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January 14, 1976
HIGH COURT
GHANA
CORAM
JUDGMENT OF QUASHIE-SAM J.
The defendant-appellant (hereinafter referred to simply as the defendant) has appealed against the ruling of the District Court Grade II, Takoradi, dated 8 September 1975, given in favour of the plaintiff-respondent (hereinafter simply referred to as the plaintiff).
The background of the ruling is not sufficiently stated in the ruling, but it does appear from the record that the plaintiff sued the defendant for ¢300.00 damages for an alleged trespass to land. On 25 July 1975, the court granted an interim order of injunction restraining both parties till the determination of the case. That order and how it came to be made is not included in the record of appeal, which only contains the writ of summons taken out on 19 June 1975, the notes of the court sitting on 25 July 1975 showing the parties as being present when the matter was adjourned to 18 August 1975, and the court notes of 18 August 1975 when counsel for the defendant made an application for a review of the interim injunction order granted on 25 July 1975, on the ground that the plaintiff did not apply for it by the proper method. The court adjourned to 8 September 1975 for its ruling which it gave dismissing the application for review.
It is against that ruling that this appeal has been lodged on the ground that the trial magistrate erred in granting the interim order of injunction when there was no endorsement for perpetual injunction on the writ of summons.
At the hearing of the appeal, this court had the opportunity to peruse the relevant record book of the lower court which has cured the imperfection of the record of appeal. In that record book the following is recorded on 25 July 1975, both parties being present:
"The plaintiff applied for an interim injunction verbally in court and said the defendant is wasting the land by putting up building. The defendant said he is building on the land. I am satisfied that an interim injunction order be granted. Both parties are hereby restrained from entering on the plot for a purpose of doing anything on the land until the final determination of the case."
Counsel for the defendant in this court argued that since the writ was not endorsed for perpetual injunction as an additional relief, and the court was not seised with facts on affidavit as to whether or not there was waste being committed on the land, the application for interim injunction was improper. He submitted that the application should have been by way of motio
AI Generated Summary
Justice Quashie-Sam, sitting as an appellate judge, reviewed an interlocutory dispute arising from litigation in the District Court Grade II, Takoradi, where an unnamed plaintiff sued for a2300.00 damages for alleged trespass to land. On 25 July 1975, while both parties were present, the magistrate granted an interim injunction restraining both parties after the plaintiff verbally claimed the defendant was wasting the land by building and the defendant admitted he was building. The defendant sought review on 18 August 1975, arguing impropriety because the writ lacked an endorsement for perpetual injunction and no motion on notice with affidavit supported the request. On appeal, the High Court held the review was time-barred under Order 42, r. 2, that verbal interlocutory applications are permissible under Order 27 when the court is seised, and that discretion under Order 14, r. 1 was properly exercised. The appeal was dismissed with costs of a235.00.