KUMASI - A.D 2016
F. N. OPPONG & CO. LTD - (Plaintiff/Applicant)
SETHI MANUFACTURING CO. LTD. & 2 ORS - (Defendants /Respondents)

DATE:  19TH JULY, 2016
SUIT NO:  H3/49/2016


The Plaintiff/Appellant/Applicant (hereinafter referred to as Applicant), commenced an action in the High Court on 8th January 2015 alleging in its statement of claim that in March 2013, the 1st Respondent had expressed interest in buying the Applicant’s interest in its two plots of land situate in Asokwa. The Applicant believed its interest to be subsisting until May 2060. However, during the negotiations, the 1st Respondent managed to produce a search report purporting to have come from the 3rd Respondent which indicated that the Applicant’s lease had already expired in 2011.


Then acting with shareholders of the Applicant, the 1st Respondent signed a Memorandum of Understanding prepared by the 1st Respondent to the effect that, as part of the amount agreed between one Mr. Nigel Egyir Yaw and Mr. C S Sethi towards the Applicant’s property, the 1st Respondent would pay GH¢200,000 to the 1st Respondent’s own lawyer and 1 million Ghana cedis the 2nd Respondent on behalf of the Applicant, for the renewal of the lease.


According to the Applicant’s Statement of Claim, the Managing Director of the Applicant, sought confirmation from the Applicant’s lawyers regarding the period of the lease and received confirmation that the representations from the 1st Respondent that it expired in 2011 was untrue. Acting on behalf of the Applicant and in disagreement with the MOU signed by the shareholders, the Managing Director wrote to the Respondents informing them of the misrepresentations of the 1st and 3rd Respondents and demanding that the money ostensibly paid by 1st Respondent to its lawyers and the 2nd Respondent on behalf of Applicant should be returned to the 1st Respondent.


It was the Plaintiff’s case that the MOU was not the act of the Applicant, and even though the Applicant had not entered into any signed contract with the 1st Respondent regarding the lease, the


1st Respondent forcibly entered the Applicant’s premises, started to develop the property and causing damage to some of its property. It sought the following reliefs:


A declaration that there is no binding contract between the Plaintiff and the 1st Defendant’s sale of plot Nos. 16 and 20 Block ‘A’ Asokwa Industrial Area, Kumasi.


Further or in the alternative a declaration that the Plaintiff was and is entitled to withdrawal of the transaction to sell the said plots of land to the 1st Defendant.


A declaration that the 2nd Defendant has no right to demand and/or collect money from the Plaintiff as it is the office of the Administrator of Stool Lands which has the right under the constitution to do so, and that any such act is null and void and of no effect.


An order for the return of the GH¢1,200,000.00 to the 1st Defendant.


An order for recovery of possession.


An injunction to restrain the 1st Defendant whether by itself, its servants or agents or otherwise howsoever from entering or remaining on or continuing in occupation of the said land.


An injunction to restrain the Defendants whether by themselves, their agents or otherwise howsoever from interfering with the quiet enjoyment of the Plaintiff’s said land.




Interest on the amount of such damages that this Honourable Court will award against the Defendant.


Further or other reliefs.


The Respondent took steps to technically knock out this action on the grounds that under Section 189

and (4) of the Companies Act 1963, Act 179 the law expected a Company to obtain leave from the court before commencing an action to pursue its rights on a contract entered into when its directors were not present in Ghana at the time of contracting.


Section 189 (3) and 4 (a) of Act 179 provides:


“The rights of the Company concerned under or arising out of a contract made during the time that a director of the Company is not present in Ghana is not enforceable by action or other legal proceedings




The Company may apply to the court for relief against the disability imposed by subsection (3) and the court, on being satisfied that it is just and equitable to grant relief, may grant the relief generally or as respects a particular contract and on the conditions that the court may impose”


The second ground stood on by Respondent to the life of this action is that counsel for Applicant Mr. E. N. Poku of Poku Nyamaa and Associates was not properly authorized by the Company to represent its interest in this law suit, and should therefore not be allowed to represent the Applicant.


The high court agreed with Respondent on their arguments, and held that, even though the court had not been told how many directors the Company had, the writ was null and void on the ground that on an interpretation of Section 189 (3) and 4 (a) of Act 179, the Applicant should have come to court and demonstrated to the satisfaction of the court that they have a just cause to seek redress against the 1st Defendant, and not go to court as of right.


The court also held that after examining a Power of Attorney held by Applicant counsel, he was satisfied that the power of attorney only authorized Applicant counsel to represent the managing director of the Applicant Company in relation to the sale of the Company and therefore it ‘never authorized learned counsel to represent the (Applicant) in this suit.’ He therefore restrained Applicant counsel from representing the Applicant and struck out the writ, without allowing a consideration of the merits of the Applicant’s complaints. Appellant appealed against this judgment on the following grounds:


Grounds of appeal


The learned trial judge did not properly construe section 189 of the Companies Act 1963, Act 179 in the context of the whole statute that is Act 179.


The learned trial judge did not exercise his discretion judiciously when he refused Plaintiff’s application to put a certain Nigel Egyri Yaw in the witness box for cross-examination having regard to the compelling evidence that Osei Kwame Addai is the managing Director of the Plaintiff Company and not the said Nigel Egyri Yaw.


That the learned trial judge did not exercise his discretion judiciously when he restrained the Plaintiff’s lawyer from acting for the Plaintiff Company when no evidence was taken to determine his authority.


The learned trial judge erred by declaring that the Power of Attorney executed by the Managing Director of the Plaintiff Company, and notarised in the United States of America was backdated without taking evidence on that.


The trial judge decision granting the 1st Defendant application for setting aside Plaintiff’s Writ, and restraining Lawyer E. N. Poku from acting for the Plaintiff is against the weight of evidence.


Further grounds of appeal shall be filed upon receipt of a copy of the Record of Proceedings Prior to setting aside the Applicant’s writ and declaring the writ as null and void on 27th February 2015, the high court had, according to the Applicant, granted an application for injunction on 12th January 2015 to restrain the Respondents from interfering with Plaintiff’s quiet enjoyment and entering and/or remaining on the land in dispute. According to Respondent counsel, Applicant counsel repeated this application for injunction on 22nd January 2015. Following the declaration of the action as void, the court continued to sit on this application and dismissed it on 15th July 2015.


Learned counsel for Applicant then repeated the application for injunction pending the determination of the appeal in the court of appeal. The application was heard by a single Judge of the Court of Appeal. The application for injunction was favorably considered and granted on conditions that the Applicant retrieve the 1.2 Million Ghana Cedis paid by the 1st Respondent as part consideration for the lease in dispute while the 1st Respondent is restrained from using the premises of the Applicant pending determination of the appeal. The injunction was to lapse after 10 days if this condition of retrieving the money was not complied with.


As ordered by the court in the injunction order by the single Judge of the Court of Appeal, the 1st Respondent moved from the premises. The Applicant however did not satisfy the condition of retrieving the 1.2 Million Ghana Cedis as ordered by the court.


According to its depositions per their counsel in the affidavit supporting this application, the Applicant could not retrieve the 1.2 Million Ghana Cedis because firstly, there is no evidence that the 1st Respondent even paid this 1.2 Million Ghana Cedis described as part of the consideration for the disputed transaction. Secondly, even if it was paid, that payment was supposed to have gone to the 2nd Respondent and 1st Respondent’s own lawyer, putting it out of the control of the Applicant.


The Applicant appealed the order regarding the conditions set for the injunction to the Supreme Court and later discontinued this appeal. He then applied to the full panel of the Court of Appeal pursuant to Section 12 of the Courts Act 1993 Act 493, to vary and or review the conditions of the injunction granted by the single judge. Section 12 of Act 493 provides


Section 12 – Powers of Single Justice of the Court of Appeal


A singe Justice of the Court of Appeal may exercise a power vested in the court of appeal that does not involve the decision o f a cause or matter before the court of appeal, except that –

b. In civil matters any order, direction or decision made or given in exercise of the powers conferred by this section may be varied, discharged or reversed by the Court of Appeal as duly constituted. ….


This court was unable to consider the invitation to vary or review the conditional injunction for the technical reason that the 10 day life span given the injunction order pending the retrieval of the 1.2 Million Ghana Cedis had lapsed by the time the application for review was brought to the full panel of the court of appeal.


The Applicant has once again applied for this injunction. One of the Applicant’s arguments is that the condition for payment of the 1.2 Million Ghana Cedis on behalf of the Applicant would result in injustice because it was a condition that the Applicant could not fulfil. In paragraphs 25 and 26 of the affidavit, counsel says:

25. That there is also no proof of payment of the purported sum for which reason for Plaintiff to retrieve a said sum which was never paid would result in grave injustice visited on a Party who has a legal right to be protected.

26. That granted arguendo that any monies were paid by the 1st Defendant, from the said MOU, they were not

paid to the Plaintiff but to the 2nd Defendant herein and the present lawyers of 1st Defendant on record for which reason it would not be just and convenient for Plaintiff to retrieve monies which are already with the


Defendants and/or with the 1st Defendant’s lawyer Mariam Agyeman Gyasi Jawhary…’


He also urged in paragraph 30 of the affidavit that the Applicant had already tried to retrieve this 1.2 Million Ghana Cedis and it was unable to fulfill the condition of retrieving the money because the 1st Respondent failed to assist the Applicant to retrieve the said monies which the 1st Respondent had purportedly paid its own lawyers and the Amakomhene and this is why the order for injunction lapsed.


The second argument of the Applicant is that although the 1st Respondent moved out of the disputed

land after the order for injunction by the single judge on 19th November 2015, the 1st Respondent had since the lapsing of the order, returned to the premises and was rapidly changing the nature of the land and destroying part of the property, making changes to it which would be irreversible, and causing irreparable damage to the Applicant’s property and equipment.


A third argument was that a search report dated 25th April 2016 from the 3rd Respondent had now thrown up conflicting information that gravely affected the dynamics of the transaction in the dispute brought to the court for resolution. In this report, (exhibit L) the 3rd Respondent stated that the lease expired in 2011 and the land was being repossessed by the 2nd Respondent. This ‘re-possession’ position was different from the alleged ‘renewal’ earlier complained of by the Applicant in its Statement of Claim as forming the basis of the alleged Memorandum of Understanding reached between the 1st Respondent and the shareholders of the Applicant which the Applicant had brought to court for the reliefs claimed.


But apart from this conflicting information, the Applicant also had the indenture under which the Applicant acquired the lease in issue. This was an assignment of the remainder of a 99 year lease from the original lessee of the land, Mr. Francis Nyama Oppon. According to Applicant, what was significant about this indenture is that the 2nd Respondent, who according to 3rd Respondent was ready to re-possess the ‘expired’ lease, had consented to the assignment of the 99 years lease to the


Applicant, showing that the 3rd Respondent had at all times known that the lease was to expire in 2060 and not 2011.


In effect, the basis for the transaction which the Applicant had already brought to court for cancellation on grounds of contract failure through misrepresentation, and invalidity of corporate authority, was also affected negatively by wrong transactions being conducted around the land by the 2nd and 3rd Respondents, and on the blind side of the Applicant. He argued that these new documentation presented a change in the dynamics of the present case, necessitating the court to consider the justice and convenience of the case and repeat its order for injunction without the condition attached.


The Respondent has strenuously opposed this Applicant. Once again, its response hinge on procedural and technical reasons for not listening to the application. First they argue that the writ was struck out and therefore there is no action pending in the courts to allow this court to consider the application for injunction. Second, they point to the string of applications that the Applicant has brought to court in the quest for an injunction and prays the court to find this application an abuse of process.


Third, they point to the decision in the case of Republic v High Court, Accra (Commercial Division);

Ex Parte Hesse, (Investcom Consortium Holdings SA & Scancom Ltd Interested Parties) 2007-2008 SC GLR 1230. In holding 4, the Supreme Court had said that


“notwithstanding the pendency of an appeal against an order of refusal of an application, or the fact that an appellate court was seised with the appeal, and consequently all applications related thereto must be presented to the appellate court, not the court of first instance; where a losing party has come by new or fresh material in circumstances that justify a repeat application, it – the repeat application – must be laid before the trial court, not the appellate court, since it would be a fresh application, wholly independent of the first


It was their submission that if this application for injunction is a repeat application premised on the discoveries in the 3rd Respondent’s letter of 25th April 2016 about the 2nd Respondent repossessing the land in issue, rather than the 2nd and 3rd Respondent renewing the lease; as well as the sighting of 3rd Respondent’s consent to the original lessor assigning his interest in a 99 year lease to the Applicant; then per the above holding, the proper forum for this fresh application is the high court.


Their fourth argument is that since the record of appeal has not as yet been transmitted to the Court of Appeal by the issue of Form 6, the court of appeal is not seised with jurisdiction to hear an application such as an application for injunction. They referred to a reading of rules 14 (2) and 21 of the Court of Appeal Rules CI 19 together. Rule 21 of CI 19 directs that


21. Control of proceedings during pendency of appeal


After the record of appeal has been transmitted from the court below to the court, the court shall be seized of the whole of the proceedings as between the parties and every application shall be made to the court and not to the court below, but an application may be filed in the court below for transmission to the court.


Their submission is that until the transmission of the record of appeal, the only applications the court of appeal can determine as of right are applications for extension of time within which to appeal after the court below has refused the application per rule 9, applications for stay of execution per rule 27 after the court below has refused that application, and application for stay of proceedings pending the determination of an interlocutory appeal per rule 27A of CI 19. Thus the Applicant was not entitled to the injunction from the court of appeal, because the court was not yet seised with control of all proceedings.


Regarding the fact that the injunction was first granted on conditions only for it to lapse, they submitted that the Applicant cannot purport to repeat in the Court of the Appeal, the application dismissed by the High court. They referred to the case of Republic v High court Kumasi: Ex Parte Sefa (Bank of Ghana Interested Party) (No 2); Republic v High Court, Kumasi: Ex Parte Gyamfi (Bank of Ghana Interested Party) (No 2) (Consolidated) 2013-2014) 1 SCGLR 512.


As required of a court, I have carefully reviewed the submissions of counsels on law and facts and the documents supporting the present application. I have also carefully read the provisions of CI 19 pertaining to applications.


Regarding the nullity of the writ, I believe counsel for Respondent has misjudged the effect of a judgment on appeal. And regarding the inappropriateness of this application, I see that counsel for Respondent has mis-appreciated the import of the provisions of CI 19 and the authorities that he is citing.


First, the arguments concerning the nullity of the writ. If the Respondent counsel’s position that there is no writ existing in this suit because of the high court’s pronouncement that the writ in this context was void is upheld, it will lead to the absurd result that no court, either the high court, the court of appeal or the supreme court in its supervisory jurisdiction over the high court can address any issues pertaining to this case because of that judgment.


However, it is trite learning that the potency of a judgment stands only in so far as it is not challenged on appeal and its execution stayed by an order of the court that gave the judgment or an appellate court. In the present case, the declaration of this writ as null and void has been challenged on appeal, and the judgment to the extent of restraining Applicant’s Counsel from representing it, stayed to enable the decision to be examined on appeal. In the order for stay of execution, this court also allowed Applicant counsel to prosecute the appeal, pending the determination of the propriety or otherwise of the orders in the judgment. Thus, the action commenced in the high court continues to be extremely active until all litigation raised pursuant thereto have been settled either to the satisfaction of the disputants, or by the last orders of the Supreme Court. This is the import of the machinery of justice.


In the Ex parte Hesse case cited by Respondent counsel, the Supreme Court considered whether the filing of a notice of withdrawal of appeal ended the litigation commenced by the filing of a notice of appeal. The Court per Wood CJ clarified that to the extent that the court’s rules of procedure allowed for further steps to be taken after the withdrawal of appeal, the notice of withdrawal cannot be said to have ended the appeal. The court drew attention to the principle that in the construction of statutes, the proper approach is to adopt a subjective-purpose rule, which allows a court to accept the literalist, ordinary, plain, or grammatical meaning of the words of a statute only if it clearly advances the legislative purpose or intent and does not lead to any outrageous consequences. If the literal interpretation of a statute will lead to outrageous consequences, then a court is enjoined to examine the subjective purpose of the statute.


What is the import of the complex arrangements made by the 1992 Constitution, the Courts Act and the various Rules of Procedure for Appeals and post judgment applications? They are to make sure that any action brought to court is kept alive for evaluation of the rightness of any decision unless all processes for establishing the final answer have been exhausted. It is within this context that I dismiss the underlined submission of Respondent counsel that ‘There is no writ pending and therefore Applicant’s application is incompetent


The next point for consideration is whether this application is properly before this court. Clearly, the only place to look for a determination of whether the Court of Appeal can determine an application for injunction such as is before us is within its enabling statutes.


CI 19 provides for various types of applications to be made to the Court of Appeal and orders to be made by the court in specific contexts. They include applications for extension of time within which to appeal under rule 9, orders for additional security for costs under rule 13, orders dismissing the appeal for non-compliance with various rules on the payment of deposits and securities, for withdrawal of appeals under rule 17, with or without costs, and all manner of orders and applications that the legislature deemed fit to make specific provision for. I have enumerated the above to show that the submission by counsel for Respondent on pages 2 and 3 of his submissions filed on 9th June 2016 that the only applications that the court of appeal can deal with before the transmission of the record of appeal are repeat applications for extension of time and stay of execution, and applications for stay of proceedings in the court below pending the determination of an interlocutory appeal, is untenable.


Such an evaluation of the applications that the court of appeal can deal with before the transmission of proceedings is not at all supported by the law.


In addition to various specific applications which may be addressed by the court before the record is transmitted, CI 19 also gives general powers to the court for various orders. This can be found under Rule 31


31. General powers of the Court


The Court shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the court as a court of first instance, and may


Make an order necessary for determining the real question in controversy;


Amend a defect or error in the record of appeal;


Direct a notice of appeal to be served on all or any of the parties to the action or any other proceedings or on a person not a party, and may adjourn the hearing of an appeal on the terms that are just, and also make an order as if the person served with the notice had originally been a party to the appeal;


Direct the court below to enquire into and certify its finding on a question which the court considers fit to determine before final judgment’


Make an interim order or grant an injunction which the court below is authorized to make or grant; and


Direct any necessary enquiries or accounts to be made or taken


Having established that the scope of applications that may be brought to the court of appeal before transmission of the records is so much broader than what learned counsel for Respondent has urged on this court, I must next look at how applications are to be presented to the Court of Appeal.


This is catered for in rule 28 thus:


28. Court to which application should be made

Subject to these Rules and to any other enactment, where under an enactment an application may be made to the court below or to the court, it shall be made in the first instance to the court below, but if the court below refuses to grant the application, the Applicant is entitled to have the application determined by the court.


It is Rule 28 which establishes that unless provided for otherwise, all applications authorized by enactments should first go to the court below and may be repeated in the Court of Appeal if the court below does not grant same. Rule 28 is subject to Rule 21 which gives the Court of Appeal sole jurisdiction over proceedings and applications after the record has been transmitted from the court below.


Reading rules 28 and 21 together, the appreciation is that unless differently provided for, (and there are several of these different orders – such as orders under rules 13, 17, and 18) all applications allowed in proceedings on appeal should first be made in the high court and may be repeated in the Court of Appeal if the high court refuses to grant same. However after transmission of the record of appeal to the court of appeal, the Court Appeal becomes seised with sole control of the proceedings.


It is therefore unfortunate that Respondent counsel’s submission missed this proper interpretation of the provisions made by CI 19 for the hearing of applications by the Court of Appeal.


I do not see that the teaching of the learned author and jurist, Sir Justice Dennis Dominic Adjei on page 118 of his book Land Law, Practice and Conveyancing in Ghana, Adwinsa Publications (GH) Ltd 2015 as quoted by counsel for Respondent, supports the position espoused by him on page 3 of his submissions that ‘an application for injunction can only be entertained by the court of appeal when the court is properly seised with the appeal, that is, the record has been transmitted to the court of appeal’.


Neither do I see how the facts and ratio in Republic v High court Kumasi: Ex Parte Sefa (Bank of

Ghana Interested Party) (No 2); Republic v High Court, Kumasi: Ex Parte Gyamfi (Bank of Ghana Interested Party) (No 2) (Consolidated) 2013-2014) 1 SCGLR 512 can assist with the resolution of the present case. That decision concerned an application to the high court to set aside a default judgment granted by the high court when the decision of the high court earlier refusing that same application had been appealed in the Court of Appeal, affirmed, and the Court of Appeal decision appealed in the Supreme Court, and the appeal to the Supreme Court was awaiting decision. The facts of that case and the current case are poles apart and no principle from that case can be related to the current case.


With this foundation, I will now examine whether or not the application in dispute is properly before us. Being an application for injunction, Rule 31 of CI 19 gives this court general power to deal with the application, rule 28 allows this court to deal with a repeat application from the high court, and section 12(b) of the Courts Act allows the court to vary, discharge or reverse an order for injunction made by a single Judge of the court of appeal.


In the instant case, the application was first submitted to the high court, and repeated in the court of appeal. At the court of appeal, it was dealt with by a single judge and granted, subject to conditions.


It is because the order of the single judge lapsed after 10 days owing to the non-fulfillment of the conditions attached to it that this court was disabled from examining on merit whether it is just and convenient for the court to vary, discharge, reverse or affirm the original grant by the single Judge.


Is this matter res judicata just because the original application for injunction was granted by the single judge and lapsed after 10 days? Once again, I would say no. Rule 31 (e) of CI 19 allows this court general power to ‘make an interim order or grant an injunction which the court below is authorized to make or grant’. This would include looking afresh at an application for injunction which had earlier been granted on terms.


As was stated regarding applications for injunctions which are repeated in the same court in Vanderpuye v Nartey 1977 GLR 428 ‘The courts must be left to determine at their discretion when a party is using their processes to pursue his frivolous or vexatious ends’. The critical requirement of a court in an application for injunction is to determine whether it is just and convenient to grant same.


Section 12 (b) of the Courts Act allows the full court to look again at an order earlier made by a single judge. Rule 28 of CI 19 allows a party to repeat an application which was earlier presented to the court below for consideration of the full court of appeal.


I am quite satisfied that the combined effects of Section 12 (b) of the Courts Act, rule 28 and 31 (e) of CI 19 give this court sufficient authority to admit the application as being in accordance with due process and consider it on its merit, given the fact that the original injunction order was made by a single judge of the court and lapsed after 10 days. I am also satisfied that the repetition of this application will not constitute an abuse of process because inter alia, this application addresses the reasons why the conditions attached to the first order could not be obeyed.


I will now consider the application on its merits. The critical issue for this court to consider is whether on the strength of the pleadings, affidavits, exhibits and submissions brought to this court, it is just and convenient to grant this application without the conditions that the single Judge earlier attached to the order, because it is these conditions that caused the first order to lapse.


The fact that the Applicant has thrown in ‘new material’ that its counsel says has been discovered since April 2016 does not detract from the fact that but for the conditions which the Applicant says were impracticable to fulfill, the earlier order would not have lapsed and this application could not be before us.


Injunctions are equitable reliefs that serve the purpose of ensuring that the subject matter of a dispute is not endangered during the pendency of the dispute resolution.


The general principle is that a court may exercise discretion to grant an application for injunction if the Applicant presents a case that is prima facie sustainable, not frivolous or vexatious and there is a real likelihood of irreparable damage being done to his interest in the subject matter of dispute if it is not protected from the acts complained of. There is a wealth of case law on the grounds for granting an order of injunction, several of which were cited by counsel for Applicants in his submission. My humble view is that it would be an unnecessary burden on this ruling to regurgitate them, especially when I have summarized the principles they lay down in the paragraph above.


In granting the first order of injunction, this court per the single Judge, in order to keep the balance between the parties, directed the Applicant to retrieve the 1.2 Million Ghana Cedis ostensibly paid by the Respondent on behalf of the Applicant, while the Respondent moved out of the land in dispute.


A close look at the pleadings exhibited show that from the commencement of this action, Applicant complained that it had not sanctioned the payment of that money by 1st Respondent to its own lawyer, and the Amakomhene, and had actually requested the return of the money to 1st Respondent because it did not agree to the transaction in issue. This, it claims, was as far back as September 2014. The Applicant had also sought as part of its reliefs, an order of this court ‘for the return of the GH¢1,200,000 to the 1st Defendant


Under such circumstances, it is certainly to be appreciated that the directive to ensure the return of the money it is seeking the court’s help to retrieve would have been herculean for it to achieve within the 10 day period. It is within this context that I find this repeat application to the court not a frivolous one, after the court had earlier granted the application on condition.


But apart from that, I also see that it is just and convenient to hold a balance between the parties regarding retaining the integrity of title and physical condition of this land and property pending the resolution of the appeal, and this obviously was the leaning of the single judge when she earlier granted the injunction.


The learned trial judge dismissed this suit without hearing it on the merits of the complaints per his evaluation of the import of Section 189 (3) of Act 179. However Article 125 (1) of the Constitution directs that ‘Justice emanates from the people of Ghana’ and it is only ‘administered in the name of the Republic by the Judiciary’. Thus when a citizen’s case is knocked out on technical grounds without being heard, and he appeals, I believe a prima facie case is made out to hold the balance evenly between the parties while that preliminary issue concerning whether or not the case can be determined on its merits is examined.


If the appellate courts considering this decision affirm it, the parties would have had their day in court as provided for by the Constitution. Thus this court must lean on the side of ensuring that the subject matter of the dispute is not unduly compromised before the dust settles.


Within the action itself, I see that there are complex legal issues that require careful consideration of the justice of the cause of both parties if the writ survives the appeal. These complexities cover the validity of the transaction in issue, flowing from the Applicant’s complaints about the lawfulness of authorizations of the transaction in dispute under Company law and validity of the action, flowing from the trial court’s observations about the lawfulness of the authorization to commence this action under legal procedure and Company law; whether there was misrepresentation about the subject matter of the transaction and the considerations of the transaction, flowing from the complaints of the Applicant. These are all complex issues in the law of contract, in Company law in procedure and the law of real property.


With the investments allegedly made by the 1st Respondent, and the complaint about payment of

consideration for the lease to the 2nd Respondent and not administrator of stool lands as alleged by Applicant, I am satisfied that irreversible harm may be done to the interest of either party if this court does not hold the interests of the parties in balance prior to a judicial enquiry into the issues of fact and law raised by the case, in the event that the appeal succeeds.


Regarding on whose side irreversible harm will lie if the injunction is not granted prior to determination of the appeal, I do not find it difficult to determine that both parties stand in grave danger of severe losses if they are not kept away from causing irreparable change to the nature of the subject matter and the matter is decided in favor of either party at the end of the suit.


It has already been demonstrated that when the first order was given by this court that the Respondent move from the site in dispute, it was able to obey the court’s order in a speedy fashion. Thus an order to the Respondent to restrain it from dealing with, disposing of, alienating and/or interfering, entering and/or remaining in occupation of the land in dispute pending the determination of the appeal should not be a matter of grave difficulty. If it has easily obeyed it the first time, it can continue with this order.


We now go further and restrain not only the 1st Respondent, but the Applicant and the 2nd and 3rd Respondents from in any way disposing of, or consenting to the alienation of any interests in Plots nos. 16 and 20 Block A, Asokwa Industrial Area, Kumasi, pending the final determination of the appeal against the decision of the High Court dated 27th February 2015.


The application is granted in the above terms. No order as to costs.