i. Introduction:

[1] The Plaintiff issued a Writ of Summons against the Defendants on June 16, 2017 for certain reliefs endorsed thereon. Among the reliefs the Plaintiff is seeking are:

i) A declaration that the brand new Land Rover Discovery 4 HSE which the Plaintiff bought from the 1st Defendant on the 10th day of April 2014 has a manufacturer defect and therefore same is not fit for the purpose for which same was bought.

ii) A declaration that the 1st Defendant has breached the warranty agreement on the vehicle sold to the Plaintiff.

[2] The Plaintiff is also seeking an order directed at the 1st Defendant to replace the said vehicle with a brand new one and against the 2nd Defendant the Plaintiff seeks an “interim order of injunction directed at the 2nd Defendant to restrain it from receiving the monthly repayment on the said vehicle from the Plaintiff until the final determination of this suit”.

[3] Pleadings have closed and the parties have filed their witness statements pursuant to the Court’s orders made after the application for directions was taken. The mandatory Case Management Conference is yet to be conducted. Now, the Plaintiff has brought the instant application for an interim order of mandatory injunction against the 1st Defendant.

[4] It is noted that 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[1].

[5] 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 January 21, 2019, an application praying for:

“… an interim order of mandatory injunction compelling the 1st Defendant/Respondent to deliver to the Applicant, Courtesy Vehicle Jaguar F-PACE with registration number GM 644-16, which is currently in possession of the Applicant, for his use until the final determination of the suit upon the grounds set out in the accompanying affidavit and for any other order or orders as this Honourable Court may deem meet”.

ii. The case of Plaintiff/Applicant

[6] The case of the Plaintiff/Applicant as per the supporting affidavit to the application is that somewhere in October, 2018 the vehicle, the subject matter of this suit developed an engine fault and when he reported it to the Respondent, the service team of the Respondent issued him with an invoice of GH¢12,000 and imported the said part and fixed same on the 28^th day of November, 2018 and handed over the vehicle back to him. According to him only two weeks after the repairs and handing over of same, on the 14^th day of December 2018, he was travelling “from Accra to Kumasi and the vehicle developed the same engine fault which the Respondent claimed to have fixed”. He further deposed that “the vehicle again, upon instructions from the Respondent had to be towed to Accra at my own cost. That on the 18^th day of December, 2018 the vehicle was given back to me with the explanation that it was a minor problem”.

[7] The Applicant further averred that “just after two weeks when the vehicle was released to me, the vehicle again on the 5^th day of January 2019, when I was travelling to the Eastern Region to conduct a business, the vehicle again broke down out of the same fault the Respondent claimed it had fixed. Again, the vehicle was towed to Accra upon the advice of the Respondent at the cost of the Applicant”. Mr. Awuah says he took pictures of the faulty vehicle and sent an e-mail to the Respondent explaining to them his frustrations at the turn of events and how their actions have completely damaged the brand new vehicle he bought from them. He attached as Exhibits SAD 1 and 2, being copies of the various correspondence and photographs taken.

[8] The Applicant has further deposed that the Respondent promised to fix the car “in three (3) week because they had to import the faulty part. That till date, the vehicle still remains with the Respondent”. It is also the further case of the Applicant that “on the 11^th day of January, 2019 the Respondent provided me with a courtesy vehicle, Jaguar F-Pace with Registration Number GM 644-16 which I still continue to use while the Respondent try to fix my faulty vehicle”. He also attached as Exhibit SAD 2 series of photographs of the said vehicle.

[9] The further deposition of the Applicant is that “I believe that the manner at which the Respondent has fidgeted with the vehicle, the subject matter of this suit has made the vehicle not roadworthy and puts my life at risk and danger if I am to take delivery of same for use. That I am in complete fear for my life because it is evidence that the Respondent cannot fix the car and for me, with this knowledge in mind, to continue to use the said vehicle will be to sign my death warrant literally”.

[10] As a follow up to the above dirge or lamentation the Applicant further deposed that “I believe that whilst this matter is pending I must be allowed to continue to use the courtesy vehicle that was given to me by the Respondent until after the determination of this suit”. He attached a copy of a letter sent to the Respondent by his Counsel expressing the desire to use the Courtesy vehicle dated the 15^th day of January, 2019 as Exhibit SAD 3. According to the Applicant he has been advised by Counsel and he verily believe same to be true that because witness statements have been filed in this suit the matter shall soon be finally determined by the Court.

[11] According to the Applicant “the Respondent is bent on taking delivery of the courtesy vehicle and gives me back my vehicle but I am traumatized and deafeningly scared for my life to use same considering the fact that the engine problems, which the Respondent has proven so far it cannot repair but claims to have repaired cannot be entirely guaranteed. That I am indeed scared for my safety when I consider the number of accidents that occur on our highways daily due to faulty vehicles”.

[12] The Applicant finally deposed that “the Respondent will forcibly and unfairly make me use the dangerous vehicle if it is not ordered to keep same and give to me the said courtesy vehicle. That my life and safety is of paramount concern in matters of this nature”.

[13] Speaking in support of the motion per the statement of case filed, Learned Counsel reiterated the depositions in the affidavit and referred to such cases as VANDERPUYE v NARTEY (1977) GLR 428 @ 431 and AMERICAN CYNAMID CO. LTD V ETHICON LTD (1985) AC 396 to submit that “the balance of convenience and hardship tilts in favour of the Applicant because if the application is refused, it will mean that the Applicant will have to conduct his business without a vehicle because he has indicated his fear of going back to use the vehicle in issue. He will be gravely inconvenienced according to Counsel.

[14] According to learned Counsel should the Respondent be allowed to take the vehicle a miscarriage of justice would occasion the Applicant. Counsel also submitted that losses to be incurred by the Applicant cannot be compensated for in damages. Based on all of the above facts, Counsel has submitted that the Applicant has a legal right that ought to be protected. He therefore prayed the Court to grant the application.

iii. The Defendant/Respondent:

[15] In response, the Respondent deposed that the faults which the Applicant complained of, with respect to Land Rover Discovery 4 HSE with Registration Number 2093-14, were caused as a result of reasonable wear and tear, to be expected with the prolonged use of a vehicle. It is also the case of the Respondent that, the faults being complained of, with respect to the Land Rover Discovery 4 HSE with Registration Number 2093-14, are irrelevant to the determination of the instant application which is related to the Jaguar F-PACE with Registration Number GM-644-16.

[16] According to the Respondent at all material times during the “pendency of the instant suit, the Plaintiff has been sending the said Land Rover Discovery 4 HSE with Registration Number 2093-14 to Defendant’s workshop for servicing and routine maintenance. That on the 8^th day of January, 2019 the said Land Rover Discovery 4 HSE with Registration Number 2093-14 was taken to the Defendant’s workshop for repairs by Plaintiff”.

[17] It is the case of the Respondent that as a goodwill gesture it offers customers with a courtesy vehicle for their personal use at no cost while their vehicle is being repaired and that the Plaintiff herein has on various occasions enjoyed the said goodwill gesture of Defendant. According to the Respondent at all material times, the provision of the said courtesy vehicle by Defendant to its customers is regulated by the execution of its Standard Agreement for that purpose.

[18] The Respondent further deposed that on the 8th day of January, 2019 after the Plaintiff brought the Land Rover Discovery 4 HSE with Registration Number 2093-14 for repairs and Respondent entered into an Agreement with the Applicant for the provision of a courtesy vehicle being the Jaguar F-PACE with Registration Number GM-644-16. A copy of the Agreement was marked as Exhibit 1.

[19] It is the case of the Respondent that the Agreement provided at paragraph 10 that, upon notification of the completion of the repairs of the Applicant’s vehicle, the Applicant is obliged to return the courtesy vehicle within 24 hours of the notice. The Respondent contends that after the completion of the repairs an e-mail dated the 14^th day of January, 2019 was sent to the Applicant to notify him of the completion of the repairs works on his vehicle and so he should come for it by Friday 18^th January, 2019. A copy of the said e-mail was attached as Exhibit “2”. According to the Respondent the Applicant has blatantly refused and/or failed to return the Courtesy vehicle.

[20] The Respondent says its other customers require the use of the courtesy vehicle when their vehicles are being serviced, and therefore “the unwarranted detention of the vehicle by the Applicant is significantly affecting the delivery of services to the Respondent’s customers”. The Respondent further says that the routine servicing period of the Jaguar F-PACE vehicle “is a 6 months’ period or a distance of 10,000km and that the last servicing undertaking on the vehicle was July 2018 and that the Respondent urgently needs the said vehicle for servicing”. A copy of the Servicing Record of the vehicle is attached as Exhibit 3. The Respondent further says that the continual usage of the vehicle by the Applicant without the required servicing will result in permanent damages to the engine of the vehicle thereby exposing the Respondent to irreparable damage that may result.

[21] Based on all of the above and other depositions contained in the 33 paragraph affidavit in support, the Respondent contends that the Applicant has woefully failed to demonstrate any legal or equitable right he has in the courtesy vehicle to warrant the present application. According to the Respondent the present application is frivolous and vexatious because there is no basis for the “conjured apprehension for the use of the subject matter vehicle”. Also, according to the Respondent the Jaguar F-PACE with Registration Number GM 644-16 is completely unrelated to the issues to be resolved or the reliefs claimed in the suit.

[22] Speaking to the application through the statement of case Learned Counsel submitted that the general principle with respect to injunctions of this nature, was laid down in the case of Redland Bricks Ltd v. Morris [1970] AC 652, where the House of Lords held that:

‘A mandatory injunction can only be granted where the Plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future…it is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly”.

Counsel also cited the case of LOCABAIL INTERNATIONAL FINANCE LTD. V. AGROEXPORT AND OTHERS [1986] 1 All ER 901 to submit that a mandatory injunction should not be granted in the absence of special circumstances.

[23] Mr. Asamoah further submitted that the Applicant has not demonstrated the existence of a legal or equitable right which the Court must protect and therefore the application should be refused. 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. Learned Counsel further submitted that based on the facts the instant application does not raise any serious or triable issues for the determination of the Court.

[24] Further, according to learned Counsel it will not be just and convenient to grant the application as the Applicant has no legal right in the courtesy vehicle to be protected. On the contrary, Counsel submitted that the Respondent has shown what hardship it would suffer on the balance of convenience if the application is granted. Counsel cited the Supreme Court case of 18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED [2012] 1 SCGLR 167 to support the contention. Finally, according to Counsel the hardship the Respondent will suffer shall include the fact that the use of the courtesy vehicle by its other customers shall be denied. Based on all Counsel therefore prayed the Court to dismiss the application.

iv. The Court’s Opinion & Analysis:

[25] 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.

[26] Now, in considering the Applicant’s prayer I wish to state that the basic consideration for the grant of interlocutory injunction are two-fold. First and foremost the Applicant ought to establish that it has a right in law or at equity to protect and that its action is neither frivolous nor vexatious. The second consideration is the balance of convenience where the Applicant has to prove that it will suffer hardship or inconvenience if the application was not granted.

[27] In 18TH JULY LIMITED v. YEHANS INTERNATIONAL LIMITED SUPRA 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”.

To my mind, the apex Court has undoubtedly laid down a tripartite test for the Court’s consideration in interlocutory injunction applications.

[28] Having looked at the totality of the evidence so far filed in this case, I hold that based on the law on the grant or refusal of injunction and being faithful to the law, in my respectful opinion there is no legal basis for the grant of the instant application despite the lamentations and the apprehension of death of the Applicant. I agree with the Respondent that there is no legal nexus between the claim and the reliefs endorsed on the writ of summons and what is being sought in the instant application. The allegations in regards to the vehicle which is the subject-matter of the suit which is Land Rover Discovery 4 HSE ought to be clearly severed from the courtesy vehicle, the Jaguar F-PACE with Registration Number GM-644-16 the subject matter of the instant application.

[29] In my view the resolution of the instant application borders on the agreement signed by the Applicant and the Respondent for the courtesy vehicle on January 11, 2019. I have looked at the contents of the agreement together with the conditions and I am of the view that the agreement admits to no ambiguity. The Applicant understood the agreement and signed same. Paragraph 10 of the agreements stipulates:

“Upon notification of completion of repair to the CUSTOMER’S vehicle, the customer will return the courtesy car to AMGL within a 24-Hour period”/

The agreement ends as follows:

“I have read and understood the contents of the Agreement, and I also understand this Agreement is subject to Accra Jurisdiction.

I therefore accept all the terms and conditions of this Agreement”

[30] As a general rule, the presumption in the interpretation of a document is that the parties are presumed to have intended what they have in fact agreed to in writing. Also, it is the established rule that one must consider the meaning of words used in a document, and not what one may guess to be the intention of the parties.

[31] I cannot with respect accept the position of the Plaintiff/Applicant and agree with him that in the face of the plain words in the agreement signed, same should be ignored in favour of his speculative lamentation and fear of death. To my mind, that would not be in accord with a party’s freedom to contract and also in accordance with common sense as well.

[32] I am unable to yield to the Applicant’s position that “a miscarriage of justice would occasion him should the application be refused” because in that event he would be asked to go back to the defective vehicle. There is indeed no basis for the contention based on the agreement signed. To my mind, parties first negotiate terms before agreements are signed and not vice versa. I am of the respectful view that a plain, purposive and objective reading of the agreement signed on January 11, 2019 makes it tolerably clearer that the Defendant is to repair the Land Rover Discovery 4 HSE vehicle and the Plaintiff was to use the Jaguar F-PACE courtesy vehicle in the interim. The Applicant agreed that upon completion of the repairs and upon notification he would return the Jaguar F-PACE. Based on whatever negotiation of the terms the parties agreed and same was signed.

[33] I think that acceding to the Applicant’s plea would clearly undermine the confidence of citizens who are engaged in business in the administration of justice. Parties to a contract ought to respect the terms they sign and not turn around to the Courts to legitimise self-help. This court shall refuse to be the witting accomplice of the Applicant in his bid to abdicate or comply with his responsibilities in his business transaction with the Respondent.

[34] I am convinced that the Applicant has no legal or equitable interest to be protected by the Court in so far as the courtesy vehicle is concerned. On the other hand the Respondent as an on-going business concern has a legal right in the courtesy vehicle and this Court ought to protect same. To my mind the Respondent cannot be adequately compensated by way of damages at the end of the trial if the Applicant is to keep the vehicle which I have found he has no legal interest based on the agreement he willingly signed. To be blunt the Applicant’s motion is unmeritorious brought in utter bad faith. In the light of the foregoing reasons above, the application for interlocutory injunction is REFUSED.

[35] Cost follows the event and therefore I think the Respondent is entitled to cost. The Respondent’s Counsel asked for cost of GH¢10,000. The Applicant offers GH¢1000. Based on all of the facts I shall award the 1st Defendant cost in the amount of GH¢2,000.

[1] EKWAM v PIANIM (No.1) (1996-97) SCGLR 117. The Supreme Court per Kpegah JSC held in that case that considering the totality of the case, the applicant could not be denied the temporary relief sought by him.