ALVIN TELECOM LTD v. GHANA TELECOM CO. LTD and ANOTHER

ABBAN, J .A.:

This is an application for an order of injunction pending appeal brought under rule 31(d) of C.I. 19.

The said rule 31(d) of C. I. 19 provides thus; The Court may - "(d) make any interim order or grant any injunction which the court below is authorised to made or grant;" From the foregoing it appears that this application has been brought under the general powers of the Court of Appeal; instead of coming under rule 28 of C.I. 19 which deals with repeat applications.

The main ground canvassed by Counsel for the Plaintiff/ Appellant/ Applicant herein in seeking an order for the grant of the injunction is that the court below failed to grant an order of interlocutory injunction restraining the Defendants/Respondents/Respondents from enforcing a znct bank guarantee issued by znct Defendant on behalf of Plaintiff in favour of 1st Defendant pending the final determination of the suit pending before the said Court. Since this is a repeat application, in our view the applicant should have come under rule 2 8 of C.I 19 instead of the r. 31 which deals with the general powers of this court.

The said rule 28 provides as follows: "r. 28 Court to which application should be made subject these rules and to any other enactment where under any enactment an application may be made either to the court below or to the court, it shall be made in the first instance to the court below, but if the court below refuses to grant the application the application shall be entitled to have the application determined by the Court." Since this repeat application has been improperly laid under r.31 which spells out the powers exercisable by this court when an application is properly brought under any of the rules governing procedure to be followed by the court of appeal, we are of the view that this present application is ill-laid.

Be that as it may, we have listened to both counsel for the applicant and counsel for the Respondent.

We have had a look at the authorities submitted in support of their arguments and we are of the view that they are not on all fours with the current application before us.

We find that the performance contract between 1st Defendant and Plaintiff is outside the distributorship agreement.

On the face of the guarantee it is indicated that it is "irrevocable and unconditional". Since there is no allegation of fraud against the 1st Defendant or 2nd Defendant for that matter, we are of the view that this application ought not to be granted.

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