UNITED-BANK OF AFRICA-GHAND LTD vs CHASE PETROLEUM GHANA LTD. & 3 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6),
    ACCRA - A.D 2019
UNITED BANK OF AFRICA GHAND LTD. - (Plaintiff/Applicant)
CHASE PETROLEUM GHANA LTD & 3 OTHERS - (Defendants/Respondents)

DATE:  24TH JUNE, 2019
SUIT NO:  GJ/548/2019
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  MR. KIZITO BEYUO WITH ASSAD GBADEGBE FOR THE PLAINTIFF/APPLICANT
MR. THADDEUS SORY FOR THE 1ST DEFENDANT/RESPONDENT
BRIGHT OKYERE ADJEKUM FOR THE 2ND DEFENDANT/RESPONDENT
A.A. ACKUAKU JNR. FOR THE 3RD DEFENDANT/RESPONDENT
ESI QUAIGRAINE HOLDS BRIEF OF DAAD AKWESI FOR THE 4TH DEF/ RESPONDENT
INJUNCTION

 

i. Introduction:

[1] Order 25 Rule 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[1].

 

[2] Drawing on the provision of the law cited herein, learned Counsel for the Plaintiff/Applicant to whom I refer simply as the Applicant filed on March 8, 2019 per the Amended Motion on Notice for an Order of Interlocutory Injunction pursuant to this Court’s leave grated on March 4, 2019, an application praying for:

“… an order of interlocutory injunction restraining the 4th Defendant/Respondent from paying any monies paid by the Government of Ghana for debts owed by the Government to 1st Defendant pending the final determination of this suit and for such further and other orders as to this Honourable Court may seem fit”

 

ii. Background of the Case:

[3] From the Statement of Claim filed, the Plaintiff says it is a limited liability company incorporated and licensed under the laws of Ghana and it operate as a Bank. The 1st Defendant is also described as a limited liability company involved in the trading and distribution of oil products in Ghana. According to the Plaintiff the 1st Defendant has been its customer since 2007 and it maintains and operate account with it.

 

[4] The 2nd Defendant is described as the regulator of the Plaintiff Bank entrusted among other functions with the day to day business and administration of Banks in Ghana. The Plaintiff has also described the 3rd Defendant as a limited liability company operating in Ghana and providing inter alia accounting and other advisory services. According to the Plaintiff, the 4th Defendant is a special purpose limited liability company incorporated by the Chamber of Bulk Oil Distributors (“CBOD”) in Ghana and the Ghana Association of Bankers (“GAB” for the purposes of repayment of debts owed by the Government of Ghana to Bulk Oil Distributing Companies (BDCs) in Ghana.

 

iii. The Underlying Facts:

[5] According to the Plaintiff, the 1st Defendant in the course of operating its accounts with the Plaintiff, obtained credit facilities by way of loans, overdrafts and Letters of Credits (LC) for the settlements of the 1st Defendant’s foreign and local suppliers in respect of its oil import and distribution business. According to the Plaintiff the facilities were essentially structured as Off-Balance Sheet transactions and they were to be paid by the 1st Defendant from its daily sales of its import products before the maturity of each LC obligation.

 

[6] According to the Plaintiff though the 1st Defendant sales were in Ghana Cedis, the payment by the Plaintiff of the 1st Defendant’s suppliers was denominated in the United States Dollars (USD), in order to settle the 1st Defendant’s LC’s maturing obligations. The Plaintiff has also stated that it was required to convert the 1st Defendant’s Ghana Cedis standing in its current account in order to pay for its matured LC obligations.

 

[7] The Plaintiff says between May 2015 and 2016 it issued monthly and yearly account balances to the 1st Defendant in order to update it of its indebtedness. Following that, it is the case of the Plaintiff that in or about November/December 2016 it conducted reconciliation of account with the 1st Defendant and thereafter it was confirmed by a representative of the 1st Defendant that its total indebtedness to the Plaintiff was “USD66,379,685.40”.

 

[8] The Plaintiff says notwithstanding the completion of the joint reconciliation exercise, the 1st Defendant claimed that “not all the USD provided by the Bank of Ghana to the Plaintiff for the 1st Defendant’s import LC’s settlement had been allocated to the 1st Defendant and further that even those that the 1st Defendant allocated to the 1st Defendant were at rates higher than the Bank of Ghana mandated margin”. Based on this position, the Plaintiff says the 1st Defendant took the position that it owed the Plaintiff 35 Million US Dollars.

 

[9] The Plaintiff has further stated that the 1st Defendant claimed that it had unilaterally computed a total of 31 Million USD foreign exchange loss, which must be deducted from the USD66.4 Million which it admitted it owed on the grounds that USD31 Million represented excess foreign exchange conversion rates the Plaintiff had charged the 1st Defendant over the period. The other alleged complaints of the 1st Defendant were stated in the motion materials filed by the Plaintiff.

 

[10] According to the Plaintiff it engaged the 1st Defendant in a series of correspondences but they could not resolve their differences as the 1st Defendant undertook a unilateral reconciliation and took a position as to how much it owed the Plaintiff. Following that, the Plaintiff says it also undertook a unilateral reconciliation of the 1st Defendant’s account strictly based on the terms of the bilateral business relationship between them and arrived at the sum of US$194 Million as the 1st Defendant’s debt to it.

 

[11] The Plaintiff says as a result of its stand, the 1st Defendant petitioned the 2nd Defendant (Bank of Ghana) as the regulator of the Plaintiff to mediate in the dispute concerning them. According to the Plaintiff following meetings with the 2nd Defendant, it was mutually agreed between the Plaintiff and the 1st Defendant that “the 1st Defendant’s accounts be reconstructed and consolidated”. The Plaintiff says it meant that a new consolidated bank statement was to be created, one for the USD account and the other for the Ghana Cedi account. The Plaintiff says the consolidated bank statements were expected to capture all receipts/in and the payments/out transactions that occurred on the accounts from inception to 30 June 2017.

 

[12] The Plaintiff says it agreed with the 1st Defendant on the basis and terms upon which the reconstruction and consolidation was to be done and therefore on 30 July 2017, they executed a Memorandum of Understanding (MoU) to record their agreement. The Plaintiff has also stated that on the same day, the parties i.e. Plaintiff and 1st Defendant also signed a document containing the parameters for the reconstruction and reconsideration of the 1st Defendant’s accounts. The Plaintiff says the 4th Defendant witnessed both documents.

 

[13] From the facts, following the signing of the MoU, the parties engaged the 2nd Defendant to act as an “arbiter” in order to find solution to their dispute. Also, I understand from the materials filed that the Plaintiff and the 1st Defendant with the approval of the 2nd Defendant further engaged the 3rd Defendant, Price Water House Coopers for its expertise and assistance in resolving the dispute following the signing of the MoU. The 3rd Defendant after completing its work wrote a report and submitted same to the parties. Essentially, that report lies at the root of this lawsuit. Principally, the Plaintiff issued the writ of summons to set aside the report because it accuses the 2nd Defendant of issuing certain orders to the 3rd Defendant contrary to the parameters of its engagement by the Plaintiff and the 1st Defendant.

 

iv. The case of Plaintiff/Applicant

[14] Speaking to the application, Learned Counsel for the Applicant relied on all of the depositions in the supporting affidavit, the exhibits attached and all of the processes filed. Reacting to the affidavits in opposition filed, Mr. Beyuo submitted that two main points arise from the affidavits in opposition filed. According to Counsel the Plaintiff takes the position that the two directives issued by the 2nd Defendant do not fall within the parameters the parties agreed to but the 1st and 2nd Defendants say they are justified because the 2nd Defendant issued those parameters as part of its regulatory functions.

 

[15] Mr. Beyuo further submitted that the second point, which a point is made by the 2nd Defendant is that the Bank of Ghana was acting as an arbitrator and as such, the Bank’s decision is final and binding on the parties. Counsel further submitted that related to the above, is the 1st Defendant argument, that per the MoU (Exhibit CO1) the PWC decision was final and binding and cannot be challenged.

 

[16] In response to the above arguments the Plaintiff’s Counsel submitted that the Bank of Ghana was not appointed as an “arbitrator” and could not have been but it acted as an “arbiter”. Counsel submitted that the term arbitrator is a term of art and therefore it is not the mere use of it that makes a person an arbitrator. Learned Counsel cited the case of FRASER v. MAYOR & HAMILTON CORP. (1912) 32 DLR 205 @ 213 and referred to the statement of Cooper J wherein he stated that “it is not in every case where two parties intend to be concluded by the decision of a third that that third person is an arbitrator”. Mr. Beyuo submitted that admittedly, the recital of Exhibit CO1 refers to the Bank of Ghana as an arbiter, but as a matter of fact between the parties, they knew and understood that the 2nd Defendant was not an arbitrator properly so called.

 

[17] Counsel referred to paragraph (s) 29 and 30 of the 1st Defendant’s affidavit in opposition and submitted that the 1st Defendant concedes by those depositions that the 2nd Defendant was appointed as an arbiter and not as an arbitrator. Plaintiff’s Counsel further submitted that the reason why the 2nd Defendant cannot act as an arbitrator is based on law. According to Counsel the 2nd Defendant is an institution and under the ADR Act only a natural person can act as an Arbitrator. Counsel referred to Sections 12 and 135 of the ADR Act.

 

[8] Plaintiff’s Counsel further submitted that the 2nd Defendant’s position flip flops because in one breath, it says it acted as an arbitrator but in another breath it says it acted as a regulator. Counsel referred to paragraph 4 of the Plaintiff’s affidavit and paragraph 7 of the supplementary affidavit for the submission. According to Learned Counsel the argument of the 2nd Defendant that it acted both as an arbitrator and as a regulator is untenable both at matter of law and in fact.

 

[19] On the issue of finality of the 3rd Defendant, PWC work, Counsel submitted that even if the 2nd Defendant acted as an arbitrator it cannot be correct in the way it is argued that any decision of the 2nd Defendant is final. This is because according to Counsel if the 2nd Defendant acted as an arbitrator, its decision would be an award. Counsel referred to Section 58 (2) (d) of the ADR Act and submitted that a Court of competent jurisdiction can set aside a decision that fall outside the referral or jurisdiction of an arbitrator.

 

[20] Counsel further submitted that in reality what the Plaintiff and the 1st Defendant did was to refer their dispute to an expert consultant for determination within certain parameters. According to Counsel they agreed that the determination of the issue within the parameters would be final and binding. In Counsel’s view from the evidence before the court, it is clear that the Plaintiff, 1st and 3rd Defendants all agree that the two interventions by the 2nd Defendant, which are the subject matter of the instant suit do not fall within the parameters of Exhibit CO1. Counsel said in his opinion, it is on that basis that the 1st Defendant and 2nd Defendant have taken the position that the interventions were subject to the regulatory powers of the 2nd Defendant.

  

[21] In Mr. Beyuo’s opinion, under Exhibit CO1 the 2nd Defendant was not given any mandate to exercise any regulatory power. Counsel referred to Exhibit CO16 and stated that by the last paragraph of that exhibit, the consultant now says the earlier interventions except, the two all fell within the parameters and that the two were beyond the parameters of the parties. Learned Counsel cited the case of SHAFI v. RUTHERFORD [2014] C A (Civil Division) 1186, and submitted that in that case though the parties had agreed that the decision would be final, to the extent that the consultant exceeded the parameters agreed to by the parties the decision was set aside.

 

[22] Based on all of the above, Counsel submitted that it is clear that the Plaintiff’s claim is not frivolous but has raised serious arguments of law for the consideration by the Court. Mr. Beyuo concluded that based on all of the above and the other arguments and cases cited in the statement of case the status quo is to be maintained. Based on my question to Counsel, he says the application is referring to the legacy debt only.

 

v. The Defendants/Respondents:

[23] The Court notes that both the 3rd and 4th Defendants did not file any affidavit in opposition to the instant application. In Court, Mr. Akuaku Jnr. and Ms. Quaigraine told the Court that they take no position in so far as the motion is concerned. The 1st and 2nd Defendants are however opposed to the application they have each filed an affidavit in opposition to same.

 

[24] In response to the Application, learned Counsel for the 1st Defendant which is the target of the instant application, Mr. Thaddeus Sory first submitted that the 1st Defendant relies on all of the depositions in its affidavit filed. Counsel then submitted that maintaining the status quo ante as prayed for the Plaintiff/Applicant is to cause irreparable damage to the 1st Defendant. Counsel submitted that “the application is a non-starter because the 1st Defendant has a business and it is running and so if it loses the case at the end of the day, there will be money to pay to the Plaintiff. In the opinion of Counsel, the instant application is seeking an execution in advance of a judgment. Therefore to Counsel, the application should be dismissed.

 

[25] Learned Counsel submitted that there is no evidence that the Applicant shall suffer an irreparable damage should the application be refused because it has not shown that. On the contrary Counsel submitted that the 1st Defendant has demonstrated that in the affidavit in opposition. Counsel further submitted that “the money with the 4th Defendant is not due to the Plaintiff only but to others as well and so the money Counsel is praying the Court to injunct and or preserve is not the subject matter of the suit. That money, according to Mr. Sory is meant for the debtors of the 1st Defendant and if that includes the Plaintiff, then so be it but the Plaintiff cannot say it should not be paid out at all.

 

[26] Counsel further submitted that the test for granting an injunction is whether granting the application would be just and convenient. And that means the Court grants it for a right that exist. In this case, Counsel submitted that the money does not belong to the Plaintiff. And so it would not be just for the application to be granted.

 

[26] Turning to the arbitration arguments, Counsel submitted that the 1st Defendant’s paragraph 29 and 30 are distorted by the Plaintiff. Counsel referred to section 135 of the ADR Act (the statutory definition of Arbitration) and submitted that the 2nd Defendant as an institution could be appointed as an arbitrator and it is trite that it would execute the task through it Governor, officers or a qualified 3rd party as a consultant. In this case Counsel submitted that the parties voluntarily went to the Bank and of Ghana and it agreed that a 3rd party ought to be appointed and again the parties agreed. Counsel referred to Section 43 of the ADR Act and submitted that the arbitrator can appoint a consultant expert to act. Mr. Sory further submitted that there is institutional arbitration and so when the parties went to the Bank of Ghana by legal meaning of company law, the Bank’s officers acted on its behalf.

 

[27] In responding to the Plaintiff’s complaint, Counsel submitted that the 2nd Defendant did not go beyond its parameters because the 3rd Defendant, PWC went back to the 2nd Defendant to ask it to act within the limits of the agreed parameters. Counsel further submitted that there is no way the parties could have ousted the regulatory jurisdiction of the Bank of Ghana because it is the basis for the referral in the first place. To that extent, Counsel submitted that the Bank of Ghana acted based on its regulatory powers and what the parties agreed to.

 

[28] In further response to the arguments of the Plaintiff, Learned Counsel for the 1 Defendant submitted that Exhibit 16 written by the 3rd Defendant is embarrassing because no one called upon it to ratify its report and more so because it was done in the course of the dispute Counsel submitted that it is self-serving and indeed lacks any value and therefore Counsel called on the Court to ignore it.

 

[29] Finally, Learned Counsel referred to section 24 of the ADR Act and submitted that Section 58

(d) is not applicable in this case because there is no application to set aside an award made. According to Mr. Sory, when all is said and done, ‘this application is a garnishee order nissi but not an injunction because the so called status quo ante is not the subject matter in dispute’. But, rather the Plaintiff is seeking an execution of a judgment it says it will win in the future. Counsel therefore prayed the Court to dismiss the application as one without merit.

 

[30] As indicated above, Mr. Okyere Adjekum for the 2nd Defendant, Bank of Ghana is also opposed to the application. Learned Counsel in his submission to the Court argued that this dispute is based on directives given by the 2nd Defendant to the 3rd for a resolution of a dispute between the Plaintiff and the 1st Defendant. Counsel therefore submitted that the issue then is whether the Bank of Ghana had a basis in law to give the directives it gave to the 3rd Defendant. Counsel answered that it had legal basis to give the directives.

 

[31] Next Mr. Adjekum referred to Exhibit CO1 (the MoU) and said the 2nd Defendant was not a party to that agreement. Counsel also referred to the recitals and submitted that, it is the parties who gave the description of the Bank of Ghana as an arbitrator to bring final determination to their dispute and not the Bank.

 

[32] The next argument advanced by Mr. Okyere Adjekum was that ‘the nature of the dispute is what made the parties elect to appear before the Bank of Ghana and therefore they agreed to their own parameters and the Bank was not a party to the said parameters. According to Counsel the parties being aware of the Bank of Ghana’s statutory role and powers went to it and so it was not bound by their parameters.

 

[33] Learned Counsel referred to the Banking Act and submitted that the Bank of Ghana acted based on its objects as stated under the law. Further, according to Counsel, the Applicant has not shown that the Bank of Ghana could not act based on its statutory duties. To that extent, Counsel submitted that having acted within its regulations, the directives given by the Bank of Ghana in this case should not be disturbed.

 

[34] In responding to the Natural Justice argument, Learned Counsel referred to Exhibits CO5, CO7,CO8, CO9,CO10, CO11 and C012) and said they all show the communication between the Bank and the parties. Based on all of the arguments above, Mr. Okyere Adjekum concluded his submission by associating himself with all the arguments of the 1st Defendant, in particular the argument that that the money the Plaintiff is asking the Court to injunct is not for it and therefore it is not the subject matter of the litigation.

 

[35] Mr. Okyere Adjekum submitted that the Applicant has failed to demonstrate that it has a legal or equitable right that the Court must protect. According to learned Counsel it will not be just and convenient for the application to be granted.

 

vi. The Court’s Opinion & Analysis:

[36] To begin with, a host of respectable authorities have settled the principle that an injunctive order is an equitable remedy whose award is subject to judicial discretion 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. The granting of an interlocutory injunction is a matter of judicial discretion, but it is a discretion to be exercised based on well-defined judicial principles. 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.

 

[37] 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 an 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”.

 

[38] To my mind, the apex Court has undoubtedly laid down a tripartite test for the Court’s consideration in interlocutory injunction applications. It is also 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 SUPRA 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. I wish to abide by the above caution in making my decision in regards to the merits or otherwise of the instant application.

 

[39] I further 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 have also given due regard to all the authorities cited by Counsel in their respective Statement of Cases. I am of the respectful view that, for the purpose of this application and restraining myself from making definitive findings on whether or not the 2nd Defendant could be appointed as an arbitrator and whether or not it acted ultra vires its mandate I am prepared to accept that this case raises fundamental issues for determination and therefore the matter before the Court is not frivolous or vexatious.

 

[40] 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.

 

[14] On the issue of balance of convenience, the law as I understand it is that the Court ought to among other factors weigh up the disadvantages of granting the relief against the disadvantages of not granting the relief. See WELFORD QUARCOO v. ATTORNEY GENERAL & ANOTHER [2012] 1 SCGLR 259 per Date Bah JSC (as he then was).

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

 

[42] 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.

 

[43] Now, having reviewed the affidavit evidence I am of the respectful opinion that the Plaintiff is praying this Court to order the 4th Defendant not to pay monies it concedes are the 1st Defendant’s eligible payments/assets until judgment. Clearly, that is an extraordinary remedy which can and often does result in extremely harsh consequences. From the affidavit, the reason for the claim is captured at paragraph 49 of the supporting affidavit as follows: “by Exhibit CO4, the 4th Defendant under a duty to offset the 1st Defendant’s indebtedness to the Plaintiff by using all sums paid to the 4th Defendant by the Government of Ghana on account of the 1st Defendant in satisfaction of the 1st Defendant’s indebtedness to the Plaintiff”. Without doubt it is the reason why Mr. Sory for the 1st Defendant says this application is akin to a “Garnishee Order nisi”.

 

[44] Order 25 Rule 1(6) empowers the Court to consider any application under Order 25 on the basis of the papers filed. The Court must in all such cases be satisfied that in the circumstances of each particular case the order is deserving to make in the sense that it is just and/or convenient to grant or refuse the application. The Plaintiff has deposed that “in the likely event that Plaintiff’s claim succeeds the 1st Defendant will not be in a position to pay back debts owed to it by the 1st Defendant”. The problem is the Plaintiff fails to explain why and how the 1st Defendant would not be in a position to pay the said debt. As I understand it the 1st Defendant is a Company still in business which is not in liquidation. Indeed there is no evidence before the Court that it is about to fold up. To that extent, I am of the respectful view that the submission is speculative and not supported by any cogent evidence.

 

[45] The Plaintiff also said the 1st Defendant will suffer no damages if the application is granted because the sums due it and in the possession of the 4th Defendant would still be there after the judgment. The 1st Defendant counters the argument that to the knowledge of the Plaintiff the 1st Defendant is a viable business entity and has done business with the Plaintiff for over a decade. It is also deposed that the fact that “the Government of Ghana is indebted to the 1st Defendant confirms the fact that it is a solvent business. Again, in my respectful opinion the Plaintiff’s position that the 1st Defendant will not suffer any damage is too simplistic. First and foremost though the Court is not furnished with the quantum of money the Plaintiff is praying the Court to injunct and/or preserve and so I do not know. However, I am of the view that even if the amount is even $10,000.00 it is likely to impact any business of its operations in the current economic environment.

 

[46] In my respectful opinion even though Counsel for the Plaintiff has articulated what in his view is the basis for the claim before the Court and why he is of the strongest opinion that the Plaintiff shall succeed after the trial, I am of the firm belief that the Plaintiff has failed to demonstrate on the balance of convenience the hardship to be suffered by it which cannot be adequately compensated for in cost/damages should it be successful after the trial should the application be refused.

 

[47] On the other hand I am of the opinion that on the balance of convenience the 1st Defendant as a business stands to suffer greater hardship and irreparable damage should the application be granted because it would in effect be denied payments due it for the smooth operation of its business. I note that one valid statement made by the 1st Defendant and which the Plaintiff has not answered is that the money the Plaintiff is praying the Court to injunct is not the subject matter of the litigation and does not belong to the Plaintiff. According to 1st Defendant the money is for the purpose of operating its business and also to pay off its just debts. In counsel’s opinion therefore if the Plaintiff is one of such debtors, then so be it but it does not have the sole right to the money legally.

 

[48] From all of the above, I understand the arguments above to mean that granting the instant application would mean that the 1st Defendant cannot operate its business, whilst taking care of the financial obligations including paying off its just debts and taking care of its other operational costs etc. at the same time. Further, in my view injuncting the 1st Defendant at this stage may amount to pre-determining the main issue raised in this case.

 

vii. Conclusion & Disposition:

[49] Finally, to reiterate “Order 25 rule 1(1) states 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”. The importance of the clause in my respectful opinion is this: in an unusual case such as the present application the necessity of the court to consider whether it is ‘just and convenient’ – and those are statutory words – to grant any injunction, including detention and preservation of property, the law gives the court the opportunity, to ask itself the question based on all of the circumstances of the case before it whether it is right, whether it is just, and whether it is fair to grant the injunction sought.

 

[50] In this case, having subjected all of the affidavit evidence before me to scrutiny and considered the able submission of all Counsel and 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, and keeping faith to the law on the grant or refusal of injunction as stated above I am of the respectful view that it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 to grant this instant application. Consequently, the application for interlocutory injunction is REFUSED. I shall award costs of GH¢3,500 each to the 1st Defendant and 2nd Defendant.

 

CASES REFERERD TO

EKWAM v PIANIM (No.1) (1996-97) SCGLR 117

FRASER v. MAYOR & HAMILTON CORP. (1912) 32 DLR 205 @ 213

SHAFI v. RUTHERFORD [2014] C A (Civil Division) 1186

18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED [2012] 1 SCGLR 167 VANDERPUYE v NARTEY (1977) GLR 428 @ 431 ODONKOR v AMARTEI (1987-1988) GLR 578

AMERICAN CYNAMID CO. LTD V ETHICON LTD (1985) AC 396

WELFORD QUARCOO v. ATTORNEY GENERAL & ANOTHER [2012] 1 SCGLR 259