IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2018
UNIVERSITY OF GHANA - (Plaintiff)
CPA 18 INTEGRAS GH LTD AND ANOTHER - (Defendants)
DATE: 7TH NOVEMBER, 2018
SUIT NO: GJ 140/2018
JUDGES: ERIC K. BAFFOUR, ESQ. JUSTICE OF THE HIGH COURT
Plaintiff/Applicant seeks the following reliefs on the endorsement to the writ issued:
a. A declaration that pending the completion of the arbitral proceedings between the Plaintiff and 1st Defendant currently taking place in London, UK or the resolution of the dispute between the parties, the 1st Defendant shall not draw down, access or utilize any or all moneys paid by Plaintiff into the Rent Escrow Account domiciled with 2nd Defendant.
b. An order of perpetual injunction restraining 1st Defendant, its agents, assigns, privies or other persons no matter how so described from drawing down, accessing or utilizing any or all moneys paid by Plaintiff into the rent escrow account pending the completion of the arbitral proceedings between Plaintiff and 1st Defendant or the resolution of the dispute between the parties.
c. An order of perpetual injunction restraining the 2nd Defendant, its agents, assigns, privies or
other persons no matter how so described from permitting the 1st Defendant from drawing down, accessing or utilizing any or all moneys paid by Plaintiff into the rent escrow account pending the conclusion of the arbitral proceedings between the Plaintiff and the 1st Defendant or the resolution of the dispute between the parties.
d. Any further or other order(s) as the honourable court may deem fit.
In this application for interlocutory injunction Applicant prays the court for orders to restrain 1st Respondent from accessing the monies in the rent escrow account or orders to restrain 2nd Defendant from permitting 1st defendant from accessing the rent escrow account pending the conclusion of arbitral proceedings in London.
1st Respondent has opposed the application and claim that it had a right to issue a notice of termination due to the failure of Applicant, among other, to obtain letters of credit. This per the contract led to the appointment of an expert but Applicant desirous of escaping its liability under the contract between them has challenged the appointment of the expert. And the expert was supposed to determine the termination value and his determination was deemed to be an arbitral award. And that the expert had issued his determination of the termination value of US$165,765,753.00 to be paid by the Applicant and contend that Applicant is not entitled to any interlocutory reliefs. 1st Respondent therefore contend that the case of the Applicant before the arbitral panel is weak and without merit with no chance of an arbitral award being granted in its favour as Applicant has advanced its own failings to obtain the requisite approvals as a foundation of its case in arbitration and thereby sinning against the principle of ex turpi cause non oritur (from an evil cause no action arises).
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.
The first question I ask is whether there is claim before the court that raises triable issues for which the status ought to be maintained till the final determination of the suit. From the affidavit evidence it is the contention of 1st Respondent that the claim of the Applicant is weak. Whiles it is not my duty to determine the respective strength of the parties at the arbitral forum, it is clear to me that the contract between the parties is seriously under attack as seen from Ex Ex ‘D’ being a writ issued by one Samuel K. Andrews seeking to set aside the concession agreement between Plaintiff and 1st Respondent for non-compliance with some statutory requirements. This shows that the claims of the Applicant are not frivolous and the writ raises weightier issues for determination before the court. The possibility of the invocation of the principle of lis alibi pendes cannot also be ruled out in the face of the writ at the Supreme Court. It would not accord well in the face of such writ at the highest court of the land challenging the concession contract coupled with the arbitration proceedings in London for the court to turn a blind eye for 1st Defendant to recover the monies with 2nd Defendant.
Besides, whatever damage that would be caused to 1st Defendant/Respondent by the grant of this application and the maintenance of the status quo till the final determination of the suit could adequately be compensated for in terms of money. For the reasons proffered supra I grant the application restraining the 1st Defendant from accessing the monies in the rent escrow account and also restrain 2nd Defendant from granting access to the 1st Defendant to access the monies in the rent escrow account till the final determination of the suit. Applicant shall provide an undertaking to compensate the 1st Respondent if at the end of the trial it is proved that the Applicant was not entitled to the interlocutory injunction.