DANDYCYN LIMITED VS THOMAS ANOKYE & ANOR
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2019
DANDYCYN LIMITED - (Plaintiff/Respondent/Judgement Creditor)
THOMAS ANOKYE & ANOR - (Defendant/Applicant/Judement Debtor)

DATE:  11TH JUNE, 2019
SUIT NO:  RPC /06/2016
JUDGES:  HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS:  YAW ACHEAMPONG BOAFO WITH FRANCISCA ADJO AYIVOR FOR THE PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT
EDWARD ANOKYE FOR THE DEFENDANTS/JUDGMENT DEBTORS/ APPLICANTS
RULING

This ruling is in respect of an application filed on behalf of the Defendants/Judgment Debtors/Applicants (hereinafter called the Applicants) praying the Honourable Court for an order of interlocutory injunction restraining the Plaintiff/Judgment Creditor/Respondent (hereinafter called the Respondent) either by itself, its agents, privies, assigns, servants or otherwise howsoever including the Registrar and Auctioneer from auctioning property situate on Plots 115 and 116 Block “EE”, Patuda/Daban, Kumasi.

 

The background facts to the application are that a default judgment was given in favour of the Respondent on 22nd November, 2016. The Respondent subsequently went into execution and applied for a reserved price to be set by the Court for the sale of the properties attached in execution. The applicants herein objected to the valuation report commissioned by counsel for the Respondent and upon an application by the applicants herein, the court ordered the Registrar of this court to appoint an independent valuer to re-value the property. When the valuation report was brought to the notice of counsel for the Applicants, he expressed serious reservations and prayed the court to appoint the Government valuer to re-value the property. On 12th March, 2018 the court granted this request and appointed the Regional Surveyor, Lands Commission, Kumasi to do another valuation at the expense of the applicant. The valuation report was to be filed by 26th March, 2018 and the motion was adjourned to 9th April, 2018. When the motion came up for hearing on 9th April, 2018, counsel for the applicants failed to show up but wrote to the court expressing his frustration in getting the Head of the Valuation Division of the Lands Commission to comply with the order of the court. The court presided over by Her Ladyship Justice Angelina Mensah-Homiah determined the application by fixing the reserved price. The court was guided by the valuation report filed by Surveyor Richard Darko, the independent valuer appointed by the court and fixed the reserved price of the applicant’s properties at GHC900,000.00. Aggrieved by the decision of the court, the applicants appealed against the decision per a Notice of Appeal filed on 16th April, 2018. Subsequently, the Applicants sought to stay the Order for reserved price but the same was dismissed by the Court.

 

The Applicants have thus brought the instant application to seek the relief of interlocutory injunction.

The Applicants’ case is that the court’s reserved price of Nine Hundred Thousand Ghana Cedis (GHC 900,000.00) was heavily influenced by an undervaluation of the properties and that the appeal against the order of the court has a reasonable chance of success. That success of the appeal would be rendered nugatory if the instant application for interlocutory injunction is refused. That the applicants would clearly suffer greater hardship if the application is dismissed.

The respondent is opposed to the application. It is the respondent’s case that the application is incompetent and an abuse of the court process since a similar application in stay of execution filed by the applicants has been dismissed by the court. Counsel for the respondent submitted that the application is misconceived as the Registrar of the Honourable Court is not an agent or assign of the Respondent. He submitted that the Registrar is an officer of the Court assigned to perform certain tasks which include execution of judgments of the Court. That the registrar being an officer of the court has the authority to direct an auctioneer to carry out an auction sale. Counsel further submitted that the Registrar and the auctioneer are not parties to the instant suit and neither does their involvement in the execution process make them a party to the suit. It was submitted that the Applicants have not also in their affidavit shown that the Respondent has by intervention made the registrar of the Court its agent. Thus, the court cannot restrain the Registrar and Auctioneer from acting as agents of the respondent since they are not the latter’s agents. In support of this point counsel cited Kwami Tetteh’s book, Civil Procedure; A Practical Approach at page 1004 where the learned author relied on the English case of WILLIAMS v WILLIAMS (1937) 2 All ER 559 at 561 and stated that:

“I think it is clear to demonstration, from the case that has been cited... and other cases, and from well-known rule of law, that a registrar and a registrar's officer, executing a judgment of the court, are acting, as one may say, on behalf of the court. Each is doing his duty as an officer of the court, and is not a servant or agent of the plaintiff who has recovered judgment in the action. Of course, there may be circumstances which show that the plaintiff by intervention had made the registrar his agent to do something which is not covered by the judgment, or by the writ of execution.”

 

It is also the respondent’s case that the applicants have not evinced exceptional circumstances to warrant the grant of the interlocutory injunction – that beside the bare assertion made by the applicants that the appeal is likely to succeed, the applicant has failed to establish that the injunction if granted would not inflict a greater hardship on it. The respondent’s case is that it will suffer irreparable damage if the application is granted.

The grant of interlocutory injunction is governed by Order 25 Rule 1 of the High Court (Civil Procedure) Rules, C.I. 47. Order 25 Rule 1 (1) provides 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.’’

The foremost consideration adopted by the court in the grant of injunction is based on whether on the balance of convenience the grant of the order would be just. As pointed out by the authorities, the jurisdiction to grant an injunction does not confer an arbitrary or unregulated discretion on the court. The twin ethos of ‘‘justice and convenience’’ are key in the determination.

In the Harlsbury Laws of England, 4th Edition, Volume 24, para 919, the authors commented on the meaning of the words ‘just and convenient’’ as follows:

“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.

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