K. K. OFORI v. POSITIVE DRIVE INVESTMENT & ORS
2018
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU (J.A)
- AVRIL LOVELACE-JOHNSON (J.A)
- HENRY A. KWOFIE (JA)
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The appellate court overturned the High Court Accra's decision in denying the Plaintiff/Appellant's interlocutory injunction application. The appellate court found that the trial judge did not exercise discretion judiciously according to established guidelines for interlocutory injunctions. The Plaintiff/Appellant demonstrated a legal right and showed that preserving the status quo was necessary while litigation proceeded. The balance of hardship also favored the Plaintiff/Appellant, warranting the grant of the injunction. As a result, the court granted the interlocutory injunction and restrained the Defendants/Respondents from developing the disputed land pending the final determination of the suit.
JUDGMENT
AVRIL LOVELACE-JOHNSON (J.A):
This is an appeal against the ruling of the High Court Accra dated 28th July 2017 by which it denied the Plaintiff/Appellant’s application for interlocutory injunction.
The appeal is brought on the sole ground that the learned trial judge wrongly exercised his discretion when he dismissed the said application. On this basis, the Appellant seeks from this court an order granting the said interlocutory injunction.
The background to this case is that the Plaintiff/Appellant on 23rd May 2017 issued a writ against the
1st and 2nd Defendants for declaration of title to the land in dispute, damages for trespass, recovery of possession and perpetual injunction. One Abraham Ashong applied to be joined to the suit and was so joined as the 3rd Defendant. The Plaintiff/Appellant then applied for interlocutory injunction against the Defendants which was refused, leading to the present appeal.
In refusing the application, the learned trial judge stated in part as follows:
“This therefore goes to show that both have legal rights to the subject matter which requires the protection of this court…..Looking at the stage of the development on the land it is my candid consideration that it will not be just to grant the application since doing so will create a lot of inconvenience to the Respondent”
The Courts have over the years laid down clear guidelines for the grant or refusal of interlocutory injunctions even though its grant lies within the discretion of the judge who hears the application. However, where this discretion is not exercised judiciously, (that is, where it is not exercised in accordance with these guidelines), in spite of the reluctance by an appellate court to interfere with an exercise of discretion by a court of first instance, this court, by virtue of its statutory powers of rehearing under rule 8(1) of The Court of Appeal Rules 1997 C I 47 can and will do so in the interest of justice. See the case of OWUSU V OWUSU-ANSAH and ANOR [2007-2008] SCGLR 870, Holding (2)
The principles governing the grant of such applications have been stated in cases such as
AMERICAN CYNAMIDE CO V ETHICON LTD [1975] 1 ALL ER 504, ODONKOR V AMARTEI [1987-88] 1 GLR 587, OWUSU V OWUSU-ANSAH [2007-2008] 2 SCGLR 870, 18TH JULY LTD V YEHANS INTERNATIONAL LTD [2012] 1SCGLR 167.
These cases have not sought to lay down all the factors to be considered but running through these has been what has been described as “the fundament