ERNESMAY CHEMIST LTD vs BENIJAX PHARMACY AND PHARMACY AUTHORITY
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
    ACCRA - A.D 2019
ERNESMAY CHEMIST LIMITED - (Plaintiff/Applicant)
BENIJAX PHARMACY (Defendant/Respondent)
PHARMACY AUTHORITY (Defendant/Respondent)

DATE:  16TH JANUARY, 2019
SUIT NO:  GJ/360/2019
JUDGES:  JUSTICE KWEKU T. ACKAAH- BOAFO
LAWYERS:  MR. MICHAEL YOURI FOR THE PLAINTIFF/APPLICANT
MR. EDWARD K. OPPONG FOR THE DEFENDANTS/RESPONDENTS
RULING

i. introduction:

 

[1] Order 25 r 1 of CI 47 stipulates that the court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just. In deciding whether or not to grant an order of interlocutory injunction it has been held that the court would consider the justness and convenience of the order.

 

[2] Drawing on the provision of the law cited herein, learned Counsel for the Plaintiff/Applicant to whom I refer simply as the Applicant has filed in this court on November 27, 2018, an application praying for:

“… an order restraining the 1st Defendant/Respondent from operating a retail pharmacy in close proximity to the Plaintiff pharmacy pending the final determination of the instant suit herein as per the grounds set out in the accompanying affidavit”

 

ii. The case of Plaintiff/Applicant

[3] Speaking to the motion, learned Counsel relied on all the averments as set out in the accompanying affidavit and submitted that the 2nd Defendant is mandated by law to regulate the profession of pharmacy which is important aspect of its mandate as per Section 2 of Pharmacy Act, 1994 (Act 489) and also the provisions of Health Professions Regulatory Bodies Act, 2013 (Act 857). Learned Counsel further submitted by referring to Section 80 (d) of Act 857 that the 2nd Defendant in carrying out its mandate and functions is required to ensure that there is equitable and accessible distribution of pharmaceutical premises.

 

[4] Counsel further submitted that in carrying out its mandate the 2nd Defendant has guidelines and by those guidelines the 2nd Defendant has set out location requirements. Counsel referred to Exhibit BPA and Defendants’ Exhibit Q1, being the Guidelines of the Pharmacy Council of Ghana and submitted that by Clause C1, “the distance between the proposed site and other retail facilities shall be guided by accessibility to the facilities, population and distance criteria (400m radius)”. According to Counsel the clause means every retail pharmacy should not be more than 400 meters from another.

 

[5] According to paragraph 7 of the supporting affidavit it is deposed that the only exception to the 400-Meter rule contained in the Guidelines is where the existing and incoming facilities are on the opposite sides of a dual carriage road, between a retail and a wholesale, or between two wholesale facilities. The Applicant attached as Exhibit BP B, a letter from the Pharmacy Council dated 27 September, 2017 and addressed to the Managing Director Kirena Pharmacy Limited by which an application to establish a Pharmacy Business was refused among others that “the distance does not meet Council’s criterion”. In this case it is the plaint of the Plaintiff/Applicant that the distance between its retail pharmacy and that of the 1st Defendant is a distance of about 136 meters only but yet the 2nd Defendant has gone ahead to grant the application contrary to the distance criterion contained in the guidelines.

 

[6] Mr. Youri argued further that the area in which its retail pharmacy is situate and where the 2nd Defendant has given license to the 1st Defendant to operate is not densely populated and as a result Counsel submitted that the presence of the 1st Defendant in the territory has led to unhealthy competition. Learned Counsel referred to Articles 23 and 296 of the 1992 Constitution to submit that the 2nd Defendant did not exercise its discretion judiciously in granting the application of the 1st Defendant even though in Exhibit BP B an application was refused based on the same distance criterion.

 

[7] Reacting to the affidavit in opposition learned Counsel, referred to paragraph 10 of the affidavit by which the Defendants contend that the 400 meter distance threshold was only a guideline but not binding law on the 2nd Defendant/Respondent to submit that the deposition is untenable. According to Counsel by Article 11(c) of the 1992 Constitution, Guidelines have a force of law and they are binding on both the Regulator and Members. Counsel in further response to the depositions in opposition submitted that the contention that the 2nd Defendant as a regulator has moved from the 400 Meter distance threshold is not supported by the Defendant’s own Exhibit Q1 Clause C1. He therefore urged the Court to ignore the contention.

 

[8] Finally, Mr. Youri argued that the Plaintiff notes with concern the fact that the 2nd Defendant is represented by the same Counsel for the 1st Defendant. In the opinion of Learned Counsel, since the issue involve two pharmacists, it is illogical and against ethics that the 2nd Defendant as a regulator should align itself with the 1st Defendant by retaining the same Counsel. Further, according to Mr. Youri it is bizarre that the deponent of the affidavit in opposition is the law clerk of Counsel and not an officer of either the 1st or 2nd Defendant.

 

[9] Based on all of the above facts, Counsel has submitted that the Applicant has a legal right that ought to be protected. He referred to Order 25 Rule 1(1) of CI 47 and argued that on the balance of convenience the Applicant stands to suffer the more because if the application was refused and the Plaintiff were to succeed at trial, an award of damages would not suffice. Counsel further submitted that the instant application is not frivolous or vexatious and therefore according to Counsel, this Court “ought to hold the scales of justice evenly between the parties pending the determination of the suit”. Counsel then referred to the cases cited in his Statement of Case and prayed the Court to grant the application.

 

iii. The Defendants/Respondents:

[10] In response, learned Counsel for the Respondents, Mr. Edward K. Oppong first submitted that the 2nd Defendant is not properly before the Court because whilst under the law there is a body called Pharmacy Council there is no body known and called “Pharmacy Authority”. Based on that learned Counsel prayed the Court to dismiss the suit.

 

[11] Alternatively, Mr. Oppong further submitted that the Applicant has not demonstrated the existence of a prima facie case and therefore the application should be refused. Learned Counsel referred to paragraphs 8 of the affidavit in opposition and posited that the Plaintiff/Applicant has not shown any legal or equitable right that has been violated or threatened by the Defendants. Counsel further referred to paragraph 9 of the affidavit in opposition and submitted that “the new guidelines of the Pharmacy Council under which the Benijax Pharmacy Limited was issued with approval and licence to operate a pharmacy shop does not include the “400 metre” thresholds”. The Defendants attached as ExhibitS.Q1” a document the Defendants say is the new guideline.

 

[12] According to the Defendants the earlier 400 metre distance threshold was only a guideline but not a binding law on the 2nd Defendant/Respondent. It is also the case of the Defendants/Respondents that even if the 400 meter threshold was a binding guideline and is still in use, the non-adherence to it by the 2nd Defendant does not vest in the Plaintiff any cause of action against the Defendants. It is the case of the Defendants that the 1st Defendant was issued with a statutory licence and approval to operate a pharmacy shop after satisfying all statutory requirements including payment of all relevant fees. The Defendants attached as Exhibit S.Q2 series as “receipts for statutory fee paid for the licence, approval to operate a pharmacy shop and a statutory licence permitting the 1st Defendant to operate a retail pharmacy shop”.

 

[13] The Defendants have averred that the 1st Defendant has not done anything to adversely affect the “legal and equitable right of the Plaintiff”. The Defendants also contend that the Plaintiff has not shown by any positive evidence that the “1st Defendant is operating a retail pharmacy which is 136 metres from the Plaintiff’s shop”. The Defendants further prayed the Court not to allow the Plaintiff to rely on Exhibit BPB on the grounds that it was not copied to the Plaintiff and was not recipient of the said exhibit.

 

[14] Learned Counsel in his submission to the Court argued that by law the Applicant must demonstrate that it has a legal or equitable right that the Court must protect. In this case it is the case of the Defendants that the Plaintiff has failed to demonstrate that it has any right to be protected by the Court. According to learned Counsel it will not be just and convenient to injunct the 1st Defendant which has a valid license to operate because granting the application shall cause greater hardship to it. On the contrary, Counsel submitted that the Plaintiff has not shown what hardship it would suffer on the balance of convenience if the application not be granted.

 

[15] Learned Counsel contended the 1st Defendant shall suffer serious hardship should the instant application be granted because according to him the 1st Defendant has a valid license to operate and same should not be ignored. Counsel therefore prayed the Court to maintain the status quo ante pending the final determination of the suit and dismiss the application.

 

iv. The Court’s Opinion & Analysis:

[16] To begin with, a host of respectable authorities have settled the principle that an injunctive order is an equitable remedy and discretionary and the court shall only grant it when it is just and convenient to do so. Not only that, the order is also granted to protect a right where that legal right could be asserted either at law or in equity. In the exercise of that discretion the court is not bound to follow precedents as each case has to be determined on its own merits.

 

[17] In BAIDEN v. TANDOH [1991] 1 GLR 98, Kpegah J. (as he then was) opined that the Applicant has to establish a prima facie case that the right he was seeking to protect existed. Additionally, he should show that there has been a breach of the same and a threat of it continuing so as to cause him irreparable damage if the defendant was not restrained. The Applicant having passed that test the Court would then consider the issue of the balance of Convenience.

 

[18] In 18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED [2012] 1 SCGLR 167 the Supreme Court delivered itself per his Lordship Anin-Yeboah JSC and opined after analyzing the earlier cases including VANDERPUYE v NARTEY (1977) GLR 428 @ 431 and ODONKOR v AMARTEI (1987-1988) GLR 578 as follows:

“We are of the opinion that the Court of Appeal did not propose to lay down any hard and fast rules or principles to regulate the determination of interlocutory injunctions. Even though it is discretionary, we are of the view that a trial court in determining interlocutory application must first consider whether the case of the applicant was not frivolous and had demonstrated that he had a legal or equitable right which a court should protect. Second, the court is also enjoined to ensure that the status quo is maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter. The trial court ought to consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party”.

 

[19] To my mind, the apex Court has undoubtedly laid down a tripartite test for the Court’s consideration in interlocutory injunction applications. It is worthy of mention that in the classic case of AMERICAN CYNAMID CO. LTD V ETHICON LTD (1985) AC 396 which was adopted by the Ghana Court of Appeal and applied in the case of VANDERPUYE V NARTEY (1977) GLR 428 @ 431, The House of Lords through Lord Diplock expressed himself by asserting the traditional opinion that where the court was considering the application for interim injunction while the substantive suit was still pending for determination on its merits, it has no duty at that stage of the litigation to resolve conflicts of evidence on affidavits as to facts on which the competing claims of the parties may ultimately depend.

 

[20] Equally, the Ghana Court of Appeal in VANDERPUYE V NARTEY (1977) GLR 428 Coram: Amissah, Kingsley-Nyinah and Hayfron-Benjamin JJ.A.) reiterated the above legal position. Amissah JA speaking for the unanimous Court stated that the general and obviously safer rule is that, in interlocutory applications, adjudicators must avoid making definitive findings on disputed issues, particularly where the facts are not only material but are for some reasons obscure or highly contentious. I wish to abide by the above caution in making my decision in regards to the merits or otherwise of the instant application.

 

[21] I note that I overruled Respondents’ Counsel objection to the Applicant’s reliance on Exhibit BPB on the grounds that it is a relevant evidence and therefore admissible. Having said that, I wish to state that I have closely looked at the Statement of Claim and the affidavit evidence filed in this case and I have also reviewed the statement of cases filed by legal counsel in respect of the application and has also given due regard to all the authorities cited by both Counsel. I am of the respectful view, having regard to the pleadings filed and the affidavit evidence before the court, that this case raises fundamental issues for determination. First, the Court ought to make a determination as to whether or not the 2nd Defendant has breached its own guidelines in regards the allowable distance specified in the law, if any by granting the 1st Defendant licence to operate within the 400 meter radius as claimed by the Plaintiff. The supplemental issue then would be has the grant of the latter licence led to unhealthy competition with the concomitant economic implications to the Plaintiff as he alleges?

 

[22] Second, there is the issue as to whether or not the 1st Defendant Pharmacy was in operation before the instant writ of summons was issued or was opened only recently. That determination in my respectful opinion cannot be resolved based on the documents filed by the parties. These matters, I think, are some of the serious issues which shall engage the attention of the court in the trial. In the light of the above, I hold the respectful view that the suit is not frivolous or vexatious. I also hold that as a registered member of the 2nd Defendant body, the Plaintiff has a legal right worthy of protection if indeed the operating guidelines of the 2nd Defendant is flouted contrary to the submission of Counsel for the Defendants. That right to my mind emanates from his membership as a Pharmacist or a person licensed to operate a pharmacy and the dues it pays to the 2nd Defendant.

 

[23] Now, what is the status quo in this case? In the opinion of the court it unequivocally includes the fact that both the Plaintiff and the 1st Defendant have valid operation licenses to operate retail pharmacy shops and the licenses were issued by the 2nd Defendant herein. The status quo is also that both parties are presumed to have applied for their operating license pursuant to the ‘Guidelines and Application Forms for Registration of Pharmacies” issued by the Pharmacy Council of Ghana exhibited as Exhibit Q1 by the Defendants in this application.

 

[24] The law now appears settled that where the court is of the view that the case of the Applicant for injunction is not frivolous or vexatious the application has to be considered on the balance of convenience. In assessing the balance of convenience, it is imperative for the court to take into account all the relevant factors as well as the strength of the respective cases of the parties based on the evidence put before the Court. In the words of venerable Lord Denning:

 “In considering whether to grant an interlocutory injunction the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also the strength of the defence and then decide what is best to be done.” (Emphasis highlighted). See: HUBBARD v VOSPER (1972) 2 WLR 389 at p 396.

But before considering the balance of convenience in the present suit, I pose the question, what is the basic purpose of an interim order?

 

[25] The question was succinctly answered by the Supreme Court in ODONKOR v AMARTEI (1987-1988) GLR 578 that the basic purpose was, as much as possible, to hold the balance evenly between the parties pending the final resolution of matters in difference between them, and also to ensure that at the end of the day, the successful party did not find that his victory was an empty one or one that brought him more problems than blessings.

 

[26] Now, having regard to the competing claims of the parties and given the facts and the background of the case and on the balance of convenience, and basing myself on the rule as stated by the Supreme Court per Kpegah JSC in EKWAM v PIANIM SUPRA, having regards to the totality of the evidence so far filed in this case, I hold considering the issue of hardship to be suffered by the parties, keeping faith to the law on the grant or refusal of injunction as stated above and in maintaining the status quo it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 to grant this instant application.

 

[27] In my respectful opinion whilst I am of the firm belief that the Plaintiff may have a legitimate complaint, it failed to demonstrate on the balance of convenience the hardship to be suffered by it which cannot be adequately compensated for should it be successful after the trial should the application be refused. On the other hand on the balance of convenience the 1st Defendant as a holder of a valid licence stand to suffer greater hardship and irreparable damage should the application be granted because it would in effect deny it the opportunity to enjoy the benefit of the license it applied for and regularly obtained from the 2nd Defendant Council or Authority as the case may be. It would mean it cannot sell the drugs already purchased and are in the shop, whilst taking care of the financial obligations including rent if the space is rented and taking care of its workers etc. at the same time. Further, injuncting the 1st Defendant at this stage may amount to pre-determining the main issue raised in this case.

 

[28] On the other hand whatever loss the Plaintiff/Applicant would be in shall be in the nature of the competition that may reduce its sales during the pendency of the suit. That, to my mind can be adequately compensated for by way of damages at the end of the trial if it is successful. In the light of the foregoing reasons above, the application for interlocutory injunction is REFUSED.

 

[29] Finally, in my opinion a timely adjudication of the suit would ensure that justice is done to both parties. Consequently, by virtue of the powers conferred on me by Order 25 rule 5 of CI 47, I order the Defendants to file their Statement of Defence within 10 days from today and serve same on the Plaintiff who may also file a reply and take out Application for Directions within 14 days after the service of the defence for the case to proceed to an early trial.

 

I make No Order as to Costs.