NETTEY AND OTHERS v. INSPECTOR-GENERAL OF POLICE AND OTHERS

JUDGMENT OF LUTTERODT J.

The plaintiffs instituted this action against the defendants for the reliefs indorsed on the writ. The three defendants not only filed a statement of defence but counterclaimed for two reliefs, namely a declaration that leases granted to certain persons by the plaintiffs were void and of no legal effect, and also for the ancillary relief of perpetual injunction to restrain the plaintiffs from interfering with or disposing of the lands known as the Ablekuma lands.

At the hearing of an application for interim injunction filed by the third and fifth defendants, the plaintiffs' counsel raised a preliminary objection in law. His argument was that in so far as the defendants themselves admit that the plaintiffs are being prosecuted for the criminal offence of felony before the public tribunal with respect to these same lands, the civil action by their counterclaim is not maintainable and therefore the application for interim injunction which is based on the substantive action is also not maintainable.

The view, however, of the defendants' counsel is that there are exceptions to this general rule in Smith v. Selwyn [1914] 3 K.B. 98, C.A. More particularly they argue that first, since the charge the plaintiffs are facing is one of stealing family funds realised out of the sale of these family lands; secondly, when the defendants set up their defence and counterclaim they applied for further and better particulars; and lastly, since the plaintiffs are continuing with the felonious acts complained of and the public tribunal is certainly not seised with jurisdiction to grant this interim relief they are seeking, they are in equity entitled to this restraining order, and what could be stayed if anything at all, should be the main trial.

In a ruling I delivered in the case entitled Kufour v. Boadu, High Court, Accra, 18 September 1991, unreported, I had the opportunity to discuss the scope of this rule in Smith v. Selwyn (supra). The following textbooks: Salmond on the Law of Torts (14th ed.) by R. F. V. Huston; Halsbury's Laws of England (3rd ed), Vol.1 and Winfield on Tort (6th ed) by T. Elles Lewis, all deal with the subject. Salmond does so in depth and states the exceptions to this general rule.

The authors are agreed however that it is a rule designed to protect the interest of the public. It is intended to force persons who have [p.21] suffered both a felony and a tort not to be content merely with obtaining redress in the court