RULING

“The words ‘just or convenient’… must be read ‘just as well as convenient’. They do not mean that the court can grant an injunction simply because it thinks it convenient, but means that it should grant an injunction for the protection of rights and the prevention of injury according to legal principles. They confer no arbitrary nor unregulated discretion on the court and do not authorise it to invent new modes of enforcing judgments in substitution for the ordinary modes.”

The Supreme Court in the case of Owusu v Owusu-Ansah [2007-08] SCGLR 870 cited with approval Pountney v. Doegah [1987-88] 1 GLR 111 and held that the grant or refusal of an injunction is at the discretion of the trial court, but that discretion has to be exercised judiciously. In the exercise of such discretion, the trial judge ought to take into consideration the pleadings and affidavit evidence before him. The court must determine whether an applicant has by his pleadings and affidavit established a legal or equitable right which has to be protected by maintaining the status quo until the final determination of the action on its merits.

In the Owusu case supra, the Supreme Court also cited with approval Vanderpuye v Nartey [1977] 1 GLR 428 at 432 where Amissah J.A. held:

"The governing principle should be whether on the face of the affidavits there is the need to preserve the status quo in order to avoid irreparable damage to the applicant and provided his claim is not frivolous or vexatious. The question for consideration in that regard resolves itself into whether on balance greater harm would be done by the refusal to grant the application than not."

 Halsbury’s Laws of England (supra) more specifically posits:

“Where the application is to restrain the exercise of an alleged right, the claimant should show that there are substantial grounds for doubting the existence of the right. The claimant must show that an injunction until the hearing is necessary to protect him against irreparable injury; mere inconvenience is not enough.”

Indeed, mere inconvenience which an applicant may suffer as a result of the status quo is not enough to necessitate the grant of injunction. An applicant must demonstrate that he has a right which ought to be protected and that he will suffer irreparable damage if the respondent is not restrained.

In the instant case, it is my considered opinion that the applicants have not demonstrated the existence of any right that must be protected. After all, the applicants are not challenging the validity of the default judgment. What they are challenging is the discretionary power exercised by the court in fixing the reserve price. Section 16(2) of the Auction Sales Act, 1989 (PNDCL 230) provides:

“Where the auction sale is as a result of a judgment debt, the sale shall be subject to a reserved price to be determined by the Court which gave the judgment.”

I do not intend to go into the merit of the applicants’ appeal against the order of the court in fixing the reserved price. I can, however, state that in the absence of a clear case of capricious exercise of the court’s discretionary power in fixing the reserved price, in the instant case, it would be difficult to conclude that the likelihood of success of the appeal is apparent on the face of the record for this court to hold that the applicants have a right that must be protected. On the other hand, the respondent has secured a judgment which remains unchallenged and it certainly deserves the right to enjoy the fruit of this judgment. In the case of In Re Yendi Skin Affairs; Yakubu II vrs Abdulai [1984-86] 2 GLR 231, Holding 1 the Supreme Court held that:

“The Courts had consistently operated on the principle that where two parties were litigating, every care must be taken to ensure that the party who eventually won did not find his judgment useless in his hands. Hence, at first instance, there were rules for interim preservation of the subject of litigation, and for injunction to prevent waste. At the same time the courts have tried to hold the balance evenly between the parties so that one did not take undue advantage of the other during the course of the litigation. Those principles have been applied, subject to the balance of the convenience in a particular situation and to the hardship which the making or the refusal of an order might have on one or the other of the parties. The same considerations would apply when appeals were pending.” [Emphases mine]

Thus, on a balance of convenience, the applicants do not, in the present circumstance, deserve the benefit of an interlocutory injunction. The respondent shall rather suffer greater hardship when the application is granted.

It must also be emphasised that the unmeritorious nature of the instant application does not only lie in its substance but the form as well. What the applicants are seeking to do in this application is to halt the execution process by restraining the registrar of the court from appointing an auctioneer to auction the attached properties. It is my considered opinion that the only option available to the applicants in the circumstance was to apply to stay the execution of the judgment or to set aside the execution process. It is trite learning that where the rules of procedure prescribe a mode of enforcing a right or seeking a relief same must be adhered to, as failure to do so in accordance with the prescribed mode is not only an irregularity but a nullity since it raises the fundamental issue of jurisdiction. See Ayikai v Okaidja III [2011] 1SCGLR 205, 208 per Gbadegbe JSC. No wonder the applicants first applied to the court in a bid to stay execution of the default judgment and when that failed, they have resorted to this application in an attempt to halt the execution process. It is, indeed, out of place to indirectly injunct the respondent by restraining persons who are not agents of the respondent but have been mandated by the court to act, albeit in the interest of the respondent. By no stretch of imagination could the registrar and auctioneer be described as agents of the respondents, in the instant case, for them to be restrained from acting on behalf of the respondent. In an execution process the registrar acts on the directions of the court. He is not an agent, assign or workman of a judgment creditor. An application for interlocutory injunction to stop the execution process is definitely not appropriate in the instant case. Deployment of the same by the applicants, in the instant case, amounts to an abuse of the court’s process.

For the above reasons, the application is dismissed. Costs of GHC 5,000.00 awarded against the defendants/applicants.