IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2015
AFARE APEADU DONKOR - (plaintiff)
ECOBANK GHANA LTD. AND EDC STOCKBROKERAGE LTD. - (Defendant)
DATE: 2ND NOVEMBER, 2015
SUIT NO: OCC/33/2012
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
The Defendant/Applicant seeks from this court a prohibitory injunction to restrain the Plaintiff/Respondent from executing the judgment he obtained on the 19th of December, 2013. The basis of this instant application is grounded on the fact that the Applicant claims to have filed an application at the Court of Appeal to discharge an order that refused to restore his appeal that had been struck out. And to him he seeks the injunction to restrain the Plaintiff/Respondent from going into execution as he has a good chance of restoring his appeal.
Though the applicant and his counsel were not in court to move the application on 29/10/15, nonetheless the court adjourned to today to deliver its ruling on the application filed by the Defendant/Applicant rather than striking it out for want of prosecution. The reasons for such a position cannot be far fetched as under Order 25 of the High Court (Civil Procedure) Rules, C. I. 47 that the Applicant brings this application, it clearly states under Rule 6 that:
“The application may be considered on the basis of the papers filed and the court may direct where necessary, the lawyer address it on specific points of and facts”.
The Court does not deem it necessary to seek for further oral address beyond the written addresses filed.
Order 25 of the High Court, (Civil Procedure) Rules, C. I 47 enjoins the court to grant an application for injunction in all cases in which it appears just or convenient to do so.
Injunction being an equitable remedy there are a number of factors that an applicant must satisfy the court before such an application may be granted. The first is what was stated in the case of VANDERPUYE v NORTEY  1GLR 428 @ 432 and restated in the case of OWUSU ANSAH v OWUSU ANSAH [2007 -2008] SCGLR 870 @ 875 that:
“the fundamental principle in application for interim injunction is whether the applicant has a legal right at law or in equity, which the court ought to protect by maintaining the status quo until the final determination of the action on its merits. This could only be determined by considering the pleadings and the affidavit evidence before the court”
This is not an ordinary injunction that the Applicant seeks. The net effect of the injunction he seeks is akin to or Siamese twin of stay of execution pending appeal as the Applicant intends to hold the execution processes in abeyance. For what cause? That the Applicant has no appeal pending before the Court of Appeal but that he aims to restore a Notice of Appeal that has been struck out and for that reason this court ought to injunct the Plaintiff from going into execution.
In the Supreme Court case of N.D.K FINANCIAL SERVICES LTD v YIADOM [2007-2008] SCGLR 93 the court noted that the principle adopted by the courts was what the position of the appellant would be if the judgment were to be enforced and the appeal was successful. That is whether the appellant could be restored to the status quo ante should the appeal succeed. But to determine this ultimate question of possibility of restoration of the appellant to the status quo ante there are a number of grounds that would have to guide the court. These principles have been summarized in the case of NANA KWASI AGYEMANG VIII v NANA HIMA DEKYI XIII [1982-83] GLR 453 and these are:
1. If the application has not been brought bona fide to test the rightness of the judgment or order the application ought to be refused
2. That a court ought not to stay execution unless there were exceptional circumstances that calls for a stay as a successful party should not needlessly be deprived of the fruits of his victory
3. Where the court was satisfied that the appeal was frivolous either the grounds of appeal contained no merit or it has scant chance of succeeding
4. The level of hardship on either of the parties with the grant or refusal of the application
5. And the last one as noted supra in the NDK Financial supra case that the appeal if successful would not be rendered nugatory.
This court would be perpetuating a great injustice if it were to restrain or prohibit the Plaintiff from executing the judgment to realize the fruits of its hard won victory when there is no appeal even pending for the court to examine the possibility of the success of such appeal. Before me no diligence has been exhibited by the applicant and I think the application has not been brought bona fide by the Defendant/Applicant to pursue any legal or equitable claim but solely to frustrate the Plaintiff by exploiting arid technical rules to deny Plaintiff what he is entitled.
This application wholly lacks merit and constitutes an abuse of the judicial process. Same is dismissed. In view of the frivolous nature of this application I w