IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2018
THE APOSTLES CONTINUATION CHURCH INTERNATIONAL - (Plaintiff)
FRANCIS KWASI TEIKU AND PENTECOSTAL CHURCH OF APOSTLES - (Defendants)
DATE: 22 ND DECEMBER, 2018
SUIT NO: GJ 1492/17
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Permit me to preface this ruling with the words of St. Paul, the Apostle to the Gentiles that:
“Finally, brethren, farewell. Be perfect, be of good comfort,
Be of one mind, and live in peace; and the God of love and peace
Shall be with you.”
2 Corinthians 13: 11 (New Kings Version)
Far cry from this glowing admonition for peace in the church, there is turmoil between The Apostles Continuation Church International and the Pentecostal Church of the Apostles that has culminated in the issuance of a writ by the Plaintiff church. By this application the Plaintiff/Applicant is praying the court for the grant of an order of what he terms as interim injunction to restrain Defendants and their agents and assigns, privies and persons claiming through them from unlawfully taking over what Plaintiff/Applicant claims is its church building at Teshie –Agblezaa, a 38 seater bus with registration number GW 5480 X as well as instruments, drums and rubber chairs and also an order restraining the 2nd Defendant church from operating or using the mentioned properties until the final determination of the suit.
It is not in doubt that in the writ issued by the Plaintiffs the Plaintiffs/Applicants seek for reliefs among which are an order of perpetual injunction restraining the Defendants from holding himself out as the owner of the church building 2nd Defendant is occupying, the 38 seater Mercedes Benz, the musical instruments, drums and chairs and also an order restraining the 1st Defendant from taking control of the vehicle or declaring the church building 2nd Defendant is using as belonging to the 2nd Defendant. This application is intended to prevent the use of the properties by 2nd Defendant under the control of 1st Defendant till the final determination of who has the legal and proprietary rights over them.
In the affidavit that accompanied the application the Applicant through Enoch Pinto claim that the properties in dispute are all the properties of Plaintiff’s church for which the Defendants are laying false claims to them. The deponent further claim that Plaintiff would be inconvenienced if the Defendants were not restrained from the use of the properties. He again depose that Plaintiff would suffer irreparable loss if the Defendants are not restrained and they proceed to dispose off the vehicle as the Defendants intend to do. Again the Applicant claim in paragraph 9 of the affidavit in support that there would be confusion, chaos and anarchy if Defendants are allowed to declare the church building as belonging to the 2nd Defendant and plaintiff’s church members prevented from worshipping there. And on that basis ask for the interlocutory injunction.
There was a supplementary affidavit filed which Plaintiff/Applicant attached previous proceedings in respect of litigation over the properties which is also the subject matter of this dispute and it included an earlier grant of an interlocutory injunction by Ofori Atta J., the conviction for contempt of 1st Respondent before Naa Adoley Azu J and also a dismissal of appeal against the grant of an injunction by Ofori Atta by the Court of Appeal presided over by a single Judge, Honyenuga JA. Both Defendants have fiercely resisted the application for interlocutory injunction in separate affidavits in opposition filed describing the application as frivolous. They claim that Applicant has established no right at law to be entitled to the grant of the application as in their view no documentary evidence has been put forward to demonstrate that the Applicant has any right in the properties it seek for the interlocutory injunction. They further claim that the land upon which the building of the 2nd Defendant church sits was bought for a valuable consideration by 1st Defendant and attached Ex T.A.B 1 and T.A.B 2.
Regarding the vehicle, the Respondents contend that the vehicle was bought as far back as 2011 as all the registration documents bear evidence that it is the property of 1st Respondent. And the claim of fraud against them is nothing but a red herring. They also claim that they would rather suffer greater hardship if the application was granted by the court as they are already in possession and were they to lose the suit, Plaintiff could adequately be compensated in damages. As a preliminary point I realise that counsel for Applicant has termed his application as interim injunction as if interim is the same as interlocutory injunction. Indeed many lawyers have laboured under this error.
N. Y. B Adade, JSC in his article captioned “Interlocutory Matters Under the High Court Rules”, published in (1987-88) 16 RGL 60 @63 correctly captured the distinction between the two as follows:
“An interim order is distinguishable from the truly interlocutory order, even though both are interlocutory. Generally, the court should not make an order against a party without first hearing him. But there may be situations where before giving the party a hearing, it may be necessary to take certain steps to protect the property the subject matter of dispute or to ensure that the balance is evenly held … These situations call for interim orders. Thus an interim order is normally made on an ex parte application by the Plaintiff. It is limited to a definite and short time, but reasonable enough to enable the Plaintiff exercising due diligence, to serve notice of motion on the Defendant. The interim application would then be adjourned to a definite date for hearing on notice”.
Similar position was taken in the Nigerian Supreme Court case of 7- UP BOTTLING CO. LTD v ABIOLA & SONS LTD  NWLR 257 where the court noted:
“There was a real misconception and some confusion on the part of the appellants. The appellants, somehow, did not distinguish between an interim injunction and an interlocutory injunction and for that reason, did not recognise the purpose for which an interim injunction is granted and the purpose for which an interlocutory injunction is granted”
Technically therefore, an injunction application on notice cannot be interim but interlocutory. Be as it may, the slip is not fatal, and, the misnomer, notwithstanding, the application is properly before the court.
Order 25 Rule 1 of the High Court (Civil Procedure) Rules, C. I. 47 states as follows:
“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 an application for interlocutory injunction it is the duty of the Applicant to demonstrate a number of factors, among which are, that there is a right that ought to be protected at law or in equity, that greater and irreparable hardship will be occasioned by the refusal of the application, that the application is not frivolous or vexatious and that compensation may not be adequate remedy. See the following cases: OWUSU v OWUSU ANSAH [2007-2008] SCGLR 870 at 875, VANDERPUYE v NARTEY  1 GLR 428; AMERICAN CYNAMID CO v ETHICON CO. LTD  AC 396, THOMAS APPIAH ANSAH v NANA KATAKYIRE II Suit No. H1/154/11CA. Has the Applicant demonstrated any right at this stage? There has been attached a number of Exhibits including Ex ‘A’ series consisting in what appears to be an appointment letter dated the 5th of January, 2015 wherein the 2nd Respondent was appointed as a pastor of the Plaintiff’s church and posted to its Teshie branch to shepherd the congregation. I have also examined Ex ‘B’ series which includes an earlier order of injunction restraining the 2nd Respondent from taking over the church building at Teshie- Agbelezaa as well as a 38 seater Mercedez Benz vehicle or from using the properties as his personal vehicle. The failure by the 2nd Respondent to comply with the terms of the order of Ofori Attah J led to the conviction of 2nd Respondent for contempt and sentenced to 400 penalty units.
The order of Ofori Atta J was unsuccessfully challenged on appeal and neither has the conviction of Naa Adoley Azu J been set aside. As an application for interlocutory injunction a court is not to delve into the merit of the suit but only to examine if a right at this stage has been established by the Applicant, and I think the gamut of events recounted supra suffices to establish a right at this stage that merit protection by the court. I am not unmindful that the establishment of a right at law or equity that merit protection is not the only factor worth considering in an application of this nature. A factor worth considering as the Respondents have indicated is the greater hardship that would be occasioned to them by the grant of this application and how damages would not be an adequate remedy if they were to win the case at the end of the trial as 2nd Defendant is already in possession of the church building.
On the 27th of May, 2015 the High Court restrained the 2nd Respondent from conducting church activities in the church building and if it had flouted the orders of the court I do not think it justiciable for a party to advance its own violation of a court order as ground to show that it would suffer greater hardship if the application for interlocutory injunction was granted. Indeed if the Respondent had shown respect to the earlier orders of the court, it would not have even canvassed this ground at all before me. And if a court were to turn a blind eye and allow violations of its orders to be put forward as arguments in support of a position, the court itself will be complicit in supporting anarchy and break down of order in society and I find the claim of irreparable damage being occasioned the Respondents upon the grant of this application untenable.
An earlier order had similarly been made in respect of the vehicle by Naa Adoley Azu J on 27th April, 2017 where the court restrained 2nd Respondent or persons claiming through him from using or operating the Mercedes Benz vehicle with registration number GW 5480 – X. The decision of my sister has not been challenged on appeal and I have no power presiding over a court with co-ordinate jurisdiction to set aside the orders of another High Court. I can will affirm the order of my sister and restrain the Respondents from using the vehicle. The Respondents were ordered to relocate the vehicle after repair works to the court premises. The court was to make further orders upon the failure of the Respondent to comply by 26th June, 2017.
I order the 2nd Respondent to ensure that the vehicle is kept at the premises of the Circuit Court, Accra and the key handed over to the Registrar of the General Jurisdiction pending further orders that the court may make. The Applicant has made a case for the grant of interlocutory injunction and I hereby restrain Defendants/Respondents and their agents, assigns, privies and church members from taking over the church building at Teshie-Agblezaa and from operating the Mercedes Benz bus with Registration number GW 5480 X as well as the instruments, drums until the final determination of the substantive suit.
I make no order as to cost.