appeal and later filed 2 additional grounds.

The original grounds are:

The trial judge erred in law and equity when she legitimated the defendant-applicants’ unlawful extension of sublease of the plaintiff-respondents’ property to a 3^rd party, while discounting the lawful re-entry of plaintiff-respondents’ to their property.

The trial ,judge exercised her discretion wrongly when she failed to consider matters that were relevant in taking a judicious decision, and adverted to irrelevant ones leading to wrong conclusion.

The trial judge failed to enforce the mandate to make applicants give an undertaking to pay damages to respondent as required under Order 25Rule 9 (1) of C.I. 47

The two additional grounds are:

The trial judge erred in law and in equity by misconceiving the rights of the parties and thereby granted the injunction to preserve the status quo.

The trial judge erred in equity when she failed to consider the equitable principles that should have informed her decision to grant or refuse the injunction.

In arguing the appeal the appellants abandoned the original ground one, the additional ground one was argued as ground one, additional ground 2 became the ground two, the original ground two was argued as ground three and additional ground three as ground four.

The main contention of the appellants with the ruling, the subject matter of this appeal is that the court ruled that the status quo be maintained whiles the substantive issues are determined. According to counsel for the appellants, in the suit, there was no common matter joined between the parties at the trial court therefore the court was wrong in granting an order to hold even the scale between the parties in the interim.

Counsel argued that the respondents applied for the injunction order on the basis that the appellants re-entered the property for the reason of non- payment of rent. That however is not the reason for the appellant’s act of re-entry. The appellants re-entered the property because of breach of the covenant which requires them to obtain the written consent of the appellant before subletting the property.

From the notice of appeal the reliefs the appellants are seeking from this court which I have already quoted are that this court should affirm the “lawfulness” of their re-entry and perpetually restrain the respondents from dealing with the property. Statute, particularly the Conveyancing Act places restrictions on acts of re-entry and forfeiture; it appears counsel for the appellant has overlooked this aspect of the law and is asking this court to legalize their act of re-entry; thereby pre-empting the decision of the High Court on these legal issues.

Section 29 of the Conveyancing Act, 1973 NRCD 175 provides conditions that must be fulfilled before a lessor could re-enter a property. The section reads:

“Restriction on re-entry and forfeiture

(1) A right of re-entry or forfeiture under a provision in a lease for a breach of a covenant, condition or an agreement in the lease is not enforceable, by action or otherwise, until

(a) the lessor serves on the lessee a notice,

(i) specifying the particular breach complained of,

(ii) requiring the lessee to remedy the breach, if the breach is capable of remedy,

(iii) requiring the lessee to make reasonable compensation in money for the breach, except where the breach consists of a non-payment of rent,

(b) the lessee has knowledge of the fact that the notice has been served, and

(c) the lessee fails, within a reasonable time after the service of the notice under paragraph (a), to remedy the breach, if it is capable of remedy, and except where the breach consists of a non-payment of rent, to make reasonable compensation in money, to the satisfaction of the lessor, for the breach”

With the position of the law as stated clearly above,  irrespective of whether the breach is for non-payment of rent or lack of written consent to sub-let, the appellant cannot re-enter the property without fulfilling the statutory conditions stated above.

Based on the pleadings the parties have before the High Court, the appellant on 20^th of May 2011 applied for directions under Order 32 of C.I. 47.

The first issue put down as joined between the parties is:

“Whether or not the defendants have breached the head lease dated 20^th day of October 1958”.

The record had shown that the plaintiffs are taking steps to amend the writ and statement of claim and failure on the part of the respondent to obtain written consent for the renewal of the tenancy with the present tenants of the disputed property is one of the issues they intent to raise, this is reflected in the proposed amended statement of claim they attached to the application for leave to amend.

The question as to whether the appellants have fulfilled the statutory conditions before taking steps to re-enter the property are issues the trial court must decide based on the evidence provided by the parties. Where the appellants seem to be taking the law into their own hands even though they have instituted an action in the court for their grievances to be addressed, the appropriate order any court would make is to order the status quo to remain pending the determination of the suit.

Furthermore counsel for the respondents in his written submission has argued that the issue of failure to obtain written consent to continue leasing the property does not arise between the parties anymore because the Court of Appeal had determined that matter and they did not need any more consent from the appellants.

It is therefore wrong on the part of counsel for the appellant to say the parties were not ad idem on the issues between them.

In fact the relief the plaintiffs are ultimately seeking in the High Court is to re-enter the property; the act of forcefully re-entering the property while the case is still pending before the court amounts to pre-judging the issues. Especially when section 29 of the Conveyancing Act, 173 NRCD 175 prescribes conditions to be fulfilled before a right of re-entry or forfeiture can be enforced.

Issues

The main issue in this appeal is whether the trial judge erred in granting an interim injunction application ordering the status quo to remain until the substantive suit pending before it is determined.

Counsel for the appellant arguing the appeal made reference to many decided cases and outlined the principles that guide the grant or refusal of interim injunction applications. Counsel agreed with the trial court’s decision that the parties have rights to be protected by an interim order but contend that the trial judge failed to consider equitable principles that should have informed her decision.

Counsel further argued that the trial court wrongly exercised its discretion in granting the application.

In reply to the above arguments counsel for the respondents submitted that the trial judge was duly guided by the principles that guide the courts in the grant or refusal of applications for interim injunction. Counsel further submitted that the attempt made by the appellants to re-enter the property by a letter violates section 29 of the Conveyancing Act 1973 NRCD175. There was therefore the need for their action to be stayed and the case pending be decided on the merits.

The Supreme Court decision in the 1^st July Ltd. v Yehans International Ltd [2012] 1 SCGLR 167 cited by counsel for the respondents carefully summarizes the principles that guide the court in the exercise of its discretion in the grant or refusal of applications for interim injunction.

The Supreme Court in its holding 2 held as follows:

“Even though granting an interim injunction was discretionary, a trial court in determining an application for an interlocutory injunction, must be guided by the following:

i. Consider whether the case of an applicant was not frivolous and had demonstrated that he had legal or equitable right which a court should protect.

ii. Ensure that the status quo was maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter; and

iii. Consider the balance of convenience and should refuse the application if the grant would cause serious hardships to the other party.”

Counsel for the appellant in his written submission had agreed with the trial judge’s finding that both parties have rights that need to be protected by the court. This means the Defendants/applicants in the High Court have a valid defence to the suit, and their case before the court is not frivolous.

The trial court in its ruling considered the effect of the actions of the appellants, which is re-entering the property, on the current tenant, a banking institution and found it expedient to order that the status quo remains until issues pending before it are determined.

The appellants who have instituted the pending action in the High Court will not suffer any hardship in any way by the order.

Above all the legality of the act of re-entry ought to be gone into at the trial court.

On the fourth ground of appeal, that the trial court failed to make the applicant to give an undertaking to pay damages, decided cases have stated the legal position in the application of Order 25 Rule 9 (1). The Supreme Court had held that the trial court has the discretion to waive the requirement of that provision. The Supreme Court in the 1^st July Ltd. v Yehans International Ltd. cited supra affirmed its earlier decision in Republic v High Court, Koforidua; Exparte Ansah-Otu (Koans Building Solutions Ltd. Interested Party)[2009] SCGLR 141and held that it is a discretion vested in the court. The court at page 173 of the report relied on Lord Diplock’s statement in the Hoffman –La F Roche & Co AG v Secretary of State for Trade & Industry [1974] 2 All ER 1128 and held: “It does appear that the discretion is vested in the court and depending on the circumstances of each case, it may decide to exact an undertaking before granting an interim injunction.”

The failure of the trial judge to make the applicants give an undertaking is not an error especially when the circumstances suggest the respondents might have flouted statutory conditions when they re-entered the property.

The trial court exercised its discretion fairly in granting the order of interim injunction. The circumstances of the case require that the scale between the parties is evenly held during the pendency of the suit.

The trial court did not in any way falter in ordering that the status quo remains until the matter between the parties pending before it is determined.

We do not find merit in any of the grounds of appeal, the appeal fails in its entirety and it is hereby dismissed.

Costs of GH¢1,000.00 in favour of Respondents.

SGD

A. M. A. DORDZIE (MRS)

(JUSTICE OF THE APPEAL)

SGD

OFOE, J. A.                  I agree                                VICTOR OFOE

(JUSTICE OF THE APPEAL)

SGD

TANKO, J. A.              I also agree                  I. O. TANKO AMADU

(JUSTICE OF THE APPEAL)