IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
KUMASI - A.D 2018
EXCEL OIL COMPANY LIMITED -(Plaintiff/Applicant/Respondent)
CROWN PETROLEUM GHANA LIMITED -(Defendant/Respondent/Appellant)
DATE: 13 TH NOVEMBER, 2018
SUIT NO: H1/18/2018
JUDGES: ADUAMA OSEI JA (PRESIDING), SENYO DZAMEFE JA, WELBOURNE (MRS.) JA
DR. OPOKU ADUSEI FOR DEFENDANT/RESPONDENT/ APPELLANT
DENNIS KUMA KWAKYE FOR PLAINTIFF/APPLICANT/ RESPONDDENT
ADUAMA OSEI JA:
In this judgment, the Plaintiff/Applicant/Respondent is referred to as “the Plaintiff”, and the Defendant/Respondent/Appellant is referred to as “the Defendant”.
By a writ of summons issued in the High Court, Kumasi, on the 28th of August, 2017, the Plaintiff is seeking the following reliefs against the Defendant:
“a) An order of injunction restraining the defendant either by itself, agents, assigns, privies, etc. of whatever name or description so called from interfering with the plaintiff’s control, management, etc. of a fuel/filling station at Kumasi Afrancho belonging to New Champion Enterprise Ltd. which is a subject matter of fuel dealership agreement between the plaintiff and the said New Champion Enterprise Ltd.
“b) An order for the recovery of the cost of the fuel at The New Champion Enterprise Limited at Kumasi-Afrancho at the time that the defendant unlawfully/forcefully took over the said fuel/filling station from the control/management of the plaintiff which at the time stood at GHC 74,445.25.
“c) An order compelling the defendant to surrender all the tools, equipment belonging to the plaintiff which the defendant removed or have taken away from The New Champion Enterprise Limited fuel/filling station at Afrancho or alternatively pay for the said equipment and the cost of fixing them.
“d) General/exemplary damages against the defendant for his unlawful interference with the Plaintiff’s business at the aforementioned filling/fuel station at Kumasi-Afrancho.
“e) Any appropriate reliefs in the circumstance of the case”.
The statement of claim accompanying the writ of summons gives the Plaintiff’s explanation for seeking the reliefs set out above. In the statement of claim, the Plaintiff describes itself as an oil marketing company registered under the laws of Ghana, and it describes the Defendant also as an oil company registered as such under the laws of Ghana. It alleges that it had a fuel dealership agreement with a company called The Champion Enterprise Limited in respect of the said company’s fuel/filling station at Kumasi-Afrancho which had brought about the Plaintiff taking over and managing the said station. The Plaintiff alleges in the statement of claim that under the dealership agreement, it was required to supply fuel to The Champion Enterprise Limited for a period of ten years and that if arising out of the agreement, The Champion Enterprise incurred a debt which remained outstanding for three months or more, the Plaintiff was entitled to take over the station and manage and run it until all the debt and the interest accrued thereon were completely liquidated.
The Plaintiff explains in the statement of claim that it was because The Champion Enterprise Limited had been in such default that it took over the Kumasi-Afrancho fuel station which it managed for eight years before the Defendant’s interference. The Plaintiff’s grievance against the Defendant in the pending suit is that while it was in occupation of the filling station in exercise of its right under the dealership agreement, the Defendant had without just cause invaded the station and had forcibly taken it over. The Plaintiff alleges that as at the time the Defendant forcibly took over the filling station, it had deposited petroleum stocks amounting to GH¢74,445.25 at the station. The Plaintiff alleges further that the facilities the Defendant had unlawfully taken over included facilities which it had itself installed at the station. The Plaintiff alleges that the conduct of the Defendant in taking over the station was adversely affecting its business fortunes and operations, and would have the effect of depriving it of its means of recovering the debt owed to it by The Champion Enterprise Limited. The Plaintiff contends that unless the Defendant is restrained, its right to operate the station will continue to be compromised much to its detriment.
Just about an hour after it had issued the writ, the Plaintiff filed an application in the High Court under Order 25 of the Rules of the High Court, CI. 47, for restraining orders against the Defendant. Specifically, the Plaintiff’s application was for an order “to restrain the defendant either by itself, agents, assigns, etc. or by whatsoever or whomsoever called from entering upon or having anything to do with all the fuel/service station (the property of The New Champion Enterprise Ltd.) situate at Kumasi Afrancho until the final determination/conclusion of this case”.
The Plaintiff’s justification for the application was given in the supporting affidavit which included allegations contained in the statement of claim and attached documents in support of some of the allegations. In the supporting affidavit, the Plaintiff underscored the need for the trial Court to preserve the status quo ante by granting the application. The Plaintiff contended in the affidavit that refusal to grant the application would send a wrong signal to the general public that individuals could take the law into their own hands to solve their perceived problems. The Plaintiff also contended in the affidavit that failure to grant the application would mean that it would not be able to retrieve the debt owed it by The New Champion Enterprise and irreparable damage would be done to it thereby.
In its affidavit in opposition to the application, the Defendant noted that the filling station in respect of which the Plaintiff had instituted its action and filed the application had been purchased by it at a public auction under a judicial sale. The Defendant contended that in the circumstance, the sale could not be impeached on such frivolous and vexatious grounds as had been offered by the Plaintiff. The Defendant contended that the Plaintiff had failed in the application to demonstrate that it had any ownership interest in the filling station. The Defendant sought to explain that it purchased the filling station in execution of a judgment Stanbic Bank Ghana Limited had obtained against one Osei Yaw Amaning trading under the name and style of The Champion Enterprise. The Defendant also deposed in its affidavit that the judgment of the High Court in favour of Stanbic had been affirmed by this Court.
Regarding the allegation by the Plaintiff that the Defendant took possession of the filling station forcibly and without just cause, the Defendant deposed that it was sheriffs of the Court who on the orders of the Court put it in possession of the station. The Defendant also noted that if the Plaintiff had been diligent at the time it entered into the dealership agreement with The Champion Enterprise and had conducted a search, it would have discovered that as long ago as 2005, the filling station had been mortgaged to Stanbic Bank Limited and had been registered at the Land Registry in the name of the Bank. The Defendant also exhibited several documents in support of the matters deposed to in the affidavit.
After considering the arguments for and against the application, the trial Court allowed the application and made an order restraining the Defendant, its agents and servants from having anything to do with the fuel station until the final determination of the case. The Plaintiff was however ordered to make an undertaking within 7 days that if it lost the case, it would compensate the Defendant in the sum of GH¢100,000.00.
The Defendant has filed this appeal because it is not satisfied with the ruling of the trial Court and it is praying this Court to reverse the same. The grounds on which the Defendant is seeking a reversal of the trial Court’s ruling are that:
“i. The learned trial judge erred in granting an interim injunction to the Respondent without weighing the balance of hardships occasioned by the stop order.
“ii. The trial Court wrongfully exercised its discretion when it failed to take into consideration the Appellant’s legal ownership interest in the subject matter of the suit.
“iii. The learned trial judge erred by granting an interim injunction which contradicts the refusal of a stay of execution by the Court of Appeal, Kumasi in respect of the subject matter.
“iv. The learned trial judge erred in granting an interim injunction which has the effect of setting aside execution processes sanctioned by the High Court, Commercial Division, Kumasi and the Court of Appeal, Kumasi.
“v. The trial judge erred in not dismissing the application for interim injunction on grounds of abuse of the processes of court, when the ownership of the contents of the underground fuel had been claimed by Osei Yaw Amaning and adjudicated upon by the Court of Appeal, Kumasi.
“vi. The ruling is against the weight of the affidavit evidence”.
The ruling appealed from is at page 124 to page 134 of the Record of Appeal, and the Notice of Appeal is at pages 135 and 136 of the same Record. In his filed submissions, Counsel for the Defendant argued grounds (i), (ii) and (vi) together, and also argued grounds (iii), (iv) and (v) together.
Under grounds (i), (ii) and (vi) of the appeal, Counsel for the Defendant contended that the trial Court grievously erred when it granted an interim injunction to the Plaintiff without weighing the balance of hardships that would result from the injunction order. In the view of Counsel, there was overwhelming affidavit evidence on record which confirmed that the Defendant was the legal owner of the filling station, having purchased the same for GH¢1,000,000.00 in 2013. Counsel considered that the trial Court had however closed its eyes to the evidence and had made an injunction order in respect of the station in favour of the Plaintiff.
Counsel argued further that if indeed the Plaintiff had any interest in the filling station, it would have prompted the commencement of interpleader proceedings in respect of the station when the Defendant took steps to go into execution. The Plaintiff did nothing of that sort because it had no interest to be established in interpleader proceedings. Counsel said it is clear from the evidence that the only interest the Plaintiff is complaining about is fuel valued GH¢62,689.00 which it claimed it had supplied to Osei Yaw Amaning. Counsel considered however that that was an interest for which the Plaintiff could be compensated in monetary terms if he was able to establish it. Counsel said this could not be compared with the case of the Defendant who had as long ago as 2013, paid GH¢1,000,000.00 for the station. Counsel saw this as a case of making an injunction order without considering the relative convenience of the parties.
Arguing grounds (iii), (iv) and (v), of the appeal, Counsel for the Defendant contended that in making the injunction order, the trial Court was brining itself on collision course with this Court which had refused an application for stay of execution brought in respect of the filling station. Counsel submitted that this was in defiance of the doctrine of stare decisis, and the hierarchical ordering of courts under our legal system.
In his response to the submissions made on behalf of the Defendant, Counsel for the Plaintiff referred to sub-rules (5) and (6) of rule 8 of CI.19 and contended that grounds (iii), (iv) and (v) of the appeal, as formulated by the Defendant, were argumentative and narrative and disclosed no reasonable ground of appeal. He invited this Court to strike them out as incompetent. Having so dealt with grounds (iii), and (v), Counsel proceeded to submit that the trial Court was right in making the injunction order. He submitted that an appeal against the exercise of discretion by a trial court should succeed only in exceptional circumstances. One such circumstance, according to Counsel, is where the trial Court is shown to have failed to exercise its discretion judicially. Counsel referred to the ruling of the trial Court and to some exhibits on record and contended that in the present case, the Defendant had failed to demonstrate that the trial Court did not exercise its discretion judicially. In the view of Counsel the trial Court exercised its discretion properly and its findings ought not be disturbed by this Court.
Dealing with the contention made on behalf of the Defendant that it would suffer greater hardship from the injunction order, Counsel for the Plaintiff observed that the Defendant had not been able to demonstrate that it had purchased the filling station. In that circumstance, in the view of Counsel, the question of greater hardship did not arise. Counsel contended that all arguments in the appeal touching on title, inconvenience, greater hardship, res judicata and privity of contract were completely out of place and ought to be dismissed.
The application which has culminated in this appeal was brought under Order 25 of the Rules of the High Court, CI.47. By rule 1 sub-rule (1) of that Order, the Court has power to “grant an injunction by interlocutory order in all cases in which it appears to the Court to be just and convenient to do so”. An order made under the sub-rule may either be unconditional or subject to such terms and conditions as the Court considers just.
In the ruling appealed from, the trial Court acknowledged the definition of injunction in Black’s Law Dictionary, 9th Edition, in which the term was explained as a judicial process or mandate operating in personam in which upon certain established principles of equity, a party is required to do or refrain from doing a particular thing. I am inclined to approach this judgment with that definition in mind. But since in this appeal, we are considering a ruling made in an application for interlocutory injunction, I consider it helpful that we do not go into the matter as if there had been a trial on the merits. In the case of an application for interlocutory injunction, the object is to maintain the status quo until the question at issue between the parties can be determined. Whether or not to grant it is therefore considered when there has not been a trial on the merits.
Dealing with the application when there has not been a trial on the merits means dealing with it without oral evidence which has been tested by cross-examination for its veracity or otherwise. What the court has are the pleadings and affidavit evidence and in this circumstance, the governing principle, as suggested by Vanderpuye Vs. Nartey  1 GLR 428, should be whether on the face of the affidavits, there is the need to preserve the status quo in order to avoid irreparable damage. The considerations in determining this need are whether there is a serious question to be tried, whether damages would be inadequate, whether it is convenient, and whether there are any special circumstances that call for a grant or refusal of the application. An injunction being an equitable relief, granting it is a matter for the discretion of the Court.
The exercise of the Court’s discretion may have the consequence that even where the applicant has shown that his rights are being infringed, he may be refused the order and left to his remedy in damages. The Court may also find his behaviour to have been such as to disqualify him from obtaining an equitable relief, and public interest may provide a special circumstance for the refusal of his application.
But the Court does not exercise its discretion arbitrarily. In Doherty Vs. Allman (1878) 3 App. Cas. 709, Lord Blackurn stated that the discretion of the court “is not one to be exercised according to the fancy of whoever is to exercise the jurisdiction of Equity”. As I observed in Madam Akosua Atta Vs. Abena Nkyem & 3 Others, unreported Civil Appeal No. H1/28/2018, dated 24th July, 2018, the discretion is to be exercised judicially according to the rules as established by precedent. I explained in the same case that the exercise of judicial discretion involves making a choice in a situation where there is no fixed rule for decision making. The choice is between two or more legally valid solutions, and this choice should not be made arbitrarily or capriciously. The end of that choice is the attainment of what is fair and equitable, having regard to the circumstances of the particular case and the law.
In the present case, as we have noted above, the choice the trial Court made was that of upholding the Plaintiff’s application and restraining the Defendant, its agents and servants from having anything to do with the fuel station until the final determination of the case. From the ruling, the determining factors for making that choice were that Plaintiff’s action raised triable issues, that the application was neither frivolous nor vexatious, and that the balance of convenience favoured the grant of the application. What appears to have weighed the balance of convenience in favour of granting the application was the view formed by the trial Court that there were contradictions in the processes exhibited by the Defendant.
Now, under paragraph 4 of its notice of appeal, the Defendant is praying this Court to reverse the trial Court’s ruling, and the question is whether there is good ground for granting this prayer. Among the grounds of objection filed by the Defendant against the ruling of the trial Court is the contention that the ruling is against the weight of affidavit evidence. As settled by the authorities, the most commonly cited in recent times being Tuakwa Vs. Bosom [2001-2002] SCGLR 61, this contention enjoins this Court to review the entire record and decide for itself whether on a balance of the probabilities, the decision of the trial Court has reasonable support from the record.
For the purpose of determining whether the decision of the trial Court has reasonable support from the record, I find it convenient to start my review of the record in the context of the contention that the decision of the trial Court was against the weight of affidavit evidence. As may be gathered from the indorsements on its writ of summons, the claims in support of which the Plaintiff applied for the interlocutory injunction order are a claim for recovery of the cost of fuel valued, at the date of the wrongful act alleged against the Defendant, at GH¢ 74,445.25, a claim for an order compelling the Defendant to surrender all the tools and equipment belonging to it which the Defendant is alleged to have removed or taken away when it perpetrated the wrongful act complained about, or in the alternative, the cost of the said tools and equipment, and a claim for general or exemplary damages for the Defendant’s unlawful interference with its business.
In its statement of claim and affidavit supporting the application, the Plaintiff alleged the existence of a fuel dealership agreement between itself and a company called The Champion Enterprise Limited under which it had taken over a fuel station belonging to that company for the purpose of recovering the said company’s indebtedness to it. While the Plaintiff was exercising its right of control and management of the fuel station for the said purpose, the Defendant was alleged to have invaded the station and seized control of it, together with its petroleum stocks amounting to GH¢74,445.25 and equipment and facilities belonging to the Plaintiff. The Plaintiff alleged that the conduct of the Defendant in taking over the station was adversely affecting its business fortunes and operations, and had the effect of depriving it of its means of recovering the debt owed to it by The Champion Enterprise Limited. The fear for which the Plaintiff was seeking the interlocutory order pending the trial of the case on the merits was that its right to operate the station would continue to be compromised much to its detriment.
Among documents exhibited by the Plaintiff in the application were an MOU, a dealership agreement dated 4th August, 2009, and a statement of account between the Plaintiff and The Champion Enterprise Limited as at 31st July, 2017.There were also pictures said to be showing the Defendant in the process of installing its corporate logo at the seized station. A reading of the MOU and the dealership agreement together shows that the amount of the indebtedness that brought about the take-over of the fuel station by the Plaintiff was GH¢63,800.01, and the statement of account shows that petroleum stocks the Plaintiff had allegedly deposited at the station at the time of its seizure by the Defendant amounted to GH¢62, 689.42.
Even at a stage where account has not been taken of the matters deposed to in the Defendant’s affidavit in opposition, I find nothing in the facts alleged by the Plaintiff and the documents exhibited by it that point to a potential loss or damage that cannot be redressed in monetary terms. As noted above about the factors that influence the making of interlocutory injunction orders, the main purpose of the order is to preserve the status quo so that irreparable damage is not suffered by the applicant while the court takes its time to try the action on the merits. Without demonstrating that damages would be inadequate in the event of the action succeeding, the applicant stands little chance of succeeding in the application. And as I have stated, I find nothing in the matters placed before the trial Court by the Plaintiff that presages a loss or damage incapable of being remedied monetarily. There is also no evidence of any special circumstance that compels the making of a preservation order in spite of the fact that the Plaintiff’s claim is not of a nature that would normally attract a preservation order.
But in the affidavit in opposition, the Defendant adds another dimension to the matter with depositions that further dissuade a favourable consideration of the application. It is claimed by the Defendant in its affidavit that it did not invade the filling station as alleged by the Plaintiff, but that it was put in possession by sheriffs of the Court in execution of a judgment of the Court. It is alleged by the Defendant that it purchased the filling station for GH¢1,000,000.00 at a public auction under a judicial sale and that it was in pursuance of the said sale that sheriffs put it in possession. Allegations have also been made of developments concerning the fuel station that have resulted in decisions and orders by the High Court and this Court. And documents in the form of a deed of mortgage, judgments and rulings of the High Court and of this Court, a certificate of purchase, a writ of possession, and other documents, have been exhibited in support of the allegations and claims made in the affidavit. Regarding the dealership agreement alleged by the plaintiff in respect of the fuel station, the Defendant has contended that the Plaintiff failed to conduct an official search before entering into the said agreement and that if it had done so, it would have discovered that the property had been the subject of a mortgage in favour of Stanbic Bank Limited since 2005.
From my reading of the affidavits and their annexures, I see in the Plaintiff’s action and other proceedings that may have a bearing on its subject matter, the likelihood of the processes of the Court being played against one another. The Court’s processes are expected to work harmoniously to preserve its dignity and status as the custodian and ultimate insurer of justice. To my mind, the Court’s image is not helped when its orders and processes are so circumstanced as to be seen working against one another. We are here dealing with an interlocutory matter and nothing has yet been proved. Order 25, rule 1(1) permits the Court to grant an injunction by an interlocutory order where the Court finds it just and convenient so to do. And to my mind, when the determination of the question of convenience is between preserving the image of the Court and preserving a claim capable of being redressed in monetary terms, the Court will stand by its image. In that situation, at a time when the Court has not yet had the opportunity to investigate proceedings or processes involving or attributed to it, an order preserving a claim amenable to monetary compensation will not be a convenient one to make.
Also to be noted is the Defendant’s argument that if the Plaintiff had conducted an official search before entering into its dealership agreement with The Champion Enterprise Limited, it would have realised that the fuel station, the subject matter of that agreement, was encumbered. The significance of that argument is that the order the Plaintiff was seeking before the trial Court was an equitable relief which called for evidence of diligence on the part of the applicant. Evidence of failure to conduct an official search before entering into a transaction concerning land is evidence of lack of diligence and in the present case, it places the Plaintiff’s case in an unfavourable light.
Having reviewed the record, my view is that on the affidavit evidence, the Plaintiff was not entitled to the interlocutory order it sought. But as we just noted, the trial Court saw it differently and granted the Plaintiff’s application. The question now is whether this Court ought to defer to the trial Court or reverse that Court’s decision. When a lower court has in the name of fairness and equity made a choice according to its understanding of the circumstances of the case before it, how appropriate is it for an appellate court to interfere with that choice? The view expressed by Georgina Wood JSC, as she then was, in Sappor Vs. Wigatap Limited [2007-2008] SCGLR 626 (679), was that where the lower court has applied wrong principles or reached a conclusion which would work manifest injustice or where the discretion was exercised on wrong or inadequate material, it is open to an appellate court to interfere with it.
But it does seem from what Lord Wright stated in Evans Vs. Bartlam  2 All ER 486 (654) that the appellate court is not expected to consider that simply because the trial court had jurisdiction and had all the facts before it when it exercised the discretion, unless the trial court is shown to have applied the wrong principle, it is inappropriate for it, as an appellate court, to review the trial court’s order. In the view of Lord Wright, the appellate court must “if necessary, examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order”. What Lord Wright advised is analogous to the settled position as to what is required of the appellate Court where an appellant has contended that the judgment is against the weight of the evidence.
This encourages and strengthens me in my view that this Court should not uphold the trial Court’s decision for the mere reason that it took that decision within its jurisdiction and with all the facts before it. In my opinion, without examining on its own the facts and circumstances of the case, this Court cannot fairly decide whether or not the decision of the trial Court ought to be upheld. From the ruling of the trial Court, it is clear to me that in deciding to grant the Plaintiff’s application, it was very much influenced by where, in its view, the balance of convenience should fall. And it is also clear that in determining that the balance of convenience favoured granting the application, inconsistencies the trial Court seems to have discovered in the Defendant’s exhibits weighed heavily on its mind. It is my respectful view however that the trial Court determined these important matters from the wrong angle. What was being considered was an application brought by the Plaintiff. It was an application for an equitable relief, and its purpose was the preservation of the status quo pending the determination of the case on the merits.
In this circumstance, in my view, the Plaintiff was the prime focus. It was the applicant. And the trial Court needed to determine about the Plaintiff in the first instance, whether having regard to the case it had presented, there was the need to preserve the status quo in order to prevent it suffering irreparable damage. Because avoidance of irreparable damage was the purpose of the preservation order the Plaintiff was seeking, the trial Court needed to be satisfied that the case presented by the Plaintiff was of a nature incapable of monetary redress. Further, in my view, because the order sought was an equitable relief, the trial Court, in the second instance, needed to be satisfied that no circumstance existed concerning the Plaintiff that should deny it the equitable relief it was seeking.
Now, what was the case presented by the Plaintiff? The Plaintiff’s case was simply that there was a fuel dealership agreement between itself and The Champion Enterprise Limited under which it had taken over a fuel station owned by The Champion Enterprise Limited. The purpose for taking over that station was the recovery of a debt owed to it by The Champion Enterprise Limited. The Defendant had forcibly taken over the said fuel station from the Plaintiff, together with petroleum stocks, equipment and facilities owned by the Plaintiff. And by its conduct in so doing, the Defendant was depriving the Plaintiff of its means of recovering the indebtedness of The Champion Enterprise Limited to it. There was therefore the fear that unless the status quo was preserved by an interlocutory injunction order while the Court took its time to hear the case on the merits, the Plaintiff’s right to operate the station would continue to be compromised much to its detriment.
This, in a nutshell, was the Plaintiff’s case before the trial Court, and as we observed above, we are considering this matter when there has not been a trial on the merits and when, therefore, there has not been oral evidence tested by cross-examination for its veracity or otherwise. But even assuming the case alleged by the Plaintiff is taken as proved, does it establish a case which, by the considerations discussed above, calls for an interim preservation order? I do not see how it does. In the case alleged, we see a forcible take-over of a fuel station, we see impediments to the recovery of a debt, and we see impediments to the exercise of a right to operate a fuel station. But I find nothing in these, whether taken together or severally, that is incapable of monetary compensation. With regard to the determination the trial Court had to make in the first instance therefore, I will say that there was no case made that called for an interim preservation order.
Then there is on record the allegation that before it entered into the dealership agreement concerning the fuel station the Plaintiff failed to conduct an official search to satisfy itself that the fuel station was not encumbered. This omission would suggest lack of diligence on the part of the Plaintiff and if the trial Court, in the second instance, looked for circumstances concerning the Plaintiff that disqualified him from obtaining an equitable relief, this omission provided such circumstance.
If by its nature, the case presented by the Plaintiff was capable of being redressed in monetary terms and did not therefore entitle it to the interlocutory order it sought, I do not see how inconsistencies in the Defendant’s exhibits could change the essence of the Plaintiff’s case and render it incapable of being redressed in monetary terms. Inconsistencies in exhibits may mean that the exhibits are unreliable and liable to be disregarded in the Court’s evaluation of the case. The fact however is that disregarding the exhibits will not necessarily enhance the Plaintiff’s case. Its effect will be to leave the Plaintiff’s case where it has always been – a claim capable of being redressed in monetary terms.
Also, if the Plaintiff was not entitled to an equitable relief because of lack of diligence on its part, I do not see how inconsistencies in the exhibits would cure its disability in that respect and cloth it with a right to the relief sought. In short even before the stage had been reached in the application for the Defendant’s side of the matter to be considered, it was glaring on the affidavit evidence that the Plaintiff was not entitled to an interlocutory injunction order. And there is no evidence of any special circumstance that persuades the making of a preservation order in spite of the inadequacies identified in the Plaintiff’s case and the lack of diligence alleged about the Plaintiff.
The error the trial Court appears to have fallen into was that it counted what it considered as weaknesses in the case of the Defendant as cures for the ailments in the Plaintiff’s case. The trial Court focused attention on the Defendant on matters in respect of which attention should have been focused on the Plaintiff. We therefore have in the ruling, a situation in which in reviewing the facts in order to exercise its discretion, the trial Court relied on wrong or inadequate material, if we are to resort to Sappor Vs. Wigatap Limited (supra). In my view, a decision based on wrong or inadequate material cannot be said to be a product of proper exercise of discretion.
Therefore, to the question whether this Court ought to defer to the trial Court’s decision in granting the Plaintiff’s application for interlocutory injunction, my answer is that on the facts and circumstances of the present case, it should not. While the appellate court should not be too eager to substitute its discretion for that of the trial court, it has a duty to re-examine the facts that were placed before the trial court and consider whether on the facts of that particular case, it ought not exercise a discretion the outcome of which may be different from that of the trial court. It is clear to me from my examination of the record in the present case that the decision by the trial Court is not supported by the affidavit evidence. The decision, in my view, was the result of a wrong exercise of discretion and ought to be set aside. I therefore allow the appeal under-ground (vi) and set aside the ruling of the trial Court dated 27th September, 2017.
It follows that consideration of the remaining grounds of appeal, including grounds (iii), (iv) and (v) in respect of which Counsel for the Plaintiff had raised a preliminary objection, is unnecessary. This matter shall go back to the trial Court for pleadings to take their normal course and for the trial to be conducted before a different judge of that Court.
K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]
I ALSO AGREE MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]