IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
KUMASI METROPOLITAN ASSEMBLY - (Plaintiff/Respondent)
PETER OSEI ASSIBEY AND KWAKU ASARE - (Defendants/Appellants)
DATE: 27TH FEBRUARY, 2018
CIVIL APPEAL NO: H1/66/2012
JUDGES: ADUAMA OSEI JA (PRESIDING), SENYO DZAMEFE JA, WELBOURNE (MRS.) JA
PATRICK ADU POKU FOR PLAINTIFF/RESPONDENT
KWAME BOAFO FOR 2ND DEFENDANT/APPELLANT
This is an appeal against a ruling given by the Land Division of the High Court, Kumasi in an application for interlocutory injunction in which the High Court restrained the Defendants/Appellants, their servants, agents, assigns and all persons representing them, from “renaming, opening, purporting to and or operating from the site known as Adehyeman Gardens for public, social function, recreational and or human activity without the written consent involvement and or approval” of the Plaintiff/Respondent.
The reliefs sought in the action in which the application was made are as follows:
“a. A declaration that land formerly known as Kejetia Play Ground but now known and described as Adehyeman Gardens is a public property under the control of the Plaintiff and consequently no change of name , business operation, social function, recreational and human activity can take place without the consent, involvement and or approval of Kumasi Metropolitan Assembly.
“b. A declaration that the conditions contained in the Terms of Settlement which resulted into the Consent Judgment dated the 17th day of May 2006 are binding on the parties herein and that no party can purport to implement the judgment exclusive of the other interested parties and or in the alternative:
A declaration that the 1st Defendant perpetrated fraud and or misrepresentation on the Plaintiff Assembly by agreeing to, preparing and signing the Terms of Reference which resulted in the Consent Judgment but reneging on same and consequently that same be set aside and declared null and void.
“c. A declaration that the clandestine attempts made by the 1st and 2nd Defendants to acquire the site known as Kejetia Play Ground also known as Adehyeman Gardens in their respective company names without the knowledge, approval and consent of the Plaintiff amounted to fraud and misrepresentation.
“d. A declaration that valuation of the land, rendering of account of the stewardship of the Defendants in operating the Adehyeman Gardens, the formation of a new Joint Ventrure and others contained in the Consent Judgment are conditions precedent for the parties’ future dealings with the site.
“e. An order abrogating the existing understanding and or contracts between the Plaintiff and the Defendants on account of fraud and or misrepresentation, exhibition of bad faith and ceasation of condition of mutual trust on the part of the 1st and 2nd Defendants.
“f. Perpetual injunction restraining the Defendants, their agents, workmen, and all persons claiming through them from interfering with the interests and rights of the Plaintiff in the site known as Kejetia Play Ground also known as Adehyeman Gardens without the written consent involvement and or approval of the Plaintiff”.
The motion for the injunction order was filed on the same day as the writ of summons in the action was filed, and in the affidavit accompanying the motion paper, the Plaintiff/Respondent complained that the Defendants/Appellants had shown an intention and had been engaged in acts, activities and conduct which, pending the trial Court’s determination of the claims made in the action, necessitated the making of the restraining order prayed for.
As an assertion of a right to institute the action and also seek the restraining order prayed for, the Plaintiff/Respondent alleged in the affidavit accompanying its application that the premises in issue is public land and is its property by law and has been under its control and possession from time immemorial.
Regarding the acts, activities and conduct on the part of the Defendants/Appellants that had given rise to the application, the Plaintiff/Respondent stated in its supporting affidavit that sometime in the 1990s, it entered into an agreement with the Defendants/Appellants for the operation of a joint venture, being a recreational centre to be known as “Adehyeman Gardens”, on the premises in dispute. Sometime in 2006, a dispute arose between the Plaintiff/Respondent and the Defendants/Appellants which brought the operation of the joint-ventureship to a halt. The dispute was however settled and the terms of settlement were entered by the Court as a consent judgment. The terms of settlement spelt out the respective obligations to be met by the parties before the operation of the joint-ventureship could resume.
There had however been wranglings between the Defendants/ Appellants which had made it impossible for the terms of settlement to be implemented to pave the way for the re-opening of the joint-ventureship. And while the matters that had been impeding the implementation of the terms of settlement remained unresolved, the 1st Defendant/Appellant had evinced an intention, in disregard of the terms of settlement, to unilaterally resume the operations of the joint-ventureship under a new name, “Adehyeman Foundation”. It was alleged that, indeed, there had been an occasion when the 1st Defendant/Appellant opened the premises of the joint-ventureship for a wedding ceremony. The 1st Defendant/Appellant had also published notices of his intention to re-open the premises for business. The Defendants/Appellants had also been engaged in prolonged litigation and had made attempts to divest the Plaintiff/Respondent of its equity in the joint-ventureship. The circumstances, it was contended by the Plaintiff/Respondent, demanded that, pending the determination of the suit, the Defendants/Appellants were restrained as prayed for in the application.
In his affidavit in opposition, the 1stDefendant/Appellant stated that in furtherance of the consent judgment mentioned by the Plaintiff/Respondent, he had been granted leave to take possession of the premises in issue and that pursuant to the leave granted, he had indeed taken possession of the same. He stated further that subsequent to his taking possession of the premises, the Plaintiff/Respondent, constituted by a different administration, had attempted to eject him from the premises and it was by an injunction order made by the Circuit Court that he was able to defeat the attempt. The 1st Defendant/Appellant denied that he was responsible for the delay in implementing the terms of settlement and alleged that it was the Plaintiff/ Respondent who, by his lawyer, made it impossible for the parties to meet to resolve matters for the business to progress. Regarding the allegation by the Plaintiff/Respondent that he had shown an intention to unilaterally resume the operation of the project, the 1st Defendant/Appellant stated that he had already started operating his business on the premises and that preventing him from carrying on the business would cause him and his business irreparable damage. He stated that he had spent a fortune to renovate the premises and observed that granting the application would render the investment made by him a waste. He stated further that granting the application would cause a deterioration in the project and change the status quo.
The 2nd Defendant, for its part, described the consent judgment mentioned by the Plaintiff/Respondent as fraudulent and mischievous. In its affidavit in opposition to the application, the 2nd Defendant/Appellant denied the Plaintiff/Respondent’s allegation that there was a dispute between it and the Defendants/Appellants which ended with the entry of the consent judgment. The 2nd Defendant/Appellant stated that it was not a party to the terms of settlement which were adopted by the Court as a consent judgment and it disputed the binding effect of the said consent judgment on it.
The 2nd Defendant also denied the existence of a joint-ventureship involving the Plaintiff/Respondent, the 1st Defendant/Appellant and itself in respect of the disputed premises. It contended that the Plaintiff/Respondent never had a contract with the 1st Defendant/Appellant to run the premises and that it was the only entity that had a contract with the Plaintiff/Respondent for the running of the premises. The 2nd Defendant/Appellant alleged that in pursuance of its contract with the Plaintiff/Respondent, it had put up a storey building and other buildings comprising a conference hall, a dining hall, a kitchen, a restaurant and several other facilities on the premises. It alleged further that having thus developed the premises, it had operated the same as a modern tourist centre, in accordance with its contract with the Plaintiff/Respondent. The 2nd Defendant/Appellant contended that since it was the 1st Defendant/Appellant who was doing the acts complained of by the Plaintiff/Respondent, it was only the 1st Defendant/Appellant, and he only, who had to be restrained as prayed for in the application.
It was after reviewing the rival contentions of the parties, supported by exhibits, that the trial Court gave the ruling mentioned above, which the 1st Defendant/Appellant and the 2nd Defendant/Appellant have objected to in their respective appeals to this Court. The 1st Defendant/Appellant’s notice of appeal appears at pages 233 and 234 of the appeal record, and the 2nd Defendant/Appellant’s notice of appeal appears at pages 235 and 236 of the same record. The ruling appealed against is at page 229 to page 232 of the appeal record.
In this judgment, the Plaintiff/Respondent will be referred to as “the Plaintiff”, and the 1st and 2nd Defendants/Appellants will be referred to as “the 1st Defendant” and “the 2nd Defendant” respectively.
The grounds on which the 1st Defendant is questioning the ruling of the trial Court are that:
“a) The Court erred when it made an order restraining the 1st Defendant/Appellant from opening and operating from the site known as Adehyeman Gardens for any public, social functions, recreational and or human activity without the written consent involvement or approval of the Applicant.
“b) The Court erred when it restrained the 1st Defendant/Appellant in spite of an earlier order by the High Court to put him in possession.
“c) The Court erred when it held that the orders that the Applicants were seeking did not undermine the order of the High Court putting them in possession.
For the 2nd Defendant, the grounds of objection are that:
“(i) The learned High Court judge erred, on the fact of the case, in ordering or restraining the 2nd Defendant/Appellant from opening and operating the site known as Adehyeman Gardens for any public, social function, recreational and or human activity without the written consent, involvement and or approval of the Applicant.
“(ii) The order of interim/interlocutory injunction ought to have been made against the 1st Defendant.
“(iii) Additional grounds of appeal to be filed upon receipt of the record of proceedings”.
On the 13th of June, 2011, Counsel for the 1st Defendant filed a notice setting out the following as additional grounds of appeal:
“C(1). The trial Judge committed a fundamental jurisdictional error of law when he ordered the parties herein to sit down to implement the modalities contained in the consent judgment in suit No. Ei/276/04 dated the 22nd day of June, 2004 when the 2nd defendant was not a party to the said suit thereby unnustifiably clothing the 2nd Defendant with some benefits under the said consent judgment.
“C(2). The trial Judge committed a jurisdictional error of law when he restrained the 1st defendant from managing and or operating human, public, social and or recreational activities at a place known as Adehyeman Foundations despite the fact that the business was an on-going one and the 1st defendant was in possession of same pursuant to an order of a Writ of Possession issued by His Lordship Justice Yaw Appau of the High Court dated the 24th day of July, 2006 in pursuance of a consent judgment in suit No. EI/276/04 which has not been set asided.
“C(3). The trial Judge committed a fundamental error of law when he ordered the parties herein to implement the modalities expressly contained in the consent judgment in suit No. EI/276/04 dated the 22nd day of June, 2004 despite the Plaintiff/Respondent/Respondent’s claims that the said consent judgment was fraudulently procured and that same was a nullity”.
Then in his written submission, filed on the 22nd of February, 2012, Counsel drew this
Court’s attention to the grounds contained in the notice of 13th June, 2012 and proceeded to make a prayer to this Court in the following terms:
“My Lords, may I respectfully with leave of this Court argue these additional grounds particularly as the Plaintiff/Respondent and the 2nd Defendant/Appellant had both been served with same.”
With a request made as quoted above, Counsel went ahead to urge those grounds on this Court as if he was entitled to leave as a matter of course. But, certainly, Counsel was and is not entitled to leave as a matter of course, for Rule 8 (8) of the Rules of this Court, CI 19, provides that:
“The appellant shall not, without the leave of the Court, urge or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal on the terms that the Court thinks just”.
It is clear from the above-quoted provision of CI19 that the leave which an appellant requires to be able to urge on the Court a ground of objection which is not mentioned in the notice of appeal is not one that may be taken for granted. The appellant ought to apply for leave to amend his grounds of appeal to include the intended additional grounds, and the Court may refuse the application or grant same upon terms. In proceeding the way he did in the present case, Counsel was discounting this Court’s power to refuse his application for leave or to impose terms even if leave was granted.
The uncomfortable position Counsel has placed himself in is that, having wrongly assumed that he has obtained leave to argue the additional grounds, he has indicated his intention to limit himself to the additional grounds in his arguments in support of the appeal. In effect, Counsel has abandoned the original grounds in favour of the new grounds which he has not been granted leave to argue.
Whenever possible, the Court favours hearing and determining matters before it on the merits, but to do so in the present case will depend on whether or not in spite of the unfortunate course taken by Counsel, it is possible to grant him a hearing without occasioning an injustice to the other party in the appeal. Under rule 63 of the Rules of this Court, even though failure to comply with the Rules or a rule of practice or procedure may constitute a bar to the further prosecution of proceedings, the Court has power to waive such non-compliance to allow further prosecution to go on. This power will however not be exercised unless appropriate circumstances therefor exist.
Sub-rule (9) of rule 8 of CI 19 provides that in spite of sub-rules (4) to (8) of the said rule, the Court in deciding an appeal “shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on a ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”.
In the unreported judgment of this Court delivered on the 27th of October, 2011 in the case of Abdul Rahman Osumanu Giwa and 2 Others Vs. Baba Ladi (Civil Appeal No. H!/48/2011), the appellant had in his notice of appeal set out five grounds on which he was praying the Court to set aside the judgment of the trial Court. He had however filed three additional grounds and indicated in his Written Submission that he was arguing the first of the original grounds together with the three additional grounds, while the second, third, fourth and fifth original grounds were abandoned. It was not apparent on the face of the Notice of Additional Grounds of Appeal filed by him that it was filed in pursuance of leave granted by the Court, and there was also no indication anywhere in the record that those grounds had been filed with leave of the Court. On the strength of rule 8 (8) of CI 19, this Court held that the filing and arguing of the said grounds were in violation of the rules and that those grounds should not, under normal circumstances, be considered by the Court in deciding the appeal.
In that case however, the Court noted that, in the submissions filed on their behalf, the respondents had not raised any objection to the appellant’s reliance on the additional grounds but had rather responded to the arguments advanced by the appellant under those grounds. There was indication that the respondents had had sufficient opportunity to contest the appeal on the additional grounds and that they had availed themselves of that opportunity. In the circumstances of that case, this Court decided to consider the additional grounds in its judgment.
In respect of the 1st Defendant’s appeal in the present case, I note that Counsel for the 1st Defendant filed the additional grounds on the 13th of June, 2011 and filed his written submission in which the said grounds had been argued on 22nd February, 2012. I also note that the Plaintiff filed his written submission in response to the 1st Defendant’s submission on the 26th of April, 2012 and had adverted to the additional grounds without objecting to the arguments advanced under those grounds. Indeed, aspects of the arguments advanced under those grounds had been responded to by Counsel for the Plaintiff. I see in the present case, like this Court found in the Osumanu Giwa case, that the Plaintiff had sufficient opportunity of contesting the additional grounds filed on behalf of the 1st Defendant and I think therefore that the arguments advanced under those grounds can be considered without occasioning an injustice to the Plaintiff. I will therefore consider the additional grounds in this judgment.
Under additional grounds 1 and 3, the 1st Defendant contends that the trial Court committed a fundamental error when it ordered the parties to sit down to implement the modalities contained in the consent judgment dated 22nd June, 2004 in Suit No.E1/276/2004 although the 2nd Defendant was not a party to that suit, and despite the fact that the Plaintiff claims the consent judgment was fraudulently procured and was therefore void.
Arguing in support of those grounds, Counsel for the 1st Defendant noted that the 2nd Defendant was not a party or privy to the consent judgment and the injunction order requiring both the 1st and 2nd Defendants to sit down with the Plaintiff to implement the said judgment could not therefore be proper. In the view of Counsel, in making such an order, the trial Court was, suo motu, clothing the 2nd Defendant with benefits under the consent judgment. Counsel objected further that even though the 2nd Defendant was not a party to the suit in which the consent judgment was entered, the trial Court in its ruling appeared to have included it as a party. Counsel considered that these errors on the part of the trial Court demanded that the 1st ground of appeal be allowed.
In arguing the 2nd additional ground, Counsel noted that the 1st Defendant had pursuant to a writ of possession issued on the orders of the High Court, been placed in possession of the disputed premises. Counsel contended that this being the case, until the consent judgment was impeached on any valid ground, it was not open to the trial Court to make orders in disregard of the writ of possession issued from a court of competent jurisdiction.
Counsel for the 1st Defendant was also of the view that the trial Court, by the ruling appealed against, sought to bring the entire matter to an end. Counsel did not consider this to be in order, especially in view of the fact that the Plaintiff had raised issues which needed to be determined before the matter could satisfactorily be considered.
Counsel also questioned why from 2006, the Plaintiff had to wait till 2010 before applying for an injunction. Counsel noted that it was when the Plaintiff noticed that the 1st Defendant had developed the land and was about to re-name the same that the injunction order was sought. In the view of Counsel, the Plaintiff applied for the injunction order in bad faith, with the hidden agenda of aiding the 2nd Defendant to benefit from the consent judgment.
Counsel again observed that the Plaintiff had not put any money into the project and that it was the 1st Defendant who had exclusively developed the property with his own resources. Allowing the appeal and setting aside the injunction order will therefore not expose the Plaintiff to any civil injury.
Counsel acknowledged that the exercise of discretionary power by a court should not be interfered with by an appellate court unless the exercise of such power was unfairly made by the trial Court. Counsel however submitted that in the present case, the trial Court exercised its discretion arbitrarily and in a manner which was not permissible.
In opposing the appeal, Counsel for the Plaintiff contended that the trial Court was right in making the injunction order. He noted that ownership of the disputed premises by the Plaintiff was not in dispute and that what the 1st and 2nd Defendants had been disputing was the Plaintiff’s right to partake in the enjoyment of the proceeds of the activities.
Regarding the charge of indolence made by the 1st Defendant against the Plaintiff, Counsel for the Plaintiff referred to the supporting affidavit at pages 58-63 of the appeal record and contended that that charge had no factual basis. Counsel for the Plaintiff also rejected the claim by Counsel for the 1st Defendant that the Plaintiff would suffer no injury if the appeal was allowed and the injunction order set aside. Counsel noted that the premises in dispute is owned by the Plaintiff and yet the 1st and 2nd Defendants had been enjoying the benefits of its operation over the years without the participation of the Plaintiff. Counsel also submitted that the mere fact that the grant of an interim injunction aids the disposal of a matter or a substantial part of the matter does not make the grant an abuse of the court’s discretionary power. Counsel for the Plaintiff also welcomed the statement by Counsel for the 1st Defendant that the 1st Defendant was ready to sit down with it to agree on the modalities for implementing the consent judgment. Counsel submitted that in this circumstance, the interim order made by the trial Court ought to be maintained.
No additional grounds were filed on behalf of the 2nd Defendant and the submissions filed by its Counsel were therefore limited to the two grounds contained in the notice of appeal of 27th January, 2011. In arguing the first ground, Counsel for the 2nd Defendant referred to Exhibit KMA IV and contended that that exhibit established that there was no binding agreement respecting the operation of the premises except that between the Plaintiff and the 2nd Defendant. He observed that nowhere in Exhibit KMA IV is the 1st Defendant mentioned. In his view, in the light of Exhibit KMA IV, without the written consent or authorisation of the 2nd Defendant, the Plaintiff could not legally acknowledge any agreement, or even a consent judgment, involving any other person for the management of the premises.
Counsel also referred to Exhibits KA 1, KA 2, KA 3, KA 8 and KA 9 and submitted that they indicated the 1st Defendant’s admission that the premises in dispute was operated by the 2nd Defendant. He contended that the admission by the 1st Defendant corroborated the 2nd Defendant’s contention that it put up a storey building and other buildings on the disputed premises and that the 1st Defendant had no role in the occupation and development of the premises. Counsel submitted that in view of that state of facts, for the maintenance of the status quo, the 2nd Defendant ought not have been restrained by the trial Court. On the basis of this submission, Counsel under the second ground, made a further submission that the injunction order should have been made against only the 1st Defendant. Counsel accordingly prayed this Court to allow the 2nd Defendant’s appeal and dismiss that of the 1st Defendant.
We have already noted that the trial Court granted the Plaintiff’s application, and the words in which it restrained the Defendants are as follows:
“The Respondents whether acting by their servants, agents, assigns and all persons representing them are hereby restrained from renaming, operating, purporting to and or operating from the site known as Adehyeman Gardens for any public, social function, recreational centre and or human activity without the written consent involvement and or approval of the Applicant”.
The above-quoted words constitute the order which the 1st Defendant contends disregarded a writ of possession issued from a court of competent jurisdiction and by which the Court is said to have committed a jurisdictional error. But how tenable is this contention, having regard to the facts before the trial Court at the hearing of the application?
From reliefs (a) and (b) indorsed on the Plaintiff’s writ of summons, we know that one of the purposes for which the Plaintiff has instituted its action is to seek the protection of the Court against moves by the 1st Defendant to re-name the recreational centre and operate it exclusively. Seeing, from the 1st Defendant’s response to the Plaintiff’s affidavit in support, that the threat to the Plaintiff’s right to have a joint venture company formed for the operation of the centre is real, and recognising, as Counsel for the 1st Defendant also acknowledged in his filed submissions, that the several matters raised by and in the Plaintiff’s action needed time to be satisfactorily determined, what reasonable course was open to the trial Court?
What happens in situations such as this is for the Court to make such orders as would preserve the subject matter of the suit until such time as the pertinent issues raised in the suit can be properly resolved by taking and assessing evidence. It is in this vein that Order 25, rule 1 (1) of the Rules of the High Court, CI 47, makes provision for the Court in all cases in which it appears to it “to be just or convenient”, either unconditionally or upon such terms and conditions as it considers just, to grant an injunction by an interlocutory order.
So considering the facts before it at the hearing of the application for interlocutory injunction, did the trial Court meet the “just or convenient” criterion in making a restraining order in the terms complained about by the 1st Defendant? Did it properly consider the implications of the writ of possession that had been issued on the orders of the Fast Track Division? In other words, did the trial Court exercise its discretion properly?
The proceedings before the Fast Track Division of the High Court, Kumasi, on 24th July, 2006, when the application for the issuance of the writ of possession was heard may be found at page 99 of the record of appeal, and I reproduce the same hereunder:
“J.K. KODUAH: For the Plaintiff/Applicant present.
“KODUA: My Lord respectfully, this is an application praying this honourable court to order a writ of possession to enable the parties recover possession from the squatters who are unlawfully in possession. My Lord, after the judgment, we served the requisite judgment after trial and posted a copy. We are praying that we be given an order for writ of possession to enable us recover possession of the premises.
“BY COURT: The application is granted as prayed. Registrar to act accordingly”.
It is clear from the above that in the application for the issuance of the writ of possession, what was sought by the 1st Defendant and was granted by the Fast Track Division, was the issuance of “a writ of possession to enable the parties recover possession from the squatters who are unlawfully in possession”. It was a writ to secure the eviction of squatters from the premises for the benefit of both the 1st Defendant and the Plaintiff. It was not a writ to place the 1st Defendant in exclusive possession of the premises. The 1st Defendant may have entered into physical possession on the strength of the writ. But that did not take away the immediate right of the Plaintiff to also enter into possession.
Another point to note is that the order sought was limited to the issuance of the writ of possession. No leave was sought for the operation of the recreational centre to resume, and no such leave was granted by the Court. In the proceedings reproduced above, Counsel referred to a judgment in respect of which an entry of judgment was said to have been served. It is clear from the facts on record that that judgment is the consent judgment entered by the court on the 17th of May, 2006. The entry of that judgment may be found at page 100 and page 101 of the appeal record and I note from it that among the terms to be met by the parties under the said judgment, is the formation of a Joint Venture Company for the operation of the recreational centre. The implementation of that term in the consent judgment would clearly have been undermined if the 1st Defendant had exclusively been granted leave to resume the operation of the centre. No such leave having been expressly granted, a right resting in the 1st Defendant to exclusively re-open the centre will not be inferred in the face of the terms of the consent judgment.
But as we have noted above, it is alleged that the 1st Defendant, in disregard of the terms of settlement, has shown an intention to change the name of the centre from Adehyeman Gardens to Adehyeman Foundation, and unilaterally resume the operation of the centre without the formation of the Joint Venture Company agreed in the Consent Judgment This allegation, as the record shows, is not denied by the 1st Defendant. The contention he makes in his affidavit in opposition in response to this allegation is that he has already started operating his business on the premises and that preventing him from carrying on the business would cause him and his business irreparable damage.
Now, an interlocutory order is a temporary measure taken by the Court to preserve the status quo pending the final determination of the suit. It is made at a stage in the proceedings when the Court has not had an opportunity to hear and assess the evidence of the parties, and when, therefore, none of the parties can insist that their position in the action is the right and valid position, which the order must therefore uphold. In my view, it will be more realistic for the parties to see the interlocutory injunction order as a tool in the hands of the court to avert developments that may, at the end of the day, frustrate a satisfactory determination of the issues brought before it.
This Court’s decision in Vanderpuye Vs. Nartey  1 GLR 428-433, has established that an applicant for an interlocutory injunction order must show that the claim he is making in the action is not frivolous and vexatious and that, in the light of the papers submitted at the hearing of the application, it has a reasonable prospect of succeeding at the trial, or that there is a serious question to be tried.
In deciding to grant or refuse an application for interlocutory injunction, the Court exercises a discretion, and this is clear from the wording of Order 25, rule 1 (1) of CI 47. The considerations that guide the Court in the exercise of its discretion include whether or not there is a serious question to be tried, inadequacy of damages in case of refusal, and the balance of convenience. The interplay of these factors and the degree of their influence on the decision to grant or refuse the application depend on the facts of the particular case.
From my review of the record, I do not think the Plaintiff’s action is frivolous or vexatious.
Counsel for the 1st Defendant himself acknowledges that issues are raised in the action that need to be determined. I consider it in order, therefore, that the trial Court did not refuse the application on the ground that the action is frivolous or vexatious. But the 1st Defendant says that he has spent a fortune re-opening the business and to restrain him from continuing in that endeavour will render his investment a waste.
This, in my view, is a rather cheeky response. Here is a person charged with wrongdoing and instead of addressing the issue of wrongdoing, he rather complains about the costs he will incur if he is not allowed to proceed further in his wrongdoing. But be that as it may, the question to ask is, did the trial Court exercise its discretion wrongly when it made the restraining order in spite of the possibility that the 1st Defendant’s investment would go waste? I will not say so. In my view, the quantum of the 1st Defendant’s investment is capable of assessment for payment by the Plaintiff, in the event of the Plaintiff failing in its action.
But was it just or convenient for the trial Court to make the restraining order in the terms quoted above? As I have observed above, the main purpose of the Plaintiff’s action, as seen in the pleadings, is the implementation of the consent judgment. Its implementation is clearly undermined by acts and conduct alleged against both Defendants in the suit, and to preserve the subject matter of the action to enable the trial Court to determine it at the appropriate time, it is necessary for the acts and conduct that threaten a satisfactory determination of the action to be restrained. The 1st Defendant made the strong point that the order had been made in such terms as undermined the force of a writ of possession issued on the orders of a court of coordinate jurisdiction. I have considered the misgivings expressed by the 1st Defendant in the light of the proceedings before the Fast Track Division of the High Court when the application for the issuance of the writ of possession was heard, and I have taken the position that the terms of the restraining order do not undermine the issuance of the writ of possession. I do not think that, on the facts before it, the trial Court exercised its discretion wrongly in deciding to make the restraining order, and in the terms contained in the judgment. The decision was, in my view, both just and convenient. In terms of clarity, however, I have a problem with the order and I intend returning to that issue towards the end of this judgment.
Before then, I note that under grounds 1 and 3 of the appeal, the 1st Defendant complains that in the judgment appealed from, the trial Court ordered all the parties, including the 2nd Defendant, to sit down and discuss the modalities for the implementation of the consent judgment, when the 2nd Defendant was not a party to the said judgment. This criticism draws attention to page 231 of the appeal record where the trial Court observes in the judgment that in the application, the Plaintiff is “not asking the Court to restrain the respondents from doing anything at the site but to seek an order of the Court to compel the respondents to come to them to conclude negotiations for the use of the place”. With due respect to the trial Court, in this and subsequent statements made by it regarding the purpose of the application, it seems to have lost the point about what it was called upon to do in the application.
The motion paper filed in the application is at page 8 of the appeal record and it indicates on its face that the Plaintiff is seeking an order restraining the Defendants and their privies “from renaming, opening, purporting to and or operating from the site known as Adehyeman Gardens for any public, social function, recreational and or human activity without the written consent involvement and or approval of the Applicant as per the grounds set out in the accompanying affidavit”. A reading of the accompanying affidavit confirms that the relief sought in the application is indeed a restraining order in the terms stated on the motion paper, and that the purpose of the application is the preservation of the subject matter of the suit pending the final determination of the case.
In my view, in the light of the papers filed in the application, to read into the application the purpose of compelling the parties to come to the Plaintiff to conclude negotiations for the use of the place, or to come to the Plaintiff “for a written consent or agreement or approval in which shall be spelt out the applicant’s involvement, share, rights, obligations, etc.”, is to suggest an indirect motive for the application. And in that case, it would be unfortunate that the trial Court, as a court of equity, allowed its process to be used to advance that indirect purpose. But, as I have observed, I do not see an indirect motive in the application, and luckily, the order made by the trial Court at the end of the day was in the terms prayed for by the Plaintiff but not directed at compelling the
Defendants to conclude negotiations with the Plaintiff, or as the 1st Defendant put it in his grounds 1 and 3, at compelling the parties “to sit down to implement the modalities contained in the consent judgment”. The restraining order ultimately made by the trial Court was in accord with what the Plaintiff rightly and legitimately prayed for and, in my view, it is not invalidated by the trial Court’s seeming misapprehension of the purpose of the application.
Now, I come to the issue of clarity respecting injunctions or restraining orders. I concede that the restraining order made in the present suit was made in exactly the same words as were indorsed on the motion paper. But having come to the conclusion that the Plaintiff was entitled to a restraining order, was the trial Court bound to couch its order in exactly the same words as were used in the Plaintiff’s prayer, even though doing so may sacrifice clarity?
In Anane Vs. Donkor and Another  GLR 188-198, Ollennu JSC stated as follows in an action for declaration of title case:
“Where a court grants declaration of title to land or makes an order for injunction in respect of land, the land the subject of that declaration should be clearly identified so that an order for possession can be executed without difficulty, and also if the order for injunction is violated the person in contempt can be punished. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain”.
This was not about interlocutory injunctions. It was about clarity as to the description of boundaries. But I think it also spells out the need for an injunction order to be clearly set out so that if it is violated, the person in contempt can be punished. It is common knowledge that criminal or civil penalties often follow violations of injunction orders and, in view of this, it is important that the person against whom an injunction order is made knows exactly what he is asked to do or not to do. Clarity, in my view, ought to be an essential feature of injunction orders and, as much as possible, they should be freed from linguistic inelegancies. The applicant may have sought the order in a not-too-clear language; but I think once the Court has made up its mind as to what it intends to restrain, it should set out its order with clarity and should not allow itself to be saddled with the inelegancies of the applicant.
Having made the above remarks, I proceed to affirm the substance of the restraining order made by the trial Court. I however re-phrase the order as follows: “Until the final determination of this suit, the Respondents herein, their servants, agents, assigns and all or any persons representing them, are hereby restrained from re-naming, operating, or purporting to operate or continuing with the operation of the recreational centre known as Adehyeman Gardens or carrying on at the said centre any public, social or recreational function without the written consent, involvement or approval of the Applicant”.
The 2nd Defendant is saying in its appeal that it is a stranger to the Consent Judgment and that for that reason, the injunction order should not have affected it, but should have been limited to the 1st Defendant.
I have given consideration to this submission by the 2nd Defendant and have also taken cognisance of its contention that, as far as it is concerned, the consent judgment is fraudulent and mischievous and its terms do not bind it. I note from the record that the 2nd Defendant considers itself as the only entity having a contract with the Plaintiff for the operation of the recreational centre. According to it, in pursuance of this contract, it has put up on the premises a storey building and other buildings comprising a conference hall, a dining hall, a kitchen, a restaurant and other facilities which have been operated as a modern tourist centre. The impression I get from the tenor of the case put up by the 2nd Defendant is that if it has its own way, it will take steps to run the recreational centre even while the action is still pending. Any such steps will however threaten a satisfactory determination of the matters before the trial Court and I think it was just and convenient that the 2nd Defendant was included in the restraining order. I do not find any merit in the 2nd Defendant’s appeal and the same is hereby dismissed.
In conclusion, therefore, the appeals of the 1st and 2nd Defendants are both dismissed and the restraining order as re-phrased by this Court, is hereby affirmed.